People v. Tooks , 55 Mich. App. 537 ( 1974 )

55 Mich. App. 537 (1974) 223 N.W.2d 63

PEOPLE
v.
TOOKS

Docket No. 15983.

Michigan Court of Appeals.

Decided September 24, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia Boyle, Principal Attorney, Research, Training and Appeals, and Thomas A. Ziolkowski, Assistant Prosecuting Attorney, for the people.

Theodore B. Sallen (Carl Ziemba, of counsel), for defendant on appeal.

Before: BRONSON, P.J., and QUINN and VAN VALKENBURG,^[*] JJ.

BRONSON, P.J.

Defendant was charged with unarmed robbery. MCLA 750.530; MSA 28.798. The case was tried to a jury and defendant was found guilty and sentenced on November 30, 1972 to serve 4 to 15 years. He appeals as of right. His four assignments of error will be discussed seriatim.

I.

The trial judge felt constrained to invoke the so-called Allen charge^[1] in this case. Defendant insists that the charge was prematurely given because the jury was not "hopelessly deadlocked". The jury deliberated for nearly seven hours before the foreman requested that certain testimony be read again. The judge satisfied himself that the jury would not be able to reach a verdict without that request being honored. The following colloquy occurred:

"Court: Do you feel that without this that you can reach a verdict?

"Foreman: At this point we are at a stalemate.

"The Court: Is that what the resistance is, that someone wants to hear that, or is there a dispute as to what was heard?

"Foreman: I know I myself would like to hear it.

"The Court: Without it do you feel that you are just not going to be able to reach a verdict?

"Foreman: At this point it appears that way.

"The Court: Gentlemen (to counsel), both — will both of you approach the bench?"

The judge then conducted an unrecorded sidebar conference. The Allen charge followed.

No objection was made either to the decision to give the charge at that time or to the form of the charge when given. Opportunity to object was afforded counsel both times. Failure to object to jury instructions bars consideration of error on appeal, GCR 1963, 516.2, unless a clear abuse of discretion resulting in manifest injustice is apparent. People v McClure, 29 Mich. App. 361; 185 NW2d 426 (1971).

No abuse of discretion is shown. The jury had been unable, despite seven hours of deliberation, to reach a verdict. The case was not unduly complex, yet the foreman represented that a verdict would not be forthcoming unless certain testimony, representing fully three-fourths of the trial transcript, was repeated. Under these circumstances, it cannot be said that the judge committed reversible error in resorting to the Allen charge.

In like manner, defendant's dissatisfaction with a portion of the language employed by the judge in his Allen charge is misplaced. The charge must be read as a whole. People v Thomas, 49 Mich. App. 682; 212 NW2d 728 (1973). Defendant focuses on one paragraph^[2] of a rather lengthy instruction and suggests that this portion, out of context, demonstrates that the jury was coerced into rendering a verdict.

The quoted language is substantially similar to that approved in People v Chivas, 322 Mich. 384; 34 NW2d 22 (1948). The Chivas Court concluded that there was no coercion in the language used. Moreover, the jury in the present case deliberated for an additional two hours after receiving the Allen charge, indicating that any coercive import had been effectively ignored.

We conclude that neither the timing nor the content of the Allen charge resulted in manifest injustice to the defendant.^[3]

II.

Defendant also urges reversal on the ground that the trial judge erroneously instructed the jury by saying, in this, an unarmed robbery prosecution:

"In other words, to recap, either guilty of robbery armed may be expressed ``guilty as charged' or ``not guilty'."

That the judge made a mistake cannot be denied. However, we do not agree that it requires reversal, because the jury could not reasonably have been misled by it.

Defense counsel was given ample opportunity, both before and after delivery of the final instructions, to register an objection. None was made. Therefore, our review is limited to a determination of whether there is any showing of manifest injustice or clear abuse of discretion. McClure, supra.

In his opening remarks to the newly-empaneled jurors, the judge twice clearly stated that the case involved "unarmed robbery". All of the proof introduced at trial disclosed that the crime had been perpetrated without weapons. In his final instructions to the jury, the judge carefully explained only the elements of unarmed robbery. There were no instructions given for lesser included offenses.

In his final charge the judge on four different occasions repeated that the one and only subject of the inquiry was unarmed robbery. He then, in the recapitulation quoted above, misspoke. It is sufficiently clear from the record that the jury found the defendant guilty of the crime charged. People v Fleish, 306 Mich. 8; 9 NW2d 905 (1943); People v Jenkins, 23 Mich. App. 39; 178 NW2d 103 (1970). This unintentional slip of the tongue must be distinguished from the kind of error involved in People v Neumann, 35 Mich. App. 193; 192 NW2d 345 (1971). The record does not support a claim of manifest injustice.

Defendant further asserts that the following portion of the final charge also impermissibly suggested that the case involved armed robbery:

"The matter of putting him in fear oftentimes necessitates the use of another instrument. In this particular matter the use of another instrument is not alleged. But the prospect of another instrument may be sufficient to constitute that sort of fear that would be putting a person in fear."

Defendant misconstrues the purpose of this portion of the charge. It is a perfectly proper use of an illustration to explain one of the elements of the crime in question. And there was uncontroverted testimony by the victim that her assailant threatened to cut her finger off to get the ring which was taken from her. The judge was here merely fulfilling his obligation to fashion instructions which meet the factual demands of the particular case by language which is comprehensible by the jury and directly relevant to facts in evidence. Cf.: Hill v Harbor Steel & Supply Corp, 374 Mich. 194; 132 NW2d 54 (1965); Hansen v Batchelder, 14 Mich. App. 627; 165 NW2d 886 (1968). The judge did not abuse his discretion. The final instructions given in this case were not erroneous.

III.

Defendant maintains that the cross-examination of several defense witnesses improperly impugned their reputations as truth tellers. We disagree.

Defendant chooses several examples, out of context, from an extensive cross-examination. No objection was made to this alleged prosecutorial misconduct. At most gratuitous and argumentative, it did not amount to a denial of a fair trial or a miscarriage of justice, MCLA 769.26; MSA 28.1096, as a brief examination of the circumstances will reveal.

Each one of the witnesses admitted being at the scene of the crime and witnessing its commission. Their testimonial purpose was to exculpate the defendant. The prosecutor had every right to explore any possibility of bias. Geary v People, 22 Mich. 220 (1871). And the trier of fact may properly consider the interest or lack of interest on the part of a witness in evaluating the testimony of that witness. People v Hughes, 20 Mich. App. 294; 174 NW2d 81 (1969); People v Sesson, 45 Mich. App. 288, 302; 206 NW2d 495 (1973).

IV.

Defendant's final claim is that he was subjected to improper cross-examination when he was questioned about arrests which did not lead to convictions. A portion of the cross-examination was arguably improper. The record suggests, not without some confusion,^[4] that defendant was questioned about an arrest which did not result in a conviction.

Defense counsel failed to object to this cross-examination.^[5] Nevertheless, we are requested to reverse by giving retroactive effect to People v Falkner, 389 Mich. 682; 209 NW2d 193 (1973). That case apparently makes impeachment of any witness by use of arrests not resulting in convictions per se reversible error, even where there is a failure to object. We decline to make Falkner retroactive absent a clear showing by the Supreme Court that retroactivity is intended.^[6]

Defendant testified in this case to other arrests and convictions in a manner which met the Falkner requirements. The isolated reference to an arrest not leading to a conviction did not result in prejudice to the defendant. Given the absence of an objection, we cannot say that manifest injustice has been demonstrated. See People v Peay, 37 Mich. App. 414; 195 NW2d 75 (1971), leave to appeal den, 388 Mich. 795 (1972); People v Sanders (concurring opinion), 43 Mich. App. 698; 204 NW2d 706 (1972).

Affirmed.

All concurred.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] See Allen v United States, 164 U.S. 492; 17 S. Ct. 154; 41 L. Ed. 528 (1896).

[2] "And, with this view, I specifically instruct you to do your duty to decide whether the evidence is more clear as produced by one side than the other, and with this in view, it is your duty to make the conscientious decision."

[3] We are confident that the charge given here is in accordance with People v Sullivan, 392 Mich. 324; 220 NW2d 441 (1974).

[4] "Q. What were you picked up for on that night when this robbery took place?

"A. I was picked up — they was holding me for suspicion of B & E.

"Q. Was it this B & E? That is in question today?

"A. I wouldn't know.

"Q. Or was it another one?

"A. I still wouldn't know.

"Q. Didn't they ask you what it was?"

[5] Compare People v Brocato, 17 Mich. App. 277; 169 NW2d 483 (1969).

[6] That clear showing is conspicuously absent in the recent case of People v Renno, 392 Mich. 45; 219 NW2d 422 (1974).