People v. White , 25 Mich. App. 176 ( 1970 )

25 Mich. App. 176 (1970) 181 N.W.2d 56

PEOPLE
v.
WHITE

Docket No. 7,638.

Michigan Court of Appeals.

Decided July 1, 1970. Leave to appeal denied September 24, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene C. Penzien, Prosecuting Attorney, for the people.

T. George Sternberg, for defendant on appeal.

Before: McGREGOR, P.J., and BRONSON and MAHINSKE,^[*] JJ.

Leave to appeal denied September 24, 1970. 384 Mich. 760.

PER CURIAM.

Defendant was charged with murder in the first degree. CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548). Deceased, Ralph Smith, and defendant argued about money in a local coffee shop and were ordered out by the owner. After some alleged personal threats, evidence indicates they parted and each went to his residence and returned to the coffee shop a few minutes later with guns. Defendant shot and killed Smith in front of the shop. The jury convicted defendant of murder in the second degree. CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549). Defendant was sentenced to life imprisonment.

On claim of appeal, defendant raises numerous issues concerning the conduct of the trial and the jury instructions.

The issues raised regarding the conduct of the trial were not raised in the trial court and they cannot be raised for the first time on appeal. People v. Will (1966), 3 Mich. App. 330; People v. Dailey (1967), 6 Mich. App. 99. Moreover, although given the opportunity below, no objections to the instructions were raised by defendant. The failure of timely objection waives any possible right he might have had to object now to the instructions. People v. Allar (1969), 19 Mich. App. 675; People v. Mallory (1966), 2 Mich. App. 359; People v. Wilkes (1970), 21 Mich. App. 169.

The single objection to the admission of testimony by a people's witness, Donald Winters, concerning what certain witnesses for the people had told him before trial, is without merit. On direct examination the following excerpt from the record shows the content of the objections:

"Mr. Harvey: I object, your Honor. The other persons have been witnesses here — if they are not, it is hearsay, which is inadmissible.

"The Court: It would be hearsay. There is no question about that. * * * The objection would be sustained however, any witnesses he may have interviewed who have here testified I think would be out of the area on those. You will have to confine it to whatever Mr. Bacca, Mr. Reed or Mr. Burney had told you."

The defense registered no further objection and did not cross examine. It is clear that defense counsel did not specifically object to the testimony of these three witnesses, which were the only ones Winters quoted. The court was not called upon, through proper objection, to rule on the admissibility of the allegedly hearsay testimony of Bacca, Reed, and Burney.

In defense counsel's opening statement the following quotation from the record is important:

"There is no question in this case there was a killing but there are lesser offenses than murder; also there may be no offense at all if the killing is done in self-defense."

In the absence of any mention or offer of proof that defendant did not commit the offense, the only conclusion is that he did the killing and that it was in a less degree or in self-defense. The admission of defense counsel that defendant had shot Smith relieves the prosecutor from proving that fact. People v. Sybisloo (1921), 216 Mich. 1; People v. Clark (1967), 6 Mich. App. 526, 530; People v. Autry (1967), 7 Mich. App. 480.

With the corpus delicti admitted by defense counsel, it then was in order for the prosecutor to put the police officers, coroner, and doctor on the stand to testify concerning the circumstances. The testimony of these witnesses was admitted without objection.

Defendant's allegation of inadequate defense does not present a valid ground for reversal. Appellate courts try never to second-guess trial counsel on matters of strategy. People v. Crosby (1969), 19 Mich. App. 135; People v. Shipp (1970), 21 Mich. App. 415. This record does not demonstrate that defendant's representation was so lacking in competence that it became the duty of the court or the prosecution to observe and correct it, nor does it demonstrate that the circumstances surrounding the trial shocked the conscience of the court and made the proceedings a farce and a mockery of justice. People v. Davison (1968), 12 Mich. App. 429; People v. Hill (1970), 21 Mich. App. 178.

It is true that an appellate court will consider manifest and serious errors with or without trial objection. Defendant's failure to object to the order of the trial, admission of evidence, and to the court's instructions does not result in manifest or serious error. Our review of the evidence leads us to conclude that even if part of the testimony had been eliminated through timely and proper objection there would still be sufficient competent, undisputed evidence remaining to convict. People v. Skrypczak (1922), 220 Mich. 222, 225. The instructions, when reviewed as a whole did not mislead the jury and were adequate. People v. Fred W. Thomas (1967), 7 Mich. App. 519; People v. Charles Jackson (1970), 21 Mich. App. 132.

The present record, viewed in its entirety does not indicate an obvious miscarriage of justice. Defendant does not demonstrate any serious or manifest error, nor is reversible prejudice shown on the basis of the issues raised. MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096); GCR 1963, 529.1; People v. Burnette (1969), 19 Mich. App. 336.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.