People v. Badge , 15 Mich. App. 29 ( 1968 )

15 Mich. App. 29 (1968) 165 N.W.2d 901

PEOPLE
v.
BADGE

Docket No. 4,443.

Michigan Court of Appeals.

Decided December 20, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Donald L. Milbourn, Assistant Prosecuting Attorney, for the people.

Neale & Steeh, for defendant on appeal.

PER CURIAM:

Defendant Arthur William Badge was convicted by a jury of the crime of forcible rape. CLS 1961, § 750.520 (Stat Ann 1954 Rev § 28.788). He has appealed his conviction claiming that he was denied a fair and impartial trial.

No objections were raised below as to the points of prejudice now alleged. We do not read People v. Hicks (1966), 2 Mich App 461, as does defendant, for the proposition that this Court is required to examine the record in prosecution for rape in a search for error reflecting clear injustice, even though no objection was raised at trial. It is, however, our prerogative to do so and, as in People v. Hicks, supra, we choose to do so here.

Defendant by present counsel asserts prejudice in defense trial counsel's failure to put defendant on the stand after telling the jury that defendant would testify.

It is not certain, but it is reasonable to assume that defense counsel at trial intended to put defendant on the stand, but because testimony of a detective placed into evidence the whole theory of the defense, he decided not to put defendant on the stand. This was a trial tactic that was permissible.

"Appellate courts cannot determine whether the course pursued by an attorney defending a man charged with crime, in respect to the matters referred to, was the best means of promoting his defense." People v. Martin (1920), 210 Mich 139.

Defendant asserts prejudicial error as to a remark made by the prosecuting attorney to a witness concerning recent rapid changes in the law. The jury was told by the prosecutor, defense counsel and the trial court that the only evidence that it could consider was to come from the witness stand. We find no reversible error.

Defendant interprets a remark by the prosecutor to violate the rule that no comment is to be made as to a defendant not taking the witness stand.^[*] The prosecutor's statement did not mention the failure of defendant to take the witness stand but referred to a statement made by defendant at a time when he was not under oath or subject to cross-examination.

Defendant states, and rightly so, that it is error for a prosecutor to make comments on facts outside of the record to the jury. However, the comment in question was proper because it concerned an inference that could be properly drawn from lengthy and detailed testimony.

"The prosecuting attorney had a right to draw such an inference from the facts appearing in the record." People v. Morlock (1925), 233 Mich 284.

Defendant claims prejudicial error because of a discussion concerning the voluntariness of a statement by defendant made before the jury. Upon proper and timely objection the trial court excluded all testimony concerning the statement. The colloquy between the court and the attorneys as to the admissibility of that statement should not have occurred in the presence of the jury. However, there was no prejudice to the defendant since the statement excluded was encompassed in another statement given by the defendant to the police which was properly admitted into evidence with the consent of the defendant. Also, the trial court stated in its charge, "any evidence which, to which, an objection was sustained, you must disregard it." There was no error.

Defendant claims prejudicial error upon the offer and rejection of a people's exhibit. All that appears in the record is a brief mention of the exhibit, defense counsel's objection to its introduction and the grounds for the objection and ruling. We find no prejudice to defendant.

Defendant asserts two alleged errors in the instructions of the trial court. After a careful review of the instructions we find no error.

We conclude that defendant was given a fair and impartial trial. There was no miscarriage of justice. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).

Affirmed.

LEVIN, P.J., and HOLBROOK and ROOD, JJ., concurred.

NOTES

[*] CL 1948, § 768.22 (Stat Ann 1968 Cum Supp § 28.1045).