People v. Stimage ( 1993 )

202 Mich. App. 28 (1993) 507 N.W.2d 778

PEOPLE
v.
STIMAGE

Docket No. 143094.

Michigan Court of Appeals.

Submitted September 14, 1993, at Lansing. Decided October 5, 1993, at 9:20 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Daniel A. O'Brien, Assistant Prosecuting Attorney, for the people.

Faintuck, Shwedel & Wolfram (by Marvin S. Shwedel), and Bruce T. Leitman, P.C. (by Bruce T. Leitman), for the defendant on appeal.

Before: HOLBROOK, JR., P.J., and FITZGERALD and TAYLOR, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2) (a)(iv); MSA 14.15(7401)(2)(a)(iv). Defendant subsequently pleaded guilty of being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084, and was sentenced to a prison term of 3 1/2 to 20 years. Defendant appeals as of right.

Defendant first contends that the trial court erred in permitting a police officer to testify as an expert regarding the significance of the quantity of the drugs allegedly found in defendant's possession as it related to the issue regarding intent to deliver. Defendant did not object to the officer's opinion testimony. Absent a showing of manifest injustice, objections to the admission of evidence cannot be raised for the first time on appeal. People v Spearman, 195 Mich. App. 434, 445-446; 491 NW2d 606 (1992).

Here, the testimony, which was based on the officer's training and experience, was admissible to aid the jury in determining the defendant's intent and his guilt of the charged offense. The fact that the testimony embraced the ultimate issue of intent to deliver did not render the evidence inadmissible. People v Williams (After Remand), 198 Mich. App. 537, 542; 499 NW2d 404 (1993); People v Ray, 191 Mich. App. 706, 707; 479 NW2d 1 (1991).

Defendant also claims that a second police officer's testimony that a drug transaction was taking place was an inadmissible legal opinion. However, at trial defendant objected to the testimony on the ground that the prosecutor had failed to lay a proper foundation for the testimony. An objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground. Williams v Coleman, 194 Mich. App. 606, 620; 488 NW2d 464 (1992). Further, the officer's opinion was not a legal opinion regarding an essential element of the crime charged because proof of an actual delivery of narcotics is not required to prove intent to deliver. People v Wolfe, 440 Mich. 508, 524; 489 NW2d 748 (1992).

Next, we agree with defendant that the informants' statements were inadmissible hearsay. In light of the overwhelming evidence of defendant's guilt, however, the erroneous admission of the statements was harmless. People v Oswald (After Remand), 188 Mich. App. 1, 8; 469 NW2d 306 (1991).

Defendant further contends that the prosecutor injected an improper civic-duty argument into his closing statement. Again, we agree. However, the civic-duty argument was cured by a cautionary instruction that "arguments of counsel are not evidence." People v Curry, 175 Mich. App. 33, 45; 437 NW2d 310 (1989).

Lastly, defendant claims that the prosecutor's failure to give an opening statement was error requiring reversal.

MCR 6.414(B), which became effective on October 1, 1989, provides:

Unless the parties and the court agree otherwise, the prosecutor, before presenting evidence, must make a full and fair statement of the prosecutor's case and the facts the prosecutor intends to prove. [Emphasis added.]

MCR 6.414(B) is a stylistically revised version of MCR 2.507(A), which governs opening statements in civil trials. Rule 2.507(A) is based on GCR 1963, 507.1. GCR 1963, 507.1, read in part:

Opening Statements. Before the introduction of any evidence, the attorney for the party who is to commence the evidence shall make a full and fair statement of his case and the facts he intends to prove. [Emphasis added.]

In People v Koharski, 177 Mich. 194, 196; 142 N.W. 1097 (1913), the Court stated:

We are of the opinion that the rule [Circuit Court Rule 24, predecessor to GCR 1963, 507.1, now MCR 2.507(A)] is directory, and that it was promulgated for the purpose of having the plaintiff's case outlined in advance so that the jury could the better see the force and bearing of the evidence as it came in, and, while we think it is a proper rule to enforce, we are not prepared to say that the refusal to enforce it is reversible error, where its omission is not shown to have been prejudicial to respondent's case.

See also People v Clayton, 236 Mich. 692, 694, 695; 211 N.W. 42 (1926), People v Nicen, 123 Mich. App. 258, 261; 333 NW2d 243 (1983), and People v Joseph, 24 Mich. App. 313, 318-319; 180 NW2d 291 (1970).

Defendant argues, however, that the use of the word "must" in MCR 2.507(A) and MCR 6.414(B), instead of the word "shall," as used in GCR 1963 507.1, is indicative of the Supreme Court's intent to make the requirement of a prosecutorial opening statement mandatory^[1] rather than directory. We agree. However, we are reluctant to reverse a jury's determination solely because there was no opening statement. Accordingly, we hold that the failure of the prosecutor to make an opening statement does not constitute error requiring reversal in the absence of a showing of prejudice to defendant's case. Here, defendant did not object to the failure of the prosecutor to give an opening statement, and it is not pointed out by defendant how his case has suffered by reason of omission of the prosecutor's opening statement.^[2] Hence, no error requiring reversal occurred.

Affirmed.

NOTES

[1] "Unless the parties and the court agree otherwise." MCR 6.414(B).

[2] Defendant simply states that "[t]he failure of the prosecutor to give an opening statement in this case was prejudicial."