People v. Leonard E. Smith

15 Mich. App. 173 (1968) 166 N.W.2d 504

PEOPLE
v.
LEONARD E. SMITH

Docket No. 3,952.

Michigan Court of Appeals.

Decided December 23, 1968.

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

John J. Murray, for defendant.

McGREGOR, J.

A jury found Leonard E. Smith guilty of armed robbery. CLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28.797). He appeals, claiming the trial court erred in allowing the prosecution, under the guise of impeachment, to place in evidence during cross-examination evidence which the prosecutor deliberately withheld from the case in chief, in order to confuse the defendant. Defendant also asserts that the trial court erred in an instruction to the jury regarding their failure to perform their duty.

On January 31, 1967, the complaining witness left a Detroit hotel and hired a Checker Cab; as the cab approached the witness' home, the driver stopped the cab and with the use of a revolver robbed the complaining witness. Afterwards, the witness contacted the police, recalled the cab's license plate number, identified the defendant from police photos, and later identified the defendant in a lineup. At trial, the victim provided the only substantial and material evidence of defendant's guilt. As a witness in his own behalf, defendant denied his guilt, but admitted a prior criminal conviction. On cross-examination as to his employment during the previous four years, defendant omitted any reference to Checker Cab, but, upon further questioning he admitted employment with Checker Cab on a previous occasion. Defendant also testified that he did not procure a public vehicle license in behalf of Checker Cab in 1967. Afterwards, however, he admitted that he had a purported Checker Cab license in his possession which he had forged. Defendant's attorney did not object to the admission of defendant's testimony into evidence, but he did object to the admission of the license into evidence as an exhibit. When the prosecution indicated that the license was sought to be admitted only for the purpose of affecting defendant's credibility, defendant's attorney said he could not object to its admissibility for credibility purposes, but that he would object for any other purpose. The court then admitted the exhibit.

It is unclear on this appeal whether defendant is contending that his testimony on cross-examination regarding the public vehicle license was inadmissible. He did not make that contention in the lower court. Moreover, having failed to object to its admissibility during trial, defendant cannot raise the issue on appeal. People v. Hallman (1941), 299 Mich 657; People v. Hicks (1966), 2 Mich. App. 461; People v. Willis (1965), 1 Mich. App. 428. The testimony on cross-examination was properly admitted, since there is a considerable latitude of discretion imposed in the trial court regarding the cross-examination of a defendant to show his credibility. People v. Gray (1904), 135 Mich. 542; People v. Danenberg (1913), 176 Mich. 337; People v. Winney (1917), 196 Mich. 347; People v. DeWitt (1966), 4 Mich. App. 297.

Defendant contends on appeal that the trial court improperly admitted the public vehicle license as an exhibit. His cited case [People v. Cox (1888), 70 Mich. 247] holds that reception of testimony on rebuttal, which should have been offered on direct examination, is within the discretion of the trial court unless such discretion is abused to the prejudice of the defendant. While defendant claims he was prejudiced, the Cox decision indicates that, where the testimony in question merely expands upon or supports previously admitted testimony, there is no prejudice. Similarly in this case, the admission of the public vehicle license merely supported defendant's prior testimony, and thereby was not a prejudicial abuse of discretion. See 53 Am Jur, Trial (1945), § 129. No reversible error occurs if, upon cross-examination of defendant, an exhibit is received into evidence to show defendant's lack of veracity, and defendant's testimony on cross-examination clearly indicates that lack of veracity. People v. Winney, supra. Since defendant during the trial expressly conceded that he could not object to admission of the exhibit for credibility purposes and failed to object, he waived his right to raise an objection on appeal. People v. Hallman, supra; People v. Hicks, supra; People v. Willis, supra.

The defendant's second contention is that the trial court erred in its instruction to the jury regarding their duty. However, after the instruction when asked if he had any other requests to charge, the defendant's attorney replied that he had ``nothing further'. GCR 1963, 516.2 provides:

"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."

As defendant was afforded an opportunity, but did not object to the instructions before the jury retired, he is now precluded from claiming an error based on the trial judge's failure to give an instruction. People v. Connors (1930), 251 Mich. 99; People v. Dexter (1967), 6 Mich. App. 247; People v. Cassiday (1966), 4 Mich. App. 215; People v. Mallory (1966), 2 Mich. App. 359. While in unusual circumstances, and to prevent manifest injustice, this Court may note and correct instructions which err with respect to basic and controlling issues in a case, even though no objection thereto was made before the jury retired, no such error was made in this case and such correction will be sparingly exercised by this Court. Hunt v. Deming (1965), 375 Mich. 581. Moreover, even if an objection to the instruction had been properly raised, the defendant's position is without merit because the instruction was proper. People v. Hahn (1921), 214 Mich. 419. Nowhere did the instruction suggest, as appellant contends, that the jurors could be remiss, lax, or indifferent in performing their duties because a higher court would correct any mistakes they made. When read in their entirety, the instructions indicate no prejudicial error. People v. Dye (1959), 356 Mich. 271; People v. Schwitzke (1946), 316 Mich. 182; People v. Smith (1966), 3 Mich. App. 614. If misdirection had occurred, any alleged error did not result in a "miscarriage of justice" nor was it so gross as to deprive defendant of a fair trial requiring that the verdict be set aside or reversed. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096); People v. Ritholz (1960), 359 Mich. 539; People v. Hahn, supra; People v. Carr (1966), 2 Mich. App. 222.

Affirmed.

T.G. KAVANAGH, P.J., and PHILIP C. ELLIOTT, J., concurred.