People v. Hill

27 Mich. App. 322 (1970) 183 N.W.2d 396

PEOPLE
v.
HILL

Docket No. 7,366.

Michigan Court of Appeals.

Decided October 26, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Attorney, Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.

David Harris, for defendant on appeal.

Before: V.J. BRENNAN, P.J., and J.H. GILLIS and O'HARA,^[*] JJ.

PER CURIAM.

Defendant was found guilty by a jury of robbery armed^[1] and sentenced to a term of 5 to 15 years in prison. Four issues are raised by defendant in this appeal.

The defendant's first contention is that he was unduly restricted in the scope and degree of cross-examination of the complaining witness, and was thereby restricted in his attempt to discredit that witness. It is the well-established rule in this state that the scope and degree of cross-examination into collateral subjects and areas is within the sound discretion of the trial court. People v. Harry Fleish (1948), 321 Mich 443; People v. Weems (1969), 19 Mich App 553. In the instant case, the record clearly shows the trial court's willingness to allow the defendant a broad scope in his collateral attack upon the witness's credibility. The trial court did, however, find that at times the areas encompassed by the questions were too far removed from present considerations; and at those points, the trial court restricted the defendant's cross-examination. The record indicates that the trial court used sound discretion in limiting the scope of the cross-examination.

The second contention is that the in-court identification of the defendant by the victim was tainted by the use of a "mug shot" by the police during the investigation. No objection was made to the in-court identification and there is nothing in the record to indicate that the police improperly used the photographs. This assignment of error is without merit.

The third contention is that the prosecutor made a prejudicial comment in his closing argument. The record indicates that the comment was a proper inference drawn from the evidence before the jury. In any event, there was no objection to the prosecutor's comment at the trial level; therefore, the question is not properly raised for the first time on appeal. People v. Montgomery (1970), 22 Mich App 87.

The last contention is that the trial court erred by instructing the jury as to the failure of the defendant to take the stand. The instruction given by the trial court was favorable to the defendant. The trial court may on its own motion give a favorable instruction with reference to the defendant's right to not take the stand. People v. Waters (1969), 16 Mich App 33. The instruction given by the trial court was proper; therefore, the denial of a motion for mistrial, based upon that instruction, was proper.

Affirmed.

NOTES

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

[1] MCLA § 750.529 (Stat Ann 1962 Rev § 28.797).