People v. Petrov

75 Mich. App. 532 (1977) 255 N.W.2d 673

PEOPLE
v.
PETROV

Docket No. 26687.

Michigan Court of Appeals.

Decided May 4, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Michael J. Modelski, Assistant Appellate Counsel, for the people.

Cooper, Shifman & Gabe, for defendant on appeal.

Before: DANHOF, C.J., and T.M. BURNS and J.E. McDONALD,^[*] JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of extortion, MCLA 750.213; MSA 28.410. Defendant appeals as of right.

Defendant raises six issues on appeal. First, defendant argues that his Sixth Amendment right to a speedy trial was denied. The four factors to be examined are: 1) the length of the delay, 2) the reason for the delay, 3) the defendant's assertion of his right, and 4) prejudice to the defendant. Barker v Wingo, 407 U.S. 514; 92 S. Ct. 2182; 33 L. Ed. 2d 101 (1972); People v Chism, 390 Mich. 104; 211 NW2d 193 (1973); People v Collins, 388 Mich. 680; 202 NW2d 769 (1972). The 8-1/2 month delay, including two months on bond, was long enough to require examination of the other three factors. People v Collins, supra. The reason for the delay, the congested jury docket of the trial judge, is to be charged to the prosecution. People v Forrest, 72 Mich. App. 266; 249 NW2d 384 (1976). Defendant did assert his right. However, defendant failed to show any prejudice to his defense resulting from the delay. Defendant's attorney, appointed before the preliminary examination, had ample time to investigate defendant's defense of alibi. Balancing all four factors together reveals no constitutional violation.

Second, defendant contends that reversible error was caused by the trial court's action of permitting a police officer's hearsay testimony to stand. The testimony concerned the officer's times of dispatch to and arrival upon the scene of the first extortion threat. Defendant's defense for that date and time was alibi. We find no reversible error because other competent testimony corroborated the hearsay. People v Kregger, 335 Mich. 457; 56 NW2d 349 (1953); People v Rogers, 60 Mich. App. 652; 233 NW2d 8 (1975); People v Vargas, 50 Mich. App. 738; 213 NW2d 848 (1973).

Defendant's third contention is that the trial court abused its discretion in failing to grant a mistrial or give a curative instruction following a police officer's unresponsive reference to an air gun found in defendant's home. An unresponsive answer to a proper question is seldom cause for reversal. People v Kelsey, 303 Mich. 715; 7 NW2d 120 (1942). In the present case any possible error was cured by defense counsel's able cross-examination of the witness, wherein it was pointed out that the air gun was not used in the crime, and that ownership of an air gun as not illegal.

Fourth, defendant argues that the trial court abused its discretion in permitting an endorsed prosecution witness to testify followng defendant's proofs. The witness had given birth to a baby, and was unable to testify during the people's case-in-chief. The trial court found no substantive chance that defendant would be prejudiced. We agree. We find no abuse of discretion. People v Wilson, 397 Mich. 76; 243 NW2d 257 (1976). Furthermore, any possible error can properly be termed harmless beyond a reasonable doubt. People v Robinson, 386 Mich. 551; 194 NW2d 709 (1972); People v Fell, 65 Mich. App. 543; 237 NW2d 550 (1975). The evidence of defendant's guilt was overwhelming, including positive identifications by two other witnesses, testimony of defendant's accomplice, surveillance of the victim and the money drop-site, and physical evidence matching the description of that used by the extortionist.

Defendant's fifth assignment of error concerns the prosecutor's closing argument. We agree that the prosecutor's statements could be taken as vouching for the guilt of defendant's accomplice. This would be improper argument had it related to defendant himself. People v Humphreys, 24 Mich. App. 411; 180 NW2d 328 (1970). Defendant argues that the inference of vouching for the guilt of defendant as well is obvious. However, when read in context of the trial testimony and the entire closing arguments of both attorneys, we find no prejudicial error. The prosecutor was commenting on the accomplice's involvement in crime as it related to his credibility. Defense counsel himself had characterized the accomplice as the "mastermind" behind the extortion plot. In addition, the accomplice had pled guilty of a lesser offense. The prosecutor was not expressing an opinion as to a disputed fact. People v Dane, 59 Mich. 550; 26 N.W. 781 (1886); People v Miller, 26 Mich. App. 665; 182 NW2d 772 (1970).

Lastly, defendant contends that the trial court erred in refusing to instruct on the crimes of larceny over $100, MCLA 750.356; MSA 28.588, and conspiracy to commit a misdemeanor, to-wit: larceny under $100, MCLA 750.157a; MSA 28.354(1). We need not reach the issue of the applicability of the cognate lesser included offense analysis of People v Ora Jones, 395 Mich. 379; 236 NW2d 461 (1975), to defendant's pre-Ora Jones trial. Even under the Ora Jones analysis, larceny under $100 and conspiracy to commit a misdemeanor are not cognate lesser included offenses of extortion. There is no overlapping of elements which coincide in the harm to the societal interest to be protected.

For the foregoing reasons we find no reversible error.

Affirmed.

NOTES

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