People v. Ovegian

106 Mich. App. 279 (1981) 307 N.W.2d 472

PEOPLE
v.
OVEGIAN.

Docket No. 47511.

Michigan Court of Appeals.

Decided May 6, 1981.

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

Richard J. Amberg, Jr., for defendant on appeal.

Before: BEASLEY, P.J., and BASHARA and MacKENZIE, JJ.

PER CURIAM.

Defendant was convicted by a jury of conspiracy to commit first-degree murder, MCL 750.157a; MSA 28.354(1). He was acquitted of first-degree murder, MCL 750.316; MSA 28.548. Testimony at trial established that defendant was hired by Linda Hamilton to cause the death of her husband.

On appeal, defendant contends that he was denied a fair trial as a result of the prosecutor's closing argument. He asserts that the prosecutor improperly commented on defendant's failure to call alibi witnesses.

It is well established that where the defendant presents evidence of an alibi, the prosecutor may comment on the weakness of the alibi defense by pointing out the lack of corroboration testimony to the jury during closing argument. People v Hunter, 218 Mich. 525, 528; 188 N.W. 346 (1922), People v Fuller, 44 Mich. App. 297, 299; 205 NW2d 287 (1973), aff'd 395 Mich. 451; 236 NW2d 58 (1975). Where defendant produces no testimony in support of the alibi, the prosecutor's comment is improper. People v Shannon, 88 Mich. App. 138, 145; 276 NW2d 546 (1979).

In the case at bar, defendant testified that he was with relatives and friends during the shooting. Consequently, the prosecutor's comments were not improper. Hunter, supra.

Defendant further cites MCL 768.20(2); MSA 28.1043(2) in support of this allegation of prosecutorial impropriety. The statute requires the prosecutor to file a list of alibi rebuttal witnesses and does not concern the issue raised. See People v Terry Alexander, 82 Mich. App. 621, 627; 267 NW2d 466 (1978).

Next, defendant alleges that the trial court erred in denying his motion in limine to exclude evidence of his recent conviction as an aider and abettor in the murder of a key prosecution witness. The court ruled that the prosecutor could impeach defendant's credibility by asking him if he had been convicted of a felony, without specificity as to its nature or victim.

There are several cases from this Court holding that the use of evidence of an unspecified felony for impeachment constitutes error. Cf., People v Jones, 92 Mich. App. 100, 109-114; 284 NW2d 501 (1979), People v Garth, 93 Mich. App. 308, 315-320; 287 NW2d 216 (1979), People v Vincent, 94 Mich. App. 626, 633-638; 288 NW2d 670 (1980), People v Dixon, 99 Mich. App. 847, 849; 298 NW2d 647 (1980).

However, there is another line of cases which approve of the rule as being a fair compromise under the circumstances of the case. See People v Moseley, 94 Mich. App. 461, 465; 290 NW2d 39 (1979), People v Hollis, 96 Mich. App. 333, 340; 292 NW2d 538 (1980).

In People v VanDorsten, 96 Mich. App. 356, 359; 292 NW2d 134 (1979), this Court noted that the trial court recognized and properly exercised its discretion in allowing impeachment by use of evidence of unnamed felonies. Subsequently, the Supreme Court reversed, holding:

"[W]e reverse the Court of Appeals judgment, and REMAND the case to the Calhoun Circuit Court for a new trial. It is improper to impeach a defendant by telling the jury only of the existence of unnamed prior felony convictions, without providing the names of the offenses. It is the nature, rather than the fact, of a prior felony conviction which the jury is to use in its evaluation of credibility." 409 Mich. 942; 298 NW2d 421 (1980).

The circumstances herein present a strong case in support of the trial court's ruling. The prosecutor was allowed to introduce evidence of defendant's complicity in the other murder in its case in chief due to the fact the defendant had suppressed evidence. People v Salsbury, 134 Mich. 537, 569-570; 96 N.W. 936 (1903). Therefore, the impeachment evidence was merely cumulative. In addition, we note that defense counsel was free to elicit testimony from the defendant establishing the nature of the felony. He apparently chose not to proceed in that manner for tactical reasons. See Garth, supra (dissent of BRENNAN, J.), 320.

Nonetheless, we feel constrained to abide by the Court's decision in VanDorsten in holding that the ruling was erroneous. However, we find the evidence of defendant's guilt so overwhelming that the error was harmless. It is difficult to imagine that any of the jurors would have voted to acquit, absent the error. Moseley, supra, People v Makidon, 84 Mich. App. 287; 269 NW2d 568 (1978), modified on other grounds 406 Mich. 953; 277 NW2d 644 (1979).

Defendant also requests reversal on the ground that he was denied a speedy trial, US Const, Am VI; Const 1963, art 1, § 20. A balancing of four factors is required in reviewing this claim: the length of the delay; the reason for the delay; the defendant's assertion of his right; and prejudice to the defendant. People v Grimmett, 388 Mich. 590, 606; 202 NW2d 278 (1972).

Approximately 29 months passed before defendant was brought to trial. However, careful review of the record reveals that nine months of the delay were caused by defendant's motion to remand for a new preliminary examination. This delay is attributed to defendant because, after the long delay, he waived the examination, leading us to conclude that the motion was a stalling tactic. A further nine months of delay were also the cause of dilatory motion tactics of defendant's second set of attorneys. Much of the delay was the result of the death of the prosecution witness whose murder defendant aided and abetted. He can hardly claim the prosecutor should bear the consequences of that delay.

Defendant asserted his right to a speedy trial three times. We note that defendant's requests for a speedy trial appear insincere in view of the other motions filed which prevented the trial from commencing. See People v Collins, 388 Mich. 680, 693; 202 NW2d 769 (1972).

We find no substantial prejudice resulting to the defense or to defendant personally. Pretrial incarceration is always "prejudicial" in that the accused is denied many of his civil liberties. Barker v Wingo, 407 U.S. 514, 532; 92 S. Ct. 2182; 33 L. Ed. 2d 101 (1972). Defendant asserts that his pretrial incarceration was excessively oppressive. However, this allegation has not been supported in the record.

Of the two types of prejudice the defendant may experience while awaiting trial, prejudice to his defense is considered the more crucial. People v Chism, 390 Mich. 104, 114; 211 NW2d 193 (1973). This defendant's case was not prejudiced by the delay. The alibi defense to the murder count was evidently believed by the jury as he was acquitted of the charge. At any rate, his claim that the delay prevented him from locating alibi witnesses, which included his mother, wife, stepfather and sister, is incredulous. We find that the prosecutor has overcome the burden of proving defendant was not prejudiced. Collins, supra, 695.

Balancing the four factors, we find no speedy trial violation. See People v Petrov, 75 Mich. App. 532, 534; 255 NW2d 673 (1977).

Finally, defendant seeks reversal due to an alleged violation of the corpus delicti rule. Defendant asserts that a witness was improperly allowed to testify as to admissions made by the killer of the prosecution witness which implicated the defendant. We find the corpus delicti rule inapplicable to this collateral issue. See People v Porter, 269 Mich. 284; 257 N.W. 705 (1934).

In addition, the evidence was relevant as tending to prove defendant suppressed evidence leading to an inference of guilt. People v Salsbury, supra, People v Randall, 294 Mich. 478, 482; 293 N.W. 725 (1940).

Affirmed.

BEASLEY, J. (concurring).

I respectfully concur in the result reached by the majority.

However, I do not believe that the Supreme Court intended to reverse long-standing precedent and to resolve the substantial differences of opinion regarding impeachment of credibility of witnesses by evidence of conviction of an unspecified felony in the four-sentence peremptory order in response to application for leave to appeal in People v VanDorsten.^[1] See, People v Huff.^[2]

NOTES

[1] 409 Mich. 942; 298 NW2d 421 (1980).

[2] 101 Mich. App. 232; 300 NW2d 525 (1980).