People v. Haugabook

23 Mich. App. 356 (1970) 178 N.W.2d 556

PEOPLE
v.
HAUGABOOK

Docket No. 6,777.

Michigan Court of Appeals.

Decided April 27, 1970. Leave to appeal denied July 1, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.

Carl Levin (Defenders' Office — Legal Aid and Defender Association of Detroit), for defendants on appeal.

Before: McGREGOR, P.J., and DANHOF and LARNARD,^[*] JJ.

Leave to appeal denied July 1, 1970. 383 Mich. 801.

DANHOF, J.

In July, 1965 defendants were convicted by a jury of kidnapping, CL 1948, § 750.349 (Stat Ann 1954 Rev § 28.581), and assault with intent to do great bodily harm less than murder, CL 1948, § 750.84 (Stat Ann 1962 Rev § 28.279). Their motion for a new trial was denied in October, 1968.

Defendants argue that as a matter of law there was insufficient evidence to sustain their convictions. Their defense was alibi and they claim that there was insufficient evidence to establish their identity as the perpetrators of the crimes. While it is true that the complainant could not positively identify the defendants, the record contains ample circumstantial evidence from which the jury could infer that the defendants were the persons who committed the offenses and were guilty beyond all reasonable doubt. This Court does not determine facts and a verdict based on conflicting evidence will not be reversed on appeal. People v. Bratton (1969), 20 Mich. App. 523.

Defendants also contend that the court committed reversible error when it failed to instruct the jury during the lengthy trial, which included one long recess, that they should not discuss the case among themselves, or with anyone else, or read newspaper accounts of the trial. No transcript of the impaneling and swearing in of the jury has been made a part of the record on appeal. Thus, we are unable to determine whether or not the jury was given those instructions at that time. While prudence would dictate that the trial judge should remind the jury not to discuss the case, failure to do so does not require reversal absent a showing of prejudice. People v. McIntosh (1967), 6 Mich. App. 62. The brief, noninflammatory newspaper article attached to defendants' brief does not by itself constitute a showing of prejudice.

Defendant Haugabook urges that the trial court erred in failing to grant him a mistrial when one of his witnesses was asked, "What else have you been in trouble for?" and "Have you been arrested and how many times Mr. Griffin?" The trial court sustained objections to both of these questions and neither of them was answered. Defendant's reliance on People v. Brocato (1969), 17 Mich. App. 277, is misplaced because that case concerned a defendant being asked about prior arrests and the opinion distinguishes that situation from the ones in People v. MacCullough (1937), 281 Mich. 15, and People v. Miniear (1967), 8 Mich. App. 591, which concerned witnesses. Additionally we do not find that the prosecutor's conduct in the present case was improper as it was found to be in the Brocato case.

The final argument is that the trial court erred in not ordering the transcription of the testimony of one of the officers at the prior trial which resulted in a hung jury. Defendant Haugabook's counsel wanted it for purposes of impeachment. This Court held in People v. Burrell (1970), 21 Mich. App. 451 that the trial judge did not abuse his discretion in refusing to interrupt the trial so that the defendant could secure a transcript of the testimony of two police officers for impeachment purposes. In the present case defense counsel did not ask for the transcript prior to the trial. We hold that no reversible error occurred.

Affirmed.

All concurred.

NOTES

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