People v. Caldwell

78 Mich. App. 690 (1977) 261 N.W.2d 1

PEOPLE
v.
CALDWELL

Docket No. 27687.

Michigan Court of Appeals.

Decided August 11, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and John J. Hensel, Senior Assistant Prosecuting Attorney, Chief of Appellate Division, for the people.

Kitchen & Stringer, for defendant on appeal.

Before: D.E. HOLBROOK, JR., P.J., and ALLEN and D.R. FREEMAN,^[*] JJ.

PER CURIAM.

Defendant appeals as of right from his armed robbery conviction, MCLA 750.529; MSA 28.797. He alleges reversible error first, in the trial judge's refusal to grant a mistrial on the ground of a newspaper headline which appeared on the evening of the second day of defendant's trial. The newspaper headline stated, "Pizza Shop Hold-Up. I ought to kill you." A poll of the jury showed that none of the jurors had read the article. Defendant contends that the viewing of the headline itself by four jurors caused prejudice in that the headline alone, without a reading of the article, may have been misleading. The statement "I should have killed you" was a part of the trial testimony. The jurors would have regarded that statement in the context in which they heard it at trial. They could not have been misled. The trial judge did not abuse his discretion in refusing to grant a mistrial. See People v Moore, 51 Mich. App. 48, 52; 214 NW2d 548 (1974), and cases cited therein.

Secondly, defendant contends that he was prejudiced by the prosecutor's statement in closing argument that money found on defendant and his companion at the time of arrest "could just have easily have come, and probably did come, from other armed robberies * * * ". The evidence discloses that approximately $165 was taken in the robbery of the pizza shop. When arrested, however, approximately $600 to $700 was recovered from the defendant and his alleged accomplice. During trial, the money was admitted into evidence.

It is indisputable that the prosecuting attorney has the right to draw inferences for the jury from the facts appearing in the record. People v Morlock, 233 Mich. 284, 286; 206 N.W. 538 (1925). Not only may the prosecutor draw inferences but he may also comment upon the testimony in the case. People v Cona, 180 Mich. 641; 147 N.W. 525 (1914). Moreover, the prosecutor may argue upon the facts and evidence that a witness is not worthy of belief. People v Couch, 49 Mich. App. 69, 72; 211 NW2d 250 (1973), lv den 391 Mich. 755 (1973). In addition the prosecution may argue a case vigorously and even contend that the defendant is lying. People v Cowell, 44 Mich. App. 623; 205 NW2d 600 (1973).

A review of that portion of the prosecutor's argument to which objection was made, when taken in its whole context, shows that he was debunking the defendant's story on the grounds that the defendant had admitted telling a lie to the police; had four felony convictions for breaking and entering; and that defendant's testimony was inconsistent with the testimony of many prosecution witnesses. The comment made by the prosecution merely suggested to the jury an alternate story which was equally plausible to defendant's story as to why he and his alleged accomplice were carrying large amounts of cash on their persons. We find that such argument constituted a fair comment upon the defendant's story. Furthermore, the prosecution's closing argument must be read as a whole, People v Blake, 58 Mich. App. 685; 228 NW2d 519 (1975). The statement complained of here is the only impropriety alleged in the prosecutor's argument. Even assuming the prosecutor's comment to have been error, in light of overwhelming evidence of defendant's guilt, the error, if any, was harmless beyond a reasonable doubt.

Affirmed.

NOTES

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