Opinion
Docket No. 61429.
Decided December 8, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people.
Gerald M. Lorence, for defendant on appeal.
Before: R.M. MAHER, P.J., and BRONSON and CYNAR, JJ.
The defendant was convicted by a jury of assault with intent to rob while armed. MCL 750.89; MSA 28.284. Sentenced to serve a term of 8 to 20 years imprisonment, defendant appeals his conviction as a matter of right.
Defendant argues that certain remarks by the prosecutor in his closing argument were improper and require reversal. The complained of remarks are as follows: "Has the prosecutor been trying to hide anything? Well we introduced his statement. It wasn't Mr. Pitts that introduced it, it was the people." The "statement" mentioned by the prosecutor was given by the defendant to the police after his arrest and introduced at trial by the people. In it, the defendant confessed to the crime and described some sympathetic aspects of his background. We note at the outset that the defendant failed to object to these remarks at trial. Appellate review is thus foreclosed unless our failure to decide the issue would result in a miscarriage of justice. People v Duncan, 402 Mich. 1, 15-16; 260 N.W.2d 58 (1977).
The defendant's statement was read into the record as follows:
"I have been out of work for about twelve months now. I have done a few small side jobs for a few bucks; but nothing to amount to anything.
"One day last week, about Monday or Tuesday, I was over to my girlfriend's house at 8202 Archdale.
"I had my rifle over there and I decided to saw it off because I was thinking about shooting myself.
"I didn't bother the gun from the time I cut it off until today.
"This morning about seven or eight a.m., I was over to her house again.
"I started thinking about shooting myself again. I had my gun with me.
"Sometime after that I left her house.
"I was just walking around. Finally I arrived at the Fotomat on Greenfield at Joy Road.
"I had not planned to rob, I had not planned a robbery; but I needed the money.
"I walked up to the girl and bought some flashcubes.
"I paid for the cubes and then I told her to give me all the money.
"I never pulled the gun; but I had it in my jacket pocket.
"When she gave me the money I just walked away. She gave me the money and the bag with the flashcube."
The prosecutor's remarks must be viewed in the context in which they were made. People v Allen, 351 Mich. 535; 88 N.W.2d 433 (1958). It is clear that the prosecutor did not intend to stress to the jury that the defendant failed to introduce his confession. Instead, he emphasized those portions of defendant's statement which could evoke the jury's sympathy. His primary point was that the people, having introduced evidence favorable to the defendant, did not "hide anything" from the jury. Nevertheless, by stressing that "[i]t wasn't Mr. Pitts [defense counsel] who introduced it, it was the people" the prosecutor may have conveyed to the jury that the defendant was "hiding" this evidence. It is well-settled that a defendant is under no duty to "take the stand or proffer evidence, but rather may remain silent protected by the presumption of innocence". People v Shannon, 88 Mich. App. 138, 143; 276 N.W.2d 546 (1979). Any prejudice, however, could have been remedied by a curative instruction. Because defendant neither objected nor requested a curative instruction, we cannot reverse. People v Duncan, supra, People v Hall, 396 Mich. 650; 242 N.W.2d 377 (1976). Defendant's conviction is affirmed.
Regarding the statement, the prosecutor said:
"It lays out that Mr. Page has had some bad times in the past.
"It kind of paints him as going through some maybe tragic experiences in his own life.
"It kind of paints him in a better light then to go up for no reason at all and rob somebody.
"That wasn't hidden from you. That was presented."
Affirmed.