Docket No. 50848.
Decided May 27, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Mark R. Hall, for defendant on appeal.
Before: M.J. KELLY, P.J., and V.J. BRENNAN and T.M. BURNS, JJ.
The defendant was charged with armed robbery in violation of MCL 750.529; MSA 28.797 and possession of a firearm during the commission of a felony in violation of MCL 750.227b; MSA 28.424(2). A jury convicted the defendant of the lesser-included offense of assault with intent to rob being armed, MCL 750.89; MSA 28.284, and found him not guilty of the felony-firearm charge. The defendant was sentenced to a term of from four to seven years in prison. The defendant appeals as a matter of right.
The complainant testified that on January 27, 1979, at 1 a.m., he was washing his car at a car wash when the defendant drove up in a burgundy Volare behind the car wash stall which the complainant was using and stated "give me your money or I'll kill you". The complainant stated that he didn't pay much attention to the defendant until the defendant again threatened him. The complainant testified that he then turned a water sprayer which he was using toward the defendant. At some point during the incident, the complainant called to his friend, Joe Boyd, who was washing his car in a nearby stall, for assistance. Mr. Boyd testified that he went to the stall where the complainant was and picked up a water sprayer and started spraying the defendant. The complainant stated that the defendant pulled out a gun and pointed it at the complainant. The complainant's testimony as to when the defendant produced a weapon was confusing. The complainant stated that the defendant pulled a gun from his waistband as he was getting out of his vehicle. Complainant also indicated that defendant pointed a gun out of the vehicle's window. Mr. Boyd stated that defendant had something in his hands but that he could not see what the object was.
The complainant indicated that after he saw the gun he started running. Mr. Boyd also ran out of the car wash with him. After they had run across the street, the complainant realized that he had left his keys in his automobile. The complainant stated that he heard his car door slam and the engine start. The complainant saw his car being driven out of the car wash and onto Seven Mile Road. The complainant and Mr. Boyd ran back to the car wash, jumped into Mr. Boyd's automobile and followed the complainant's car down Seven Mile. At the corner of Seven Mile and Evergreen, the complainant's car was involved in an accident. The defendant, who was driving the complainant's car, ran away from the scene of the accident. Shortly thereafter, the defendant returned to the scene of the accident where Boyd and the complainant grabbed the defendant and searched him. The complainant stated that, although no gun was found in the defendant's possession, a knife was found. No gun was found by the police officers investigating the alleged crime and none was produced at trial.
On appeal, defendant raises three issues. First, defendant contends that the jury's verdicts of guilty of assault with intent to rob being armed and not guilty of possession of a firearm during the commission of a felony are inconsistent and therefore require reversal. This issue recently has been decided contrary to defendant's contention. People v Vaughn, 409 Mich. 463; 295 N.W.2d 354 (1980). In Vaughn, where the jury returned verdicts of guilty of felonious assault and not guilty of a felony-firearm charge, the Supreme Court, in reversing the Court of Appeals decision to vacate the defendant's conviction, stated:
"Our Court has recognized the role of the jury in a criminal trial. `Because the jury is the sole judge of all the facts, it can choose, without any apparent logical basis, what to believe and what to disbelieve. What may appeal to the judge as "undisputed" need not be believed by a jury.' People v Chamblis, 395 Mich. 408, 420; 236 N.W.2d 473 (1975).
"Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury's capacity for leniency. Since we are unable to know just how the jurors reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and conviction on another would serve as the reason for defendant's release. These considerations change when a case is tried by a judge sitting without a jury. But we feel that the mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility." Id., 466.
In accordance with the Court's holding in Vaughn, supra, the defendant's conviction should not be vacated on the basis of inconsistent verdicts. Furthermore, the facts of the instant case indicate that a rational explanation for the jury's verdicts exists. While the jury could have believed that defendant was not armed with the handgun and acquitted the defendant of the felony-firearm charge, the jury also could have believed that defendant was armed with a weapon when he assaulted the complainant and stole the car. Testimony at trial indicated that a knife was found in the defendant's possession when he was searched. Thus, the jury could have decided that a dangerous weapon other than a firearm was used by defendant.
Secondly, defendant argues that the prosecutor improperly and prejudicially argued that the jury had a "duty" to find the defendant guilty. We are not so persuaded. We first note that the defendant's counsel did not object to the prosecutor's statement during trial. It is well settled that the absence of objection during trial precludes appellate review of alleged prejudicial remarks by a prosecutor in closing argument, unless the prejudicial effect was so great that it could not have been cured by a timely cautionary instruction. People v Rojem, 99 Mich. App. 452, 459; 297 N.W.2d 698 (1980), People v Tenbrink, 93 Mich. App. 326, 332; 287 N.W.2d 223 (1979), People v Blassingame, 59 Mich. App. 327, 335; 229 N.W.2d 438 (1975).
In some cases, a prosecutor's appeal to the civil duty or social fears of the jurors has been held to constitute error requiring reversal. See People v Biondo, 76 Mich. App. 155; 256 N.W.2d 60 (1977), lv den 402 Mich. 835 (1977), People v Gloria Williams, 65 Mich. App. 753; 238 N.W.2d 186 (1975), People v Humphreys, 24 Mich. App. 411; 180 N.W.2d 328 (1970). In general, "civic duty" arguments are condemned because they inject into the trial issues broader than a particular defendant's guilt or innocence of the charges and encourage the jurors to suspend their own powers of judgment. For example, in Biondo, supra, this Court ruled that the prosecutor's attempt to cajole the jury into believing that a guilty verdict would be a substantial act toward saving Detroit from financial ruin was prejudicial and not relevant to the guilt or innocence of the defendant. See People v Edward Villarreal, 100 Mich. App. 379; 298 N.W.2d 738 (1980). Additionally, it has been held that the prosecutor may not change subtly a presumption of innocence to a presumption of guilt by appealing to the jurors to perform a civic duty to support the police. People v Farrar, 36 Mich. App. 294; 193 N.W.2d 363 (1971).
In the present case, it cannot be said that the prosecutor's remarks were so prejudicial that they could not have been cured by a cautionary instruction. There was no appeal to support the police or to save the city from crime. The prosecutor's remarks did not inject into the trial broader issues than guilt. People v Rone (On Remand), 101 Mich. App. 811, 825; 300 N.W.2d 705 (1980). The defendant apparently recognizes the weakness of his argument since he attacks the statement from the approach that defense counsel's failure to object denied him effective assistance of counsel. This tactic must also fail in that defense counsel's failure to object cannot be said to have denied defendant a fair trial or resulted in a serious mistake, the absence of which would have resulted in defendant's acquittal. See People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), People v Degraffenreid, 19 Mich. App. 702; 173 N.W.2d 317 (1969).
Lastly, defendant contends that the prosecutor erroneously argued in the closing argument that certain facts and issues were either uncontested, conceded, or admitted. On this record, we are not persuaded that such remarks mandate reversal.
It should be noted first that a prosecutor's statement that certain evidence is uncontradicted has been upheld on numerous occasions. People v LeRoy Morgan, 24 Mich. App. 660; 180 N.W.2d 842 (1970), People v Jacoboni, 34 Mich. App. 84; 190 N.W.2d 720 (1971), lv den 385 Mich. 789 (1971), People v Balog, 56 Mich. App. 624; 224 N.W.2d 725 (1974), People v Rodriguez, 83 Mich. App. 606; 269 N.W.2d 199 (1978). Additionally, these cases have held that such prosecutorial remarks are not comments on the failure of the defendant to testify. Thus, the prosecutor's statement regarding the uncontested testimony that defendant had a gun was proper.
Further, assuming that the prosecution erred by making reference to "conceded" facts, we are not persuaded that the effect was so prejudicial as to mandate reversal. The trial court sustained defendant's objection to "conceded" facts and also affirmatively cautioned the jury that nothing was to be considered conceded. Therefore, we find no error requiring reversal.
Defendant's conviction is affirmed.