Docket No. 65851.
Decided March 6, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.
Gerald J. Van Wambeke, for defendant on appeal.
Following a jury trial in the Washtenaw County Circuit Court, defendant was convicted of breaking and entering an occupied dwelling with the intent to commit larceny. MCL 750.110; MSA 28.305. On the next day, following the conclusion of a bench trial, he was convicted of being a second-felony offender. MCL 769.10; MSA 28.1082. Thereafter defendant was sentenced to serve a term of from 6-1/2 to 15 years imprisonment for the breaking and entering. However, this sentence was immediately vacated and supplanted with a sentence of from 7 to 22-1/2 years imprisonment on the habitual offender conviction. Defendant now appeals as of right.
The evidence may be briefly summarized. David Kircher, owner and resident of an apartment building in Ypsilanti testified that he had left his dwelling on December 25, 1981, to go to Washington, D.C. At that time, he left defendant, one of his tenants and a part-time employee, in charge of the premises. Nobody was given permission by Kircher to enter his apartment.
On December 26, 1981, defendant reported to the police that Kircher's apartment had been broken into. The prosecution presented five witnesses who testified that defendant had admitted breaking into Kircher's apartment and stealing some items. On December 29 or 30, 1981, defendant sold a ring identified by Kircher as his high school class ring to one Shannon Sheldon. Defendant claimed that he had found the ring in front of the apartment house after the larceny. Defendant denied having committed the breaking and entering and larceny.
Defendant's first claim on appeal is that the trial court erred in denying his motion for a mistrial after the close of the prosecutor's opening statement. The motion was premised on the following remarks made by the prosecutor, which defendant contends impermissibly presented to the jury other uncharged criminal activity:
"The defendant, also it will come out, the defendant conned the victim out of about $500 regarding the return of the victim's stolen property preying upon the victim's want and desire to get his property back. Testimony will show that this defendant set him up, said that if he gave him $500 bucks he'd cough up the property and our victim coughed up the $500 and the slippery defendant shot out the back door. That's the last he saw of the money and he never did get the property back."
Traditionally, a motion for a mistrial indicates that a party feels that something which has occurred during the course of trial precludes the trier of fact from rendering an unprejudiced verdict. People v Yarbrough, 78 Mich. App. 81, 86; 259 N.W.2d 248 (1977), vacated 402 Mich. 920; 271 N.W.2d 430 (1978), aff'd on rehearing and remand 86 Mich. App. 105; 272 N.W.2d 345 (1978). The governing standard where prosecutorial error is complained of is whether the error is of such magnitude that the granting of a mistrial is a "manifest necessity". People v Benton, 402 Mich. 47, 56-58; 260 N.W.2d 77 (1977). Whether the allowance by a trial court of a prosecutor's comments during opening argument amounts to error necessitating a mistrial is a matter of discretion for the trial judge and will not be reversed absent a clear abuse of discretion. People v Jansson, 116 Mich. App. 674, 690; 323 N.W.2d 508 (1982). In this case, the trial court did not abuse its discretion by refusing to grant a mistrial. Opening argument is the appropriate time to state the facts to be proven at trial. People v Nard, 78 Mich. App. 365, 374-375; 260 N.W.2d 98 (1977); GCR 1963, 507.1. There was considerable testimony that defendant took $500 from Kircher in exchange for Kircher's stolen goods. The testimony, if believed, showed that defendant engaged in some activity with the stolen property. Particularly, given defendant's effort to sell Kircher his own property, that testimony was highly probative on the issue of whether defendant broke into Kircher's residence with an intent to steal. The prosecutor's remarks were a fair introduction to that testimony.
Defendant next asserts that his conviction must be reversed because the trial court abused its discretion in denying the jury's request to rehear testimony of six of the nine witnesses. The trial judge told the jurors that it would take five hours to replay the testimony, that they should "trade notes" and attempt to resolve any problems they might have concerning the testimony, and, if they felt that after further deliberations they still had problems, they should make another request to rehear the testimony.
In People v Howe, 392 Mich. 670, 677-678; 221 N.W.2d 350 (1974), the Michigan Supreme Court held that a trial judge abuses his discretion when: (1) he denies a request to rehear testimony, and (2) forecloses the possibility that such a rehearing will ever be granted. Here, the trial court specifically left open the possibility that testimony could be reheard if the jury could not resolve its problems during the course of deliberations. In fact, after 1-1/2 hours of deliberations, the jury requested that it be allowed to hear one witness's testimony, which request was granted. The instant case is similar to, but even more compelling for affirmance than, People v Joseph, 114 Mich. App. 70; 318 N.W.2d 609 (1982), lv den 417 Mich. 877 (1983). Particularly in light of Joseph, where two jury requests for a rehearing of the complainant's testimony were made, neither was honored, and no later jury request was made, we see no error by the judge in his handling of this jury's request to rehear testimony.
Defendant's final claim on appeal is that his habitual offender conviction must be reversed because his 1965 larceny conviction was defective under People v Jaworski, 387 Mich. 21; 194 N.W.2d 868 (1972). Defendant filed a motion to quash the supplemental information in the trial court. The transcript of the 1965 plea proceedings shows that he was not told of his right to confront his accusers at trial. Under Jaworski, supra, p 29, the confrontation right is one which a defendant must be advised of before his guilty plea may be properly accepted.
The trial court denied defendant's motion to quash because Jaworski was not the law in 1965 when defendant's plea was taken. We agree with the trial court's reasoning. While the Michigan Supreme Court recently held in People v Crawford, 417 Mich. 607; 339 N.W.2d 630 (1983), that, in some circumstances, a conviction defective under Jaworski cannot be used as a predicate offense for purposes of a supplemental information, we find Crawford inapplicable here. It is our view that Crawford applies only to guilty pleas taken after June 2, 1969, the date Boykin v Alabama, 395 U.S. 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), was decided. Jaworski, supra, is based upon Boykin. Footnote 5 of Crawford reveals that the defendant's guilty plea there occurred 11 days after Boykin was decided. See People v McMillan, 389 Mich. 114; 204 N.W.2d 682 (1973), and Crawford, supra, fn 5. Because this defendant's guilty plea came in 1965, he is not entitled to relief from his habitual offender conviction.