People v. Smith , 16 Mich. App. 198 ( 1969 )

16 Mich. App. 198 (1969) 167 N.W.2d 832

PEOPLE
v.
DAVID SMITH

Docket No. 5,027.

Michigan Court of Appeals.

Decided February 26, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan. Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Stephen H. Boak, Assistant Prosecuting Attorney, for the people.

Kenneth A. Webb, for defendant on appeal.

BEFORE: LESINSKI, C.J., and J.H. GILLIS and T.M. BURNS, JJ.

PER CURIAM:

Defendant was tried by jury in Detroit recorder's court and convicted of felonious assault.^[1] He appeals, alleging that the prosecuting attorney in his closing argument made prejudicial statements before the jury which constitute reversible error.

The prosecutor's statements are as follows:

"Ladies and gentlemen of the jury, it's our opinion that there has been a crime here. That crime is felonious assault. It is now your job to sit in judgment.

"Reasonable doubt? Who is ever 100% sure of anything? But, reasonable doubt — that word `reasonable' qualifies itself greatly. Not just a smithereen of doubt, a little bit of doubt, some doubt, some pillow of doubt — reasonable doubt. Is there a reasonable doubt in your minds that this officer chased this defendant, called for him to stop, saw the gun pointed at him, and then fired in order to bring the incident to a halt? Is there any reasonable doubt in that? The people feel not; therefore, we feel that a conviction is in order in this case.

"The defendant has been stupid and foolish, but he has committed a crime and he must pay for it; he must pay the consequences. We can't open the jails and turn all the stupid and foolish people loose and then everybody that wasn't stupid and foolish would feel a little apprehensive." (Emphasis supplied.)

Defendant asserts that the statements constitute reversible error under the rule announced in People v. Ignofo (1946), 315 Mich. 626. In Ignofo, the Court found it to be reversible error for the prosecuting attorney to make an unsworn statement of fact that defendant was guilty of the offense charged, even where defendant's counsel failed to object to the statement at the trial.

The people contend that Ignofo is inapplicable because the alleged prejudicial statement, when read in context, only expresses an opinion of the prosecutor. Upon analysis of the entire statement and especially the words, "The defendant has been stupid and foolish, but he has committed a crime," we find the statement to be one of fact under the Ignofo rule.

The people further contend that Ignofo is no longer valid precedent insofar as it requires reversal even where there is a failure to object to the statement until an appeal is filed. In deciding Ignofo, the Court was divided primarily on the basis that no objection to the prosecutor's argument had been made at trial. Of some importance to the result was the fact that no cautionary instruction regarding the prosecutor's statement had been given to the jury. In analyzing cases preceding and following Ignofo, we find that both the Supreme Court and this Court have followed the rule that objections not raised during the trial and passed upon by the trial court will not be heard for the first time on appeal unless a miscarriage of justice would result upon appellate court refusal to consider the question. People v. Counts (1947), 318 Mich. 45; People v. Willis (1965), 1 Mich. App. 428; People v. Wright (1967), 6 Mich. App. 495.^[2] This Court therefore holds that the rule in Ignofo is subject to the miscarriage of justice rule in CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).

Upon examination of the prosecutor's statement in light of the entire case, it does not affirmatively appear to this Court that this prosecutor's statement has resulted in a miscarriage of justice to defendant. Even though the defendant failed to object to the statement, the jury was cautioned at least three times to weigh only the evidence which was produced by the witnesses. See People v. Panknin (1966), 4 Mich. App. 19. The prosecutor's statement was not inflammatory.

The defendant's failure to object to the statement, in light of the "cure" obtained through the court's instructions, did not constitute a miscarriage of justice.

Affirmed.

NOTES

[1] CL 1948, § 750.82 (Stat Ann 1962 Rev § 28.277).

[2] See, also, People v. Korn (1921), 217 Mich. 170; People v. Goldberg (1929), 248 Mich. 553; People v. Connors (1930), 251 Mich. 99; People v. Hancock (1950), 326 Mich. 471, on rehearing 328 Mich. 143; People v. Omacht (1950), 326 Mich. 505, on rehearing 328 Mich. 145; People v. Pena (1966), 3 Mich. App. 26; and People v. Panknin (1966), 4 Mich. App. 19.