People v. Wilson , 163 Mich. App. 63 ( 1987 )

Per Curiam.

Defendant was charged with unarmed robbery, MCL 750.530; MSA 28.798, and assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. He was convicted by a jury of unarmed robbery. Defendant subsequently pled guilty to a supplemental information charging him as a fourth-felony offender. Sentenced to from ten to twenty years’ imprisonment, defendant appeals as of right from his conviction for unarmed robbery.

The sole issue on appeal is whether comments made by the prosecutor deprived defendant of a fair trial. It is the duty of the prosecutor to see that the defendant has a fair trial and to protect the interests of the people, who are as concerned with protecting the innocent as with convicting the guilty. People v Brocato, 17 Mich App 277, 290-291; 169 NW2d 483 (1969). But while a prosecuting attorney is held to a very high standard of performance, we have recognized that infallibility will never be achieved:

"Great care should be taken by prosecuting officers and trial courts that no statement be made in the presence of jurors which would jeopardize a defendant’s right to a fair trial. But in the haste and heat of a trial it is humanly impossible to obtain absolute perfection, and of necessity some allowance must be made in determining whether impromptu remarks are to be held prejudicial. Statements should not be held prejudicial if they are made in good faith, and, when fairly construed, they do not appear to have been such as influenced the jury adversely to the rights of the accused.” [People v Wheat, 55 Mich App 559, 565; 223 NW2d 73 (1974), quoting People v Burnstein, 261 Mich 534, 538; 246 NW 217 (1933).]

Defendant first claims that the prosecutor unfairly appealed to the sympathies of the jury. The fifty-five-year-old, partially blind victim was working alone in his jewelry store when he was beaten and robbed by two men. According to the victim, his jewelry was never recovered and he did not carry insurance. The testimony concerning the victim’s lack of insurance was elicited by the prosecutor during his examination of the victim. The prosecutor also commented on the victim’s partial blindness during closing argument. It is improper for a prosecutor to ask the jury to sympathize with a victim. People v Wise, 134 Mich App 82, 104; 351 NW2d 255 (1984). However, we do not believe that defendant was unduly prejudiced by the prosecutor’s actions. The prosecutor did not dwell upon the victim’s testimony concerning his loss. Nor was emphasis placed on the victim’s physical condition prior to the robbery.

Defendant next claims that the prosecutor misstated the testimony on two occasions during closing argument. The first alleged misstatement concerns a letter written by the prosecution’s main witness. Richard White testified that he and defendant jointly robbed the jewelry store. He agreed to testify against defendant as part of a plea bargain. White was impeached with evidence of a letter written by him prior to trial exonerating defendant. White claimed that friends of defendant at Southern Michigan Prison in Jackson threatened him and forced him to write the letter. When asked whether he had friends at the prison, defendant responded, "A few I might know, but I don’t know if they stay—you know, are residing in Jackson.” During closing argument, the prosecutor stated that defendant had friends at the prison. The second alleged misstatement concerned the victim’s identification of the man who kicked him in the face during the robbery. The victim could not identify either of his assailants. However, he remembered that the person who kicked him had entered the store first. According to White, defendant entered the store before he did. The prosecutor argued that "we know” defendant was the person who kicked the victim. While an attorney may not argue or refer to facts not on the record, People v Knolton, 86 Mich App 424, 428; 272 NW2d 669 (1978), lv den 406 Mich 885 (1979), a prosecutor is entitled to comment on the evidence and to draw reasonable inferences from it. People v Gaines, 129 Mich App 439, 445; 341 NW2d 519 (1983). See also People v Lyles, 148 Mich App 583, 595-596; 385 NW2d 676 (1986). Both the arguments objected to by defendant were based on reasonable inferences from the evidence presented at trial.

Defendant’s final claim concerns the prosecutor’s characterization of the plea-bargain agreement with White. White admitted that prior to the instant robbery he had committed seven armed robberies. In exchange for a plea of guilty to armed robbery and testimony against defendant, the prosecutor’s office agreed to drop the other charges. In his closing argument, defense counsel pointed out that White had reason to lie because without the agreement he would be facing a number of charges and the possibility of an enhanced sentence. The prosecutor noted that the maximum sentence for armed robbery is life and "if you can double that, I would be happy to hear how that’s done.” We agree that the prosecutor’s argument was misleading. While it is true that the maximum penalty for armed robbery is life, White was actually sentenced to from ten to forty years’ imprisonment. It is quite possible that if he had been convicted of the charges that were dropped pursuant to the plea-bargain agreement he would have faced a substantially increased sentence. However, defendant failed to object to the prosecutor’s misstatement. Our review is, therefore, precluded absent a miscarriage of justice. People v Byrd, 133 Mich App 767, 780; 350 NW2d 802 (1984). We do not find that defendant was manifestly prejudiced by the argument. Defense counsel vigorously argued the effect of White’s plea bargain on his credibility. Despite the mischaracteri-zation by the prosecutor, we have no doubt that the jury was fully aware of White’s motivation to lie. Further, had defendant made a timely objection, any prejudicial effect could have been eliminated by a curative instruction. Finally, the trial court cautioned the jury that the arguments of the attorneys were not evidence.

Affirmed.