People v. Smith , 149 Mich. App. 189 ( 1986 )

149 Mich. App. 189 (1986) 385 N.W.2d 654

PEOPLE
v.
SMITH

Docket No. 78438.

Michigan Court of Appeals.

Decided January 28, 1986.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

Sue E. Radulovich, for defendant.

Before: M.J. KELLY, P.J., and ALLEN and R.M. SHUSTER,^[*] JJ.

PER CURIAM.

Defendant appeals as of right from jury convictions of armed robbery, MCL 750.529; MSA 28.797, first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2) and felony-firearm, MCL 750.227b; MSA 28.424(2). He was sentenced to terms of from 10 to 20 years on the robbery conviction and from 30 to 60 years on the criminal sexual conduct conviction, as well as to the mandatory two-year term on the felony-firearm conviction. We affirm.

The complainant in this case was 72-year-old Mable Hall who testified that at 10 o'clock a.m. on September 13, 1983, she opened her front door to the defendant in the belief that he was her son-in-law, whom she was expecting. Defendant quickly entered complainant's home, produced a handgun and prevented her from leaving.

Over the next two hours, defendant searched complainant's home for money, a bank book and guns and took into his possession $92 from complainant's purse as well as her J.C. Penney's charge card. Defendant then forced complainant to engage in sexual relations, after which he seized the four-month old baby for whom she was baby-sitting and forced complainant to accompany him to the J.C. Penney's store at the nearby Northland Shopping Center. Under concealed gunpoint, defendant forced complainant to use her charge card to purchase clothes for him. At one point, complainant managed to silently mouth the word "robbery" to a Penney's sales clerk.

Defendant testified at trial and introduced the testimony of five alibi witnesses. All testified that on September 13, 1983, defendant was observed on the east side of the City of Detroit at the time or near the time complainant was being robbed and assaulted in her home on the city's west side. The five alibi witnesses were George Snodgrass, defendant's friend of three to five years, George's mother, his stepfather and two male cousins.

On appeal, defendant raises seven issues, three of which involve his alibi defense. We will consider these arguments first.

Examination and comment upon an alibi witness's failure to speak or act in a manner that would have been natural to do under the circumstances of a particular case is permissible in Michigan. See People v Lafayette, 138 Mich. App. 380, 388-389; 360 NW2d 891 (1984), and cases cited therein. The prosecutor in this case did not comment upon the witnesses' failure to come forward immediately to volunteer information to the police to show that they were bad citizens and should therefore not be believed. Rather, the prosecution argued that the witnesses' delay in reporting such exculpatory information to the police on behalf of defendant meant that the witnesses had an opportunity to coordinate their stories. This was permissible argument.

Moreover, it was not improper for the prosecutor to elicit and comment upon the fact that all five witnesses were friends or acquaintances of the defendant. See MCL 600.2158; MSA 27A.2158. Nor was it impermissible for the prosecutor to impeach George Snodgrass with questions regarding his prior criminal convictions. MRE 609. The prosecutor in this case was presented with an alibi defense and it was his duty to fairly point up the weaknesses of that defense. This the prosecutor did by commenting in closing argument about the relationship between defendant and his alibi witnesses, and their failure to come forward to the police upon being informed of the charges against him, providing ample opportunity to coordinate testimony. The prosecutor's closing argument essentially related his theory of the case as supported by the evidence and all reasonable inferences drawn therefrom. People v Jancar, 140 Mich. App. 222, 233; 363 NW2d 455 (1985).

Defendant's complaint regarding the trial court's questioning of two of his alibi witnesses is likewise without merit. The trial court's questions were brief, relevant and did not tend to arouse suspicion in the minds of the jurors. Since the examination was neither hostile nor invaded the role of the prosecutor, we find no abuse of the trial court's discretion in its examination and no prejudice to the defendant. People v Gendron, 144 Mich. App. 509, 517-518; 376 NW2d 143 (1985).

Defendant raises four additional issues on appeal which we now consider.

We are not persuaded that reversal is required because of the prosecutor's opening statement regarding defendant's comment to the police upon his arrest that he was "sick of going to jail". First, the trial court excluded any testimony or further reference to the defendant's remark on the ground that it was inadmissible hearsay. Second, defendant testified at trial and was cross-examined about his prior criminal record, thus placing before the jury the fact that he had previously served jail time. Third, there is nothing to suggest that the prosecutor's remark was made in bad faith. Under all of these circumstances, we do not think that the defendant was unfairly prejudiced by the prosecutor's brief remark in the opening statement, and we find any error resulting from that statement harmless beyond a reasonable doubt. See People v Davis, 343 Mich. 348, 357; 72 NW2d 269 (1955).

Nor do we find that reversal is mandated because of the admission of certain blood-type evidence at trial. Police experts testified that the semen stains found on the mattress upon which complainant was sexually assaulted and on the complainant's clothing came from an individual secreter possessing blood-type B. Defendant, a black male, possesses blood-type B, as does 20% of the black population. While two members of this panel would disagree as to the admissibility of the blood-type evidence, contrast Judge KELLY'S opinions in People v Sturdivant, 91 Mich. App. 128; 283 NW2d 669 (1979), People v White, 102 Mich. App. 156; 301 NW2d 837 (1980), and People v Goree, 132 Mich. App. 693; 349 NW2d 220 (1984), with Judge ALLEN'S opinion in People v Thorin, 126 Mich. App. 293, 302; 336 NW2d 913 (1983), all members of this panel agree that the error, if any, in admitting blood-type evidence in this case is harmless beyond a reasonable doubt.

The complainant spent a period of at least two hours with defendant in her home, outside in broad daylight, and in a J.C. Penney's store. Defendant made no attempt to disguise or conceal his face and complainant thus had ample opportunity to observe her assailant's appearance. Prior to the preliminary examination, complainant selected defendant's picture from a photographic display and positively identified defendant in a live line-up. Complainant also positively identified defendant at the preliminary examination and at trial. Given the strength of the identification testimony in this case, we are not persuaded that a single juror's verdict would be different had the blood-type evidence not been admitted. People v Sturdivant, supra.

The trial court did not err in reading as part of its instructions CJI 20:1:01, which accurately states the law as provided in MCL 750.520h; MSA 28.788(8). Moreover, the instruction was applicable in this case since defense counsel vigorously argued in closing that, because of the strength of the alibi defense, the jury should insist on some corroborative evidence, which the prosecution had failed to supply.

Finally, our consciences are not shocked by the imposition of a sentence of from 30 to 60 years for defendant's conviction of first-degree criminal sexual conduct. People v Coles, 417 Mich. 523; 339 NW2d 440 (1983). The trial court relied upon the particularly offensive nature of this crime in departing from the sentence recommended under the sentencing guidelines. We agree that the circumstances of this offense justify the imposition of a relatively harsh sentence and we affirm.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.