People v. Harley

Michigan Court of Appeals

People v. Harley

212 N.W.2d 810, 49 Mich. App. 729, 1973 Mich. App. LEXIS 873

CourtMichigan Court of Appeals

DecidedSeptember 27, 1973

DocketDocket 15160

StatusPublished

Cited by7 cases

This text of 212 N.W.2d 810 (People v. Harley) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Harley, 212 N.W.2d 810, 49 Mich. App. 729, 1973 Mich. App. LEXIS 873 (Mich. Ct. App. 1973).

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Opinions

Van Valkenburg, J.

The defendant, Richard L. Harley, was found guilty by a jury of uttering and publishing, MCLA 750.249; MSA 28.446, was sentenced to a term of 3 to 14 years, and appeals as of right without having made a motion for a new trial.

The first issue arises as a result of testimony given by the defendant to the effect that the chief witness called him in the hospital, apologized for getting him into trouble by lying about the checks, and then indicated that he would straighten the matters out with the prosecuting attorney. During the conference on instructions, the trial judge indicated that he would instruct that such testimony could be used for credibility purposes only; [732]*732however defense counsel insisted that it be considered as substantive evidence, since it might benefit his client. Naturally, the defense counsel did not object to the instructions as given. Defendant now asserts that the court should have given the original version of the instruction.

In light of GCR 1963, 516.2, it is doubtful if this issue is properly before the Court. Exceptions to the "no objection-no error” language of 516.2 have been made where "manifest injustice” results. Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965). However, the defendant has no basis for complaint where, as here, his trial strategy failed to produce the desired results.

Secondly, the defendant asserts that he was denied a fair trial by virtue of the fact that the jury was coerced into a hasty verdict by certain remarks made by the trial court, citing People v London, 40 Mich App 124; 198 NW2d 723 (1972), and the cases cited therein. The trial court herein exhibited no impatience with the jury, but rather merely explained to the jury that if they were unable to reach a verdict within an hour, they would be taken to lunch at county expense. The court further indicated that it was necessary to limit the cost of this lunch. There was absolutely no attempt to force the jury to reach a verdict before lunch nor any attempt to convey to the jury that they should hasten their deliberations.

The third, and perhaps most important, issue concerns certain threats made by the prosecutor to a res gestae witness to the effect that he would prosecute her for the same crime as defendant if she did not leave the county or for perjury if she testified favorably to defendant at trial. The trial court was apprised of the existence of these threats by the witness, whereupon the court in[733]*733formed the witness that she should not hold back any pertinent evidence. The witness then took the stand and testified favorably to the defendant.

There is no question that interference, intimidation and threats by the prosecutor to a witness constitutes grounds for reversal, since such actions usually deprive the defendant of his right to a fair trial. People v Pena, 383 Mich 402; 175 NW2d 767 (1970); People v Butler, 30 Mich App 561; 186 NW2d 786 (1971). While we condemn the prosecutor for his attempts to pervert the ends of justice, we find that no reversible error resulted therefrom. The record clearly indicates that the trial court’s assurances to the witness purged the possible taint left by the prosecutor’s actions. We would note further that neither a motion for a mistrial nor a motion for a new trial were made before the trial court. If the taint left by the prosecutor’s actions gave rise to any hesitancy to testify by the witness which would not appear from the cold words of the transcript, the proper place to raise the question would have been before the trial court who had the opportunity to observe the behavior of the witness.

The remainder of the issues raised have been carefully examined and found lacking in merit. Not only was the question of improper remarks by the prosecutor not properly preserved for appellate review, but the remarks fell within the scope of permissible inferences from the evidence. The testimony concerning an assault made by defendant on one of the witnesses was introduced by defense counsel on cross-examination; therefore defendant has no cause for complaint. The question of the weight of the evidence is a jury matter and cannot be raised for the first time on appeal; a motion for new trial being a necessary prerequisite. See Peo[734]*734ple v Ragland, 34 Mich App 673; 192 NW2d 73 (1971). There was sufficient evidence, if believed by the jury, to find defendant guilty beyond a reasonable doubt.

Affirmed.

McGregor, J., concurred.

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Van Valkenburg, J.

The defendant, Richard L. Harley, was found guilty by a jury of uttering and publishing, MCLA 750.249; MSA 28.446, was sentenced to a term of 3 to 14 years, and appeals as of right without having made a motion for a new trial.

The first issue arises as a result of testimony given by the defendant to the effect that the chief witness called him in the hospital, apologized for getting him into trouble by lying about the checks, and then indicated that he would straighten the matters out with the prosecuting attorney. During the conference on instructions, the trial judge indicated that he would instruct that such testimony could be used for credibility purposes only; [732]*732however defense counsel insisted that it be considered as substantive evidence, since it might benefit his client. Naturally, the defense counsel did not object to the instructions as given. Defendant now asserts that the court should have given the original version of the instruction.

In light of GCR 1963, 516.2, it is doubtful if this issue is properly before the Court. Exceptions to the "no objection-no error” language of 516.2 have been made where "manifest injustice” results. Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965). However, the defendant has no basis for complaint where, as here, his trial strategy failed to produce the desired results.

Secondly, the defendant asserts that he was denied a fair trial by virtue of the fact that the jury was coerced into a hasty verdict by certain remarks made by the trial court, citing People v London, 40 Mich App 124; 198 NW2d 723 (1972), and the cases cited therein. The trial court herein exhibited no impatience with the jury, but rather merely explained to the jury that if they were unable to reach a verdict within an hour, they would be taken to lunch at county expense. The court further indicated that it was necessary to limit the cost of this lunch. There was absolutely no attempt to force the jury to reach a verdict before lunch nor any attempt to convey to the jury that they should hasten their deliberations.

The third, and perhaps most important, issue concerns certain threats made by the prosecutor to a res gestae witness to the effect that he would prosecute her for the same crime as defendant if she did not leave the county or for perjury if she testified favorably to defendant at trial. The trial court was apprised of the existence of these threats by the witness, whereupon the court in[733]*733formed the witness that she should not hold back any pertinent evidence. The witness then took the stand and testified favorably to the defendant.

There is no question that interference, intimidation and threats by the prosecutor to a witness constitutes grounds for reversal, since such actions usually deprive the defendant of his right to a fair trial. People v Pena, 383 Mich 402; 175 NW2d 767 (1970); People v Butler, 30 Mich App 561; 186 NW2d 786 (1971). While we condemn the prosecutor for his attempts to pervert the ends of justice, we find that no reversible error resulted therefrom. The record clearly indicates that the trial court’s assurances to the witness purged the possible taint left by the prosecutor’s actions. We would note further that neither a motion for a mistrial nor a motion for a new trial were made before the trial court. If the taint left by the prosecutor’s actions gave rise to any hesitancy to testify by the witness which would not appear from the cold words of the transcript, the proper place to raise the question would have been before the trial court who had the opportunity to observe the behavior of the witness.

The remainder of the issues raised have been carefully examined and found lacking in merit. Not only was the question of improper remarks by the prosecutor not properly preserved for appellate review, but the remarks fell within the scope of permissible inferences from the evidence. The testimony concerning an assault made by defendant on one of the witnesses was introduced by defense counsel on cross-examination; therefore defendant has no cause for complaint. The question of the weight of the evidence is a jury matter and cannot be raised for the first time on appeal; a motion for new trial being a necessary prerequisite. See Peo[734]*734ple v Ragland, 34 Mich App 673; 192 NW2d 73 (1971). There was sufficient evidence, if believed by the jury, to find defendant guilty beyond a reasonable doubt.

Affirmed.

McGregor, J., concurred.

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212 N.W.2d 810, 49 Mich. App. 729, 1973 Mich. App. LEXIS 873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-harley-michctapp-1973.

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