Bronson, J.
Defendant, Loren Jolly, was charged, along with Ceasar Montevecchio
and Joseph Giacalone,
with the armed robbery of the Hirsch Jewelry Store. MCLA 750.529; MSA 28.797. The crime occurred in the City of Flint on August 15, 1967. On September 16, 1968, at the conclusion of an extensive trial, the jury returned a verdict of guilty as charged. On October 24, 1968, defendant was sentenced to serve a term in solitary confinement of not less than 50 nor more than 70 years. A motion for new trial was heard and ultimately denied
on February 24, 1972. Defendant appealed of right.
Defendant’s trial counsel was appointed three days prior to the trial. It is alleged on appeal that the trial judge’s failure to grant an adjournment to allow counsel more time to prepare was reversible error. First, while defense counsel may be entitled to the sympathy of this Court, the defendant must be held to the results of his own deliberate neglect. The trial judge went to extraordinary
length to provide defendant with counsel if he wanted it. Over a period of three months defendant made numerous assurances on the record that he had or was obtaining private counsel. At the last minute defendant still had no attorney. The court appointed an attorney, who agreed to take the case knowing the scheduled trial date. The record makes it abundantly clear that any prejudice which may have resulted can be attributed to the defendant. His failure to timely obtain either retained or appointed counsel was defendant’s choice.
The trial judge conducted the voir dire of the prospective jurors. Defendant requested a specific question, which the trial judge refused to ask as defense counsel worded it. The judge did indicate that he would consider covering the area in another manner. Defendant assigns this as error. Defendant has failed to show any prejudice as the result of this claimed error. Considering the wide discretion of the trial judge regarding conduct of the voir dire, GCR 1963, 511.3, we find no reversible error.
The trial judge restricted defendant’s cross-examination into arrests not resulting in conviction of one of the witnesses. Defendant assigns this as error. We find the trial judge was correct. See
People v Falkner,
389 Mich 682; 209 NW2d 193 (1973).
The next issue is whether the prosecutor’s closing argument was sufficiently prejudicial to deny the defendant a fair and impartial trial. We conclude that it was not.
In support of his contention that the prosecutor’s closing argument was reversibly improper, defendant directs our attention to the following remarks:
"Robberies are bad, certainly, but this was no hair-brained young kid on the spur of the moment putting his hand in his pocket, going into a store, robbing it,
this was well-planned, conceived, professional group.
* * *
"Mr. Giacalone instructed Mr. Kinsman and Mr. Jolly to go out and steal a car.
Again with the air of professionalism about it.
* * *
”Now, this is a professional operation from beginning to end, well-planned.
It wasn’t a hit-and-miss operation. This was done in our town and in our city. * * *
"We have shown you how they done it, and
it was a professional job.
* * *
"I submit to you that I have never manufactured any testimony that went on that stand, and I resent that man implying it. I am sick and tired every time a lawyer, or prosecutor or police come into a courtroom they are put on trial, because we are trying to do a job, and it is people like him that put us on trial. For what? Because he can’t defend his — his client any other way.
His client is guilty.
* * *
"You know, when you successfully infiltrate an underworld operation, you don’t do it with Bishop Sheen, you have got to go get one of them, and you do have to put the screws on them a little. There is no question about that. We don’t try to hide that here.
But when we used information, we knew whether it was reliable. We knew that.
* * * ” (Emphasis added.)
The statute which directs the scope of our review, MCLA 769.26; MSA 28.1096 provides:
"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
The defendant carefully quotes certain of the prosecutor’s remarks which he claims amount to a miscarriage of justice. No defense objection or request for curative instruction was made. Reviewing the entire cause, the context in which these remarks were made, and the recent cases of this Court convinces us that there has been no showing of manifest injustice. See
infra
footnote 6 this opinion,
People v Plozai,
50 Mich App 131; 212 NW2d 721 (1973).
The first four quotes concern comment that the defendants were professionals. They were. The record demonstrates that the whole robbery was planned in advance, the store was carefully selected as the target, a getaway car was specially stolen, and prior arrangements to "fence” the goods were made. The prosecutor’s remarks were legitimate comment upon testimonial evidence.
The context of these remarks is also informative. The first four remarks occurred during the prosecutor’s opening summation to the jury. This summation was short, and, in this writer’s opinion, within the bounds of proper argument. The two remaining remarks occurred during the prosecutor’s
rebuttal.
The remarks were invited by defendant’s closing argument. We have set forth in the margin
some of the more graphic examples of
defense counsel’s closing summation. It is by no means an exhaustive list. A reading of the entire
summation creates a cumulative level of prejudice which exceeds the sum of the improper parts.
The tone of the defense summation was set early. Defense counsel commenced his argument with the following remarks:
"And I want you to
consider this case
towards Loren Jolly as you would want to consider towards you or one of your loved ones, or friends,
if you were being tried.
So, if there is a logical reason — just one logical reason that you could not find Loren Jolly guilty beyond a reasonable doubt, you must find him innocent.
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Bronson, J.
Defendant, Loren Jolly, was charged, along with Ceasar Montevecchio
and Joseph Giacalone,
with the armed robbery of the Hirsch Jewelry Store. MCLA 750.529; MSA 28.797. The crime occurred in the City of Flint on August 15, 1967. On September 16, 1968, at the conclusion of an extensive trial, the jury returned a verdict of guilty as charged. On October 24, 1968, defendant was sentenced to serve a term in solitary confinement of not less than 50 nor more than 70 years. A motion for new trial was heard and ultimately denied
on February 24, 1972. Defendant appealed of right.
Defendant’s trial counsel was appointed three days prior to the trial. It is alleged on appeal that the trial judge’s failure to grant an adjournment to allow counsel more time to prepare was reversible error. First, while defense counsel may be entitled to the sympathy of this Court, the defendant must be held to the results of his own deliberate neglect. The trial judge went to extraordinary
length to provide defendant with counsel if he wanted it. Over a period of three months defendant made numerous assurances on the record that he had or was obtaining private counsel. At the last minute defendant still had no attorney. The court appointed an attorney, who agreed to take the case knowing the scheduled trial date. The record makes it abundantly clear that any prejudice which may have resulted can be attributed to the defendant. His failure to timely obtain either retained or appointed counsel was defendant’s choice.
The trial judge conducted the voir dire of the prospective jurors. Defendant requested a specific question, which the trial judge refused to ask as defense counsel worded it. The judge did indicate that he would consider covering the area in another manner. Defendant assigns this as error. Defendant has failed to show any prejudice as the result of this claimed error. Considering the wide discretion of the trial judge regarding conduct of the voir dire, GCR 1963, 511.3, we find no reversible error.
The trial judge restricted defendant’s cross-examination into arrests not resulting in conviction of one of the witnesses. Defendant assigns this as error. We find the trial judge was correct. See
People v Falkner,
389 Mich 682; 209 NW2d 193 (1973).
The next issue is whether the prosecutor’s closing argument was sufficiently prejudicial to deny the defendant a fair and impartial trial. We conclude that it was not.
In support of his contention that the prosecutor’s closing argument was reversibly improper, defendant directs our attention to the following remarks:
"Robberies are bad, certainly, but this was no hair-brained young kid on the spur of the moment putting his hand in his pocket, going into a store, robbing it,
this was well-planned, conceived, professional group.
* * *
"Mr. Giacalone instructed Mr. Kinsman and Mr. Jolly to go out and steal a car.
Again with the air of professionalism about it.
* * *
”Now, this is a professional operation from beginning to end, well-planned.
It wasn’t a hit-and-miss operation. This was done in our town and in our city. * * *
"We have shown you how they done it, and
it was a professional job.
* * *
"I submit to you that I have never manufactured any testimony that went on that stand, and I resent that man implying it. I am sick and tired every time a lawyer, or prosecutor or police come into a courtroom they are put on trial, because we are trying to do a job, and it is people like him that put us on trial. For what? Because he can’t defend his — his client any other way.
His client is guilty.
* * *
"You know, when you successfully infiltrate an underworld operation, you don’t do it with Bishop Sheen, you have got to go get one of them, and you do have to put the screws on them a little. There is no question about that. We don’t try to hide that here.
But when we used information, we knew whether it was reliable. We knew that.
* * * ” (Emphasis added.)
The statute which directs the scope of our review, MCLA 769.26; MSA 28.1096 provides:
"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
The defendant carefully quotes certain of the prosecutor’s remarks which he claims amount to a miscarriage of justice. No defense objection or request for curative instruction was made. Reviewing the entire cause, the context in which these remarks were made, and the recent cases of this Court convinces us that there has been no showing of manifest injustice. See
infra
footnote 6 this opinion,
People v Plozai,
50 Mich App 131; 212 NW2d 721 (1973).
The first four quotes concern comment that the defendants were professionals. They were. The record demonstrates that the whole robbery was planned in advance, the store was carefully selected as the target, a getaway car was specially stolen, and prior arrangements to "fence” the goods were made. The prosecutor’s remarks were legitimate comment upon testimonial evidence.
The context of these remarks is also informative. The first four remarks occurred during the prosecutor’s opening summation to the jury. This summation was short, and, in this writer’s opinion, within the bounds of proper argument. The two remaining remarks occurred during the prosecutor’s
rebuttal.
The remarks were invited by defendant’s closing argument. We have set forth in the margin
some of the more graphic examples of
defense counsel’s closing summation. It is by no means an exhaustive list. A reading of the entire
summation creates a cumulative level of prejudice which exceeds the sum of the improper parts.
The tone of the defense summation was set early. Defense counsel commenced his argument with the following remarks:
"And I want you to
consider this case
towards Loren Jolly as you would want to consider towards you or one of your loved ones, or friends,
if you were being tried.
So, if there is a logical reason — just one logical reason that you could not find Loren Jolly guilty beyond a reasonable doubt, you must find him innocent. Remember that is the law, and the judge will instruct you that way.” [Defendant’s summation, p 626, trial transcript.]
Neither the jurors nor their family and friends were on trial and the suggestion that they were is
not
"the law” as defense counsel implies.
However, the main thrust of defendant’s closing
argument, as disclosed in the marginal note, was an attack on the prosecutor and the prosecution. Defendant’s basic premise was that none of the prosecution witnesses were credible because they were either paid, coached, granted special favors or friends of the prosecutor. This summation was a 30-page sustained assault on the prosecutor’s investigation and prosecution of the defendants.
The prosecutor objected to the defense summation. This objection and the defense response is also included in the margin.
The court ruled in response that the prosecutor would have adequate opportunity to reply in his rebuttal. The two remaining remarks presently assigned as reversible
error came at the beginning of this rebuttal. Although these remarks were improper they were not reversible error on a review of this entire cause for manifest injustice.
In the context of the present record the reasoning of the defendant implies a lack of equality. The respective obligations of the defense and prosecution, in the area of trial advocacy, are seemingly accorded different standards. Canon 7 of the Code of Professional Responsibility and Canons provides:
A lawyer should represent a client zealously within the bounds of the law.
Disciplinary rules DR 7-106(c)(3) and (4) promulgated with Canon 7 provide, inter alia:
"(c) In appearing in his professional capacity before a tribunal, a lawyer shall not:
"(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.
"(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.”
This rule requires the same high standards from both the defense and prosecution. The prosecutor’s trial advocacy obligations imposed by these rules
are not altered by the other rules concerning the duty of public prosecutors. Rule DR 7-106
is not concerned with trial advocacy but deals with prosecutorial discretion and disclosure.
Further evidence of their
reciprocal
obligations as trial advocates may be found in the report of the American Bar Association Project on Standards for Criminal Justice: Standards Relating to the Prosecution Function and the Defense Function. Standard 5.8 declares the prosecution function:
"5.8 Argument to the jury.
"(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
"(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
"(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
"(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.”
Standard 7.8 for the defense function is almost identical. It provides:
"7.8 Argument to the jury.
"(a) In closing argument to the jury the lawyer may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for a lawyer intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
"(b) It is unprofessional conduct for a lawyer to express his personal’ belief or opinion in his client’s innocence or his personal belief or opinion in the truth or falsity of any testimony or evidence, or to attribute the crime to another person unless such an inference is warranted by the evidence.
"(c) A lawyer should not make arguments calculated to inflame the passions or prejudices of the jury.
"(d) A lawyer should refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury’s verdict.”
At trial both the prosecution and defense must be governed by these or similar obligations. Just as the prosecutor should not attempt to persuade the jury by allusion to the nature of his public position and duty, the defense counsel should not seek to establish the justice of his client’s case by arguing some injustice perceived on the part of the prosecutorial office or function. Applying these principles here, where the complained of error was not preserved and was actually invited, we find no manifest injustice.
This writer was not a member of the panel that decided
People v Montevecchio,
32 Mich App 163; 188 NW2d 186 (1971),
leave to appeal den,
387 Mich 762 (1972).
In order to give careful consideration to the decision in
Montevecchio,
this panel has obtained the closing arguments in
Montevec
chio
to compare the summations.
Montevecchio
is distinguishable from the instant record. In
Montevecchio
the argument of the defense counsel was not transcribed. However, reference was made by the prosecutor in rebuttal to the defense argument as follows:
"Now there has been a lot of talk in our argument in this case about the role of attorney, and law and order and justice, and I agree. I agree very much with a great deal of what has been said to you along those lines by Mr. O’Rourke.and by Mr. Gadola [defense counsel].”
Without the defense argument, why should we speculate as to whether the prosecutorial argument was unjust in light of the entire record? One further distinguishing feature of
Montevecchio
is the existence of an objection to some of the prosecutor’s argument. This objection was incorporated in a defense motion for mistrial. The specific remarks held reversible in Montevecchio were not directly incorporated by defense counsel in his motion for mistrial and thus the specific error was not preserved. However, the existence of some objection^ indicates that the defense was not merely harboring error for use at the appellate level. Finding no manifest injustice and
Montevecchio
distinguishable, we find no reversible error on this issue.
We have carefully considered defendant’s remaining allegations of error and find none of them meritorious.
Although we affirm defendant’s conviction, we find that the trial judge impermissibly considered certain matters in the sentencing process. This may be readily corrected by a remand for resentencing before a different judge.
Conviction affirmed. Sentence vacated and remanded for resentencing.
All concurred.