People v. Latham

188 N.W.2d 240, 32 Mich. App. 198, 1971 Mich. App. LEXIS 1863

• Court: Michigan Court of Appeals
• Decided: March 30, 1971
• Docket: Docket 8448
• Status: Published

Opinion

Per Curiam.

Defendant was convicted of pandering 1 by a jury on September 8, 1969, and was sentenced to serve 3 to 20 years in prison. He is before this Court on appeal by right.

Defendant first contends that he was unduly prejudiced by the admission of allegedly illegally seized evidence. However, defendant made no motion below to suppress the evidence; and, therefore, we will not reverse unless the admission of that evidence was decisive in determining defendant’s guilt. 2

Our review of the record convinces us that a new trial at which the evidence in question would be suppressed would serve no useful purpose. It is our opinion that defendant would again be convicted, based upon the other evidence presented against him. We do not, therefore, need to discuss the issue of whether or not the search was in fact illegal.

Defendant next contends that an incorrect statement made by the prosecutor during closing argument requires reversal. The statement referred to was that defendant had been convicted of second-degree murder in Indiana, when in fact defendant had only been convicted of second-degree burglary in that state. Defendant made no objection to the statement at the trial, but now contends that the remark was so prejudicial that it deprived him of a fair trial.

The rule is that this court will reverse a conviction based upon a prejudicial remark made during closing argument, only when the prejudice could not have been rectified by a curative instruction on the part of the trial judge, where the prejudicial remark was not objected to at the trial below. 3 Here, the trial judge could have easily corrected the misstatement made by the prosecutor. Therefore, we will not reverse since the remark was not objected to below.

Affirmed.

1 MOLA § 750.455 (Stat Ann 1954 Rev § 28.710).

2 People v. Degraffenreid (1969), 19 Mich App 702, 716.

3 People v. Humphreys (1970), 24 Mich App 411.