People v. McCracken

276 N.W.2d 609, 88 Mich. App. 286, 1979 Mich. App. LEXIS 1975
Michigan Court of Appeals·Decided February 5, 1979·No. Docket 77-367, 77-1545·Published·Cited by 13 cases

Opinions

Bashara, P.J.

Defendants raise 14 issues in their appeals from jury convictions of conspiracy to break and enter a dwelling house with intent to commit larceny therein, MCL 750.157a, 750.110; MSA 28.354(1), 28.305, and of receiving and concealing stolen property over the value of $100, MCL 750.535; MSA 28.803.

The charges in this case arose from the burglary of the home of a Ferndale coin collector. At trial, the three participants in the burglary, Michael Thomas, Ron Oesterling, and Joel Reed, testified pursuant to a grant of transactional immunity. In brief, their testimony indicated that defendant McCracken became involved in the planning of the . [291]*291burglary and that he indicated he could get rid of any coins stolen through defendant O’Connell.

After the burglary, the coins were put into a briefcase and taken at a later date by McCracken to O’Connell’s office and left there.

Both defendants denied any involvement in the burglary or with the stolen coins.

At the outset, we wish to observe that this was a lengthy and complex trial, fraught with difficulties. The trial judge is to be commended for his excellent demeanor and control of the unusual circumstances, at times exacerbated by the actions of perhaps overly zealous counsel.

Defendants initially claim that the jury instruction on intent impermissibly shifted the burden of proof from the prosecution to the defense. The trial judge instructed the jury as follows:

"The question of intent is one that is hard to establish directly because grown persons do not always disclose the object they have in view in any acts in which they may indulge, and you have to gather the intent from the character of the act, the circumstances surrounding it and from conduct of a like character which may appear as tending to aid you in finding and discovering it. But in connection with all this, unless the testimony satisfied you of something else you are warranted in holding a party responsible for the natural, probable and legitimate consequences of his acts. The intent may be presumed from the doing of a wrongful, fraudulent or illegal act. But this inference or presumption is not necessarily conclusive. The law presumes that every man intends the legitimate consequences of his own acts. Wrongful acts, knowingly or intentionally committed can neither be justified nor excused on the ground of innocent intent.”

This instruction has been considered by the Court many times. A similar instruction was approved in [292]*292People v Ross, 69 Mich App 705; 245 NW2d 335 (1976), and in People v Adams, 48 Mich App 595; 210 NW2d 888 (1973).

Defendants rely on People v Wright, 78 Mich App 246; 259 NW2d 443 (1977), which relied on People v Smith, 67 Mich App 145; 240 NW2d 475 (1976), to proscribe a like instruction. However, it is the opinion of this panel that Wright’s reliance on Smith was misplaced. Reversal in Smith was predicated on an error in the self-defense instruction. In fact, the intent instruction was approved by two of the three judges on the Smith panel.

Defendants objected to the instruction as given. Nonetheless, under any standard, when reviewed as a whole, we find no reversible error in this regard. People v Townes, 391 Mich 578; 218 NW2d 136 (1974), People v Ross, supra.

The other claims of error in jury instructions are raised here for the first time. Our review reveals no manifest injustice or prejudicial error.

Defendants also argue that they were deprived of fundamental fairness by rulings of the trial court, and prosecutorial misconduct during cross-examination and closing argument.

We find that sustaining an objection to a question as to whether a witness was aware of the maximum prison term he could have received if he had not been granted immunity does not constitute reversible error. It is only required that the court make known to the jury that a grant of immunity has been made. People v Love, 43 Mich App 608; 204 NW2d 714 (1972).

Just as jury instructions are to be read as a whole, so must the remarks of the prosecutor. Failure to object bars appellate review unless the prejudice is so egregious that it cannot be cured by [293]*293judicial instruction. People v Hernandez, 80 Mich App 465; 264 NW2d 343 (1978).

Our review of the record convinces us that no manifest injustice or reversible error result from prosecutorial conduct. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972), People v Ellis, 62 Mich App 109, 113; 233 NW2d 205 (1975), People v Foster, 77 Mich App 604, 611; 259 NW2d 153 (1977).

The fact that the prosecutor misstated a fact regarding one of the witnesses does not, in light of this record, constitute reversible error. We are mindful of the oft-quoted wisdom of Justice North in People v Burnstein, 261 Mich 534, 538; 246 NW 217 (1933), where in it was stated:

"* * * 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.”

Defendant McCracken next argues that it was reversible error for the prosecution to fail to provide him with a full transcript of grand jury proceedings used to impeach him. The record reveals that the prosecutor referred to only a page and a half of the transcript of the grand jury proceedings on cross-examination. Defense counsel was provided with that portion of the transcript actually used, and was permitted to view the transcript in its entirety.

Defendant relies on People v Karoll, 315 Mich 423; 24 NW2d 167 (1946), and People v Bellanca, 386 Mich 708; 194 NW2d 863 (1972), in support of [294]*294his position. However, both of those cases are distinguishable from the facts of the case at bar in that the cases involved arose from grand jury proceedings. In the instant case, the grand jury proceeding pertained to a collateral matter. The few pages of transcript were used strictly for impeachment purposes. In view of these circumstances, we find no reversible error.

Defendant McCracken also argues the interval of 540 days from the alleged commission of the offense until arrest was a delay sufficient to deprive him of due process. Defendant relies on People v Hernandez, 15 Mich App 141; 170 NW2d 851 (1968). However, People v Noble, 18 Mich App 300; 170 NW2d 916 (1969), held there was no constitutional right to be arrested.

We need not dwell unduly on this contention. Suffice it to say that even were we to accept the reasoning of Hernandez, supra, a denial of due process was not evident in the matter before us as we find no prejudice to the defendant. See People v McNeal, 72 Mich App 507; 250 NW2d 110 (1976).

The final issue, raised by defendant O’Connell, is whether the evidence was sufficient to prove beyond a reasonable doubt his guilt of the crimes charged.

In examining such a claim, the evidence must be viewed in the light most favorable to the prosecution.

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People v. McCracken, 276 N.W.2d 609, 88 Mich. App. 286, 1979 Mich. App. LEXIS 1975 (Mich. Ct. App. 1979).

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