People v. Pomranky

233 N.W.2d 263, 62 Mich. App. 304, 1975 Mich. App. LEXIS 1058
CourtMichigan Court of Appeals
DecidedJune 24, 1975
DocketDocket 20256
StatusPublished
Cited by19 cases

This text of 233 N.W.2d 263 (People v. Pomranky) 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. Pomranky, 233 N.W.2d 263, 62 Mich. App. 304, 1975 Mich. App. LEXIS 1058 (Mich. Ct. App. 1975).

Opinions

Danhof, P. J.

Defendant was convicted by a jury of delivery of a controlled substance, phencyclidine, MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b). He was sentenced to 1-1/2 to 7 years in prison and he appeals. We affirm.

A Michigan State Trooper, working as a member of an undercover narcotics investigation unit, was introduced to and became familiar with the defendant. On March 27, 1973, equipped with a concealed transmitting device, the trooper went to the defendant’s home in response to defendant’s offer to sell some "grass”. When he arrived, defendant told the trooper that he didn’t have any "grass”, but he offered to sell the trooper a quantity of "TH” instead. The trooper purchased four tablets of what was later identified as phencyclidine. Defendant informed him that he originally had 50 "hits” of the drug, but that he had "gotten rid of’ them earlier.

At trial, defense counsel, in his opening statement, argued to the jury that the police officers had made a mistake, or that "they’re out to frame us”. During later cross-examination, defense counsel sought to impeach the credibility of the undercover officer by revealing a discrepancy between his testimony during a prior trial concerning the pocket in which he placed the drug after his purchase from the defendant. No recording of the actual transaction was made due to a transmitting device malfunction.

The defendant called no witnesses and relied on the theory that the police officers fabricated the story of the drug purchase for ulterior purposes, [307]*307which, as listed in defense counsel’s closing argument, included desire for promotion, police corruption and misuse of power. The jury deliberated for 45 minutes, and returned a verdict of guilty as charged.

On appeal, defendant complains principally of certain allegedly improper statements made by the prosecution during closing argument, only one of which was objected to at trial. A conviction will not be reversed due to the improper comments of the prosecutor when no objection is made, unless the prejudicial effect of the comments was so great that it could not have been cured by a cautionary instruction. People v Charles, 58 Mich App 371, 387; 227 NW2d 348 (1975), People v White, 54 Mich App 342; 220 NW2d 789 (1974). We have examined the various remarks to which no objection was made and the context in which they occurred, and we determine that the prejudicial effect of these remarks was not so great that it could not have been overcome by a cautionary instruction.

During his summation, the prosecutor mentioned that the defendant had told the undercover officer that "he had already sold 50 other hits”. Actually, the officer testified that the defendant told him that he had "gotten rid” of them. Even if this is considered to be a material misstatement of fact, it could have easily been corrected had an objection been made. People v Coffman, 45 Mich App 480, 487-489; 206 NW2d 795 (1973), lv den, 390 Mich 758 (1973).

The prosecutor complimented the police officers on their professionalism, pointing out that they "literally risk their lives to enforce the drug laws”. In the absence of an objection, a prosecutor’s "pat on the back” of a police officer cannot be urged on [308]*308appeal as grounds for reversal. People v Claugherty, 36 Mich App 648, 651-652; 194 NW2d 54 (1971).

The effect of the jury’s decision on the degree of public tolerance of crime in Midland County was referred to by the prosecutor. While these remarks may be characterized as overzealous, they were not so prejudicial that they denied defendant a fair trial. People v Garcia, 31 Mich App 447, 451-452; 187 NW2d 711 (1971).

The last statement of the prosecutor which defendant advances as error is. more serious, and it has been properly preserved for our examination by timely objection at trial. This statement, in the context in which it was made, appears in the following excerpt from the closing argument to the jury by the prosecutor, Mr. Rhead:

"Counsel has attempted through his opening remarks to put before you the fact, and I quote and unquote that term, that the police officers, quote, framed Mr. Pomranky, unquote.
"It’s interesting that we are here in a Courthouse setting, Mr. Pomranky wants a trial, have the witnesses. But where are the witnesses? Where are the facts? Where are these people that substantiate Mr. Rowland’s accusations? Where are they?
"Isn’t the police officer entitled to be confronted by this type of facts to verify this frame? Where are they? You don’t think counsel would be merely trying to mislead you? Is not the police officer entitled to the same type of facts?
"Do you think I, as a representative of the People, a Court officer, would come before you and represent to you a case that was a sham, a case—
"iiir. Rowland: Your Honor, I object to this sort of argument. He is — It’s improper. He is trying to testify in final argument.
"Mr. Rhead: I don’t believe I am, your Honor. The allegation was made by Mr. Rowland.
[309]*309"The Court: Well, I think it would be better if you refrained, without any criticism of your argument at all, Mr. Rhead, I think it might be better to refrain from that portion of it.
"Mr. Rhead: What portion is that, your Honor?
"The Court: That would the jury think you’d come before them with a sham case. I just think it would be better if you didn’t go into that.
"Mr. Rhead: Fine, your Honor.
"Mr. Rowland: May I ask that the court instruct the jury to disregard—
"The Court: The jury will disregard it.”

The defendant now argues that the remarks of the prosecutor placed the prestige of his office "behind the contention that the defendant is guilty”, citing People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970). This contention has received very serious consideration and has been the subject of thoughtful deliberation by this panel. The thrust of the prosecutor’s comments was inexcusable and is expressly disapproved. Nevertheless, we have come to the conclusion that under the circumstances of this case, the remarks were not so prejudicial as to have caused a miscarriage of justice necessitating reversal of the defendant’s conviction. MCLA 769.26; MSA 28.1096.

Despite the superficial similarity, the comments made in the present case are distinguishable from the comments which were found to require reversal of defendant’s conviction in People v Humphreys, supra. There the prosecutor sought to use as substantive evidence of defendant’s guilt the opinion of the prosecutor and of the police that the defendant should stand trial on a murder charge. Here, the prosecutor’s remarks were made in an attempt to refute defense counsel’s charges of police impropriety. The comments, taken in the [310]*310context in which they were made, were not intended to lead the jury to suspend its own powers of judgment by placing the prestige of the prosecutor’s office into an appeal for a conviction based on the opinion of government officials.

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People v. Pomranky
233 N.W.2d 263 (Michigan Court of Appeals, 1975)

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Bluebook (online)
233 N.W.2d 263, 62 Mich. App. 304, 1975 Mich. App. LEXIS 1058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pomranky-michctapp-1975.