Opinion
Docket No. 65008.
Decided May 1, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people.
Thaddeus K. Dean, for defendant on appeal.
Defendant was convicted at a nonjury trial of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to from 5 to 15 years imprisonment and he appeals as of right.
The complainant described the knife used by defendant in the robbery as "a very cheap steak knife with a serrated edge". Over defense counsel's objection, the prosecutor was permitted to place into evidence a knife which had been confiscated from defendant. This knife was described as a folding knife 3-1/2 to 4 inches long when closed, with a brown and white handle. The complainant was unable to identify this knife as being the weapon used by defendant, and it is clear from the descriptions that the knife placed into evidence was not the weapon used by defendant in the robbery. We therefore agree with defendant that there was no adequate foundation established and that the trial court clearly erred in admitting the knife into evidence. See People v Prast (On Rehearing), 114 Mich. App. 469, 490; 319 N.W.2d 627 (1982). However, we are convinced that the admission of the knife into evidence was harmless error in the circumstances of this case. The trial court as finder of fact viewed the trial as a credibility contest and resolved the issue in favor of the complainant and another eyewitness. There is no indication that the trial court gave any weight to the knife which was admitted into evidence. We conclude that the admission of the knife was not so offensive to the maintenance of a sound judicial system that it could never be regarded as harmless, and, further, that it was harmless beyond a reasonable doubt. See, e.g., People v Bailey, 101 Mich. App. 144, 152; 300 N.W.2d 474 (1980).
Defendant next contends that reversal is required because the prosecutor commented during closing argument on defendant's failure to produce corroborating witnesses. Defendant did not object to the remarks, which precludes appellate review unless failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich. 1, 15-16; 260 N.W.2d 58 (1977). Where, as in this case, the defendant takes the stand and testifies in his own behalf, the prosecutor is permitted to comment on the defendant's failure to produce corroborating witnesses. People v Jackson, 108 Mich. App. 346, 351-352; 310 N.W.2d 238 (1981), and cases cited therein. Defendant's challenge to the remarks is clearly without merit.
With regard to the final issue raised by defendant, we have reviewed the record and conclude that the trial court did not abuse its discretion in determining that the prosecutor had exercised due diligence in attempting to identify and produce the res gestae witness. See People v Pearson, 404 Mich. 698; 273 N.W.2d 856 (1979).
Affirmed.