Opinion
Docket No. 47012.
Decided August 28, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and John H. MacFarlane, Assistant Prosecuting Attorney, for the people.
Allen, Letzring Denenfeld, for defendant on appeal.
Defendant and codefendant, Lee Caldwell, were charged with breaking and entering, MCL 750.110; MSA 28.305. Defendant was convicted by a jury of entering without breaking, MCL 750.111; MSA 28.306, and was sentenced to two years probation.
Defendant argues that the trial court erred in refusing to grant his motion for a directed verdict. Specifically, defendant claims that there was no testimony to establish the necessary element of a breaking. We disagree.
The complainant testified that, when she left the apartment, she locked the doors and that she had not given defendant Crump nor codefendant Lee Caldwell permission to enter. When she returned, the back door had been torn off the hinges. Other witnesses testified that they observed Crump and Caldwell coming out of the back door of the apartment carrying items which matched the description of items reported missing by the complainant. Such evidence was sufficient to withstand defendant's motion for a directed verdict. People v Garrett, 17 Mich. App. 69; 169 N.W.2d 143 (1969). A rational trier of fact could have found from the evidence introduced that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich. 354; 285 N.W.2d 284 (1979).
Secondly, defendant contends that the prosecutor impermissibly commented on defendant's right to remain silent and that reversal is required under People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973). While the prosecutor's remarks were improper, we note that they were made in direct response to arguments advanced by counsel for the codefendant. Therefore, the prosecutor's comments were not reversibly erroneous. People v Jones, 75 Mich. App. 261; 254 N.W.2d 863 (1977), People v Malchi White, 81 Mich. App. 226; 265 N.W.2d 100 (1978).
Defendant also argues that the prosecutor's rebuttal argument concerning the character of codefendant's counsel necessitates reversal. We disagree. The remarks were directed at counsel for the codefendant, and we are not persuaded that defendant was prejudiced thereby. Moreover, defendant did not raise any objection at trial and did not request a curative instruction. Reversal is not warranted under these circumstances. People v Duncan, 402 Mich. 1; 260 N.W.2d 58 (1977).
With respect to both of the last two issues, defendant argues that he should not be penalized for the acts of counsel for his codefendant. Defendant, however, did not request that his trial be severed from that of his codefendant. Whenever two or more defendants are tried in the same trial, there is always the possibility that one defendant may suffer some prejudice from the attitude or trial strategy of a codefendant or from the manner in which his counsel presents the case to the jury. We decline to reverse on that basis, however, absent clear indication that the defendant has suffered a miscarriage of justice. MCL 769.26; MSA 28.1096. We find no such miscarriage of justice in this case.
Finally, defendant claims as error the prosecutor's denial of a request for a polygraph examination. We find no error in this regard. The prosecutor is afforded wide discretion in conducting a criminal investigation. People v Birmingham, 13 Mich. App. 402; 164 N.W.2d 561 (1968). Defendant failed to demonstrate that the prosecutor's refusal to arrange for a polygraph examination was the result of bad faith, by way of caprice, or invidious discrimination. Absent such a showing, we cannot conclude that the prosecutor abused his discretion in the denial of defendant's request.
Affirmed.