Opinion
Docket No. 4,091.
Decided May 27, 1969. Leave to appeal denied January 28, 1970. See 383 Mich. 762.
Appeal from Recorder's Court of Detroit, Geraldine Bledsoe Ford, J. Submitted Division 1 May 9, 1969, at Detroit. (Docket No. 4,091.) Decided May 27, 1969. Leave to appeal denied January 28, 1970. See 383 Mich. 762.
Vincent Maglaya was convicted of robbery armed. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Samuel J. Torina, Chief Appellate Lawyer, and Terrance K. Boyle, Assistant Prosecuting Attorney, for the people.
Edward F. Bell, for defendant on appeal.
BEFORE: HOLBROOK, P.J., and McGREGOR and BRONSON, JJ.
Defendant, convicted of armed robbery, alleges that several errors occurred in the lower court trial. Most of the errors alleged relate to the prosecution's principal witness, a confessed participant in the robbery. The witness spent time in a mental institution, but had been adjudged sane by the probate court about one month before the crime occurred. At trial, defendant moved to exclude the witness's testimony as incompetent, and alternatively requested that the witness testify in the absence of the jury. The court denied defendant's requests. Defendant did not object to the court's rulings.
MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797).
Since the witness was determined to be sane in a sanity restoration hearing preceding the crime, the court did not abuse its discretion by denying defendant's motions and allowing the witness to testify. Moreover, defendant did not preserve the issue for appeal by objecting to the court's rulings. People v. Huey (1956), 345 Mich. 120; People v. Havey (1968), 11 Mich. App. 69.
After the witness had testified, defendant offered to introduce expert testimony to determine the witness's credibility. The court barred the testimony. The expert witnesses offered by defendant would have testified concerning the witness's homosexual propensities, but the court ruled that homesexuality was a matter collateral to the trial for armed robbery. We agree. The fact that the witness may have had homosexual tendencies would not have necessarily impeached his believability. Furthermore, being a collateral matter of little relevance, the lower court properly prevented the inflammatory subject from beclouding the material issues being litigated.
A police officer testified over defendant's objection that he seized an unregistered gun from defendant, who alleges that the testimony constituted reversible error. Defendant argues the testimony concerned an unproved and irrelevant crime, and he contends the court compounded the error by its instructions.
If testimony tends to prove the offense charged, it is not incompetent because it also tends to prove the commission of another crime. People v. Seaton (1926), 235 Mich. 698. The gun referred to was similar to the gun used in the robbery. Thus the officer's testimony was not tantamount to reversible prejudice. Moreover, the court's instruction was curative and not compounding as to any prejudice occasioned by the testimony.
The final issue raised concerns a statement made by the prosecution during defendant's cross-examination of the people's principal witness on his homosexuality. The questioning was to determine whether the witness made a homosexual proposal to defendant. The prosecutor interjected that it would be necessary for the defendant to take the stand to offer probative evidence of the proposal. Defendant now alleges that the prosecutor's comment was an adroit referral to his failure to testify in his own behalf, and thus was reversible error.
Defendant did not object to the prosecutor's statement and thus did not preserve the issue for appeal absent manifest injustice. People v. Dorrikas (1958), 354 Mich. 303; People v. Lewis (1967), 6 Mich. App. 447. The court's comprehensive instruction that defendant's failure to testify cannot create any adverse inference precluded the remark from attaining the status of manifest injustice.
Conviction affirmed.