People v. Miller

Full title: PEOPLE v. MILLER

Court: Michigan Court of Appeals

Date published: Feb 23, 1971

31 Mich. App. 121 (Mich. Ct. App. 1971)

187 N.W.2d 568

Opinion

Docket No. 8350.

Decided February 23, 1971.

Appeal from Genesee, Donald R. Freeman, J. Submitted Division 2 February 2, 1971, at Lansing. (Docket No. 8350.) Decided February 23, 1971.

Eddie Miller was convicted of armed robbery. Defendant appeals. Affirmed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Assistant Prosecuting Attorney, for the people.

James R. Buckley, for defendant on appeal.

Before: QUINN, P.J., and McGREGOR and O'HARA,^_ JJ.

_ Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

PER CURIAM.

Defendant was apprehended during a robbery. At his trial on a charge of robbery armed,¹ the prosecuting attorney, in his opening statement to the jury, stated, "That afternoon, about one o'clock in the afternoon, the manager of the Big-D Party Store found a gun out in his parking lot". (The robbery occurred in that parking lot about 13 hours earlier.) Defendant objected immediately, the jury was excused and defendant moved for a mistrial. After argument, not in the presence of the jury, the trial judge ruled that the gun was inadmissible, denied the motion for mistrial, and when the jury returned, they were instructed to disregard the statement of the prosecuting attorney. There was no further reference to this gun during the trial.

1 MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797).

The jury found defendant guilty; he was sentenced; his motion for a new trial was denied; and he appeals. The only issue raised on appeal is that the above-quoted remark of the prosecuting attorney so prejudiced defendant's trial that he was denied a fair trial; hence, denial of the motions for mistrial and new trial was an abuse of discretion.

The record does not support defendant's position. The quoted statement is the only reference to this gun in the jury's presence. There is no indication that the prosecuting attorney knew, or had reason to believe, that the gun would not be admitted in evidence when the statement was made. The argument concerning its admissibility and the judge's ruling thereon were in the absence of the jury. The gun was never offered in evidence in the jury's presence. If there was error, which is doubtful (see People v. Williams, 11 Mich. App. 62), it was cured by the instruction.

Affirmed.