Opinion
Docket No. 18303.
Decided June 24, 1976.
Appeal from Genesee, Thomas C. Yeotis, J. Submitted June 1, 1976, at Lansing. (Docket No. 18303.) Decided June 24, 1976.
Richard L. Spence was convicted of first-degree murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Paul G. Miller, Jr., Senior Assistant Prosecuting Attorney, for the people.
Traycik Traycik, for defendant.
Defendant was convicted by a jury of first-degree murder, MCLA 750.316; MSA 28.548, and sentenced to life imprisonment. His appeal as of right raises three issues for our consideration.
GCR 1963, 785.5(1) states:
"At the arraignment, * * * [t]he prosecuting attorney shall give the defendant a copy of the indictment or information."
In the present case, the prosecutor handed a copy of the information to the defendant's attorney. The defendant, who was present at the time, argues on appeal that the rule requires that the information should have been given to him, not to his attorney. This alleged error is said to require reversal.
We see no error in the procedures followed in the present case. While this is apparently a case of first impression, we note that the Supreme Court recently rejected arguments that other sections of GCR 1963, 785, be interpreted in a similarly rigid manner. Guilty Plea Cases, 395 Mich. 96; 235 N.W.2d 132 (1975). Where a defendant is represented by an attorney and is present when a copy of the information is handed to his attorney, we believe that the requirements of GCR 1963, 785.5(1), supra, are satisfied. Therefore, the defendant's first argument is without merit.
The next allegation of error concerns the prosecutor's questioning of the defendant's former wife. She was called as a prosecution witness but was not always a cooperative witness. During direct examination, the prosecutor pointedly reminded her that she was under oath. At another point, he brought out testimony that she was receiving ADC payments and was again pregnant by the defendant. Then, on redirect examination, he attempted to explore the reasons for the couple's divorce.
The defendant made timely objections to the latter two incidents. Those objections were sustained by the trial judge who followed up with brief cautionary instructions which were sufficient to cure any prejudice stemming from the introduction of the possibly irrelevant material. People v Foster, 51 Mich. App. 213; 214 N.W.2d 723 (1974). The prejudicial effect of the remark about the witness being under oath was so slight that the error, if any, was harmless beyond a reasonable doubt. MCLA 769.26; MSA 28.1096, GCR 1963, 529.1; People v Robinson, 386 Mich. 551; 194 N.W.2d 709 (1972).
Finally, the defendant complains of certain questions asked of a police detective witness during the prosecution's rebuttal case. The questions allowed the witness to elaborate on his extensive expertise in the area of criminal investigations. We agree with the defendant's contention that, in the context of this case, the testimony elicited was either wholly irrelevant or — at least — not proper rebuttal evidence. People v McGillen #1, 392 Mich. 251; 220 N.W.2d 677 (1974). But a thorough review of the record has convinced us that the prejudicial effect of the testimony was slight to the point of being nonexistent. Therefore, the error was harmless beyond a reasonable doubt. People v Robinson, supra.
For the most part, the detective's testimony was either neutral or indirectly favorable to the defendant. He had been present at the autopsy and verified the pathologist's report on the cause of death. He also reported on his interview with the defendant immediately following the arrest. The statement given by the defendant at that time coincided nearly perfectly with his (the defendant's) testimony at the trial.
The defendant's conviction is affirmed.