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PEOPLE OF MI V RONALD L JOHNSON
State: Michigan
Court: Court of Appeals
Docket No: 173143
Case Date: 08/06/1996
Preview:STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RONALD L. JOHNSON, a/k/a CHARLES DERRICK JONES, Defendant-Appellant.

UNPUBLISHED August 6, 1996

No. 173143 LC No. 93-123592 FH

Before: White, P.J., and Fitzgerald, and E.M. Thomas,*JJ. PER CURIAM. Defendant appeals his jury trial conviction of unlawfully driving away an automobile, MCL 750.413; MSA 28.645. We affirm. On February 23, 1993, around 2:00 or 2:30 p.m., Cynthia Anne Woods left work at Silverman's restaurant in Farmington Hills, walked to her car, started it, and then realized she had left her purse in the restaurant. She left the car running and the doors unlocked and ran in the restaurant to retrieve her purse. Woods testified she was in the restaurant one or two minutes. As she left the restaurant, she saw a black male driving her car away. The car stopped halfway through the parking lot, where another black male got in, and then continued away. She could not specifically identify the driver, but noticed he was wearing a tan coat and a light colored hood. The passenger was wearing a dark green coat. She had given no one permission to drive her car. Gary Jaber, a cook at Silverman's, testified that a black male came in the restaurant, asked for change, and then went to the gas station next door to make a phone call at an outdoor phone. Jaber testified that when Woods came back in the restaurant to get her purse, a black male got in her car, drove a short distance, picked up a second black male, and left. The driver was wearing a dark jacket and blue jeans.

* Circuit judge, sitting on the Court of Appeals by assignment. -1

A patron at Silverman's, Lynne Hubrecht, testified she observed two black males come in the restaurant and get change, and observed Woods' car being driven away by a black male. She described the two males' clothing as Woods had -- one wore a tan coat and the other a green coat - and identified defendant as the driver the car. She also testified that the other man had an overbite. Robert Boone, a service manager and mechanic at a gas station in Southfield, testified that on February 23, 1993, he was attempting to drive a car into a service bay when two black males pulled up in a black late-model Ford Escort, parked the car, exited the vehicle and quickly walked behind the service station and away. Boone testified that keys were left in the ignition and the engine was running. Boone called the police. He identified defendant as the driver of the Ford Escort. Boone testified that he misspoke at the preliminary examination when he first testified that defendant was the passenger, and then corrected himself. He testified he was sure defendant was the driver. Southfield police officer David McCormick testified that on February 23, 1993, around 2:30 or 3:00 p.m., he received a dispatch that a black Ford Escort had just been stolen from Farmington Hills and was headed towards Southfield. The two subjects were described and the license plate provided. About four minutes after the initial dispatch, a second dispatch informed McCormick that two black males had just abandoned a black Escort at a gas station in Southfield, and had run behind the building. McCormick drove to the station and noticed two men that matched the descriptions he had received walking down a nearby street. When McCormick stopped them and asked their names, one gave a false name and the other gave a social security number that corresponded to a different name than he had given the officer. One was wearing a dark green coat and the other a tan coat, the latter had on multiple layers of clothes and his coat was reversible, the alternate side being green. McCormick identified defendant as one of the men he had stopped on February 23, 1993. He was later recalled to the stand and testified that he had had Boone come to where he was detaining the two males, and that Boone identified defendant as the driver of the Escort abandoned at the station where he worked. Woods, Jaber and Boone testified that the driver was taller than the passenger, although Woods on cross-examination testified she did not see the driver standing. Jaber, Hubrecht and Boone testified that the driver was lighter complected than the passenger. McCormick's testimony established that defendant was the taller and lighter complected of the two men arrested. After being convicted by the jury, defendant moved for a new trial on the basis of prosecutorial misconduct or, in the alternative, for resentencing. His motion for new trial was denied, but resentencing was granted; the latter is not at issue here. On appeal, defendant asserts that the prosecutor improperly argued to the jury that defendant gave a false name at the time of his arrest, made disparaging remarks about defense counsel during closing arguments, failed to produce exculpatory evidence, and argued to the jury facts not in evidence. Defendant asserts the cumulative effect of these improprieties deprived him of a fair trial.

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Appellate review of allegedly improper remarks by a prosecutor is precluded if the defendant fails to timely and specifically object, unless a curative instruction could not have eliminated the prejudicial effect or where failure to consider the issue will result in a miscarriage of justice. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). People v Allen, 201 Mich App 98, 104; 505 NW2d 869 (1993). In the present case, defense counsel only objected to the prosecutor's remark that defense counsel was getting paid for his services. The test of prosecutorial misconduct is whether a defendant was denied a fair and impartial trial. People v Bahoda, 448 Mich 261, 267 n 7; 531 NW2d 659 (1995). We conclude that the prosecutor's comments to the jury during closing arguments did not deny defendant a fair trial, and that to the extent defendant's claims are unpreserved, any error did not result in manifest injustice. Defendant first argues that the prosecutor committed reversible error by arguing to the jury that defendant was guilty because he gave a false name to the police when he was arrested. At trial, the prosecutor asked officer McCormick: Q. Okay. So, the darker skinned, black male did, in fact, give you a false name? A. Yes, he did, Q. What about the other guy? A. The other guy identified himself as Charles Derek Jones Q. And did you later find out that that was, in fact, a false name? A. Lather through dispatch, while I was using his social security number, it was revealed that that social security number went to a Ronald Lee Johnson. Defense counsel did not object during this colloquy. McCormick then identified defendant as the person who had identified himself as Charles Derek Jones, but had given a social security number belonging to Ronald Lee Johnson. During closing argument, the prosecutor stated, "I submit to you that two individuals who would lie to the police about their identities [sic] would abandon a recently stolen car would also know that it may be time to switch their clothing and that's exactly what they did." Later, the prosecutor in her rebuttal argument stated, "If you are sitting here where Mr. Jones or Mr. Johnson or whatever or whoever he is today would you be -- would want to be convicted at all? Someone who changes their name, changes their clothing and steals a car probably would answer that question no.1 We first observe that defendant failed to preserve the issue by objection at trial. Further, we conclude that defendant was not deprived of a fair trial by the prosecutor's comments. The prosecutor's comment that defendant had lied about his identity was adequately supported by evidence presented at -3

trial. Officer McCormick testified at trial that defendant identified himself as Charles Derek Jones, but gave a social security number belonging to Ronald Lee Johnson. Thus there was record support for the assertion that defendant gave the police false information regarding his identity. Further, defendant did not testify at trial, the word "alias" was never used before the jury, and the prosecutor did not imply that defendant was involved in other criminal conduct by referring to his giving a false name to the police. In opening statement and throughout the one day trial, the prosecutor referred to defendant as "the defendant," with four exceptions. The first was during direct examination of the complainant when the prosecutor, to establish that the complainant had not given anyone permission to drive her car, asked her whether she knew Ronald Lee Johnson or Charles D. Jones. The complainant answered no to each question. We consider these questions innocuous. The second time was during defense counsel's cross-examination of Officer McCormick, when some of the clothes defendant and the other man involved in the incident allegedly wore and some photographs were being admitted into evidence. The prosecutor interjected in response to defense counsel's referring to defendant as "Mr. Jones:" MS. NIELSEN [prosecutor]: admitted-- Your Honor, I would ask that both of these be

THE COURT: Any objection, Mr.
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