PEOPLE OF MI V JOHN THOMAS MCARTHUR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 12, 2001
Plaintiff-Appellee,
v
No. 211354
Wayne Circuit Court
LC No. 96-001151
JOHN THOMAS MCARTHUR,
Defendant-Appellant.
Before: Neff, P.J., and Talbot and J.B. Sullivan, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548,
and kidnapping, MCL 750.349; MSA 28.581. He was sentenced to concurrent terms of fifteen to
twenty-five years’ and life imprisonment. We affirm.
First, defendant argues that his custodial statements should have been suppressed because
a writ of habeas corpus was used to move him from one jail to another for questioning.
Defendant was moved from the Macomb County Jail, where he was in custody, to the Wayne
County Jail. Defendant’s claim is without merit. We note at the onset that defense counsel
conceded on the record that defendant’s presence for the interview in Wayne County was
lawfully obtained. This Court disfavors consideration of waived and unpreserved claims of error.
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000); People v Carines, 460 Mich 750,
761; 597 NW2d 130 (1999). In any case, defendant was not illegally detained and his rights were
not violated. At the time defendant was interviewed, he was serving a sentence in the Macomb
County Jail and there was probable cause to believe that he had committed the crime in the
instant case. Any error in the writ procedure was harmless beyond a reasonable doubt. Id. at
763.
Defendant also argues that reversal is required because the prosecutor failed to use due
diligence to secure the presence of an endorsed witness. There is no merit to this claim. The trial
court instructed the jury that it could infer that the witness’ testimony would have been
unfavorable to the prosecution. Defendant failed to object to the instruction, see Carter, supra at
215-216, and relied upon it during closing argument. We find no manifest injustice. People v
Torres, 222 Mich App 411, 423; 564 NW2d 149 (1997). Defendant was not denied a fair trial
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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and the trial court properly denied his motion for a mistrial. People v Griffin, 235 Mich App 27,
36; 597 NW2d 176 (1999).
Next, defendant argues that the prosecutor improperly instructed the police to deny
defense counsel’s access to a witness, and that the trial court erred in refusing defense counsel’s
request to interview the witness. Defendant also contends that counsel was ineffective for failing
to seek the interview in a timely fashion. There is no merit to this issue. This is not a case like
In re Bay Prosecutor, 109 Mich App 476, 484; 311 NW2d 399 (1981), where it was clear that
the prosecutor was attempting to obstruct counsel. There is no indication in the record that the
prosecutor instructed the police to deny defense counsel access. Nor did the trial court err in
refusing defense counsel’s request to interview the witness. The trial court has wide discretion in
matters of trial conduct. People v Paquette, 214 Mich App 336, 340; 543 NW2d 342 (1995). In
addition, defendant has not shown any prejudice resulting from counsel’s failure to interview the
witness and any error would have been harmless. Carines, supra at 763.
Defendant argues that he was deprived of a fair trial because of prosecutorial misconduct.
This issue is also without merit. Many of the challenged remarks were not objected to below so
the trial court had no opportunity to cure the alleged errors. This Court’s review of those remarks
is precluded unless a curative instruction would not have eliminated the prejudice or where
failure to consider the issue would result in a miscarriage of justice. People v Stanaway, 446
Mich 643, 687; 521 NW2d 557 (1994). We find no error that could not have been cured and no
miscarriage of justice here.
Finally, defendant contends that the evidence was insufficient to support the jury verdict.
We disagree. This Court views the evidence in a light most favorable to the prosecution to
determine whether a rational trier of fact could have found that the essential elements were
proven beyond a reasonable doubt. People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994).
In this case, defendant told the police that he and the victim were fighting, that he took the
victim’s gun and that the gun went off while his finger was on the trigger. Defendant admitted
that he put the victim into the trunk of a car, took some money from the victim’s pocket and later
sold the gun. The victim died of a close range gunshot to the back of his head. Viewing the
evidence in a light most favorable to the prosecution, a reasonable jury could conclude that
defendant intended to kill or do great bodily harm and that defendant did, in fact, kill the victim
in this case. Defendant does not argue the merits of this issue regarding his kidnapping
conviction and has therefore abandoned that portion of his claim. People v Canter, 197 Mich
App 550, 565; 496 NW2d 336 (1992).
Affirmed.
/s/ Janet T. Neff
/s/ Michael J. Talbot
/s/ Joseph B. Sullivan
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