People v. Clemons

Per Curiam.

Defendant Kenneth Clemons was arrested for the theft of complainant’s 1965 Plymouth automobile and, in connection therewith, was jury convicted of receiving and concealing stolen property over $100, MCL 750.535; MSA 28.803. Defendant was sentenced to 3 to 5 years imprisonment, appeals as of right, and raises five issues which we address in turn.

Defendant first maintains that the lower court reversibly erred in questioning defendant’s brother as to whether he would consider lying to save the defendant. The judge’s inquiries were met by defense counsel’s motion for mistrial, after which the court admitted error and subsequently gave two separate curative instructions to the jury.

A trial court may permissibly question a witness when it seeks to resolve an ambiguity in testimony or bring forth additional relevant information, People v Karmey, 86 Mich App 626, 636; 273 NW2d 503 (1978), People v John Moore, 78 Mich App 150, 155; 259 NW2d 403 (1977), lv den 402 *72Mich 950t (1978); however, in doing so it may not prejudice the rights of the defendant, People v Gray, 57 Mich App 289, 294; 225 NW2d 733 (1975), and if the questions are such as to indicate that the judge favors one side or another, he has invaded the province of the jury and committed reversible error. People v Gray, supra. Nevertheless, in certain circumstances, a proper cautionary instruction may serve to alleviate any prejudice to the defendant. People v Gray, supra, at 295, People v Withrow, 26 Mich App 679, 685-686; 182 NW2d 775 (1970), lv den 384 Mich 795 (1971).

Applying these principles to our review of the transcript, we conclude that the trial judge’s line of questioning, rather than clarifying an ambiguity or eliciting relevant information, conveyed to the jury the court’s disbelief of the testimony of the alibi witness. At the same time, however, we are convinced that the cautionary instructions, agreed to by defense counsel, as an appropriate remedy for curing the error, were sufficient to eradicáte the prejudicial impact of the court’s examination. The judge informed the jury that he was plainly mistaken in questioning the witness in such a manner. His remarks clearly delineated the roles of the court, trial counsel and jury, and warned the jury to disregard any questions posited by him, and the answers thereto. The jurors were further told that the court had no opinion as to defendant’s guilt, and that they should draw no such inference. As a final safeguard, the jury was polled by the trial judge and unanimously indicated that it could strike the question and answer from their minds. Under these circumstances we decline to reverse. In addition, any error, in view of the overwhelming evidence of guilt presented against defendant, would be harmless beyond a reasonable *73doubt. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972), People v Heard, 58 Mich App 312, 316; 227 NW2d 331 (1975), lv den 400 Mich 812 (1977).

Next, defendant argues that the prosecutor’s closing arguments unfairly denied him a fair trial. Defense counsel did not object to any of the remarks, nor request a curative instruction. Therefore, any error remains preserved for appeal only if it resulted in manifest injustice. MCL 769.26; MSA 28.1096, People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977), People v William Clark, 68 Mich App 48, 51-52; 241 NW2d 756 (1976). We do not find that standard met in the case at bar. The arguments of the prosecutor were related to the evidence of the case and did not amount to an expression of personal opinion as to guilt. See People v Page, 63 Mich App 177, 179; 234 NW2d 440 (1975). Further, the prosecutor’s comments on the failure of defendant to produce more alibi witnesses, in view of the factual circumstances surrounding that defense, were within the boundaries of permissible observation. People v Shannon, 88 Mich App 138, 145; 276 NW2d 546 (1979), People v Ford, 59 Mich App 35, 39; 228 NW2d 533 (1975), People v Hooper, 50 Mich App 186, 196-197; 212 NW2d 786 (1973), lv den 391 Mich 808 (1974).

Defendant also raised the possibility of instructional error by the court’s failure to include in its charge to the jury paragraph four of Criminal Jury Instruction 7:2:01, which states that, in the case of an alibi defense, "[i]f you have a reasonable doubt whether the defendant was present at the time and place of the crime charged, then you must find him not guilty”. Again, no exception was proffered as required to save the issue for appellate review, GCR 1963, 516.2, People v Haney, 86 *74Mich App 311, 318; 272 NW2d 640 (1978), People v Sherman Hall, 77 Mich App 456, 462; 258 NW2d 517 (1977), and the record fails to support a finding of manifest injustice. Although we find error, People v John Johnson, 58 Mich App 60; 227 NW2d 228 (1975), People v William Johnson, 54 Mich App 678; 221 NW2d 452 (1974), People v Erb, 48 Mich App 622; 211 NW2d 51 (1973), see also People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978) (D. C. Riley, J., dissenting/concurring), we nevertheless conclude that it was harmless.1 As previously noted, the evidence against defendant was considerable.2

The penultimate issue offered for review questions whether a defendant has a right to be sentenced by the same judge who conducted his trial. Michigan case law uniformly rejects this contention, holding that a defendant has no constitutional right, nor one provided by statute or court rule, to demand that the trial judge preside at his sentencing. People v McKinley, 5 Mich App 230, 235-237; 146 NW2d 142 (1966), lv den 378 Mich 750 (1967), People v Blair, 11 Mich App 649, 651; 162 NW2d 112 (1968). Cf., People v Collins, 25 Mich App 609, 613; 181 NW2d 601 (1970). In addition, both People v McKinley, supra, at 237 and People v Blair, supra, at 651, held that such a right, if existing at all, would be personal to defendant, and subject to waiver by failure to object at the time of sentencing. Here, defendant’s *75failure to object relinquished any predication of error.

Lastly, defendant alleges that insufficient evidence was produced to establish the value of the stolen automobile, and that the court erred in instructing the jury regarding said value. We disagree. At trial, complainant testified that he had bought the car for $950, had installed a new motor, and would not accept less than $250 for it, which figure also represented his estimate of the vehicle’s worth on the day it was stolen. Furthermore, he stated that the auto was in good running condition (also evidenced by defendant’s capture after a high speed chase) and that the body had not rusted out. The police testified that it was still running upon its return to the owner.

An owner of personal property is qualified to testify regarding the value of such property, Kavanagh v St Paul Fire & Marine Ins Co, 244 Mich 391, 394; 221 NW 119 (1928), Printz v People, 42 Mich 144; 3 NW 306 (1879), Duma v Janni, 26 Mich App 445, 452; 182 NW2d 596 (1970), provided it does not relate to sentimental or personal value. People v Tillman, 59 Mich App 768, 771-772; 229 NW2d 922 (1975). Complainant’s testimony in the present case was circumstantial evidence of the automobile’s value, and as such was sufficient to form a jury question. As there was no objection or request for instruction, defendant’s claim that the court erroneously charged the jury regarding the market value of the property was not properly preserved for review. GCR 1963, 516.2, People v Haney, supra.

Affirmed.

The dissent in People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978), is distinguishable where, in view of the testimony presented, the unobjected-to error could not be considered harmless beyond a reasonable doubt.

We also note that the strength of defendant’s alibi was questionable. Witnesses testified to his presence at a barbecue held at his mother’s house until about 6 p.m. on the day in question, at which time he left the premises. Defendant was observed driving the stolen vehicle shortly before 7 p.m.