People v. McCain

¶1(dissenting). I respectfully dissent.

¶2As noted by the majority, this Court will not entertain issues raised for the first time on appeal absent a record that affirmatively shows that a manifest injustice has occurred.

"Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.” *217People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969).

¶3Defense counsel made no objections to the prosecutor’s closing argument in the instant case. Without a doubt, the prosecutor erred by incorporating into his closing argument testimony from the preliminary examination which was not produced at trial. However, this error did not so prejudice the jury that they could not render a fair and impartial verdict in this case.

¶4The testimony in question was not a crucial link in the chain of evidence produced against defendant at trial. The victim had previously testified on the matter at the preliminary examination. The prosecutor clearly intended to elicit the testimony at trial as can be seen by his opening statement that made reference to it.

¶5The other evidence adduced at trial was more than sufficient to convict defendant of the crime charged herein.

¶6A cautionary instruction by the trial judge would have cured any prejudice created by the prosecutor’s closing arguments.1

¶7The remaining issues have been examined and this writer does not believe they warrant discussion nor do they constitute reversible error.

¶8Under such circumstances, I would affirm defendant’s conviction.