People v. Christensen

235 N.W.2d 50, 64 Mich. App. 23, 1975 Mich. App. LEXIS 1229
CourtMichigan Court of Appeals
DecidedAugust 27, 1975
DocketDocket 21566
StatusPublished
Cited by61 cases

This text of 235 N.W.2d 50 (People v. Christensen) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Christensen, 235 N.W.2d 50, 64 Mich. App. 23, 1975 Mich. App. LEXIS 1229 (Mich. Ct. App. 1975).

Opinions

McGregor, P. J.

The defendant was convicted by a jury of first-degree murder, MCLA 750.316; MSA 28.548, and was sentenced to life imprisonment. He now appeals as of right, raising eight issues for our consideration.

I.

Three of the issues raised by the defendant relate to the conduct and remarks of the prosecutor during the trial and during his closing argument. The defendant contends that these alleged [26]*26instances of prosecutorial misconduct were so prejudicial as to deny him his right to a fair trial. Because similar issues have been raised in each instance, we will consider them together in our analysis.

A.

The first instance of alleged misconduct began during the direct examination of one Judith Cowles in regard to people’s exhibit number 5, a notebook of poetry which the defendant had written. This notebook contained the entry: E. O. A. N. O. 11-24-73. The following colloquy occurred between the prosecutor and this witness:

”Q. What does E. O. A. N. O. November 24th, 1973 mean to you?
"A. What was that?
"Q. E. O. A. N. O. November 24, ’73. Do you recognize that?
’A. No.
"Q. Did you ever discuss that entry with anyone?
'A. No. I never heard of it.
”Q. It carries no meaning to you?
’A. No.
”Q. Christensen never told you what it meant?
’A. No. * * *
"Q. I ask you again to look at that entry on that page that says those symbols.
"A. Well, it doesn’t mean anything to me.
"Q. You never discussed that with the defendant?
'A. No.
"Q. You never discussed it to mean, maybe: End of another narcotics officer?
"Mr. Edsall: I object, your Honor. She’s answered his question.
”A. I didn’t know what it meant.
[27]*27"The Court: Just a minute, what did you say then?
"A. I said I have no idea what it would mean. I never saw it before.”

Later, upon examination of one Dr. Rosenzweig, the subject was again broached:

”Q. You didn’t testify to this, and I wondered. We introduced an exhibit here in the course of the trial, and it’s purported to be a notebook the defendant carried himself. Did you have benefit of examining that?
’A. I never saw it. I heard he’d written poetry, but I never saw any of it.
"Q. Now, would you have any opinion with his ego-bolstering facets and other things taken into consideration as to whether or not he might make a written entry of things that bolstered his ego?
’A. Oh yes, he might very well.
”Q. So, one place in this book that’s been offered at this time is an entry on the page which bears just a few symbols, and they are specifically E-O-A-N-O, 11/24/73, and the date is charged to have been the date of the offense in this case. And I had the temerity to suggest that it might mean—
"Mr. Edsall: Objection, your Honor.
’’Court: I don’t think what temerity you have — it’s merely a suggestion that you made as to what that might mean. You can ask this witness if he knows what it means.
”Mr. Carr: I’ll strike the word temerity then. I suggested that—
’’Court: I don’t think you can make the suggestion as to what you think it means.
”Mr. Carr: We’re examining an expert witness here.
’’Court: That’s right.
”Mr. Carr: And the term has — the jury won’t learn anything that hasn’t been already heard because they’ve heard—
’’Court: Well, they’ll hear it again.”

[28]*28Finally, during summation, the prosecutor stated:

"About this book, ladies and gentlemen, exhibit 5. I invite you to look after the typewritten entries in there, a page or two later, for some symbols, namely, EOANO 11-24-73, and I invite you to look through that entire book and see if you find any other place where a date is entered in that book. I invite you to do that, ladies and gentlemen. I challenge you to do that, and I suggest that you will not find a date anywhere else in this book save the date, November 24th, ’73, EOANO — what does it mean? — I leave it to you.”

The suggestion by the prosecutor to Judith Cowles was clearly improper as there was no evidence on the record which would have supported the prosecutor’s interpretation of the ambiguous initials in the defendant’s notebook. The prosecutor then compounded his error by bringing the subject of the meaning of the initials before the jury twice again, and additionally, by writing the initials on the blackboard in the courtroom. The error evident in the foregoing is two-fold. First, the jury may believe that the interpretation comes from facts of which the prosecutor has knowledge but which he cannot divulge, and second, the jury might afford undue weight to this interpretation from its natural respect for the office of the prosecutor.

In Berger v United States, 295 US 78, 88; 55 S Ct 629; 79 L Ed 1314 (1935), the Supreme Court stated:

"It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
"It is fair to say that the average jury, in a greater or [29]*29lesser degree, has confidence that these obligations which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” (Emphasis added.)

See People v Askar, 8 Mich App 95; 153 NW2d 888 (1967), People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969).

Additionally, the prosecutor’s interpretation of the initials could be construed as testimonial questioning and, therefore, improper. See Brocato, supra, People v Besonen, 4 Mich App 131; 144 NW2d 653 (1966).

B.

The second instance of alleged prosecutorial misconduct occurred during the prosecutor’s cross-examination of one Mr. Kirk, who was the Dean of Students at Macomb Community College, where the defendant was enrolled. The cross-examination of Mr. Kirk explored the drug use at a noncollege facility and other specific acts which defendant was reported by other witnesses to have performed.

Although Mr.

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Bluebook (online)
235 N.W.2d 50, 64 Mich. App. 23, 1975 Mich. App. LEXIS 1229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-christensen-michctapp-1975.