People v. Ronald Green

254 N.W.2d 788, 74 Mich. App. 601, 1977 Mich. App. LEXIS 763

• Court: Michigan Court of Appeals
• Decided: March 31, 1977
• Docket: Docket 25662
• Status: Published

Opinions

D. C. Riley, J.

In challenging his jury-based conviction on a charge of first-degree murder, defendant Ronald Demetrius Green raises eight assignments of error. Of these, one warrants discussion and reversal, namely, the conduct of the trial prosecutor during cross-examination of defendant and during closing argument.

For approximately three days, the jury deliberated the guilt vel non of defendant. Following their requests for the rereading of three witnesses’ testimony and for the redefinition of (1) premeditation, (2) burden of proof vis á vis the respective roles of prosecutor and defense counsel, and (3) the possible verdicts, the jury convicted defendant of the crime charged.

Although one witness definitely placed defendant at the scene of the slaying, the bulk of the people’s case hinged upon circumstantial evidence.¹

Given the lengthy jury deliberations and the relative dearth of direct evidence implicating defendant, we are unable to say that the frequent instances of prosecutorial misconduct which occurred below were harmless beyond a reasonable doubt. As Judge McGregor, writing for himself and Judge Holbrook in People v Christensen, 64 Mich App 23, 33; 235 NW2d 50 (1975), observed:

"In order to hold that the error in this case does not require reversal, however, we must also be able to say that it was 'harmless beyond a reasonable doubt’. If it is reasonably possible that in a trial free of the errors complained of, even one juror might have voted to acquit the defendant, then the error was not harmless, and the defendant must be retried.”

We hold that the prosecutor’s behavior exceeded proper bounds in, at least, the following particulars:

1. In the face of defendant’s repeated denials, and over defense counsel’s objection which was sustained, the prosecutor continually insisted that defendant had participated with two individuals (Messrs. Hill and Shannon) in killing Archie Walker. The prosecutor made these accusations even though no evidence implicating defendant with these men had been presented and even though the prosecutor doubted his own ability to supply the requisite nexus. Furthermore, despite the trial judge’s ruling that the prosecutor cease questioning defendant regarding Hill and Shannon, the prosecutor nevertheless returned to the prohibited topic in summation:

"Where are the two men? Where are those men that could come in here and say, 'We wanted him to rent the truck for us.’ They are dead. He told us they were dead. What proof do we have of that? Mr. Green simply says they are dead. Were they ever real people? Can you believe a man who will under the table get a driver’s license, a bogus driver’s license, who will use another man’s name? Were there ever two such individuals? I submit that I have given some names during this trial, a man named Shannon and a man named Hill that are as live as can be. Mr. Green may very well have made up a couple of other names because those men cannot speak here.” (Emphasis added.)

2. In an ostensive attempt to test defendant’s credibility, the prosecutor elicited from defendant admissions regarding defendant’s failure to maintain steady employment, defendant’s failure to register for the draft and defendant’s failure to file income tax returns over a period of years. In addition, the prosecutor repeatedly emphasized defendant’s cohabitation with a woman not his wife (although the prosecutor later indicated he was not condemning this relationship as illicit).

It must be remembered, however, that defendant was not on trial for poverty, or for violation of selective service, income tax or sexual conduct laws. Nevertheless, the prosecutor saw fit to inject tangential issues into the trial which could only divert the jury’s attention and possibly persuade them of defendant’s bad character. People v Johnson, 393 Mich 488; 227 NW2d 523 (1975). The prosecutor’s appellate attempt to distinguish the instant case from Johnson will not wash. Once we accept the notion that impoverished persons have a greater motive to kill for hire than the well-to-do we effectively establish a two-tiered standard of justice and demolish pro tanto the presumption of innocence. Imaginative minds can easily conjure reasons why an impecunious defendant might commit any number of crimes in return for monetary gain; but that is not to say that the law should accept these proffered reasons or that the wealthy should escape the suspicion of criminality that plaintiff urges we apply to the poor.²

If the prosecutor truly intended to shake defendant’s story, other less prejudicial means were available. Defendant testified that one of the men with whom he had agreed to vend meat had died of a kidney ailment, and that the other had died from a bullet shot into the home of defendant’s mother. Defendant further testified that the incident had been reported to the authorities and that defendant himself had been shot in the arm at the same time. Surely, these allegations were susceptible of verification. At the very least, the prosecutor could have asked defendant to display the scar from the bullet wound. Having opted instead to employ inflammatory methods of testing credibility, the prosecutor cannot now be heard to complain.

3. The prosecutor, at closing argument, asked the jury "on behalf of the People, Officer Pack and myself’ to return a verdict of guilty as charged. In essence, this solicitation is nothing more than a thinly veiled statement that the prosecutor vouched for the veracity of witness Pack and also buttressed this endorsement with the weight of his office. See People v Erb, 48 Mich App 622; 211 NW2d 51 (1973), People v Warren, 65 Mich App 197; 237 NW2d 247 (1975), and People v Hunt, 68 Mich App 145; 242 NW2d 45 (1976).

Taken in the aggregate, the foregoing illustrations, combined with the many lesser transgressions too numerous to cite, prevent this Court from indulging the prospect that the errors were harmless beyond reasonable doubt. That defendant did not enter adequate objection is of no consequence, People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970), Erb, supra, Hunt, supra, for this case was rife with incurable prosecutorial error and, accordingly, the damage was irremediable.

Reversed and remanded.

Allen, P. J., concurred.

1 Evidence adduced at trial revealed that three men dressed in coveralls approached the decedent, Archie Walker, in the parking structure of Metropolitan Airport. The decedent resisted their efforts to seize him, so instead they gunned him down. A van and an automobile, both containing evidence relating to the killing, were found at the scene but defendant was not. Defendant admitted renting the van for two persons who, he claimed, had agreed to use the vehicle to sell meat in various neighborhoods. In return, they were to have shared their profits from the meat vending with him. According to defendant, the two men later died—one from an illness and the other from a bullet wound. Repeatedly, however, defendant denied any knowledge of or involvement in the murder of Walker.

The prosecution’s theory of the case is amply set out in the dissenting opinion.

2 The dissent suggests that defendant’s failure to object frees this Court of the duty to decide whether questions relating to defendant’s poverty necessarily deprived the accused of a fair trial. As the transcript clearly indicates, however, defendant did object, and pointedly so:

"Q. [MR. EASTON, Assistant Prosecuting Attorney] Who was supporting you? Who was providing your clothes and your meals and your ability to live?

"MR. RICARD: [Defense Attorney] Your honor, excuse me, I am going to object. I know it is Cross Examination but I wonder if we are not starting to get a little bit afield here and this question is immaterial and irrelevant as to what we are involved in here.

"THE COURT: I will overrule. I will permit it. There is a possible materiality. It is a fair question on Cross Examination.”