People v. Williams

445 N.W.2d 170, 179 Mich. App. 15
Michigan Court of Appeals·Decided August 7, 1989·No. Docket 103067·Published·Cited by 2 cases

Opinions

Neff, J.

Following a jury trial, defendant was convicted of first-degree felony murder, MCL 750.316; MSA 28.548. Defendant was sentenced to a mandatory term of life imprisonment. Defendant now appeals as of right and we reverse.

Defendant argues that he was denied a fair trial due to prosecutorial misconduct. During rebuttal closing argument, the prosecutor stated:

I would like to leave you with one thought. A long time ago, some time in Colonial times there was a guy named Edmond [sic] Burke. He was a statesman and a philospher [sic] and he wrote all kinds of stuff. And he wrote something back then that really had nothing to do with the jury system, but it’s very applicable to juries.
What he said is this. All that is necessary for the triumph of evil is for good men to do nothing. All that is necessary for the triumph of evil is for good men to do nothing.
Ladies and gentlemen, I would suggest to you that is very appropriate to what a jury is supposed to do. A jury is supposed to do something. If you do nothing, if you don’t stick with your oath as [18]*18jurors, then evil will triumph in this case because the evidence shows that man is guilty.
Don’t let evil triumph in this case by doing nothing. If you do something, if you apply the evidence as presented to you to the law in this case, evil will not triumph because you will find that the defendant is guilty as he is charged.
And I will ask you, based on the evidence in this case, to retire to the jury room and do exactly that. Find the defendant guilty of first degree felony murder.

This argument was clearly an improper civic duty argument. People v Wise, 134 Mich App 82, 102; 351 NW2d 255 (1984), lv den 422 Mich 852 (1985). Civic duty arguments are generally condemned because they inject issues into the trial that are broader than a defendant’s guilt or innocence of the charges and because they encourage jurors to suspend their own powers of judgment. People v Wright (On Remand), 99 Mich App 801, 809; 298 NW2d 857 (1980), lv den 410 Mich 854 (1980); People v Biondo, 76 Mich App 155, 158; 256 NW2d 60 (1977), lv den 402 Mich 835 (1977).

On appeal, the prosecution claims that its argument at trial was responsive to defense counsel’s closing argument. For this Court to condone an improper argument made by the prosecutor, the argument must be made in response to an equally, or more, improper argument made by defense counsel. Wise, supra, p 103. Our review of defense counsel’s closing argument fails to reveal any impropriety.

The prosecution also argues that defendant did not contemporaneously object to the prosecutor’s argument or request a curative instruction. We note, however, that defense counsel requested a mistrial on the basis of the prosecutor’s improper argument following closing arguments, while coun[19]*19sel and the trial judge were discussing jury instructions.

In People v Swartz, 171 Mich App 364; 429 NW2d 905 (1988), this Court found that an improper civic duty argument by the prosecutor amounted to harmless error. In Swartz, p 373, this Court stated:

[T]n People v Eaton, 114 Mich App 330, 335; 319 NW2d 344 (1982), lv den 417 Mich 929 (1983), this Court held that, where a defendant failed to raise a timely objection and there was overwhelming evidence of defendant’s guilt, it would not conclude that the prosecutor’s improper "civic duty” argument deprived defendant of a fair trial. See also People v Lawless, 136 Mich App 628, 634; 357 NW2d 724 (1984), lv den 422 Mich 881 (1985). Accordingly, we do not find . . . grounds for reversal because defendant failed to timely object, and there was considerable evidence of defendant’s guilt.

In this case, unlike in Swartz, defendant properly preserved this issue for appeal by a mistrial motion following the prosecutor’s closing arguments. Moreover, while the evidence of defendant’s guilt may have been considerable, we do not believe that it was overwhelming.

Defendant’s father, Ralph Williams, testified at trial that he lived in the downstairs portion of the victim’s home. Defendant visited Williams on several occasions and spoke with the victim practically every time he visited his father. Thus, the victim was well acquainted with defendant.

Williams left his home at approximately 7:00 or 8:00 p.m. on September 4, 1986, and did not return home until shortly before noon on September 5, 1986. Williams found the victim on the floor of the home at approximately noon on September 5, 1986.

[20]*20The victim gave the name of one of his attackers to two Detroit police officers while he was in the emergency room of the hospital on September 5, 1986. As a result of the victim’s conversation with the police officers, the officers went to the victim’s home to determine if the person whose name the victim had given to them was there.

Because the victim died before trial, the transcript of his preliminary examination testimony was read to the jury. At the preliminary examination, the victim identified defendant as one of his attackers.

Two inquiries are pertinent as to whether an error is harmless. First, is the error so offensive to the maintenance of a sound judicial process that the error can never be regarded as harmless? Second, if not so basic an error, can this Court declare a belief that the error was harmless beyond a reasonable doubt? People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972); People v Nixten, 160 Mich App 203, 211; 408 NW2d 77 (1987).

The purpose of the first inquiry is to deter prosecutorial and police misconduct, while the purpose of the second inquiry is to safeguard the decisional process. People v Furman, 158 Mich App 302, 317; 404 NW2d 246 (1987), lv den 429 Mich 851 (1987). An error can be intolerably offensive to the judicial system if it was deliberately injected into the proceedings by the prosecution, if it deprived the defendant of a fundamental element of the adversarial process, or if it was particularly persuasive or inflammatory. Furman, supra.

We cannot conclude that the prosecutor’s improper civic duty argument in this case amounted to harmless error. We believe that the argument made by the prosecutor in this case was highly prejudicial and that a new trial is therefore war[21]*21ranted. The rationale of People v Farrar, 36 Mich App 294, 298-300; 193 NW2d 363 (1971), is applicable here. In Farrar, Judge, now Justice, Levin stated:

The prosecutor may not subtly convert the presumption of innocence into a presumption of guilt by appealing to the jurors to perform a civic duty to support the police:
"The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.”
"The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.”
Unless we enforce the rules we encourage their violation and add to the burden of the appellate courts.

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People v. Williams, 445 N.W.2d 170, 179 Mich. App. 15 (Mich. Ct. App. 1989).

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People v. Williams
445 N.W.2d 170 (Michigan Court of Appeals, 1989)