People v. Cross
| Decision Date | 18 October 1993 |
| Docket Number | Docket No. 138231 |
| Citation | 508 N.W.2d 144,202 Mich.App. 138 |
| Parties | PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Vincent Lee CROSS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., James J. Gregart, Pros. Atty., and Michael H. Dzialowski, Asst. Pros. Atty., for the People.
State Appellate Defender by Richard B. Ginsberg, for defendant on appeal.
Before MICHAEL J. KELLY, P.J., and WEAVER and SHELTON, * JJ.
Following a jury trial, defendant was convicted of possession of less than twenty-five grams of cocaine, M.C.L. § 333.7403(2)(a)(v); M.S.A. § 14.15(7403)(2)(a)(v), and attempted resisting and obstructing a police officer, M.C.L. § 750.479; M.S.A. § 28.747. He then pleaded guilty of being an habitual offender, second offense, M.C.L. § 769.10; M.S.A. § 28.1082. Defendant was sentenced to concurrent prison terms of two to six years for the possession conviction and six months for the obstruction conviction. Defendant appeals as of right. We affirm.
On the afternoon of September 5, 1990, defendant was standing with four or five other men in front of a barber shop on East Main Street in Kalamazoo. When police officers approached the group, defendant walked away and then began to run. He was followed by two police officers. Defendant ran through a number of yards. As defendant ran through the backyard at 546 Phelps Street, Officer Jay Boehme saw him bend down and make a motion like he was placing something on the ground. Officer Boehme arrived in the yard about a minute later, and saw some money and a rock of cocaine on the ground. A six-year-old girl in the yard said, "That man put that there." When the officer asked her whether it was a man wearing a blue Pistons T-shirt, which he had seen defendant wearing, she said, "Yes." Defendant fled into the basement of his grandmother's home. The officers followed him into the basement, handcuffed him, and placed him in a police car. Officer Kirk Spence testified that defendant struggled with him as he attempted to handcuff defendant.
Defendant contends Officer Boehme's testimony regarding what the little girl told him was inadmissible hearsay. Defendant also argues that the court's failure to compel the prosecutor to call the little girl to testify denied defendant a fair trial. Before the trial, defendant moved to preclude the prosecution from presenting the child's extrajudicial statements. In the alternative, defendant asked the court to require the prosecution to call the child as a witness. The court denied both requests.
Defendant first argues the statements were inadmissible hearsay. At trial Officer Boehme testified that while pursuing the defendant, he saw money and a rock of cocaine lying on the ground. A little girl in the yard told him "[t]hat man put that there." The officer then verified with the child the color shirt defendant was wearing. The time that elapsed between the officer seeing defendant bend down in the grass and the officer speaking to the six-year-old girl was less than one minute. Further, the initial statement was unsolicited.
MRE 803(1) states:
The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
Defendant argues the statements do not fall within the present sense impression exception because of the time lapse between the event and the making of the statements. Our Supreme Court has ruled that a four-minute interval between an event and a statement was "immediately after" the event for purposes of the present sense impression exception. Johnson v. White, 430 Mich. 47, 420 N.W.2d 87 (1988). Here, the interval was less than a minute, and clearly falls within the exception.
Defendant also argues the child should have been sworn in as a witness so that defendant could have had the benefit of cross-examination. The child was available at trial; defendant had the opportunity to call the child as a witness and chose not to do so. Defendant cannot now claim that the lost opportunity constitutes a denial of due process. Dresselhouse v. Chrysler Corp, 177 Mich.App. 470, 442 N.W.2d 705 (1989); People v. Roberson, 167 Mich.App. 501, 423 N.W.2d 245 (1988).
Defendant next asserts that the cumulative effect of four instances of alleged misconduct by the prosecutor denied him a fair trial and due process of law.
Defendant first claims the prosecutor made a false assertion of fact during closing argument, that the child declarant could not be called as a witness at trial. Although not called to testify, the child was available, not ruled incompetent to testify, and named on the prosecutor's witness list. During closing argument, defendant's counsel asserted that the child was the only eyewitness and attacked the prosecution's failure to call the child as a witness. The prosecutor, in closing, responded as follows:
A little 6-year old girl comes by, backyard [sic], sees someone go through, put something down. The reason you were allowed to hear what she had to say at the moment that she saw the officer was because she said it right then. The officer was in a position to observe much of what she saw too. Well, she's just a little tiny girl. She's even younger than Jason was. She's not someone that we can bring into a Courtroom.
We agree that the prosecutor intentionally misrepresented a material fact, because there is nothing in the record to support the idea that the young girl could not have been called to testify. However, defendant did not object to the improper remark or seek a curative instruction. The goal of a defense objection to improper remarks by the prosecutor is a curative instruction. People v. Fuqua, 146 Mich.App. 250, 254, 379 N.W.2d 442 (1985). A miscarriage of justice will not be found if the prejudicial effect of the prosecutor's comments could have been cured by a timely instruction. People v. Gonzalez, 178 Mich.App. 526, 444 N.W.2d 228 (1989). Thus, if defense counsel fails to object, review is foreclosed unless the prejudicial effect of the remark was so great that it could not have been cured by an appropriate instruction. People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977), rev'd on other grounds 414 Mich. 877, 322 N.W.2d 714 (1982). In the instant case, the prejudicial effect of the improper remark could have been cured by an appropriate instruction. The girl's statement was admissible under the present sense impression exception to the hearsay rule (see issue I). The court could have instructed the jury that it was possible to call the child to testify at trial, but not necessary.
Defendant next argues that in cross-examining defendant the prosecution, over defense counsel's objection, repeatedly elicited testimony establishing that defendant had frequented an area known for cocaine trafficking and improperly attempted to establish guilt by association.
Officer Boehme, a member of the police department's Tactical Response Unit, testified that he first observed defendant in the 1600 block of East Main Street, an area "where narcotics are bought, sold and used on a regular basis." The prosecutor elicited testimony from two other Tactical Response Unit officers who were on duty with Officer Boehme in the area on September 5, 1990, who attested that this area was known for narcotics trafficking. Then, over defense counsel's objection, the prosecutor cross-examined defendant with repeated questions concerning whether defendant knew the street names of his companions who had been congregating in front of the barber shop, whether defendant knew that the area was known for selling crack cocaine, whether defendant had a street name, and whether he had seen crack cocaine before. The prosecutor's questioning was in response to defendant's testimony on direct examination that he was in the 1600 block of East Main Street to buy some juice and play basketball with another individual in the group. It was also in response to defendant's testimony that he had never used or sold drugs. A defendant's false or inconsistent testimony may be impeached. SeeMichigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). We conclude that the prosecution's cross-examination of defendant's testimony, when reviewed in the context of the trial, did not constitute misconduct so as to deprive defendant of a fair trial. Duncan, supra.
Defendant also argues that the prosecutor improperly implied that the child witness, who did not testify, had identified defendant at trial. Specifically, defendant argues that during cross-examination of defendant, the prosecutor implied that the child could identify defendant by asking the following question: "This small child, this little girl that approached Officer Boehme and said that she saw you place that piece of crack and the money on the ground, you were a figment of her imagination?" Defendant failed to object to this question, and any error could have been easily cured by a timely instruction; therefore, appellate review is precluded. Duncan, supra.
Defendant claims the prosecutor improperly implied that the jury had a duty to convict defendant. However, review of the complained-of remark persuades us that it does not rise to the level of urging the jurors to convict the defendant as part of their civic duty. People v. Swartz, 171 Mich.App. 364, 429 N.W.2d 905 (1988).
Finally, defendant argues that the cumulative effect of all four instances of alleged misconduct by the prosecutor was so great that it denied defendant a fair trial and due process of law. Review of the record convinces us this argument has no merit.
Defendant asserts the court...
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