People v. Alexander, Docket No. 26545

• Decision Date: 06 June 1977
• Docket Number: Docket No. 26545
• Citation: 76 Mich.App. 71,255 N.W.2d 774
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest ALEXANDER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 774

255 N.W.2d 774

76 Mich.App. 71

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest ALEXANDER, Defendant-Appellant.

Docket No. 26545.

Court of Appeals of Michigan.

June 6, 1977.

Released for Publication July 21, 1977.

Stuart Hubbell, Traverse City, for defendant-appellant; Charles T. Burke, Livonia, of counsel.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., James L. McCarthy, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and CAVANAGH and BYRNS ^*, JJ.

BYRNS, Judge.

Defendant was convicted of first-degree murder ¹ by a jury and now appeals by right.

The homicide occurred at Hazel Park Race Track, on June 13, 1975. Defendant went there to collect his pregnant wife, who had gone, unaccompanied, to watch the races. He spied her from a distance under the grandstand, where she was watching for the results of the last race, just as the victim, John Sweden, approached her and began talking to her. Defendant approached them, words were exchanged between defendant and Sweden, and the words led to blows. It is unclear who struck the first blow, but from all the testimony it appears that Sweden knocked defendant down two or three times, and that defendant had the worst of the fray. ² At one point, one of Sweden's companions intervened, but it is unclear whether he joined Sweden in beating defendant while he was down, as defendant and his wife testified, or whether he was merely trying to restrain Mrs. Alexander, who, it was undisputed, beat her husband's assailant with her purse.

Sweden's two companions testified that before defendant finally fled from the scene of the fight he turned, shook his finger at Sweden, and shouted, "Be here when I come back", or, "Just give me one minute". This testimony was corroborated by three witnesses unrelated to either the victim or defendant. ³ Defendant and Mrs Alexander denied recalling that defendant uttered such a threat, although defendant conceded on cross-examination that he was angry and "might have".

Defendant and Mrs. Alexander denied that she left the grandstand area with defendant after the fight. Defendant maintained that he left the grandstand area to get the loaded revolver that he kept in the trunk of his car with the intention of using it to protect himself and his wife when he returned to rescue her. Sweden's companions did not testify on this point, but two other witnesses testified that defendant and his wife left the grandstand area together. Defendant's wife testified that she stayed behind when defendant fled, but could not explain how she came to be standing behind defendant at the time of the shooting without having passed Sweden and his companions, who left the grandstand area after the fight and proceeded toward the parking lot.

It is unclear exactly where the shooting occurred, but all the witnesses agreed that it was somewhere in the vicinity of the boulevard separating the grandstand area from the parking lot. As Sweden and his companions were walking toward the parking area, defendant and his wife ran up, defendant shook the gun in Sweden's direction, and said, "Hey, what you gonna do now?" Defendant denied making this statement, but he did not deny shooting Sweden twice in the chest, allegedly acting in self-defense as Sweden advanced toward defendant after defendant had warned him to stop.

According to Sweden's companions, Mrs. Alexander pounded on defendant's back and shouted, "Shoot him, Ernest, shoot him", immediately before defendant fired. Mrs. Alexander denied saying this. She testified that she said, "Look out, Ernest".

Defendant estimated that "maybe a minute" passed between the time he fled from the grandstand area and the time of the shooting. Sweden's two companions estimated the period between defendant's "Be here when I get back" statement and his "Hey, what you gonna do now?" statement at from three to five or four to five minutes. Witness Ophelia Walker testified that she heard gun shots two or three minutes after defendant's threat.

Witness Donald Smith testified that after hearing two shots he saw defendant and his wife walk "nonchalantly" away from Sweden's body, talking as they proceeded toward the parking lot. Defendant handed the gun to his wife, who put it in her purse, and then they separated. Defendant proceeded at a "lope" toward Ten Mile Road while his wife ran to the car. Smith wrote down the license number on a newspaper and related it to a police officer at the scene who broadcast it. Two patrolmen spotted defendant's car on Ten Mile Road and began following it. One of them, Officer Sanders, testified that as they drew up beside defendant's car near the intersection of Tawas and Ten Mile he saw a flicker of movement. Fearing that defendant was about to open fire, the officers dropped back and waited for assistance before stopping defendant's car. Defendant's gun was subsequently recovered near the intersection of Tawas and Ten Mile, and ballistics tests confirmed that it was the murder weapon.

Officer Sanders testified that when he advised defendant that he was under arrest for attempted murder, defendant responded, "I know".

On appeal, defendant's appellate counsel has raised a single claim of error, and defendant, by way of supplemental briefs filed in propria persona, has raised three additional claims of error.

The first claim of error concerns a question posed to defendant by the prosecutor on cross-examination. On direct examination defendant testified that he purchased the gun in Detroit in March, 1975, after being held up, and that he had kept it in his trunk ever since. On cross-examination defendant repeated his testimony that he had kept the gun in his trunk since March, whereupon the prosecutor asked defendant if it would "surprise (him) to know that this particular gun was reported taken in a holdup in Detroit on April 13, 1975".

Defendant now contends that the question was so prejudicial as to warrant reversal, even though defense counsel's prompt objection was sustained, the question went unanswered, and the trial judge cautioned the jury to disregard the question. Defendant claims that the trial judge should have granted defendant's motion for a mistrial. We disagree. This case presents a situation quite unlike that in People v. Brocato, 17 Mich.App. 277, 291, 169 N.W.2d 483, 489 (1969), relied upon by defendant, in which the prosecutor "made every conceivable effort to prevent the defendant from having a fair trial" by repeatedly engaging in blatant acts of misconduct. In the present case, we perceive the prosecutor's question as an attempt to test defendant's memory and credibility, People v. Harris, 56 Mich.App. 517, 530-531, 224 N.W.2d 680 (1974), rather than as an attempt to inject prejudicial and inadmissible matters into the trial. People v. Williams, 57 Mich.App. 521, 226 N.W.2d 547 (1975).

In addition, we believe that the trial judge's action in sustaining defense counsel's objection to the question before it was answered and in promptly cautioning the jury to disregard the question cured any error the prosecutor may have committed. People v. Jack, 61 Mich.App. 638, 639, 233 N.W.2d 120 (1975). Accordingly, denial of defendant's motion for mistrial was proper.

Finally, we note that during his closing argument defense counsel compounded any error the prosecutor may have committed by inaccurately ⁴ characterizing the prosecutor's question. Since the prosecutor's question appears to have been posed in a good faith attempt to impeach defendant's credibility, and since the trial judge promptly corrected any error that may have arisen, defendant should not be heard to complain when the prejudice alleged was aggravated by his own attorney's closing argument. See People v. Clark, 63 Mich.App. 334, 338, 234 N.W.2d 511 (1975); People v. Jelks, 33 Mich.App. 425, 431, 190 N.W.2d 291 (1971).

Defendant raises three claims in his supplemental briefs. His first contention, that the trial judge who presided at defendant's jury trial should have been disqualified because he accepted Mrs. Alexander's guilty plea, is without merit. Consideration of a disqualification claim not raised at the time of trial is precluded when the basis for such disqualification was known before the trial. People v. Dudley, 393 Mich. 762, 223 N.W.2d 297 (1974). We note also that the reasoning of People v. Chesbro, 300 Mich. 720, 723-724, 2 N.W.2d 895 (1942), is applicable to this case. Absent a showing of actual prejudice, bias, or misconduct from the record, a trial judge has the right to hear a case to its conclusion. People v. Irwin, 47 Mich.App. 608, 209 N.W.2d 718 (1973), see People v. Grable, 57 Mich.App. 184, 225 N.W.2d 724 (1974). Defendant's concession that he "does not in any way suggest that the trial judge in this was anything but fair and impartial" is confirmed by our complete review of the transcript of the proceedings below, and accordingly we find no error.

Defendant next contends that reversible error occurred when the prosecutor revealed that Mrs. Alexander had been convicted on her plea of guilty to a reduced charge of manslaughter in connection with this case. This occurred after Mrs. Alexander reiterated on cross-examination her testimony on direct examination that she had merely warned defendant to "look out". The prosecutor questioned Mrs. Alexander closely on this point, asking her if she was absolutely sure that she had not said, "Shoot him, Ernest, shoot him". After Mrs. Alexander denied saying that, and without defense objection, the prosecutor called in rebuttal the court reporter who recorded Mrs. Alexander's guilty plea and impeached Mrs. Alexander's testimony with that of the court reporter, who testified that when asked by the judge whether she had told defendant to shoot Sweden, Mrs. Alexander had answered "yes".

Initially, we note three factors that enter into our decision. First,...