People v. Bass

• Decision Date: 06 March 1979
• Docket Number: Docket No. 77-2460
• Citation: 279 N.W.2d 551,88 Mich.App. 793
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Lorenzo BASS, a/k/a Jerry L. Karriem, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 551

279 N.W.2d 551

88 Mich.App. 793

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Lorenzo BASS, a/k/a Jerry L. Karriem, Defendant-Appellant.

Docket No. 77-2460.

Court of Appeals of Michigan.

March 6, 1979.

Released for Publication June 15, 1979.

Sidney Kraizman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros. Atty., Larry Roberts, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and MAHER and LETTS, ^* JJ.

PER CURIAM.

On January 5, 1977, defendant was found guilty of the offense of unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798, and was sentenced to a term of 10 to 15 years imprisonment. He was then arraigned on a supplemental information charging him as a fourth-time habitual offender. M.C.L. § 769.12; M.S.A. § 28.1084. On April 18, 1977, defendant was convicted of this charge and was resentenced to a term of 20 to 30 years imprisonment. He now appeals as of right, challenging both the unarmed robbery conviction and the habitual offender supplementation.

Testimony at the unarmed robbery trial established that defendant grabbed the purse of the complainant, Lucy Jakubowicz, and pulled it away from her, knocking her to the ground. A bystander to this offense pursued defendant, apprehended him, and turned him over to the police. Defendant subsequently confessed to the crime.

Defendant initially contends that the trial judge erred in limiting defense counsel's voir dire of the jury prior to the unarmed robbery trial. Specifically, he argues that the trial judge improperly refused to permit defense counsel to question a juror about her employment. He further contends that error occurred as a result of the trial judge's refusal to question another juror as to whether she believed that because he was on trial defendant must have committed some crime.

The scope of voir dire examination of jurors is left to the discretion of the trial judge and will not be disturbed absent an abuse of that discretion. People v. Harrell, 398 Mich. 384, 388, 247 N.W.2d 829 (1976). GCR 1963, 510 requires prospective jurors to fill out a questionnaire containing inquiries concerning the person's personal background, including her place of employment. GCR 1963, 510.3(2) permits attorneys to examine the questionnaires for a reasonable time before being called upon to challenge jurors for cause.

In light of the availability of the information sought by defense counsel, we find no error in the trial judge's attempt to expedite matters by limiting voir dire to exclude matters relating to the juror's employment. If defense counsel believed this information was necessary in order to intelligently exercise his challenges to the jury panel, he could have moved for an adjournment to review these questionnaires. See People v. Heard, 31 Mich.App. 439, 442, 188 N.W.2d 24 (1971), Rev'd on other grounds 388 Mich. 182, 200 N.W.2d 73 (1972).

Nor did error occur as a result of the judge's refusal to question a juror as to her belief that defendant must have committed some crime or he wouldn't be on trial. Instead of asking the proffered question, the trial judge instructed the jury on the presumption of innocence and the fact that an arrest is not evidence of guilt. Then, he asked the entire jury if they could abide by these principles. No objection to this manner of questioning was made by defense counsel.

We believe the question asked was sufficient to afford defense counsel information necessary to challenge the prospective jurors. People v. Harrell, supra, 398 Mich. at 393, 247 N.W.2d 829. The failure of the trial judge to ask the question precisely as requested does not constitute error. People v. Jolly, 51 Mich.App. 163, 166, 214 N.W.2d 849 (1974).

People v. Milkovich, 31 Mich.App. 582, 188 N.W.2d 124 (1971), relied on by defendant, is inapplicable to this case. There, the judge ordered the jury to follow his instructions and then asked which of the jurors was unwilling to do so. In the present case, the instruction and question were not stated in such a way as to intimidate jurors from expressing their biases.

Defendant next challenges the propriety of some statements in the prosecutor's closing argument at the unarmed robbery trial. He contends these statements consisted of a "civic duty" argument and that such arguments constitute reversible error even in the absence of an objection.

At the end of his closing argument the prosecutor said:

"Ladies and gentlemen, keep this in mind that this is not just Mrs. Jakubowicz' case. This case is the People of the State of Michigan against Jerry Lorenzo Bass. That is you, that is me, that is everybody in this courtroom; and we have an interest in seeing to it that those people in our community who are infirmed, who like Mrs. Jakubowicz are alone, people who are not strong enough or tough enough to protect themselves from violence on the street. All those people have an interest in seeing that justice is done.

"I ask you, ladies and gentlemen, to return a verdict that is consistent with justice in this case, and that is guilty as charged.

"Thank you."

No objection was made to this line of argument.

In rebuttal the prosecutor clarified his previous argument by stating:

"When I ask you to return a verdict of guilty in this case, I am not asking you to convict Mr. Bass just because an elderly woman was mugged on the street.

"The reason I'm asking you for a verdict of guilty as charged in this case is that all of the evidence indicates that this man and this man alone is responsible for attacking Mrs. Jakubowicz and taking her purse.

"Thank you."

Subsequently the jury was instructed that the comments of the attorney are not evidence and defense counsel stated his general satisfaction with the instructions.

We do not believe the prosecutor's comments constituted reversible error in this case. It is true that this Court has consistently condemned the use of "civic duty" appeals by the prosecutor in closing argument. See People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971); People v. Williams, 65 Mich.App. 753, 238 N.W.2d 186 (1975); People v. Meir, 67 Mich.App. 534, 241 N.W.2d 280 (1976), and People v. Biondo, 76 Mich.App. 155, 256 N.W.2d 60 (1977). It is also true that the prosecutor's initial comment falls within that class of arguments which this Court has condemned.

However, in the absence of an objection, this Court will reverse a conviction based upon a prosecutor's improper closing argument only when the prejudice could not have been rectified by a curative instruction. People v. Blassingame, 59 Mich.App. 327, 335, 229 N.W.2d 438 (1975). In the present case the prejudice created by the prosecutor's initial comments was substantially reduced by his subsequent clarification. It was further reduced by the trial judge's instruction regarding the weight to be given the argument of attorneys. In light of these circumstances, we conclude that had defense counsel objected to the prosecutor's comments, a curative instruction cautioning the jury to disregard the comments would have been sufficient to cure any remaining prejudice.

Defendant next contends that the trial judge erred in refusing his request for a new court-appointed attorney for the habitual offender trial. He further contends that defendant was not competent to proceed Pro se at this proceeding.

Prior to the unarmed robbery trial defendant's first two court-appointed attorneys withdrew from the case. Monsey Wilson was then appointed to represent defendant and did so through his initial sentencing for the unarmed robbery. After the robbery trial defendant wrote a letter to the trial judge in which he expressed his dissatisfaction with his attorney's representation during that trial. He indicated that there was a disagreement between them as to how to handle the defense at the unarmed robbery trial. ¹

The trial judge treated this letter as a motion for a new trial. On April 18, 1977, the date scheduled for the habitual offender proceeding, he denied the motion. Defendant then vehemently expressed his dissatisfaction with attorney Wilson and requested that a new attorney be appointed. ² Trial counsel also made a motion to withdraw based upon defendant's desire for a new attorney. In response, the trial judge gave the defendant a choice between representing himself and continuing to be represented by Mr. Wilson. At this point defendant commenced a protracted and usually incoherent argument with the trial judge. ³ Ultimately, defendant agreed to represent himself and defense counsel was excused. Defendant then sought an adjournment so that he could prepare for the trial. The trial judge denied this request and proceeded with the habitual offender trial, where defendant was found guilty as charged.

The general rule regarding the substitution of attorneys is stated in People v. Williams, 386 Mich. 565, 574, 194 N.W.2d 337, 341 (1972):

" 'We believe the basic right to representation by counsel, made so clear by Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 805, (93 A.L.R.2d 733), encompasses the right to the appointment of different counsel when a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic. When this occurs, the...