People v. Biondo, Docket Nos. 28206

• Decision Date: 07 June 1977
• Docket Number: Docket Nos. 28206,29131
• Citation: 256 N.W.2d 60,76 Mich.App. 155
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Salvatore BIONDO, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 60

256 N.W.2d 60

76 Mich.App. 155

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Salvatore BIONDO, Defendant-Appellant.

Docket Nos. 28206, 29131.

Court of Appeals of Michigan.

June 7, 1977.

Released for Publication July 25, 1977.

Thomas J. McCallum, John L. Ross, Fraser, for defendant-appellant.

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

Before BASHARA, P. J., and QUINN and BEASLEY, JJ.

BASHARA, Presiding Judge.

Defendant Salvatore Biondo was convicted by a jury of breaking and entering of a business establishment with intent to commit a larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. This conviction resulted in a probation violation sentence from an earlier conviction. Defendant appeals from both the breaking and entering and the probation violation convictions.

Defendant's most substantial issue concerns the arguments of the prosecutor at trial. This Court has been increasingly faced with meritorious claims of prosecutorial misconduct contrary to clearly expressed precedent. See People v. LaForte, 75 Mich.App. ---, 256 N.W.2d 44 (1977); People v. Osborne, 75 Mich.App. ---, 256 N.W.2d 45 (1977). We fail to understand why some prosecutors insist upon employing prejudicial lines of argument as a form of rhetorical overkill. We must therefore continue to condemn apparent reckless disregard for the established scope of proper jury argument.

The prosecutor in the present case utilized a line of argument generally termed as "civic duty". He began his closing argument in the following manner:

"Mr. LA BRET: Thank you. Ladies and Gentlemen of the Jury.

"This has not been a long case, but it's an important case not only to Mr. Biondo, whose interests are naturally focused upon what's happening here in this courtroom today, but it is an important case to the citizens of this city; because the businesses and businessmen who do work here within the City of Detroit are the life blood of the city, and businesses pay a business tax which go to support services, such as, police and fire and garbage collection, and what have you.

"And if these businesses, of course, are preyed upon, then they will leave the city, and the city will die."

Apparently unconvinced that he had sufficiently impressed upon the jury the seriousness of the city's crime problems, the prosecutor returned to this area during his rebuttal:

"I indicated to you at the beginning of my closing argument that everybody is entitled, everybody's got rights.

"Of course, all of you individuals, you members of the jury, everybody is entitled; but this city is entitled.

"What do I mean by that? What do I mean by this city is entitled?"

Defendant's counsel then objected to this line of argument. The trial court allowed the prosecutor to continue:

"What do I mean by the city is entitled? The city is 210 years old. This was a great city, and it can be a great city again. Why? Because each of us who live in Detroit and I live here, too have a responsibility and duty to the city.

"Now the complainant Mr. Schwall is a businessman here in town. Being a businessman here in this city, he supplies people in the city. He pays taxes in the city. He belongs to groups in the city.

"And he comes into this courtroom, and he says I accuse Salvatore Biondo of going into my greenhouse and taking my stuff, my goods that I paid for, that I worked hard for; and he's saying to you, ladies and gentlemen, I'm a citizen just like you are, he took my goods, they were in his car, he did all these things; and he's saying to you, as he is entitled to say to you, what are you going to do about it."

Defendant made a motion for mistrial based upon the prosecution argument, which was denied.

The "civic duty" tactic of jury argument has been repeatedly condemned by this Court as prejudicial since it injects into a trial issues unrelated to the particular defendant's case. In People v. Farrar, 36 Mich.App. 294, 298-299, 193 N.W.2d 363 (1971), the Court adopted the language of the ABA Project on Standards for Criminal Justice, The Prosecution Function, Std. 5.8(d), as applicable to this issue:

"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.' "

In People v. Williams, 65 Mich.App. 753, 238 N.W.2d 186 (1975), this Court reversed the conviction after the prosecutor had argued to the jury that they could affect the drug traffic in the city of Detroit by finding the defendant guilty. The Court stated:

"We recognize, too, that jurors share the average citizen's desire to eliminate the narcotics traffic. In such an emotion-laden situation, sensibilities are easily inflamed. Because emotional reaction to social problems should play no role in the evaluation of an individual's guilt or innocence, prosecutors must exercise special care to avoid arousing jurors' emotions concerning such issues.

"In the instant case, by arguing that the jurors had an 'opportunity to effect (sic) the drug traffic in this city', the prosecutor appealed to the jurors' fears and encouraged them to go outside the evidence and decide the case on the...