People v. Christensen, Docket No. 21566

• Decision Date: 27 August 1975
• Docket Number: Docket No. 21566
• Citation: 235 N.W.2d 50,64 Mich.App. 23
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy L. CHRISTENSEN, Defendant-Appellant. 64 Mich.App. 23, 235 N.W.2d 50
• Court: Court of Appeal of Michigan — District of US

Page 50

235 N.W.2d 50

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy L. CHRISTENSEN, Defendant-Appellant.

Docket No. 21566.

64 Mich.App. 23, 235 N.W.2d 50

Court of Appeals of Michigan.

Aug. 27, 1975.

Released for Publication Nov. 12, 1975.

[64 MICHAPP 25] Robert D. Edsall, Greenville, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Duane A. Carr, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

McGREGOR, Presiding Judge.

The defendant was convicted by a jury of first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, and was sentenced to life imprisonment. He now appeals as of right, raising eight issues for our consideration.

I.

Three of the issues raised by the defendant relate to the conduct and remarks of the prosecutor during the trial and during his closing argument. The defendant contends that these alleged [64 MICHAPP 26] instances of prosecutorial misconduct were so prejudicial as to deny him his right to a fair trial. Because similar issues have been raised in each instance, we will consider them together in our analysis.

A.

The first instance of alleged misconduct began during the direct examination of one Judith Cowles in regard to people's exhibit number 5, a notebook of poetry which the defendant had written. This notebook contained the entry: E.O.A.N.O. 11--24--73. The following colloquy occurred between the prosecutor and this witness.

'Q. What does E.O.A.N.O. November 24th, 1973 mean to you?

'A. What was that?

'Q. E.O.A.N.O. November 24, '73. Do you recognize that?

'A. No.

'Q. Did you ever discuss that entry with anyone?

'A. No. I never heard of it.

'Q. It carries no meaning to you?

'A. No.

'Q. Christensen never told you what it meant?

'A. No. * * *

'Q. I ask you again to look at that entry on that page that says those symbols.

'A. Well, it doesn't mean anything to me.

'Q. You never discussed that with the defendant?

'A. No.

'Q. You never discussed it to mean, maybe: End of another narcotics officer?

'Mr. Edsall: I object, Your Honor. She's answered his question.

'A. I didn't know what it meant.

[64 MICHAPP 27] 'The Court: Just a minute, what did you say then?

'A. I said I have no idea what it would mean. I never saw it before.'

Later, upon examination of one Dr. Rosenzweig, the subject was again broached:

'Q. You didn't testify to this, and I wondered. We introduced an exhibit here in the course of the trial, and it's purported to be a notebook the defendant carried himself. Did you have benefit of examining that?

'A. I never saw it. I heard he'd written poetry, but I never saw any of it.

'Q. Now, would you have any opinion with his ego-bolstering facets and other things taken into consideration as to whether or not he might make a written entry of things that bolstered his ego?

'A. Oh yes, he might very well.

'Q. So, one place in this book that's been offered at this time is an entry on the page which bears just a few symbols, and they are specifically E--O--A--N--O, 11/24/73, and the date is charged to have been the date of the offense in this case. And I had the temerity to suggest that it might mean--

'Mr. Edsall: Objection, Your Honor.

'Court: I don't think what temerity you have--it's merely a suggestion that you made as to what that might mean. You can ask this witness if he knows what it means.

'Mr. Carr: I'll strike the word temerity then. I suggested that--

'Court: I don't think you can make the suggestion as to what you think it means.

'Mr. Carr: We're examining an expert witness here.

'Court: That's right.

'Mr. Carr: And the term has--the jury won't learn anything that hasn't been already heard because they've heard--

'Court: Well, they'll hear it again.'

[64 MICHAPP 28] Finally, during summation, the prosecutor stated:

'About this book, ladies and gentlemen, exhibit 5. I invite you to look after the typewritten entries in there, a page or two later, for some symbols, namely, EOANO 11--24--73, and I invite you to look through that entire book and see if you find any other place where a date is entered in that book. I invite you to do that, ladies and gentlemen. I challenge you to do that, and I suggest that you will not find a date anywhere else in this book save the date, November 24th, '73, EOANO--what does it mean?--I leave it to you.'

The suggestion by the prosecutor to Judith Cowles was clearly improper as there was no evidence on the record which would have supported the prosecutor's interpretation of the ambiguous initials in the defendant's notebook. The prosecutor then compounded his error by bringing the subject of the meaning of the initials before the jury twice again, and additionally, by writing the initials on the blackboard in the courtroom. The error evident in the foregoing is two-fold. First, the jury may believe that the interpretation comes from facts of which the prosecutor has knowledge but which he cannot divulge, and second, the jury might afford undue weight to this interpretation from its natural respect for the office of the prosecutor.

In Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), the Supreme Court stated:

'It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

'It is fair to say that the average jury, in a greater or [64 MICHAPP 29] lesser degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.' (Emphasis added.)

See People v. Askar, 8 Mich.App. 95, 153 N.W.2d 888 (1967), People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969).

Additionally, the prosecutor's interpretation of the initials could be construed as testimonial questioning and, therefore, improper. See Brocato, supra, People v. Besonen, 4 Mich.App. 131, 144 N.W.2d 653 (1966).

B.

The second instance of alleged prosecutorial misconduct occurred during the prosecutor's cross-examination of one Mr. Kirk, who was the Dean of Students at Macomb Community College, where the defendant was enrolled. The cross-examination of Mr Kirk explored the drug use at a noncollege facility and other specific acts which defendant was reported by other witnesses to have performed.

Although Mr. Kirk had no knowledge of these matters, the effect of the cross-examination was to bring these acts of the defendant to the jury's attention for a second time. However, we do not believe that this was error under the circumstances. The direct examination of Mr. Kirk had left the impression with the jury that the defendant was not a problem student at the college and had been doing passing work there. The prosecutor's cross-examination showed that Mr. Kirk had [64 MICHAPP 30] little or no knowledge of the defendant's private activities and, to this extent, the cross-examination was proper impeachment evidence. Further, no objection was made to this line of questioning.

C.

The third instance of alleged misconduct occurred during the cross-examination of defense witness Craig Asiala, after this witness had stated that he was acquainted with a couple of drug pushers at Macomb Community College and that, if defendant had been selling drugs, he would have known about it.

The cross-examination went as follows:

'Q. Can you give us a name or two of some of your well-known pushers?

'A. I'm sorry but I'm going to have to refuse to answer that question.

'Q. Why's that?

'A. Just can't do it.

'Q. Why can't you do it? The Court will tell you when you don't have to answer a question. Answer the question.

'A. It might incriminate myself.

'Court: How is it going to incriminate yourself, just the name of the pusher?

'Mr. Carr: He's the pusher probably. No further questions.

'Court: That's all.

'Mr. Edsall: I think that remark was uncalled for on the part of the prosecutor.

'Mr. Carr: I apologize, and I'll withdraw that remark.'

Here again, the prosecutor was in error. There was no evidence produced during this trial from [64 MICHAPP 31] which the prosecutor could infer that this witness was a pusher. His insinuation, although it did not reflect directly on defendant's innocence or guilt, did, however, constitute an improper attack on the credibility of this defense witness. This Court's remarks, earlier, in relation to the prosecutor's interpretation of the initials, is likewise appropriate here.

Having found error, the first question to be answered is whether or not such error is properly before us.

In regard to the prosecutor's remarks concerning the initials, it must be noted that defense counsel objected to the question addressed to Miss Cowles on the ground that the question had been asked and answered and not on the ground that the prosecutor's remark was an improper suggestion. Additionally, the objection to the question addressed to Dr. Rosenzweig was sustained and there was no objection to the remarks made in closing argument. Furthermore, at no time did defense counsel seek curative instructions from the court or move for a mistrial in regard to any of these errors.

While we could hold that we are precluded from considering these matters since defense counsel did not seek curative instructions which would have eliminated any prejudice arising from these remarks, ¹ we do not think that is a proper case for the application of that rule.

Under the facts and circumstances of this case, we think that the objections raised below were sufficient to inform the trial court of the prosecutor's errors and that the trial court should have, without request, given appropriate curative instructions.[64 MICHAPP 32] To the extent that the trial court failed to do so it was also in error.

As these errors are...