People v. Cooper, Docket No. 206970.

• Decision Date: 22 October 1999
• Docket Number: Docket No. 206970.
• Citation: 601 N.W.2d 409,236 Mich. App. 643
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lannel COOPER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

601 N.W.2d 409

236 Mich. App. 643

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lannel COOPER, Defendant-Appellant.

Docket No. 206970.

Court of Appeals of Michigan.

Submitted January 12, 1999, at Detroit.

Decided August 3, 1999, at 9:05 a.m.

Released for Publication October 22, 1999.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Valerie M. Steer, Assistant Prosecuting Attorney, for the people.

Ashford & Associates, P.C. (by Linda D. Ashford), Detroit, for the defendant.

Before: MARK J. CAVANAGH, P.J., and HOLBROOK, JR., and WHITBECK, JJ.

WHITBECK, J.

A jury convicted defendant of assault with intent to murder, M.C.L. § 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2). The trial court sentenced defendant to ten to twenty years' imprisonment for assault with intent to murder, to be preceded by the mandatory two-year sentence for felony-firearm. Defendant appeals as of right. We affirm.

I. Basic Facts

This case arises from the May 19, 1994, shooting of Mark McGinnis in Detroit. McGinnis testified that he and two friends were riding around a club where "everybody" would ride around "flirting with the girls and stuff like that." McGinnis was driving the car. Eventually, McGinnis stopped the car and talked with some females. At some point, according to McGinnis, he and his friends had contact with three other males who were in another car. McGinnis testified that these three males were drunk and had "angry faces" and further described their appearance as "eyes was red and they was looking— they was looking at our car, you know, they was up to— they was wanting to get their fight on, wanted to start some trouble."

McGinnis indicated that he drove a short distance away from the site of this initial encounter and that the other three males again rode up alongside the car that McGinnis was driving. McGinnis described a verbal exchange between the occupants of his car and the other car:

Yeah, I asked them again, I was like what's the problem? And they was like you know what, b[___]. I'm, you know, like what the problem? Ain't nobody— we ain't looking at y'all. And they was mumbling and saying something in their car and steady looking at me and I was like, man, they ain't no ho's over here is what I said.

McGinnis testified that defendant was an occupant of the other car, located in its front passenger seat, and explained that, while it was nighttime, the area was "lit up" by a "[m]illion lights" from cars backed up bumper to bumper along the street. McGinnis described a hostile exchange of words between defendant and himself:

[Defendant] was the one that was doing all the talking, like what you looking at, b[___]? And I was like, man, nobody for that— excuse my language— nobody for that dumb b[___], no ho's around here.

McGinnis testified that he eventually drove to a side street and that the other car again pulled up by them. According to McGinnis, the driver of the other car partially left that car. McGinnis got out of his car because he was "kind of nervous" and was worried that the individuals in the other car were going to shoot up the car that he had been driving. McGinnis indicated that he raised his hands as if to gesture that he did not want trouble. McGinnis said that one of his friends eventually left their car, that this friend was six feet, eight inches tall and that he thought this "spooked them because he was real tall."

McGinnis testified that defendant then leaned out of the window of the other car and shot McGinnis six times. McGinnis elaborated:

In my stomach, I got shot in my stomach and here in my groin, in my arm, in my leg, fractured my femur, one, two, three, four, five, and I think I got shot again in my stomach because one came out my back. It was ricocheting all around.

Nearby police officers heard the shooting. McGinnis was transported to a hospital, where he was a patient for about four to five weeks after the shooting.

McGinnis testified that, following his release from the hospital, he saw defendant in the Northland Mall, apparently in Southfield, on Sunday, June 26, 1994.¹ McGinnis said he was "absolutely positively sure" that defendant was the person who shot him on May 19, 1994.

Detroit police detective Dennis Myers testified that he conducted a live line-up related to this case in June 1994 and that McGinnis identified defendant as the shooter at that line-up.

Detroit police officer Dwight Anding, the only witness called by the defense, indicated that he stopped and arrested three black males, a group that did not include defendant, at about 7:30 a.m. on May 19, 1994, in connection with investigating this shooting. While not expressly stated in the trial testimony, we presume that these three males were eventually released by the police and have not been charged with any crime in connection with this case.

II. Jury Instructions With Respect to Assault With Intent to Murder

Defendant argues that while the trial court set forth in abstract terms the intent element of assault with intent to murder and of the lesser offense of assault with intent to do great bodily harm, the trial court committed error requiring reversal because it "did not [sua sponte] relate these abstract notions to any concrete facts in the case." Defendant claims that this allowed the jury to speculate and conjecture in determining defendant's intent. While we reject defendant's position as a matter of law, we note that this issue was not preserved below. Thus, appellate relief is precluded absent manifest injustice. People v. Green, 196 Mich.App. 593, 596, 493 N.W.2d 478 (1992).

Defendant does not contest the propriety of the trial court's instructions concerning the elements of assault with intent to murder or of assault with intent to do great bodily harm. Neither does defendant argue that the evidence was insufficient to submit the charge of assault with intent to murder to the jury. Rather, defendant contends that the trial court erred in failing to give further instructions regarding how the jury should have decided the factual question whether defendant had an intent to murder (if the jury concluded, as it obviously did, that defendant was the shooter). We agree with the prosecution that the trial court had no such obligation:

It was not necessary for the trial judge ... to review the testimony in detail in his charge to the jury. The defense is not entitled of right to have the judge comment upon the evidence or point out the weak points in the State's case so far as they involve questions of fact and not of law. People v. Longaria, 333 Mich. 696, 699, 53 N.W.2d 685 (1952)

(emphasis supplied).]

Indeed, it is inherent in our system of criminal jurisprudence that a jury is presumed to have the capacity to determine properly the facts from the evidence presented. Thus, the trial court, after instructing the jury with regard to the elements of the charged crime of assault with intent to murder and the lesser offense of assault with intent to do great bodily harm, did not err in failing to instruct sua sponte the jury with regard to how to determine whether the shooting was actually done, as a matter of fact, with an intent to murder.²

III. Alleged Prosecutorial Misconduct

Defendant alleges several instances of prosecutorial misconduct. Because none of these allegations were preserved by objection below, appellate relief is precluded unless any prejudicial effect could not be cured by a cautionary instruction or failure to consider the issue would result in a miscarriage of justice. People v. Warren (After Remand), 200 Mich.App. 586, 589, 504 N.W.2d 907 (1993).

A. Injection of Issues Broader Than Guilt or Innocence

We address first what we consider to be the most serious of these claims of prosecutorial misconduct. Defendant argues that the prosecutor improperly injected issues broader than defendant's guilt or innocence by referring to this case as "another senseless shooting in the City of Detroit and almost another dead young black man, but it didn't happen that way." This remark was made near the beginning of the prosecutor's closing argument. We conclude that this statement by the prosecutor was improper. Prosecutors "should not resort to civic duty arguments that appeal to the fears and prejudices of jury members." People v. Bahoda, 448 Mich. 261, 282, 531 N.W.2d 659 (1995); see also People v. Leverette, 112 Mich.App. 142, 151, 315 N.W.2d 876 (1982) (improper prosecutorial argument "injected into the case the broader issue of crime"). While this may not have been the prosecutor's intent, the statement at issue may have suggested to the jury that sending a message of disapproval of gun-related violence in Detroit was a factor favoring conviction. This was particularly inappropriate given that the jury presumably consisted entirely of Detroit residents, because the trial occurred in the former Recorder's Court. The prosecutor's reference to the race of the victim was also improper because that is hardly a proper consideration in the determination of a defendant's guilt. We note the following commentary by the Michigan Supreme Court:

As with all forms of prosecutorial misconduct, this Court abhors the injection of racial or ethnic remarks into any trial because it may arouse the prejudice of jurors against a defendant and, hence, lead to a decision based on prejudice rather than on the guilt or innocence of the accused. Bahoda, supra at 266

, 531 N.W.2d 659.]

In sum, the prosecutor's reference to the broader social issue of gun-related violence against young African-American men in Detroit was improper.

However, the remark was brief and added little to the obvious conclusion that the shooting at issue was a horrible incident. With regard to the racial element of the...