People v. Cowell, Docket No. 11653

• Decision Date: 20 February 1973
• Docket Number: Docket No. 11653,No. 2,2
• Citation: 205 N.W.2d 600,44 Mich.App. 623
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Levi COWELL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 600

205 N.W.2d 600

44 Mich.App. 623

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Levi COWELL, Defendant-Appellant.

Docket No. 11653.

Court of Appeals of Michigan, Division No. 2.

Feb. 20, 1973.

Released for Publication April 9, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and R. B. BURNS and DANHOF, JJ.

DANHOF, Judge.

The defendant was convicted of manslaughter. M.C.L.A. § 750.321; M.S.A. § 28.553. He now appeals and we affirm.

The defendant took the stand and testified that on July 29, 1970, he was caring for the five-month-old daughter of his fiance e. He stated that the baby was crying and that in an attempt to get the child to stop he began to bounce her on the bed. According to the defendant the motion of the baby as it bounced on the bed was like that of a 'super ball' and the baby unexpectedly bounced off the bed and hit the floor. The child was taken to a hospital where she was pronounced dead.

A witness who had been present in a next-door apartment testified that he heard a baby crying and a voice saying 'shut up'. He then heard a noise that sounded like slapping. Another witness testified that he heard crying and a voice saying 'stop crying'. He also heard a noice that sounded like something being moved or being thrown around. Several witnesses testified regarding exculpatory statements made by the defendant which were inconsistent with each other and with his testimony at trial.

It is contended that the trial court erred in allowing two witnesses to testify regarding statements made by the defendant. One witness testified that the defendant stated, that while he was in the bathroom the baby fell off the bed. The other witness testified that the defendant stated, that he had fallen asleep in a rocking chair with the baby on his lap and that the baby had fallen to the floor.

These conflicting statements tend to show a consciousness of guilt and are admissible as admissions. People v. Minchella, 218 Mich. 517, 188 N.W. 343 (1922). People v. Arnold, 43 Mich. 303, 5 N.W. 385 (1880). See also 2 Wigmore, Evidence (3d ed.) § 278, p. 120; McCormick, Evidence, § 144, p. 310; 29 Am.Jur.2d, Evidence, § 611, p. 665. In 22A C.J.S. Criminal Law § 738, pp. 1094--1095, the rule is stated as follows:

'Self-serving statements made by or for accused out of court, explaining suspicious circumstances, may be proved against him, and their falsity may then be shown. The fact of their falsity admits them as indicating an attempt to explain away incriminating circumstances by falsehoods. Where accused testifies, his self-serving statements contradicting his testimony, may be shown. It may be shown also that accused made two or more conflicting statements out of court in reference to an incriminating fact; and this right is not affected by the fact that accused does not become a witness. Inconsistent statements relevant to the crime charged are not limited to use for impeachment purposes; they have substantive effect as tending to show a consciousness of guilt.'

The prosecutor did not indorse on the information the name of the doctor who pronounced the baby dead and signed the death certificate. When the prosecution was about to rest the defendant made a motion to 'quash' on the ground that the doctor was a res gestae witness who the prosecution had a duty to call. The trial court denied the motion and the defendant now assigns this ruling as error. A review of the record convinces us that the doctor's testimony would merely be cumulative. Furthermore, the identity of the doctor was known to the defendant and his counsel well before the trial, and no attempt was made to seek his indorsement. When a res gestae witness has not been indorsed his indorsement must be sought within a reasonable time after his existence is discovered. People v. Jones, 38 Mich.App. 512, 196 N.W.2d 817 (1972).

The defendant raises several allegations regarding alleged prosecutorial misconduct. The defendant argues that reversible error was committed when the trial court allowed the prosecutor to explain the law in his closing argument, even though no objection was made. There are several flaws in this argument. The defendant does not contend that the prosecutor's statements regarding the law were incorrect, nor does he demonstrate just how they could have prejudiced him. A trial court has the power to prevent counsel from indulging in abstract discussings of the law. On the other hand counsel may state the law applicable to the facts. The line between the two things is of necessity a vague one, and when counsel's statements of the law are correct the decision on how far he will be allowed to go must rest in the sound discretion of the trial court.

The defendant contends that the prosecutor's closing argument was improper in a number of respects. He contends that the prosecutor improperly expressed an opinion on the question of guilt and misstated what had been testified to. An examination of the record reveals that these contentions lack merit.

The question of the propriety of a prosecutor's remarks is dependent upon all the facts of the case. A statement cannot be taken out of context. Just as jury instructions must be read as a whole, so must the remarks of the prosecutor. The prosecutor's remarks must be evaluated in light of the relationship or lack of relationship they bear to the evidence admitted at trial. The fact that a statement has been reversible error in one case does not automatically man that a similar remark is reversible error in another case. Each case must be considered on its own facts. For example, a remark...