People v. Foster

• Citation: 437 N.W.2d 395,175 Mich.App. 311
• Decision Date: 10 April 1989
• Docket Number: Docket No. 98430
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnny FOSTER, Defendant-Appellant. 175 Mich.App. 311, 437 N.W.2d 395
• Court: Court of Appeal of Michigan (US)

Page 395

437 N.W.2d 395

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnny FOSTER, Defendant-Appellant.

Docket No. 98430.

175 Mich.App. 311, 437 N.W.2d 395

Court of Appeals of Michigan.

Submitted June 29, 1988.

Decided Feb. 23, 1989.

Released for Publication April 10, 1989.

[175 MICHAPP 312] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Olga Agnello, Asst. Pros. Atty., for people.

Patricia S. Slomski, Detroit, for defendant-appellant on appeal.

Before KELLY, P.J., and MAHER and WARSHAWSKY, ^* JJ.

WARSHAWSKY, Judge.

Defendant appeals as of right from a jury trial in which defendant was convicted of assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, [175 MICHAPP 313] and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), contending that prosecutorial misconduct shifted the burden of proof, thus denying defendant a fair trial. Defendant also appeals his sentences of two to ten years and two years, respectively. We reverse.

Defendant's convictions arise from a shooting incident which occurred on May 29, 1986, in a residential Detroit neighborhood. There is conflicting testimony as to what took place at the time complainant, Leroy Saunders, was shot. Roberta Flow, a neighbor, heard defendant and Saunders arguing. Defendant had come out of his front door carrying two containers of water and Saunders was on his porch. The witness heard two shots and saw Saunders jump up and run into his house. When Saunders came out of his house, he had a rifle and said he was "going to shoot all of them." Flow never saw defendant with a gun.

Leroy Saunders testified that he was on his porch when defendant accused him of calling defendant's daughter a "dog." Defendant was on his front porch across the street and had a .22 caliber automatic rifle in his hand. During the argument, defendant lifted his gun and shot at Saunders four times. Saunders testified he was unarmed. He was struck twice in the leg and two shots missed. When the police arrived, defendant ran.

The defense theory was that defendant did not shoot Saunders, someone else did; that prior to the shooting, defendant had filed complaints with the police against Saunders; and that Saunders, to retaliate against defendant for these reports, identified defendant as the person who shot him.

On cross-examination, Saunders said he did not believe defendant had complained to the police about him because defendant had no reason to [175 MICHAPP 314] complain. On direct examination, Saunders had admitted to four past felony convictions and one past misdemeanor conviction.

Defendant testified that on May 29, 1986, he was repairing his automobile when Saunders started a conversation with him. Defendant asked Saunders to leave him alone and Saunders threatened defendant. Saunders made a statement about "blowing our heads off" and then defendant heard shots and ran. Defendant denied owning a weapon or having a weapon on that day. Before this incident, defendant and his wife had gone to the fifth precinct with complaints about Saunders. Defendant's wife, Linda Foster, testified that Saunders threatened defendant and their family, went into his house, and came back with a rifle. Linda Foster testified that she heard three or four shots. She said defendant did not have a gun.

Another witness, Harmon Pitts, testified that he was helping defendant fix defendant's automobile on the day of the shooting. Defendant and Pitts were pouring water into the car's radiator about two or three minutes after Pitts heard shots fired. When the police arrived, defendant left. Pitts denied telling the police that defendant had run. Pitts never saw defendant with a gun.

On direct examination, defense counsel asked defendant about the complaints he had filed against Saunders, at which time the prosecutor objected:

"MS. DONAHUE: Wait a minute. Are we going through the whole scenario?

"THE COURT: We have hearsay here, haven't we?

"MS. DONAHUE: Your Honor, I want to see the complaints. I want to see the police departent [sic] reports. I don't think he should be allowed to make things up.

[175 MICHAPP 315] "WITNESS: They're not being made up under oath.

"THE COURT: It is for the jury to decide whether he is telling the truth.

"MS. DONAHUE: He said they made police reports. Let's see the official records.

"WITNESS: I didn't understand that those records--

"THE COURT: Is he going to represent himself?

"MR. LONEY: The prosecution answered the question. The witness told us he didn't understand why there weren't any records when he made reports out.

"THE COURT: Those are matters for cross examination. Go ahead.

"MS. DONAHUE: Your Honor, we had some discussions about records being brought in. I don't think we should go into that, now."

On cross-examination, the prosecution sought to impeach defendant by asking whether defendant, or his counsel, attempted to produce copies of the police reports at trial:

"Q. Do you know if your attorney or did you, yourself, ask police officers at the Fifth Precinct to bring down copies of any complaints that you made against Mr. Saunders?

"A. Yes, I did.

"Q. Yes is enough.

"Did they bring any down? Did they bring any down, Mr. Foster, yes or no.

"A. No.

"Q. Did a police officer come down from the Fifth Precinct and say that they didn't have any?

"A. I don't know what they said.

"Q. Did a police officer come down to your knowledge from the Fifth Precinct and say they have no reports?

"A. You have to ask my counselor.

"Q. You don't know?

"A. Ask my counselor.

[175 MICHAPP 316] "MR. LONEY: She is getting into hearsay testimony through my client as to what the Fifth Precinct said or didn't say. If she wants to know what the records did or did not show she can not establish that through my client and through hearsay.

"MS. DONAHUE: The officer was here and defense counsel sent him away before I knew what he was here for."

In her closing statement, the prosecutor argued to the jury:

"Now, I believe there is a lack of evidence on the defense side. They got on the stand, Mrs. Foster and her husband, the defendant. They told you about these complaints they made to the police department, not complaints they made over the telephone, but they said they went down there personally and saw police officers writing out the information that they gave them.

"Have you seen any corroberation [sic] of that testimony? Have you seen any of the officials from the police department? Have you seen any records that were brought in?"

And, finally, in rebuttal argument the prosecutor stated:

"Defense counsel talked about reasonable doubt. You will recall the Judge will tell you we don't have to prove it beyond a reasonable doubt, not even beyond a shadow of a doubt. He [the judge] will tell you that you have to have a reason for the doubt before you can call it a reasonable doubt.

* * * * * *

"Now, they say the defendant isn't the one who shot Mr. Saunders. Did you hear any testimony, that is what you're bound by, the testimony, not what I say or what Mr. Loney says, and he told you he was going to prove to you in this case that the defendant was not the one that shot Mr. Saunders."

[175 MICHAPP 317] We do not believe that defendant received a fair trial. Due process entitles an accused to the presumption of innocence, while the prosecution carries the burden of proving guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The prosecutor may not suggest in closing argument that defendant must prove something or present a reasonable explanation for damaging evidence as this argument tends to shift the burden of proof. People v. Green, 131 Mich.App. 232, 237, 345 N.W.2d 676 (1983); People v. Dersa, 42 Mich.App. 522, 202 N.W.2d 334 (1972), lv. den. 388 Mich. 803 (1972). The test of prosecutorial misconduct is whether defendant was denied a fair and impartial trial. People v. Bairefoot, 117 Mich.App. 225, 323 N.W.2d 302 (1982). Questions of prosecutorial misconduct are decided on a case by case basis and the reviewing court must examine the pertinent portion of the record and evaluate the prosecutor's remarks in context. People v. Callington, 123 Mich.App. 301, 333 N.W.2d 260 (1983).

In this case, we note that defense counsel failed to object to any of the prosecutor's challenged comments on the grounds here asserted on appeal. Thus, our review is foreclosed unless the prejudicial effect was so great that it could not have been cured by an appropriate instruction and failure to consider the issue would result in a miscarriage of justice. People v. Federico, 146 Mich.App. 776, 381 N.W.2d 819 (1985), lv. den. 425 Mich. 867 (1986).

In this case, we believe that the prosecutor's remarks were improper and that a failure to consider the issue would result in a miscarriage of justice. On direct examination, defendant was attempting to establish the bias of complainant Saunders. The interest or bias of a witness has never been regarded as irrelevant. People v. Field, [175 MICHAPP 318] 290 Mich. 173, 178, 287 N.W. 422 (1939). Given the importance of the bias theory to the defense, the prosecutor's demand to see the police reports followed by the comment "I don't think he should be allowed to make things up," prejudiced the defense and defendant's ability to undermine the complainant's credibility. Complainant was the sole identification witness at trial. His testimony was the crux of the prosecution's case against defendant. Thus, this was a serious error. Moreover, the prosecutor erroneously injected her personal beliefs regarding defendant's credibility into the proceeding. This constituted testimony by the prosecutor and was improper in tending to shift the burden of proof onto defendan...