People v. Gnat, SC: 159427

• Decision Date: 24 April 2020
• Docket Number: SC: 159427
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ZDZISLAW GNAT, Defendant-Appellant.
• Court: Michigan Supreme Court

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ZDZISLAW GNAT, Defendant-Appellant.

SC: 159427

Michigan Supreme Court Lansing, Michigan

April 24, 2020

Order

Bridget M. McCormack, Chief Justice

David F. Viviano, Chief Justice Pro Tem

Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices

COA: 340978

Macomb CC: 2016-003921-FH

By order of October 3, 2019, the prosecuting attorney was directed to answer the application for leave to appeal the February 28, 2019 judgment of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

CAVANAGH, J. (dissenting).

I respectfully dissent from the Court's order denying leave to appeal. Defendant and the trial court have identified serious questions about prosecutorial misconduct in this case and about appellate review of prosecutorial misconduct more generally, and these questions merit this Court's review.

Defendant was convicted of sexually assaulting his daughter, SG. Trial testimony consisted of the complainant and defendant's ex-wife recounting a prolonged history of emotional abuse, and the complainant recounting sexual abuse. Additionally, a jailhouse informant testified that defendant admitted kissing his daughter in a sexual manner. The trial court specifically limited testimony that might merely repeat the complainant's allegations. Defendant did not testify, but defense counsel argued that the allegations were concocted to interfere with his visitation.

The prosecutor made two problematic arguments in closing. First, the prosecutor said of the complainant, "She's told me on a couple of different occasions. She testified in a lower court in front of a different judge . . . . She's been questioned in a lower court by two lawyers, myself and a different lawyer than [defense counsel]." Second, the prosecutor argued:

I have been a prosecutor for almost 14 years and in the last few years these are the only kinds of cases that I try. . . . And what I found is that in every case, no matter what kind of crime it is, victims lose something, whether it's money, whether it's property, whether it's time healing from wounds or sometimes a loved one, but these cases are different. These cases cause victims to lose a lot more than those things that I just listed for you. They lose a sense of trust in themselves and in the people that should be taking care of them and making sure that they are safe. They lose a sense of self about them. They question the decisions they make, and no doubt [SG] is no different. Did she make the right decision to not tell her mom the very first time that something happened? Did she make the right decision to appease her father to insure that her mother wasn't harmed in some way? They question everything about what they did from the beginning of the contacts all the way until they disclose. And so that sense of self, that sense of trust in themselves is shaken to the core.

Defense counsel objected that the prosecutor had argued facts not in evidence by stating the complainant had previously been interviewed and testified, that the prosecutor had vouched for the complainant by implying the case had been previously reviewed, and that the prosecutor had vouched for the complainant by invoking the prosecutor's 14 years of experience. The trial court found the objections compelling:

It does appear to me to be a problem in talking about the fact that the case comes to the jury after [SG] has talked to all of these people including me, the Prosecutor, and another judge. It does, does certainly approach the line or go over the line as to trying to persuade the jury that this matter has already been looked at by others, other people have already made the determination that Mr. Gnat is guilty and therefore you should do the logical thing and also find that he is guilty because all of these other people can't be wrong. It's a problem.

The next one is when the prosecutor was saying that I'm an experienced prosecutor and these cases are different. There was no testimony in the record and, indeed the prosecutor could not take the stand and say that I'm a Prosecuting Attorney, I've tried a lot of these cases, these cases are different, the victims of these cases suffer a particular type of harm that is far different than the victims in other cases. . . .

However, the trial court declined to rule on the objections, saying, "We should proceed to the remainder of the arguments, proceed to get a verdict and then if the verdict is not guilty all of these matters are moot. . . . And I'm not deciding that one way or the other right now." The jury convicted defendant, and the trial court revisited the matter at sentencing:

Let's say, I agree with you, as I do, that those were improper comments by the prosecutor. She certainly should not have talked about all of her years of experience as a prosecutor, as soon as that phrase came out, I felt the hair on the back of my neck stand up, as I could not believe I was hearing that from an experienced, highly ethical, well qualified assistant prosecuting attorney. But she said it and obviously she can't take it back, there's nothing that anybody could do to take it back.

Also then when she talked about, that this victim told the story previously to a judge, . . . it was clear that, as your motion indicates, that she was vouching for the credibility of the victim by putting before the jury matters that were not in evidence. I agree.

The trial court noted that no curative instruction had been requested. Defense counsel stated that he did not think "a curative instruction at that point . . . would've been enough," and the trial court responded, "I . . . tend to agree with you that if the damage is sufficient to be reversible error, that no instruction at that point would've done any good . . . ." The court further opined, "I realize that that kind of curative or cautionary instruction is almost meaningless in terms of what the jury would make of it." The court went on:

. . . I looked at all of the appellate cases, well, obviously I couldn't look at all of them, but

...