People v. Gniewek
| Docket Number | 353635 |
| Decision Date | 13 January 2022 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRAD JOSEPH GNIEWEK, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Tuscola Circuit Court LC No. 18-014425-FC
Before: Swartzle, P.J., and K. F. Kelly and Redford, JJ.
A jury convicted defendant of nine counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(f) (), and the trial court sentenced defendant to 23 to 60 years' imprisonment for each conviction and ordered that the sentence for the first count be served consecutively and preceding the sentence for the second count with the remaining sentences to be served concurrently. We affirm.
The prosecution charged defendant of committing nine counts of sexual assault accomplished by force or coercion against his former wife, CC, that caused her personal injury during their marriage between 2005 and 2010. CC left defendant and initiated divorce proceedings in 2015.
CC testified that defendant began the sexual abuse shortly after the birth of the couple's first child and continued over the next 10 years. The couple had five children during their marriage. Defendant threatened to take their children away if she did not perform requested sexual acts which included varying degrees of violence and coercion. In August 2015, CC reported defendant to the police, left defendant, and went into hiding with the children. The charged offenses occurred in Tuscola County where the couple had lived for years, but the prosecution also presented evidence of additional uncharged acts that occurred after the couple moved to Sanilac County in 2011.
Because defendant did not timely file a witness list, the trial court did not permit him to call any witnesses other than himself to testify in his own defense at trial. Defendant denied the allegations and defended by asserting that CC fabricated her story as part of her decision in 2015 to leave defendant, divorce him, and gain custody of the children. Defendant characterized the case as "a setup."
Defendant's original trial resulted in a mistrial after defense counsel elicited from a law enforcement officer during cross-examination defendant's participation in a polygraph examination. Defendant moved for a mistrial and the trial court granted the motion. The trial court conducted a second trial in January 2019, which resulted in the jury's conviction of defendant on all counts. Defendant moved for a new trial but the trial court denied the motion. On appeal, defendant raises issues in both a brief filed by his appellate counsel and in a pro se brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4 ("Standard 4 brief).
Defendant first argues that reversal is required because of several instances of prosecutorial misconduct. We disagree.
Because defendant failed to object at trial respecting his appellate claims, they are unpreserved. People v Abraham, 256 Mich.App. 265, 274; 662 N.W.2d 836 (2003). A preserved claim of prosecutorial misconduct is generally reviewed de novo to determine if the defendant was denied a fair and impartial trial. People v Thomas, 260 Mich.App. 450, 453; 678 N.W.2d 631 (2004). We review unpreserved claims of prosecutorial misconduct, however, for plain error affecting substantial rights. Abraham, 256 Mich.App. at 274. In People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999) (quotation marks, alteration, and citations omitted), our Supreme Court explained:
To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence.
Further, we will not reverse if the prejudicial effect of the prosecutor's conduct could have been cured by a timely instruction from the trial court. People v Williams, 265 Mich.App. 68, 70-71; 692 N.W.2d 722 (2005).
Claims of prosecutorial misconduct are decided case by case and the challenged conduct must be viewed in context. People v McElhaney, 215 Mich.App. 269, 283; 545 N.W.2d 18 (1996).
The test for prosecutorial misconduct is whether the conduct denied defendant a fair trial. People v Bahoda, 448 Mich. 261, 266-267; 531 N.W.2d 659 (1995). A prosecutor is afforded great latitude during closing argument. "A prosecutor may not make a statement of fact to the jury that is unsupported by evidence, but she is free to argue the evidence and any reasonable inferences that may arise from the evidence." People v Ackerman, 257 Mich.App. 434, 450; 669 N.W.2d 818 (2003); see also Bahoda, 448 Mich. at 282. A prosecutor is not required to phrase his or her arguments in the blandest of terms but may use "hard language" when the evidence supports it. Bahoda, 448 Mich. at 282; People v Ullah, 216 Mich.App. 669, 678; 550 N.W.2d 568 (1996). However, the prosecutor must refrain from making prejudicial remarks. Bahoda, 448 Mich. at 283.
Defendant first argues that the prosecutor improperly questioned him about his extramarital affairs. On direct examination by defense counsel, defendant admitted that he had an affair and filed for divorce, and he claimed that CC then threatened to disappear and take the children so that defendant could not see them. When the prosecutor cross-examined defendant, she asked him if he valued CC, loved her, and treated her as an equal. Defendant responded that he wanted to provide the kind of marriage for her taught in the Bible. The prosecutor then asked defendant why he cheated on CC and whether he had more than one affair, even though he conceded that having an affair went against the Bible's teachings. Defendant admitted that he used the affair and a provision of the Bible regarding affairs to try to get out of his marriage to CC. The prosecutor continued this line of questioning by asking defendant if his current wife had been married when defendant first met her, which defendant admitted. The prosecutor also asked defendant if a person named "Pam" had also been married when defendant met her. Defendant denied having a relationship with Pam during her marriage but he admitted that they began dating after the divorce.
Cross-examination tests a witness's credibility and exposes weakness in a witness's account and cross-examiners are afforded wide latitude. People v Evans, 335 Mich.App. 76, 90; 996 N.W.2d 402 (2020).
One of the elementary principles of cross-examination is that the party having the right to cross-examine has a right to draw out from the witness and lay before the jury anything tending or which may tend to contradict, weaken, modify or explain the testimony of the witness on direct examination or which tends or may tend to elucidate the testimony or affect the credibility of the witness. [Id., quoting People v Dellabonda, 265 Mich. 486, 499-500; 251 N.W. 594 (1933).]
Defendant argues that the prosecutor engaged in improper questioning because it elicited irrelevant, "unfounded," and substantially more prejudicial than probative evidence. Prosecutorial misconduct, however, cannot be predicated on good-faith efforts to admit evidence. People v Noble, 238 Mich.App. 647, 660; 608 N.W.2d 123 (1999). "The prosecutor is entitled to attempt to introduce evidence that he legitimately believes will be accepted by the court, as long as that attempt does not prejudice the defendant." Id. at 660-661.
In this case, defendant had already admitted on direct examination that he had an affair while married to CC. The prosecutor's line of questioning sought relevant evidence, given defendant's testimony on direct examination that he had been a good husband who treated CC as his equal and tried to provide a biblical type marriage, and that he would not force CC to engage in sex as part of her duty to act as a "godly wife." The record reflects that the prosecutor used defendant's history of affairs to show that he sought to rely on a biblical "loophole" to seek a divorce. Defendant explained his relationships with other women and denied that he engaged in an affair with his current wife or a person named Pam while either woman had been married. The record does not support defendant's contention that the prosecutor's questions were irrelevant or unduly prejudicial. The prosecutor did not commit misconduct by cross-examining defendant regarding his extramarital affairs about which he admitted on direct examination. Therefore, defendant has failed to meet his burden of establishing plain error.
Defendant also argues that the prosecutor improperly denigrated him for not establishing a career and for holding more than 15 jobs in 10 years. On cross-examination, defendant testified that a husband should be the head of the household the same way that God is head of the church and that a husband should provide for his family. Following defendant's denial that he failed to provide for his family, and denial that he held many jobs or could not keep a job, the prosecutor...
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