People v. Green

• Decision Date: 16 March 1984
• Docket Number: Docket No. 58087
• Citation: 131 Mich.App. 232,345 N.W.2d 676
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis Purnell GREEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 676

345 N.W.2d 676

131 Mich.App. 232

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis Purnell GREEN, Defendant-Appellant.

Docket No. 58087.

Court of Appeals of Michigan.

Submitted Aug. 1, 1983.

Decided Dec. 20, 1983.

Released for Publication March 16, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and David A. King, Asst. Pros. Atty., for the People.

Edward J. Schwartz, Ann Arbor, for defendant-appellant.

Before HOOD, P.J., and CYNAR and MARUTIAK ^*, JJ.

PER CURIAM.

Defendant appeals as of right his jury conviction of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and his conviction as a third-felony offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083, following a bench trial.

At about 10:30 p.m. on September 9, 1980, a man approached the clerk, Aaron Hochman, of the Sensually Yours Bookstore in Ann Arbor and demanded money at gunpoint. Hochman complied, then telephoned police about the robbery five minutes after the robber left the bookstore. Hochman gave a description of the robber to the police.

Two police officers who responded to Hochman's call went to a restaurant approximately 35 to 40 feet from the bookstore and asked several restaurant employees if a man fitting Hochman's description of the robber had recently entered the restaurant. A waitress replied yes and pointed to an empty table where the man had been seated. Another restaurant employee, Lloyd Gary, told the officers that the man had gone into the men's restroom. The officers found defendant in the restroom. Because he fit Hochman's description of the robber, the officers detained and searched him. They found a gun, a bundle of currency, and a black valise in defendant's possession.

At defendant's jury trial, Hochman and six other witnesses testified. Defendant did not take the stand or present any defense.

Defendant raises four allegations of trial error in this appeal. We find one to be reversible error.

In closing argument the prosecutor stated:

"I have prepared about eleven questions that I am going to direct Defense Counsel, and I am going to ask him to answer these questions in his closing argument. I would ask the jury to pay attention to see first of all whether or not Defense Counsel responds to these questions, and secondly, whether or not he adequately answers those questions in your mind.

"I would ask the Defense Attorney, if the Defendant was not the person who took the money, why did Mr. Hochman identify him as being the person who took the money?

"If Mr. Hochman was unsure of the appearance of the Defendant why was he able to provide a description of the Defendant accurate enough so that Mr. Wingo, Rhonda Wishnew, Patrolman Brown, and Patrolman Melby were able to identify the Defendant at the Big Boy in the Ann Arbor Inn.

"If the Defendant was not the person who committed the armed robbery, why was the Defendant arrested fifteen minutes and a block and a half aways from the location of the crime?

"If the Defendant was not the person who committed the armed robbery, why did he have a gun that was described to be the gun used at the time of the crime?

"If the Defendant did not commit the armed robbery, why was he carrying a valise or a bag matching the description of that as having been used during the commission of the crime?

"If the Defendant was not the person that committed the armed robbery, why did the Defendant have such a large amount of money in his right front pocket, that being $182?

"If the defendant was not the person that committed the armed robbery, why wasn't this money in his wallet rather than in his right front pocket?

"If the Defendant was not the person that committed the armed robbery, why does the sum of money found upon the Defendant match the sum of money that was taken from the theft?

"If the Defendant was not the person that committed the armed robbery, why did the clothing description as given and as testified to in court by the complaining witness match the clothing as found on the Defendant as worn by the Defendant fifteen minutes and a block and a half away from the crime?

"And an interesting fact that arose in this case is, if the Defendant did not commit the armed robbery, why did he give an explanation as to the fact that he was in a sweat to Rhonda Wishnew to the effect that he had just gotten out of night court or had just gotten out of divorce court, this being at 11:00 o'clock at night?

"Now, I suggest to you that perhaps the answers to some of these questions one might say are coincidence, but I suggest to you that the coincidences here are too numerous and too repetative [sic] and ergo we have the circumstantial evidence which supports and collaborates [sic] the testimony of Mr. Hochman. Thank you."

Defendant's counsel objected to the above colloquy and moved for a mistrial on the basis that the prosecutor was impermissibly commenting upon defendant's failure to testify. The trial court denied the motion.

Defendant argues on appeal that the prosecutor's questions called upon defendant, through his attorney, to explain the evidence presented against him, thus impermissibly shifted the burden of proof to defendant and thus impermissibly of the presumption of innocence, and violated defendant's Fifth Amendment right to remain silent. Therefore, argues the defendant, the trial court erred by denying his motion for a mistrial.

The grant or denial of a motion for a mistrial rests in the trial court's sound discretion. Reversal by this Court is merited only upon a finding that the trial court abused that discretion. People v. Daniel Meyers (On Remand), 124 Mich.App. 148, 163, 335 N.W.2d 189 (1983); People v. Robertson, 87 Mich.App. 109, 111-112, 273 N.W.2d 501 (1978). This Court finds such abuse of discretion where the denial of the motion deprives the defendant of a fair trial and results in a miscarriage of justice. Robertson, supra.

In a closing argument a prosecutor may comment upon the evidence presented at trial and upon the witnesses' credibility. People v. Caldwell, 78 Mich.App. 690, 261 N.W.2d 1 (1977). A prosecutor may also argue that the evidence was uncontradicted even though the defendant is the only person who could have contradicted the evidence. People v. Parker, 307 Mich. 372, 11 N.W.2d 924 (1943); People v. Peace, 48 Mich.App. 79, 210 N.W.2d 116 (1973).

Nevertheless, a prosecutor may not imply in closing argument that defendant must prove something or present a reasonable explanation for damaging evidence because such an argument tends to shift the burden of proof. People v. Nabers, 103 Mich.App. 354, 369, 303 N.W.2d 205 (1981), aff'd in part and rev'd in part 411 Mich. 1046, 309 N.W.2d 187 (1981); People v. Heath, 80 Mich.App. 185, 188, 263 N.W.2d 58 (1977); United States v. Smith, 500 F.2d 293, 298 (CA 6, 1974). Furthermore, there is no real distinction between asking defendant or asking his or her counsel to provide such proof or explanation. Heath, supra. Moreover, such a technique indirectly focuses upon a defendant's exercise of his or her Fifth Amendment right to remain silent should defendant decide not to testify. Nabers, supra.

We find that the prosecutor's (11) questions in this case did require defendant to explain the evidence against him, thus shifting the burden of proof. Moreover, the prosecutor's argument indirectly focused the jurors' attention upon defendant's failure to testify, thus violating defendant's Fifth Amendment protections.

An error such as this is reversible where it is unduly offensive to the maintenance of a sound judicial system or, if not so offensive, the error is not harmless beyond a reasonable doubt. People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972); People v. Christensen, 64 Mich.App. 23, 25-33, 235 N.W.2d 50 (1975), lv. den. 397 Mich. 839 (1976). In past cases, this Court has not reversed when it has found similar errors to be harmless. Nabers, supra; Heath, supra.

However, in People v. Swan, 56 Mich.App. 22, 35, 223 N.W.2d 346 (1974), lv. den. 395 Mich. 810 (1975), this Court said:

"In finding the error harmless in this case, we wish to emphasize that we do not condone conduct which directly or indirectly restricts or penalizes the exercise of the constitutional right to remain silent in the face of accusation. People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). We will find it difficult in the future to believe that prosecutors and police are ignorant of the well-established principle of law which forbids comment upon an accused's silence or...