People v. Humphreys, Docket No. 6197

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: V. J. BRENNAN; Reid
• Citation: 24 Mich.App. 411,180 N.W.2d 328
• Decision Date: 22 June 1970
• Docket Number: No. 2,Docket No. 6197
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Thomas HUMPHREYS, Defendant-Appellant

Page 328

180 N.W.2d 328 24 Mich.App. 411 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Robert Thomas HUMPHREYS, Defendant-Appellant. Docket No. 6197. Court of Appeals of Michigan, Division No. 2. June 22, 1970.
Leave to Appeal Denied Aug. 27, 1970.
Released for Publication Oct. 26, 1970.

[24 Mich.App. 413]

Page 329

Douglas A. Chartrand, Smith & Magnusson, Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Jr., Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., McGREGOR and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

On August 6, 1968, Robert Humphreys was tried and convicted by a jury of second degree murder ¹ for shooting and killing his wife. On appeal he complains of numerous remarks made by the prosecutor during final argument but principally of a remark wherein the prosecutor expressed a belief in his guilt. No objection was directed at this remark. The people, while neither denying nor conceding prejudice, contend that the failure to object precludes review by this Court and cite many cases supporting their contention, among [24 Mich.App. 414] them People v. Hancock (1950), 326 Mich. 471, 40 N.W.2d 689; People v. Millman (1943), 306 Mich. 182, 10 N.W.2d 885; and People v. Panknin (1966), 4 Mich.App. 19, 143 N.W.2d 806. Before reciting the remark and relating the setting in which it was made, we will examine the limits of the proposition that the failure to object bars review of a remark expressing the prosecutor's belief in the accused's guilt.

Although the prosecutor is free in final argument to relate the facts to his theory of the case, and in so doing say that certain evidence leads him to believe the defendants is guilty, People v. Hess (1891), 85 Mich. 128, 48 N.W. 181; People v. Boos (1909), 155 Mich. 407, 120 N.W. 11; People v. McElheny (1922), 221 Mich. 50, 190 N.W. 713, he may not express a belief in the defendant's guilt without relating the belief to the evidence. People v. Quick (1885), 58 Mich. 321, 25 N.W. 302; People v. Dane, (1886), 59 Mich. 550, 26 N.W. 781; People v. Hill (1932), 258 Mich. 79, 241 N.W. 873. Yet while the impropriety of expressing a personal belief in the defendant's guilt is generally recognized, it has been said that the prejudicial impact of such remarks can be countered by an instruction from the bench and therefore there is no need for a new trial (unless it be deterrence) if the court instructs the jury to disregard the remark. People v. Pope (1896), 108 Mich. 361, 66 N.W. 213; People v. MacGregor (1914), 178 Mich. 436, 144 N.W. 869; People v. Panknin, Supra. In People v. Quick and People v. Dane, cited above, an objection was made but the trial court failed to give the requested instruction and hence by implication approved the remarks, thereby aggravating the prejudice. In both cases, the Supreme Court reversed the convictions, saying that the instructions should have been given. A conviction will not be reversed, however, if by failing to object, the defendant has allowed the impact of the prosecutor's remarks to go uncountered

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by an instruction. People v. [24 Mich.App. 415] Smith (1969), 16 Mich.App. 198, 167 N.W.2d 832. The defendant will not be heard to complain of an error that could have been cured upon timely objection.

The presupposition of these cases is that the impact can be countered and the prejudice eliminated. Sometimes, however, the prejudice created by an improper line of argument cannot be eliminated, no matter the amount of cautionary instruction, People v. Treat (1889), 77 Mich. 348, 43 N.W. 983; People v. Frontera (1915), 18l Mich. 343, 346, 152 N.W. 1019; People v. Slater, 21 Mich.App. 561, 175 N.W.2d 786, and therefore an objection would be pointless. In People v. Ignofo (1946), 315 Mich. 626, 24 N.W.2d 514, the principal case cited by defendant Humphreys, the Supreme Court considered the following remark, one made without objection, along with another ground of error and ordered new trial:

"Joe Neuff (the defendant) killed that man. He has been slick enough and smooth enough to get away with it a number of years. Oh, yes, but there is the record and it has caught up with him."

Justice Reid and Justice Sharpe, the author of the opinion, thought the 'statement could not be eradicated from the minds of the jury' and therefore constituted reversible error despite the absence of contemporaneous objection. Two justices concurred in result without opinion. The remaining three justices, also concurring in result, were unwilling to hold that the 'statement could not be eradicated from the minds of the jury,' but acknowledged that in some cases an instruction cannot eliminate the prejudice:

'(A) ruling as to whether there was reversible error must depend upon all the attending circumstances of the particular case. Under some circumstances the prejudicial effect may be eliminated by proper procedure. See People v. Rosa, 268 [24 Mich.App. 416] Mich. 462, 256 N.W. 483; People v. Cleveland, 295 Mich. 139, 294 N.W. 124; People v. Zesk, 309 Mich. 129, 14 N.W.2d 808. On the other hand, there may be attendant circumstances disclosed by the record in a given case which would necessitate reversal. People v. Bigge, 288 Mich. 417, 285 N.W. 5.'

From a review of these cases, it is apparent that the failure to object is and should be a bar to review only where the goal of objection--a cautionary instruction--in all likelihood would have eliminated the prejudice arising from the prosecutor's remark. Considerations of judicial economy do not outweigh the accused's right to a fair trial. With this standard in mind, we proceed to review the remark made in the instant case and the setting in which it was made.

Most of the trial revolved around one hotly contested issue: who pulled the trigger, the defendant or the victim? The shooting took place on December 29, 1967. Several days before, on December 29, 1967. defendant's niece, a Mrs. Hall, had arrived from Texas. She stayed at the defendant's house trailer in Pontiac as a guest of the defendant and his wife until the 28th, when the defendant drove her to Utica to stay overnight...