People v. Humphreys

• Decision Date: 22 June 1970
• Docket Number: No. 2,Docket No. 6197,2
• Citation: 24 Mich.App. 411,180 N.W.2d 328
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Thomas HUMPHREYS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

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.

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 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 by an instruction. People v. 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 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 with an aunt. After work on the 29th, the defendant returned to Utica and picked up his niece to bring her back to Pontiac for an overnight stay before her scheduled departure for Texas on the 30th. They stopped on the way for a few drinks, and, upon their arrival home, defendant's wife was irate. According to the defendant, she started an altercation with Mrs. Hall that was ended only by his physical intervention, and then followed the defendant into the bathroom where a second altercation ensued, both she and the defendant falling into the bathtub and knocking the shower door off its track. The defendant returned to the living room and while sitting with his niece heard an indistinguishable noise from the direction of the bedroom, where his wife had gone. This noise was followed by a pistol shot, his wife's announcement, 'You want to play, we'll play,' and the firing of another shot, this time into the floor of the hallway. The defendant jumped up to disarm his wife, and during the struggle two more shots were fired. He succeeded in disarming her, took the gun to the bedroom, unloaded it and returned it to its holster in a dresser. While in the bedroom, he noticed his wife lying in the doorway with blood on her dress. He told his niece to call the police, which she did.

At the trial, Mrs. Hall corroborated this, the defendant's, account of the shooting, while the defense advanced two theories as to how the victim came to be wounded: Either she accidentally shot herself while still in the bedroom (and hence, the indistinguishable noise) or she shot herself when the defendant sought to wrest the pistol from her control. In either event, of course, the defendant did not pull the trigger. The prosecution rejected both theories and offered the testimony of detective sergeant Christensen of the Michigan state police crime detection laboratory that the wound was caused by a bullet entering the buttocks and coming out at the breast. From the nature of the wound, sergeant Christensen theorized, the shooting could not have been accidental. Yet, though it was sergeant Christensen's expert opinion that the point of entry was the buttocks, the indicia of entry at this point were by no means conclusive. Dr. Rothwell, the examining pathologist, thought at the time of the autopsy that the bullet had entered the breast, and at trial confessed, his earlier opinion notwithstanding, that he could not determine the point of entry. He did aid the prosecution's case, however, by attributing the bruises and abrasions he found on the victim's body to severe 'blows', a characterization somewhat inconsistent with the defense's theory that the injuries were sustained when she fell into the bathtub. Also adduced in aid of the prosecution's case was the testimony of an investigating officer that the defendant, shortly after the officer's arrival at the scene, replied 'I did' when asked, 'Who shot her?' The defendant countered this testimony by asserting that he had instead said, 'I Guess I did,' and explaining that this reply referred to the possibility that his wife was shot during the second altercation.

After the close of proofs and the...