People v. Johnson

• Decision Date: 05 March 1991
• Docket Number: Docket No. 117496
• Citation: 187 Mich.App. 621,468 N.W.2d 307
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Ray JOHNSON, Defendant-Appellant. 187 Mich.App. 621, 468 N.W.2d 307
• Court: Court of Appeal of Michigan — District of US

Page 307

468 N.W.2d 307

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Ray JOHNSON, Defendant-Appellant.

Docket No. 117496.

187 Mich.App. 621, 468 N.W.2d 307

Court of Appeals of Michigan.

Submitted Nov. 6, 1990, at Detroit.

Decided March 5, 1991, at 9:15 a.m.

Released for Publication May 6, 1991.

[187 MICHAPP 622] Frank J. Kelley, Atty. Gen., Gay Secor [187 MICHAPP 623] Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Carolyn Schmidt, Asst. Pros. Atty., for the People.

Patricia S. Slomski, Detroit, for defendant-appellant on appeal.

Before REILLY, P.J., and WAHLS and DOCTOROFF, JJ.

PER CURIAM.

Defendant was charged with one count of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, two counts of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and one count of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was tried and convicted by a jury in Detroit Recorder's Court of the lesser included offense of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, one count of assault with intent to commit murder, and felony-firearm. Defendant was sentenced to life imprisonment for the second-degree murder conviction, fifty to seventy-five years for the assault conviction, and a mandatory two years for the felony-firearm conviction. Defendant's application for a delayed appeal was granted by this Court on July 19, 1989. Defendant argues that prosecutorial misconduct and errors in the jury instructions denied him a fair trial. We disagree, and affirm defendant's convictions. Defendant also argues that he is entitled to resentencing. We agree, and remand for articulation and resentencing.

The prosecutor charged that, shortly before 2:00 p.m. on April 25, 1988, defendant shot and killed Marcelle Hickman and shot and wounded Michael Sanders and William Price. The prosecutor's theory[187 MICHAPP 624] was that defendant was protecting his drug territory. Defendant's theory was self-defense.

Complainant Sanders testified that approximately a week before the shooting, he was threatened by defendant, who displayed an automatic pistol and said, "If you come over this way, you know what I got in store for you." On April 25, 1988, Sanders and Hickman delivered drugs to a house rented by Sanders at Lothrup and Wildemere. Both men were armed with 9-mm. rifles. After making the delivery, they walked back to Sanders' car, which was parked at Dexter and Northwestern. As they approached Sanders' car, a car turned the corner and came to a stop. Defendant, who was hanging out of the car window, fired an automatic rifle at Sanders and Hickman. Hickman was fatally shot. Sanders, who was shot in the leg and back, sought cover behind the steps of a house. Sanders tried to put a clip in his gun, but when he was unable to do so, he threw it into nearby bushes.

Complainant Price testified that on April 25, 1988, he was visiting his parents. He heard gunshots, looked out the door, and saw defendant in a car, firing a gun. After the car drove away, Price went outside and walked toward where the gunshots were fired. He saw Sanders and Hickman lying on the ground. He saw that Sanders was alive, grabbed Sanders' gun, and took the clip out. At the same time, he heard a noise. When Price looked up, he saw defendant pointing a gun at him. Price asked defendant not to shoot, and put his hands up. He heard a loud bang, felt his leg burn, and started running across the street. Price was hit by another shot and fell to the ground.

Charles Gary, Jr., a defense witness, testified that on April 25, 1988, he took defendant to the store to buy oil for defendant's car. Defendant [187 MICHAPP 625] poured the oil in his car and complained about a noise in the car. They got in to drive around the block to see if they could determine the source of the noise. Two men suddenly appeared at the side of the car. One man had an Uzi. Defendant sped off and dropped Gary off two blocks away. Gary walked home and heard shots as he arrived at his house.

The jury found defendant guilty of second-degree murder in the death of Hickman, guilty of assault with intent to murder Price, not guilty of assault with intent to murder Sanders, and guilty of felony-firearm.

On appeal, defendant argues that prosecutorial misconduct denied him a fair trial.

Questions involving prosecutorial misconduct are decided case by case, and this Court must evaluate each question within the context of the particular facts of the case. People v. Burnett, 166 Mich.App. 741, 754, 421 N.W.2d 278 (1988). The propriety of a prosecutor's remarks depends on all the facts of the case, and the remarks must be read as a whole. Also, the prosecutor's remarks must be evaluated in light of the relationship or lack of relationship they bear to the evidence admitted at trial. People v. Simon, 174 Mich.App. 649, 655, 436 N.W.2d 695 (1989).

A prosecutor is free to relate the facts adduced at trial to the prosecution's theory of the case and to argue the evidence and all reasonable inferences arising from it to the jury. People v. Sharbnow, 174 Mich.App. 94, 100, 435 N.W.2d 772 (1989), quoting People v. Jansson, 116 Mich.App. 674, 693, 323 N.W.2d 508 (1982). The prosecutor need not state the inferences in the blandest possible terms. People v. Marji, 180 Mich.App. 525, 538, 447 N.W.2d 835 (1989).

Defendant claims that the prosecutor's assertions[187 MICHAPP 626] in the opening statement that defendant was a drug dealer and that defendant's motive for the shooting was to eliminate the competition were not supported by the evidence. Defendant moved for a mistrial, objecting to the comments on the ground that defendant had not been charged with any drug crimes. Defendant's motion was denied. A later objection by defendant was overruled. Opening argument is the appropriate time to state the facts to be proven at trial. People v. Robbins, 132 Mich.App. 616, 620, 347 N.W.2d 765 (1984). When a prosecutor states that evidence will be submitted to the jury, which subsequently is not presented, reversal is not warranted if the prosecutor acted in good faith. People v. Solak, 146 Mich.App. 659, 676, 382 N.W.2d 495 (1985); People v. Pennington, 113 Mich.App. 688, 694, 318 N.W.2d 542 (1982).

There was no direct evidence that defendant was involved in the drug business. Nevertheless, in our review of the record, we find no evidence of bad faith on the part of the prosecutor and conclude that the prosecutor's opening remarks did not deny defendant a fair trial.

Defendant also claims that statements by the prosecutor during closing argument concerning defense counsel's efforts to provide the best possible defense were improper because they suggested that the defense of self-defense was disingenuous and contrived. We disagree. The remarks complained of were addressed to defendant's claim of self-defense. The prosecutor did not state that defense counsel was trying to mislead the jury. The prosecutor's remarks did not shift the focus from the evidence or deny defendant a fair trial.

Defendant next claims that statements by the prosecutor during rebuttal were improper because they suggested that defendant had a history of and [187 MICHAPP 627] was predisposed toward violence. The prosecutor recited an Aesop fable, then stated:

Now, like any story, this Aesop fable has a moral, and the moral of this story is that if you are wise, you will not be deceived by those who have been violent in the past.

Ladies and gentlemen, you as jurors are wise in this case. You, individually and collectively, will not be deceived by this man and this claim of self-defense.

This man, what do we know about this man? This man yesterday morning showed you his behavior, his attitude by his demonstration.

The record does not reflect the occurrence of any incident in the courtroom on the previous day and the prosecutor did not further explain the remark. Defense counsel did not object to the prosecutor's remark. Therefore, review is precluded unless the prejudicial effect was so great that it could not have been cured by an appropriate instruction and failure to consider the issue would result in a miscarriage of justice. People v. Foster, 175 Mich.App. 311, 317, 437 N.W.2d 395 (1989). We find no prejudice that could not have been cured by a cautionary instruction. Failure to review this claim of error will not result in manifest injustice.

Defendant's next claim on appeal is that the trial court improperly instructed the jury. Defendant first contends that the trial court erred in failing to instruct the jury that "a reason for commission of a crime without more is insufficient as a matter of law to establish that a person is guilty of a crime." Essentially, defendant is arguing that the trial court erred in failing to recite the bracketed language of CJI 4:8:01.

Defense counsel did not object to the deletion of the bracketed language or request that the language[187 MICHAPP 628] be given. Failure to object to jury instructions waives appellate review absent manifest injustice. People v. Curry, 175 Mich.App. 33, 39, 437 N.W.2d 310 (1989). Manifest injustice occurs where the erroneous or omitted instructions pertain to a basic and controlling issue in the case. People v. Chatfield, 170 Mich.App. 831, 835, 428 N.W.2d 788 (1988). Manifest injustice will not result here. The Use Note to CJI 4:8:01 recommends that the bracketed language be given where evidence of motive has been introduced. As argued by defendant, no evidence concerning the alleged motive was introduced.

Defendant also contends that the trial court erred in charging the jury that "motive alone, without evidence of premeditation and deliberation is sufficient to establish murder in the first degree." There was no objection to this instruction. After defendant's brief on appeal...