People v. Jones
| Decision Date | 11 June 2003 |
| Docket Number | Docket No. 119818, Calendar No. 2. |
| Citation | 662 N.W.2d 376,468 Mich. 345 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jonathan Joe JONES, Defendant-Appellee. |
| Court | Michigan Supreme Court |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Janet M. Boes, Assistant Prosecuting Attorney, Saginaw County Prosecutor's Office, Saginaw, for the people.
Lester O. Pollak, Jackson, for defendant-appellee.
Joseph K. Sheeran, President, Michael E. Duggan, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, Detroit, for Prosecuting Attorneys Association of Michigan, Amicus Curiae.
Following a jury trial, defendant was convicted of first-degree murder, M.C.L. § 750.316, and conspiracy to commit murder, M.C.L. § 750.157a. The Court of Appeals reversed defendant's convictions, holding that defendant was denied a fair trial when the prosecution elicited testimony from its "key witness" that the witness had taken and passed a polygraph test. Although we agree with the Court of Appeals that introduction of this testimony was error, we hold that defendant's convictions should not be reversed because the unpreserved, nonconstitutional error did not affect defendant's substantial rights.
We reverse the judgment of the Court of Appeals and remand the matter to that Court to address an issue that was raised before that Court, but not decided.
On August 11, 1998, at approximately 2:00 to 3:00 a.m., a Saginaw resident named Oliver R. Henderson was kicked and stomped to death1 by two men. The prosecution alleged the assailants to be Kim G. Martin and the defendant.
The evidence against the defendant included a DNA match of the victim's blood on defendant's trousers,2 which were seized from defendant's house, inculpatory statements that he made before and after the killing, testimony concerning the defendant's actions two hours after the assault, and testimony of an eyewitness.
Julie Pryor, who has a child fathered by defendant, testified that before the assault defendant had said that he was going to take revenge on the person that had taken his television.
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Pryor testified that, after 5:00 a.m. on August 11, defendant had come home, asked her if the police had been by, and changed his clothes. Pryor also testified that later she asked defendant if he had attacked the victim, "Rodell," and that defendant admitted that he had done it.
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Pryor also testified that on another occasion, while defendant was talking about the victim, she overheard defendant say "he stomped his ass."
On the first day of trial, while cross-examining a police officer, defense counsel sought to demonstrate that Ricky Jones,3 an eyewitness to the killing, had told multiple stories during the course of the investigation. Counsel asked the officer, "In fact, you gave Mr. Jones a polygraph on two different occasions, is that correct?" The circuit court sustained the assistant prosecutor's immediate objection, and the question was never answered.
At the next recess, the assistant prosecutor moved for a mistrial:
I'm moving for a mistrial based upon [defense counsel's] referral to the fact that Ricky Jones was given a polygraph test. Clearly if the People brought this out about defendant it would be grounds for a mistrial, and I believe it's just as inappropriate for defense to attack a prosecution witness through the use of inadmissible evidence as it would be for the People to do the same thing.
The court denied the motion:
Well, I believe it could be handled by a curative instruction. I don't think it manifests necessity and jeopardy has attached. I will deny the motion.
No curative instruction was given, nor was one requested by either party.
The following day, Ricky testified. Ricky stated that Kim Martin was kicking the victim in the head. After a time, Martin asked defendant, "Did you want a piece of this?" Defendant then joined in. Defendant jumped and landed with both feet on the victim's head four or five times. Ricky acknowledged that he drank three to five forty-ounce beers over a twelve to fourteen hour period on the day of the attack, and had ingested $30 to $40 worth of crack cocaine several hours before witnessing the attack. Near the end of his testimony on direct examination by the assistant prosecutor, the following exchange occurred.
No curative instruction was offered or requested, nor did defendant move to strike the witness's answer.
At the conclusion of the jury trial, defendant was found guilty of first-degree murder and conspiracy to commit murder. He was sentenced to two concurrent terms of life imprisonment. Defendant appealed to the Court of Appeals, which reversed defendant's convictions.4 The Court of Appeals focused on the assistant prosecutor's question to Ricky about the polygraph examination that he had taken and passed. The Court of Appeals held that the assistant prosecutor's question violated the bright-line rule that testimony concerning the result of a polygraph examination is not admissible at trial. People v. Barbara, 400 Mich. 352, 377, 255 N.W.2d 171 (1977). The Court of Appeals reversed defendant's convictions, holding that the error was prejudicial to defendant and seriously affected the fairness of the judicial proceeding.
We granted the prosecutor's motion for leave to appeal limited to the issue whether defendant's conviction should be reversed because the assistant prosecutor asked a key witness whether he had taken and passed a polygraph examination.
In our grant of leave to appeal, we asked the parties to address the doctrine of invited error.5 However, our review of this case has convinced us that invited error is not the relevant doctrine. Rather, it would be more accurate to characterize the applicable doctrine as "invited response."6 The doctrine of invited response is used as an aid in determining whether a prosecutor's improper remarks require the reversal of a defendant's conviction. It is used not to excuse improper comments, but to determine their effect on the trial as a whole. Darden v. Wainwright, 477 U.S. 168, 182, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
The United States Supreme Court has recognized that the doctrine of invited response has an appropriate place in determining whether the prosecutor's closing remarks affected the fairness of a trial. United States v. Young, 470 U.S. 1, 12-13, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Under the doctrine of invited response, the proportionality of the response, as well as the invitation, must be considered to determine whether the error, which might otherwise require reversal, is shielded from appellate relief. Young, supra.
We now apply this doctrine as an aid to determine whether the prosecutor's improper introduction of evidence at trial affected the fairness of the trial. In determining the effect of the prosecutor's improper introduction of the polygraph, we must analyze the circumstances surrounding that error, including the defense counsel's conduct. Whether Ricky had taken a polygraph examination (and, inevitably, whether Ricky had passed the examination) was introduced by defense counsel. By its very nature, especially in the context of the defense's attack on the credibility of Ricky, this question tended strongly to imply that Ricky had "failed" the polygraph examination. Nevertheless, we specifically disapprove of the prosecutor's knowing inappropriate behavior in introducing the evidence of the polygraph examination. The prosecution objected to defense counsel's improper question, and the court sustained that objection. Further, the court offered to provide a curative instruction, although ultimately one was not requested by either party. It was the assistant prosecutor who then decided on his own to offer the inadmissible evidence in rebuttal to the defense attorney's question about the polygraph. As the Court emphasized in Young, the idea of invited response is not to be read as suggesting judicial approval of response-in-kind. Id. at 10, 105 S.Ct. 1038. In this case, the trial court had offered the remedy of a curative instruction. The prosecution was not entitled to take the matter of balancing the equities into its own hands. A prosecutor has the responsibility of a minister of justice, not simply that of an advocate.
The issue is whether the assistant prosecutor's question to Ricky about the polygraph test is error requiring reversal of defendant's convictions. We review this under the standards for unpreserved, nonconstitutional error. Defense counsel objected to the prosecutor's questions, but only after they had already been answered, and did not request that...
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