People v. McColor

• Decision Date: 19 October 1971
• Docket Number: No. 1,Docket No. 10329,1
• Citation: 36 Mich.App. 455,194 N.W.2d 99
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Glenn Ray McCOLOR, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 99

194 N.W.2d 99

36 Mich.App. 455

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Glenn Ray McCOLOR, Defendant-Appellant.

Docket No. 10329.

Court of Appeals of Michigan, Division No. 1.

Oct. 19, 1971.

Released for Publication Feb. 9, 1972.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and QUINN and V. J. BRENNAN, JJ.

QUINN, Judge.

The errors relied on by defendant for appellate relief relate to prejudicial argument by the prosecuting attorney in summation to the jury, two instances of improper cross-examination by the prosecuting attorney and error in the jury instructions. None of the errors was preserved by objection at trial, and we are unable to find the 'clear injustice' required by People v. Qualls (1968), 9 Mich.App. 689, 158 N.W.2d 60, to overcome the 'no objection--no error' rule.

Affirmed.

LEVIN, Presiding Judge (dissenting).

Although none of the assignments of error were properly preserved for appellate review at the trial level, they should be recognized. The defendant did not have a fair trial.

The defendant was charged with assault with intent to commit the crime of murder M.C.L.A. § 750.83 (Stat.Ann.1962 Rev. § 28.278) and was convicted by a jury of assault with intent to do great bodily harm less than the crime of murder. M.C.L.A. § 750.84 (Stat.Ann.1962 Rev. § 28.279)

The complainant had lived in the defendant's home. They had a falling out and the complainant was asked to leave. The two men met on the street a short time afterwards.

The complainant testified that the defendant struck him and then shot him with a gun, including four shots in the back as he attempted to run away.

The defendant testified that he became dazed when the complainant struck him several times in the head with a gun, a struggle ensued, and shots were fired but that he had no recollection of shooting the victim.

I.

The defendant's first assignment of error concerns a question that has been litigated many times in our Court in the past few years. He claims it was improper for the prosecutor to ask him on cross-examination why he had not told the police when he was arrested the version of the facts he gave on direct examination:

'Prosecutor: Did you ever tell the police after you were arrested that you got hit in the head?

'Defendant: No, I didn't tell the officers nothing.'

The defendant's silence when arrested was exploited by the prosecutor in his closing jury argument. ¹

It is axiomatic that an accused person has a constitutional right to remain silent when he is arrested and faced with accusation, and that his silence may not be used against him. On that there has been complete agreement. The areas of disagreement are (1) whether the same rule applies when the defendant takes the stand, and (2) whether the failure of defense counsel to object bars the defendant from assigning error on this account.

In People v. Rolston (1971), 31 Mich.App. 200, 187 N.W.2d 454 (leave denied, 385 Mich. 760); People v. Williams (1970), 26 Mich.App. 218, 182 N.W.2d 347; People v. Hicks (1970), 22 Mich.App. 446, 178 N.W.2d 193 (leave granted, 384 Mich. 754, subsequently dismissed); and People v. Seales (1969), 16 Mich.App. 572, 168 N.W.2d 428, we ruled that a defendant who takes the stand may not be asked on cross-examination why he did not tell the police at the time of his arrest the story related at the trial. Similarly, see People v. Rollins (1971), 33 Mich.App. 1, 189 N.W.2d 716 (leave denied, 385 Mich. 780). In People v. Calhoun (1971), 33 Mich.App. 141, 189 N.W.2d 743; ² People v. Bell (1971), 32 Mich.App. 375, 188 N.W.2d 909 (leave denied, 385 Mich. 769); People v. Graham (1971), 29 Mich.App. 528, 185 N.W.2d 627 (leave granted, 384 Mich. 832), ³ other panels of our Court took a different view of the matter. For reasons fully set out in Rolston, Williams, Hicks, and Seales, they are, in my opinion, correctly decided.

In People v. Fry (1969), 17 Mich.App. 229, 169 N.W.2d 168, we recognized that the tacit admission argument is impermissible, and that a failure to object does not necessarily preclude a defendant from raising the question on appeal. ⁴ In United States v. Brinson (CA 6, 1969), 411 F.2d 1057, and United States v. Nolan (CA 10, 1969), 416 F.2d 588, 594, the United States Courts of Appeals for the Sixth and Tenth Circuits ruled that asking a defendant on cross-examination why he did not tell the story he related at the trial to the FBI (Brinson) and arguing to the jury that his failure to do so was a tacit admission of guilt (Nolan) were plain error requiring reversal even though the issue had not been properly preserved by objection at the trial level.

In the present case, resolution of the disputed factual issues turned on the jury's assessment of the credibility of the two protagonists, the complainant and the defendant McColor. In such a case the prosecutor's violation of the defendant's constitutional right cannot properly be regarded as harmless. ⁵ Pertinent are the observations of our Court in People v. Hicks (1970), 22 Mich.App. 446, 452, 178 N.W.2d 193, 196:

'Juries composed of ordinary laymen not trained in the law tend to associate the exercise of the Fifth Amendment privilege with guilt rather than possible innocence and exposure to ambiguous compromising situations. While we cannot affirmatively say that every jury would so react, we cannot speculate that it would not.'

II.

The prosecutor's closing argument transgressed in many respects long established limitations. The statement that, 'From the evidence in this case, I sincerely say that I believe it was a proper charge, and the person who was charged, namely, Glenn McColor, is guilty,' violates the rule which precludes a prosecutor from expressing a personal opinion concerning the guilt of the accused. ⁶ It was also improper to suggest to the jury that it show its 'sincerity' by convicting the defendant. ⁷ Nor ought we to countenance the prosecutor's suggestion, by the following statements, that the defendant was a member of the criminal class:

'It is no strange thing for people out there to have guns, and perhaps this is the whole problem now. It seems like the criminals have all the guns * * * there are too many bad guys out there with guns. * * *

'Counsel says that the defendant has no record. Therefore, we should believe him. Don't you know that every man up there in Jackson prison was at one time in court for his first time? Maybe this is just the first time that Mr. McColor has ever been caught.' ⁸ (Emphasis supplied.)

Recently in People v. Montevecchio (1971), 32 Mich.App. 163, 188 N.W.2d 186, we reversed a conviction because the prosecutor had 'characterized the defendant as a professional criminal whose friends perjured themselves in testifying as to defendant's alibi' even though the issue had not been preserved for review at the trial level.

In this connection it should be noted that 'it is * * * the duty of the court * * * to check and control any intemperance of zeal or language that is not warranted by the facts and circumstances shown by the proofs.' People v. Aikin (1887), 66 Mich. 460, 480, 33 N.W. 821, 830. ⁹

It was also improper, in this trial for assault with intent to murder, to introduce an extraneous sideshow in the following manner:

'I wanted to see if there was truth and him (the defendant) to explain to us in the presence of his wife about Sandra Brown, the young lady he was with on the 15th, the portion of the 16th, and arrested with on the 17th. You heard that, and that goes to the credibility.' (The shooting occurred on the 16th; Sandra Brown was not with the defendant at that time.)

The prosecutor should stick to the pertinent facts and should not seek to convict the defendant through innuendo and character assassination. ¹⁰

III.

This next assignment of error shows the extent to which the prosecutor strayed from his proper role and the extent he was permitted to do so.

The defendant's father and wife, who testified concerning the altercation that resulted in the complainant being asked to leave the defendant's home and who were not present at the scene of the shooting and had no personal knowledge of the facts surrounding it, were asked on cross-examination by the prosecutor:

Of the defendant's father: 'Would you shoot me in the back?'

'You think that would be wrong?'

'Even if I say that I am going to kill you the next time I see you, would you shoot me in the back?'

Of the defendant's wife: 'If I took the gun that John had and told you that I was going to kill you, but I didn't, and a week after that would you shoot me in the back?'

'Do you believe it is wrong to shoot people in the back?'

The prosecutor may not establish norms of conduct in that fashion. It is entirely beside the point whether the defendant's father or wife or the defendant himself ¹¹ would shoot the prosecutor in the back. The issue was whether the defendant acted properly at the scene of the assault: whether he assaulted the victim, or whether the victim assaulted him; and whether the defendant acted criminally in the matter.

IV.

The jury was charged by the judge concerning included offenses. After the members of the jury had been deliberating for 20 minutes they returned to the courtroom and the following occurred:

'The Foreman: The question is the difference between assault and battery and felonious assault.

'The Court: All right. Felonious assault is any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon. Now, any object that is not enumerated, you have to find out whether it was dangerous or not, meaning that those we have enumerated are deemed to be dangerous in themselves. That is, by other dangerous...