People v. Minor

• Decision Date: 06 October 1995
• Docket Number: Docket No. 163690
• Citation: 541 N.W.2d 576,213 Mich.App. 682
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lorenzo C. MINOR, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 576

541 N.W.2d 576

213 Mich.App. 682

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lorenzo C. MINOR, Defendant-Appellant.

Docket No. 163690.

Court of Appeals of Michigan.

Submitted May 16, 1995, at Lansing.

Decided Oct. 6, 1995, at 9:05 a.m.

Released for Publication Dec. 18, 1995.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Chief of Appeals, Research, and Training, for the People.

Joseph J. Farah, Flint, for defendant on appeal.

Before FITZGERALD, P.J., and MARKMAN and SAPALA, ^* JJ.

MARKMAN, Judge.

Defendant appeals as of right his convictions by a jury of first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, larceny from a person, M.C.L. § 750.357; M.S.A. § 28.589, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). On March 4, 1993, defendant was sentenced to life imprisonment without parole for the murder conviction and ten to fifteen years for the larceny conviction. These sentences were to be served concurrently but consecutively to the two-year sentence received for the felony-firearm conviction. We affirm with regard to the first-degree murder and felony-firearm convictions and reverse with regard to the larceny conviction.

Defendant first argues that the trial court erred in granting the prosecutor's motion to limit cross-examination of a witness, Dwayne Cordell, who was defendant's companion at the time of the shooting that led to defendant's convictions. The court ruled that defendant's counsel could not question Cordell with respect to a grant of immunity that Cordell had received from the prosecutor.

Whether a trial court has properly limited cross-examination is reviewed for an abuse of discretion. People v. Vanderhoof, 234 Mich. 419, 423, 208 N.W. 458 (1926); People v. Mumford, 183 Mich.App. 149, 154, 455 N.W.2d 51 (1990). Where an accomplice--or in this case a "companion"--has been granted immunity in order to secure his testimony, it is clear error for the court to deny the defendant the opportunity to elicit this information at trial. Id. at 152, 455 N.W.2d 51; People v. Atkins, 397 Mich. 163, 173, 243 N.W.2d 292 (1976). A witness' motivation for testifying is always of undeniable relevance and a defendant is entitled to have the jury consider any fact that may have influenced the witness' testimony. Mumford, supra at 152, 455 N.W.2d 51.

However plain this error, we are not persuaded that reversal is required. M.C.L. § 769.26; M.S.A. § 28.1096 provides:

No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.

While the defendant normally bears the burden of establishing error requiring reversal, People v. Rowell, 14 Mich.App. 190, 196, 165 N.W.2d 423 (1968), where the error is of constitutional dimension, the burden of demonstrating its harmlessness rests with the prosecutor. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

Two inquiries are pertinent to whether an error of constitutional dimension is harmless. First, is the error harmless beyond a reasonable doubt? People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972); People v. Nixten, 160 Mich.App. 203, 211, 408 N.W.2d 77 (1987). An error is harmless beyond a reasonable doubt when it has had no effect on the verdict. People v. Bigge, 297 Mich. 58, 72, 297 N.W. 70 (1941); People v. Thinel (On Remand), 164 Mich.App. 717, 721, 417 N.W.2d 585 (1987). Second, is the error so offensive to the maintenance of a sound judicial process that it can never be regarded as harmless? Robinson, supra; Nixten, supra. An error may run afoul of this standard if it was deliberately injected into the proceedings by the prosecution, if it deprived the defendant of a fundamental element of the adversarial process, or if it was particularly persuasive or inflammatory. Id.

In the instant case, Cordell's testimony was the testimony most favorable to defendant presented at trial, other than defendant's own testimony. Cordell was the only witness who, in addition to identifying defendant as the shooter, corroborated defendant's statement that the shooting victim--a customer at a gasoline station--was approaching the defendant when the shooting occurred, after defendant had robbed the station attendant. This testimony had the effect of bolstering defendant's claim that the shooting had occurred in the course of "self-defense." ¹ Two other eyewitnesses--the service station attendant and another customer--both testified that defendant was the shooter and that the victim had made no moves in his direction. A third witness, an individual seated in the victim's car at the time of the shooting, also testified about circumstantial events that surrounded the shooting.

Thus, there was substantial evidence beyond the testimony of Cordell that defendant was the shooter. Contrary to defendant's claim that the prosecutor "highlighted" Cordell's testimony in his closing argument, the prosecutor referenced all the witnesses' statements in a roughly equivalent manner. Had the jury been aware of Cordell's grant of immunity, it would have been apprised of a possible motive for his testimony and may have found him to be less credible as a result. Had this occurred, we believe principally that the jury would have been less inclined to believe Cordell's testimony that supported defendant's theory of "self-defense." Further, Cordell's testimony was fully consistent with statements that he had provided to the police before any immunity agreement was reached with the prosecutors. ² To the extent that Cordell was effectively impeached by cross-examination because of the immunity agreement, such identity of testimony would certainly have contributed to his rehabilitation.

In view of the presence of the other eyewitnesses, we do not believe that the effect of defendant's diminished cross-examination of Cordell deprived him of a more favorable verdict. Nor do we believe that the error resulted in a miscarriage of justice. Robinson, supra at 560-561, 194 N.W.2d 709. Accordingly, the court's error was harmless in fact.

Next, we look to determine whether the error was "so offensive to the maintenance of justice" that it could never be regarded as harmless. Such errors would include the right to trial by jury, the right to counsel, the right to an impartial judge, and the right not to be subject to forcibly coerced confessions. Chapman, supra at 23, n. 8, 87 S.Ct. at 828, n. 8; People v. Swan, 56 Mich.App. 22, 32, n. 8, 223 N.W.2d 346 (1974). These are errors whose consequences are so pervasive that their effect "cannot be fully assessed." Id. at 32 n. 6, 223 N.W.2d 346. Notwithstanding the importance of cross-examination in the search for the truth, not every limitation upon cross-examination is error requiring reversal. People v. Holliday, 144 Mich.App. 560, 567, 376 N.W.2d 154 (1985); People v. Guy, 121 Mich.App. 592, 611, 329 N.W.2d 435 (1982); People v. Johnston, 76 Mich.App. 332, 336, 256 N.W.2d 782 (1977); People v. Crutchfield, 62 Mich.App. 149, 155-156, 233 N.W.2d 507 (1975); cf. People v. Monasterski, 105 Mich.App. 645, 307 N.W.2d 394 (1981). In particular, a claim that the denial of cross-examination has prevented the exploration of a witness' bias is subject to harmless error analysis. People v. Bushard, 444 Mich. 384, 391, n. 7, 508 N.W.2d 745 (1993), citing Chapman, supra at 24, 87 S.Ct. at 828; Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). See also Crane v. Kentucky, 476 U.S. 683, 692, 106 S.Ct. 2142, 2147, 90 L.Ed.2d 636 (1986). Such an error is not necessarily of constitutional dimension, Bushard, supra; cf. Mumford, supra at 153, 455 N.W.2d 51, although even a violation of a federal constitutional right is subject to harmless error analysis. Chapman, supra; Bushard, supra; People v. Johnson, 427 Mich. 98, 115, n. 14, 398 N.W.2d 219 (1986); People v. Severance, 43 Mich.App. 394, 204 N.W.2d 357 (1972).

In finding that the error in this case does not require automatic reversal, we are substantially influenced by our conclusion that a reasonable estimation can be made of the effect of this error and that such effect was not prejudicial to defendant. Even where an error is of constitutional magnitude, its harmlessness in fact is a significant consideration in determining whether the error warrants reversal. Further, we do not believe that error was "deliberately injected into the proceedings by the prosecution." Although at the behest of the prosecution, the error in this case--the improper limitation of cross-examination--was error by the court. Nor do we believe that the error was "particularly persuasive or inflammatory." It was not persuasive for the reasons we have already set forth in support of the finding that the error was harmless in fact; it was not inflammatory because the error resulted in the subtraction of testimony rather than its addition.

While clearly there are circumstances in which an error, such as that which occurred here, would require reversal, People v. Mobley, 390 Mich. 57, 65, 210 N.W.2d 327 (1973), we do not believe that such a remedy is warranted in this specific case. Rather, we believe that the error was harmless beyond a reasonable doubt.

Defendant next argues that the prosecutor denied defendant his "constitutional rights to counsel and a fair trial," Const. 1963, art. 1, § 20; U.S. Const., Am. VI, when he told the jury not to blame defendant's counsel for defendant's "ridiculous...