People v. Mitten

• Decision Date: 06 December 1972
• Docket Number: No. 2,Docket No. 11885,2
• Citation: 44 Mich.App. 64,205 N.W.2d 47
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Edward MITTEN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 47

205 N.W.2d 47

44 Mich.App. 64

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Edward MITTEN, Defendant-Appellant.

Docket No. 11885.

Court of Appeals of Michigan, Division No. 2.

Dec. 6, 1972.

Released for Publication March 20, 1973.

Daniel T. Stepek, Daner, Freeman, McKenzie & Matthews, Mt. Clemens, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BRONSON and T. M. BURNS, JJ.

BRONSON, Judge.

Defendant was convicted by jury verdict of manslaughter and sentenced to serve a prison term of 7 to 15 years. M.C.L.A. § 750.321; M.S.A. § 28.553. From this conviction defendant appeals as a matter of right.

On the evening of June 6, 1970, Michigan State Police officers observed an automobile with its headlights on in a construction area while on patrol. Upon investigation the officers confronted defendant, who described having an altercation with one Charles Austin. Following defendant's direction, they discovered Mr. Austin at the bottom of a hill adjacent to the car. Mr. Austin was naked from the waist down and had been severely beaten. This victim was taken directly to a hospital, treated for his wounds and discharged the following morning. On June 8, 1970, Mr. Austin was readmitted to the hospital in a state of unconsciousness and subsequently died of a subdural hematoma.

Defendant was charged with commonlaw murder and a jury trial was conducted. At trial defendant supported his claim of self-defense by testimony that during his conversations with deceased some reference to homosexual conduct was made and the altercation proceeded from deceased's accusation that defendant was a homosexual. Defendant responded to deceased's alleged production of a knife by hitting him in the head with a wine bottle. Defendant stated that he was attempting to take the deceased to a hospital when he became lost near the construction site. Defendant claimed that at this time the altercation was renewed by deceased's attempt to grab an object on the floor of the car. During this struggle defendant pulled the deceased out of the car and they rolled down the hill. Defendant accounted for the deceased's disrobed condition by the statement that his pants slipped in the muddy terrain as defendant pulled him up the hill. At the conclusion of trial, the jury returned a verdict of guilty upon the lesser included offense of manslaughter. Defendant challenges this conviction alleging that (1) the prosecutor's closing arguments were so prejudicial as to cause a miscarriage of justice, (2) newly discovered evidence in the form of deceased's criminal record justifies a new trial, and (3) the failure to receive a fair and impartial trial requires a reversal of his conviction.

Defendant's challenge to the prosecutor's closing argument was not preserved below by a timely objection. If the prejudicial effect of this argument could not be cured by a cautionary instruction, such objection becomes unnecessary. People v. Humphreys, 24 Mich.App. 411, 180 N.W.2d 328 (1970); People v. Montevecchio, 32 Mich.App. 163, 188 N.W.2d 186 (1971); People v. Majette, 39 Mich.App. 35, 197 N.W.2d 78 (1972). Accordingly, review is granted when the error causes a miscarriage of justice. People v. Smith, 16 Mich.App. 198, 167 N.W.2d 832 (1969); People v. Page, 27 Mich.App. 682, 183 N.W.2d 838 (1970).

In an attempt to explain his theory that defendant assaulted deceased for his refusal to engage in this type of conduct, the prosecutor's closing argument to the jury contained references to homosexual conduct. The offensive nature of this behavior creates a duty upon the prosecutor to be cautious to avoid conduct which would deny defendant a fair and impartial trial. People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969). But the prosecutor's conduct in the instant case was in conformity with this principle. Each of his challenged statements contained a reference to the fact that deceased was found nude from the waist down and that the altercation was precipitated by discussion regarding homosexual conduct. The references to these evidentiary facts were offered for the sole purpose of establishing a logical explanation of their...