People v. Slater, Docket No. 6621

• Decision Date: 05 February 1970
• Docket Number: Docket No. 6621,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank SLATER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 786

175 N.W.2d 786

21 Mich.App. 561

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank SLATER, Defendant-Appellant.

Docket No. 6621.

Court of Appeals of Michigan, Division No. 2.

Feb. 5, 1970.

Released for Publication April 8, 1970.

Leave to Appeal Denied June 30, 1970.

William L. Mackay, Newman & Mackay, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., Ingham County, Lansing, for plaintiff-appellee.

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

FITZGERALD, Presiding Judge.

Defendant Frank Slater was charged with the murder of Napoleon Taylor on December 5, 1958, pursuant to C.L.1948, § 750.316 (Stat.Ann.1954 Rev. § 28.548). He was tried by a jury, convicted of first degree murder, and on July 1, 1959, he was sentenced to life imprisonment.

On January 11, 1965, a motion was made for a new trial, defendant asserting that the court erred in admitting over his objections his oral and written statement contrary to the rule adopted in People v. Walker (1965), 374 Mich. 331, 132 N.W.2d 87. A hearing was held to determine if defendant's statements were voluntary or involuntary. An order was subsequently entered on the basis of the hearing denying defendant's motion for a new trial. Leave was later granted for a delayed appeal.

The widow of the deceased who was a witness to her husband's murder testified that on November 23, 1958, defendant had spent most of the afternoon and evening in her home consuming alcoholic beverages with her husband. Late that evening, the deceased had become drowsy and dropped off to sleep. The witness further testified to the effect that the defendant, desirous of continued indulgence in the spirits, was unsuccessful in his efforts to rouse Taylor, whereupon he went into the kitchen and returned shortly thereafter with a 'jumbo' beer bottle and struck the deceased on the head. A struggle then ensued between the two men, defendant gained the upper hand and apparently 'burked' ¹ the deceased.

Defendant makes numerous appegations of error on this appeal. The most meritorious and those to which the Court will address itself, concern the alleged impropriety of certain statements made by the prosecution during the trial. The first question with which we are faced concerns an alleged error by the prosecutor in asking whether defense counsel was referring to 'the murder charge or the other one?' Defendant contends that it was prejudicial error for the prosecutor to interject during the examination of a police detective.

The record discloses that defendant's attorney asked the detective if he had advised the desk officers at the time of the booking that defendant could see no one. At this point, the prosecutor interrupted and asked 'whether it was the murder charge or the other one?' Defendant contends that at this time no charge was lodged against him and the aforementioned remark was indicative of a deliberate attempt to convict him in violation of the fundamental rules of evidence. Defendant avers that the court erred in denying the motion for a mistrial.

The record in the instant case indicates that there were two occasions when the prosecutor interposed statements which made reference to the fact that defendant had been booked on another charge. The people argue that defendant had in fact been booked on violation of his parole as well as the murder of Napoleon Taylor. While it is evident that some confusion existed regarding the time when the various charges were made against defendant, the remarks made by the prosecution were unnecessary. The information which the prosecutor was attempting to elicit could have been established by a less prejudicial line of questioning.

In People v. Van Wie (1969), 17 Mich.App. 77, 169 N.W.2d 160, this Court reviewed testimony elicited from a witness by the prosecution which made reference to defendant's status as a 'con'. In its opinion, the Court stated:

'We have no way of knowing whether the prosecutor anticipated the response regarding the defendant's prior conviction record. The transcript does show that the prosecutor interviewed witnesses prior to trial. Be that as it may, the 'con' response was emphasized by the prosecutor's request, innocent or guileful, that the witness repeat the answer. The prejudice to the defendant is apparent.'

Van Wie was reversed because of the injection of the highly prejudicial and irrelevant testimony, which deprived the defendant of a fair trial.

It is difficult to ascertain whether the remarks made in the instant case were deliberate or not, nevertheless, they constitute the same kind of prejudice held to be reversible error in Van Wie.

We are next asked to consider the statement made by the prosecutor during rebuttal to the closing statement of the defense. The prosecutor stated:

'Now, I don't know whether Mrs. Taylor knows more or whether she doesn't, but I do know this much: that this fellow here, Slater, is the guy who killed Napoleon Taylor.'

Defendant argues that Michigan law precludes the prosecutor from advancing his personal opinion with regard to the guilt of defendant. The people contend that the above comments of the prosecuting attorney did not constitute grounds for reversal since no objection was raised at the trial and, further, that in its context it is not of such a nature as should merit reversal.

An examination of the authorities indicates that while it is not error for the prosecutor to expound his beliefs regarding the guilt of a defendant based on the evidence, he should not be permitted to state what he personally thinks or believes...