People v. Springs

• Decision Date: 02 June 1980
• Docket Number: Docket No. 78-3954
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ezekiel SPRINGS, Jr., Defendant-Appellant. 101 Mich.App. 118, 300 N.W.2d 315
• Court: Court of Appeal of Michigan — District of US

Page 315

300 N.W.2d 315

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ezekiel SPRINGS, Jr., Defendant-Appellant.

Docket No. 78-3954.

101 Mich.App. 118, 300 N.W.2d 315

Court of Appeals of Michigan.

June 2, 1980.

Released for Publication Jan. 29, 1981.

[101 MICHAPP 120] Arthur J. Tarnow, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty., Carol S. Irons, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., BEASLEY and BOWLES, ^* JJ.

BOWLES, Judge.

Defendant was charged with felonious assault, contrary to M.C.L. § 750.82; M.S.A. § 28.277, and unlawfully, feloniously and wickedly inducing, persuading, inveigling or enticing a female person to become a prostitute (pandering), [101 MICHAPP 121] contrary to M.C.L. § 750.455; M.S.A. § 28.710. Defendant was acquitted by a jury on the assault charge but was found guilty on the pandering charge. He was sentenced as an habitual offender to a 15 to 40 year term of imprisonment and now appeals as of right.

Defendant contends that the prosecutor's conduct throughout the course of the proceedings deprived him of a fair trial. It is the duty of the prosecutor to present evidence against a defendant in a zealous manner within proper limits. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969), People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971). The foremost obligation of the prosecutor is to seek justice. ¹ As Michigan Supreme Court Justice Campbell noted almost a century ago:

"Nothing can bring more contempt and suspicion on the administration of justice than the failure of its ministers to respect justice." ²

The thrust of the prosecutor's strategy in this case was to depict defendant as a bad man by making repeated references to other illegal acts allegedly committed by defendant or other witnesses. The prosecutor made his "game plan" obvious during argument on whether a certain question was proper:

"I think it's very probative, Your Honor. The question is whether or not the defendant is a pimp, whether or not he lives off the earnings of prostitutes, whether or not he engages in enticing and inveigling and getting [101 MICHAPP 122] women not only to engage in and become prostitutes, or whether or not he associates with them, and allow the jury to make legal and lawful inferences that they can make from the association of those witnesses that are presented.

"We did not present the witness. She was cross-examined. She was presented by the defendant to substantiate some sort of theory that the defense is working under. And it is probative to indicate not only you're not impeaching her by a criminal record, but showing the varying activities for which the defendant is on trial. That is, whether or not those individuals with whom he associates are prostitutes and whether or not they engage in acts of prostitution.

"I think its highly I think it's it's ludicrous to say that if he is surrounded by a number of women who have engaged in prostitution who admit that they have engaged in prostitution, but have not been caught by the police, that they are not allowed to be asked that question."

These sentiments were repeated after the trial court ruled that a witness could be asked a question about her prior association with a person involved in pornography, but unrelated to defendant, for the limited purpose of impeachment. The prosecutor objected to this limitation upon testimony elicited by the question and the following ensued:

"(Assistant prosecutor): It's beyond that Your Honor. Excuse me, I hate to interrupt. It's beyond that, it's what manner of person is here.

"THE COURT: Well

"(Assistant prosecutor): In other words not to say that she's a liar, but we're just showing for the most part, maybe all, that what type of individual this is, what type of individual is Donna Decker, and then their relationship with the defendant.

"We are charging him with being a pimp, not an armed robber or anything of that sort. The nature of [101 MICHAPP 123] the case is sex and the use of women to engage in sexual intercourse so the proceeds can float to a pimp.

"This is exactly the situation that we brought out in cross examination of defendant's witnesses. We did not bring them in. They were brought in and we're showing the type of background that these individuals are. Thank you."

Defendant was subject to a litany of allegations concerning his past conduct which were not charged in the information. During his case in chief the prosecutor brought before the jury.

1. Hearsay testimony from complainant's guardian detailing the events in question and possibly leading jurors to infer that defendant was using 13 and 14-year-old girls as prostitutes,

2. Evidence concerning marijuana use by defendant at a disco that he owned and that he supplied marijuana to others,

3. Testimony from Betty Scott, repeated on several occasions, that defendant was her pimp,

4. Testimony that defendant had slapped Ms. Scott twice in the past without reason used for the purpose of proving defendant's guilt on the felonious assault charge on the theory that if he did it once he'd probably do it again,

5. Witnesses who were asked if they knew Betty Scott was a prostitute working for defendant,

6. Another witness who was asked if she was a prostitute working for defendant,

7. Questions concerning whether defendant sold beer at his disco without a license,

8. Testimony from Roger Fee that he had told the complainant that he had heard defendant was known to beat women this was elicited despite a court ruling that the testimony was not admissible, and

9. Testimony from Susan Hatfield that Donna [101 MICHAPP 124] Decker had told her that defendant was currently on parole or that he had been in prison.

The prosecutor also inquired into the collateral matter of the alleged criminal conduct of other persons. Donna Decker was asked, over objection, whether she had committed an act of prostitution at the age of 16, long before she had met defendant. Ms. Decker was also asked to detail her activities with a Mr. Tabor, an individual with absolutely no connection to this case. ³

Similarly, Susan Hatfield was asked about her relationships with Mr. Tabor and whether she had induced Ms. Decker to engage in prostitution at the age of 16.

Defendant, himself, was asked about his alleged failure to pay child support and personal debts. The prosecutor further inquired about his living off the earnings of prostitutes.

It is patently clear that the prosecutor exceeded the bounds of legitimate prosecutorial zeal and tactics. Due process requires that a defendant not be convicted for what he has done in the past. The United States Supreme Court held in Michelson v. United States, 335 U.S. 469, 475-476, 69 S.Ct. 213, 218-219, 93 L.Ed. 168 (1948), that:

"The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and [101 MICHAPP 125] deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice." (Footnotes omitted).

The most disturbing aspect of the prosecutor's behavior was his blatant injection of race as an issue in the trial. Defendant was black, while most of the women allegedly involved with him were white. At the outset of trial the prosecutor established that the complainant's boyfriend was white. One witness was asked if many white girls frequented defendant's disco. Other witnesses were asked if alleged prostitutes working for defendant were white or black. Inquiries were also made concerning the race of the men who sought defendant's prostitutes. The prosecutor read a letter written by defendant to the judge before trial accusing the prosecution of a racial motivation in bringing the case. He also inquired about the race of defendant's prior trial counsel. ⁴

Had the prosecutor otherwise acted properly in all respects this would have mandated reversal. The injection of race into a trial constitutes reversible error. People v. Hill, 258 Mich. 79, 87-89, 241 N.W. 873 (1932), United States v. Grey, 422 F.2d 1043, 1045-1046 (CA 6, 1970).

Defendant also contends that certain comments made by the trial judge require reversal of his [101 MICHAPP 126] conviction. This claim of error relates to an incident during trial when one of the jurors expressed concern over the fact that defendant was looking at the list of jurors' names. The trial judge interviewed each juror in chambers separately with counsel.

After assuring each juror individually that he or she need not worry, he stated in the presence of all:

"Let me say this, that even though your name might be mentioned, I have never in all the time I've set (sic ) here had anyone intimidated after or during the trial, as far as the name coming before anyone in that courtroom, including the defendant or witnesses and whatnot.

"I have never been threatened in the nineteen years that I've been on the bench, and I've been tooling with I've been around criminals since 1946. That is in the supervisory capacity or dealing with them in some way or other, and I've never had any problems with them whatsoever."

Admittedly, the trial judge faced a most difficult and sensitive problem, but the court's remarks, particularly when considered with the conduct of the prosecutor, had the effect of characterizing...