People v. Swartz

• Decision Date: 12 October 1988
• Docket Number: Docket No. 89355
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Lee SWARTZ, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 905

429 N.W.2d 905

171 Mich.App. 364

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Lee SWARTZ, Defendant-Appellant.

Docket No. 89355.

Court of Appeals of Michigan.

Submitted March 4, 1987.

Decided Sept. 8, 1988.

Released for Publication Oct. 12, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Patrick M. Shannon, Pros. Atty., and Raymond O. Howd, Asst. Atty. Gen., for the People.

State Appellate Defender by P.E. Bennett, for defendant-appellant on appeal.

Before HOOD, P.J., and HOLBROOK and STEMPIEN, ^* JJ.

PER CURIAM.

Defendant appeals as of right from his September 19, 1985, conviction in the Chippewa Circuit Court of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e). Defendant further asks this Court to remand his case to the circuit court for the purpose of correcting inaccuracies in his presentence report. We affirm defendant's conviction and remand to the circuit court for correction of the presentence report.

Defendant was convicted of the October 25, 1984, sexual assault of a female corrections officer at the Kinross Correctional Facility, where defendant was an inmate. The victim testified that defendant grabbed her from behind as she was leaving a staff bathroom, held a putty knife to her throat, and forced her back into the bathroom. Defendant turned off the bathroom light and told the victim that he wanted to talk to her; he also told her to take off her jacket and slacks. When the victim could not remove her slacks because they would not slide over her shoes, defendant removed them, and sexually assaulted her. After the assault, defendant told the victim that he would turn himself in.

Defendant testified that he had been depressed and lonely on the date of the incident and had grabbed the victim because he wanted to talk to her. When he was in the bathroom with her, he pulled her pants down because he did not want her to get away. The victim told defendant that she was going to vomit, so defendant told her to bend over and put her head between her legs. She then fell on the floor and started sobbing. At this point, defendant testified, he left the bathroom. He did not recall having sexual relations with the victim and testified that he did not have the intent to harm or murder the victim.

On the night of the incident, the victim was examined by Dr. Blake Slater, a general practitioner at the War Memorial Hospital. Dr. Slater used a sexual assault kit. He took some vaginal smears which indicated that there was motile sperm in the vaginal vault. Dr. Slater also noted a red area on the victim's neck. He testified that, based upon his total examination of the victim, he believed that she had been sexually assaulted.

The sexual assault kit was analyzed by Dennis Mapes, a crime laboratory scientist with the Michigan State Police. He testified that he found semen on the vaginal swabs taken from the victim and on her underpants.

In addition to first-degree criminal sexual conduct, defendant had been charged with assault with intent to commit murder. After the prosecution rested its case, defendant moved the court for a directed verdict on the count of assault with intent to commit murder, asserting that no evidence had been presented that he had an actual intent to kill. The circuit judge denied defendant's motion.

The jury was instructed on first-degree criminal sexual conduct and lesser-included offenses, and assault with intent to commit murder and lesser-included offenses. The circuit court instructed the jury to return only one verdict on the charges. The jury's verdict was guilty as to first-degree criminal sexual conduct. Defendant received a sentence of life imprisonment to be served consecutive to the term he had been serving.

Defendant argues that he should receive a new trial, claiming the following errors: (1) Although defense counsel did not object at trial, defendant asserts that he was denied a fair trial because the prosecutor injected impermissible arguments into his opening and closing statements. (2) Defendant contends that the trial judge erroneously permitted Dr. Slater to testify as an expert witness. (3) Defendant contends that the trial judge erroneously denied his motion for a directed verdict on the charge of assault with the intent to commit murder.

Additionally, defendant requests that his case be remanded to correct inaccuracies in his presentence report. ¹

I

Defendant argues that the prosecutor injected several types of impermissible arguments into his opening and closing statements at trial. First, defendant asserts that the prosecutor injected his personal opinion about defendant's guilt. Second, the prosecutor is said to have appealed to the jury to sympathize with the victim. Finally, defendant maintains that the prosecutor relied on a "civic duty" argument.

Where defense counsel fails to object to the prosecutor's remarks during trial, appellate review is precluded unless the prejudicial effect could not have been cured by a cautionary instruction and failure to consider the issue would result in a miscarriage of justice. People v. Jansson, 116 Mich.App. 674, 323 N.W.2d 508 (1982). Applying this standard in the instant case, we find no grounds for reversal based upon the prosecutor's remarks in his opening and closing statements.

Defendant maintains that the following were improper statements of personal opinion which suggested to the jury that the prosecutor's office had already determined defendant's guilt:

(a) "I have my scheme of looking at things, and I feel that this is probably one of the most serious [criminal cases] that I have ever prosecuted." [From opening statement.]

(b) "This is as serious a case as you will ever see or ever hear." [From opening statement.]

(c) "I'm certain--certain that you will feel the same way I do, that in fact a criminal sexual conduct in the first degree with the use of a knife occurred, and that also this defendant assaulted this woman with the intent to commit murder." [From opening statement.]

(d) "I am assured that at the end of the evidence in this particular case you will feel the same way that I do." [From opening statement.]

(e) "I take a strong line on these type[s] of cases." [From opening statement.]

(f) "I--my personal feeling is that this is an extremely assaultive situation, and that it is not entitled, or the defendant is not entitled to anything less [than first degree criminal sexual conduct or assault with intent to commit murder]. That type of activity cannot be tolerated." [From closing argument.]

We find that remarks (a) and (b), supra, were not improper statements of personal opinion because they did not express an opinion about defendant's guilt or innocence. These remarks concerned the serious nature of the charges brought against defendant.

Remarks (c) and (d), supra, are also not improper. The prosecutor's remarks must be read as a whole. People v. Porterfield, 128 Mich.App. 35, 339 N.W.2d 683 (1983), lv. den. 419 Mich. 854 (1984); People v. Cowell, 44 Mich.App. 623, 205 N.W.2d 600 (1973). While the prosecutor may not place the prestige of his office behind the assertion that the defendant is guilty, he may argue that the evidence establishes defendant's guilt. Where the prosecutor's argument is based upon the evidence and does not suggest that the jury decide the case on the authority of the prosecutor's office, the words "I believe" or "I want you to convict" are not improper. People v. Jansson, supra, 116 Mich.App. 693-694, 323 N.W.2d 508, citing People v. Yearrell, 101 Mich.App. 164, 300 N.W.2d 483 (1980).

Reading remarks (c) and (d), supra, in context, we characterize them as the prosecutor's statement of what he expected the evidence to show at trial. Defendant's excerpted remark (c), supra, fails to include the sentence which follows, namely, "And I feel that [way] because of the evidence in this particular case." Remark (d), supra, even in its excerpted form, refers to the evidence as the basis for the prosecutor's feeling. Accordingly, we hold that remarks (c) and (d) were not impermissible.

Remarks (e) and (f) are arguably expressions of the prosecutor's personal beliefs. However, we do not find them so prejudicial that their effect could not have been cured by a cautionary instruction. Defendant is incorrect in his reliance on People v. Humphreys, 24 Mich.App. 411, 180 N.W.2d 328 (1970), to support the contention that the prosecutor's remarks denied him a fair trial. In People v. Humphreys, this Court reversed the defendant's conviction and ordered a new trial, holding that, because the case involved a close question of fact, there was no certainty that an instruction could have cured the prejudicial effect of the prosecutor's statement of personal opinion. 24 Mich.App. 419, 180 N.W.2d 328. The instant case is distinguishable from People v. Humphreys because it presents no close factual issue. The testimony of two medical experts, defendant, the victim and other prison personnel supply ample evidence that the defendant had sexually assaulted the victim. In cases presenting no close factual issue, "the prejudicial impact of [expressions of personal opinion] can be countered by an instruction from the bench, and therefore there is no need for a new trial ... if the court instructs the jury to disregard the remark." 24 Mich.App. 414, 180 N.W.2d 328.

Defendant cites the following remarks as improper appeals to the jury to sympathize with the victim:

(g) "I will call the victim as a witness. To let you understand what she has gone through and what she went through almost a year ago, and what she is continuing to go through since that time. This is a mother of a seven-year-old child who is working at the prison, trying to support the family, and then to walk into a situation like she did and to be raped. This is as serious a case as you will ever see or ever hear. It is as...