People v. Thomas, Docket No. 243817.

• Decision Date: 04 May 2004
• Docket Number: Docket No. 243817.
• Citation: 678 N.W.2d 631,260 Mich. App. 450
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl THOMAS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

678 N.W.2d 631

260 Mich. App. 450

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl THOMAS, Defendant-Appellant.

Docket No. 243817.

Court of Appeals of Michigan.

Submitted January 7, 2004, at Detroit.

Decided February 3, 2004, at 9:05 a.m.

Released for Publication May 4, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Valerie M. Steer, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Jacqueline J. McCann) for the defendant on appeal.

Before: OWENS, P.J., and SCHUETTE and BORRELLO, JJ.

OWENS, P.J.

Defendant appeals as of right from his conviction by a jury of possession with intent to deliver more than fifty, but less than 225 grams of cocaine, MCL 333.7401(2)(a)(iii). Defendant was sentenced to ten to twenty years' imprisonment. We affirm.

On June 30, 2000, Detroit police officers executed a search warrant at 9122 Pinehurst in the city of Detroit. The officers found defendant sitting in the living room and they found a key ring with several keys on it during a search of his front pocket. Two of the keys matched locks in the apartment; one fit the front door and one unlocked a padlock on a closet door in one of the bedrooms. Inside the locked closet, the police found a large shopping bag containing eight individual sandwich bags, each containing cocaine, and over $10,000 in cash. The cocaine weighed slightly over 201 grams and had an estimated street value of $20,000. The police also found scales and more sandwich bags on the dining room table.

The police discovered paperwork and identification with defendant's name on it in the bedroom with the locked closet. These articles listed several different addresses for defendant, but at least four pieces indicated defendant's address was 9122 Pinehurst. No other documents identifying a different resident were found in the apartment.

At trial, defendant denied that he lived at 9122 Pinehurst and denied any knowledge, possession, or ownership of the cocaine discovered there. Defendant claimed that his daughter lived at that address with her mother, Scheherezade Taylor, and that he was merely there to pick her up. He denied having keys to the apartment or the padlock. He explained the papers listing his address as 9122 Pinehurst by claiming that he helped pay for repairs and maintenance on Taylor's car, and he further claimed that other documents with his name were taken from his car or his wallet, not from the bedroom in the apartment.

During cross-examination, defendant repeatedly accused the police officers of lying. He specifically claimed that they lied about finding the documents in the bedroom and the drugs in the closet, and about the keys. He further insisted that the police stole his wallet. Defendant also presented the testimony of Taylor and her mother. Both women accused the police of lying. Taylor claimed the padlock was broken and that no cocaine or measuring scales were in the apartment. Her mother testified that the police brought a bag with cocaine out of the basement, not from the bedroom. The jury rejected this testimony and found defendant guilty.

Defendant was sentenced on April 24, 2002. On January 21, 2003, he moved in propria persona for resentencing, claiming that the penalty provision of MCL 333.7401(2)(a)(iii) had been amended after his conviction to eliminate the mandatory minimum sentence of ten years. He argued that he should be resentenced under the amended penalty provision to a sentence within the sentencing guidelines. On March 10, 2003, a second motion for resentencing raising the same claim was filed on his behalf by counsel. The trial court denied defendant's motion, stating that the amended statute did not invalidate defendant's sentence or require resentencing. The court reasoned that statutes are presumed to operate prospectively unless the Legislature manifests a contrary intent and that there was no language in the statute expressing a legislative intent that the amendment was intended to be retroactive.

Defendant first contends that the prosecutor committed misconduct during his closing argument by vouching for the credibility of the prosecution's case when he explained that the search warrant used by the police to gain entrance to defendant's house was a court order signed by a judge after the judge determined that there were enough facts to support the warrant. Defendant also argues that the prosecutor vouched for the credibility of the police officer who obtained the warrant by stating that the officer was the affiant to the search warrant and that he worked for the Executive Protection Unit that was responsible for the mayor's safety. Finally, defendant claims that the prosecutor committed misconduct by appealing to the jury's sense of civic duty.

Where issues of prosecutorial misconduct are preserved, we review them de novo to determine if the defendant was denied a fair and impartial trial. People v. Ackerman, 257 Mich.App. 434, 448, 669 N.W.2d 818 (2003). But defendant failed to object to the prosecutor's statements; therefore, we review his claims for plain error that affected his substantial rights. Id. We will reverse only if we determine that, although defendant was actually innocent, the plain error caused him to be convicted, or if the error "seriously affected the fairness, integrity, or public reputation of judicial proceedings," regardless of his innocence. Id. at 449, 669 N.W.2d 818.

The prosecutor's remarks concerning the signing of the search warrant did not imply that the judge had special knowledge of the case or that the judge's decision to issue the warrant constituted a judicial expression of support for the prosecutor's case. The prosecutor was merely stating that the police had obtained a search warrant and that they followed proper procedures to obtain the warrant. These facts were already in evidence and the prosecutor is permitted to argue the evidence and all reasonable inferences arising from it. People v. Schutte, 240 Mich.App. 713, 721, 613 N.W.2d 370 (2000).

Furthermore, we consider issues of prosecutorial misconduct on a case-by-case basis by examining the record and evaluating the remarks in context, and in light of defendant's arguments. Id. Defendant argued that the police were lying and that the charges were a "set up." The prosecutor's remarks were properly responsive to defendant's theory of the case. Also, the trial court instructed the jurors that they must decide the case on the evidence and that the remarks of counsel were not evidence. This instruction was sufficient to eliminate any prejudice that might have resulted from the prosecutor's remarks. People v. Bahoda, 448 Mich. 261, 281, 531 N.W.2d 659 (1995); People v. Green, 228 Mich.App. 684, 693, 580 N.W.2d 444 (1998).

Regarding defendant's claim that the prosecutor vouched for the credibility of a police witness, a prosecutor may not vouch for the credibility of his witnesses by implying that he has some special knowledge of their truthfulness. Bahoda, supra at 276, 531 N.W.2d 659. But a prosecutor may comment on his own witnesses' credibility during closing argument, especially when there is conflicting evidence and the question of the defendant's guilt depends on which witnesses the jury believes. People v. Flanagan, 129 Mich.App. 786, 796, 342 N.W.2d 609 (1983).

Considered in context, the prosecutor was not implying that he had some special knowledge of the truthfulness of the police officer. In fact, the prosecutor made no comments at all about his personal knowledge or belief regarding the truthfulness of the police witnesses; he merely argued that the officers had no reason to lie. The prosecutor argued that lying on the stand would cost the officer his career and his position with the Executive Protection Unit. His comments emphasizing that the police utilized proper procedures to obtain a valid search warrant were also responsive to defendant's argument that he was the victim of a police conspiracy. Considered in context, and given their responsive nature, the prosecutor's comments were not improper. People v. Duncan, 402 Mich. 1, 16, 260 N.W.2d 58 (1977); People v. Vaughn, 200 Mich.App. 32, 39, 504 N.W.2d 2 (1993). Furthermore, any prejudice caused by the remarks could have been alleviated by a curative instruction given on a timely objection. Ackerman, supra at 449, 669 N.W.2d 818.

Regarding defendant's final claim of prosecutorial misconduct, it is improper for a prosecutor to appeal to the jury's civic duty by injecting issues broader than guilt or innocence or encouraging jurors to suspend their powers of judgment. Bahoda, supra at 282-283, 531 N.W.2d 659; People v. Truong (After Remand), 218 Mich.App. 325, 340, 553 N.W.2d 692 (1996). However, a prosecutor is given great latitude to argue the evidence and all inferences relating to his theory of the case. Bahoda, supra at 282, 531 N.W.2d 659. It is clear that the defense theory was that the police officers were lying and that this was a police conspiracy to falsely convict him. The prosecutor responded to this theory by arguing that the officers had no motive to lie. Taken in context, these statements were a fair comment on the evidence and were responsive to defendant's arguments. Duncan, supra.

Once again, to the extent that the prosecutor's comments crossed the line into a civic duty argument, any minimal prejudice was cured by the trial court's instructions that the jury had to decide the case on the evidence and that the remarks of counsel were not evidence. Bahoda, supra at 281, 531 N.W.2d 659. We therefore conclude that defendant has failed to establish that the prosecutor's responsive comments constituted outcome-determinative plain error.

Defendant next contends that his trial counsel's failure to object to the prosecutor's comments deprived him of the...