People v. Wheeler, Docket No. 9859

• Decision Date: 21 May 1971
• Docket Number: No. 1,Docket No. 9859,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lorenzo WHEELER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 325

190 N.W.2d 325

33 Mich.App. 733

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lorenzo WHEELER, Defendant-Appellant.

Docket No. 9859.

Court of Appeals of Michigan, Division No. 1.

May 21, 1971.

Released for Publication Oct. 11, 1971.

Leave to Appeal Denied Nov. 16, 1971.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and LEVIN, JJ.

DANHOF, Judge.

Defendant was convicted by jury trial of breaking and entering with intent to commit larceny. M.C.L.A. § 750.110 (Stat.Ann.1970 Cum.Supp. § 28.305). He now appeals.

The defendant raises numerous allegations of error most of which do not merit discussion. The one issue of substance involves allegedly improper remarks made by the prosecutor in his closing argument.

While we do not condone the prosecutor's remarks we do not believe that a reversal is required. The defendant failed to object to the prosecutor's remarks, and therefore, we will not reverse absent a miscarriage of justice. People v. Smith (1969), 16 Mich.App. 198, 167 N.W.2d 832. Recently this Court said in People v. Rowls (1970), 28 Mich.App. 190, 195, 184 N.W.2d 332, 335:

'It is well settled in the case of errors which are curable by a cautionary instruction that a conviction will not be reversed where the defendant has allowed the impact of the prosecutor's remarks to go to the jury without objection. People v. Humphreys (1970), 24 Mich.App. 411, 180 N.W.2d 328; People v. Smith (1969), 16 Mich.App. 198, 167 N.W.2d 832. Since the error here was not so prejudicial that it could have not been cured by an instruction, People v. Cipriano (1927), 238 Mich. 332, 213 N.W. 104, this assignment of error is without merit.'

The evidence against the defendant was overwhelming and we do not believe the jury could arrive at any conclusion other than that the defendant was guilty. In People v. Peck (1907), 147 Mick. 84, 95, 110 N.W. 495, 498, the Supreme Court said:

'We are not disposed to reverse convictions in criminal cases because of the impassioned arguments of the prosecuting officers unless we can clearly see that such arguments were unwarranted by the evidence and probably contributed to the result. The verdict of the jury is the only one they could have honestly rendered upon this record.'

Affirmed.

LEVIN, Judge (dissenting).

The defendant, Lorenzo Wheeler, was convicted by a jury of breaking and entering a bar with intent to commit larceny. He contends that certain remarks made by the prosecutor in his closing jury argument require a new trial. The majority rule that the failure of defendant's lawyer to object precludes our consideration of the issue.

The case was submitted to the jury on the contradictory testimony outlined in the margin. ¹ In his closing argument the prosecutor exhorted the jury to show support for the police by returning a verdict of guilty and, in effect, confronted them with the implicit threat that without such support the police might not long continue to provide needed protection:

'I have to do my responsibility to the best of my ability. I think in this instant to counter act that, I think it is high-time that we look at the situation when they start saying the police, the police, oh my God, they are so, and yet we want them, and yet we need them, how much can they take? How much can they take, sometimes we wonder why they remain in their employment trying to do their job under circumstances like this and they have to sit here and listen to this sort of thing. The verdict, ladies and gentlemen, should be guilty as charged. It gives me no pleasure to point a finger at any man, but in this case, I submit, the defendant brings upon himself a verdict of guilty as charged, that is of breaking and entering in there, he is the only one there with the intent to commit larceny, and your verdict in substance would be on this record, Mr. Wheeler, there is no reasonable alternative we have, whether we like to or not, but to find you guilty as charged. Thank you very much.'

We are not faced with inadvertence, but with a conscious attempt to sway the jurors by playing upon their fears. Jurors do not have a duty to support their local police; their duty is to decide fairly between the people and the defendant. ²

'The duty of the prosecutor is to seek justice, not merely to convict.' American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function, Standard 1.1(c).

'The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.' Standard 5.8(c).

'The prosecutor should refrain from arguments which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.' Standard 5.8(d).

The majority's statement that the evidence of the defendant's guilt was overwhelming is true only if we adopt the reasoning implicit in the prosecutor's argument to the effect that in a swearing contest between police officers and an accused person there is a duty to credit the version of the police. While jurors may well tend to decide that policemen are more credible than a defendant with a record of prior convictions, we cannot properly adopt such a preference as a rule of law.

An assignment of error based on improper prosecutorial argument will be considered for the first time on appeal if the appellate court concludes that the impropriety could not have been cured by a cautionary instruction even if timely objection had been made. ³ In stating and applying that general principle the appellate courts have not explained the kind of cautionary instruction required to overcome the impropriety. ⁴

In the present case, the mere sustaining of an objection by the defendant's lawyer would not have dispelled the prejudicial effect of the prosecutor's statements to the jury immediately before its deliberation.

While it is the prosecutor's duty to see to it that the defendant receives a fair trial, ⁵ the ultimate responsibility for assuring the defendant a fair trial rests with the trial judge. ⁶ Where the prosecutor engages in improper and prejudicial remarks, the judge should intervene even though the defendant's trial lawyer sits idly in his chair. ⁷ This is especially true where the court is aware that the defendant's lawyer is court-appointed. ⁸

I am persuaded that a timely objection by the defendant's trial lawyer in this case would not have elicited from the court the kind of vigorous and unequivocal rebuke which would have been necessary to effect a cure.

'It is important that justice be done but it is also important that justice seem to be done. 'Even those guilty of the most heinous offenses are entitled to a fair trial.' * * * if (a guilty man) is convicted in a way inconsistent with the fairness and integrity of judicial proceedings, then the courts should invoke the plain error rule in order to protect their own public reputation.' Wright, Federal Practice and Procedure, § 856, p. 374.

Here the impropriety was plain and intentional. We should reverse and remand for a new trial.

1 At the trial, the people's evidence showed that around six o'clock in the morning of January 5, 1970, two police officers in a patrol car received a radio call indicating that a breaking and entering was in progress at a bar on Russell in Detroit. The officers, upon arriving at the scene, saw no one near the premises but found the back door to the bar broken and torn off its hinges. A car was parked fifteen feet from the door and tire tracks in fresh snow led to the door. It appeared that the door might have been broken by the impact of an automobile.

As the officers were waiting outside the door, listening for movement inside, the inner hallway door within the bar was thrown open and a man, identified as the defendant, came running out of the bar. As defendant cleared the outer doorway, one of the officers yelled, 'police officer, halt!' The defendant, however, continued to run and, when he was approximately ten feet away, one of the officers fired a 12-gauge shotgun and the defendant fell. As the officers approached the defendant, he reached for something in the belt area of his pants and then slashed at one of the officers with a steak knife, inflicting no injuries, however. Defendant was subdued and handcuffed after a scuffle which resulted in a cut to defendant's mouth. Other police officers arrived at the scene as the defendant, with the steak knife still lying beside him, was being handcuffed. Still believing the defendant to have been wounded by the shotgun blast, the arresting officers took him to a hospital where an examination revealed no pellet wounds.

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