People v. Wright

• Decision Date: 02 September 1980
• Docket Number: Docket No. 52325-6
• Citation: 298 N.W.2d 857,99 Mich.App. 801
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arnold WRIGHT and Salvadore Perez, Defendants-Appellants. 99 Mich.App. 801, 298 N.W.2d 857
• Court: Court of Appeal of Michigan — District of US

Page 857

298 N.W.2d 857

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arnold WRIGHT and Salvadore Perez, Defendants-Appellants.

Docket No. 52325-6.

99 Mich.App. 801, 298 N.W.2d 857

Court of Appeals of Michigan.

Sept. 2, 1980.

Released for Publication Dec. 9, 1980.

[99 MICHAPP 807] Joel S. Brown, Southfield, for Perez; Carl Ziemba, Detroit, of counsel.

O. Lee Molette, Detroit, for Wright.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief Asst. Pros. Atty., Raymond P. Walsh, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P.J., and KAUFMAN and BORCHARD, ^* JJ.

PER CURIAM.

Defendants Arnold Wright and Salvadore Perez were charged with conspiracy to deliver heroin and delivery of heroin. M.C.L. § 750.157a; M.S.A. § 28.354(1), M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). Wright was charged with three counts of delivery and one count of conspiracy, while Perez was charged with one count of delivery and one count of conspiracy. Following a joint trial with another codefendant, Carol McCuin, who is not involved in this appeal, the defendants were convicted as charged. Wright was sentenced to four concurrent terms of 13 years, 4 months to 20 years of imprisonment. Perez was sentenced to five years of probation on condition that he leave the country under a deportation order within two days [99 MICHAPP 808] of sentencing, after which his probation would be suspended.

The defendants appealed their conviction. We reversed and remanded for a new trial on the basis of an improper jury instruction on intent. People v. Wright, 78 Mich.App. 246, 259 N.W.2d 443 (1977). The Supreme Court reinstated Wright's conviction, finding the error to be harmless based on the strength of the prosecution's case against him. The Supreme Court agreed that Perez was entitled to reversal and a new trial. People v. Wright, 408 Mich. 1, 289 N.W.2d 1 (1980). The case was remanded to this Court in order that we might consider the other claims of error raised by the defendants but not previously discussed by us. For a full statement of the facts, see the Supreme Court opinion, 408 Mich. 1, 12-18, 289 N.W.2d 1.

ISSUES RAISED BY BOTH DEFENDANTS :

I. Did the prosecutor's improper remarks in closing argument, to which the defendants objected, deprive the defendants of a fair and impartial trial so as to require reversal of their convictions?

In his rebuttal summation, the prosecutor made the following remarks to the jury:

"I don't think counsel has given you any basis for reasonable doubt in this case. And with respect to his lawyer's reward-with respect to his lawyer's reward, I guess counsel indicated it is particularly refreshing when you know you are protecting an innocent man. I suggest it is also particularly refreshing when you know you are protecting the community in which you live.

"These defendants here, ladies and gentlemen,-these three defendants are the drug traffickers. They are those that supply the heroin to junkies in the city. And [99 MICHAPP 809] the cost of that, I think, ladies and gentlemen, is known to us all.

"It's measured in the cost of the loss of personal property that these junkies have to steal in order to support their habits. It's measured by the loss of human life by people who no longer can live decent lives. That's the cost. Not just $11,000. Not just $48,000 or $46,000 that we are talking about here. The cost is much greater than that.

"I suggest to you, ladies and gentlemen, that there is only one verdict in accordance with fairness, justice, and honesty, and that is guilty as charged with respect to all three of these defendants."

In general, "civic duty" arguments are condemned because they inject into the trial issues broader than a particular defendant's guilt or innocence of the charges and encourage the jurors to suspend their own powers of judgment.

In People v. Farrar, 36 Mich.App. 294, 298-299, 193 N.W.2d 363 (1971), this Court adopted the language of the ABA Project on Standards for Criminal Justice, The Prosecution Function, Std. 5.8(d), as applicable to the issue:

"The prosecutor may not subtly convert the presumption of innocence into a presumption of guilt by appealing to the jurors to perform a civic duty to support the police:

" 'The prosecutor should refrain from argument 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.' "

In People v. Williams, 65 Mich.App. 753, 756, 238 N.W.2d 186 (1975), this Court reversed the conviction after the prosecutor had argued to the jury that they could affect the drug traffic in the [99 MICHAPP 810] City of Detroit by finding the defendant guilty. The Court stated:

"We recognize, too, that jurors share the average citizen's desire to eliminate the narcotics traffic. In such an emotion-laden situation, sensibilities are easily inflamed. Because emotional reaction to social problems should play no role in the evaluation of an individual's guilt or innocence, prosecutors must exercise special care to avoid arousing jurors' emotions concerning such issues.

"In the instant case, by arguing that the jurors had an 'opportunity to effect (sic) the drug traffic in this city', the prosecutor appealed to the jurors' fears and encouraged them to go outside the evidence and decide the case on the basis of their desire to alleviate the drug problem. This type of prosecutorial argument does not comport with the mandate of Farrar, supra, and it will not be allowed by this Court. Consequently, defendant's conviction must be reversed."

In People v. Biondo, 76 Mich.App. 155, 256 N.W.2d 60 (1977), the defendant was charged with breaking and entering a business establishment. In his closing argument, the prosecutor discussed the fact that businessmen were worried about crime and that if they left the city, its tax base would become depleted and the city would die. The prosecutor reminded the jurors about their responsibility to the city and stressed the fact that the complainant was a businessman who paid taxes. This Court reversed defendant's conviction, saying that the appeal to the jury's social fears was irrelevant to the sole issue at trial, that being Mr. Biondo's guilt or innocence.

The standard for harmless error involves a dual inquiry: (1) was the error so offensive to the maintenance of a sound judicial system as to require reversal, and (2) if not, was the error harmless [99 MICHAPP 811] beyond a reasonable doubt? People v. Hall, 77 Mich.App. 456, 258 N.W.2d 517 (1977). The purpose of the first criterion is to deter prosecutorial and police misconduct. People v. Swan, 56 Mich.App. 22, 223 N.W.2d 346 (1974); People v. Reese, 86 Mich.App. 50, 272 N.W.2d 192 (1978). The purpose of the second criterion is to safeguard the decisional process. Thus, if it is reasonably possible that, in a trial free of the error complained of even one such jury member might have voted to acquit the defendant, the error was not harmless, and the defendant must be retried. Swan, supra, 56 Mich.App. 33, 223 N.W.2d 346.

We conclude that the prosecutor in the instant case stepped over permissible bounds and injected reversible error into the proceedings. We cannot view the error as harmless under the first prong of the test, for unless we enforce the rules, we encourage their violation. Farrar, supra, 36 Mich.App. 299, 193 N.W.2d 363. This is especially true because defendants objected to the improper remarks and were overruled by the trial court. Thus, the error was compounded. See People v. Brocato, 17 Mich.App. 277, 304-305, 169 N.W.2d 483 (1969). We would, therefore, reverse the convictions of Wright and Perez and would remand the case for a new trial.

II. Did the trial court err in admitting into evidence two tape recordings obtained without a warrant by means of participant monitoring where there was no objection made at trial on the ground of an illegal search and seizure?

At issue is the admission of Exhibit #6, a cassette tape made of an alleged drug transaction on September 18, 1974, which was obtained by means of a transmitting microphone attached to undercover officer Fleming. Defense counsel objected on the basis that the tape was unintelligible,[99 MICHAPP 812] that its contents were inadmissible hearsay, and that the prosecutor had said he would not use it in his case in chief. The trial court admitted Exhibit #6, the tape, and Exhibit #10, which was a transcript of the tape. The prosecutor then sought to admit Exhibit #7, a cassette tape of a telephone conversation on September 28, 1974, made from a telephone in the apartment of the informant, Moss, of a telephone conversation between defendant Wright and Moss. Defendant objected on the basis that the tape was hearsay, but was overruled. This exhibit was admitted along with Exhibit #9, a transcript of the tape.

With respect to the Fourth Amendment protection against unreasonable search and seizure, Federal law does not require a search warrant for participant recording, Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), or participant monitoring, United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). However, in People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), the Michigan Supreme Court interpreted the Michigan constitutional provision governing searches and seizures, Const. 1963, art. 1, § 11, to apply the search warrant requirement to participant monitoring. This rule was given prospective application only. Subsequently, in People v. Hall, 88 Mich.App. 324, 276 N.W.2d 897 (1979), this Court extended the Beavers rationale to include participant recordings. See also, People v. Taylor, 93 Mich.App. 292, 287 N.W.2d 210 (1979).

Since the recordings in question...