People of Michigan v. Steven Daniel Smoot ( 2012 )

Order Michigan Supreme Court
Lansing, Michigan
March 9, 2012 Robert P. Young, Jr.,
Chief Justice
141457(51) Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
PEOPLE OF THE STATE OF MICHIGAN, Mary Beth Kelly
Plaintiff-Appellee, Brian K. Zahra,
Justices
v SC: 141457
COA: 289540
Grand Traverse CC:
08-010647-FH
STEVEN DANIEL SMOOT,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s October 5,
2011 order is considered, and it is DENIED, because it does not appear that the order was
entered erroneously.
CAVANAGH and HATHAWAY, JJ., would grant the motion for reconsideration.
MARILYN KELLY, J. (dissenting).
I dissent. I would grant reconsideration and grant defendant’s application for
leave to appeal.
Defendant was charged with three counts of third-degree criminal sexual conduct
involving force or coercion.1 The jury convicted him of one of those counts. This
suggests that the jury did not find entirely credible the victim’s assertion that she did not
consent to any sexual activity with defendant. And this case turned on a credibility
contest between the complainant and defendant regarding consent.
Further complicating matters, the prosecutor engaged in blatant misconduct. Her
transgressions included arguing to the jury that defendant’s lack of a steady job and
income gave him a motive to sexually assault the complainant. As the Court of Appeals
noted, “[s]uch an argument is the archetype of unfounded character assassination
1
MCL 750.520d(1)(b).
2
expressly prohibited by our Supreme Court . . . .”2 This inflammatory argument may
well have cast doubt on defendant’s credibility and been the deciding factor that led the
jury to conclude that he preyed on the complainant.
This misconduct was not isolated. It was part of a troubling pattern that persisted
throughout the trial. The prosecutor ignored the trial court’s rulings and engaged in
deliberate dishonesty in an effort to obtain a conviction. The Court of Appeals aptly
summarized the extent of the misconduct and the closeness of the question of whether
defendant’s rights were violated:
Our review of the entire record in this matter creates a close question
regarding whether the cumulative effect of the assistant prosecutor’s
instances of misconduct deprived defendant of a fair trial. When expressly
told by the trial court not to engage in eliciting certain testimony, the
assistant prosecutor ignored the trial court’s clear and express ruling and
was justly admonished. When asked who would be called to testify as
rebuttal witnesses, the assistant prosecutor provided the trial court and
defense counsel with inaccurate information. Lastly, the assistant
prosecutor asked questions of defendant and made legal arguments which
had been expressly forbidden by our Supreme Court since 1975.[3]
This Court should not summarily conclude that the prosecutorial misconduct did
not deprive defendant of a fair trial. It should not allow the misconduct to pass without
comment.4 Accordingly, I would grant reconsideration and grant defendant’s application
for leave to appeal.
2
People v Smoot, unpublished opinion per curiam of the Court of Appeals, issued June 1,
2010 (Docket No. 289540), p 11, citing People v Johnson, 393 Mich 488 (1975).
3
Smoot, unpub op at 11.
4
See, e.g., People v Schaw, 489 Mich 922, 922-923 (2011) (MARILYN KELLY, J.,
dissenting); accord People v Richardson, 489 Mich 940 (2011) (order of the Court
denying leave to appeal but chastising the prosecutor for her behavior during the
defendant’s trial).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 9, 2012 _________________________________________
d0306 Clerk