People v. Green , 79 Mich. App. 186 ( 1977 )

79 Mich. App. 186 (1977) 261 N.W.2d 253

PEOPLE
v.
RONALD GREEN.

Docket No. 25662.

Michigan Court of Appeals.

Decided March 31, 1977. Opinion on remand issued October 18, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training & Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

Carl Ziemba, for defendant.

Before: ALLEN, P.J., and D.E. HOLBROOK and D.C. RILEY, JJ.

ON REMAND

D.C. RILEY, J.

In considering plaintiff's application for leave to appeal, the Supreme Court, 401 Mich. 802 (1977), has asked us to amplify a point discussed by the majority opinion in People v Ronald Green, 74 Mich. App. 601; 254 NW2d 788 (1977). There, we stated:

"Given the lengthy jury deliberations and the relative dearth of direct evidence implicating defendant, we are unable to say that the frequent instances of prosecutorial misconduct which occurred below were harmless beyond a reasonable doubt." 74 Mich. App. at 604. (Emphasis added.)

Citing the italicized phrase, the Supreme Court wishes to know "whether the Court of Appeals reviewed the quantum of evidence in finding that the error was not harmless or whether the Court of Appeals, in so ruling, merely relied upon the character of the evidence presented, that is, circumstantial vis-a-vis direct".

We begin our answer by noting the firmly established principle that appellate courts are not triers of fact. Thus the majority opinion in no way should be read as a reflection on the sufficiency of the evidence or on the guilt or innocence of Ronald Green. Rather, the italicized language was intended as a comment on the circumstantial character of the evidence, which, taken together with the length of the jury's deliberations, raised in our minds the reasonable possibility that at least one juror might have voted to acquit defendant had the trial been free of prosecutorial misconduct.

We harbored this suspicion precisely because the prosecutor may have "``divert[ed] 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'". People v Farrar, 36 Mich. App. 294, 299; 193 NW2d 363 (1971), quoting ABA Project on Standards for Criminal Justice, the Prosecution Function, Std 5.8(d). Hence, we declined to label the error harmless beyond a reasonable doubt. People v Christensen, 64 Mich. App. 23, 33; 235 NW2d 50 (1975).

This elaboration, we trust, will aid the Supreme Court in its consideration of plaintiff's application for leave to appeal. But whether or not leave is granted in the instant case, the Court should note that the propriety of prosecutorial questions relating to a defendant's financial status is a recurrent issue that demands definitive resolution. See, People v Thomas Jones, 73 Mich. App. 107; 251 NW2d 264 (1976), People v Baldwin, 74 Mich. App. 700; 254 NW2d 619 (1977), People v LaForte, 75 Mich. App. 582; 256 NW2d 44 (1977), People v Osborne, 75 Mich. App. 600; 256 NW2d 45 (1977), People v Jackson, 77 Mich. App. 392; 258 NW2d 89 (1977).

Judge HOLBROOK not participating because of his dissent heretofore filed.