People v. Leverette , 84 Mich. App. 268 ( 1978 )

N. J. Kaufman, J.

The facts are well-stated in the dissenting opinion. We concur in the results reached by the dissenting opinion except as to that portion dealing with the prosecutor’s remarks in closing argument. During closing argument, the following colloquy occurred:

’’[The prosecutor]: You heard the Defendant wasn’t working, but yet he was going to the track. * * * It’s a reasonable inference that the money that he was living on was coming from the sale * * *

"MR. RUTLEDGE [Defense Counsel]: I am going to object to that your Honor. Certainly not a reasonable inference can be drawn from the facts reduced [sic] in the case.

"THE COURT: I didn’t hear you.

"MR. RUTLEDGE: I am objecting to the Prosecutor’s statement that a reasonable inference is, that the money that Mr. Leverette lived on was garnered from the drug trade or something.

"THE COURT: I’ll sustain the objection.”

The inference that the prosecutor was seeking the jury to draw was that because defendant was unemployed, and yet was able to participate in activities requiring money, the money needed must have come from criminal activities. Significantly, had defendant been employed, the prosecutor would not have been able to posit the disputed inference.

"To permit routine proof of impecuniousness to establish the motive for a theft offense is unjustifiable unless we assume that wealth exerts a greater attraction on the poor than on the rich. But although the poor may be moved by their need, those with greater income may respond to the pangs of insatiable avarice. We reject the assumption that 'easy money’ is more alluring to the poor than to the prosperous.” People v Henderson, 80 Mich App 447, 453-454; 264 NW2d 22 (1978). (Footnote omitted.)

The legitimacy of legal systems in democratic countries is founded on the consent of the governed, consent which emanates from an intuitive belief that, as a whole, everyone is equal before the law. There appears to be a growing conviction among the underprivileged that, in fact, they are not equally treated. That impression, whether or not justified, strikes at the very foundation of our legal system. Judicial doctrines which provide concrete examples for that viewpoint should be scrutinized with the gravest distrust.

As noted in People v Henderson, supra at 454:

"It may be argued that we should permit proof of the origins of each person’s desire for money, whether it be want, or well-fed cupidity. However, greed would not readily be proved. Poverty would. Hence we cannot, consistent with equal treatment to the poor and the well-to-do, indulge ourselves in the fiction that the motive of each may be shown at trial. If we attempt to permit this proof on a routine basis it will, without doubt, further disadvantage those least able to defend themselves in the courts.

"This, the rule’s cost, is unwarranted by any resulting benefit. The motive for a theft offense seldom requires explanation. The motive is so pervasive that its proving will establish little more than the defendant’s typicality; such proof increases but little the likelihood that this defendant is guilty of the charged offense. If poor and rich share a common and obvious motive, then why prove poverty?”

The consequences of such prosecutorial argument have been eloquently stated by this Court:

"The prosecutor should be reminded, however, that there is no law against poverty, and that our system of justice will not countenance a modus operandi which effectively enacts such a law.” People v LaForte, 75 Mich App 582, 584; 256 NW2d 44 (1977), lv den, 402 Mich 853 (1978).

"Once we accept the notion that impoverished persons have a greater motive to * * * [commit crimes] than the well-to-do we effectively establish a two-tiered standard of justice and demolish pro tanto the presumption of innocence.” People v Ronald Green, 74 Mich App 601, 606; 254 NW2d 788 (1977).

In defense of the prosecutor’s remark in this case, it may be noted that it was short and not repeated after the trial court sustained defense counsel’s objection. However, to do other than reverse defendant’s conviction, would countenance a "one bite of the apple” rule for prosecutors, as long as it was a small bite. It cannot be seriously disputed that there are circumstances in which a short concentrated attack is more prejudicially devastating than a long, rambling exposition. Judge (now Justice) Levin expressed it best in People v Farrar, 36 Mich App 294, 299-300; 193 NW2d 363 (1971):

"Unless we enforce the rules we encourage their violation and add to the burden of the appellate courts. Our frequent strictures against this kind of argument mean little unless we are prepared to reverse and require a new trial. A prosecutor who crosses a clearly defined line, and a trial judge who makes * * * [an inadequate] effort to stop him, have only themselves, not the appellate courts, to blame if a judgment of conviction is reversed and the case must be retried because of improper argument.” (Footnote omitted.)

It may be further acknowledged that no request for a curative instruction was made. Nevertheless, we fail to see that a curative instruction would help. As the United States Supreme Court noted in Bruton v United States, 391 US 123, 129; 88 S Ct 1620; 20 L Ed 2d 476 (1968), quoting from the dissenting opinion in Delli Paoli v United States, 352 US 232; 77 S Ct 294; 1 L Ed 2d 278 (1957), as well as from Krulewitch v United States, 336 US 440; 69 S Ct 716; 93 L Ed 790 (1949):

" 'The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell.’ 352 US at 247. The dissent went on to say, as quoted in the cited note in Jackson [v Denno, 378 US 368; 84 S Ct 1774; 12 L Ed 2d 908 (1964)], 'The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.’ Id. at 248. To the same effect, and also cited in the Jackson note, is the statement of Mr. Justice Jackson in his concurring opinion in Krulewitch v United States, 336 US 440, 453: The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.’ ” (Footnote omitted.)

Without suggesting an improper motive on the part of the prosecutor, defendant’s conviction is reversed and this case is remanded for a new trial because the remarks set forth above are "offensive to the maintenance of a sound judicial system”. People v Sherman Hall, 77 Mich App 456, 461; 258 NW2d 517 (1977), citing People v Swan, 56 Mich App 22, 31-32; 223 NW2d 346 (1974), lv den, 395 Mich 810 (1975).

T. M. Burns, P. J., concurred.