People v. Calloway , 169 Mich. App. 810 ( 1988 )

169 Mich. App. 810 (1988) 427 N.W.2d 194

PEOPLE
v.
CALLOWAY

Docket No. 87249.

Michigan Court of Appeals.

Decided July 18, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, James J. Gregart, Prosecuting Attorney, and James J. Lait, Assistant Prosecuting Attorney, for the people.

Marovich & Stroba (by Milton J. Marovich), and Howard Everett Calloway, in propria persona, for defendant on appeal.

Before: CYNAR, P.J., and WEAVER and R.M. PAJTAS,^[*] JJ.

CYNAR, P.J.

Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to life imprisonment for the murder conviction and two years for the felony-firearm conviction. The convictions followed an earlier jury trial in which the jury was unable to reach a unanimous verdict. Defendant appeals as of right. We reverse.

The second trial commenced on October 25, 1983. The instant charges arose out of the shooting death of Johnnie Lee Reed (also known as Johnny). Reed was shot on September 17, 1982, as he stood on the front porch of his residence at 606 Florence Street in Kalamazoo, Michigan. The shooting occurred sometime around noon.

Robert Lee Jones, a witness for the prosecution, placed defendant at the scene of the crime. Jones' testimony was offered as part of a plea-bargain agreement between Jones and the prosecutor. In exchange for testifying against defendant, Jones received immunity from prosecution for any involvement in the instant case.

On September 17, 1982, at about 11:00 A.M., Jones was at the Polar Bear store with his brother Jimmy Lee Jones when they saw defendant drive a blue van onto the store's parking lot. Defendant told them that he had a gun and he was "hunting" for Reed. The Jones brothers left the store. Sometime later, defendant went by Jones' house and motioned him over to the van. Jones got into defendant's van after they decided to commit a breaking and entering.

They drove to a house, but did not break and enter since the resident was at home. While defendant and Jones were driving around, defendant saw Reed walking up Florence Street. Defendant circled another block, stopped, told Jones to drive and park across from Reed's house. After they waited five to fifteen minutes, Reed came out of his house. Defendant reached out of the passenger window and shot Reed with a rifle as Reed was coming off the porch. Defendant fired five shots, three of which were fired before defendant told Jones to drive off.

Fifteen-year-old Ella Thompson was living with Reed before he was killed. She began living with Reed in October, 1981. Previously, Reed and his wife, Ola Mae Reed, had argued about Reed and Thompson living together. Reed told Ola that he was going to stay with Thompson rather than return to Ola. Afterwards, Ola used to come by and sit on the front steps of Reed's house at different times during the day.

On the day of the shooting, Thompson was sweeping the floor in the apartment and Reed was on the front porch when Thompson heard shots. She went outside and saw Reed lying face down on the porch. Thompson had seen a blue van, but she could not identify it as the one belonging to defendant. Thompson also stated that Reed and Ola had argued on the morning he was killed.

Kalamazoo Police Officer Jack Orr testified that, about twenty-five minutes after hearing a police dispatch of the shooting and that a light blue van was a suspect vehicle, Orr spotted the van on North Westnedge Street. Orr felt the engine hood, which was very warm. He also saw ammunition on the dash tray. The van belonged to defendant.

Ola stated that she saw Reed at her home around 9:00 A.M. They argued and she told him to leave. Later in the day, Ola was in a blue van belonging to the Lively Stone Church, of which she was a member. Pastor Eldon Mitchell, who was driving, had picked up Ola "around noon" and she went to a downtown hospital. The prosecutor then asked Ola if she was a religious person and how long she has belonged to the church she attends.

Several Florence Street residents heard the shots and saw the blue van. However, none of the residents identified the van as belonging to defendant.

Officers Robert McFletcher and Thomas Martin testified that they arrested defendant on February 6, 1983. Martin related, without objection, defendant's statement in the booking area:

He and I had been speaking and I asked him to remove his prosthesis — he has got a wooden leg — so that I could examine it to make sure there was [sic] no weapons concealed in it or anything like that. As he did that, I asked him how he lost his leg, and he told me that he — he said to me, "That guy on the paper that I killed ran over me on a motorcycle." I asked him to repeat himself and he said, "That guy you say I killed on that paper ran over me on a motorcycle."

On cross-examination, Martin acknowledged that he may have misheard defendant, even though he thought that he had heard defendant's first statement very clearly.

On the fourth day of trial, the prosecutor informed the trial court of his intention to endorse Ethel Phillips, defendant's mother-in-law, as a witness, but the police could not serve her a subpoena because she would not come out of her house. The prosecutor claimed that Phillips was afraid because of threats made against her by defendant's family. The prosecutor asked the court to issue a capias writ in order for the officers to go into her house and bring her to court. The court issued the writ.

Afterwards, the prosecutor sought to endorse Phillips as a witness. The court denied the prosecutor's request for a late endorsement. However, the court permitted Phillips to testify as a rebuttal witness. Defense counsel vigorously objected to Phillips' testimony, claiming that defendant had not opened the door during his case which would entitle the prosecutor to call a rebuttal witness. The trial court ruled in favor of the prosecutor.

Phillips testified that, on the day Reed was killed, defendant came to her home between 12:10 P.M. and 12:20 P.M. to use the telephone. Phillips and defendant had the following conversation:

He come [sic] to my house to use the phone, and then he said, "I think I got myself into a little trouble."

Q. (By Mr. Christopherson, continuing) Did you say anything to him, then?

A. I said, "I won't ask what kind."

Q. What did he say, then?

A. He said, "Well, that one guy that caused me to lose my leg, I think I got him."

Q. After he stated — you know — "The one guy that caused me to lose my leg, I think I got him," what did you say after that?

A. "Yes, was it bad?"

Q. What did he say after that?

A. He didn't know, but he found out later on.

Following his convictions, defendant moved to set aside the jury verdict and dismiss the charges due to the prosecutor's misconduct involving Phillips. The trial court denied defendant's motions.

Defendant raises numerous issues on appeal. First, he claims that he was denied a fair trial due to pretrial and trial publicity of his case. We first note that defendant has failed to provide an adequate record for us to review this issue by not supplying this Court with a transcript of the jury voir dire. This alone requires us to affirm. People v Coons, 158 Mich. 735, 740; 405 NW2d 153 (1987), lv den 428 Mich. 900 (1987). Having failed to provide this Court with the jury voir dire transcript and having failed to move for a change of venue, defendant has not met his burden of showing that the publicity deprived him of a fair trial.

Next, defendant claims that the inculpatory statement he made to Officer Martin should have been excluded since he was not given the Miranda^[1] warnings. In addition, defendant alleges that the trial court, on its own motion, should have conducted a Walker^[2] hearing so as to test the voluntariness of defendant's statements.

Initially, we note that the issue of whether these statements were taken in violation of Miranda was not raised in the proceedings below. As a general rule, this Court will not review an issue raised for the first time on appeal. People v Davis, 122 Mich. App. 597; 333 NW2d 99 (1983). However, where an important constitutional question is raised regarding the admissibility of the evidence and is decisive of the outcome of the case, appellate review is appropriate. People v Catey, 135 Mich. App. 714, 722; 356 NW2d 241 (1984), lv den 422 Mich. 940 (1985).

In this case, defendant has failed to meet either requirement so as to warrant appellate review of this issue. The Miranda rule is not in itself a constitutional right. Rather, it is only a procedural safeguard designed to protect an individual's Fifth Amendment privilege against self-incrimination. People v Godboldo, 158 Mich. App. 603, 605; 405 NW2d 114 (1986). Secondly, the statements testified to by Martin were not outcome determinative due to the equivocal nature of Martin's testimony. Martin testified that he may have misheard defendant's statements. Thus, we decline to review this claim.

In addition, we reject defendant's assertion that the trial court, sua sponte, should have conducted a Walker hearing to determine if defendant's statements were voluntarily made. In People v Hooks, 112 Mich. App. 477, 480; 316 NW2d 245 (1982), lv den 413 Mich. 902 (1982), citing United States v Powe, 192 US App DC 224; 591 F2d 833 (1978), this Court set forth the rule regarding when a trial judge, sua sponte, must test the voluntariness of a confession:

In Powe, the defendant was convicted by a jury of distributing a controlled substance. That defendant stated that her confession was made in response to offers of leniency and, therefore, was not voluntary. The court held that generally a trial court is not required to address a question of the voluntariness of a confession sua sponte. However, certain "alerting circumstances" may impose a duty on the judge to assume a more active role and investigate the need for a hearing on the voluntariness of a confession. Alerting circumstances may be a defendant's mental, emotional or physical condition, evidence of police threats, or other obvious forms of physical and mental duress. Powe, supra, 843, fn 31. The court limited its holding to cases where "a substantial question of voluntariness was raised." Id., 844.

See also People v Ray, 156 Mich. App. 31, 48; 401 NW2d 296 (1986).

In this case, there were no "alerting circumstances" indicating that defendant's volitional capacity may have been impaired. Thus, the trial court was not obligated, sua sponte, to conduct a Walker hearing and test the voluntariness of defendant's statements.

Next, defendant alleges several instances of prosecutorial misconduct which deprived him of a fair trial. We will address each instance separately.

Defendant claims that, despite counsel's having obtained a discovery order, the prosecutor withheld certain information on Jones' credibility. Before Jones testified, defense counsel informed the trial court of his intention to bring an oral motion to allow him to look in chambers at the prosecutor's file on Jones. Counsel claimed that the prosecution had used Jones as its witness on many occasions and counsel sought "at least a production of the list of cases." The prosecutor claimed that no such file existed.

It has long been the law in this state that a defendant is entitled to have produced at trial all the evidence bearing on his guilt or innocence which is within the prosecutor's control, including prior statements of witnesses which may be used for impeachment. People v Dellabonda, 265 Mich. 486, 500-501; 251 N.W. 594 (1933); People v Florinchi, 84 Mich. App. 128, 133; 269 NW2d 500 (1978), lv den 405 Mich. 828 (1979). Further, in People v Turner, 120 Mich. App. 23, 32-33; 328 NW2d 5 (1982), this Court stated:

Discovery exists to allow the defendant a decent opportunity to prepare and to extend to him the fundamental fairness which the adversary system seeks to provide. State v Johnson, 524 S.W.2d 97, 101 (Mo, 1975). Furthermore:

"[A] principal purpose of discovery is to advise defense counsel what the defendant faces in standing trial; it permits a more accurate evaluation of the factors to be weighed in considering a disposition of the charges without trial. While we cannot know whether such disclosure would in this case have led to disposition without trial, we do know that such disclosure does result in such dispositions in many cases." Lewis, supra, 167 US App DC [232] 236; 511 F2d [798] 802 [1975].

In the within case, the prosecutor did not refuse to disclose materials, reports, or evidence to defendant. There was simply no file on Jones. Defense counsel claimed that he had information from other attorneys that they had had cases in which Jones was a prosecution witness. However, counsel could not provide an explanation why he could not obtain the names of these other cases from his sources. Thus, defendant has not shown that the prosecutor withheld discoverable material or misrepresented that all material was provided.

Defendant claims that the prosecutor, in closing argument, vouched for the credibility of his witnesses, argued facts not in evidence and made a civic duty argument. We disagree.

A prosecutor's closing argument is proper if it is based upon the evidence and the jury is not called upon to decide a case on the basis of the prestige of his office. People v Yearrell, 101 Mich. App. 164, 167; 300 NW2d 483 (1980). The people have the right to comment upon the testimony in a case, argue the facts and evidence that a witness is not worthy of belief and to contend that a defendant is lying. People v Jansson, 116 Mich. App. 674, 693; 323 NW2d 508 (1982).

As to defendant's first two claims of improper argument by the prosecutor, we have examined the comments in their context and are convinced that no error occurred since the prosecutor was merely commenting on the witnesses' credibility, a proper area for closing argument, especially when there is conflicting evidence and the question of defendant's guilt or innocence turns on which witness is to be believed. People v Flanagan, 129 Mich. App. 786, 795-796; 342 NW2d 609 (1983). We also find no merit to defendant's claim that the prosecutor made a civic duty argument. Urging the jury to place credibility in the testimony of Officers Gay and Hannechow and former prosecutor Reynolds did not amount to a civic duty appeal to the jury to support the police by convicting defendant. See People v Wright (On Remand), 99 Mich. App. 801, 808-811; 298 NW2d 857 (1980), lv den 410 Mich. 854 (1980).

Defendant also complains that he was denied a fair trial when the court refused his petition for a writ of habeas corpus to return Jones for further testimony. During a jury recess, Jones apparently stood up in court and identified a spectator as the assailant hired by defendant, who allegedly shot up his car, kidnapped him and threatened to kill him if he testified against defendant. This argument is totally specious since the jury was not present during this incident.

In his fifth claim of error, defendant alleges that the prosecutor injected error by asking Ola Mae Reed if she was a religious person. The prosecutor asked:

Q. Ola are you a religious person.

A. Yes.

Q. Okay. How long have you belonged to the church you go to now?

A. For nine years.

This line of questioning by the prosecutor is clear error. In People v Hall, 391 Mich. 175, 179-183; 215 NW2d 166 (1974), the Supreme Court held that a prosecutor's question to the defendant inquiring whether he believed in a Supreme Being, although it was merely a reminder to the defendant that he was under oath, and despite no objection by defense counsel, violated Const 1963, art 1, § 18^[3] and MCL 600.1436; MSA 27A.1436^[4] and constituted error requiring reversal. The Court noted that the statute left little room for analysis by the Court since asking this question was clear legal error. Id.

In addition, the Hall Court rejected any application of a harmless error analysis to violations of the statute:

The state argues, and it was so held by the Court of Appeals, that since no objection to the question appears on the record, and since "manifest injustice" was not shown, this type of error does not require reversal. We disagree. If we were, on a case by case basis, to evaluate the entire record to determine if prejudice or manifest injustice occurred therein because of this type of question, we would emasculate our statute and the legislative intent behind it. Our statute clearly states that an accused is entitled to be tried and convicted without the question of his religious opinions ever being put in front of the judge or jury for their consideration. Whether the defendant hesitates, or unhesitatingly responds negatively or positively, or if he should quite properly refuse to respond, he still cannot avoid the risk of stimulating an offensively prejudicial reaction in some quarter of the jury. This Court feels that it is inappropriate for it to take it upon itself to determine whether or not such prejudicial reaction did in fact occur, when our statute clearly attempts to foreclose such review by forbidding the asking of the prejudicial question itself. A defendant is entitled to a trial free of such improper questions. Once the question is asked, this is no longer possible. A new trial is mandated. [391 Mich 182-183.]

The Hall holding was reaffirmed in People v Bouchee, 400 Mich. 253; 253 NW2d 626 (1977). In People v Wells, 82 Mich. App. 543, 545-546; 267 NW2d 448 (1978), lv den 405 Mich. 828 (1979), this Court reversed the defendant's second-degree criminal sexual conduct conviction, finding a violation of the Hall holding when the prosecutor, on direct examination, asked the complainant if she attended church. Judge KELLY dissented in Wells, claiming that the Hall holding should be subjected to a harmless error analysis as provided in MCL 769.26; MSA 28.1096 where there was no objection to the testimony.

In People v Burton, 401 Mich. 415, 418; 258 NW2d 58 (1977), the Court distinguished Hall and Bouchee and found no violation of Hall since in Burton, before the defendant answered the question regarding his belief in God, the trial court quickly intervened and instructed the jury to disregard the question. The Court felt that the trial court's swift action obviated the need for appellate speculation whether defendant was prejudiced by this question.

As indicated earlier, the questions were improper. Reversal of defendant's convictions is thus mandated. Unlike in Burton, supra, there was no cautionary instruction by the trial court. The witness was permitted to answer the questions. Although we are reversing, we wish to express our disagreement with the Hall prohibition against the application of a harmless error analysis. The inquiry herein involved two brief questions to which the answers totalled four words. Further, the two brief questions and two brief answers could only have uncertain meaning to the listener. While the questions should not have been asked, the questions and the answers have little value in terms of swaying the jury. We are convinced the improper questions had no bearing in determining the question of defendant's guilt. In this case, because a harmless error analysis is appropriate, it is suggested the Supreme Court revise Hall and its progeny.

Defendant also challenges the trial court's denial of his motion for a directed verdict. More specifically, defendant does not argue that the prosecutor failed to establish the requisite elements of first-degree murder. Instead, he alleges that the evidence was insufficient because Jones was an inherently incredible witness. This argument is totally spurious. In reviewing a claim for the denial of a directed verdict motion, we view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich. 354, 368; 285 NW2d 284 (1979), cert den 449 U.S. 885; 101 S. Ct. 239; 66 L. Ed. 2d 110 (1980); People v Marks, 155 Mich. App. 203, 219; 399 NW2d 469 (1986). It is well settled that the credibility of witnesses is a matter within the province of the jury. Johnson v Corbet, 423 Mich. 304, 314; 377 NW2d 713 (1985). Thus, the trial court properly denied defendant's directed verdict motion.

Defendant also claims that he was denied effective assistance of counsel at his preliminary examination, trial and appeal. Initially, we note that defendant did not move for a new trial or for a Ginther^[5] hearing. Generally, this is required unless the error is apparent from the record for this Court to review the issue. People v Juarez, 158 Mich. App. 66, 73; 404 NW2d 222 (1987). We, however, decline to review defendant's claim that he received ineffective assistance of counsel either at the preliminary examination or trial.

As to his claim of ineffective appellate counsel, this claim is wholly meritless, since this Court is reviewing all of defendant's claims of trial errors.

We also reject defendant's assertion that the trial court improperly denied his motion for a new trial on the basis that the verdict was against the great weight of the evidence.

The question of whether a conviction is against the great weight of the evidence generally involves issues of credibility or circumstantial evidence. People v McCumby, 130 Mich. App. 710, 717; 344 NW2d 338 (1983), lv den 419 Mich. 911 (1984). In reviewing this issue on appeal, the Court looks to whether there was an abuse of discretion in denying the motion for a new trial rather than resolving credibility issues anew. People v Atkins, 397 Mich. 163, 172; 243 NW2d 292 (1976). An abuse of discretion will be found only where the trial court's denial of the motion was manifestly against the clear weight of the evidence. People v Ross, 145 Mich. App. 483, 494; 378 NW2d 517 (1985). We find no abuse of discretion. The evidence was conflicting. It was for the jury to decide what weight it should assess to the testimony. Thus, there was no error.

In addition, defendant claims that it was improper for the court to permit an evidentiary hearing to allow the prosecutor to explain the circumstances surrounding his decision to withhold Phillips' endorsement until just prior to his proofs. In his motion for a new trial, defendant bootstrapped his claim of improper rebuttal testimony by Phillips to the court's denial of the late endorsement of this witness claiming that she was a res gestae witness and the prosecutor was not duly diligent in producing her. We disagree. Since defendant claimed that Phillips was a res gestae witness and the prosecutor was not duly diligent in endorsing her as a witness, the court was required to hold an evidentiary hearing to decide these questions. See People v Pearson, 404 Mich. 698, 721-723; 273 NW2d 856 (1979), reh den 406 Mich. 1104 (1979).

Finally, defendant claims that the trial court erred in allowing Phillips to testify in rebuttal. The decision to admit evidence in rebuttal rests within the trial court's discretion. People v Hubbard, 159 Mich. App. 321, 327; 406 NW2d 287 (1987). If evidence is improperly admitted during rebuttal, reversal is required only if the error was so egregious as to result in a miscarriage of justice. Id.

We find no abuse of discretion. On August 5, 1983, the trial was convened to hear the prosecution's motion to strike defendant's alibi defense, on the basis that the notice of alibi was deficient for lack of specificity. Although Phillips was listed as an alibi witness on defendant's original notice, her name was stricken by defendant at the August 8, 1983, hearing. The prosecution withdrew its motion to strike defendant's alibi defense. Phillips was not among the names of rebuttal witnesses on the prosecutor's list of witnesses endorsed on the information. Phillips did not testify in the first trial. The defendant did not testify either. Defendant presented an alibi through Tracy and Leon Snell. Snell's testimony supported defendant's alibi since Snell claimed that defendant was with him during the time the crime was committed. Phillips' testimony directly rebutted Snell's testimony since she stated that defendant came to use her phone during the time he was allegedly with Snell. Thus, it was not error to allow Phillips to testify in rebuttal.

Reversed.

R.M. PAJTAS, J., concurred.

WEAVER, J. (concurring).

I concur with my colleagues that the prosecutor's questioning of Ola Mae Reed was error requiring reversal because no cautionary instruction was given. However, I do not believe that the thoughtful analysis provided by People v Hall, 391 Mich. 175, 179-183; 215 NW2d 166 (1974), needs revisiting, since in my view a prejudicial error of such magnitude cannot be deemed harmless.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 10 ALR3d 974 (1966).

[2] People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).

[3] The constitutional provision provides:

No person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief.

[4] The statute provides:

No person may be deemed incompetent as a witness in any court, matter or proceeding, on account of his opinions on the subject of religion. No witness may be questioned in relation to his opinions on religion, either before or after he is sworn.

[5] People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).