People of Michigan v. Frank James Neal

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 22, 2020
Plaintiff-Appellee,
v No. 345748
Genesee Circuit Court
FRANK JAMES NEAL, LC No. 16-039732-FC
Defendant-Appellant.
ON RECONSIDERATION
Before: CAVANAGH, P.J., and BECKERING and GLEICHER, JJ.
CAVANAGH P.J. (dissenting).
On reconsideration, I conclude that prosecutorial misconduct entitles defendant to a new
trial. And contrary to defendant’s argument for reconsideration, a new trial is necessary because
the evidence was sufficient for a reasonable jury to find defendant guilty on the four charges of
AWIM. But in light of the conclusion that defendant is entitled to a new trial, defendant’s
alternative claim that the great weight of the evidence weighed against the jury verdict is rendered
moot.
The majority states that defendant requested this Court to reconsider our prior decision
with regard to his successful claims of prosecutorial misconduct. I do not agree.1 In any case, the
prosecutor’s misconduct denied defendant a fair and impartial trial. See People v Dobek, 274 Mich
App 58, 63; 732 NW2d 546 (2007).
First, the prosecutor improperly cross-examined defendant regarding his prior arrests—
arrests not convictions. The majority holds that defendant’s brief testimony that he lied to police
initially about which gun he shot because he had “never been in trouble before,” allowed the
prosecutor to then ask defendant numerous inflammatory questions on cross-examination,
including: “You’ve been arrested on at least three occasions, true?” And to follow up, asking,
1
In fact, even the prosecution did not challenge this decision or our previous opinion.
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“You’ve been arrested at least twice for assaultive offenses, right?” The majority concludes that
this cross-examination constituted proper impeachment because “it is unimaginable that inquiry
about arrests would be forbidden to establish that a witness is generally not credible.” Really?
Prior arrests are critically different than prior convictions.2 As the United States Supreme Court
explained in Michelson v United States, 335 U.S. 469, 482; 69 S. Ct. 213; 93 L. Ed. 168 (1948):
Arrest without more does not, in law any more than in reason, impeach the integrity
or impair the credibility of a witness. It happens to the innocent as well as the
guilty. Only a conviction, therefore, may be inquired about to undermine the
trustworthiness of a witness.3
The majority claims that this cross-examination was proper as constituting “impeachment
by contradiction.” But as the case relied on by the majority, People v Wilder, 502 Mich. 57; 917
NW2d 276 (2018), states: “Impeachment of this kind usually occurs when a prosecutor seeks to
cross-examine a defendant about prior convictions in order to impeach a defendant’s blanket denial
on direct examination of ever engaging in conduct similar to the charged conduct.” Id. at 64
(Emphasis added). The prosecutor in this case did not cross-exam defendant about prior
convictions. And as the Wilder Court further explained:
[I]t is beyond dispute—or should be—that questions designed to elicit other-acts
evidence, absent a proper purpose, violate MRE 404(b) and are objectionable for
that reason. See 1 McCormick, Evidence (7th ed), § 190, p 1030 n 5 (“The [404(b)]
rule of exclusion encompasses questions which, though answered negatively,
insinuate that the accused committed other crimes.”). [Id. at 68 n 16 (Emphasis
added).]
As the Michelson Supreme Court noted, prior arrests do not mean that a person has, in fact, “been
in trouble before.” Innocent people are arrested all the time. Thus, there was no “contradiction.”
And there was no “proper purpose” for the prosecutor’s questions. That defendant had been
arrested in the past did not bear on his credibility; it is irrelevant in that regard.4 See Michelson,
2
The majority’s reliance on People v Layher, 464 Mich. 756; 631 NW2d 281 (2001), is misplaced.
In that case, the defendant was on trial for criminal sexual conduct against his minor niece and the
lead defense witness was his investigator who had been tried and acquitted of similar charges—
facts which gave rise to a potential for biased testimony in favor of the defendant as wrongfully
accused. Id. 760-765. The Layher case addressed witness bias only, and even then cautioned that
the evidentiary safeguards set forth in the Michigan Rules of Evidence, particularly MRE 403,
must be carefully considered. Id. at 768-769.
3
The majority’s assertion that this obvious and inviolable legal principle—that one is innocent
until proven guilty—“loses its force when a defendant opens the door to impeachment as to a fact
that he has injected into the case” is quite perplexing and leaves me speechless.
4
The concurring Judge opines that defendant “opened the door” to the extensive searching inquiry
that followed on cross-examination. I disagree but even if defendant cracked the door open, the
prosecutor merely had to ask what defendant meant when he said he had never been in trouble
before and should not have immediately raised the inflammatory fact of his three prior arrests. In
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335 U.S. at 482. But even if it did bear on his credibility, clearly his prior arrests for alleged
domestic violence against his wife—a highly inflammatory offense—are not more probative than
prejudicial on the issue of credibility. That is, the danger of unfair prejudice substantially
outweighed any probative value, especially considering that defendant’s reference to not being in
trouble before was very brief and buried in his other testimony. See MRE 403. Therefore, I
conclude that the prosecutor’s misconduct constituted plain error which affected defendant’s
substantial rights. See People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999).
Second, the prosecutor’s repeated mischaracterizations of defendant’s second interview
with police during his cross-examination—that he only “changed his story” after being confronted
with the results of the DNA testing—constituted misconduct. The questioning included:
Q. So then you talked to the police a second time, true?
A. Yes.
Q. That’s when you talked to Special Agent Dwyre?
A. Yes.
Q. And Special Agent Dwyre then confronted you with the fact that your DNA had
been found on the rifle, right?
A. Yes. I been knew [sic] that my DNA was on the rifle.
Q. You never changed your story and admitted to shooting the rifle until you were
confronted with the fact that your DNA was on the rifle, right?
A. No, ma’am. I never talked to - - when I got my paperwork to saying [sic] that
the DNA was on there, I never talked to a detective or a police officer ever since
then until the time that I talked to Dwight [sic] [Dwyer], and that was the only
chance that I had to tell him that . . . .
Q. And you didn’t go in there and flat out tell him all that when he asked, he had to
confront you with your DNA being on the rifle before you then changed your story
true?
A. No. No, because my lawyer been on top, he’s been telling me everything that
was going on with the case from day one when I hired him.
Q. But you did not offer that information to Special Agent Dwyre?
other words, any “false impression” left with the jury by defendant’s brief purported “character”
testimony did not invite the trampling down of the door by the prosecutor.
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After discussing other issues, the prosecutor again pressed defendant about the DNA evidence and
the interview with Special Agent Dwyre:
A. I told Dwyre, you know, that I did shoot the rifle. That was way before this—
this trial even came upon, so.
Q. After your DNA was found on it though, right?
A. No, it was probably before the DNA because he came back and got another
sample of DNA from me that the first one, don’t even know what happened to it.
And when I talked to Dwyre, that was before the DNA sample, ma’am.
Q. But you’ve already admitted that Dwyre confronted you with the fact that your
DNA was found on the gun, so how does that make sense?
A. I mean, he talked to me and . . . he said he believed what I’m saying . . . . I didn’t
deny that I wasn’t [sic] shooting the rifle. I did tell him that I didn’t shoot nobody
because I never did shoot nobody nor shot in no one’s direction.
During the lunch break, defense counsel reviewed defendant’s interview with Special Agent
Dwyre, and realized that Dwyre never mentioned DNA evidence during the interview. The
prosecutor conceded that DNA was not mentioned in the interview and apologized, claiming it
was an “honest mistake.”
The majority concludes that “mistakes happen.” And “this mistake was hardly important.”
I disagree. This cross-examination occurred after the prosecution had already thoroughly exploited
the improper issue of defendant’s prior arrests for domestic violence and served to powerfully
remind the jury that defendant was a “liar.” First, he lied to the jury about never being in trouble
before—until confronted with his prior arrest record. Just like he lied to the police about which
gun he shot—until he was confronted, purportedly, with DNA evidence. This misconduct tends
to demonstrate that the prosecutor’s primary objective was to get a conviction—whether innocent
or guilty. See Dobek, 274 Mich. App. at 63. And the belated jury instruction given the next day,
after other witness testimony and closing statements, was not curative. It was too late to thwart
the momentum gained by the prosecutor in convincing the jury that defendant was a violent man
or wife beater and a liar. See, e.g., People v Musser, 494 Mich. 337, 364-365; 835 NW2d 319
(2013).
Third, the prosecutor’s mischaracterization of prior witness testimony—also during the
cross-examination of defendant—concerning the possibility of a third shooter constituted
misconduct. The questioning included:
Q. I’m talking about in court, the evidence that actually exists before this jury. Not
one person has testified that the victims had any sort of gun or were shooting at you
including your own testimony, right?
A. Correct.
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Q. So, how are they shooting back at you when you’ve already admitted they didn’t
have guns?
A. I didn’t say they was shooting back at me . . . . I’m hearing other shots and there
are already statements that people did see people running away and a person
running with a gun shooting . . . .
Q. And no one has said that before this jury true?
A. True, but—
Q. Okay. Then that’s all we need about that, okay? No one has said that before
this jury so that evidence doesn’t exist in this trial true?
A. True.
The majority concludes that there were no “plainly erroneous mischaracterizations.” But even the
prosecutor admits on appeal that “there is an error” in this regard because Donald Houghtaling
testified that that “he saw someone running up the street with a gun.” In any case, this cross-
examination of defendant—while not the worst misconduct—occurred after the prosecutor had
already exploited the improper issue of defendant’s prior arrests and had already falsely accused
defendant of “changing his story” during a police interview. Consistent with the prosecutor’s
theme, the jury was once again powerfully reminded—using improper, false, and misleading
accusations—that defendant was a “liar.” This strategy was likely successful as evidenced by the
fact that even the majority opinion of this Court refers to defendant as a “liar,” albeit in a more
homogenized way by stating that he was “willing to lie under oath.”
In isolation one of these instances of prosecutorial misconduct may not have been sufficient
to support a conclusion that defendant was denied a fair and impair trial. But the cumulative effect
of these three instances of prosecutorial misconduct constituted sufficient prejudice to warrant
reversal. See People v LeBlanc, 465 Mich. 575, 591; 640 NW2d 246 (2002). Defendant’s defense
rested entirely on whether the jury believed that he fired his gun in the air, i.e., his credibility.
While the prosecutor had every right to use legitimate means to discredit defendant’s testimony,
the prosecutor could not use his prior arrests and manufacture or mischaracterize facts—time after
time after time during his cross-examination—in an effort to convince the jury that defendant is a
violent liar who committed the charged crimes. Maybe he is and maybe he did, but the jury has to
reach its decision through properly admitted evidence. While the government is entitled to a
“proper” cross-examination when a defendant takes the stand, as the case cited by the majority
states—United States v Havens, 446 U.S. 620, 626-627; 100 S. Ct. 1912; 64 L. Ed. 2d 559 (1980)—a
“proper” cross-examination did not occur in this case.
Accordingly, defendant’s convictions and sentences should be vacated, and this matter
should be remanded for a new trial.
/s/ Mark J. Cavanagh
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