PEOPLE OF MI V LEROY E ARQUETTEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
October 15, 1996
LC No. 90-101190-FC
Before: Taylor, P.J., and Markey and N. O. Holowka,* JJ.
Following a jury trial, defendant was convicted of conspiracy to possess with intent to deliver
650 grams or more of a mixture containing cocaine, MCL 333.7401(2)(a)(i); MSA
14.15(7401(2)(a)(i), MCL 750.157(a); MSA 28.354(1), and was sentenced to a nonparolable term of
life in prison. Defendant appeals as of right and we affirm.
Defendant contends that several instances of prosecutorial misconduct denied him a fair trial. In
particular defendant claims the prosecutor: (1) made an improper comment during voir dire implying
defendant was dangerous; (2) improperly vouched for the credibility of prosecution witnesses; (3) made
an improper civic duty argument; (4) improperly intimidated a prosecution witness; and (5) improperly
claimed defendant had been a pallbearer at a drug dealer’s funeral where there was no evidence to this
The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial
trial. People v Minor, 213 Mich App 682, 689; 541 NW2d 576 (1995). Prosecutorial misconduct
issues are decided on a case-by-case basis, and the reviewing court must examine the pertinent portion
of the record and evaluate a prosecutor’s remarks in context. People v Legrone, 205 Mich App 77,
82; 517 NW2d 270 (1994). The propriety of a prosecutor’s remarks depends on all the facts of the
case and must be read as a whole and evaluated in light of defense arguments and the relationship they
bear to the evidence admitted at trial. People v Lawton, 196 Mich App 341, 353; 492 NW2d 810
* Circuit judge, sitting on the Court of Appeals by assignment.
(1992). Appellate review of improper prosecutorial remarks is generally precluded absent an objection
by trial counsel because the court is deprived of an opportunity to cure the error. People v Stanaway,
446 Mich 643, 687; 521 NW2d 557 (1994).
Defendant’s criticism of the comments the prosecutor made during voir dire are meritless. The
prosecutor did not improperly suggest to a prospective juror that defendant was dangerous by telling
her that the juror questionnaire did not list her home address. Because the juror omitted anything
relative to where she lived from her juror questionnaire, it was reasonable to assume that she may have
felt some apprehension about serving as a juror. The prosecutor merely attempted to assure the juror
that there was nothing to fear from serving on the jury, and the comments did not constitute misconduct.
The prospective juror was later excused. Defendant has not established substantial prejudice, People v
O’Guin, 26 Mich App 305, 307-308; 182 NW2d 103 (1970), and defendant ultimately expressed
satisfaction with the jury that was seated.
Defendant’s claim of improper vouching is without merit. It was not improper to advise the jury
of the agreement the prosecution’s key witness had with the federal government. People v Bahoda,
448 Mich 261, 276; 531 NW2d 659 (1995). It was not improper to ask witnesses if the testimony
they had given was truthful after the veracity of the witnesses’ testimony had been challenged by defense
counsel or to argue that prosecution witnesses were credible. People v Fuqua, 146 Mich App 250,
254; 379 NW2d 442 (1985); People v Turner, 213 Mich App 558, 584-585; 540 NW2d 728
We agree that a small portion of the prosecutor’s closing remarks contained an impermissible
“civic duty” argument, Bahoda, supra at 282. However, defendant did not immediately object, thus
foreclosing an immediate curative instruction. We find no manifest injustice. Stanaway, supra. In any
event, we deem the error was harmless in light of the evidence against defendant and find the error was
cured by the court’s instruction that the attorney’s arguments were not evidence. Bahoda, supra at
281; People v Stimage, 202 Mich App 28, 30; 507 NW2d 778 (1993).
We do not find any prosecutorial intimidation. It is true that prosecutorial intimidation of
witnesses is improper and may warrant reversal, People v Crabtree, 87 Mich App 722, 725; 276
NW2d 478 (1979), and that threats from law enforcement officers may be attributed to the
prosecution. People v Stacy, 193 Mich App 19, 25; 484 NW2d 675 (1992). However, the jury
heard evidence of the alleged intimidation and the witness’s testimony that she was telling the truth. The
jury was therefore able to assess the witness’s credibility in light of all of this evidence. Because the key
issue was whether the witness was telling the truth, rather than lying because of the alleged intimidation,
reversal is not required. Stacy, supra at 28-30.
The prosecutor concedes that he erroneously stated in his closing argument that defendant had
been a pallbearer at a drug dealer’s funeral. In fact, the prosecution’s key witness stated that the two
codefendant’s had been pallbearers but did not state that defendant had been. It is improper to argue
facts that are not in evidence. Stanaway, supra at 686. However, there was no objection to this
misstatement of fact and defense counsel did tell the jury that the prosecutor’s statement was inaccurate
in his closing argument. Thereafter, the court instructed the jury that the arguments of counsel were not
evidence. Under the facts of this case, we are satisfied that the prosecutor’s inadvertent, isolated
misstatement did not deprive defendant of a fair trial. Bahoda, supra at 267.
Defendant next contends that the trial court erred in allowing evidence contrary to MRE 404(b),
which provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show that he acted in conformity therewith. The decision whether t admit
evidence is left to the discretion of the trial court. People v Taylor, 195 Mich App 57, 60; 489 NW2d
99 (1992). An abuse of discretion exists only when an unprejudiced person, considering the facts on
which the trial court acted, would say there was no justification or excuse for the ruling. Id. In this
case, the trial court did not abuse its discretion in admitting the evidence. The evidence was offered to
provide some context for the conspiracy charged in the indictment, and was not unduly prejudicial.
Even if some of the acts occurred prior to the date of the conspiracy alleged in the indictment, it was still
relevant to the establishment of the conspiracy. People v Iaconis, 29 Mich App 443, 467-468; 185
NW2d 609 (1971), affirmed 387 Mich 431; 196 NW2d 767 (1972). To the extent that the evidence
involved defendant and his codefendants and was within the time frame of the conspiracy alleged in the
indictment, it was used to prove the crime and was not improper similar acts evidence. We also reject
defendant’s assertion that the evidence was an improper admission of a coconspirator’s acts.
Defendant claims that the trial court erred in allowing hearsay testimony of his coconspirator
because the conspiracy had not been established by a preponderance of the evidence, as required by
MRE 801(d)(2)(E). The trial court rejected this claim in denying defendant’s motion for a new trial,
stating that a member of the conspiracy established its membership, purpose, and operation before
asking the witness about statements made by group members. Even if we were persuaded that there
was no independent proof of a conspiracy involving defendant at the time the statements were admitted,
we would find the error was harmless in light of the overwhelming evidence against defendant and the
fact that defendant’s involvement in the conspiracy was established shortly thereafter. People v Mateo,
453 Mich 203; ___ NW2d ___ (1996).
Defendant contends that his conspiracy charge should have been joined with a charge o
delivering cocaine that stemmed from a March, 1989, incident at the Village Green Apartments and
resulted in an earlier conviction. Under People v White, 390 Mich 245; 212 NW2d 222 (1973), the
prosecution is required to join at one trial all the charges against a defendant arising out of a single
criminal act, occurrence, episode, or transaction. However, in this case, the delivery and conspiracy did
not stem from the same transaction. The conspiracy charge was different from the prior delivery
offense. Because there is no indication that the two crimes were committed in the same time sequence
or displayed the same goal and intent, the prosecution was not required to join the charges at one trial.
People v Hunt (After Remand), 214 Mich App 313, 315-316; 542 NW2d 609 (1995).
Next, the trial court did not err in failing to sua sponte give CJI2d 5.6 relating to accomplice
testimony because this was not a closely drawn case, given that the testimony of Salwan Askar, the only
accomplice, was corroborated by other witnesses. People v Buck, 197 Mich App 404, 415; 496
NW2d 321 (1992). Moreover, there was no credibility contest between Askar and defendant because
defendant did not testify.
Further, we reject defendant’s claim that the trial court was required to sua sponte instruct on
simple possession. Possession is not a lesser, necessarily included offense of delivery and therefore the
trial court is not required to sua sponte give such an instruction. People v Binder (On Remand), 215
Mich App 30, 33-36; 544 NW2d 714 (1996). Because defendant was not entitled to the instruction,
his attorney was not ineffective in failing to request it. Indeed, defense counsel’s failure to request a
simple possession instruction, where simple possession is easier to prove but nonetheless carries the
same legislatively determined penalty, is readily understandable. Cf. People v Reed, 449 Mich 375,
396; 535 NW2d 496 (1995) (counsel is not ineffective for taking a position that, while objectively
reasonable at the time, is later ruled incorrect). The fact that the Supreme Court reduced the penalty to
parolable life for mere possession convictions in People v Bullock, 440 Mich 15; 485 NW2d 866
(1992), is irrelevant because this case was tried before Bullock was decided.
The trial court did not err in allowing the case to proceed simply because the prosecution failed
to file a witness list, as it was required to do under MCL 767.40a(3); MCL 28.980(1)(3).
Noncompliance with this provision does not require automatic dismissal. People v Williams, 188 Mich
App 54, 58-59; 469 NW2d 4 (1991). The trial court only abuses its discretion in proceeding to trial
where a defendant is able to show prejudice as a result of the failure to produce a witness list. Id. In
this case, defendant failed to show any prejudice because all of the trial witnesses were listed on the
grand jury indictment or true bill. Therefore, the trial court did not abuse its discretion in permitting the
case to proceed.
There was no cumulative effect of errors such that defendant was deprived of a fair trial.
Bahoda, supra at 292, n 64.
Finally, we reject defendant’s claim that his mandatory life sentence is disproportionate and
unconstitutional. Defendant has failed to overcome the presumption that his legislatively mandated
sentence is proportionate. People v Williams, 189 Mich App 400, 404; 473 NW2d 727 (1991). The
sentence is not cruel or unusual, People v Lopez, 442 Mich 889; 498 NW2d 251 (1993). Finally, the
sentence of mandatory life imprisonment does not violate the Equal Protection Clause of the federal or
state constitutions as it bears a rational relationship to a legitimate state end. People v O’Donnell, 127
Mich App 749, 756; 339 NW2d 540 (1983).
/s/ Clifford W. Taylor
/s/ Jane E. Markey
/s/ Nick O. Holowka