PEOPLE OF MI V PERCY BARNES RUFFIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 8, 1997
Plaintiff-Appellee,
v
No. 183698
Recorder’s Court
LC No. 93-008751
PERCY BARNES RUFFIN,
Defendant-Appellant.
Before: White, P.J., and Cavanagh and J.B. Bruff,* JJ.
PER CURIAM.
After a jury trial, defendant was convicted 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), for the shooting death of Michael Gipson. Defendant was sentenced to two years in prison
for the felony firearm conviction and to a consecutive life sentence for the first-degree murder
conviction. Defendant now appeals as of right. We affirm.
Defendant first argues that he was denied a fair trial by the introduction into evidence of Almiron
Overman’s identification of defendant from a photograph shown to him by Sergeant Gale after Overman
failed to identify defendant in a lineup. Defendant argues that the identification was suppressed at
defendant’s first trial due to the suggestiveness of the identification procedure, and that the trial judge in
the instant case was required to follow the previous judge’s evidentiary ruling pursuant to the law of the
case doctrine. We disagree.
Defendant argues that the suppression ruling at the first trial falls within the law of the case
doctrine. Defendant is in error. The law of the case doctrine provides that, once an appellate court
decides a legal question, that decision is controlling at all subsequent stages of the litigation. People v
Bradshaw, 165 Mich App 562, 568; 419 NW2d 33 (1988). The law of the case doctrine does not
apply to the present situation. On retrial, a case stands procedurally as if there had been no prior trial.
Therefore, a trial court is not required to follow another trial court’s previous evidentiary rulings.
* Circuit judge, sitting on the Court of Appeals by assignment.
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People v Daniels, 192 Mich App 658, 670; 482 NW2d 176 (1992). In the instant case, defense
counsel did not move to suppress the identification evidence at the second trial, and therefore
introduction of the evidence by the prosecutor was not improper.
Defendant next argues that the trial court’s denial of his motion to recall Darryl Matthews for the
purpose of impeaching his testimony regarding the nature of his relationship with Audrey Mathis violated
defendant’s right to confrontation. We disagree.
The Sixth Amendment guarantees a criminal defendant the right to confront witnesses against
him. US Const, amend VI. However, a defendant does not have an unlimited right to cross-examine
on any subject. People v Canter, 197 Mich App 550, 564; 496 NW2d 336 (1992). The right to
confrontation is subject to a balancing test involving other legitimate state interests in the criminal trial
process, which include avoiding harassment, prejudice, confusion of the issues, safety of the witness,
and repetitive or marginally relevant interrogation. People v Byrne, 199 Mich App 674, 679; 502
NW2d 386 (1993). Nevertheless, a limitation on cross-examination which prevents a defendant from
placing before the jury facts from which bias, prejudice, or lack of credibility of a prosecution witness
might be inferred constitutes denial of the constitutional right of confrontation. Violations of the right to
adequate cross-examination are subject to harmless error analysis. People v Cunningham, 215 Mich
App 652, 657; 546 NW2d 715 (1996).
In the instant case, defendant argues that the trial court violated his right to confrontation by
denying his motion to recall Darryl Matthews for the purpose of impeaching his testimony regarding the
nature of his relationship with Audrey Mathis with Matthews’ testimony from defendant’s second trial.
At the second trial, Matthews testified that he was “still seeing” Mathis between May 20, 1993, the
date they broke off their relationship, and July 20, 1993, the date of the shooting, but that defendant did
not know that he and Mathis were still seeing each other. Matthews further testified at the second trial
that his relationship with Mathis after May 20, 1993, was not a “lover relationship,” and only consisted
of talking to each other. At the third trial, Darryl Matthews testified that he did not have an “intimate
love relationship” with Mathis after May 20, 1993, but that they “were still intimate” after that date.
Although the trial court’s ruling prevented defense counsel from using Matthews’ previous
testimony to impeach his testimony in the instant case, Matthews’ testimony was impeached in the
instant case by Audrey Mathis’ testimony denying any relationship with Matthews after May 20, 1993.
Therefore, we do not believe that the trial court’s ruling violated defendant’s right to confrontation.
Defendant next argues that he was denied a fair and impartial trial because of the prosecutor’s
improper questioning of defense witness Audrey Mathis. Specifically, defendant argues that the
prosecutor erred by questioning Audrey Mathis regarding defendant’s history of violence before
defendant placed his character in issue, and that the prosecutor improperly alluded to defendant’s prior
conviction for a violent crime, which was previously suppressed by the court.
The test for prosecutorial misconduct is whether the defendant was denied a fair and impartial
trial. People v Daniel, 207 Mich App 47, 56; 523 NW2d 830 (1994). On appeal, this Court
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examines the pertinent portions of the record and evaluates the prosecutor’s remarks in context in order
to determine whether the defendant was denied a fair and impartial trial. People v Legrone, 205 Mich
App 77, 82; 517 NW2d 270 (1994).
The prosecution may not introduce evidence of a defendant’s bad character until the defendant
has placed his character in issue. MRE 404(a)(1); People v Vasher, 449 Mich 494, 503; 537 NW2d
168 (1995). Once a defendant’s character has been placed in issue, the prosecutor, on cross
examination of the defendant’s character witnesses, may inquire into specific instances of the
defendant’s conduct to test the credibility of the character witness. MRE 405(a); People v Roupe, 150
Mich App 469, 478; 389 NW2d 449 (1986).
In the instant case, the prosecutor asked Audrey Mathis on cross-examination whether she,
Darryl Matthews, or anyone else had any reason to fear defendant. The prosecutor also asked Mathis
whether defendant had a violent history. When Mathis denied that defendant had a violent history, the
prosecutor asked Mathis if she would consider a person who committed a crime of violence to be a
violent person. Even if defendant did not place his character in issue, the prosecutor’s questioning did
not deny him a fair trial. Mathis continually denied that anyone had any reason to be afraid of defendant
and testified that defendant did not have a violent history. Furthermore, defense counsel objected to the
prosecutor’s question regarding whether Mathis would consider someone a violent person if that person
had committed a violent crime before Mathis answered the question. The objection was sustained and
no prejudicial testimony was elicited by the prosecutor’s questioning. Furthermore, the trial court
instructed the jury that the lawyers’ questions to the witnesses were not evidence, and that the jurors
must base their decision solely on the evidence. Therefore, the prosecutor’s conduct did not deny
defendant a fair trial.
Finally, defendant asserts that comments made by the prosecutor during her rebuttal argument
were improper. Defendant did not object to the prosecutor’s comments at trial, and therefore this
Court’s review is precluded unless a cautionary instruction could not have cured the prejudicial effect of
the prosecutor’s remarks or unless the remarks resulted in a miscarriage of justice. People v Lee, 212
Mich App 228, 245; 537 NW2d 233 (1995). Prosecutors are generally accorded great latitude in
their arguments and conduct. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995).
Furthermore, an otherwise improper argument by a prosecutor may not require reversal if made in
response to an equally or more improper argument by defense counsel. People v Wise, 134 Mich App
82, 102; 351 NW2d 255 (1984). In the instant case, the prosecutor’s arguments were made in
response to arguments made by defense counsel during his closing argument and were not improper.
Accordingly, defendant is not entitled to a new trial because of prosecutorial misconduct.
Affirmed.
/s/ Helene N. White
/s/ Mark J. Cavanagh
/s/ John B. Bruff
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