PEOPLE OF MI V DONALD LEE LOUIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 21, 1997
Plaintiff-Appellee,
v
No. 193877
Delta Circuit Court
LC No. 95-005858-FH
DONALD LEE LOUIS,
Defendant-Appellant.
Before: Murphy, P.J., and Hood and Bandstra, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction by jury of possession of a stolen automobile
with intent to pass title, MCL 257.254; MSA 9.1954. The trial court sentenced defendant to thirteen to
twenty-five years’ imprisonment, which reflected enhancement based on defendant’s status as an
habitual offender, fourth offense, MCL 769.12; MSA 28.1084. We affirm.
Defendant correctly argues that the trial court erred when it used the habitual offender
procedures created by a 1994 amendment to the Michigan Code of Criminal Procedure, see 1994 PA
No. 110, amending MCL 769.13; MSA 28.1085, because defendant’s infraction took place before the
amendment’s effective date. The pre-amendment procedure required that a jury decide the evidentiary
issues involved in an habitual offense information unless waived by the defendant while the post
amendment procedure does not require a jury determination. Defendant argues that this error resulted
in a violation of his constitutional right to a jury. However, defendant’s right to a jury trial under the pre
1994 habitual offender procedure was statutorily granted and did not constitute a constitutional right to a
jury determination. MCL 769.13; MSA 28.1085; People v Zinn, 217 Mich App 340, 344; 551
NW2d 704 (1996). A plain, unpreserved nonconstitutional error may not be considered by an
appellate court for the first time on appeal unless the error could have been decisive of the outcome or
prejudice can be presumed. People v Grant, 445 Mich 535, 553; 520 NW2d 123 (1994). As
defendant did not object to the trial court’s findings as to his prior convictions, we fail to see an impact
on the outcome and accordingly, we decline consideration of the issue.
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Defendant also argues that when the trial court dismissed the jury that convicted him on the
underlying offense, jeopardy attached, thereby precluding a determination on the habitual offender
information under double jeopardy principles. We disagree. This Court has repeatedly held that a
sentence enhancement pursuant to the habitual offender provisions does not place the defendant in
double jeopardy. People v Stevens, 130 Mich App 1, 8; 343 NW2d 219 (1983); People v
Thornsbury, 148 Mich App 92, 99; 384 NW2d 88 (1985); People v Anderson, 210 Mich App 295,
297-298; 532 NW2d 918 (1995). These decisions have been premised on the determination that the
habitual offender provisions allow for enhancement of a sentence and the result is not considered a
separate offense. Stevens, supra at 8; Thornsbury, supra at 99; Anderson, supra at 298; Zinn,
supra at 345. Thus, a determination of defendant’s prior convictions by another jury would not place
him in jeopardy again. Moreover, the determination of these prior convictions by the trial court does
not raise double jeopardy concerns because the determination did not constitute a conviction of an
offense and, consequently, jeopardy did not attach.
Finally, defendant argues that the trial court erred when it denied defendant’s motion for a
mistrial after the prosecution made the following statement in its closing argument:
I haven’t talked about O.J. Simpson to any jury yet, so you’re the first one so
don’t assume I use this all the time. Regardless of what your assessment of that verdict
was, you remember that there was all kinds of talk back and forth about what this case
was and what kind of a message the jury was sending out with its verdict. Whether the
case was really about domestic violence or murder, whether it was really a message to
the LAPD or something else, when our criminal justice system gets in that business we
fail at each single case that is in front of us at the time. . . . do not please speculate
about other criminal activity by any person in this case, about other charges that were,
might or could have been brought, about sending the police or the prosecutor a message
that they should -- that they should charge somebody else, because you can’t send that
message or any other message clearly through your verdict. The only thing we ask
juries to do in the Anglo American System is to decide this particular case. And if
there’s alleged criminality and alleged wrongdoing by any of the participants in this case
that’s outside the scope of this case, for heaven’s sakes, please do not try to deal with
that because that case isn’t before you.
Although prosecutors have a duty to see that a defendant receives a fair and impartial trial,
People v Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996), they are accorded great latitude
regarding their arguments and conduct. People v Bahoda, 448 Mich 261, 282-283; 531 NW2d 659
(1995). Nevertheless, there are a number of arguments to which a prosecutor should not resort among
which are civic duty arguments that appeal to the fears and prejudices of jury members. Id. Such
arguments are generally condemned because they inject issues into the trial that are broader than a
defendant's guilt or innocence and because they encourage the jurors to suspend their own powers of
judgment. People v Crawford, 187 Mich App 344, 354; 467 NW2d 818 (1991).
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In the context of this closing argument, this statement was not an improper request for the jury
to perform a broader civic duty. Rather, it was a plea to the jury not to attempt to send any message or
to perform any civic duty other than to decide the facts of this particular case. Moreover, the
prosecution does not compare defendant with O.J. Simpson or even make comparisons between the
two cases. Thus, the prosecution’s remarks were not improper and did not deny defendant a fair and
impartial trial.
Affirmed.
/s/ William B. Murphy
/s/ Harold Hood
/s/ Richard A. Bandstra
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