PEOPLE OF MI V LOUIS MICHAEL SCHMUCKAL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 6, 1999
Plaintiff-Appellee,
v
No. 209953
Grand Traverse Circuit Court
LC No. 97-007391 FC
LOUIS MICHAEL SCHMUCKAL,
Defendant-Appellant.
Before: Murphy, P.J., and Doctoroff and Neff, JJ.
PER CURIAM.
Defendant was charged with one count of first-degree criminal sexual conduct, MCL
750.520b(1)(b); MSA 28.788(2)(1)(b), and one count of second-degree criminal sexual conduct,
MCL 750.520c(1)(b); MSA 28.788(3)(1)(b). After a jury trial, defendant was convicted of one count
of first-degree criminal sexual conduct. He was sentenced to eight to twenty years in prison. He
appeals as of right. We affirm.
Defendant first argues that the prosecutor’s failure to specifically identify the dates of the
incidents giving rise to the charges violated his due process rights and the prohibition against double
jeopardy. We disagree. This Court will not reverse a trial court’s determination that the time of the
offense alleged in the information was sufficiently specific absent an abuse of discretion. People v
Miller, 165 Mich App 32, 46; 418 NW2d 668 (1987), remanded on other grounds, 434 Mich 915
(1990).
Here, the information indicated that the offenses occurred on or about June 1991 through
February 1992. An indictment or information must contain “[t]he time of the offense as near as may be.
No variance as to time shall be fatal unless time is of the essence of the offense.” MCL 767.45(1)(b);
MSA 28.985(1)(b). When determining to what extent specificity of the time of an offense will be
required, courts should consider 1) the nature of the crime charged, 2) the victim’s ability to specify a
date, 3) the prosecutor’s efforts to pinpoint a date, and 4) the prejudice to the defendant in preparing a
defense. Miller, supra at 46; People v Naugle, 152 Mich App 227, 233; 393 NW2d 592 (1986).
Here, defendant was charged with criminal sexual conduct offenses. “Time is not of the essence
nor a material element in a criminal sexual conduct case, at least where the victim is a child.” People v
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Stricklin, 162 Mich App 623, 634; 413 NW2d 457 (1987). Furthermore, in light of complainant’s
testimony that the sexual abuse occurred almost every night for several years, and that the incidents
were all very similar to each other in that they all involved defendant coming into complainant’s bedroom
during the night, it is understandable that complainant was unable to identify a specific date or a discrete
incident. In addition, we cannot disagree with the trial court’s finding that the prosecutor made serious
attempts to pinpoint a date. Finally, defendant has not shown any prejudice resulting from the
prosecutor’s failure to more specifically identify the dates of the offenses. Although defendant asserts
that the lack of specificity prevented him from developing an alibi defense, “where complainant alleged
that the offenses occurred almost daily and defendant and complainant lived in the same house
throughout the alleged time period, it is unlikely that defendant could have raised an effective alibi
defense.” Naugle, supra at 234-235. Thus, we conclude that the trial court did not abuse its
discretion in finding that the dates stated on the information were sufficiently specific.
Defendant next argues that the district court judge erred in refusing to disqualify himself from
conducting the preliminary examination after the prosecutor informed the court at a prior hearing that
defendant had not denied the criminal sexual conduct allegations. However, defendant waived this issue
by not seeking de novo review by the chief judge of the challenged judge’s refusal to disqualify himself.
MCR 2.003(C)(3); People v Williams (After Remand), 198 Mich App 537, 544; 499 NW2d 404
(1993). Furthermore, even if defendant had not waived this issue, he failed to demonstrate actual
prejudice resulting from the alleged bias against him. MCR 2.003(B)(1); People v Coones, 216 Mich
App 721, 726; 550 NW2d 600 (1996)(Bandstra, J). Thus, defendant has not demonstrated that the
district court erred in denying the motion for disqualification.
Defendant next argues that he was denied a fair trial because Detective Robbins destroyed the
notes he took while interviewing defendant, and because the prosecutor erroneously stated at a motion
hearing that Robbins did not take notes during the interview. We disagree.
First, as noted by the trial court, the prosecutor’s erroneous statement that no notes were taken
at the interview did not deny defendant a fair trial because the notes had already been destroyed at that
time. Thus, regardless of the prosecutor’s misrepresentation, the notes were unavailable. Furthermore,
the destruction of the notes did not deny defendant a fair trial. When a defendant claims that he was
denied a fair trial because police notes were destroyed before being turned over to the defense, the
court must consider 1) whether the suppression of the notes by the police was deliberate, 2) whether
the notes were requested, and 3) whether “hindsight discloses . . . that [the] defense could have put the
evidence to not insignificant use.” People v Petrella, 124 Mich App 745, 752-753; 336 NW2d 761
(1983), aff’d 424 Mich 221 (1985). Here, the notes were requested by the defense. However, there
was no indication that the notes were destroyed in bad faith in an attempt to suppress evidence. Rather,
the evidence indicated that the notes were destroyed pursuant to a departmental policy. Id.
Furthermore, Detective Robbins’ notes were summarized and typed in the form of a police report that
was provided to defendant. People v Leo, 188 Mich App 417, 427; 470 NW2d 423 (1991).
Moreover, defense counsel conducted an extensive cross-examination of Officer Robbins regarding the
circumstances surrounding defendant's police statement, including the destruction of the notes. Cf.
People v Paris, 166 Mich App 276, 282-284; 420 NW2d 184 (1988) (reversing the defendant's
convictions where the evidence against him was not strong and the destruction of the notes deprived the
defendant of an opportunity to effectively cross-examine the officer). Under these circumstances, we
conclude that defendant was not denied a fair trial by the destruction of the notes.
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Defendant next argues that he was denied a fair trial by prosecutorial misconduct.1 We
disagree. The test for prosecutorial misconduct is whether the defendant was denied a fair and impartial
trial. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). This Court must
examine the pertinent portions of the record and evaluate the prosecutor’s remarks in context. Id.
Appellate review of improper prosecutorial remarks is generally precluded if defendant does not object
to the remarks at trial because the failure to object deprives the trial court of an opportunity to cure the
error. Id. However, an exception exists if a curative instruction could not have eliminated the
prejudicial effect or where failure to consider the issue would result in a miscarriage of justice. Id.
First, defendant asserts that he was denied a fair trial because the prosecutor improperly elicited
testimony from Detective Robbins regarding defendant's invocation of his right to remain silent and his
right to counsel. Generally, a defendant's exercise of his right to remain silent cannot be used against
him to impeach his exculpatory story. Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91
(1976); People v McReavy, 436 Mich 197, 201; 462 NW2d 1 (1990); People v Bobo, 390 Mich
355, 359; 212 NW2d 190 (1973). However, where a defendant has waived his Miranda2 rights and
is generally prepared to talk to the police, “his statements, the manner in which he phrased those
statements, and his varying degrees of candor” are fit matters for the jury to consider. People v Sholl,
453 Mich 730, 738; 556 NW2d 851 (1996). Here, evidence indicated that defendant waived his
Miranda rights and agreed to speak to Detective Robbins regarding the sexual abuse allegations.
Defendant’s statement that he did not want to discuss the nature of the “problem” he had with
complainant, after answering several other questions regarding the allegations, did not amount to “an
affirmative and unequivocal invocation of his right to remain silent.” People v Davis, 191 Mich App
29, 36; 477 NW2d 438 (1991). Furthermore, no prejudice resulted from Detective Robbins’
testimony that defendant requested counsel. We also note that defendant did not timely object to the
challenged testimony and a limiting instruction could have cured any prejudice resulting from the
questioning. McElhaney, supra at 283. Thus, we cannot conclude that defendant was denied a fair
trial by the prosecutor’s questioning regarding defendant’s statement to the police.
Second, defendant contends that he was denied a fair trial because the prosecutor made a civic
duty argument during her closing arguments. It is improper for a prosecutor to make a civic duty
argument that appeals to the fears and prejudices of the jury. People v Bahoda, 448 Mich 261, 282;
531 NW2d 659 (1995). Here, assuming the prosecutor’s argument was improper, the trial court gave
an immediate curative instruction that the jury’s verdict must be based on the evidence, alone, and that
there was no duty to send any message to the community through the verdict. Any prejudice resulting
from the prosecutor’s remarks was cured by the court’s instruction. Thus, the prosecutor’s argument
did not deny defendant a fair trial.
Finally, defendant argues that the prosecutor misstated the burden of proof when she argued
that “[i]f you truly believe that the defendant didn’t do any of these things, did nothing wrong, then you
return a verdict of not guilty.” The prosecutor’s argument did not state the proper burden of proof.
However, upon defense counsel’s objection, the trial court immediately instructed the jury regarding the
correct burden of proof. The court gave another curative instruction, instructing the jury to use the
correct burden of proof, when the prosecutor stated that “if there is more than a mere possibility that the
victim is telling the truth here, then you should return a verdict of guilty.” While the prosecutor’s
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statements were improper, in light of the court’s immediate curative instructions, they did not deny
defendant a fair trial.
Affirmed.
/s/ William B. Murphy
/s/ Martin M. Doctoroff
/s/ Janet T. Neff
1
Defendant's statement of this issue includes an argument that the prosecutor committed misconduct by
“misrepresenting the facts.” However, defendant presents no argument regarding the issue and does
not indicate which facts were allegedly misrepresented. Thus, we cannot review the issue.
2
Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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