PEOPLE OF MI V FRANK LEO WOLANIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 13, 2002
Plaintiff-Appellee,
V
No. 228761
Macomb Circuit Court
LC No. 98-003019-FC
FRANK LEO WOLANIN,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Bandstra and Gage, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of bank robbery, MCL 750.531, and was
sentenced to a prison term of twenty to forty years. He appeals as of right. We affirm.
A bank teller positively identified defendant as the man who came to her window and
passed her a note that said, “These bullets can shoot through glass. Give me all your large bills.”
The teller got a very good look at defendant. She gave him about $3,000 from her drawer. The
teller first identified defendant several months after the bank robbery in a line-up. At trial, the
prosecution admitted photographs the teller identified as depicting defendant on the day of the
bank robbery, and also admitted the bank’s surveillance tape. The teller testified that she was
positive that defendant was the man who committed the robbery. The jury convicted defendant
of bank robbery.
Defendant contends that the trial court erroneously denied his motion for mistrial that
was based on prosecutorial misconduct. Claims of prosecutorial misconduct are reviewed de
novo. People v Pfaffle, 246 Mich App 282, 288; 632 NW2d 162 (2001). To preserve a claim of
prosecutorial misconduct, the defendant must object to the alleged misconduct at trial. People v
Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). While defendant did not immediately
object to the challenged questioning and answer by the witness, we consider the issue preserved
because he raised the issue immediately afterwards.
In considering a claim of prosecutorial misconduct, the focus is on whether the
prosecutor’s conduct denied the defendant a fair and impartial trial. People v Rice (On Remand),
235 Mich App 429, 433-434; 597 NW2d 843 (1999). Questions of prosecutorial misconduct are
decided on a case-by-case basis. Id. This Court must consider the pertinent portion of the record
and evaluate the prosecutor’s remarks in context to determine if the conduct denied the defendant
a fair and impartial trial. Id.
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The trial court’s decision to deny a motion for a mistrial is reviewed on appeal for an
abuse of discretion. People v Dennis, 464 Mich 567, 572; 628 NW2d 502 (2001). The trial
court should grant a mistrial only where there exists an irregularity that is prejudicial to the
defendant’s rights and impairs the defendant’s ability to receive a fair trial. People v Griffin, 235
Mich App 27, 36; 597 NW2d 176 (1999).
Before trial, the prosecutor sought to admit evidence pertaining to another bank robbery
for which defendant was convicted There were several similarities between that robbery and the
one leading to this prosecution, and the prosecution sought admission of the testimony of a
police officer to show a scheme or plan and to establish defendant’s intent and identity. The trial
court denied the motion. However, at trial and on redirect examination of another police officer,
the prosecutor elicited testimony from another police officer that the officer broadcast a
description matching defendant during an investigation of another bank robbery and that he
gained knowledge of the description from his investigation of the second bank robbery. The
officer also testified that he had seen photographs taken from the surveillance tape of the present
robbery during the “bank robbery investigations.”
It is the admission of the police officer’s testimony that formed the basis of defendant’s
motion for a mistrial and his claim of prosecutorial misconduct. He argues that the prosecutor
improperly elicited testimony of other bad acts in violation of the trial court’s pre-trial order and
of MRE 404(b)(1), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
We agree that the police officer’s challenged testimony constitutes evidence that falls
within the scope of MRE 404(b)(1) because it tends to associate defendant with another crime.
The prosecutor asserts that the testimony was admissible for another purpose. However,
regardless of the admissibility of the evidence under MRE 404(b)(1), we find any error to be
harmless. In light of the strong identification evidence introduced by the prosecutor, in particular
the bank teller’s unequivocal testimony, the photographs, and the surveillance tape, we cannot
conclude that it is more probable than not that any error in the admission of the evidence was
outcome determinative. See People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
Defendant also challenges statements made by the prosecutor during her closing and
rebuttal arguments. Defendant did not object at trial to these remarks, and therefore our review
is precluded unless a curative instruction could not have eliminated any prejudicial effects of the
remarks or unless failure to review the issue would result in a miscarriage of justice. People v
Ullah, 216 Mich App 669, 679; 550 NW2d 568 (1996). In her closing remarks, the prosecutor
was merely commenting on evidence that was admitted, albeit erroneously, at trial. Defense
counsel did not object to the remarks, and the trial court gave no specific curative instruction on
the prosecutor’s arguments; nonetheless, the trial court gave the standard instruction that the
arguments of the attorneys were not evidence that the jury should consider. Because there was
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sufficient properly admitted evidence for the jury to convict defendant of bank robbery, no
miscarriage of justice will occur if this Court declines to further review this issue.
Finally, defendant challenges the trial court’s denial of his request to admit into evidence
a photograph of Thomas Thompson. Defendant argued that Thompson, who has a lengthy
criminal history and lives near the site of the crime, so resembles defendant that the jury should
have been permitted to view Thompson’s photograph to determine whether the identification of
defendant was a mistake. We disagree
Evidence that is not relevant is not admissible. MRE 402. “Relevant evidence” is
defined as “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable that it would be
without the evidence.” MRE 401. Defendant offered no evidence to connect Thompson to the
bank robbery. The simple fact that Thompson has a criminal history and resembles defendant
does not have the tendency to make the existence of any fact at issue in this prosecution more or
less probable than it would be without the evidence. The trial court properly excluded the
offered evidence as irrelevant.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Richard A. Bandstra
/s/ Hilda R. Gage
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