PEOPLE OF MI V RODERICK GUNN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 30, 2004
Plaintiff-Appellee,
v
No. 244921
Wayne Circuit Court
LC No. 01-010439-01
RODERICK GUNN,
Defendant-Appellant.
Before: Zahra, P.J., and Saad and Schuette, JJ.
MEMORANDUM.
Defendant appeals as of right his convictions of felonious assault, MCL 750.82, and
possession of a firearm during the commission of a felony, MCL 750.227b, entered after a jury
trial. We affirm.
The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). Prosecutorial
misconduct issues are decided on a case-by-case basis. The reviewing court must examine the
pertinent portion of the record, and evaluate a prosecutor’s remarks in context. People v Noble,
238 Mich App 647, 660; 608 NW2d 123 (1999). Prosecutorial comments 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 Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000). We review
a claim of prosecutorial misconduct de novo. People v Pfaffle, 246 Mich App 282, 288; 632
NW2d 162 (2001).
Defendant argues that he was denied a fair trial by the prosecutor’s improper comment
during defense counsel’s closing argument. We disagree and affirm defendant’s convictions.
Defendant failed to object to the prosecutor’s comment; therefore, absent plain error, he is not
entitled to relief. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). During
closing argument defense counsel pointed out complainant’s absence from the proceedings. The
prosecutor interrupted to explain that complainant was attending his grandmother’s funeral. A
prosecutor may not appeal to the jury to sympathize with the victim. Watson, supra, 591. The
prosecutor’s comment, while not made in the context of a formal objection or rebuttal argument,
was prompted by defense counsel’s implication that complainant was deliberately absenting
himself from the proceedings. Viewed in context, the prosecutor’s comment was not improper.
Noble, supra; Schutte, supra. Any prejudice created by the comment could have been cured by a
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timely instruction. People v Leshaj, 249 Mich App 417, 419; 641 NW2d 872 (2002). No plain
error occurred. Carines, supra.
Affirmed.
/s/ Brian K. Zahra
/s/ Henry William Saad
/s/ Bill Schuette
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