PEOPLE OF MI V DWIGHT MORROW HENLEYAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
October 23, 1998
Detroit Recorder’s Court
LC No. 95-003455
DWIGHT MORROW HENLEY,
Before: White, P.J., and Hood and Gage, JJ.
Defendant appeals as of right his jury conviction of first-degree felony-murder. MCL 750.316;
MSA 28.548. He was sentenced to life imprisonment. We affirm.
First, defendant argues that the trial court erred by denying his motion for mistrial, which was
brought on the basis that the prosecution improperly elicited evidence of, and interjected references to,
the fact that the prosecution’s principal witness had been subjected to polygraph testing. The witness
was an admitted accomplice in the shooting and stabbing death of the victim. We find no error requiring
The trial court’s ruling on a motion for mistrial is reviewed for an abuse of discretion. People v
Cunningham, 215 Mich App 652, 654; 546 NW2d 715 (1996). “A mistrial should be granted only
for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial.”
Id. Evidence that a polygraph test was conducted and the results of the test are inadmissible at trial.
People v Triplett, 163 Mich App 339, 343; 413 NW2d 791 (1987), remanded on other grounds 432
Mich 568 (1989), citing People v Barbara, 400 Mich 352, 357; 255 NW2d 171 (1977); People v
Rocha, 110 Mich App 1, 8; 312 NW2d 657 (1981). Error requiring reversal may occur even where
the results themselves are not admitted. Rocha, supra, citing People v Frechette, 380 Mich 64; 155
NW2d 830 (1968). The inadmissibility of such evidence is premised on the lack of trustworthiness of
the accuracy of polygraph examinations. Triplett, supra. A mistrial is not required where a witness
merely mentions a polygraph. People v Kosters, 175 Mich App 748, 754; 438 NW2d 651 (1989).
A reference to a polygraph examination may be a matter of defense strategy,
the result of a nonresponsive answer, or otherwise brief, inadvertent and isolated. Thus,
in prior cases, this Court has analyzed a number of factors to determine whether
reversal is mandated. This Court should consider: (1) whether defendant objected
and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3)
whether there were repeated references; (4) whether the reference was an attempt to
bolster a witness’s credibility; and (5) whether the results of the test were admitted
rather than merely the fact that a test had been conducted. [Rocha, supra at 8-9;
Here, the challenged remarks and references referred to “testing” and the “investigation.”
While we caution the experienced prosecutor regarding his use of the word “testing,” we conclude that
viewed in context, the references did not directly suggest that the witness underwent a polygraph
examination. The references were ambiguous and did not prejudice defendant. The trial court did not
abuse its discretion in denying defendant’s motion for mistrial.
Next, defendant claims that he was denied a fair trial because of prosecutorial misconduct. His
motion for a new trial on this basis was denied by the trial court. We find no error requiring reversal.
This Court reviews the trial court’s ruling on a motion for a new trial for an abuse of discretion.
People v Leonard, 224 Mich App 569, 578; 569 NW2d 663 (1997). Review of this issue requires
an examination of the pertinent portion of the record and consideration of the prosecutor’s remarks in
context to determine whether the remarks denied defendant a fair trial. People v Bahoda, 448 Mich
261, 266; 531 NW2d 659 (1995).
First, defendant argues that the prosecutor improperly suggested/asserted in opening statement
that defendant was involved in a violent drug-related underworld and that this suggestion was not
supported by the evidence. If the prosecutor acts in good faith in stating that evidence will be submitted
to the jury, reversal is not warranted where such evidence is not presented. People v Johnson, 187
Mich App 621, 626; 468 NW2d 307 (1991). Here, the facts demonstrated that the murder stemmed
from the victim’s relationship with defendant and defendant’s accomplice, a relationship based on drug
trafficking. The prosecutor’s comment did not deny defendant a fair and impartial trial.
Next, defendant argues that the prosecutor improperly interjected his opinion regarding the
credibility of the witnesses. In particular, defendant refers to the prosecutor’s closing remarks regarding
Meyers and the prosecutor’s use of “we know” in his argument.
The prosecutor is given great latitude regarding its arguments and conduct. Bahoda, supra at
282. Prosecutors are permitted to argue the evidence and all reasonable inferences drawn from the
evidence to the extent that it relates to their theory of the case. Id. However, it is improper for the
prosecutor to vouch for a witness’ credibility to the effect that there is a suggestion that the prosecutor
possesses special knowledge of the witness’ truthfulness. Id. at 276. The prosecutor is also prohibited
from invoking the prestige of the office. People v Reed, 449 Mich 375, 398; 535 NW2d 496 (1995).
However, the prosecutor is permitted to argue that a witness is telling the truth. People v Stacy, 193
Mich App 19, 29; 484 NW2d 675 (1992). Whether the prosecutor’s remarks were improper
depends on whether the prosecutor was, in fact, attempting to vouch for the defendant’s guilt. Reed,
supra at 399.
Here, the challenged comments did not involve statements in which the prosecutor vouched for
the witness’ credibility. Rather, the prosecutor set forth the circumstances under which the witness’
statement was made and asserted that these circumstances showed that the witness gave a truthful
statement and truthful testimony. The prosecutor’s argument was based on the evidence. The
prosecutor did cross the line when he spoke of his own involvement in the procedure, and expressed his
personal view that he did not think the witness was a criminal brain who had fooled everyone.
However, in context, these were isolated statements that did not deny defendant a fair trial. Moreover,
defense counsel had previously attacked the witness’ credibility, and the prosecutor’s argument was a
response to that attack.
We also reject defendant’s argument that the prosecutor improperly used “we know” in his
closing argument. As the Court in Reed explained: “The propriety of the prosecutor’s comments ‘does
not turn on whether or not any magic words are used.’ The crucial inquiry is not whether the prosecutor
said ‘We know’ or ‘I know’ or ‘I believe,’ but rather whether the prosecutor was attempting to vouch
for the defendant’s guilt.” Reed, supra at 399. It is clear that the prosecutor simply used this
expression to sum up the evidence and did not vouch for the witness’ credibility.
The prosecutor’s argument regarding another witness, in which the prosecutor stated that the
witness “had such a number done on him,” was not improper when viewed in context. There was
evidence that defendant had called the witness after he gave grand jury testimony and asked if he
needed a lawyer. The prosecutor argued his theory of the case and used the witness’ testimony to
demonstrate the persuasive ability that defendant had over various persons and that there was a reason
the witnesses did not immediately reveal their knowledge of this case to the authorities.
Defendant next complains that the prosecutor made a blatant appeal to the jury’s fear of crime,
violence and drugs. “[P]rosecutors should not resort to civic duty arguments that appeal to the fears
and prejudices of jury members . . . .” Bahoda, supra at 261. While the prosecutor’s references to
police and their role was unnecessary and irrelevant, the remainder of the challenged comments, viewed
in context, were not improper, but were based on the evidence and the prosecutor’s theory of the case.
We find no error requiring reversal.
Defendant also argues prosecutorial misconduct based on the prosecutor’s denigration of
defense counsel. The prosecution may not attack defense counsel or suggest to the jury that defense
counsel intentionally sought to mislead the jury. People v Dalessandro, 165 Mich App 569, 580; 419
NW2d 609. “Such an argument impermissibly shifts the focus from the evidence itself to the defense
counsel’s personality.” Id., quoting People v Wise, 134 Mich App 82, 101-102; 351 NW2d 255
While the prosecutor attacked defense counsel’s theory of the case, he sought to demonstrate
that defense counsel’s explanation was not supported by the facts. The statements were made in
response to defense counsel’s argument. The prosecutor did not suggest that defense counsel lied or
acted deceptively. He merely suggested that he had fashioned a far-fetched theory. The challenged
statements made by the prosecutor were not such that they denied defendant a fair trial.
Defendant next argues that the trial court erred in instructing the jury on an aiding and abetting
theory and, after giving that instruction, in failing to instruct the jury that it must unanimously find
defendant guilty as either a principal or an aider and abettor. We disagree.
While defendant properly preserved his challenge to the aiding and abetting instruction, he failed
to request an instruction on unanimity. Therefore, the latter claim is not preserved for appeal. MCR
2.516(C); People v Sardy, 216 Mich App 111, 113; 549 NW2d 23 (1996). Jury instructions are
reviewed in their entirety to determine whether there is error requiring reversal. People v Daniel, 207
Mich App 47, 53; 523 NW2d 830 (1994). In the absence of a request for a jury instruction, this
Court’s review is limited to determining whether relief is necessary to avoid a miscarriage of justice.
People v Messenger, 221 Mich App 171, 177; 561 NW2d 463 (1997).
Because an aiding and abetting theory is supported by the evidence, the trial court properly
gave that instruction, as requested by the prosecutor. People v Lemons, 454 Mich 234, 250; 562
NW2d 447 (1997); People v Head, 211 Mich App 205, 211; 535 NW2d 563 (1995). Moreover, as
discussed in People v Espinosa, 142 Mich App 99, 105; 369 NW2d 265 (1985), under MCL
767.39; MSA 28.979, there is no distinction between a principal and an aider and abettor. Because
there was evidence that the charged offense was committed by a person who was either a coprincipal
or aided and abetted in the killing, the failure to instruct the jury regarding unanimity as to whether
defendant was the principal or aider and abettor did not constitute reversible error. See People v
Burgess, 67 Mich App 214, 219-222; 240 NW2d 485 (1976), which is distinguished from People v
Ewing (On Remand), 102 Mich App 81, 300 NW2d 742 (1980), where the jury could have found
that the alleged accomplice played no part in the crime.
We reject defendant’s argument that he was deprived of a fair trial because the aiding and
abetting instruction introduced a new theory of criminal liability at the end of the trial. As defendant
concedes, the prosecution argued that defendant participated in the actual killing. The aiding and
abetting instruction was appropriate because there was evidence that defendant shot the victim and
Meyers then stabbed him while he was still alive. The prosecution never urged the jury to convict
defendant on the basis that he aided and abetted the murder by providing the weapon, even if he was
not present at the murder scene.
Lastly, defendant argues in a supplemental brief filed in propria persona that the prosecution
improperly referred to the grand jury indictment as substantive evidence. 1 Because defendant did not
timely object,2 our review is precluded unless an objection could not have cured the error or a failure to
review the issue would result in a miscarriage of justice. People v Stanaway, 446 Mich 643, 687; 521
NW2d 557 (1994).
Defendant’s theory of the case was that Michael Meyers had lied to the police about defendant
having helped him kill Gould. The prosecutor addressed the investigation that took place after Meyers
told the police who helped him kill Gould, including that there had been a grand jury investigation, but
did not argue that it was substantive evidence of guilt.
We note that defense counsel raised the issue of the grand jury during his cross-examination of
Meyers, whose testimony came before the questioning defendant challenges as improperly referring to
the grand jury. Moreover, the trial court during voir dire and during trial, following defense counsel’s
eventual objection, stated to the jury that a criminal indictment is not evidence. Under these
circumstances, we find no miscarriage of justice.
/s/ Helene N. White
/s/ Harold Hood
/s/ Hilda R. Gage
The remaining issues raised in defendant’s supplemental brief filed in propria persona are duplicative of
arguments raised in his original brief, and we do not separately address them.
Defense counsel raised the issue of the grand jury in his cross-examination of Meyers, which occurred
before the questioning by the prosecutor that defendant challenges. Further, defendant did not object
when the subject of the grand jury subsequently came up in a question to Meyers. After Meyers
testified, Sergeant Gazarek testified.