PEOPLE OF MI V MYRON LLOYD ERICKSONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
October 27, 1998
Menominee Circuit Court
LC No. 96-002208 FH
MYRON LLOYD ERICKSON,
Before: Saad, P.J., and Hood and Gribbs, JJ.
Defendant appeals of right from his jury conviction of third-degree criminal sexual conduct,
MCL 750.520d; MSA 28.788(4). Defendant was sentenced as an habitual offender, third, MCL
769.11; MSA 28.1083, to seven to twenty years’ imprisonment. We affirm.
Defendant raises a single issue regarding comments made by the prosecutor during the voir dire.
After the trial court had informed the prospective jurors of the nature of the case by indicating that it
involved “an act of homosexuality,” the prosecutor addressed the jurors and stated:
. . . Now, one thing I want to make absolutely clear is that [the complainant] is not a
homosexual. This was not a consensual sex act. So I don’t want you going into this
trial thinking that the defendant -- the defendant, he told an office[r] he’s bisexual, but I
don’t want you thinking the victim in this case is. Is that clear to everyone? Okay.
Later on, after the trial court and defense counsel both had made more statements to the
prospective jurors regarding the fact that the trial would concern an alleged homosexual act and that the
jurors would have to determine if the victim had been physically helpless, the prosecutor asked one
. . . One thing that concerns me, when the term homosexual is used, or homosexual act,
I’m concerned that maybe you or other jurors would use that it was a consensual act,
that it kind of means that it was a consensual act. Would you agree to keep an open
mind on the consent issue and decide this case after all evidence is presented?
And [defense counsel] referred to something to the effect that the only reason we’re
here is because [the complainant] was -- to decide whether or not [the complainant]
was physically helpless. Would you keep in mind that there is more to it than that?
That this is a young man who woke up . . . .
Immediately after each of the prosecutor’s comments, the trial court gave a sua sponte
cautionary instruction to the jurors that the comments of the attorneys were not evidence, that they had
not yet heard any evidence, and that they would determine the evidence from the testimony of the
witnesses. Defendant subsequently moved the court to declare a mistrial based on the prosecutor’s
comments and the trial court denied that motion.
A trial court’s decision regarding a motion for a mistrial is reviewed for an abuse of discretion.
People v Wolverton, 227 Mich App 72, 75; 574 NW2d 703 (1997). An abuse of that discretion will
be found only where the trial court’s denial of the motion has deprived the defendant of a fair and
impartial trial. Id. The trial court’s ruling must be so grossly in error as to deprive a defendant of a fair
trial or to amount to a miscarriage of justice. People v McAlister, 203 Mich App 495, 503; 513
NW2d 431 (1994). A claim of prosecutorial misconduct is likewise reviewed to determine if the
defendant was denied a fair and impartial trial. People v Howard, 226 Mich App 528, 544; 575
NW2d 16 (1997). Such claims are reviewed on a case-by-case basis and evaluated within the context
of the particular facts of the case. Id.
This Court has reviewed the prosecutor’s remarks in context and finds that defendant has failed
to demonstrate that his right to a fair and impartial trial was violated. The prosecutor’s remarks were
clearly intended to respond to the characterization of the incident by both the trial court and defense
counsel as involving homosexual conduct. The prosecutor was trying to inform the prospective jurors
that the complainant would claim that he was not a homosexual and that the incident had not been
consensual. The prosecutor’s comments did not misstate what the complainant’s testimony did in fact
subsequently disclose. To the extent that the prosecutor’s remarks strayed into the realm of conveying
his view of the evidence to the jurors, the trial court’s prompt sua sponte cautionary instructions were
sufficient to dispel any possible prejudice. Moreover, the trial court subsequently re-instructed the jury
both at the beginning and at the completion of the trial that the statements of the attorneys were not
evidence. Jurors are presumed to have followed a court’s instructions until the contrary is clearly
shown. McAlister, supra at 504. Defendant has presented no clear indication that the jurors failed to
follow the court’s cautionary instructions.
Thus, where the jurors each individually stated that they could decide the case based on the
evidence, where the trial court repeatedly instructed them that the prosecutor’s comments did
not constitute evidence, and where the evidence itself provided a sufficient basis for finding defendant
guilty, defendant was not denied a fair and impartial trial.
/s/ Henry William Saad
/s/ Harold Hood
/s/ Roman S. Gribbs