PEOPLE OF MI V SCOTT LEE YOUNESAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 29, 1998
LC No. 95-006916
SCOTT LEE YOUNES,
Before: O’Connell, P.J., and Gribbs and Talbot, JJ.
Defendant appeals as of right from his jury trial convictions of first-degree premeditated murder,
MCL 750.316; MSA 28.548, two counts of assault with intent to murder, MCL 750.83; MSA
28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA
28.424(2). The trial court sentenced defendant to life imprisonment for the first-degree murder
conviction, to two terms of twenty to forty years for the assault convictions, and to a mandatory two
year term for the felony-firearm conviction. We affirm.
This case arises from the fatal shooting of Detroit Police Officer Jerry Philpot. Defendant fired
at Philpot, Detroit Police Officer Russell Solano, and Ted McClellan in an alley, at nighttime, with an
assault rifle. Defendant asserted a defense of self-defense, although there was little evidentiary support
for this defense. Indeed, the evidence at trial indicated that the victims were not even aware of
defendant’s presence until just before he fired the shots.
On appeal, defendant first argues that several statements made by the prosecutor during rebuttal
argument were improper and had the effect of shifting the burden of proof onto himself to prove that he
acted in self-defense. We disagree. Because there was no objection to the challenged remarks at trial,
appellate review of this issue is precluded unless a curative instruction could not have remedied the
prejudicial effect of the statements, or our failure to consider the issue would result in a miscarriage of
justice. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
As defendant correctly observes, once evidence of self-defense is introduced, the prosecution
bears the burden of disproving the defense beyond a reasonable doubt. People v Fortson, 202 Mich
App 13, 20; 507 NW2d 763 (1993). Thus, it is generally improper for a prosecutor to argue or
suggest in closing argument that the defendant must prove something or present an explanation for
damaging evidence because this type of argument tends to shift the burden of proof. People v Green,
131 Mich App 232, 237; 345 NW2d 676 (1983). However, once a defendant testifies or advances
an alternative theory of the case that would exonerate him, a prosecutor’s argument on the validity of the
defense theory does not shift the burden of proof. See People v Fields, 450 Mich 94, 115; 538
NW2d 356 (1995).
Here, the prosecutor’s comments addressed the evidence presented at trial and were largely
responsive to defense counsel’s comments during closing argument suggesting that defendant acted in
self-defense. See People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995) (explaining that
prosecutors are free to argue the evidence and all reasonable inferences from the evidence as it relates
to their theory of the case); People v Messenger, 221 Mich App 171, 181; 561 NW2d 463 (1997)
(explaining that prosecutorial comments must be considered in light of defense arguments). Viewed in
context, the prosecutor’s comments involved the weight and credibility of the defense claim of self
defense. Accordingly, they were not improper. Moreover, even if the comments had been improper,
defendant would not be entitled to relief on appeal, because any prejudice could have been remedied by
a prompt curative instruction regarding the burden of proof.
Defendant next challenges several other instances of alleged prosecutorial misconduct, some of
which were objected to at trial. When reviewing instances of alleged prosecutorial misconduct, this
Court must examine the pertinent portion of the record and evaluate the prosecutor’s remarks in
context. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). The test of
prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. Id. In this case,
defendant was not denied a fair and impartial trial by the challenged remarks.
First, we do not believe that the prosecutor improperly injected his personal opinion about this
case into his argument. The prosecutor’s comments were properly made in reference to the evidence
presented at trial and did not involve the prosecutor vouching for defendant’s guilt or placing the
prestige of his office behind a contention of defendant’s guilt. See People v Cowell, 44 Mich App
623, 638; 205 NW2d 600 (1973).
Second, the prosecutor’s remark about “brute force” or “street rule” was not an appeal to the
jurors’ civic duty, but rather an apparent reference to the attempts of the parties involved in this case to
take matters into their own hands. See Bahoda, supra at 282-285. Moreover, defendant failed to
make a timely objection to this comment. Had defendant timely objected, a prompt curative instruction
could have remedied any prejudicial effect. Stanaway, supra at 687.
Third, the prosecutor did not denigrate defense counsel. Viewed in context, the challenged
remarks were not improper attacks on defense counsel, but rather permissible comments regarding the
strength of defendant’s arguments regarding the evidence. See People v Howard, 226 Mich App 528,
544-545; 575 NW2d 16 (1997). Clearly, the prosecutor was free to argue from the evidence that the
defendant’s theory of self-defense was not worthy of belief.
Fourth, defendant’s argument that the prosecutor improperly vouched for the credibility of his
witnesses is likewise unpersuasive. Viewed in context, the challenged comments were responsive to the
defense argument that the police witnesses had fabricated testimony. Otherwise improper remarks may
not amount to error requiring reversal where they are responsive to defense arguments. See People v
Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996). Moreover, to the extent the
comments could be viewed as improper, we conclude that they did not deprive defendant of a fair and
impartial trial. McElhaney, supra at 283.
Finally, defendant has not cited any authority for his argument that it was improper for the
prosecutor to ask the jury to return an honest verdict, consistent with the jurors’ integrity and common
sense. We will not search for authority to sustain a defendant’s argument. People v Hoffman, 205
Mich App 1, 17; 518 NW2d 817 (1994). Nonetheless, we are not persuaded that the comment
deprived defendant of a fair and impartial trial. See People v Bass (On Rehearing), 223 Mich App
241, 251-252; 565 NW2d 897 (1997), vacated in part on other grounds 457 Mich 865 (1998).
In his final argument on appeal, defendant contends that he was denied a fair trial when the trial
court erred when it failed to instruct the jury on the cognate lesser included offense of involuntary
manslaughter pursuant to either CJI2d 16.10 (Involuntary Manslaughter) or CJI2d 16.11 (Involuntary
Manslaughter – Firearm Intentionally Aimed). We disagree.
Defendant requested an instruction pursuant to CJI2d 16.11 at trial and this request was denied.
We agree with the trial court’s determination that the evidence in this case did not warrant an instruction
on “statutory involuntary manslaughter” pursuant to CJI2d 16.11. With respect to CJI2d 16.10,
defendant failed to preserve the issue by requesting the instruction at trial. In any event, even if the trial
court had erred in failing to instruct the jury on involuntary manslaughter, such error would be deemed
harmless because the jury was instructed on, and rejected, the intermediate lesser included offense of
second-degree murder. People v Zak, 184 Mich App 1, 16, 457 NW2d 59 (1990).
/s/ Peter D. O’Connell
/s/ Roman S. Gribbs
/s/ Michael J. Talbot