PEOPLE OF MI V LAQUAN CASEY DURANT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 2, 2003
Plaintiff-Appellant,
v
No. 243023
Jackson Circuit Court
LC No. 02-001746-FH
LAQUAN CASEY DURANT,
Defendant-Appellee.
Before: Cooper, P.J., and Markey and Meter, JJ.
COOPER, P.J. (dissenting).
I respectfully dissent from the majority opinion.
While the trial court cited sufficiency of the evidence in dismissing defendant’s charges,
it based this decision on the prosecution’s statements during rebuttal argument that defendant
admitted to police that he knew the items were stolen. As noted by the trial court:
Evidently, the prosecutor realized the gap in his case, and improperly said
in final rebuttal argument not capable of being rebutted by the defense, reading
from the [police] report, which he knows is not evidence and could not be
evidence that the things taken from the house did not belong to him, thus covering
up his gap, that, therefore, [defendant] would have known that these additional
items taken from the house did not belong to him.
The record supports the trial court’s finding that there was no evidence presented at trial that
defendant knew the property taken from the house was stolen. A prosecutor may not make
statements of fact to the jury that are unsupported by the evidence. People v Schutte, 240 Mich
App 713, 721; 613 NW2d 370 (2000).
The trial court further stated its belief that the prosecutor literally falsified evidence and
cited to the Code of Professional Responsibility:
Of course, under the Code of Professional Conduct 3.4: An attorney is not
to falsify evidence, counsel, or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law.
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Falsifying evidence is what occurred here with regards to providing
evidence to the jury that had not been placed into evidence during the course of
the trial.
The trial judge was so distressed with the prosecutor’s blatant conduct that he requested that the
prosecutor be reassigned to another courtroom.
On the facts of this case, I cannot say that the prejudice from the prosecution’s argument
could have been cured with a timely instruction. Knowledge that the items were stolen was an
element of the crime charged. See MCL 750.110a(3). Here, the record shows that defendant
went to the complainant’s home with Sims to retrieve defendant’s television. Although the jury
could arguably have inferred that defendant knew the additional items taken from the home were
stolen, the prosecutor’s improper comments usurped the jury’s role in this regard. The
prosecutor’s unrefuted and improper comments on a disputed element of the charged crime right
before the jury began deliberations, were extremely prejudicial and denied defendant his right to
a fair trial.
Accordingly, I believe that the trial court properly dismissed this case, given the
prosecution’s interjection of evidence not on the record during rebuttal argument and would
remand for a new trial. See People v Tait, 99 Mich App 19, 29; 297 NW2d 853 (1980).
/s/ Jessica R. Cooper
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