PEOPLE OF MI V GREGORY ALAN PARKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 15, 2004
Plaintiff-Appellee,
v
No. 241866
Wayne Circuit Court
LC No. 01-011596-01
GREGORY ALAN PARKS,
Defendant-Appellant.
Before: Owens, P.J. and Kelly and R.S. Gribbs*, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of misconduct in office, a common
law offense, pursuant to MCL 750.505 for which the trial court sentenced him to eighteen
months’ probation. We affirm.
I. Basic Facts
In August 2001, Taylor police were conducting surveillance on a suspected crack house.
During this surveillance, the victim met her boyfriend Brent McLeese at the house. At the time,
the victim was on probation for giving false information to a police officer. As McLeese and the
victim drove away, police stopped them, purportedly on suspicion of a stolen license plate. The
victim offered to give the officers narcotics information. Defendant handcuffed her, placed her
in the patrol car, and searched her purse, finding a crack pipe and a lighter, which he put in the
glove compartment of the patrol car. The victim’s possession of narcotics paraphernalia was a
violation of her probation. Nonetheless, defendant allowed the victim to exit the patrol car, but
asked for her cellular phone number and her home telephone number.
Approximately thirty minutes later, defendant called the victim telling her he was off
duty and suggesting that they meet. According to the victim, defendant said it was in her best
interest to meet him. The victim agreed to meet defendant at a strip mall parking lot where the
stores were all closed. Before going, she called McLeese and asked him to drive separately to
the arranged meeting spot. McLeese agreed, but was delayed by a train. In the parking lot,
defendant sat in the victim’s car and the two talked about having sexual intercourse. The victim
stated she would not have sexual intercourse with defendant because they did not have a
condom. Instead, the victim indicated that she would perform fellatio on defendant. He agreed.
*Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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When defendant ejaculated, the victim spit the semen into a napkin, which she retained. As she
left, she asked defendant if she was in trouble. He said she was not.
When the victim ultimately met up with McLeese, the two decided to put defendant’s
semen in a cup and take it to the police station. The victim also gave the police the clothes that
she had been wearing during her encounter with defendant. A subsequent search of defendant’s
duty bag uncovered the drug paraphernalia from the victim’s purse. At trial, Sergeant David
Cromwell testified that although it is within an officer’s discretion to charge for possession of
minor drug paraphernalia, officers are not free to dispose of the evidence. He also indicated that
it is unusual to place evidence in a duty bag because it disrupts the chain of custody. During
questioning, defendant denied knowing that the victim was on probation and that he accepted a
sexual favor in exchange for not reporting her probation violation. Defendant acknowledged that
it was wrong to have sexual relations with the victim, but stated that he did it only for the “sex
thrill.”
II. Defendant Was Properly Charged Under MCL 750.505
Defendant first contends that he was wrongly prosecuted under MCL 750.505 because
the statute applies only when “no provision is expressly made by any statute of this state” for the
punishment of the alleged offense. Defendant argues that this requirement is not satisfied
because his alleged conduct falls under the purview of MCL 750.123 and MCL 752.11. We
disagree. This is a question of law that we review de novo on appeal. People v Milton, 257
Mich App 467, 470; 668 NW2d 387 (2003).
MCL 750.505 provides:
Any person who shall commit any indictable offense at the common law,
for the punishment of which no provision is expressly made by any statute of this
state, shall be guilty of a felony, punishable by imprisonment in the state prison
not more than 5 years or by a fine of not more than $10,000.00 or both in the
discretion of the court.
“Misconduct in office” is an indictable offense at common law and subject to prosecution under
MCL 750.505. Milton, supra at 470. In Milton, this Court set forth the elements of misconduct
in office:
A charge of misconduct is sustainable when it sets forth (1) malfeasance,
committing a wrongful act, or (2) misfeasance, performing a lawful act in a
wrongful manner, or (3) nonfeasance, failing to do an act required by the duties of
the office.
To convict on the charge of misconduct in office, the prosecutor must
prove that the defendant (1) is a public officer, (2) the misconduct occurred in the
exercise of the duties of the office or under the color of the office, and (3) is
corrupt behavior. “‘Corruption,’ as an element of misconduct in office, is used in
the sense of depravity, perversion or taint.” “Pursuant to the definitions [of
depravity, perversion, and taint], a corrupt intent can be shown where there is
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intentional or purposeful misbehavior or wrongful conduct pertaining to the
requirements and duties of office by an officer.” [Id. at 471 (citations omitted).]
Defendant’s conduct does not fall under MCL 750.123, which generally prohibits a
police officer from taking bribes. Defendant’s encounter with the victim involved more than a
bribe: defendant was charged with using his power as a police officer to coerce the victim to
have sex with him. Because the alleged conduct was not merely acceptance of a bribe, it does
not fall squarely within the parameters of MCL 750.123. Nor does 750.123 fully cover the
wrongfulness of defendant using his power over the victim to procure her sexual services.
Defendant’s conduct also does not fall under MCL 752.11, which provides that a public
official “who wilfully and knowingly fails to uphold or enforce the law with the result that any
person’s legal rights are denied is guilty of a misdemeanor.” Affirmative misconduct does not
fall under MCL 752.11, which addresses omissions. People v Thomas, 438 Mich 448, 454; 475
NW2d 288 (1991). The prosecutor did not allege that defendant omitted to uphold or enforce the
law. Instead, the prosecutor alleged that defendant committed an affirmative act of misconduct.
Therefore, we conclude the prosecution properly charged defendant with misconduct in
office under MCL 750.505.1
III. Ineffective Assistance of Counsel
Defendant also argues that he was denied effective assistance of counsel. We disagree.
To establish ineffective assistance of counsel, a defendant must show (1) that defense
counsel did not perform as “counsel” guaranteed by the Sixth Amendment and (2) that the
deficient performance prejudiced the defense. People v Carbin, 463 Mich 590, 599-600; 623
NW2d 884 (2001). A defendant claiming ineffective assistance of counsel must overcome the
strong presumption that defense counsel was exercising sound strategy. Id. To demonstrate
prejudice, the defendant must show a reasonable probability that but for defense counsel’s error,
the result would have been different. Id.
Defendant asserts that defense counsel was ineffective because he missed opportunities to
attack the victim’s credibility, especially with respect to her financial motives and intoxication.
Defense counsel’s decisions to prioritize, and focus on some angles more than others, and to
avoid incongruous and contradictory defense theories, are matters of strategy, and may represent
a better strategy than confusing and overwhelming the jury with every available inconsistency
and weakness in the complainant’s testimony. Defendant has failed to overcome the
presumption of sound strategy.
Defendant also argues that defense counsel was ineffective for failing to object when the
prosecutor referred to defendant as a former police officer, or when Crowell testified that
1
Accordingly, defense counsel did not err in failing to make a dispositive motion on these
grounds.
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defendant had been dismissed, and should be called “former Officer Parks.” At the Ginther2
hearing, defense counsel testified that he and defendant discussed the advantages and
disadvantages of revealing defendant’s termination. They jointly decided that it might engender
sympathy for defendant if the jury knew he had been terminated. This was a legitimate trial
strategy.
Defendant also argues that defense counsel was ineffective for failing to use other acts
evidence admissible under MRE 404(b), as evidence of past acts to prove “scheme, plan, or
system.” He argues that the evidence would not have been precluded by MRE 404(a)(3), and
MCL 750.520j, which exclude evidence of a sex crime victim’s past sexual conduct with limited
exceptions. Even so, defense counsel’s failure to attempt to introduce this evidence did not
constitute ineffective assistance of counsel. The victim’s interview with Turner appears to be the
only evidence available that the victim previously used sex to curry favor with a police officer.
But contrary to defendant’s argument that this evidence shows the victim’s recurring scheme of
offering to have sex with police officers who have cause to arrest her, it actually portrays the
victim as a repeat victim of police abuse and a lifelong victim of sexual abuse. If defense
counsel had used the most helpful portions of the statement to impeach the victim, the prosecutor
would have been entitled to introduce the entire context of the statement, pursuant to MRE 106.
Defense counsel’s decision to avoid this evidence was sound trial strategy.
Defendant also claims that defense counsel was ineffective for not objecting when the
trial court responded to the jury’s request for the “elements” by sending the jury only the
elements, without the additional special instruction that the specific act of misconduct was sexual
coercion. But the trial court specifically stated that it was sending only the four elements of the
charged offense because that was all the jury requested. Further, given the overall presentation
of the evidence in this trial, it is unlikely that the jury was confused by the trial court’s response
to their request. Accordingly, defense counsel was not ineffective in this regard.
IV. The Complainant’s Prior Conviction
Defendant next argues that the trial court erred in excluding evidence that the victim was
previously convicted of giving false information to a police officer, in violation of a city of
Southgate ordinance. Defendant contends that the evidence was admissible for impeachment
under MRE 609, which permits evidence that a witness has been convicted of a crime with an
element of dishonesty when “the evidence has been elicited from the witness or established by
public record during cross examination.” We agree, but the error was harmless.
A trial court's decision to admit or exclude evidence is reviewed for an abuse of
discretion. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). “An abuse of
discretion is found only if an unprejudiced person, considering the facts on which the trial court
acted, would say that there was no excuse for the ruling made.” Id. An error in the admission or
the exclusion of evidence is not ground for reversal unless refusal to take this action appears to
the court inconsistent with substantial justice. MCR 2.613(A); MCL 769.26. The defendant
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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claiming error must show that it was more probable than not that the alleged error affected the
outcome of the trial, in light of the weight of the properly admitted evidence. People v
Whittaker, 465 Mich 422, 427-428; 635 NW2d 687 (2001).
Even assuming the trial court erred in excluding evidence of the victim’s conviction, the
error was harmless. The victim had already testified, on direct examination, that when defendant
retrieved her records on his display terminal, it showed that she was on probation for “false
information or something.” The jury was thus aware that the victim had committed a prior
offense involving dishonesty. Further, an examiner's questions regarding a witness's crimes
related to dishonesty “must be limited to the fact of conviction and the nature of the crime; he
may not go into the details or circumstances surrounding the crime . . . .” People v Rappuhn, 390
Mich 266, 274 n 2; 212 NW2d 205 (1973). The mere fact that the victim committed this offense,
without any information as to the surrounding circumstances would not establish that she
chronically lies to, manipulates, and falsely accuses police officers. Therefore, we conclude that
defendant is not entitled to relief on the basis of the trial court’s MRE 609 ruling. Nor was
defense counsel ineffective for failing to pursue this matter.
V. Prosecutorial Misconduct
Defendant also argues that he was denied fair trial because of prosecutorial misconduct.
We disagree.
We review claims of prosecutorial misconduct de novo. People v Pfaffle, 246 Mich App
282, 288; 632 NW2d 162 (2001). The test of prosecutorial misconduct is whether the defendant
was denied a fair and impartial trial, i.e., whether prejudice resulted. People v Abraham, 234
Mich App 640, 656; 599 NW2d 736 (1999). Prosecutorial misconduct issues are decided case
by case, and the reviewing court must examine the pertinent portion of the record and evaluate a
prosecutor's remarks in context. Id. at 272-273. 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, 720; 613 NW2d 370 (2000).
Defendant argues that the prosecutor improperly bolstered the victim’s testimony by
referencing the police department’s investigation into the victim’s complaint. A prosecutor may
not vouch for a witness's credibility or suggest that the government has some special knowledge
that a witness’s testimony is truthful. Knapp, supra at 382. A prosecutor may, however, argue
from the facts that a witness is credible or that the defendant or another witness is not worthy of
belief. People v Howard, 226 Mich App 528, 548; 575 NW2d 16 (1998). The complained of
statement does not constitute improper vouching. There were several references to the
investigation in the trial, so the prosecutor did not ask jurors to look beyond the evidence. Nor
did the prosecutor ask jurors to find the victim truthful because the police department found her
truthful; rather, she asked jurors to keep an open mind as the department investigators did.
Therefore, we conclude that this statement did not constitute prosecutorial misconduct.
Defendant also claims that the prosecutor argued for a conviction based on sympathy for
the victim. Appeals to the jury to sympathize with a victim constitute improper argument.
People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001). But this Court will not
reverse where the prosecutor makes only an isolated comment, and where the appeal to jury
sympathy is not blatant or inflammatory. Id. The two allegedly improper statements were only
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brief references. The statements were not inflammatory, maudlin, or emotional. The remark that
the victim was probably used to being mistreated was not a blatant attempt to win the jury’s
sympathy, but related to the prosecutor’s theory that defendant targeted his alleged misconduct
against someone who seemed unlikely to stand up for herself. The request for jurors to put
themselves in the victim’s place also was not a blatant appeal for sympathy, but apparently
intended to give context to the jury’s evaluation of her demeanor when assessing her credibility.
Further, the trial court instructed the jury that it “must not let sympathy or prejudice influence
[its] decision.”
Defendant also argues that the prosecutor made improper civic duty arguments, and made
arguments which implied that defendant engaged in other acts of misconduct. A prosecutor
“need not confine argument to the ‘blandest of all possible terms,’ but has wide latitude and may
argue the evidence and all reasonable inferences from it.” Aldrich, supra at 112, quoting People
v Marji, 180 Mich App 525, 538; 447 NW2d 835 (1989). However, the prosecutor “should not
resort to civic duty arguments that appeal to the fears and prejudices of jury members . . . .”
People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). The prosecutor asked the jurors to
bring defendant to justice based on the evidence of his guilt. This was not improper. Further, we
do not believe the language, “so that this officer could not take advantage of one more person,”
insinuated that defendant had committed other acts of misconduct.
Defendant also objects to a statement from the prosecutor’s closing argument, which
defendant characterizes as “a call by the prosecution to convict on acts not brought out in Officer
Parks’ case.” These comments were not improper. The prosecutor did not compare defendant’s
conduct to that of President Clinton or priests who abused boys; rather, she used these examples
to illustrate the point that no one, including police officers, is above the law.
Defendant also bases his prosecutorial misconduct claim on a portion of the rebuttal
argument. Read in context, the statement indicates that a police officer’s work brings many
opportunities for corrupt behavior, such as keeping drugs or drug money found in the course of
duty, or receiving sexual favors from prostitutes in lieu of charging them with criminal conduct.
The prosecutor was arguing that police officers must resist these temptations, and that one who
fails to do so is guilty of misconduct. This was not improper.
Defendant also claims that the prosecutor shifted the burden of proof, and drew an
adverse inference from defendant’s decision not to testify. We conclude that the prosecutor did
not shift the burden of proof or make adverse inferences from defendant’s decision to remain
silent. It was, in fact, uncontroverted that defendant, a police officer, made contact with the
victim during a traffic stop, and that thirty minutes later he called her. The prosecutor was not
suggesting that defendant stipulated or agreed to the prosecutor’s version of the events that
followed defendant’s telephone call to the victim.
Defendant also claims that the prosecutor denigrated defense counsel during her rebuttal.
A prosecuting attorney may not personally attack defense counsel. People v Phillips, 217 Mich
App 489, 498; 552 NW2d 487 (1996). But we do not agree that the hypothetical example of
implied bribery accused all criminal defense attorneys of dishonesty, or attacked the integrity of
defense counsel. The statement presented one hypothetical scenario, without suggesting that this
behavior is widespread, typical of all defense attorneys, or characteristic of defense counsel’s
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professional ethics. Moreover, the hypothetical prosecutor in the scenario acted just as corruptly
as the hypothetical defense counsel.
Because none of the comments cited constitute prosecutorial misconduct, defense counsel
was not ineffective for failing to object.
VI. Sufficiency of the Evidence
Defendant also argues that there was insufficient evidence to sustain his conviction. We
disagree.
When a defendant challenges the sufficiency of the evidence in a criminal case, this
Court considers whether the evidence, viewed in a light most favorable to the prosecution, would
warrant a rational juror to find guilt beyond a reasonable doubt. People v Sexton, 250 Mich App
211, 222; 646 NW2d 875 (2002).
Viewing the evidence in a light most favorable to the prosecution, we conclude that there
was sufficient evidence to establish that the victim performed the fellatio under the duress of
defendant’s coercive conduct. According to the victim, less than an hour after defendant caught
her possessing narcotics paraphernalia, defendant called her stating that it was in “her best
interests” to meet him in a dark parking lot after his shift ended. She also testified that defendant
knew she was on probation, and that the narcotics paraphernalia could be particularly damaging
to her. Defendant had no legitimate reason for contacting the victim when off duty, and no
reason to expect the victim to have any freely formed interest in seeing him. The after-hours
strip mall parking lot had little to recommend itself for a meeting place other than its suitability
for a discrete encounter. From these circumstances, the jury could reasonably find that the
victim performed the fellatio under duress. Viewed in a light most favorable to the prosecution,
the evidence was sufficient to support defendant’s conviction.
VII. Motion for New Trial
Defendant also argues that the trial court erred in denying his motion for a new trial based
on newly discovered evidence. We review the trial court's decision on a motion for a new trial
for an abuse of discretion. People v Crear, 242 Mich App 158, 167; 618 NW2d 91 (2000).
To warrant a new trial on the basis of newly discovered evidence, the defendant must
show that the evidence itself, not just its materiality, (1) is newly discovered, (2) is not merely
cumulative, (3) probably would have caused a different result, and (4) was not discoverable and
producible at trial with reasonable diligence. People v Bass (On Rehearing), 223 Mich App 241,
262; 565 NW2d 897 (1997), order vacated in part on other grounds 457 Mich 866 (1998). But
newly discovered evidence is not grounds for a new trial where it would merely be used for
impeachment purposes, or where it relates only to a witness’ credibility. Id. at 262. Evidence of
The victim’s plan or scheme is properly characterized as credibility evidence. The June 2003
incident does not directly reveal any information about what happened between the victim and
defendant in August 2001. Instead, the evidence bears upon which party is more credible. We
will not reverse the trial court’s order because it reached the right result, even if it was for the
wrong reason. People v Goold, 241 Mich App 333, 342 n 3; 615 NW2d 794 (2000).
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Affirmed.
/s/ Donald S. Owens
/s/ Kirsten Frank Kelly
/s/ Roman S. Gribbs
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