People of Michigan v. Timothy Michael Selonke II
330247
| Mich. Ct. App. | Dec 15, 2016Background
- Defendant Timothy Selonke II was tried twice for assault with intent to commit murder, armed robbery, carjacking, and felony-firearm; convicted of felony-firearm at first trial and, on retrial, convicted of assault with intent to do great bodily harm, armed robbery, and carjacking.
- Victim Bridgette Green testified she was attacked at gunpoint during an attempted robbery/carjacking; shots were fired into the vehicle but she was not struck; defendant was identified as the driver of the other car and later arrested.
- A defense witness, Alexis Aguilar, testified about a telephone call with Green asserting extortion; defense counsel elicited whether Aguilar reported the call to police, and the prosecutor later asked similar questions on cross-examination.
- The trial judge sua sponte admonished the prosecutor not to impeach Aguilar by insinuating she failed to act as a “good citizen” for not reporting to police; during closing the prosecutor briefly commented Aguilar “doesn’t contact the police,” prompting an objection.
- The court instructed the jury that counsel argument is not evidence and specifically that a witness’s credibility cannot be impeached merely because she did not go to the police; defendant did not object to the jury instructions when given.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct in closing by commenting Aguilar didn’t contact police | Prosecutor: brief comment was permissible to show inconsistency and undermine Aguilar’s credibility; curative instruction remedied any issue. | Defendant: comment violated court’s order and improperly disparaged Aguilar for not reporting, denying a fair trial. | No reversible misconduct: comment was brief, defense opened door, court’s curative instruction cured prejudice, and remark did not materially affect fairness. |
| Trial court’s failure to give Model Criminal Jury Instructions | Prosecution: jury was properly instructed on elements and law; no request for model instructions was made. | Defendant: court erred by not using Model Criminal Jury Instructions as required by amended MCR 2.512(D)(2). | Waived: defense expressly approved instructions at trial; no request made; even if unpreserved, no plain error affecting substantial rights shown. |
| Claim of instructional error | Plaintiff: instructions contained all elements and accurate law; no misstatement and no prejudice. | Defendant: jury instructions inadequate because model instructions were not used. | No relief: defendant conceded no misstatement of law and failed to identify prejudice or a specific omitted model instruction. |
Key Cases Cited
- People v Kraai, 92 Mich. App. 398 (Mich. Ct. App. 1979) (prosecutor may not discredit a witness by insinuating failure to act as a good citizen)
- People v Simons, 42 Mich. App. 400 (Mich. Ct. App. 1972) (impermissible to discredit defense-favoring witness by showing uncharged misconduct)
- People v Unger, 278 Mich. App. 210 (Mich. Ct. App. 2008) (curative jury instructions generally cure most prosecutorial misstatements)
- People v Kowalski, 489 Mich. 488 (Mich. 2011) (failure to object to jury instructions waives appellate review)
- People v Armstrong, 305 Mich. App. 230 (Mich. Ct. App. 2014) (jury must be instructed on all elements and material issues supported by the evidence)
- People v McKinney, 258 Mich. App. 157 (Mich. Ct. App. 2003) (instructions must include elements of charged offenses and supported defenses)