Lead Opinion
After defendant’s first trial ended in a mistrial, defendant was retried and convicted by a jury of two counts of first-degree murder, MCL 750.316; MSA 28.548, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to two concurrent terms of life imprisonment without parole, to be served consecutively to a two-year term for felony-firearm. He appeals as of right. We affirm.
i
Defendant, who is African-American, raises three issues on appeal regarding the jury selection: (1) he was denied his constitutional right to an impartial jury drawn from a fair cross section of the community where only one African-American juror served on his jury and where African-Americans were underrepresented in his particular jury array, (2) the prosecutor used peremptory challenges in a discriminatory manner to strike African-American jurors in violation of Batson v Kentucky,
A
We reject defendant’s fair cross-section claim. While a criminal defendant is entitled to an impartial jury drawn from a fair cross section of the community, US Const, Am VI, he is not entitled to a petit
“(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” [Id. at 473, quoting Duren v Missouri,439 US 357 , 364;99 S Ct 664 ;58 L Ed 2d 579 (1979).]
Although defendant asserts that African-Americans were underrepresented in his particular array, he presented no evidence concerning the representation of African-Americans on jury venires in general. Merely showing one case of alleged underrepresentation does not rise to a “general” underrepresentation that is required for establishing a prima facie case. Timmel v Phillips, 799 F2d 1083, 1086 (CA 5, 1986). Defendant also failed to show that any alleged under-representation was due to systematic exclusion, i.e., an exclusion resulting from some circumstance inherent in the particular jury selection process used. Duren, supra at 366; Hubbard (After Remand), supra at 481. Following a defense objection during jury selection, the trial court summoned the county’s deputy court administrator, who stated that jurors were selected from a source list of residents with driver’s licenses or state identification cards. Defendant did not elicit any other details regarding the selection process, nor did he present any evidence show
B
Defendant also argues that the trial court erred in finding that the prosecutor’s reasons for peremptorily dismissing three African-American jurors
To overcome a prima facie showing of discriminatory purpose, the prosecution must come forth with a racially neutral explanation for challenging African-American jurors. Batson, supra at 97. Mere statements of good faith or denial of a discriminatory motive are insufficient; rather, the prosecutor must articulate a neutral explanation related to the particular case being tried. Id. at 98. The trial court must then determine if the defendant has established purposeful discrimination. Id. This Court reviews a trial court’s Batson ruling for an abuse of discretion. Harville v State Plumbing & Heating, Inc,
The prosecutor dismissed one of the African-American jurors because she was a renter, explaining that he preferred not to have any renters on the jury, regardless of race. Although defendant asserts that this is a “patently ridiculous” reason for dismissal, it
c
A trial court may grant additional peremptory challenges on a showing of good cause. MCR 6.412(E)(2). A decision denying a request for additional peremptory challenges is reviewed for an abuse of discretion. People v Lee,
In this case, the trial court granted an initial request by defendant for additional peremptory challenges, awarding him six additional challenges, but denied a second request for additional peremptory challenges. Defendant’s second request was premised, for the most part, on his allegations of systematic exclusion of African-Americans from the jury array and discriminatory use of peremptory challenges by the prosecutor, claims that the trial court rejected below and which we have now rejected on appeal. We find no abuse of discretion in the denial of defendant’s second request for additional peremptory challenges.
Defendant next challenges the admissibility of certain statements that he made to the police, contending that they were illegally obtained and, therefore, should have been suppressed.
A
Defendant first argues that he was improperly subjected to a custodial interrogation by Officer Charles Wright at the crime scene, without having been advised of his Miranda,
B
Defendant also challenges the admissibility of his “formal” police confession, claiming first that it was obtained without a knowing and intelligent waiver of his Miranda rights. At the Walker hearing, defendant attempted to present the testimony of a clinical psychologist concerning his capacity to knowingly and
Statements of an accused made during custodial interrogation are inadmissible unless the accused voluntarily, knowingly, and intelligently waives his Fifth Amendment rights. Miranda v Arizona,
During the Walker hearing in the present case, the trial court refused to permit defendant’s expert, a psychologist, to testify regarding defendant’s mental
Now, Mr. Barney, on behalf of his client, has argued that the defendant’s diminished mental capacity at the time of his custodial interrogation rendered him unable to competently waive his constitutional rights and he seeks to call Sandra Paige, Ph.D., who is a consulting forensic examiner, about the testimony as to an evaluation she did of Mr. Howard, and which I take it she had offered testimony that his mental capacity at the time of the arrest prevented him from understanding and/or waiving what we commonly refer to as Miranda rights.
Now, for the purposes of this hearing we have obviously heard testimony from Sergeant Elford, we have heard testimony from defendant’s mother, and I have had an opportunity to read the testimony of the — one of the first officers on the scene, Charles Wright, and if you look at the criteria that I read from the Colorado case, it’s this Court’s opinion that I have pretty much focused in on the police conduct in the way the interview was handled, and I won’t cite all the facts, but it talks about the age, lack of education, intelligence level, extent of previous experience with police, repeated and prolonged nature of the questioning, length of the detention of the accused and so forth.
I have looked at the totality of the circumstances from the testimony offered in reading the testimony of the witnesses and the statement of Mr. Howard, and I am satisfied that the prosecution has met their burden of proof, and it will be the Ruling of the Court that I don’t feel that I need testimony from an expert witness to assist the Court. So the decision will be not to allow the witness to offer their testimony as a part of this hearing certainly. If Mr. Barney wants to offer that witness in the trial he should be given every opportunity. And, again, let’s keep in mind that the Court’s*540 ruling only has to do with the voluntariness of his statement.
And, again, Mr. Howard certainly has a right to remain silent, but if he wants to offer testimony in the trial he certainly has every right to do so and it will ultimately be up to this jury to consider the weight and credibility of the statement, and they certainly may feel differently about the way the statement was taken, but in terms of the Court’s responsibility on voluntariness I am satisfied the prosecution has met their burden of proof by a preponderance of the evidence and I will deny the motion at this time.
We acknowledge that the trial court misstated the relevant law. As noted by this Court in Garwood, supra at 557, the federal courts have held that police coercion is a necessary prerequisite to a determination that a waiver was involuntary but police coercion does not bear on the separate question whether the waiver was knowing and intelligent. However, the United States Supreme Court has observed that evidence should not be excluded unless suppression would deter future constitutional violations. Colorado v Connelly,
Under certain limited circumstances, custodial statements may be suppressed absent any coercive conduct by the police. Garwood, supra at 555. We reject, however, defendant’s argument that if there
However, the facts of Garwood are distinguishable from the present case, in which the trial court stated its understanding of the test for a valid waiver of Miranda rights — the totality of the circumstances— and found that there was no evidence presented at the Walker hearing that defendant had any history of mental illness. The trial court heard testimony at the Walker hearing from the police interrogator, defendant, and defendant’s mother, and the court noted that defendant’s mother had specifically indicated that defendant had no psychiatric history. Moreover, there was no evidence presented at the hearing that defendant’s intelligence was below at least average. For example, under direct examination, the interrogating officer noted that when defendant was asked if he wished to waive his right to have an attorney present during interrogation, defendant voluntarily responded, “Yes, I have nothing to hide.” Such responses to the
We review evidentiary rulings for an abuse of discretion. Haberkorn v Chrysler Corp,
Moreover, even if defendant’s confession had not been voluntarily or knowingly and intelligently made, and we do not believe this to be true, its admission at trial would be subject to a harmless error analysis, much like the erroneous admission of any other evidence. See Arizona v Fulminante,
Under these facts, we find that even if the trial court had abused its discretion in not admitting the psychologist’s testimony at the Walker hearing, and we reiterate that we do not believe this is so, we would find that the admission of defendant’s confession at trial was harmless error. We decline to remand for a determination that defendant’s custodial statement was knowingly and intelligently made under such circumstances.
c
Defendant contends that the trial court also erred in determining that his “formal” confession was voluntarily given. As noted above, the voluntariness prong cannot be resolved in defendant’s favor absent evidence of police coercion or misconduct. Garwood, supra at 555. When reviewing a trial court’s determination of voluntariness, this Court must examine the entire record and make an independent determination. People v Brannon,
m
Defendant argues that reversal is required because of numerous instances of prosecutorial misconduct. The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v McElhaney,
A
Defendant first argues that a new trial is required because the . prosecutor “repeatedly denigrated defense counsel in front of [the] jury.” See People v Wise,
Viewed in context, the prosecutor did not argue that defense counsel lied or was trying to intentionally mislead the jury concerning the facts. Rather, the prosecutor was merely advancing his position that the defense theory was dependent upon testimony that
B
Relying on People v Tyson,
The Tyson decision merely “reaffirmed the longstanding rule that a highly prejudicial attack of a defendant’s expert witness without support on the record would require reversal.” People v Miller,
We also reject defendant’s claim that the prosecutor improperly attacked his defense expert during cross-examination. The record reveals that the prosecutor was merely testing the expert’s familiarity with a textbook description of her diagnosis and with her own report. In neither instance did the prosecutor’s questions rise to the level of a personal attack that prejudiced defendant’s right to a fair trial.
c
Defendant further argues that the prosecutor made several improper appeals for sympathy and improperly urged the jurors to convict as part of their civic duty, thereby denying him a fair trial. See People v Bahoda,
First, the prosecutor’s statement that the victims “also have rights” was brief, it occurred during jury voir dire and was not repeated thereafter, and the trial court expressly found that the statement did not cause any prejudicial effect. Next, the question during closing argument, “Will you be able to live with yourself?” was not made in the context of an appeal for sympathy, nor in reference to any civic duty to convict defendant. Rather, it was made in the context of asking the jury to decide the case fairly on the basis
Defendant next argues that the prosecutor improperly characterized him as a liar and improperly vouched for the credibility of a prosecution witness during closing argument. A prosecutor may not vouch for the credibility of a witness, nor suggest that the government has some special knowledge that the witness is testifying truthfully. Bahoda, supra at 276. 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 Launsburry,
Here, the challenged remarks regarding defendant were made in reference to the testimony and evidence presented at trial. The prosecutor was advancing his position that various claims made by defendant were not credible in light of contradictory evidence adduced at trial. Likewise, the prosecutor did not personally vouch for the credibility of the prosecution witness, but rather argued that the facts and evidence demonstrated that the witness was credible. In this context, the remarks were not improper.
E
Defendant next argues that the prosecutor improperly argued facts not in evidence when he stated during closing argument that it was not necessary to file a lawsuit before commencing a real estate forfeiture proceeding. Stanaway, supra at 686; People v Lee, supra,
F
Finally, defendant argues that reversal is required because, while some of the prosecutor’s remarks when viewed in isolation might not warrant reversal, the cumulative effect of the prosecutor’s improper remarks denied him a fair trial. People v McCoy,
IV
Defendant next argues that he was denied a fair trial by the admission of six allegedly gory photographs. Four of the photographs depicted David Lamb’s body at the crime scene and two were autopsy photos of Terry Lamb. The decision to admit or exclude photographs is within the sole discretion of the trial court. People v Mills,
Among the disputed issues in this case were whether David Lamb confronted and approached defendant as defendant stepped out from his mother’s bedroom with a gun and whether defendant then shot David Lamb in self-defense. The trial court determined that the location in the house where David Lamb was shot was a “crucial point” in the trial. Three of the photographs, all shot from a distance, depict the location of David Lamb’s body in relation to the layout of the house. A fourth photograph depicts a set of car keys beside David Lamb’s right hand and was introduced in support of the prosecution’s theory that David Lamb was preparing to leave when he was shot. We find no abuse of discretion in the trial court’s decision to admit these photographs.
The trial court also determined that intent, or defendant’s state of mind, was a “real key” issue in this case. One of the autopsy photographs of Terry Lamb depicted alleged powder bums on her neck. The photograph was instructive in depicting the nature and extent of her injury and was probative of the issue of intent. See Mills, supra at 71 (noting that evidence of injury is admissible to show intent). Moreover, the trial court observed that the photograph depicted only the neck area, not any facial features, thereby diminishing any extraneous prejudicial effects. The other photograph in question depicted a missing fingernail on Terry Lamb’s right hand. The police investigators found a broken fingernail in the vicinity of Terry Lamb’s body, and the medical examiner detected fingernail imprints in the web between her left thumb and forefinger. This evidence was pro
v
Defendant argues that he was denied a fair trial by the exclusion of evidence that he claims was crucial to his defense of diminished capacity. We review the trial court’s decision to admit or exclude evidence for an abuse of discretion. People v McAlister,
First, defendant claims that the trial court erred in not permitting his defense expert, Dr. Sandra Paige, to testify that he was housed in the psychiatric unit at the county jail at the time of his psychological interview. We disagree. The trial court merely precluded testimony concerning defendant’s physical location, not testimony concerning his mental state insofar as it related to the issue of diminished capacity at the time of the offense. Defendant did not present any evidence indicating that his physical location at the time of the interview was relevant to Dr. Paige’s evaluation and opinion regarding the issue of diminished capacity at the time of the offense. Therefore, we find no abuse of discretion in the trial court’s decision to exclude this testimony.
Defendant also argues that the trial court erred in refusing to allow Dr. Paige to testify about the reliability or accuracy of his police statement. We find this argument to be without merit. After entertaining testi
VI
Defendant argues that the trial court abused its discretion in admitting a page from Terry Lamb’s appointment book that listed the address of defendant’s mother’s house on the page for the date, and beside the approximate time, that she was killed. The appointment book was found by Terry Lamb’s son approximately two days after her death.
As an initial matter, defendant argues that it was error to admit the appointment book because the book had been “ruled inadmissible” at defendant’s first trial. Even if true, this fact did not preclude admission at defendant’s second trial. Where a defendant’s first trial ends in a mistrial, “whatever rulings were made by the court at the first trial may not in any way affect the rulings in the second.” People v Bowman,
In this case, Terry Lamb’s son testified that he was familiar with his mother’s appointment book and had seen her use it “hundreds of times.” He claimed that “every appointment that she had she wrote down in that book.” He found the appointment book in a book-bag that belonged to his mother, which in turn was found inside his mother’s locked car. The car was parked at his mother’s office. The name “Terry Lamb” was written in the upper-right-hand comer of the book. Terry Lamb’s son also testified that he was familiar with his mother’s handwriting. While he stated that her handwriting sometimes varied, explaining that she sometimes wrote more quickly while on the phone, he agreed that the various entries in the appointment book all appeared to be in his mother’s handwriting. In view of this testimony, the trial court did not abuse its discretion in deeming the appointment book authenticated.
Finally, the fact that the appointment book was found, not at the crime scene, but in Terry Lamb’s car, which was parked at her office, did not preclude
vn
Defendant argues that the trial court erred in denying his request for a complete transcript of his first trial. Following his convictions on retrial, appellate counsel filed a motion requesting that transcripts of defendant’s first trial be provided on appeal. After determining that appellate counsel had received some transcripts of the first trial from trial counsel, and had received copies of other transcripts from the court file, the trial court denied appellate counsel’s request for additional transcripts. In an argument that appears to present an issue of first impression in this state, defendant contends that his constitutional rights to due process and equal protection were violated by the refusal to provide a complete transcript of his first trial for use on appeal of the second trial. We disagree.
Although defendant relies principally on Britt v North Carolina,
In this case, defendant argues that a complete transcript of his first trial is necessary because some of the trial court’s rulings at the first trial were reversed or modified at the second trial. It is irrelevant, however, that some of the trial court’s rulings may have differed from those of the first trial, because “whatever rulings were made by the court at the first trial may not in any way affect the rulings in the second.” Bowman, supra at 509-510. Regardless of what rulings were made at the first trial, defendant was convicted solely on the basis of the evidence presented and legal rulings rendered at his second trial. Defendant has been furnished with a complete transcript of this second trial, thereby enabling full review of all rulings made at that trial. There has been no claim that the transcript of the second trial is insufficient to permit adequate review of any alleged erroneous ruling at the second trial.
Defendant further argues that a complete transcript of his first trial is necessary to determine whether witnesses who testified at both trials were adequately
For all of the reasons stated herein, we affirm defendant’s convictions.
Notes
The prosecutor peremptorily dismissed four African-American jurors at trial. Defendant has challenged the dismissal of only three of those jurors on appeal.
Defendant successfully challenged one juror for cause on the basis that the juror was a landlord.
We note that the prosecutor did not use all of his peremptory challenges and ultimately accepted a jury that included an African-American juror, a circumstance that militates against a finding of purposeful discrimination. See People v Williams,
Miranda v Arizona,
People v Walker (On Rehearing),
Concurrence Opinion
(concurring in part and dissenting in part). I respectfully dissent from the majority’s conclusion in issue n-B that the trial court did not err in refusing to receive the testimony of a clinical psychologist concerning defendant’s capacity to waive knowingly and intelligently his Miranda
As noted by the majority, whether a waiver of Miranda rights is voluntary and whether an otherwise voluntary waiver is knowing and intelligent are
I concur with the remainder of the majority opinion.
Miranda v Arizona,