Opinion
Docket No. 77-4899.
Decided January 16, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor's Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
Leonard Townsend, for defendant.
Before: M.F. CAVANAGH, P.J., and D.E. HOLBROOK, JR. and N.J. KAUFMAN, JJ.
On November 14, 1977, defendant was jury-convicted of first-degree murder, MCL 750.316; MSA 28.548, in connection with the January 30, 1977, robbery of a restaurant in which an employee was shot and killed. Defendant was sentenced to life imprisonment and appeals as of right.
At trial the defense was alibi. Defendant did not take the stand, but his girlfriend, Carolyn Ferguson, testified that defendant was with her in Cleveland at the time the crime was committed. Then on the cross-examination of Ferguson, the following occurred:
"Q [By the prosecutor] Can you tell me where Mr. Andrews was working back in January?
"MR. ROTH: That is objected to. That is strictly hearsay. How is she going to know?
"THE COURT: Well, if she knows.
"A I don't know where he was working.
"Q I'm sorry?
"A I don't know nothing about him working back in January.
"Q Does that mean he wasn't working and you don't know —
"A He wasn't. He was with me all the while.
"Q Oh, he wasn't working then?
"A No.
"Q Were you employed back in January?
"A No.
"Q Was Mr. Andrews employed in Cleveland after he supposedly got there?
"A No.
"Q Can you tell me how you were supporting yourself then?
"MR. ROTH: I object to that. That has no bearing on this case.
"MR. WOUCZYNA: My response is that it does, your Honor. It provides a motive.
"THE COURT: I will overrule the objection.
"Q How were you supporting yourself back then, Ma'am?
"A Well, I was getting welfare assistance; but I wasn't in no hurt for no money, you know, I was making it.
"Q How were you making it?
"A Like my mother and them, if there was really anything I needed, you know, I could always go to my people for it. It wasn't no big thing.
"Q How was Mr. Andrews supporting himself?
"A When we were together, what was mine was his."
In closing argument, the prosecutor again referred to unemployment:
"I think it's interesting and somewhat helpful because it surely could provide a motive for Mr. Andrews' actions that neither Carolyn or Mr. Andrews was employed either before in January or after —
"MR. ROTH: I'm going to raise an objection to the insinuation by the prosecutor. The mere fact a man isn't working is not indicative to the fact he's going to commit a crime, and that is the insinuation being brought by the prosecutor. I think that's going too far afield. I think the Court should admonish him and tell him to restrict himself to the facts and not insinuations that didn't occur.
"THE COURT: Well, if the jury remembers that testimony, they may consider it. If no such testimony occurred, then you may disregard what Mr. Wouczyna said.
"MR. WOUCZYNA: Thank you, your Honor. May I continue?"
Michigan courts have on several occasions deplored prosecutorial references to defendant's unemployment or poverty. Apparently, however, prosecutors are not getting the message: Whether defendant — or his girlfriend for that matter — was poor or unemployed is legally irrelevant to the issue of guilt or innocence. This Court refuses to "assume that wealth exerts a greater attraction on the poor than on the rich". To do so would "effectively establish a two-tiered standard of justice and demolish pro tanto the presumption of innocence". Our system of justice and its constitutional guarantees are simply too fragile to permit this type of unfounded character assassination. As stated in People v Henderson, 80 Mich. App. 447, 454; 264 N.W.2d 22 (1978):
See, e.g., in addition to cases cited infra, People v Johnson, 393 Mich. 488, 496-499; 227 N.W.2d 523 (1975), People v Hammond, 394 Mich. 627; 232 N.W.2d 174 (1975), People v Osborne, 75 Mich. App. 600; 256 N.W.2d 45 (1977), lv den 402 Mich. 810 (1977), and People v Leverette, 84 Mich. App. 268; 269 N.W.2d 559 (1978). Cf. People v Jackson, 77 Mich. App. 392; 258 N.W.2d 89 (1977), lv den 402 Mich. 830 (1977).
People v Henderson, 80 Mich. App. 447, 453; 264 N.W.2d 22 (1978).
People v Ronald Green, 74 Mich. App. 601, 606; 254 N.W.2d 788 (1977), rem'd 401 Mich. 802 (1977), op on remand 79 Mich. App. 186; 261 N.W.2d 253 (1977).
"The motive for a theft offense seldom requires explanation. The motive is so pervasive that its proving will establish little more than the defendant's typicality; such proof increases but little the likelihood that this defendant is guilty of the charged offense. If poor and rich share a common and obvious motive, then why prove poverty?"
The questioning and argument in the case at bar cannot be excused as inadvertent, as unobjected to, as invited by defense counsel, or as "fleeting references" in a hotly contested trial. Here the prosecutor specifically stated that he was introducing the subject of unemployment to show motive, and the trial court overruled defense counsel's timely objections to the testimony and argument. We must reverse defendant's conviction and remand for a new trial. "Unless we enforce the rules we encourage their violation * * * ", People v Farrar, 36 Mich. App. 294, 299; 193 N.W.2d 363 (1971).
See People v Thomas Jones, 73 Mich. App. 107; 251 N.W.2d 264 (1976), People v Baldwin, 74 Mich. App. 700; 254 N.W.2d 619 (1977), People v Martin, 75 Mich. App. 6; 254 N.W.2d 628 (1977), People v Thomas, 86 Mich. App. 752; N.W.2d (1978).
In view of the controversy within this Court, on retrial the trial court would be better advised to instruct on malice as an element of murder. Defendant's remaining issue dealing with "hearsay identification" is clearly without merit.
Reversed and remanded.
D.E. HOLBROOK, JR., J., concurs in the result only.