Docket No. 89842.
Decided August 18, 1987.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Olga Agnello-Raspa, Assistant Prosecuting Attorney, for the people.
Norman R. Robiner, for defendant on appeal.
During an argument with another patron of a Wayne County bar on or about July 2, 1986, defendant fired a shot which struck and killed a bystander. A jury convicted defendant of voluntary manslaughter, MCL 750.321; MSA 28.553, assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to five to fifteen years for the manslaughter conviction, five to ten years for the assault conviction, and two years for the felony-firearm conviction. Defendant appeals as of right.
On appeal, defendant asserts that he was denied a fair trial due to acts of prosecutorial misconduct. As to several of these instances, defense counsel failed to object at trial. Therefore the issues are not preserved for review unless defendant can show that (1) the prejudicial effect of the alleged misconduct was so great that even a cautionary jury instruction would not have overcome it and (2) failure to consider the issue would result in a miscarriage of justice. People v Jancar, 140 Mich. App. 222, 233; 363 N.W.2d 455 (1985). Defendant has shown neither. However, since part of defendant's argument of ineffective assistance of counsel is premised on the issue of prosecutorial misconduct, we will address it.
Several of defendant's subarguments as to prosecutorial misconduct challenge the prosecutor's comments during rebuttal and cross-examination of defendant. We find all of these arguments unconvincing. First, where defendant put into evidence testimony of his peaceful nature and stated that he carried a knife as a tool and not as a weapon, on cross-examination the prosecutor was allowed to rebut this testimony. People v Bouchee, 400 Mich. 253, 266-267; 253 N.W.2d 626 (1977). People v Smith, 80 Mich. App. 106, 117; 263 N.W.2d 306 (1977), lv den 406 Mich. 920 (1979).
Second, although a prosecutor may not argue in such a manner as to shift the burden onto the defendant to explain something, People v Nabers, 103 Mich. App. 354, 369; 303 N.W.2d 205 (1981), rev'd on other grounds 411 Mich. 1046 (1981), the prosecutor may comment on the evidence and draw reasonable inferences therefrom. Jancar, supra at 233. Hence the prosecutor was allowed to argue from the facts and evidence that defendant was lying about his alleged memory loss. People v Jansson, 116 Mich. App. 674, 693; 323 N.W.2d 508 (1982).
Third, the prosecutor's comments during cross-examination to the effect that defendant's injuries resulting from the altercation were not serious enough to cause his death, whereas the deceased was not so fortunate, may have been undesirable but did not constitute error requiring reversal because they did not infect the trial with unfairness such as to make the resulting conviction a denial of due process. Darden v Wainwright, 477 US ___; 106 S Ct 2464, 2472; 91 L Ed 2d 144, 157 (1986), reh den 107 S Ct 24 (1986).
Equally without merit is defendant's attack on the prosecutor's remarks during closing argument and rebuttal, that there should be "some meaning to his death" and "a sense of justice after he had died," as an improper appeal to the jury's sympathy. While it is true that arguments which are little more than an appeal to the jury's sympathy for the victim are improper, People v Wise, 134 Mich. App. 82, 104; 351 N.W.2d 255 (1984), lv den 422 Mich. 852 (1985), defendant mischaracterizes the remarks by taking them out of context. A prosecutor's closing argument should be considered in its entirety. People v Cowell, 44 Mich. App. 623, 627; 205 N.W.2d 600 (1973). The entire closing argument in this case shows that the prosecutor asked the jury to examine all of the evidence and, if the evidence indicated defendant's guilt beyond a reasonable doubt, a guilty verdict would provide a sense of justice for the tragic death of an innocent bystander.
Nor are we persuaded by defendant's assertion that the prosecutor allegedly argued facts not of record. From the facts adduced at trial it was reasonable for the prosecutor to argue that defendant had two guns and was not acting in self-defense. But even assuming the prosecutor's comments to be error, the error was harmless beyond a reasonable doubt. This is because the alleged error was not so offensive to the maintenance of a sound judicial process that it could never be regarded as harmless and because the evidence against defendant was so overwhelming that no juror would have voted for acquittal. People v Christensen, 64 Mich. App. 23, 32-33; 235 N.W.2d 50 (1975). Defendant was entitled to a fair trial, not a perfect one. Delaware v Van Arsdall, 475 US ___; 106 S Ct 1431, 1436; 89 L Ed 2d 674, 684 (1986).
Defendant's next contention is that he was denied the effective assistance of counsel because his counsel failed to present a defense of diminished capacity.
Defendant should have raised the issue of ineffective assistance of counsel by moving in the trial court for a new trial or an evidentiary hearing. People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). Failure to so move usually forecloses appellate review. People v Lawson, 124 Mich. App. 371, 373; 335 N.W.2d 43 (1983). However, review may be granted where the appellate record contains sufficient detail to support defendant's position; if so, review is limited to the record. People v Kenneth Johnson, 144 Mich. App. 125, 129-130; 373 N.W.2d 263 (1985), lv den 424 Mich. 854 (1985).
The record does not support defendant's contentions. More than hindsight is needed to attack a criminal defendant's assistance of counsel at trial. The decision to argue self-defense instead of diminished capacity falls in the category of trial strategy. It is inappropriate for this Court to substitute its own judgment for that of defense counsel in such matters. People v Lotter, 103 Mich. App. 386, 390; 302 N.W.2d 879 (1981), lv den 412 Mich. 852 (1981).
Trial counsel met the requirements of People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), reh den 399 Mich. 1041 (1977). He conscientiously attempted to protect the accused's interests, performing at least as well as a lawyer with ordinary training and skill in the criminal law. Having so performed, he did not make such a serious mistake that, otherwise, the accused might reasonably have been acquitted. Id. at 264. Having met the Garcia standard, counsel also met the less stringent test of Strickland v Washington, 466 U.S. 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), reh den 467 U.S. 1267; 104 S Ct 3562; 82 L Ed 2d 864 (1984). Therefore defendant was not denied the effective assistance of counsel.