Appeal from Ingham, James T. Kallman, J.
N. J. Kaufman, P. J., and T. M. Burns and M. F. Cavanagh, JJ.
1. -- Prosecutors -- Improper Remarks -- Cures -- Timely Objections -- Cautionary Instructions.
No miscarriage of Justice occurs where the prejudicial effect of an improper remark by a prosecutor could have been cured by a timely objection and a cautionary instruction.
2. Appeal and Error -- Prosecutors -- Improper Remarks -- Reversible Errors -- Responses -- Presmption of Innocence.
Improper argument by a prosecutor primarily in response to remarks of defense counsel will not result in reversible error, but where the prosecutor is not so justified, remarks which encourage the jury to convict a defendant in order to enhance or further law enforcement efforts designed at curbing narcotics traffic and which convert the presumption of innocence into a presumption of guilt by appealing to the jurors to perform a civic duty to support the police are offensive to the maintenance of sound judicial process and require reversal.
3. -- Defense of Entrapment -- Objective Tests -- PreDisposition of Defendants.
The Supreme Court has adopted an objective theory of entrapment under which the preDisposition of a defendant to commit the crime cannot be considered by the trial court; the trial court must focus upon the specific actions of the police at the time in question, and whether those actions would have induced a "hypothetical defendant" to commit a crime he otherwise would not have committed.
The opinion of the court was delivered by: Per Curiam
Robert L. Meir was convicted of delivery of heroin. Defendant appeals.
After jury trial, defendant was found guilty of the offense of delivery of heroin, MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a). He was sentenced to a term of from 5 to 20 years in prison and appeals of right. Defendant claims that the prosecuting attorney's remarks to the jury were prejudicial, inflammatory, and irrelevant, deprived him of a fair trial and require that his conviction be reversed. We agree.
The principal prosecution witness was a former drug addict and paid police informant. The witness testified that he was receiving money from the police for a series of investigations regarding narcotics traffic in the state, and that on the day in question he and an undercover police officer purchased heroin from the defendant, who himself was a user. In his closing argument, the prosecution defended the actions and credibility of this witness, informing the jury that the use of the so-called confidential informant was the only way to stop narcotics traffic in the state. Defense counsel, in his closing argument, asked the jury not to convict the defendant, since he and the informer were essentially the same type of individual, the only difference being that the informer had managed to shake his habit and go to work for the police. He also argued that the Controlled Substances Act was to combat the big pusher of narcotics, and not simple users like the defendant. Defense counsel's argument was basically an appeal to the sympathy of the jury.
In rebuttal argument, the prosecutor ridiculed defense counsel's theory of equal Justice, asking the jury how the defendant had ever benefited the community except by his delivery of heroin. The prosecutor asked the jury who the ultimate victim of this offense would be, stating that some day the defendant might have to sell heroin to the prosecutor's children or even the children of the jurors in order to support his habit. Upon timely objection by defense counsel, the trial Judge told the prosecutor to stay with the evidence, but did not instruct the jury to disregard this remark. The prosecutor then warned the jury that if they returned a verdict of not guilty, they were condoning drug usage and forbidding the police from using confidential informants. The result would be that the defendant would tell all his friends that they could continue to sell narcotics. Defense counsel again objected, and the Judge chastised the prosecutor, again without instructing the jury to disregard this inflammatory remark. In his charge to the jury, the Judge did inform them that the comments and remarks of the attorneys could not be considered evidence.
Where the prejudicial effect of an improper remark by the prosecutor could be cured by a cautionary instruction, this Court will rule that no miscarriage of Justice has occurred. People v Blassingame, 59 Mich App 327, 336; 229 NW2d 438 (1975). In that case, the prosecutor had asked the jury to weigh the security of society in their deliberations, noting that if defendant had committed the crime in question, the jury should consider whether he might not continue to engage in this type of violent crime, rape. This Court stated that the remark was improper, but noted that the jury was emphatically instructed that the comments and argument of counsel are not evidence. In other contexts, we have noted that where the prosecutor has engaged in improper argument primarily in response to remarks of defense counsel, that no reversible error will result. People v Pomranky, 62 Mich App 304, 310-311; 233 NW2d 263 (1975). In the Pomranky case, the prosecutor's remark was deemed improper, but had been provoked by equally improper remarks of defense counsel. ...