Opinion
Docket No. 77-4226.
Decided November 7, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, J. Anthony Sykora, Prosecuting Attorney, and Philip E. Lomason, Assistant Prosecuting Attorney, for the people.
Brisbois Sturtz, for defendant on appeal.
Before: J.H. GILLIS, P.J., and D.E. HOLBROOK and R.M. MAHER, JJ.
Defendant was convicted of fraudulently receiving aid to dependent children support payments in violation of MCL 400.60; MSA 16.460. On September 19, 1977, she was sentenced to two years probation, the terms of which included a fine, court costs and restitution. A six-month county jail sentence was to be imposed if defendant failed to satisfy the terms of probation.
Defendant appeals, objecting to certain remarks of the plaintiff, which defendant contends constituted an improper appeal to the jurors' civic duty and to their individual financial interests as taxpayers. While the remarks to which the defendant now objects were improper, the prosecutor's argument clearly was not such as to give rise to a "miscarriage of justice". People v Robinson, 386 Mich. 551; 194 N.W.2d 709 (1972), People v Small, 67 Mich. App. 580, 586; 242 N.W.2d 442 (1976). See also MCL 769.26; MSA 28.1096. Neither was the plaintiff's argument comparable to the very prejudicial course taken by the prosecutor in People v Gloria Williams, 65 Mich. App. 753; 238 N.W.2d 186 (1975), or People v Biondo, 76 Mich. App. 155; 256 N.W.2d 60 (1977), lv den, 402 Mich. 835 (1978).
In reviewing the evidence, we find that the proofs of the people for conviction were overwhelming. Further, defendant made no objection to the plaintiff's remarks at trial; the remarks were not so heinous that their effect could not have been cured by a cautionary instruction. Therefore, we find the unobjected-to remarks to be harmless error. People v Small, at 585-586 and cases cited therein. People v Swan, 56 Mich. App. 22; 223 N.W.2d 346 (1974).
People v Miller, 49 Mich. App. 53; 211 N.W.2d 242 (1973), and People v Hatfield, 46 Mich. App. 149; 207 N.W.2d 485 (1973), have no application to the case at bar, since the late filing of a brief does not constitute an admission. Defendant's additional claims of error are without merit, under MRE 801(c) and People v Chamblis, 395 Mich. 408; 236 N.W.2d 473 (1975).
Affirmed.
I respectfully dissent, for I cannot agree that the prosecutor's remarks in this case were so inoffensive that they can be considered harmless.
In his opening statement, the prosecuting attorney characterized the offense with which defendant was charged as receiving "Department of Social Services' money, welfare money, tax money, your money and my money fraudulently". In his closing arguments, he returned to this theme, saying:
"Now, we all know where the A.D.C. money comes from, you're all paying for it, there are people who need it desparately. Those people are entitled to it but those people that take advantage of the system must be stopped and I am asking you to stop them."
This is the sort of civic duty argument which has long been condemned by this Court, People v Farrar, 36 Mich. App. 294; 193 N.W.2d 363 (1971), People v Meir, 67 Mich. App. 534; 241 N.W.2d 280 (1976).
Not content with this improper argument, the prosecutor thereafter sought to bolster his case by putting the prestige of his office behind it, saying:
"I am an agent for the State, you are the State, you are the people of the State. I am, therefore, your agent, Mrs. Lemanski's agent as well. I have a duty to present the facts to you clearly, not deceptively. Not to create any smoke screens, not to deviate, but to present them to you as clearly as possible."
Such remarks are also improper, People v Humphreys, 24 Mich. App. 411; 180 N.W.2d 328 (1970), People v Erb, 48 Mich. App. 622; 211 N.W.2d 51 (1973).
Subsequently, he urged the jury in evaluating the actions of Department of Social Services employees to remember that "they work for us, too". Then, returning to his original theme, the prosecutor said:
"[W]e don't want people to go hungry, to starve, no shelter, to go unclothed. For her to take advantage of this deprives other people and she did take advantage of it."
This is not a case of an isolated remark which could have been cured by an instruction had defendant timely objected, cf. People v Blassingame, 59 Mich. App. 327; 229 N.W.2d 438 (1975). In this case "an instruction, given the repeated efforts of the prosecution to appeal to the prejudices of the jury, would not have cured any prejudice". People v Meir, supra, at 538.
I agree with Judge (now Justice) LEVIN'S comment in People v Farrar, supra, at 299:
"Unless we enforce the rules we encourage their violation and add to the burden of the appellate courts. Our frequent strictures against this kind of argument mean little unless we are prepared to reverse and require a new trial."
I would reverse.