STATE OF MICHIGAN

IN THE COURT OF APPEALS

 

PEOPLE OF THE STATE OF MICHIGAN
Court of Appeals No. 195943

Plaintiff-Appellee,
Lower Court No. 95-143229-FC

-vs-

WILLIE J. BURKETT

 

Defendant-Appellant.

________________________________/

 

OAKLAND COUNTY PROSECUTOR

Attorney for Plaintiff-Appellee

________________________________

 

DAVID A. MORAN (P 45353)

Attorney for Defendant-Appellant

________________________________

 

 

 

 

DEFENDANT-APPELLANT'S BRIEF ON APPEAL
(ORAL ARGUMENT REQUESTED)

 

PROOF OF SERVICE

 

 

 

 STATE APPELLATE DEFENDER OFFICE

 

BY:

DAVID A. MORAN (P 45353)
Assistant Defender
Suite 3300 Penobscot
645 Griswold
Detroit, Michigan 48226
(313) 256-9833

 

 

TABLE OF CONTENTS

INDEX OF AUTHORITIES

STATEMENT OF APPELLATE JURISDICTION

STATEMENT OF QUESTIONS PRESENTED

STATEMENT OF FACTS

ARGUMENTS:

SUMMARY AND RELIEF

APPENDIX A (Prosecution Exhibit Two)

APPENDIX B (Prosecution Exhibits Four and Seven)

 

dam*da13524.bra*11-14-96
Burkett, Willie

 

INDEX OF AUTHORITIES

CASESNo. of References

Berger v United States, 295 US 78; 55 SCt 629; 79 LEd 1314 (1935)

1, 2

People v Armendarez, 188 Mich App 61; 468 NW2d 893 (1991)

1, 2

People v Browning, 106 Mich App 516; 308 NW2d 264 (1981)

1

People v Buckey, 133 Mich App 158; 348 NW2d 53 (1984), rev'd on other grounds, 424 Mich 1; 378 NW2d 432 (1985)

1

People v Buckey, 424 Mich 1; 378 NW2d 432 (1985)

1, 2, 3

People v Dalessandro, 165 Mich App 569; 419 NW2d 609 (1988)

1, 2, 3

People v Duncan, 402 Mich 1; 260 NW2d 58 (1977)

1

People v Falkner, 389 Mich 682; 209 NW2d 193 (1973)

1, 2, 3

People v Fenner, 136 Mich App 45; 356 NW2d 1 (1984)

1, 2

People v Foster, 175 Mich App 311; 437 NW2d 395 (1989)

1

People v Fuqua, 146 Mich App 250; 379 NW2d 442 (1985)

1, 2

People v Grant, 445 Mich 535; 520 NW2d 123 (1994)

1, 2, 3

People v Haines, 105 Mich App 213; 306 NW2d 455 (1981)

1, 2

People v Hunter, 141 Mich App 225; 367 NW2d 70 (1985)

1

People v Legrone, 205 Mich App 77; 517 NW2d 270 (1994)

1

People v Loyer, 169 Mich App 105; 425 NW2d 714 (1988)

1

People v Marji, 180 Mich App 525; 447 NW2d 835 (1989)

1

People v Mills, 450 Mich 61; 537 NW2d 909 (1995)

1, 2, 3, 4

People v Murphy, 100 Mich App 413; 299 NW2d 51 (1980), aff'd, 416 Mich 453; 331 NW2d 152 (1982)

1

People v Wallace, 160 Mich App 1; 408 NW2d 87 (1987)

1

People v White, 142 Mich App 581; 370 NW2d 405 (1985)

1

People v Wise, 134 Mich App 82; 351 NW2d 255 (1984)

1

Strickland v Washington, 466 US 668; 104 SCt 2052; 80 LEd2d 674 (1984)

1, 2
CONSTITUTIONS, COURT RULES, STATUTESNo. of References

US Const, Amend VI

1

US Const, Amend XIV

passim

MRE 401

1, 2, 3

MRE 403

1, 2, 3
STATEMENT OF APPELLATE JURISDICTION

The defendant-appellant, Willie J. Burkett, appeals as of right, MCR 7.203(A); Const 1963, Art 1, §20, from his May 13, 1996, conviction of first-degree felony murder, entered after a jury trial before the Honorable Deborah G. Tyner of the Oakland County Circuit Court. Mr. Burkett was sentenced on May 24, 1996.

Mr. Burkett filed a request for appointment of counsel on May 24, 1996. Judge Tyner filed the Claim of Appeal on June 3, 1996.

By stipulation of counsel, Mr. Burkett's Brief on Appeal is due by November 21, 1996. Accordingly, this Brief on Appeal is timely filed.

 

STATEMENT OF QUESTIONS PRESENTED
STATEMENT OF FACTS

The defendant-appellant, Willie J. Burkett, was convicted of first-degree felony murder after a jury trial before the Honorable Deborah Tyner of the Oakland County Circuit Court. On May 24, 1996, Judge Tyner sentenced Mr. Burkett to life imprisonment without parole. Mr. Burkett appeals as of right.

 

Overview

The charge against Mr. Burkett arose from the March 16, 1983, death of Eva Seay, who was stabbed to death in her Pontiac apartment. After the Pontiac Police Department reopened the case in 1992, Mr. Burkett, who had been incarcerated on other charges since 1983, wrote some 35 letters about the incident to officials within the Pontiac Police Department and the Oakland County Prosecutor's Office. The letters led to a series of interviews with police officers and Mr. Burkett eventually admitted that he had killed Ms. Seay and had taken items from her apartment.

Accordingly, the prosecution charged Mr. Burkett with felony murder. At trial, Mr. Burkett admitted that he had killed Ms. Seay but testified that he was intoxicated and had reacted impulsively after she hit him.

 

The Admission of a Photograph of the Victim's Blood Covered Face

At the beginning of the trial, the defense objected to the prosecution's planned introduction of gruesome crime scene and autopsy photographs depicting Ms. Seay's corpse (T1 8-9)[1]. Among the photographs to which Mr. Burkett objected was Exhibit Two, a close-up of Ms. Seay's blood-covered face. That blood apparently came from Ms. Seay's chest wounds as she had no wounds to her face (T2 116). Exhibit Two is attached to this Brief as Appendix A.

The trial court initially held Exhibit Two and four other photographs in abeyance (T1 11-12). However, the trial court eventually admitted Exhibit Two and two other photographs over a renewed defense objection (T2 94-97, 103).

Since Exhibit Two depicts Ms. Seay's blood-covered face but her stab wounds were all to her chest, the prosecution argued that Exhibit Two was relevant to show an absence of wounds to Ms. Seay's face (T2 95). However, as defense counsel pointed out, one cannot tell from Exhibit Two whether or not Ms. Seay has any wounds to her face because her face is covered with blood (T2 96). The prosecution did introduce two other photographs showing Ms. Seay's face after the blood was cleaned off (Exhibits Four and Seven, attached as Appendix B to this Brief).

 

The Prosecution's Opening Statement

The prosecution delivered an emotional opening statement, repeatedly evoking sympathy for Ms. Seay and her relatives:

At the conclusion of this opening statement, defense counsel moved for a directed verdict, pointing out that the prosecutor had never indicated how the evidence would establish the underlying felony necessary for felony murder or how the evidence would establish the requisite mental state (T1 106-109).

The trial court sharply criticized the prosecutor's opening as improper and argumentative but denied the defense motion while acknowledging that the issue was a "very close call." (T1 109-110). The court concluded that the prosecutor's references to the manner of the killings could amount to "circumstantial evidence" of the requisite mental state (T1 110).

 

The Prosecution's Case

The prosecution called eleven witnesses at trial. Pontiac police officer Larry Watkins testified that he went to Eva Seay's apartment shortly before midnight on March 16, 1983, and found her body on the floor of her bedroom (T1 113-115). Officer Watkins noticed that a woman's purse was open on the bed with articles from the purse scattered about the bed (T1 117). Officer Watkins saw no signs of forced entry or of a struggle (T1 115, 121-122).

Terry Seay, Ms. Seay's adult son, testified that he returned home to the apartment he shared with his mother around 11:00 p.m. on March 16, 1983, and found Ms. Seay's body in the bedroom (T1 124-132). Mr. Seay observed the open purse and also noticed that a rifle was missing from the living room (T1 126-127, 131-132, 143, 146-147).

Thomas Crossno, a retired Pontiac police officer, testified that he released evidence, including the purse, fingernail scrapings, and clothing, from the police evidence room in 1988 (T1 155-157).

Rhonda Tillman, Ms. Seay's downstairs neighbor in 1983, testified that she heard a loud car arrive that night, saw a man get out of the car and go up the stairs toward's Ms. Seay's apartment, and heard him knock on Ms. Seay's door (T2 4-13). Approximately 45 minutes later, Ms. Tillman heard a loud bump coming from Ms. Seay's bedroom followed by the sound of rapid footsteps going down the stairs (T2 14-18, 38). Ms. Tillman looked out her window and saw a man with a scratched face carrying a large object (T2 16-23). Ms. Tillman failed to pick Mr. Burkett's photo out of an array the following day, but she identified Mr. Burkett as the man in court (T2 33-34, 41, 48-49). Ms. Tillman gave a description of the man in 1983 to sketch artist Barbara Martin, who prepared a sketch (T2 26, 48-49, 58-60).

John Miller, Ms. Seay's next door neighbor, testified that he looked outside after he heard a car with a missing muffler pull up and saw a black man emerge from a green 1976 AMC station wagon with brown trim (T2 61-67). Mr. Miller saw the man enter Ms. Seay's building and then saw the man leave the building 45 to 60 minutes later with a rifle (T2 67-69, 75-76). Mr. Miller identified Mr. Burkett as the man he saw that night (T2 72).

Frederick Stokes testified that Mr. Burkett drove an old brown or tan station wagon missing a muffler and that he had fresh scratches on his face earlier during the day on March 16, 1983 (T2 54-56).

Eursa Hardie, Mr. Burkett's girlfriend in 1983, testified that she owned a green AMC station wagon with wood trim and a loud muffler (T2 80, 89). Mr. Burkett drove Ms. Hardie to work in the station wagon on the afternoon of March 16, 1983, and picked her up from work at approximately 11:00 p.m. that night (T2 80-82). It was clear to Ms. Hardie that Mr. Burkett had been drinking when he picked her up that evening (T2 88-89). The next day, Mr. Burkett telephoned Ms. Hardie but then abruptly left the state and went to California (T2 85-88).

Susan Brown, a Pontiac police officer, testified that she took the photographs of the scene and of Ms. Seay's autopsy (T2 92, 100-102). Those photographs were admitted over Mr. Burkett's objection.

Dr. Ljubic Dragovic, a pathologist, testified that he had reviewed the records and photographs of the autopsy performed in 1983 by the late Dr. Thomas Katinga (T2 113-115). Dr. Dragovic concluded that Ms. Seay died from three or four of the seven stab wounds she had suffered (T2 116). Ms. Seay also showed signs of strangling but Dr. Dragovic, unlike Dr. Katinga, concluded that the strangling did not contribute to her death (T2 118, 124-126, 129). Ms. Seay's blood alcohol level was 0.18, nearly twice the legal limit for intoxication (T2 127).

Jane McLaurin, a Pontiac police detective, testified that she took over the case with another detective in 1992 (T2 139). Detective McLaurin testified that Mr. Burkett wrote some 35 or 36 letters about Ms. Seay's death to various officials and that his letters contained details of the incident that caused her to interview Mr. Burkett three times (T2 141-146).

In a first interview at a prison in Ionia on June 8, 1993, Mr. Burkett told Detective McLaurin that Willie Goldsmith, a prisoner at Baraga Prison, had killed Ms. Seay (T3 5-7). Detective McLaurin then went to Baraga to interview Mr. Goldsmith, who showed her a July 10, 1993, letter from Mr. Burkett in which Mr. Burkett explained that he had falsely implicated Mr. Goldsmith so that the police would writ Mr. Burkett out to the Oakland County Jail (T3 7-8, 16-17).

After receiving many more letters from Mr. Burkett, Detective McLaurin interviewed him again in December 1994 (T3 26). At the conclusion of that interview, Mr. Burkett stated that he had used a scarf to strangle Ms. Seay (T3 26).

Detective McLaurin and another officer conducted a third interview of Mr. Burkett on October 13, 1995, in which Mr. Burkett admitting killing Ms. Seay and stated that he strangled her with his arm (T3 25-26). A few days later, however, Mr. Burkett wrote another letter in which he stated he had strangled her with a scarf (T3 27). In that letter, dated October 17, 1995, Mr. Burkett wrote that Ms. Seay let him into the apartment, that he followed her into her kitchen and wrapped a scarf around her neck, that she then hit him with something, and that he panicked and stabbed her with a knife (T3 29-30). In these interviews and letters, Mr. Burkett told Detective McLaurin that he was intoxicated, having consumed six regular beers, a 40 ounce beer, and cocaine before going to Ms. Seay's apartment (T3 42, 47).

The Defendant's Testimony and the Prosecutor's Cross-Examination

Willie Burkett took the stand in his own defense and admitted that he killed Ms. Seay on March 16, 1983. Immediately before going to Ms. Seay's apartment, he consumed a six-pack of beer, a 40 ounce beer, and a half pint of gin (T3 71-73). Mr. Burkett also had consumed cocaine and marijuana (T3 80).

After Ms. Seay let him into the apartment, the pair drank together for another 30 to 45 minutes before Mr. Burkett asked Ms. Seay to lend him some money (T3 74-75). Mr. Burkett followed Ms. Seay to her bedroom where she opened her purse before suddenly hitting Mr. Burkett with some object as he reached for the purse (T3 75-77). Mr. Burkett then used a scarf in an effort to restrain Ms. Seay, but she continued to swing at him, so he grabbed a knife off of her dresser and stabbed her (T3 78-79). Mr. Burkett explained that he reacted suddenly and "reflexed" when Ms. Seay physically attacked him (T3 81, 136). Mr. Burkett testified her attack, combined with his intoxication, caused him to react violently (T3 140).

On the way out of the apartment, Mr. Burkett decided to take the rifle (T3 82). Mr. Burkett specifically denied taking any money (T3 82). Mr. Burkett then left the state because of another case against him, for which he was eventually caught and incarcerated (T3 83). Mr. Burkett specifically testified that he did not intend to steal anything or kill Ms. Seay when he went to her apartment (T3 87).

Eventually, Mr. Burkett began writing letters about the incident because his conscience was bothering him and because he wanted to be writted out to Oakland County so he could see his family (T3 84-87). Mr. Burkett admitted writing all of the letters and making several police statements, but explained that each of the prior statements contained lies because he gradually changed his account to get closer to the truth (T3 139). Mr. Burkett specifically testified that his October 1995 statement that he stole money from the apartment was false (T3 94-97). In that statement, Mr. Burkett also falsely stated that he used his arm to grab Ms. Seay when actually he used a scarf (T3 104-105).

On cross-examination, after Mr. Burkett testified that he believed no one had seen him leave the apartment that night, the prosecutor repeatedly asked Mr. Burkett to comment on the credibility of various prosecution witnesses (T3 115). In particular, the prosecutor asked:

* * * * 




Closing Arguments, Instructions, and Verdict

In her closing argument, the prosecutor repeatedly evoked sympathy for Ms. Seay and her family:


*  *  *  *





The prosecutor also used her closing argument to reiterate that she had forced Mr. Burkett to label the prosecution witnesses as liars:





The trial court instructed the jury on felony murder with the underlying felony of larceny, the intoxication defense as to the specific intent required for larceny, second degree murder, and voluntary manslaughter (T4 61-67). The following day, the jury convicted Mr. Burkett of felony murder (T5 2). At sentencing, Mr. Burkett received the mandatory sentence of life imprisonment without parole (ST 2).

Mr. Burkett now appeals as of right.

 












 I.THE TRIAL COURT ERRED AND VIOLATED MR. BURKETT'S DUE PROCESS CLAUSE RIGHT TO A FAIR TRIAL IN PERMITTING THE PROSECUTION TO INTRODUCE OVER OBJECTION EXHIBIT TWO, A GRAPHIC AND WHOLLY IRRELEVANT PHOTOGRAPH OF THE DECEDENT'S BLOOD-COVERED FACE, EVEN THOUGH THE DECEDENT SUFFERED NO WOUNDS TO HER FACE.

 

 




Introduction, Issue Preservation, and Standard of Review

The trial court permitted the prosecution to introduce into evidence, over defense objection, ten photographs of the decedent's corpse (T1 8-12; T2 94-98, 103). In particular, the defense repeatedly objected to the admission of Exhibit Two, a ghastly close-up shot showing Ms. Seay's face covered in blood (T1 8-9, T2 96). Exhibit Two, which is attached as Appendix A to this Brief, is both prejudicial and utterly irrelevant because all of Ms. Seay's stab wounds were to her chest (T2 116); in other words, Exhibit Two depicts a gruesome, blood-covered face not because Ms. Seay had any facial injuries but because blood apparently flowed onto her face from her chest. 

Since Ms. Seay did not suffer any wounds to her face, the bloody photograph of her face could not possibly have been justified by the need to show the location of the wounds. Instead, the prosecutor argued that Exhibit Two was relevant to show an absence of facial injuries in order to rebut Mr. Burkett's claim that he killed Ms. Seay during a combative situation (T2 95). Yet, as defense counsel pointed out, one cannot possibly tell from Exhibit Two whether Ms. Seay suffered facial injuries (T2 96).[2]

One glance at Exhibit Two speaks volumes as to the prejudicial impact of this photograph. MRE 403. Indeed, the photograph is so prejudicial that its admission violated Mr. Burkett's Due Process Clause right to a fair trial. US Const, Amend XIV. Since Ms. Seay was not wounded in the face and since the blood obscures this fact, the photograph has exactly zero relevant value. MRE 401. Therefore, the probative value of Exhibit Two was "substantially outweighed" by the danger of unfair prejudice, and the trial court erred in admitting the photograph over Mr. Burkett's objection. MRE 403. The standard of review for such determinations is abuse of discretion. People v Mills, 450 Mich 61, 76; 537 NW2d 909 (1995).

 





Michigan courts have consistently held that the prosecution in a homicide case may use a graphic photograph of the victim only if "the photograph is substantially necessary or instructive to show material facts or conditions." People v Falkner, 389 Mich 682, 685; 209 NW2d 193 (1973); People v Browning, 106 Mich App 516, 523; 308 NW2d 264 (1981). If the photograph is "merely calculated to excite passion and prejudice," it should not be admitted. Falkner, 389 Mich at 685.

Put in the terms of MRE 401 and MRE 403, such photographs must have a probative value and that probative value must not be substantially outweighed by the danger of unfair prejudice. Mills, 450 Mich at 67, 76; see also People v Murphy, 100 Mich App 413; 299 NW2d 51 (1980) (finding photos of victim not probative and therefore inadmissible in light of defendant's admissions), aff'd, 416 Mich 453; 331 NW2d 152 (1982). 

Therefore, this Court must engage in a two-fold inquiry in reviewing the trial court's decision to admit Exhibit Two. First, this Court must determine whether the photograph is "related to any fact that is of consequence to the action." Mills at 67 (emphasis deleted); MRE 401. Mr. Burkett argues below that the photograph was utterly irrelevant to anything at issue in the trial. 

Second, even if the photograph had any relevance, this Court must determine whether that probative value was substantially outweighed by the danger of unfair prejudice. Id. at 76. Mr. Burkett argues below that the gruesome Exhibit Two had a danger of unfair prejudice far, far, outstripping any probative value.

 

 



The trial court committed a fundamental error in admitting Exhibit Two as it had no probative value at all. MRE 401; Mills at 67. The undisputed testimony was that Ms. Seay was stabbed seven times in the chest. (T2 116). Exhibit Two, however, is a disgustingly graphic close-up shot showing Ms. Seay's blood-covered face. No one could possibly claim that Exhibit Two is relevant to Ms. Seay's wounds because her wounds are not even visible in the photograph.

When the defense objected to this grotesque photograph, the prosecutor made an interesting, and wholly disingenuous, argument that the photograph was admissible to show an absence of wounds to Ms. Seay's face (T2 95). The prosecutor went on to claim that this absence of wounds would have refuted Mr. Burkett's claim that he killed Ms. Seay only after mutual combat (T2 95).

This claim for relevance is, in a word, ludicrous. One look at Exhibit Two confirms what defense counsel said: Because Ms. Seay's face is covered in blood, one cannot possibly tell whether she had any injuries to her face (T2 96). If the prosecutor really wanted to prove an absence of injuries to Ms. Seay's face, Exhibits 4 and 7, which show Ms. Seay's face after the blood was cleaned off, serve that purpose (Exhibits 4 and 7 attached as Appendix B to this Brief).

In short, the close-up photograph showing Ms. Seay's blood-covered face had no relevant purpose whatsoever. Therefore, the trial court erred under MRE 401 by admitting the photograph. See Mills at 67.

Even, however, if the photograph did have any relevant purpose, which it clearly did not, such probative value was far outweighed by the danger of unfair prejudice. Therefore, under MRE 403, the trial court erred in admitting the photograph. See Mills at 76. 

For the reasons discussed above, if any probative value existed, it was completely minuscule. Exhibit Two did not show Ms. Seay's wounds, which were to her chest. The fact that her face was covered with blood (that apparently flowed from her chest) obscured the stated "purpose" for admitting the photograph: to show the absence of wounds to her face (T2 95).

By contrast to the non-existent probative value of Exhibit Two, the prejudicial impact is obvious to anyone who even glances at Exhibit Two. In fact, the photograph makes it appear that Ms. Seay suffered devastating blows or wounds to her face, when, in reality, she did not. On a more visceral level, the photograph is simply grotesque. 

The danger of using such photographs in a jury trial is manifest. For no valid purpose, the jury was subjected to a disgusting and wholly irrelevant photograph of the victim. Since the photograph was irrelevant to anything at issue in the trial, it could only have served to inflame the jury against Mr. Burkett. See Falkner at 685. Therefore, the trial court abused its discretion in admitting Exhibit Two.

The error was certainly not harmless. Mr. Burkett admitted killing Ms. Seay but maintained that he was intoxicated and acted impulsively after Ms. Seay hit him (T3 80-81, 136, 140). If Mr. Burkett's testimony had been accepted, he would have been convicted only of voluntary manslaughter.

The jury clearly struggled with the case as it deliberated for portions of two days before arriving at a verdict (T4 70-71; T5 1-2). If the jury had not been prejudiced against him by seeing the gruesome and irrelevant close-up photograph of Ms. Seay's blood-covered face, the jury would have been much more likely to accept Mr. Burkett's testimony and convict him of a lesser offense.

Therefore, the error was not harmless. Mr. Burkett is entitled to a new trial.

 

 









Introduction, Standard of Review, and Issue Preservation

The prosecutor devoted much of her opening statement and closing argument to an emotional appeal for sympathy for the decedent and her family. The relevant portions of the opening statement and closing argument are reproduced verbatim in the Statement of Facts. Both arguments must be read in full to understand just how hard the prosecutor tried to make the jury sympathize with Ms. Seay.

The prosecutor's opening statement and closing argument amounted to an egregious pattern of sustained misconduct which deprived Mr. Burkett of his Fourteenth Amendment Due Process Clause right to a fair trial. As a result, the trial was so fundamentally unfair as to require reversal even in the absence of a defense objection. If, however, defense counsel was required to make an objection to preserve the misconduct for appellate review, then counsel's failure to make an objection to that misconduct was ineffective assistance of counsel. See Argument IV, below. Either way, Mr. Burkett is entitled to have this Court review the misconduct.

This Court reviews prosecutorial misconduct claims de novo. People v Legrone, 205 Mich App 77, 82; 517 NW2d 270 (1994).

 





The United States Supreme Court recognized more than 60 years ago that the Due Process Clause right to a fair trial protects defendants from prosecutorial arguments and misconduct. Berger v United States, 295 US 78, 85-88; 55 SCt 629; 79 LEd 1314 (1935). As the Court stated in Berger, 

 



A prosecutor strikes "foul blows" in violation of the Due Process Clause when she issues emotional appeals for the jury to sympathize with the victim. People v Dalessandro, 165 Mich App 569, 581; 419 NW2d 609 (1988); People v Wise, 134 Mich App 82, 104; 351 NW2d 255 (1984); People v Buckey, 133 Mich App 158, 167; 348 NW2d 53 (1984), rev'd on other grounds, 424 Mich 1; 378 NW2d 432 (1985). 

As this Court stated in Dalessandro, such arguments are error because "It is improper for the prosecutor to appeal to the jury to sympathize with the victim. . . . While the prosecutor did not specifically state that the jury should sympathize with [the victim], the prosecutor's statements were obviously intended to elicit just that emotional response." Id. at 581. 

Dalessandro is illustrative of why Mr. Burkett's conviction must be reversed. In Dalessandro, the prosecutor sought sympathy for the victim by calling him "the poor innocent baby." 165 Mich App at 581. This Court reversed even though defense counsel did not object because the prosecutor's conduct denied defendant a fair trial. Id. at 578-579. 

Here, the prosecutor's opening statement and closing argument contained the following blatant calls for sympathy for Ms. Seay and her family. The opening statement, which is reproduced in full in the Statement of Facts, contained the following appeals for sympathy:


 

 


*   *   *   *


*   *   *   *


*   *   *   *



Similarly, the prosecutor's closing argument was also full of calls for sympathy for the decedent and her family:


*   *   *   *



The prosecutor's opening statement and closing argument went beyond permissible "hard blows" into the realm of "foul blows" against Mr. Burkett. Berger, 295 US at 88. The prosecutor devoted much of her opening statement and closing argument to a sustained effort to prejudice Mr. Burkett by evoking sympathy for Ms. Seay and her family. Since, as discussed below, no curative instruction could have eliminated the prejudice from these arguments, Mr. Burkett is entitled to a new trial. 

 










Prosecutorial misconduct requires a new trial even in the absence of a defense objection if the misconduct resulted in injustice or if a curative instruction could not have obviated the prejudice. 
People v Wallace, 160 Mich App 1, 8; 408 NW2d 87 (1987); 
People v Foster, 175 Mich App 311, 317; 437 NW2d 395 (1989). Reversal is also required in the absence of a defense objection when the argument "is so egregious that we cannot say that a curative instruction would have obviated the resulting prejudice," 
People v Fuqua, 146 Mich App 250, 254; 379 NW2d 442 (1985), or if failure to consider the misconduct "would result in a miscarriage of justice." 
Dalessandro, 165 Mich App at 578; 
People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977). 

In Dalessandro, emotional prosecutorial remarks designed to elicit sympathy for the victim resulted in a reversal even though defense counsel did not object. Id. at 581-82; see also People v Haines, 105 Mich App 213, 218; 306 NW2d 455 (1981) (prosecutor's remarks reversible absent defense objection because they "denied defendant his right to a fair trial").

No curative instruction could have obviated the prejudice resulting from the prosecutor's misconduct here. The opening statement and closing argument inflamed the jury against Mr. Burkett by evoking sympathy for the decedent and her family. There is no reasonable chance that a curative instruction could have removed the resultant prejudice from the jurors' minds. Indeed, this Court has recognized that curative instructions are often ineffective against such unfair or emotional attacks. Haines at 218; Fuqua at 254.


Therefore, the prosecutorial misconduct in this case was far from harmless. By urging the jury to sympathize with Ms. Seay and her family, the prosecutor was attempting to prejudice the jury against Mr. Burkett. Mr. Burkett took the stand in his own defense and admitted killing Ms. Seay but maintained that he was intoxicated and acted impulsively after Ms. Seay attacked him (T3 80-81, 136, 140). If the jury had accepted Mr. Burkett's version, he presumably would have been convicted only of voluntary manslaughter. The prosecutor's misconduct was clearly designed to preclude this possibility by evoking sympathy for the decedent and her family.

Furthermore, the case against Mr. Burkett was close and this closeness was reflected in the jury's deliberations. The jury deliberated for parts of two days before returning a verdict (T4 70-71; T5 2). Under such circumstances, it is simply inconceivable that the prejudice injected by the prosecution in her lengthy calls for sympathy could have been harmless.

Therefore, Mr. Burkett is entitled to a new trial.













Introduction, Issue Preservation, and Standard of Review

During her cross-examination of Mr. Burkett, the prosecutor repeatedly asked him whether certain prosecution witnesses had lied. When Mr. Burkett finally answered these unfair questions in the affirmative, the prosecutor used her closing argument to berate him for having the audacity to accuse the witnesses of lying.

It is well-settled that the prosecutor may not ask the defendant to comment on the credibility of other witnesses. By forcing Mr. Burkett into the impossible position of having to state whether various prosecution witnesses were lying or simply mistaken, the prosecutor denied him his Due Process Clause right to a fair trial. The error was devastating as Mr. Burkett's defense turned entirely on his credibility.

Since defense counsel made no objection to this line of questioning, this Court must review for plain error. As the Supreme Court has explained, a plain unpreserved error is reviewed on appeal by applying the standard as to whether the error "could have been decisive of the outcome." People v Grant, 445 Mich 535, 553; 520 NW2d 123 (1994).










The Supreme Court has held that it is "improper for the prosecutor to ask defendant to comment on the credibility of prosecution witnesses." People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). In Buckey, the prosecutor attempted to bolster the prosecution witnesses' credibility and "to discredit defendant by inviting him to label prosecution witnesses 'liars'." 424 Mich at 17. 

The Supreme Court agreed that the questioning was improper but found no prejudice to the defendant in Buckey because "defendant dealt rather well with the questions. We fail to discern how he was harmed by the questions." Id. 

Similarly, in People v Loyer, 169 Mich App 105; 425 NW2d 714 (1988), this Court found harmless the prosecutor's questioning of the defendant about his assessment of the credibility of the prosecution witnesses. This Court found that the defendant answered the prosecutor's questions so well that he was not prejudiced by the improper line of questions. Id at 117.

Loyer and Buckey stand for the proposition that such prosecutorial questioning is improper but may be harmless if the questioning does not unfairly prejudice the defendant. If the questioning does unfairly prejudice the defendant, reversal may be required.








The prosecutor's cross-examination of Mr. Burkett provides a crystal clear example of a Buckey error. The prosecutor repeatedly referred to the testimony of prosecution witnesses and asked Mr. Burkett whether the witnesses were lying:

Q:
So, Rhonda Tillman is lying?

 


*   *   *   *



Thus, the prosecutor six times asked Mr. Burkett whether the prosecution witnesses were liars. This form of cross-examination is patently improper. See Buckey at 17.

Since this questioning was patently improper, it was plain error requiring reversal if the error could have been decisive of the outcome. Grant, 445 Mich at 553. The error here was clearly critical to the outcome.

First, the entire defense case turned on the credibility of Mr. Burkett. Indeed, the defense called no other witnesses and offered no other defenses than that Mr. Burkett was intoxicated and provoked by Ms. Seay. By inviting Mr. Burkett to call the prosecution witnesses liars, the prosecutor plainly sought to destroy Mr. Burkett's credibility in the eyes of the jury. Therefore, the line of questioning was highly prejudicial. 

If the prejudice were not plain enough, the prosecutor used her closing argument to hammer home the point that she had succeeded in her quest to force Mr. Burkett to label the prosecution witnesses as liars:



In short, the prosecutor committed plain error by engaging in patently improper questioning and the error, given that the entire defense turned on Mr. Burkett's credibility, could have been decisive of the outcome. Grant at 553. Mr. Burkett is therefore entitled to a new trial.
















Introduction, Issue Preservation, and Standard of Review

As explained in Arguments II and III, supra, the prosecutor's misconduct in this case would require a new trial even in the absence of an objection. However, if this Court finds that an objection was required to preserve these issues for appellate review, defense counsel violated Mr. Burkett's right to the effective assistance of counsel by failing to object to the prosecutor's misconduct during her opening statement, her cross-examination of Mr. Burkett, and her closing argument. 

A defendant is denied the Sixth and Fourteenth Amendment right to the effective assistance of counsel when counsel commits serious errors which could have affected the outcome of the proceeding. Strickland v Washington, 466 US 668, 687; 104 SCt 2052; 80 LEd2d 674 (1984). This Court has held many times that appellate review of an ineffectiveness claim is appropriate without a remand to the trial court so long as "the appellate record contains sufficient detail to support a defendant's claim." People v Armendarez, 188 Mich App 61, 74; 468 NW2d 893 (1991); see also People v Marji, 180 Mich App 525, 533; 447 NW2d 835 (1989); People v Hunter, 141 Mich App 225, 228; 367 NW2d 70 (1985).

Mr. Burkett's ineffectiveness claim is fully developed in this record. Trial counsel simply failed to object to lengthy and wholly inappropriate tirades intended to evoke sympathy for the victim. Trial counsel simply failed to object when the prosecutor repeatedly asked Mr. Burkett whether various prosecution witnesses were lying and then used his answers against him in closing argument. There can be no conceivable strategic or other reason to sit back while the prosecutor commits misconduct designed solely to prejudice the jury. Therefore, the record of trial counsel's ineffectiveness is fully developed and preserved for appellate review. Armendarez at 61. If, however, this Court believes that any further record should be developed, this Court should remand for an evidentiary hearing.









Trial counsel may be ineffective for failure to object to prejudicial evidence or misconduct. In People v Fenner, 136 Mich App 45, 47; 356 NW2d 1 (1984), this Court reversed a conviction for both manifest injustice and ineffective assistance of counsel because trial counsel failed to object to prejudicial hearsay testimony. Similarly, in People v White, 142 Mich App 581, 589; 370 NW2d 405 (1985), this Court again found trial counsel ineffective for failure to object to prejudicial evidence.

In reviewing a claim that defendant was unfairly prejudiced by the prosecutor's misconduct in a case where trial counsel failed to object, this Court may reverse for either of two reasons. First, as argued above in Argument II and III, the defendant may be entitled to a new trial because the prejudicial argument or evidence amounted to manifest injustice requiring reversal even in the absence of an objection. Fenner at 47. Second, reversal may also be required because counsel was ineffective in failing to object. Id.









For the reasons set forth in Argument II, above, there can be no serious question that the prosecutor's opening statement and closing argument were intended to evoke unfair sympathy for the decedent. Both the opening statement and the closing argument were chock full of unabashed calls for sympathy for Ms. Seay.

Similarly, as set forth in Argument III, above, there can be no serious question that the prosecutor's cross-examination of Mr. Burkett was improper in forcing him to comment on the credibility of prosecution witnesses. The error was compounded when the prosecutor used Mr. Burkett's answers to those questions to slam him in closing argument.

Nevertheless, trial counsel did not utter a peep of protest at any of this misconduct. Since there was no conceivable reason why trial counsel should allow the prosecutor to commit such misconduct, trial counsel erred in failing to object. For the same reasons that the misconduct itself prejudiced Mr. Burkett, trial counsel's failure to object to that misconduct also resulted in prejudice to Mr. Burkett. Therefore, both prongs of the Strickland test are satisfied, and Mr. Burkett is entitled to a new trial.












SUMMARY AND RELIEF 





THEREFORE, Defendant-Appellant Willie J. Burkett respectfully requests that this Honorable Court reverse his conviction and remand for a new trial.





Respectfully submitted,

STATE APPELLATE DEFENDER OFFICE










BY:______________________________

DAVID A. MORAN (P 45353)


Assistant Defender


645 Griswold


3300 Penobscot Building


Detroit, Michigan 48226


(313) 256-9833









Dated: November 13, 1996













APPENDIX A

 

Prosecution's Exhibit Two













APPENDIX B

 

Prosecution's Exhibits Four and Seven













Footnotes






1
	
Transcript references are to the five volumes of trial transcript (T1 through T5) and to the sentencing transcript (ST).







2
	
Several of the other photographs, which showed Ms. Seay's face after the blood was cleaned off, do show the apparent absence of facial injuries.  See Exhibits Four and Seven, attached as Appendix B to this Brief.  If the prosecution's real purpose was to show the absence of facial injuries, Exhibits Four and Seven fully accomplish that task.  Exhibit Two, by contrast, is a revolting photograph that sheds no light at all on whether or not Ms. Seay had facial injuries.















STATE OF MICHIGAN

IN THE COURT OF APPEALS

 

PEOPLE OF THE STATE OF MICHIGAN



Court of Appeals No. 195943



Plaintiff-Appellee,



Lower Court No. 95-143229-FC




-vs-

WILLIE J. BURKETT

 

Defendant-Appellant.

________________________________/

 

 


PROOF OF SERVICE

 

 

STATE OF MICHIGAN
)

) ss.

COUNTY OF WAYNE
)

 

 

BARBARA WASHINGTON, being first duly sworn, deposes and says that on November 13, 1996, she filed with this Court the following:

 

DEFENDANT-APPELLANT'S BRIEF ON APPEAL

(ORAL ARGUMENT REQUESTED)

PROOF OF SERVICE

 

and she mailed one (1) copy of same to:

 





OAKLAND COUNTY PROSECUTOR

Courthouse Tower

1200 North Telegraph Road

Pontiac, MI 48053



 

 

 







 

_______________________________

BARBARA WASHINGTON

 

Subscribed and sworn to before me

November 13, 1996.

 

_________________________________

LAVENIA COOK

Notary Public, Wayne County, Michigan

My commission expires: 06/03/98

IDEN NO. 13524T

David A. Moran