People v. Duncan

Ryan, J.

Defendants Duncan and McIntosh were found guilty by a jury of conspiracy to do a legal act in an illegal manner, MCLA 750.157a; MSA 28.354(1), and solicitation of a bribe, MCLA 750.505; MSA 28.773. Their convictions were affirmed by the Court of Appeals. 55 Mich App 403; 222 NW2d 261 (1974). We granted leave to appeal by order filed December 23, 1974. 393 Mich 773 (1974).

The defendants are charged with offering to return to Irving Broadnax, upon payment to them of $800, certain property held in the Inkster Police Department property room which was confiscated from Mr. Broadnax in connection with an earlier burglary investigation. The people’s principal witness was Betty Harris, a former drug addict, convicted felon, and sometime informer.

The people offered Ms. Harris’ testimony that she had acted as the go-between when defendants made their initial proposals to Mr. Broadnax. Over the objection of defendants’ counsel, Ms. Harris further testified that she had acted as intermediary between the defendants and three local drug dealers in connection with payments for protection and information on police activities.1

The testimony concerning Ms. Harris’ contact with the three drug dealers was offered and received as bearing upon the defendants’ criminal intent in the transaction involving Mr. Broadnax.

*11I

The first issue is the admissibility of the so-called "similar acts” evidence under MCLA 768.27; MSA 28.1050, which reads:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts, or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

Defendants raise four points with regard to the applicability of the statute in their case.

First, they challenge the relevancy of an alleged drug protection racket to the charges of conspiracy to do a legal act in an illegal manner and solicitation of a bribe.

Despite certain factual distinctions, the common thread which connects all the incidents was the use of Betty Harris by the defendants to obtain payoffs in return for the use of their official position to protect or benefit illegal activities. The focus of the analysis is on the nature of defendants’ activities, not on the criminal acts of the persons from whom the defendants solicited bribes. The fact that the identities of the benefited criminals or the nature of the criminal activities protected varied is not a bar to the admissibility of the evidence. The prior incidents of bribery offered by the people were sufficiently similar to the bribery alleged in the information to qualify as admis*12sible evidence within the meaning of the statute. The statute requires "like acts”, not identical acts. See, e.g., State v Firestone, 68 Ohio App 359; 41 NE2d 277, app dism’d 139 Ohio St 216; 38 NE2d 1023 (1942), and cases collected in Anno, Admissibility, in prosecution for bribery or accepting bribes, of evidence tending to show the commission of other bribery, or acceptance of bribe, 20 ALR2d 1012, 1034-1035. But cf., People v Fiore, 34 NY2d 81; 356 NYS2d 38; 312 NE2d 174 (1974).

Defendants next challenge the materiality of the evidence.

The "similar acts” were offered to show defendants’ intent with regard to the solicitation and conspiracy. Before any proofs were offered, defense counsel’s opening statement informed the jury that "our testimony will show along with the prosecution’s testimony that there was talk of a bribe”. The proofs did show numerous conversations between Mr. Duncan, Mr. McIntosh, Ms. Harris and Mr. Broadnax in varying combinations, discussing the sum of $800 to be paid to defendants for the return of Mr. Broadnax’s property from the police station. The crucial differences in testimony were that Mr. Broadnax and Ms. Harris testified that the defendants initiated the scheme. The defendants testified that Mr. Broadnax and Ms. Harris initiated the scheme and that the defendants only went along with it so as to catch Mr. Broadnax in a crime. With regard to the conspiracy count, the evidence of the four principal witnesses showed the discussions and apparent agreement to return the property for $800. The disputed issue was the intent of the defendants at the time.

By pleading not guilty and disputing intent by their proofs at trial, defendants placed their intent *13in issue. People v Reading, 307 Mich 616; 12 NW2d 482 (1943); People v McElheny, 221 Mich 50; 190 NW 713 (1922). We have previously held that the prosecution may prove intent by offering evidence of a continuing course of conduct. People v Johnston, 328 Mich 213; 43 NW2d 334 (1950).

Johnston involved payments to a prosecuting attorney for protection of houses used for gambling and prostitution. Evidence of other payments to defendant for the same purpose from the same and other individuals received during the four years prior to the incident alleged in the information was held properly admitted as bearing on the issue of intent. In the case at bar the people offered three other incidents of bribery as bearing on the intent of defendants in their relations with Broadnax. The evidence of a repeated course of conduct tended to show the intent of defendants in doing the acts alleged and was therefore material and admissible under the statute.

Defendants also contend that the similar acts were not "proved” in the manner required by the statute. It is argued that although the people need not prove the alleged similar acts beyond a reasonable doubt, the proofs must at least convince the jury of the probability of the defendant’s actions. The evidence of similar acts in this case is attacked as mere uncorroborated testimony of a witness who had expressed a desire "to get the defendants in trouble”. Defendants cite People v Davis, 343 Mich 348; 72 NW2d 269 (1955), in support of their argument. We do not read the relevant language of Davis2 to require any further *14proof than was presented here. People v Allen, 351 Mich 535; 88 NW2d 433 (1958), also cited by appellants, requires only that the proofs be sufficient to convince the jury of the probability of defendants’ actions. The people were not required to offer corroboration of Ms. Harris’ testimony when she was testifying as to transactions in which she was an active participant. It was within the province of the jury to believe or disbelieve the witness.

Finally, defendants argue that the probative value of the similar acts testimony was outweighed by its unduly prejudicial impact. It is well settled that the determination of whether the probative value of similar acts testimony is substantially outweighed by its unfairly prejudicial effect is within the sound discretion of the trial judge. See People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), and authority cited therein.

Like the Court of Appeals, we recognize the potentially inflammatory impact of testimony linking police officers with narcotics dealers. However, we also recognize the relevance of this testimony as tending to show a continuing course of conduct involving payoffs. As noted by the Court of Appeals below, the trial judge carefully considered the matter and, when he concluded that the testimony could be presented to the jury, carefully controlled the proceedings and specifically in*15structed the jury on the permissible uses of the testimony.3

We find no abuse of discretion by the trial judge in allowing the similar acts testimony to be presented to the jury in this case.

II

Defendants’ second major contention on appeal is that they were denied a fair trial because of improper argument by the prosecutor. The people’s closing argument is alleged to contain at least three instances of impropriety sufficient to require reversal.

Because no objection was made to any of the *16prosecutor’s closing arguments at trial, appellate review is foreclosed unless our failure to consider the issue would result in a miscarriage of justice. People v Alcala, 396 Mich 99; 237 NW2d 475 (1976); People v Hancock, 326 Mich 471; 40 NW2d 689 (1950); People v Zesk, 309 Mich 129; 14 NW2d 808 (1944); People v Connors, 251 Mich 99; 230 NW 931 (1930); People v Goldberg, 248 Mich 553; 227 NW 708 (1929); MCLA 769.26; MSA 28.1096.

We examine the prosecutor’s remarks in the context in which they were made. People v Allen, 351 Mich 535; 88 NW2d 433 (1958).4 The prosecutor’s remarks in this case were either proper argument based upon the evidence presented or responses to matters raised by the defendants in their proofs and closing argument. Certain of the latter remarks, although if standing alone could be seen as improper, do not constitute reversible error in this case because of their responsive nature, People v Dersa, 42 Mich App 522; 202 NW2d 334 (1972), lv den 388 Mich 803 (1972); People v Green, 34 Mich App 149; 190 NW2d 686 (1971), lv den 386 Mich 769 (1971), and because any unduly *17prejudicial effect could have been eliminated by a curative instruction if one had been requested upon a timely objection. People v Hall, 396 Mich 650; 242 NW2d 377 (1976); People v Omacht, 326 Mich 505; 40 NW2d 704 (1950); People v Goldberg, supra; People v Mulvaney, 171 Mich 272; 137 NW 155 (1912).

It is, of course, as much the duty of a public prosecutor to ensure that the criminally accused receive a fair trial as it is to use his best efforts to convict those guilty of crimes.5 However, it is also true that a well-tried, vigorously argued case ought not to be overturned due to isolated improper remarks which could have been cured had an objection been lodged. People v Hall, supra. Whether the defense strategy was to forego objection and hope that the objectionable portions of the prosecutor’s argument would engender sympathy in the jury, or to invite error as a foundation for subsequent reversal, we will not now review assignments of error so waived. Cf. Henry v Mississippi, 379 US 443; 85 S Ct 564; 13 L Ed 2d 408 (1965).

We pause to observe that the prosecutor discussed the evils of heroin trafficking in his final argument.6 The evidence relating to heroin and a *18narcotics protection racket was admitted under the similar acts statute for a very limited purpose. The discussion of the narcotics evidence in final argument was intemperate and ill-advised even though the prosecutor himself, at another point in his argument, informed the jury of the limited uses of the evidence.7 In this instance as well, however, defense counsel failed to object and request a curative instruction. We agree with the Court of Appeals that the prejudicial propensity of this brief but improper reference to narcotics could have been cured by a prompt objection and curative instruction. We therefore decline to reverse on this point, although the reference to the similar acts evidence in the .final argument is expressly disapproved.

Affirmed.

*19Coleman and Fitzgerald, JJ., concurred with Ryan, J.

On cross-examination of Ms. Harris, defense counsel obtained the names of nine other alleged drug dealers who were said to have paid defendants with Ms. Harris acting as intermediary.

In People v Davis, 343 Mich 348; 72 NW2d 269 (1955), we noted at page 365:

"While we are in agreement with defense counsel that such acts if admitted may bear on intent only if the jury is first convinced that they had been perpetrated by the accused, we are of the opinion that *14the charge made this point sufficiently clear. The court charged that. proof of previous difficulties may be considered as bearing upon intent and motive. He admonished the jury that they were the sole judges of the credibility of the various witnesses. Inasmuch as defendant categorically denied all of the previous acts, it was sufficiently clear that they must disbelieve him and believe the other witnesses before considering those acts as bearing on his intent. The court further said that such acts 'may be proved and may be considered.’ We think the defendant was adequately protected and no reversible error committed in this regard.”

A detailed instruction on the uses of the similar acts testimony was given upon the introduction of the testimony and in the jury charge. The following is an excerpt from that portion of the jury charge dealing with the similar acts testimony:

"Now, I say to you, ladies and gentlemen, it is clearly the law in this state that these proofs are admitted or this evidence is admitted not to show a general disposition of proximity to crime, but it is offered to show intent, motive, scheme, plan, design or system, with respect to the conspiracy or the solicitation, because both of these crimes contain the essential element of the existence of intent and agreement and an intent to solicit the commission of an offense, to solicit the payment of a bribe.

"Now, let me add to that language by saying too, quite emphatically though, that testimony is offered for that purpose and that alone, and you may utilize that testimony if you so choose to assist you in regard to what? the question of intent, plan, scheme, design, but not the guilt or innocence of these defendants as charged in this information.

"You are to deliberate with regard to the guilt or innocence upon the charge as established in the information, as claimed in the information, you are not to deliberate upon the guilt or innocence of the defendants in connection with these other offenses which were permitted to be shown you. I say to you that this testimony is offered not as to guilt or innocence, in this case per se and in and of itself, but merely to show the existence of plan, scheme, or design. As far as this case is concerned, you are to consider the charge in the information here alone, but you may consider these other similar acts in determining whether or not there was scheme, intent, motive, you understand. All right. Again not bearing upon guilt or innocence here in this information but for the purposes I have indicated to you.”

In passing upon the propriety of a prosecutor’s closing argument, this Court observed in Allen:

"We concede that there is little room for argument that his remarks were intemperate and perhaps better left unsaid. But under all the circumstances we cannot say that they were fatally prejudicial or entirely without provocation. Criminal trials are not basket luncheons, and we seem faintly to recall that in our experience opposing lawyers rarely if ever pelted each other with rose petals. In any case, counsel for defendants cannot on his side be allowed great latitude to goad and provoke adverse comment or criticism from the prosecutor and then seek a reversal because his strategy succeeded. When opposing counsel makes accusations and creates inferences of unfairness and unprofessional conduct against the prosecution, he is scarcely in a position to ask a reversal because of equally intemperate language used in reply. To permit that would be to award victory to those criminal defendants retaining the best 'needier’. Under the circumstances presented here we must hold that this ground of error is without merit. (See, generally, 2 Gillespie, Michigan Criminal Law and Procedure [2d ed], § 626.)” 351 Mich at 544.

In People v Dane, 59 Mich 550, 552; 26 NW 781 (1886), we observed:

“It is the duty of the public prosecutor to see that the person charged with crime receives a fair trial, so far as if is in his power to afford him one, and it is likewise his duty to use his best endeavor to convict persons guilty of crime; and in the discharge of this duty an active zeal is commendable, yet his methods fo procure conviction must be such as accord with the fair and impartial administration of justice; and it is improper for one occupying the position of the prosecuting officer to make a statement to the jury of a fact, as of his own knowledge, which has not been introduced in evidence under the sanction of an oath, relating to the material issues in the case

In his closing argument in this case, the prosecutor informed the jury:

"One of the things Mr. Blake told you he resented was the fact that *18I offered evidence showing that in spite of the efforts, in spite of the alleged efforts of these two defendants, there really wasn’t very much effective police work concerning narcotics resulting from their alleged efforts. Did and do the names Duncan and McIntosh strike terror into the hearts of the dope dealers in Inkster? I don’t think so and I don’t think you think so either.

"First, let me say this, we have been talking rather casually. I think too casually about dope and about dope dealers. When we have mentioned dope at this trial we are talking about narcotics, about heroin. Heroin is that substance which is corrupting our society. Heroin is that substance which is destroying our children. I think it is important for you to appreciate the significance of what we have been talking about at this trial.

"Now, the testimony that has been presented to you shows that both these men spent a lot of time with Betty Harris, one of them said 10 or 15 buys, the other couldn’t remember. Their testimony shows that at different points in time both of them engaged in this activity voluntarily, that is to say that it was not their assigned duty, sort of a private war on crime as they tell it. But for all these efforts that they told you about for all this public spirited voluntary action, no convictions or at most one maybe five years ago.”

Previously in his argument, the prosecutor had said:

"In this particular trial we have presented to you proof of other similar acts. That in fact these two defendants engaged in an ongoing conspiracy and a series of other criminal solicitations. These proofs were offered and may be used by you only for a limited purpose. Judge Rashid has already once instructed you as to that limited purpose, I trust he will do it again in his final instruction.”