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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v

UNPUBLISHED April 22, 1997

No. 189648 Oakland Circuit Court LC No. 91-113194

DAVID NORVELL CHURCHILL, Defendant-Appellee. ON REMAND

Before: MacKenzie, P.J., and Jansen and T.R. Thomas*, JJ. PER CURIAM. Following a jury trial in the Oakland Circuit Court, defendant was convicted of first-degree murder, MCL 750.316; MSA 28.548, and was sentenced to the mandatory term of life imprisonment without the possibility of parole. After the conviction, defendant moved for a new trial based on prosecutorial misconduct. The trial court granted defendant's motion and ordered a new trial, finding that defendant had been denied a fair trial. This Court denied the prosecution's application for leave to appeal in an unpublished order dated May 26, 1995 (Docket No. 184602). The prosecution then appealed to our Supreme Court, which remanded the case to this Court "for consideration as on leave granted." People v Churchill, 450 Mich 875 (1995).1 I This case arises out of the killing of defendant's girlfriend, Bonnie Jo Wolf. The incident occurred on August 20, 1991. In the weeks preceding the victim's death, the relationship between defendant and the victim deteriorated, as the two were arguing frequently and using cocaine often. During the evening of August 19, 1991, defendant and the victim used cocaine until about 6:00 a.m. Defendant then left the victim's house to go to sleep. When he returned, he found the victim still using cocaine and an argument ensued. The argument continued into the afternoon of August 20, 1991, and the two used cocaine intermittently throughout the day. At one point during the argument, the victim

* Circuit judge, sitting on the Court of Appeals by assignment. -1

burned defendant with the pipe they were using to smoke cocaine. The victim then left her house, and later returned at 2:45 p.m. Upon the return to her house, the victim again began smoking cocaine. Defendant consumed two or three drinks of alcohol. The two continued to argue, and the victim eventually grabbed and slapped defendant. The two fought physically and defendant admitted to choking the victim, as well as hitting her with a bar of soap and a toy rifle. Defendant choked the victim with his left hand, she fell back onto the bed, and her breathing was ragged. Defendant claimed that when he left the scene of the altercation, he did not know that the victim was dead. The following day, defendant was taken to the police station for interrogation. Following defendant's repeated inquiries regarding the victim's status, the police stated that "she is not doing real well," but the police did not tell defendant that the victim had died. At the police station, defendant admitted to hitting the victim several times, and stated that the episode was "equivalent of a premeditated assault, it must have been." Upon being informed that the victim had died, defendant began crying and would answer no more questions. The cause of death was strangulation and blunt-impact head injury. Defendant was charged with Wolf's killing, and a jury trial began on July 13, 1992. Defendant's defense was self-defense, and that he did not have the intent to kill the victim. The trial lasted twelve days and concluded on July 30, 1992, with defendant's conviction of first-degree murder. Defendant was sentenced on February 11, 1993, to the mandatory term of life imprisonment without the possibility of parole. On March 25, 1993, defendant moved for a directed verdict of acquittal, or for a new trial based on prosecutorial misconduct. The trial court, in an opinion and order dated March 15, 1995, denied the motion for directed verdict, finding that there was sufficient evidence presented to sustain defendant's conviction of first-degree murder.2 The trial court, however, granted the motion for a new trial, finding instances of prosecutorial misconduct which denied defendant a fair trial. The prosecution now appeals this decision. II In the motion for new trial, defendant contended that the prosecutor acted impermissibly by: (1) repeatedly telling the jury that the trial court had found defendant's confession to be knowing, voluntary, and intelligent; (2) denigrating defense counsel and defendant; (3) questioning defendant's lack of corroborating evidence, thus shifting the burden of proof; and (4) appealing to the jury's sympathy and sense of civic duty. The trial court found the first two allegations of prosecutorial misconduct to have merit, and found that defendant was denied a fair trial. A We review the trial court's decision regarding a motion for new trial for an abuse of discretion. People v Herbert, 444 Mich 466, 477; 511 NW2d 654 (1993). In reviewing claims of prosecutorial misconduct, this Court must examine the remarks made in context to determine whether they denied the defendant a fair trial. People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995).

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B
The prosecution first asserts that the trial court abused its discretion in granting defendant a new trial based on the prosecutor's references to defendant's Walker3 hearing. Before trial, defendant requested a Walker hearing to determine whether his confession was involuntary or given under diminished capacity. The trial court found that defendant's confession was admissible. During jury voir dire, the prosecutor made the following comments regarding the Walker hearing: [The judge] found [the police statement] to be a very legal, voluntarily [sic] knowing statement. *** The judge has ruled that there's absolutely nothing wrong with the statements that were taken. *** [D]o you [know] what a Walker Hearing is? . . . That's a hearing where the Judge determines if the statements that were taken by a Defendant were knowing, voluntarily [sic] and informed. And this Judge determined based upon lengthy briefs involving the law, that these officers did nothing wrong. They didn't have a duty to disclose anything to the Defendant. All they had to do was advise him of his rights. In examining a police officer at trial, the prosecutor also solicited the following testimony regarding the Walker hearing: Q. [By Prosecutor Cabadas]: What's a Walker Hearing? A. [By Sergeant Rollinger]: That's a hearing where the Judge has to make a ruling whether or not a confession that police officers obtained from a Defendant was obtained legally. Q. Knowing, voluntarily. That's why I went through the foundation about did you beat him, did you threaten him, did you pull guns out, wasn't it a nice room, was everything wonderful, did he have coffee, was he lucid; those sort of things. That's the basis for a Walker Hearing, right? A. Yes. Q. That's a legal question that's resolved by the Judge not the jury, right? A. Yes. *** -3

Q. In the course of those two days, was it brought up that the Defendant--didn't he allege initially that he was denied a knowing and voluntary waiver and he was basically deprived of his constitutional rights and that the jury shouldn't hear his statements? Wasn't that alleged? A. Well, that was the purpose of the Walker Hearing. Q. And the Judge ruled what? A. That the confession that was obtained was proper. Later, during his cross-examination of defendant, the prosecutor again inquired concerning the Walker hearing. The following occurred: Q. [By the prosecutor] At that point and time, you alleged that the police

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