Preview:

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KIM LESLIE GLADDING, Defendant-Appellant.

UNPUBLISHED November 12, 2009

No. 285295 Ionia Circuit Court LC No. 07-013770-FH

Before: Servitto, P.J., and Bandstra and Markey, JJ. PER CURIAM. Following a jury trial, defendant was convicted of operating a vehicle while intoxicated, third offense (OWI 3d), MCL 257.625(1) and (9), operating a motor vehicle without a license, MCL 257.904(1), and possession of marijuana, MCL 333.7403(1). Defendant was sentenced under MCL 769.10 to 14 to 60 months imprisonment for OWI 3d, and 21 days in jail with credit for time served for both operating a motor vehicle without a license and possession of marijuana. Defendant appeals by right and we affirm. Defendant argues that he was deprived of a fair trial due to prosecutorial misconduct. Specifically, defendant argues that the prosecutor intentionally violated a trial court order prohibiting references to foul language defendant used after his arrest. We review prosecutorial misconduct claims de novo, evaluating the prosecutor's conduct in context to determine whether the defendant was denied a fair and impartial trial. People v Thomas, 260 Mich App 450, 453454; 678 NW2d 631 (2004). Prior to opening statements, defendant challenged the admissibility of testimony regarding several statements he had made after his arrest while en route to jail. These statements, defendant argued, were irrelevant and overly prejudicial because they merely involved defendant's using foul language with the arresting officer and only showed that defendant was intoxicated, a fact to which he had stipulated. Plaintiff argued that the statements were relevant and admissible because in several of the statements defendant discussed whether he operated the moped. The trial court granted defendant's motion. Defendant's claim of error focuses on the prosecutor' asking him the following question to demonstrate his motive to lie: "Do you recall in the vehicle that you continued to go on about this case and how whether you had a defense attorney or not you were going to beat this and that [the arresting officer] would then walk out of here and he'd be known as a punk bitch?" The -1-

trial court sustained defense counsel's objection, instructed the jury to disregard the question, and admonished the prosecutor for intentionally violating the court's evidentiary ruling. Defendant argues that the prosecutor's conduct deprived him of a fair trial. The fact that the trial court admonished the prosecutor for violating the court's order does not mean that the prosecutor necessarily engaged in misconduct, however. Indeed, after considering carefully the court's stated reasoning in its entirety, we believe that the prosecutor could have reasonably determined that evidence referencing the curse words was potentially admissible for purposes other than to prove intoxication. We note that before asking the question, the prosecutor stated on the record that he was posing the question to demonstrate defendant's motive to lie. Thus, we believe that the record supports the conclusion that the prosecutor acted in good faith. A prosecutor's good faith effort to introduce evidence does not constitute prosecutorial misconduct. People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). Further, we are convinced that no serious argument can be made that the prosecutor's question using the words "punk bitch" so prejudiced defendant's case that he would not have been convicted had they not be used. Further, immediately following its ruling, the court gave a curative instruction directing the jury to disregard plaintiff's question. We presume that juries follow their instructions, People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998), and defendant has not shown anything to rebut this presumption. Defendant also argues that he was deprived of effective assistance of counsel when his trial counsel failed to move for a mistrial after the alleged prosecutorial misconduct. Because effective counsel is presumed, a defendant who challenges his counsel's assistance bears a heavy burden of overcoming that presumption. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). Defendant failed to preserve this issue by moving for a new trial or a Ginther1 hearing; our review is therefore limited to mistakes apparent on the record. People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994). A mistrial is only appropriate when the prejudicial effect of an error cannot be cured in any other way. People v Horn, 279 Mich App 31, 36; 755 NW2d 212 (2008). Here, defendant has failed to demonstrate that the court's curative instruction failed to remove any possible prejudicial effect. See id. ("[I]nstructions are presumed to cure most errors."), and People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008) ("Curative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements."). Accordingly, had defense counsel moved for a mistrial, the trial court should have denied the motion as meritless. "It is well established that defense counsel is not ineffective for failing to pursue a futile motion." People v Brown, 279 Mich App 116, 142; 755 NW2d 664 (2008). Defendant has not overcome the presumption of effective assistance of counsel. LeBlanc, supra at 578. Defendant further argues that if this Court were to reverse his convictions based on the above arguments, a retrial would violate double jeopardy protections. US Const Am V; Const 1963, art 1

Download PEOPLE OF MI V KIM LESLIE GLADDING.pdf

Michigan Law