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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v LOWELL EDWIN AMOS, Defendant-Appellant.

UNPUBLISHED August 18, 1998

No. 200898 Recorder's Court LC No. 96-001975

Before: Corrigan, C.J., and Cavanagh and Bandstra, JJ. PER CURIAM. Defendant appeals by right his convictions by jury of two counts of first-degree murder, MCL 750.316(1)(a); MSA 28.548(1)(a). The trial court sentenced defendant to two terms of life imprisonment without the possibility of parole and ordered $13,000 in restitution. We affirm defendant's convictions, but remand for preparation of an amended judgment of sentence and reconsideration of the order of restitution after a hearing on defendant's ability to pay. I. Factual Background The prosecution charged defendant with murdering his wife, Roberta Mowrey Amos, at the Atheneum Suite Hotel in Detroit on December 10, 1994. The night before, defendant and the victim had attended a Christmas party hosted by defendant's company, Preferred Personnel. Defendant and the victim socialized with defendant's business colleagues and their guests until the early morning hours and eventually retired to their hotel room at 4:00 or 4:30 a.m. Some four hours later, defendant phoned his business partner, Bert Crabtree, who had likewise rented a room at the hotel, to request that Crabtree come to his room. Crabtree and Daniel Porcasi, a Preferred Personnel employee whom Crabtree had requested accompany him, arrived at defendant's room at 9:30 a.m. On entering the room, defendant told Crabtree and Porcasi that he and the victim had been using cocaine and the victim had died. Defendant requested that Porcasi remove three items from the room--a syringe, a sport jacket, and a washcloth. Porcasi complied with the request. Porcasi, Crabtree, and Crabtree's girlfriend then hastily packed their belongings and left the hotel. Defendant called the hotel front desk after Crabtree and Porcasi departed and, at approximately 10:00 a.m., a hotel security officer visited defendant's room. The security officer -1

subsequently notified the police of the victim's death. Defendant told the police that he and the victim had used cocaine during the previous night, claiming that he snorted the drug, while the victim inserted it in her anus and vagina. Defendant maintained that he awoke to discover the victim dead. He admitted that he disposed of the contraband before calling security. Defendant returned to the hotel during the afternoon on the day of the victim's death to retrieve property stored in the hotel safe. Security Officer Stanley Cann testified that after he handed defendant the victim's jewelry, defendant stated, while holding a female's Rolex watch, that "this is the bulk of the money." That evening, defendant drove to Crabtree's house. He and Crabtree then drove to Porcasi's home, where defendant retrieved the washcloth, syringe, and sport jacket. Dr. Sawait Kanluen, the Wayne County Chief Medical Examiner, observed no signs that the victim suffered internal or external injuries, except for an abrasion on the victim's forehead and two small bruises on her body. Blood testing, however, demonstrated that the victim's blood cocaine level was 3.7, about fourteen or fifteen times the average level in deaths caused by overdose. Dr. Kanluen opined that the victim died of acute cocaine poisoning "very soon" after the cocaine was introduced and, as of 11:00 a.m., she had been dead between four and eight hours. He further opined on the basis of the police investigation that someone other than the victim had introduced the cocaine into her body. Dr. Kanluen observed no needle marks on the victim's body and no evidence of prior drug use. Phyllis Good, a state police forensic chemist, testified that a vaginal swab taken from the victim revealed trace amounts of cocaine, but rectal and oral swabs tested negative for cocaine. The bed sheet removed from the hotel room, however, was covered with cocaine residue, with a higher concentration of cocaine in the location where the victim's body was found. Good opined that the stain on the sheet was consistent with the introduction of cocaine into the victim's body in liquid form and a subsequent attempt to remove the substance from the body. She further opined that a syringe without a needle could be used to inject a strong concentration of cocaine solution into someone's throat, vagina, or anus. Another expert, Amy Michaud, testified that a pillow case from defendant's hotel room had blood, cosmetics, and lip impressions on it. She discovered both potassium and chlorine (in the form of chloride) on the pillow case but declined to opine that the chemicals were from potassium chloride, a substance commonly used in medicinal solutions, because cocaine could also explain the presence of chloride. Defendant denied murdering the victim. He maintained that he and the victim used cocaine during the night before her death, with the victim administering the cocaine to herself vaginally. Defendant claimed that he discovered that the victim was dead when he awoke the next morning. He further explained that he cleaned up the room to remove cocaine residue, the syringe, and the sport jacket because he did not want the police to charge him with cocaine possession. II. Prosecutorial Misconduct Defendant contends that the prosecutor's comments, questions, and remarks throughout trial denied him a fair trial. We disagree. We accord prosecutors great latitude in their arguments and conduct. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). This Court reviews questions of prosecutorial misconduct on a case by case basis to determine whether the conduct denied

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the defendant a fair and impartial trial. Id. at 267 n 7; People v Legrone, 205 Mich App 77, 82; 517 NW2d 270 (1994). A. Introduction of Evidence Defendant first argues that the prosecutor engaged in misconduct by introducing (1) the testimony of Mary Zellinger and Martha Ross regarding defendant's extramarital affairs and sexual relationships while unmarried, (2) impeachment evidence consisting of testimony by the victim's aunt that defendant's former secretary, Carol Simpson, told her that Simpson was surprised that the victim would marry defendant because defendant had killed Carolyn Amos, and (3) evidence regarding defendant's numerous false representations about his military record, including his contention that he served in Vietnam. We reject defendant's argument as wholly without merit. The trial court, over defendant's objections, admitted the evidence.1 A prosecutor does not commit misconduct by introducing evidence permitted by the trial court. People v Curry, 175 Mich App 33, 44; 437 NW2d 310 (1989). Further, the prosecutor properly limited her argument regarding the impeachment evidence to the subject of witness credibility. People v Howard, 226 Mich App 528, 548; 575 NW2d 16 (1997); People v Lee, 212 Mich App 228, 255; 537 NW2d 233 (1995). B. Questioning of Witnesses Defendant next contends that the prosecutor improperly questioned him about (1) dating his second wife while married to his first wife, (2) his sexual relationship with a woman before he married the victim, (3) whether widowers "get special attention from society." We disagree. We are precluded from reviewing defendant's first assertion of improper questioning because he did not object below. People v Bass, 223 Mich App 241, 246; 565 NW2d 897 (1997), vacated in part on other grounds 457 Mich 865 (1998). A curative instruction could have eliminated the prejudicial effect of the question in this case and no miscarriage of justice would result from our failure to review. Id. Further, we conclude that the latter two questions did not deny defendant a fair trial because the trial court's instruction that the attorneys' questions and remarks were not evidence and admonishment that the jury not convict defendant because of his infidelity dispelled any prejudice. See Bahoda, supra at 281; People v McElhaney, 215 Mich App 269, 284; 545 NW2d 18 (1996). C. Remarks We reject defendant's argument that the prosecutor improperly argued facts not in evidence during closing argument when she suggested that defendant smothered his second wife, Carolyn Amos, but managed to avoid prosecution in Indiana. This Court considers the prosecutor's remarks during closing argument as a whole in light of defense arguments and the relationship they bear to the evidence admitted at trial. People v Lawton, 196 Mich App 341, 353; 492 NW2d 810 (1992); People v Johnson, 187 Mich App 621, 625; 468 NW2d 307 (1991). We examine the pertinent portion of the record and evaluate the prosecutor's remarks in context in order to determine whether the defendant was denied a fair and impartial trial. Legrone, supra at 82-83. Defendant correctly notes that neither the county coroner in Indiana nor the assistant Wayne County Medical Examiner could determine a cause of death for Carolyn Amos. Contrary to

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defendant's assertion, however, evidence existed to support the prosecutor's theory that Carolyn Amos was smothered. Dr. Calvin Steussy, the Indiana pathologist who performed the autopsy, found "intense pulmonary congestion with slight edema bilateral" and "passive congestion, brain, liver and kidney." He stated his conclusion as follows: [I]ntense pulmonary congestion, slight pulmonary edema, and frothing at the mouth suggest terminal blockage of the respiratory system. However, the signs of asphyxia and (sic) minimal and inconclusive . . . The pulmonary congestion and slight edema indicates that the patient did not die of sudden cardiac arrest as there was a functioning pump terminally to produce these changes. The prosecutor properly argued a permissible inference arising from this evidence. Lee, supra at 255. Defendant further argues that the prosecutor improperly remarked in response to his statement that one does not look at a clock after finding his spouse dead that "[t]hat's an experience you've already had once." Upon defendant's objection, the trial court directed that the prosecutor rephrase the final remark as a question. We conclude that the prosecutor's remark, even if improper, did not deny defendant a fair trial because the trial court instructed the jury that the attorneys' questions and remarks were not evidence. See McElhaney, supra at 284. Defendant additionally argues in propria persona that numerous other allegedly improper remarks during the prosecutor's opening statement, questioning of witnesses, and closing argument denied him a fair trial. Because defendant failed to preserve these issues by objecting below, we will review them only if the failure to do so would result in a miscarriage of justice or a curative instruction could not have eliminated the prejudicial effect of the improper remarks. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). Our failure to review would not result in a miscarriage of justice in this case because, even if improper, the remarks were unlikely to divert the jury's attention from the evidence and the trial court instructed the jury that the attorneys' questions and remarks were not evidence. McElhaney, supra at 284. D. Other Alleged Misconduct We reject defendant's argument that the prosecutor engaged in misconduct by urging the trial court to reconsider its decision to exclude evidence regarding the deaths of defendant's first wife and mother. In denying the prosecutor's request for relief regarding the trial court's pretrial order excluding the evidence, the Michigan Supreme Court explicitly encouraged the trial court to follow a "wait and see" approach to the evidence: As to the remaining evidentiary items, we deny relief at this time while encouraging the trial court to follow the flexible approach of People v VanderVliet, 444 Mich 52, 90-91; [508 NW2d 114] (1993), at the stage of rebuttal or on a motion to reopen after the conclusion of all proofs: The probative value of other acts evidence and its true potential for prejudice is often unclear until the proofs are actually presented. . . .

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The prosecutor should not be allowed to introduce other acts evidence only because it is technically relevant, nor should the defendant be allowed to interdict proofs that are highly probative of a truly contested issue. By waiting to determine the admissibility of other acts evidence . . . the trial court is able to forestall gamesmanship by the parties and insure the admission of evidence that possesses significant probative value. [People v Amos, 453 Mich 885; 552 NW2d 917 (1996).] The prosecutor clearly did not commit misconduct by moving to admit the evidence in accordance with our Supreme Court's directive. We next decline defendant's invitation to reconsider the prior panel's decision reversing the trial court's grant of a mistrial. Under the law of the case doctrine, an appellate court's determination of law will not be differently decided on a subsequent appeal in the same case if the facts remain materially the same. People v Kozyra, 219 Mich App 422, 433; 556 NW2d 512 (1996). We recognize that this Court need not apply the law of the case doctrine in criminal proceedings if it would create an injustice, People v Phillips (After Second Remand), 227 Mich App 28, 33; 575 NW2d 784 (1997), but conclude that no such injustice will result from our adherence to the prior panel's decision in this case.2 Kozyra, supra at 433. Defendant next argues that the prosecutor improperly intimidated witness Scott Robinett, a former Marion (Indiana) County Sheriff's Department detective who testified regarding Ruth Loftus' credibility. We conclude that the alleged misconduct, even if substantiated, did not deprive defendant of a fair trial because the witness did not change his testimony. Robinett testified before the jury that, during a break in the trial, the prosecutor and officer-in-charge of the case attempted to intimidate him into changing his testimony regarding Loftus' lack of credibility. The jury properly weighed this evidence in evaluating the credibility of the witness. People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998). Finally, we decline to review defendant's remaining argument that the prosecutor's remarks reported in the media tainted the jury pool. Although the media covered this case, defendant has failed to develop an adequate record to facilitate our review of whether the pretrial publicity was so prejudicial that we will presume that the entire community was both exposed to the publicity and prejudiced by it. See People v Jendrzejewski, 455 Mich 495, 501; 566 NW2d 530 (1997). Moreover, we note that defense counsel stated that he was satisfied with the jury. III. Evidentiary Issues A. Evidence Regarding the Death of Carolyn Amos Defendant first argues that the trial court abused its discretion in admitting evidence regarding the death of defendant's second wife, Carolyn Amos, under MRE 404b. We disagree. This Court reviews the trial court's evidentiary decisions for an abuse of discretion. Howard, supra at 551.

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Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. People v Ullah, 216 Mich App 669, 674; 550 NW2d 568 (1996). The evidence is, however, admissible under MRE 404(b) for other purposes, such as to show motive, intent, or absence of mistake or accident. Id. MRE 404(b) is a rule of inclusion that "permits the admission of evidence on any ground that does not risk impermissible inference of character to conduct." People v Starr, 457 Mich 490, 496; 577 NW2d 673 (1998). The Michigan Supreme Court has established a four-prong standard for admission of other acts evidence. VanderVliet, supra, amended 445 Mich 1205 (1994). The trial court must first discern whether the prosecutor is offering the evidence under something other than a character to conduct theory. Id. at 74. If the prosecutor offers the evidence for another purpose, the trial court must determine whether the evidence is relevant, i.e. whether the evidence is logically relevant to an issue or fact of consequence at trial and has a tendency to make that fact more or less probable than it would be without the evidence. Starr, supra at 497-498; MRE 401-402. If the evidence is relevant, the trial court must employ a balancing process under MRE 403 to determine whether the danger of unfair prejudice substantially outweighs the probative value of the evidence. Starr, supra at 498; VanderVliet, supra at 74-75. If the trial court admits the evidence, the court may, upon request, give a limiting instruction. Id. at 75. In this case, the trial court admitted the evidence regarding Carolyn Amos' death, reasoning as follows: In this case, I do believe that Mr. Amos puts the issue of accident in issue by telling various people, Mr. Crabtree I think it was, as well as the security personnel, and the person who came to the suite with Mr. Crabtree, I think his name is Portia (sic), and also his statements to police that, basically, he and his wife, Roberta Amos, were doing drugs and that she overdosed, and that Mr. Amos later fell asleep. When he woke up, that she was dead. He appears to be fashioning a defense of accident or mistake and his intent is in issue. In Vandervliet at page seventy, it states that 404 (b) does not require a high level of similarity between the other acts and the act charged. It does require on page eighty of that case that the charged crime in the other act must be of the same general category. That is the language from Vandervliet. And with regard to the death of Carolyn Amos, it does appear to be very consisten (sic) or of the same general category of the death regarding Roberta Amos. The similarities are striking in that it is Mr. Amos who was the last one to see both of them alive. They are (sic) both, Carolyn Amos, as well as Roberta Amos, is (sic) in relatively good health prior to their death. It's this defendant who finds the body of both. There is delay and delay in calling for help to get medical assistance for them. When medical help does arrive the body is cold in both cases. And with regard to Carolyn Amos, he tells people that there was an electrocution, that there was a hair dryer involved. And that even in the Carolyn Amos

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case, or the Carolyn Amos death, he is also fashioning a theory or defense of accident with regard to the electrocution, and that defense or theory or explanation, I should say, appeared to be inconsistent with the physical evidence which was found there at the scene, and the dryer was ruled out as playing a part in that death. Also, there's a similarity in that the scene looking at the evidence could arguably (sic) been tampered with. There was a wine glass in the Carolyn Amos case which defendant said he took to her. By the time the police arrived, that wine glass had been washed, rinsed, and was in the dishwasher. With the guarded case of Roberta Amos, this defendant, according to the testimony at the exam, gave Mr. Portia (sic) a coat, with a syringe, and there was a rag which had a smell coming from it which was similar to the smell in the case of Carolyn Amos. Granted, there are differences between the two. The Carolyn Amos case was not a death regarding poison by way of cocaine. It does not appear to be the same financial motive in this case, allegedly, as it was in the Roberta or in the Carolyn Amos case as well. But I do think they are the same general category, and that would meet the requirements under Vandervliet, number one, thats (sic) offered for a proper purpose which would show absence of

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