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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MARTENEZ DOREZ WISE, Defendant-Appellant.

UNPUBLISHED October 25, 2007

No. 267897 Oakland Circuit Court LC No. 2005-203178-FC

Before: Meter, P.J., and Talbot and Owens, JJ. PER CURIAM. This case arises out of a violent incident involving defendant and Mark Mishler that took place in a hotel room. Mishler testified that defendant physically assaulted him, demanded his wallet, and stabbed him repeatedly in the face and neck with a woodworking instrument before fleeing Mishler's hotel room. Defendant maintained that Mishler made sexual advances toward him and then physically attacked him, effectively arguing that he retaliated against Mishler in self-defense. Following a trial by jury, defendant was convicted of assault with intent to commit murder, MCL 750.83, and armed robbery, MCL 750.529. The trial court sentenced him, as a fourth-offense habitual offender, MCL 769.12, to 40 to 70 years' imprisonment for the assault conviction and to life in prison for the robbery conviction. Defendant appeals as of right, and we affirm. Defendant argues that the prosecutor made unfairly prejudicial comments. Defendant did not object below to the challenged comments. Accordingly, we review this claim for plain error affecting defendant's substantial rights. People v Goodin, 257 Mich App 425, 431-432; 668 NW2d 392 (2003). "Reversal is warranted only when the error resulted in the conviction of an actually innocent defendant or when the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." Id. (internal citation and quotation marks omitted). This Court "reviews claims of prosecutorial misconduct case by case, examining the remarks in context, to determine whether the defendant received a fair and impartial trial." People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001). "[T]he prosecutor's comments must be read as a whole and evaluated in light of defense arguments and the relationship they bear to the evidence admitted at trial." People v Ackerman, 257 Mich App 434, 452; 669 NW2d 818 (2003). "A prosecutor may not inject unfounded and prejudicial innuendo into a trial." People v Dobek, 274 Mich App 58, 79; 732 NW2d 546 (2007). Additionally, a "prosecutor may not make a civic duty argument that appeals to the fears and prejudices of the jurors because this -1-


injects issues broader than the guilt or innocence of the accused into the trial." People v McGhee, 268 Mich App 600, 636; 709 NW2d 595 (2005). Moreover, "[a] prosecutor may not comment on a defendant's silence in the face of accusation . . . ." Id. at 634. However, "[a] defendant's constitutional right to remain silent is not violated by the prosecutor's comment on his silence before custodial interrogation and before Miranda[1] warnings have been given," so a prosecutor may "comment on silence that occurred before any police contact." Id. Also, a "`prosecutor may comment on a defendant's failure to report a crime when reporting the crime would have been natural if the defendant's version of the events were true.'" Id. at 634-635, quoting Goodin, supra at 432. In this case, defendant's version of the story included a claim that Mishler made an unwanted sexual advance by reaching between defendant's legs and trying to grab his genitalia. Defendant testified that he "smacked" Mishler's hands down and that Mishler punched him in the mouth, causing defendant to lose a tooth, and then grabbed defendant by the neck. Defendant indicated that while trying to get up by leveraging his arm on the table, he found that his "hand was on one of those carving tools," and he started swinging at Mishler. On cross-examination, the prosecutor essentially asked why defendant failed to seek medical treatment or report the alleged sexual assault. The prosecutor then expressed doubt with regard to defendant's answers, and defendant admitted that he was telling this story for the first time at trial. The prosecutor later argued that defendant's failure to report his claimed story had credibility implications. We find the prosecutor's line of questioning and statements regarding defendant's failure to report his story earlier to be proper. Defendant had plenty of information that would have enabled him to provide a substantive description of the incident. He knew the identity of Mishler, his alleged attacker

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