COURT OF APPEALS OF MICHIGAN
Arnetta Grable, Personal Representative of
the
Estate of Lamar Grable, Deceased,
Plaintiff-Appellee,
v.
Eugene Brown,
Defendant-Appellant.
No. 256215
2005 Mich. App. Lexis 3173
December 20, 2005, Decided
This is an unpublished
opinion. in accordance with Michigan Court of Appeals Rules, unpublished
opinions are not precedentially binding under the rules of stare decisis.
Appeal
denied by Grable v. Brown, 2006 Mich. Lexis 1182 (Mich., June 7, 2006)
Gage, P.J.,
and Hoekstra and Murray, JJ. Hoekstra, J. (concurring).
Per Curiam.
Defendant
appeals as of right from a judgment following a jury verdict in favor of
plaintiff in this wrongful death action. Defendant also raises claims related
to an order denying his motions for judgment notwithstanding the verdict (JNOV)
and remittitur and granting in part and denying in part plaintiff’s motion for
costs, attorney fees and interest. We affirm.
I.
Background
This action
arose out of the shooting and death of plaintiff’s decedent, Lamar Grable, by
defendant, a Detroit police officer. Grable’s mother, Arnetta Grable, as
personal representative of Grable’s estate, instituted a wrongful death action
against defendant. After voluntarily dismissing her original complaint,
plaintiff filed another complaint for wrongful death on March 2, 1999.
Plaintiff alleged counts of gross negligence and assault and battery. A jury
trial followed. Defendant claimed that Grable shot at him and that he returned
fire in self-defense. Plaintiff asserted that Grable did not pose a threat to
defendant’s life and was misidentified as the man officers saw holding a gun.
After hearing witness and expert testimony, the jury returned a verdict on
August 6, 2003. The jury found in favor of plaintiff on both the gross
negligence and assault and battery claims. The jury awarded compensation to Grable in the amount of
$ 4 million. Accordingly, on October 10, 2003, the trial court entered judgment
in favor of plaintiff for that amount. On May 21, 2004, the trial court
denied defendant’s post-trial motions for JNOV and remittitur and granted in
part and denied in part plaintiff’s post-trial motion for costs, attorney fees
and interest.
II. Analysis
A. JNOV
On appeal,
defendant contends that he was entitled to JNOV on the claims of gross
negligence and assault and battery because no reasonable jury could have found
against defendant based on the facts presented at trial. We disagree.
We review de
novo a trial court’s decision to grant or deny a motion for JNOV. Craig v
Oakwood Hosp, 471 Mich. 67, 77; 684 N.W.2d 296 (2004). The evidence and all
legitimate inferences from the evidence must be examined in the light most
favorable to the nonmoving party. Id. The jury verdict must stand where reasonable
jurors could honestly have reached different conclusions on the matter. Zantel
Marketing Agency v Whitesell Corp, 265 Mich. App. 559, 568; 696 N.W.2d 735
(2005). The moving party is entitled to JNOV only if there was insufficient
evidence presented to create a claim as a matter of law. Craig, supra at 77.
Pursuant to
MCL 600.2922, a personal representative of an estate of a deceased person is
entitled to bring a cause of action where the death was caused by the “wrongful
act, neglect, or fault of another.” Here, plaintiff alleged a count of gross
negligence and a count of assault and battery against defendant for the
shooting and death of Grable. The jury found that defendant was grossly
negligent and his gross negligence caused Grable’s death and that defendant
committed an assault and battery.
i. Gross
Negligence
Regarding
the gross negligence claim, the governmental tort liability act, MCL 691.1401
et seq., provides a governmental employee with immunity from tort liability if
the employee’s conduct “does not amount to gross negligence that is the
proximate cause of the injury or damage.” MCL 691.1407(2)(c). “As used in this
subdivision, ‘gross negligence’ means conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.” Beaudrie v
Henderson, 465 Mich. 124, 138; 631 N.W.2d 308 (2001), quoting MCL
691.1407(2)(c). However, this Court has rejected prior attempts to convert
claims involving elements of intentional torts, including excessive force, into
claims of gross negligence. VanVorous v Burmeister, 262 Mich. App. 467,
483-484; 687 N.W.2d 132 (2004); Sudul v Hamtramck, 221 Mich. App. 455, 458,
477; 562 N.W.2d 478 (1997).
In
VanVorous, for example, the plaintiff brought a count of gross negligence,
alleging that defendants “undertook the obligation to properly perform their
duties to ensure the safety of all parties during the chase and subsequent
attempted apprehension of Mr. VanVorous, “ and that they “breached the duty of
care they owed to Mr. VanVorous by utilizing excessive force to subdue or
control Mr. VanVorous and failing to follow proper police procedure in
apprehending him.” Id. at 483. This Court concluded that the plaintiff’s claim
of gross negligence was completely premised on her claim of excessive police
force, and therefore, the plaintiff did not state a claim for gross negligence
upon which relief could be granted. Id. at 483-484.
Here,
plaintiff’s complaint contained a count of gross negligence, alleging that
defendant shot Grable and that Grable fell to the ground after the initial
shooting, but defendant continued to shoot Grable at least seven more times,
including at least four gunshots from close range. Plaintiff contended that
“all of the Defendant’s actions were entirely unjustified and constituted an
excessive use of force and abuse of power and murder.” At trial, plaintiff
argued that defendant was grossly negligent for failing to contact dispatch for
assistance, chasing after a suspect down a dark alley and shooting at the wrong
person. However, plaintiff also argued that defendant used excessive force
because he should not have shot Grable after his arm was disabled from the shot
to the back of his arm and after he fell to the ground.
As in
VanVorous, plaintiff’s claim of gross negligence is premised on the intentional
tort claim. Although plaintiff stated that the case involved two separate
claims, plaintiff’s arguments blurred the lines pertaining to gross negligence
with those pertaining to assault and battery. Because this Court has rejected
attempts to couch claims of intentional torts as claims of gross negligence, we
hold that the trial court erroneously failed to vacate that portion of the
jury’s verdict finding that defendant acted with gross negligence.
ii. Assault
and Battery
Regarding
the assault and battery claim, “an assault is defined as any intentional
unlawful offer of corporal injury to another person by force, or force
unlawfully directed toward the person of another, under circumstances which
create a well-founded apprehension of imminent contact, coupled with the
apparent present ability to accomplish the contact.” Espinoza v Thomas, 189
Mich. App. 110, 119; 472 N.W.2d 16 (1991). A battery is defined as “the wilful
and harmful or offensive touching of another person which results from an act
intended to cause such a contact.” Id. A government employee is not immune from
liability for intentional torts, including the tort of assault and battery.
Sudul, supra at 458. However, as explained above, a governmental officer’s
actions that would normally constitute intentional torts are shielded from
liability if those actions are justified because they were objectively
reasonable under the circumstances. VanVorous, supra at 483, citing Brewer v
Perrin, 132 Mich. App. 520, 528; 349 N.W.2d 198 (1984).
In Michigan,
a police officer may use reasonable force to effectuate a lawful arrest where
the suspect resists arrest. Tope v Howe, 179 Mich. App. 91, 106; 445 N.W.2d 452
(1989). An officer who uses excessive force may be held liable for assault and
battery. White v City of Vassar, 157 Mich. App. 282, 293; 403 N.W.2d 124
(1987). Moreover, if a police officer reasonably believes that he is in great
danger, the officer may use force that is reasonable in self-defense and is not
required to retreat when faced with a “display of force” by the suspect.
Alexander v Riccinto, 192 Mich. App. 65, 69; 481 N.W.2d 6 (1991). Thus, when
faced with a life threatening circumstance, “[a] peace officer may use deadly
force in defense of his own life, in defense of another, or in pursuit of a
fleeing felon.” Ealey v Detroit, 144 Mich. App. 324, 332; 375 N.W.2d 435 (1985)
(citation omitted).
“If
reasonable jurors could honestly have reached different conclusions, this Court
may not substitute its judgment for that of the jury.” Wiley v Henry Ford
Cottage Hosp, 257 Mich. App 488, 491; 668 N.W.2d 402 (2003). As the trial court
determined, a reasonable juror could have found that defendant did not act in
self-defense. At trial the parties presented conflicting evidence regarding
whether defendant’s actions were justified. Although defendant and Yost
testified that Grable shot at defendant and that defendant returned fire, there
was circumstantial evidence to support plaintiff’s theory that Grable did not
shoot at defendant because Grable never possessed a gun. Circumstantial
evidence to support or oppose a proposition is equal with direct evidence. Reed
v Breton, 264 Mich. App. 363, 375; 691 N.W.2d 779 (2004). Specifically, there
was evidence that, shortly before the chase and shooting, Grable attended a
Police Athletic League (PAL) party where he was searched for weapons and found
to possess none. There was no evidence that Grable obtained a weapon between
the time that he left the PAL party and the shooting occurred. There was also
no evidence of Grable’s fingerprints on the gun found next to his body.
Although
defendant contended that he was merely responding to Grable’s actions, there
was evidence to support plaintiff’s theory that defendant used an unreasonable
amount of force. There was evidence that, after the first and second rounds of
shooting, defendant again shot Grable as he lay on the ground. Defendant
testified that, after Grable fell to the ground, it appeared that Grable was raising
his gun as if to shoot at defendant. Defendant contended that he responded by
shooting at Grable two more times. However, on cross-examination, defendant
made the following admission in response to a question that plaintiff’s counsel
posed:
Q. Mr. Grable was on the ground over here and
you fire those four shots, you know now, into his chest, point blank range,
contact range, as he fell to the ground. Let me ask you this. Is it possible,
sir, that rather than Mr. Grable being erect, that he was instead already down
on the ground and you punitively, kneeling down on one knee, sir, pumping him
with those four rounds? Is that possible?
A. That’s possible.
Furthermore,
there were several inconsistencies between the officers’ trial testimony and
their prior statements and between their trial testimony and the physical
evidence that could have caused a reasonable juror to disbelieve the officers’
version of events. Regarding the inconsistencies with the officers’ prior
statements, Yost’s version of the events in her preliminary report, where she
recalled only one round of shooting, was contrary to her version at discovery
and trial, where she recalled two rounds of shooting between Grable and
defendant. Yost’s original wording regarding the incident changed from
defendant “tackled” Grable to “collided” with Grable and from Grable held what
she “believed to be a weapon” to Grable was “armed” when he ran from the
police. Defendant also had minor inconsistencies between his preliminary report
and trial testimony regarding his distance from Grable when Grable shot at him
and whether Grable “waited” for him behind the mound where the scuffle ensued.
There was
also testimony from expert witnesses of inconsistencies between the officers’
version of the events and the physical evidence. Most notably, plaintiff’s
expert, Dr. John G. Peters, testified that, evidence of stippling around one of
the holes in defendant’s shirt, and not around the other hole, indicated that
the barrel of the gun that shot defendant “moved some distance away” for the
shot that showed no stippling. This was contrary to defendant’s testimony that
he was shot when he and Grable were so close to each other that the barrel of
Grable’s gun was probably touching his clothing. In addition, Dr. Peters noted
that, in defendant’s preliminary report of the shooting and deposition, he
failed to account for the near-contact wound to the back of Grable’s left arm.
Dr. Peters testified that, if Grable had fired at defendant using his right
hand as defendant contended, there should not have been gunpowder on both of
Grable’s hands. Dr. Peters opined that the presence of gunpowder on both of
Grable’s hands indicated that he held his hands in a defensive position when he
was shot. Dr. Peters testified to inconsistencies between Yost’s testimony
regarding the manner in which the gun found near Grable’s body was fired. Dr.
Peters opined that these inconsistencies raised “a serious doubt” regarding the
number of shots fired or what happened to the weapon as it was being examined.
Dr. Peters found it odd that Yost’s version of the events seemed to become
clearer as time passed since one’s memory is generally fresher closer to the
event. Dr. Peters opined that defendant’s and Yost’s behavior could be consistent
with peer secrecy and deviant police behavior.
Another of
plaintiff’s experts, Dr. Werner Spitz, testified that, contrary to defendant’s
testimony that Grable fell to the ground after defendant shot him at close
range three or four times, Grable would likely have fallen backward after the
first infliction of one of the near-contact wounds to Grable’s chest. Dr. Spitz
also testified that, contrary to defendant’s testimony that Grable was lying on
his right side after he fell to the ground and when defendant shot him, the
three wounds to Grable’s chest were inflicted while Grable was on his back
because the wounds had abrasions that can only occur where there is pressure
against the skin when the bullet passes through. Dr. Spitz opined that the
three wounds to Grable’s chest were “inflicted deliberately in a short period
of time or in a rapid or fairly rapid succession” to either disable or kill the
victim.
Disputed
factual issues and the assessment of the credibility of witnesses are within
the province of the jury’s determination. Wiley, supra at 491; Powell v St John
Hosp, 241 Mich. App. 64, 72; 614 N.W.2d 666 (2000). Given the conflicting
evidence and the above-mentioned inconsistencies, there were material factual
issues for the jury. When viewing the evidence in a light most favorable to
plaintiff and allowing plaintiff all reasonable inferences, reasonable minds
could differ on whether defendant’s actions in shooting Grable were justified.
Therefore, we conclude that the trial court properly denied defendant’s motion
for JNOV with regard to the claim of assault and battery.
Despite
reversal of one of the two theories of recovery, we hold that defendant’s
contention of error regarding the finding of gross negligence is rendered moot
by the jury’s finding that defendant’s actions constituted the intentional tort
of assault and battery. The court rules allow both for a general verdict and
for special verdicts. MCR 2.512 and 2.514. “‘The special verdict enables errors
to be localized so that the sound portions of the verdict may be saved and only
the unsound portions be subject to redetermination through a new trial.’“
Sudul, supra at 459, quoting Sahr v Bierd, 354 Mich. 353, 365; 92 N.W.2d 467
(1958), quoting Sunderland, Verdicts, General and Special, 29 Yal LJ 253, 259
(1920).
In the
instant case, the jury answered the following questions on the special verdict
form:
Question number one: Did
Eugene Brown commit an assault and battery upon Lamar Grable causing his death?
Our answer is yes.
Question number two: Was
Eugene Brown grossly negligent and, if so, did that gross negligence cause
Lamar Grable’s death? Our answer is yes.
Question number three:
What is the total amount of damages to compensate the Estate of Lamar Grable?
The jury decided upon an amount of four million dollars.
Furthermore,
the trial court instructed the jury regarding the separate elements for gross
negligence and proximate cause and for assault and battery. Therefore, the
special verdict concerning assault and battery was unaffected by the error
relating to the gross negligence claim where there was sufficient evidence for
a jury question regarding assault and battery and the jury specifically found
that defendant committed assault and battery against Grable.
B.
Instructional Error
Next,
defendant argues that he is entitled to a new trial because the trial court
erred in instructing the jury that it only needed to find that defendant’s
grossly negligent conduct was “a” proximate cause, not “the” proximate cause,
of Grable’s injuries and death and instructing the jury on false arrest when
that theory was neither pleaded nor supported by the evidence. We disagree.
We review de
novo claims of instructional error. Case v Consumers Power Co, 463 Mich 1, 6;
615 N.W.2d 17 (2000). “The instructions should include all the elements of the
plaintiff’s claims and should not omit material issues, defenses, or theories
if the evidence supports them.” Id. Reversal is required where instructional
error “resulted in such unfair prejudice to the complaining party that the
failure to vacate the jury verdict would be inconsistent with substantial
justice.” Cox v Bd of Hosp Mgrs, 467 Mich. 1, 8; 651 N.W.2d 356 (2002)
(citations omitted).
Regarding
the proximate cause instruction, defense counsel stated that he had no
objection to the proximate cause instruction as revised by the trial court and
that he waived all additional arguments concerning the agreed upon
instructions. A party waives its right to appeal an issue when the party
specifically assents to the action or decision by the trial court. People v
Carter, 462 Mich. 206, 220; 612 N.W.2d 144 (2000); Kohn v Ford Motor Co, 151
Mich. App. 300, 310; 390 N.W.2d 709 (1986). Because defense counsel agreed to
waive further argument of the agreed upon instructions, we hold that defendant
waived this issue for appeal. See Carter, supra at 220; Kohn, supra at 310.
Nonetheless, any error regarding the proximate cause instruction does not
require reversal because a finding of proximate cause relates only to the gross
negligence claim, and we previously concluded that the special verdict finding
assault and battery remains unaffected by error concerning the gross negligence
claim.
Regarding
the false arrest instruction, defendant argues that the trial court erred in
instructing the jury on CJI 115.08. When a party so requests, a standard jury
instruction must be given if it is applicable and accurately states the
applicable law. MCR 2.516(D)(2); Pontiac School Dist v Miller, Canfield,
Paddock & Stone, 221 Mich. App. 602, 622; 563 N.W.2d 693 (1997). “The
determination whether an instruction is accurate and applicable to a case rests
within the sound discretion of the trial court.” Stevens v Veenstra, 226 Mich.
App. 441, 443; 573 NW2d 341 (1997). The trial court need not give a requested
instruction if the instruction would “simply add nothing to an otherwise
balanced and fair jury charge nor enhance the ability of the jurors to decide
the case intelligently, fairly, and impartially. “ Johnson v Corbet, 423 Mich.
304, 327; 377 N.W.2d 713 (1985). Where jury instructions are erroneous or
inadequate, reversal is required if failure to reverse would be inconsistent
with substantial justice. MCR 2.613(A); Willoughby v Lehrbass, 150 Mich. App. 319,
336; 388 N.W.2d 688 (1986).
As given by
the trial court in the instant case, CJI 115.08 provides:
A citizen has the right to
resist an false arrest. However, the amount of force a citizen may use to
resist an false arrest must be reasonable under the circumstances.
As given by
the trial court, CJI 115.09 provides:
If a person has knowledge
or by the exercise of reasonable care should have knowledge that he or she is
being lawfully arrested by a law enforcement officer, it is the duty of that
person to refrain from resisting the arrest.
An arresting officer may
use such force as is reasonably necessary to effect a lawful arrest. Here, an
officer who uses more force than is necessary - - I’m sorry. An officer who
uses more force than is reasonably necessary to effect a lawful arrest commits
a battery upon the person arrested to the extent that the force used was
excessive.
Before jury
instructions were given, defense counsel requested CJI 115.09, and plaintiff’s
counsel responded by requesting CJI 115.08. The trial court decided to read
both instructions.
Contrary to
defendant’s contention, the instruction did not place false arrest at issue.
Neither CJI 115.08 nor CJI 115.09 contains the definition or defenses for a
false arrest claim. See CJI 116.01-116.21. During trial, plaintiff’s counsel
admitted that false arrest was not at issue. At issue was the claim of assault
and battery and whether defendant’s conduct of shooting at Grable was
justified. CJI 115.08 is related to CJI 115.09 and both instructions are
defenses to an assault and battery claim regarding an officer’s use of force to
arrest a suspect. See People v Krum, 374 Mich. 356, 361; 132 N.W.2d 69 (1965)
(holding that an individual may use reasonable force as is necessary to resist
an illegal arrest); Delude v Raasakka, 391 Mich. 296, 302; 215 NW2d 685 (1974)
(holding that an officer has the right to protect himself and others during an
arrest and may use reasonable force to effect an arrest). The instructions are
applicable to the question regarding the proper amount of force to be used to
effect an arrest. In addition, the trial court comprehensively instructed the
jury on the elements of assault and battery and on the defenses to that claim.
Because defendant’s rights were sufficiently protected, we conclude that the
trial court did not abuse its discretion in giving CJI 115.08.
C. Conduct
of Counsel
Finally,
defendant claims he is entitled to a new trial because plaintiff’s counsel
engaged in improper conduct at trial. We disagree.
“When reviewing claims of improper conduct by a party’s lawyer,
this Court must first determine whether the lawyer’s action was error and, if
so, whether the error requires reversal.” Ellsworth v Hotel Corp of America,
236 Mich. App. 185, 191; 600 N.W.2d 129 (1999). “A lawyer’s comments will
usually not be cause for reversal unless they indicate a deliberate course of
conduct aimed at preventing a fair and impartial trial or where counsel’s
remarks were such as to deflect the jury’s attention from the issues involved
and had a controlling influence on the verdict.” Id. at 191-192. Even if not
preserved, we will review the matter to determine whether counsel’s remarks
“‘may have caused the result or played too large a part and may have denied a
party a fair trial.’“ Wiley, supra at 501, quoting Reetz v Kinsman Marine
Transit Co, 416 Mich. 97, 103; 330 N.W.2d 638 (1982).
Defendant
argues that he was denied a fair trial based on misconduct by plaintiff’s
counsel on five alleged grounds: 1) injecting race into the proceedings, 2)
portraying police officers as a group as untruthful and protective of each
other, 3) urging the jury to discount the truthfulness of Yost’s testimony
because she invoked her fifth amendment privilege against self-incrimination,
4) ignoring a pretrial stipulation of the parties by introducing evidence that
Grable was a law-abiding individual who had great respect for police, and 5)
using inflammatory language to influence the jury. First, defendant argues that
plaintiff’s counsel improperly injected race into the proceedings during voir
dire. Because defense counsel objected to plaintiff’s questions to the jury
regarding racial prejudice but did not request further relief in the form of a
curative instruction or a mistrial, this issue has not been preserved for
appeal. See Wiley, supra at 501. Nevertheless, review is proper to determine
whether counsel’s remarks may have caused the result or played too large a role
so as to deny defendant a fair trial. Id., citing Reetz, supra at 103.
During voir
dire, plaintiff’s counsel questioned potential jurors regarding whether they
believed that, “if a police officer decides to stop and detain a young
African-American man, that he obviously must be doing something wrong just because
he stopped and detained and investigated?” Plaintiff’s counsel also inquired of
the potential jurors whether they associated with individuals who are from
ethnic groups other than their own. Plaintiff’s counsel inquired how the jurors
would value Grable’s life compared to “a young man who might live in Livonia or
Dearborn Heights or even Wyandotte” or a “Caucasian young man.”
A fair trial
“demands that the jury should be free from bias and prejudice in all cases, and
that they enter upon the trial of the cases with the single desire and purpose
of doing equal and exact justice between the parties . . . .” Poet v Traverse
City Osteopathic Hosp, 433 Mich. 228, 235; 445 N.W.2d 115 (1989), quoting
Theisen v Johns, 72 Mich. 285, 292; 40 NW 727 (1888), overruled in part on
other grounds, Hink v Sherman, 164 Mich. 352; 129 NW 732 (1911). Therefore, “it
is a general principle that remarks calculated to prejudice a jury are
improper.” In re Widening of Woodward Avenue, 297 Mich. 235, 246; 297 NW 468
(1941). “‘Appellate courts should not interfere, unless the errors complained
of are such as may fairly be said to have had a controlling influence in
securing the result.’“ Id., quoting In Fort-Street Union Depot Co v Jones, 83
Mich. 415; 47 NW 349 (1890).
In the
instant case, the record does not show that the comments and questions at issue
were intended to prejudice the jury or that they had a substantial influence on
the results. Instead, the prospective jurors were asked to respond to questions
about whether they held certain racial biases. Such questions relating to juror
biases are typically asked in voir dire. Therefore, we conclude that the
comments and questions of plaintiff’s counsel regarding racial prejudice did
not result or play too large a role so as to deny defendant a fair trial.
Second,
defendant argues that plaintiff’s counsel improperly portrayed police officers
as a group as untruthful and protective of each other. Defendant contends that
this was error because “no special weight should be given against the
credibility of a police officer merely because he is a police officer.”
Defendant neither cites to any portion of the record nor to any authority to
support this particular assertion. “An appellant may not merely announce its
position or assert an error and leave it to this Court to discover and
rationalize the basis for its claims, unravel or elaborate its argument, or
search for authority for its position.” Wiley, supra at 499, citing Wilson v
Taylor, 457 Mich. 232, 243; 577 N.W.2d 100 (1998). Nevertheless, we note that,
because witness credibility was at issue, plaintiff’s counsel was permitted to
imply that adverse witnesses, including police officers, were fabricating their
testimony. See Reetz, supra at 109.
Third,
defendant argues that plaintiff’s counsel erroneously encouraged the jury to
discount the truthfulness of Yost’s testimony because she invoked her Fifth
Amendment privilege against self-incrimination. Because defense counsel
objected to these comments and moved for a mistrial, this issue has been
preserved for appeal. See Wiley, supra at 501. However, defendant fails to cite
authority to support its contention that the comments at issue are improper and
require reversal. Again, this Court has refused to search for authority to
support an appellant’s position. Id. at 499, citing Wilson, supra at 243.
Nevertheless, we note that it was not error for counsel to question Yost
regarding her assertion of the privilege and to comment regarding the negative
inference of such an assertion. When an adverse inference is permitted against
a party to a civil action, it necessarily follows that such an inference is
also permitted against a witness where, as here, it is relevant to the
credibility of the witness. See Phillips v Deihm, 213 Mich. App. 389, 400; 541
N.W.2d 566 (1995); Powell, supra at 72.
Fourth,
defendant argues that plaintiff’s counsel erred in ignoring a pretrial
stipulation of the parties by introducing evidence that Grable was a
law-abiding individual who had great respect for the police. Defendant failed
to object to the actions of plaintiff’s counsel in this regard; however, review
is proper to determine whether counsel’s remarks may have caused the result or
played too large a role so as to deny defendant a fair trial. Wiley, supra at
501, citing Reetz, supra at 103.
Before the
trial commenced, the parties agreed to the following:
If the Plaintiff and
Plaintiff’s witnesses do not call, do not present evidence of Lamar Grable’s
character for peacefulness or law abidedness as articulated in the Michigan
Rules of Evidence, then evidence of any arrest or existence of an arrest
warrant will not be offered by the Defense.
However, the
parties also agreed that plaintiff’s counsel was allowed some exceptions,
including “to present evidence that Mr. Grable grew up with a great respect for
the Police . . . .” On appeal, defense counsel cites to the testimony of
Grable’s mother, Arnetta Grable, in which she told the jury that she had family
members who were police officers, that Grable knew and was close to these
officers, and that Grable “had a good understanding of law enforcement and what
their job was. He was a respectful young man and he respected the Police
Department. He respected those in Law Enforcement.” Given the exception to
which the parties agreed before trial, we conclude that these comments were not
contrary to the terms of the agreement. Therefore, there was no error requiring
reversal.
Fifth,
defendant argues that plaintiff’s counsel used inflammatory language to
influence the jury. Defendant contends that plaintiff’s counsel erroneously
referred to defendant as a murderer and to his conduct as an execution,
asserted that defendant was a deviant cop and should be indicted, and compared
the instant case to two movies about rogue police officers. Defense counsel
preserved part of this issue by objecting to the references to defendant as a
murderer and to defendant’s conduct as an execution and moving for a mistrial.
See Wiley, supra at 501. Therefore, we must determine whether counsel’s actions
constitute error and, if so, whether this error requires reversal. Ellsworth,
supra at 191.
Before the
trial commenced, the parties agreed that plaintiff’s counsel was not to
reference or suggest “criminality” by defendant and not to “call [defendant] a
murderer or an assassin or suggest that he is a felon, committed a felonious
act.” In exchange for this promise, defense counsel agreed to make “no
reference to any Governmental decision not to prosecute [defendant].” Despite
this agreement, plaintiff’s counsel referred to the shooting of Grable as an
execution and suggested that defendant had “the motivation to not got to jail
for a murder.”
An
attorney’s remarks are cause for reversal where “they indicate a deliberate
course of conduct aimed at preventing a fair and impartial trial or where
counsel’s remarks were such as to deflect the jury’s attention from the issues
involved and had a controlling influence on the verdict.” Ellsworth, supra at
191-192. “The trial court has a duty to assure that all parties who come before
it receive a fair trial. Consequently, if counsel exceeds the proper bounds of
argument, a judge should interrupt to correct counsel and take any curative
measures which are necessary.” Reetz, supra at 103 n 9. Plaintiff’s counsel
briefly mentioned these terms during closing argument. The record does not
indicate that the alleged misconduct of plaintiff’s counsel was egregious and
repetitive. See Id. at 107 n 20. Moreover, defense counsel also breached the
pretrial agreement by informing the jury of the outcome of the internal
investigation. The trial court correctly gave an instruction to disregard the
statements of plaintiff’s counsel referencing “murder and/or execution” and the
statements of defense counsel regarding the “finding by any investigative
body.” Accordingly, we conclude that any error caused by these comments was
alleviated by the curative instruction to the jury.
Defense
counsel failed to object to the comments of plaintiff’s counsel urging the jury
to “indict” defendant and comparing this case to two movies about rogue police
officers; however, review is proper to determine whether counsel’s remarks may
have caused the result or played too large a role so as to deny defendant a fair
trial. Wiley, supra at 501, citing Reetz, supra at 103. During closing
argument, plaintiff’s counsel encouraged the jury to “indict” defendant for his
conduct. Also during closing, plaintiff’s counsel compared the instant case to
the movies Training Day and Internal Affairs, which both have plots about
corrupt police officers. Specifically, plaintiff’s counsel stated, “Is this
life imitating art or is art imitating life? You’ve seen the movie Training
Day, you’ve sent he movie Internal Affairs. The stuff is possible. And don’t
believe for a minute that it’s not.” Each of these comments was mentioned only
once during closing argument. Therefore, the record does not indicate that the
alleged misconduct of plaintiff’s counsel was repetitive. See Reetz, supra at
107 n 20. Moreover, the trial court instructed the jury that “arguments,
statements, and remarks of the attorneys are not evidence and you should
disregard anything said by an attorney which is not supported by evidence or by
your own general knowledge and experience.” Generally, instruction to the jury
that the statements of counsel are not evidence is sufficient to cure any
prejudice resulting from any improper remarks of counsel. Tobin v Providence
Hosp, 244 Mich. App. 626, 641; 624 N.W.2d 548 (2001). Therefore, we conclude
that counsel’s conduct was either not improper, or it was harmless error and
did not amount to a controlling influence on the verdict.
Affirmed.
/s/ Hilda R. Gage
/s/ Christopher M. Murray
Hoekstra, J.
(concurring).
I concur
with and join in the majority opinion. I write separately, however, to explain
my reasons for concluding that defendant was not entitled to judgment not
withstanding the verdict (JNOV) on plaintiff’s claim of assault and battery.
As argued in
his brief on appeal and at oral arguments, defendant’s claim is grounded in the
assertion that plaintiff’s proofs on assault and battery were insufficient
because plaintiff’s evidence could not “persuade a reasonable jury that
[defendant’s] discharging of his weapon was not justified.” To support that
assertion, defendant maintained that “no factual explanation, other than that
offered by Brown, was established by any record evidence” and that any
alternative theories regarding what happened were speculative.
The reason
defendant’s argument fails, in my judgment, is that as instructed by the trial
court and is unchallenged on appeal, defendant, not plaintiff, had the burden
of proof regarding whether defendant was justified under the circumstances in
using deadly force. Plaintiff’s burden was to prove assault and battery, which
was conclusively established by defendant’s admission that he fired the shots
that killed Lamar Grable. In light of that admission, the focus of the trial
became the defense of justification for which defendant had the burden of
proof. Because defendant had the burden of proof, plaintiff had no obligation
to establish or even offer a defensible alternate explanation. Admittedly,
defendant presented through his own testimony and that of his partner that
evening, Vicki Yost, evidence that, if believed, would have proved
justification. Like any evidence, however, the credibility of defendant’s
evidence is subject to attack and ultimately may be rejected by the jury.
Detroit/Wayne Co Stadium Authority v Drinkwater, Taylor & Merrill, Inc, 267
Mich. App. 625, 644; 705 N.W.2d 549 (2005) (“the jury is the judge of the
credibility of witnesses and the truthfulness of their statements”). As
outlined in detail in the majority opinion, plaintiff presented a significant
attack on the credibility of defendant’s version of what transpired that
evening. In light of this credibility attack, I believe that reasonable jurors
could honestly have reached differing conclusions regarding whether defendant
established his claim of justification. Zantel Marketing Agency v Whitesell
Corp, 265 Mich App 559, 568; 696 N.W.2d 735 (2005). Consequently, defendant’s
claim of entitlement to JNOV fails.
/s/ Joel P. Hoekstra