As defendant correctly discusses, generally, prosecutors are prohibited from asking jurors to place themselves in the position of the victim. People v. Cooper, 236 Mich.App 643, 653; 601 NW2d 409 (1999); People v. Leverette, 112 Mich.App 142, 151; 315 NW2d 876 (1982), overruled on other grounds by People v. Wakeford, 418 Mich. 95, 110-113 (1983). Although this statement, on its face, is prohibited, when viewed in context the prosecutor's argument was proper.
5 Am.Jur.2d, Appeal and Error § 953 p. 380 (1962); see, e.g., State v. Theriault, 182 Conn. 366, 374, 438 A.2d 432, 440 (1980) ("In a proper case where the error relates only to separable issues covered by the judgment, and the issues are not so interwoven that justice demands a new trial of the entire case, the case may be reversed as to those separable issues only."). See also People v. Leverette, 112 Mich. App. 142, 315 N.W.2d 876 (1982), which held that although a related count may not be tainted by error, retrial of a reversed count may require vacation of the valid count if the jury is given only a fractional version of the criminal episode. The Michigan court stated: "On the facts of this case, the jury is unlikely to want to acquit defendant entirely.
Nor does this approach allow the prosecutor to multiply the number of armed robberies by charging a separate offense for each item of property taken from a single person. Cf. People v Leverette, 112 Mich. App. 142, 148; 315 N.W.2d 876 (1982). If the first victim's cash register in this case contained ten $100 bills, the appropriate charge is but one armed robbery arising out of that single assault.
"The fact that the prior confrontation occurred during the preliminary examination, as opposed to a pretrial lineup or showup, does not necessarily mean that it cannot be considered unduly suggestive." People v Leverette, 112 Mich App 142, 154; 315 NW2d 876 (1982); see also People v Colon, 233 Mich App 295, 304; 591 NW2d 692 (1998). If a witness is exposed to an impermissibly suggestive pretrial lineup or showup, his in-court identification of the defendant will not be allowed unless the prosecutor shows by clear and convincing evidence that the in-court identification would be sufficiently independent to purge the taint of the illegal identification.
As defendant correctly discusses, generally, prosecutors are prohibited from asking jurors to place themselves in the position of the victim. People v Cooper, 236 Mich App 643, 653; 601 NW2d 409 (1999); People v Leverette, 112 Mich App 142, 151; 315 NW2d 876 (1982), overruled on other grounds by People v Wakeford, 418 Mich 95, 110-113 (1983). Although this statement, on its face, is prohibited, when viewed in context the prosecutor's argument was proper.
Prosecutors "should not resort to civic duty arguments that appeal to the fears and prejudices of jury members." People v. Bahoda, 448 Mich. 261, 282; 531 N.W.2d 659 (1995); see also People v. Leverette, 112 Mich. App. 142, 151; 315 N.W.2d 876 (1982) (improper prosecutorial argument "injected into the case the broader issue of crime"). While this may not have been the prosecutor's intent, the statement at issue may have suggested to the jury that sending a message of disapproval of gun-related violence in Detroit was a factor favoring conviction.
The fact that the prior confrontation occurred during the preliminary examination, as opposed to a pretrial lineup or showup, does not necessarily mean that it cannot be considered unduly suggestive. People v. Leverette, 112 Mich. App. 142, 154; 315 N.W.2d 876 (1982). When examining the totality of the circumstances, relevant factors include: the opportunity for the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of a prior description, the witness' level of certainty at the pretrial identification procedure, and the length of time between the crime and the confrontation.
Defendant urges this Court to resolve the double jeopardy issue under a factual-identity test. Admittedly, under the facts of this case, a jury would have to find defendant guilty of the lesser offense of UDAA in order to convict him of the greater offense of armed robbery. Under the test advocated by defendant, see People v Jankowski, 408 Mich. 79; 289 N.W.2d 674 (1980); People v Leverette, 112 Mich. App. 142; 315 N.W.2d 876 (1982), this would be enough for defendant to invoke the protection of the Double Jeopardy Clause. However, the factual double jeopardy test was rejected expressly by our Supreme Court in Wakeford, supra, and People v Robideaux, 419 Mich. 458; 355 N.W.2d 592 (1984).
See People v Cowell, 44 Mich. App. 623, 627-628; 205 N.W.2d 600 (1973). [ People v Leverette, 112 Mich. App. 142, 152; 315 N.W.2d 876 (1982).] The harmless error standard applicable to this type of problem requires us to reverse if the error was so offensive to the maintenance of the judicial system that it can never be deemed harmless or if, in a trial free of the error, one juror might have voted to acquit.
It is an established rule that a prosecutor may not appeal to the jury to sympathize with the victim. People v Wise, supra; People v Leverette, 112 Mich. App. 142; 315 N.W.2d 876 (1982). Nor may he argue facts not in evidence.