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May v. City of Detroit6/12/2003
examination conducted by plaintiff's counsel did not amount to belittling the witness. Plaintiff's counsel was attempting to impeach testimony that supported defendant by cross-examining O'Brien, a defense witness, with a prior statement, which had tendency to make it less probable that the witness had a good view of the events. O'Brien was testifying to events that took place at the accident scene, and as to the investigation which were all key points to the credibility of defendant's version of the incident, and cross-examining a witness with a prior statement was not error in this situation.
Furthermore, the comments made by plaintiff's counsel did not indicate a deliberate course of conduct aimed at preventing a fair and impartial trial, did not deflect the jury's attention from the issues involved, and did not have a controlling influence on the verdict. Ellsworth, supra, 236 Mich App 191-192. Therefore, there was no error in the conduct of plaintiff's counsel in this regard.
Defendant also argues that plaintiff's counsel committed prejudicial misconduct by suggesting that the Detroit Police Department failed to contact decedent's family and failed to go to decedent's aid. On redirect examination of Tracy Shaw, decedent's sister, plaintiff's counsel asked "If I were to tell you that the City of Detroit in this lawsuit has spent thousands of hours fighting your family and not one hour investigating -." Defense counsel immediately objected, and it was sustained. On re-cross examination of Donna Hoban, plaintiff's counsel asked "Would you please explain to me why the person who hit her [decedent] didn't feel the same sense of obligation [to give help]?" The trial court immediately informed the witness that she did not have to answer the question. Plaintiff's counsel then asked "did you feel that excused him from at least seeing if there was something he could do." Once again the trial court directed the witness that she did not have to answer the question. Because plaintiff did not request a specific instruction or a mistrial on these points of alleged error, this issue was not preserved for appeal. Reetz, supra, 416 Mich 100-102. However, under MRE 103(d), this Court may take notice of plain errors if they affect a party's substantial rights. Kubisz, supra, 236 Mich App 637.
These comments are arguably relevant and an attempt to influence the jury to believe plaintiff's witnesses. The comments are also arguably deliberate and inflammatory. In particular, the first comment regarding defendant spending money defending the lawsuit, but not investigating the accident was an inflammatory comment. There was conflicting testimony regarding the Detroit Police Department investigation. Where there is conflicting testimony, counsel may try to persuade the jury to believe counsel's witness and disbelieve the opposing counsel's witness. Kubisz, supra, 236 Mich App 641. Here, the comments were not proper, but the trial court immediately stopped plaintiff. The remarks noted by defendant did not have the effect of denying it a fair and impartial trial. Reetz, supra, 416 Mich 102-103. Even though the comments may have been erroneous any error was cured by the trial court's immediately stopping plaintiff's counsel and twice instructing the jury that comments or remarks by counsel were not to be considered evidence. Reetz, supra, 416 Mich 106.
On cross-examination of Sergeant Turner, plaintiff's counsel began asking questions regarding whose responsibility it was to contact the victim's family. This questioning was not objected to by defendant, and thus, is reviewed for plain error. Kubisz, supra, 236 Mich App 637. There was evidence of some improprieties in the investigation by the Det
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