People v. Bahoda, Docket No. 98041

• Court: Supreme Court of Michigan
• Writing for the Court: RILEY; BRICKLEY; LEVIN; MICHAEL F. CAVANAGH; WEAVER
• Citation: 531 N.W.2d 659,448 Mich. 261
• Parties: , 63 USLW 2639 PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Saad BAHODA, Defendant-Appellee. Calendar
• Decision Date: 22 March 1995
• Docket Number: No. 8,Docket No. 98041

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531 N.W.2d 659 448 Mich. 261, 63 USLW 2639 PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Saad BAHODA, Defendant-Appellee. Docket No. 98041.
Calendar No. 8. Supreme Court of Michigan. Argued Nov. 2, 1994.
Decided March 22, 1995.

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[448 Mich. 262] Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., and Robert C. Williams, Asst. Pros. Atty., Pontiac, for the people.

Fried, Saperstein & Kriger, P.C. by Steven R. Sonenberg, Southfield, for defendant.

Paul P. Asker, Westland, for amicus curiae Chaldean-American Bar Ass'n.

Opinion

RILEY, Justice.

In the instant case, we are asked to review three claims of prosecutorial misconduct and one claim of improperly admitted evidence. With respect to the first claim of prosecutorial misconduct, we must decide whether use of and reference to the terms "Arab," "Arab connection," and "Iraqi" at a trial conducted during the Persian[448 Mich. 263] Gulf War deprived defendant of a fair trial. Reviewing the statements in context, including the other evidence admitted at trial, we conclude that the statements were innocuous, not intended to inflame the jury, and not of a degree that prejudiced defendant's right to a fair trial.

Second, we must decide whether the prosecutor improperly bolstered the credibility of his witnesses by eliciting their promises to give truthful testimony or face prosecution and life imprisonment. We conclude that this line of questioning was relevant and did not result in any improper bolstering of prosecution witnesses.

Third, we must decide whether the prosecutor appealed to the fears and prejudices of the jury by allegedly injecting a civic duty argument, expressing a personal opinion about defendant's guilt, and using denigrating terms to describe defendant. Again, we find no error requiring reversal. Reviewing the argument in its entirety, we are persuaded that it was based on evidence produced at trial, in part responding to argument by defense counsel, and accordingly did not appeal to the fears and prejudices of the jury. We also conclude that the claimed use of denigrating terms did not result in error requiring reversal.

Finally, turning to the alleged evidentiary error, we must determine whether the trial judge abused his discretion in admitting evidence that prosecution witness Salwan Asker was beaten while defendant was present in another room. We conclude that the trial judge did not abuse his discretion in admitting this evidence because it was relevant to Asker's motivation for cooperating with the government. In any event, admission of this evidence was harmless in light of other evidence demonstrating defendant's participation in this conspiracy. Thus, we are persuaded that defendant was [448 Mich. 264] not deprived of a fair trial. Accordingly, we reverse the decision of the Court of Appeals and reinstate defendant's conviction.

I

Defendant Saad Bahoda was indicted by a grand jury for conspiracy to possess with intent to deliver and to deliver in excess of 650 grams of cocaine. ¹ The indictment alleged a conspiracy beginning in January of 1985 and continuing until August, 1989. While nine individuals were named in the indictment, only defendant Bahoda and codefendant Basam Jarges were prosecuted in the instant trial.

The jury trial commenced on February 4, 1991, before Oakland Circuit Court Judge

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Richard D. Kuhn. On February 12, 1991, the jury found defendant guilty as charged. He was later sentenced to mandatory life in prison without parole.

Defendant appealed his conviction in the Court of Appeals. He claimed that he was denied a fair trial because of references to his Arabic ethnicity during the prosecutor's opening statement and during the questioning of prosecution witnesses Rene Arias, Wissam Abood, Salwan Asker, and Lawrence Awdish. Similarly, defendant claimed that the prosecutor improperly bolstered the credibility of two prosecution witnesses by eliciting testimony of an agreement that promised to send them to prison for life if they lied at trial. Likewise, defendant claimed error requiring reversal because the prosecutor resorted to a civic duty argument, improperly embellished the strength of his case to the effect that drug cases do not get any better than the instant case, and improperly [448 Mich. 265] denigrated defendant. Finally, defendant maintained that it was irrelevant and prejudicial to admit evidence that prosecution witness Salwan Asker was beaten by Emanual Newman, after being driven to this location by defendant.

The Court of Appeals agreed with defendant, finding that "defendant was denied a fair trial, even if he did not object to every single instance of misconduct now complained of, because the cumulative prejudicial effect of the prosecutor's comments could not have been cured by an instruction." 202 Mich.App. 214, 216, 508 N.W.2d 170 (1993). ² The Court also found error requiring reversal in the admission of evidence regarding defendant's participation in the beating of Salwan Asker because it tended to show that defendant was a bad person who deserved conviction. ³ Id. at 220, 508 N.W.2d 170.

We granted leave to appeal on May 6, 1994. ⁴

II

We turn first to whether defendant was denied a fair trial by the use of Arabic and Iraqi references. Defendant reminds us that this jury trial occurred [448 Mich. 266] during the third and fourth weeks of the Persian Gulf War and is relevant because defendant and many of the alleged coconspirators are Chaldean Iraqis.

A

As with all forms of prosecutorial misconduct, this Court abhors the injection of racial or ethnic remarks into any trial because it may arouse the prejudice of jurors against a defendant and, hence, lead to a decision based on prejudice rather than on the guilt or innocence of the accused. ⁵

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Therefore, this Court is not hesitant to reverse where potentially inflammatory references are intentionally injected, with no apparent justification except to arouse prejudice. ⁶ In reviewing such claims, this [448 Mich. 267] Court examines the remarks in context to determine whether they denied defendant a fair trial. ⁷ See People v. Allen, 351 Mich. 535, 88 N.W.2d 433 (1958).

448 Mich. 268] B

Against this backdrop, we turn to defendant's specific claims of misconduct. At trial, several references were made to Arabic ethnicity, ⁸ the first occurring during the prosecutor's opening statement. In discussing the expected testimony of prosecution witness Salwan Asker, the prosecutor explained that Asker chose to cooperate with the government after he was arrested on immigration charges. In doing so, the prosecutor noted that "Mr. Asker will tell you he's an Iraqi native, as are many people in this crowd." ⁹ Defense counsel did not object, and thus no limiting instruction was given.

After opening statements, the prosecutor called Rene Arias. Arias informed the jury that he was a Cuban native who was testifying for the government under a plea arrangement subjecting him to fifteen years in prison rather than mandatory life. When referring to members of the drug conspiracy, Arias often referred to them either using ethnic or racial references. Specifically, Arias referred to one member as the "Argentina"

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or "Argentine," to others as the "Columbians [sic]," to one man as "black," and to defendant, Ray Akrawi, and Atheer Gappi as the "Arabs" or the "Arab connection."

Reacting to Arias' comments regarding ethnicity, the prosecutor occasionally used the same term to phrase a follow-up question. Generally, [448 Mich. 269] however, defense attorneys objected to these Arabic references, resulting either in a rephrasing of the question ¹⁰ or simply being sustained by the trial judge. ¹¹ After a few references to Arabic ethnicity, both the prosecutor and the trial judge admonished Arias. No such objection or admonishment was offered with respect to any other nationality, however.

On cross-examination, defense counsel immediately questioned Arias regarding his Cuban heritage and his arrival in this country by means of the Mariel boat lift. Defense counsel also questioned Arias regarding his immigration status and his possible deportation. At one point, Ariasbecame frustrated with questions about his ethnicity and responded: "You told me before--you ask me[448 Mich. 270] --you ask me before not to talk about Arabs, now you're talking about Mirielitas."

On redirect examination, more references emerged regarding Arabs. After one reference of note, ¹² an objection ensued, followed by a discussion in the presence of the jury regarding the use of the term "Arabs." It was observed that the United States was fighting a war in the Middle East, not Columbia, and reference to the term "Arab" was not appropriate. After ordering the prosecutor to rephrase the question, the prosecutor stated:

Q. Talk about the Columbians and everybody all you want, but we can't mention that "A" word, do you understand?

A. I understand.

Q. Okay. You were mad at the Columbians, and you were also mad at somebody else. Don't tell us their nationality or group, but why were you [mad] at them?

Subsequently, the prosecutor elicited references to the Iraqi nationality of several prosecution witnesses, including Wissam Abood, Salwan Asker,and Lawrence Awdish. In doing so, the prosecutor [448 Mich. 271] also inquired of these witnesses whether Detroit had a large Chaldean population. They answered in the affirmative, indicating that many Chaldeans left Iraq to avoid discrimination and religious persecution.

C

While it was unfortunate that this trial occurred during the Persian Gulf War, our review of the comments persuade us that they did not prejudice defendant by causing the jury to convict because of prejudice rather

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than the evidence. Unlike Cluett v. Rosenthal, 100 Mich. 193, 200, 58 N.W. 1009 (1894), we do not find a "studied purpose to arouse the prejudice of the...