People v. Buckey, Docket No. 68728

• Decision Date: 04 May 1984
• Docket Number: Docket No. 68728
• Citation: 348 N.W.2d 53,133 Mich.App. 158
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Grove BUCKEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 53

348 N.W.2d 53

133 Mich.App. 158

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Grove BUCKEY, Defendant-Appellant.

Docket No. 68728.

Court of Appeals of Michigan.

Submitted Dec. 8, 1983.

Decided March 21, 1984.

Released for Publication May 4, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Richard B. Ginsberg, Detroit, for defendant-appellant.

Before KELLY, P.J., and CYNAR and KINGSLEY ^*, JJ.

PER CURIAM.

On July 2, 1982, defendant was convicted by a jury of assault with intent to commit criminal sexual conduct in the second degree, M.C.L. Sec. 750.520g(2); M.S.A. Sec. 28.788(7)(2). He was sentenced to a term of from three to five years in prison and appeals his conviction as of right. An earlier trial was conducted in February of 1982 and resulted in a mistrial when the jury was unable to agree upon a verdict. In both proceedings, the defendant was charged and tried on the completed offense of criminal sexual conduct in the second degree, M.C.L. Sec. 750.520c(1)(f); M.S.A. Sec. 28.788(3)(1)(f).

Defendant first argues that he was deprived of his right to a fair trial due to prosecutorial misconduct. While we do not agree with all of the defendant's arguments, we conclude that two of the complained-of acts constitute reversible error under the fair trial test. People v. Bairefoot, 117 Mich.App. 225, 228, 323 N.W.2d 302 (1982).

In cross-examining the defendant, the prosecutor improperly asked the defendant to comment upon the veracity of other witnesses:

"Q. And, Detective Harkin testified that you said that you didn't want to have your statements taped. You're saying that didn't happen?

"A. That happened the second time he come over to the jailhouse, yes.

"Q. I'm not talking about that, I'm talking about the first time.

"A. That's correct, he never asked me.

"Q. Are you saying he's lying about that?

"A. That's correct.

"Q. And are you saying that Debbie DeFord is lying?

"A. Why would I say Debbie DeFord is lying?

"Q. Are you saying that Debbie DeFord is lying about what--her testimony was about what took place out on Nine Mile Road?

"A. I don't think she really knows what took place.

"Q. I'm asking you what--I'm asking if you're saying she's lying.

"A. Yes.

"Mr. Purcell: [defense counsel ] I think he answered the question.

"The Court: It was responsive.

BY MR. HAMMOND: [the prosecutor]

"Q. All right, is it your testimony you're saying she's lying?

"A. I don't think--like I said, I can't say she's lyin', all I'm sayin' is she don't really realize what happened out there.

"Q. How about--how about the boys who observed what they ob--, are you saying they're lying too?

"A. Uh-huh, about part of it.

"Q. All right. So, we've got at least Detective Harkin, that was one liar, and we've got four more, the four boys. You're saying that they're lying about certain things.

"A. I didn't say they were lying, all I'm saying is they didn't tell the--

"Q. You said (undistinguishable).

"A. --whole truth.

"Q. Well, I asked you, you indicated--are you saying that they were lying, Mr. Buckey?

"A. No, they weren't lyin', they're just not tellin' what they really saw.

"Q. All right, so we have one liar and four people not saying what they--they really saw, is that what you're saying?

"A. No, what I'm sayin' is I think they let Mr. Detective Harkin and the other cops--they programmed 'em.

"Q. You're the only one that hasn't been programmed in this case, is that what you're saying?

While defense counsel objected to this line of questioning, he failed to raise the specific objection relied upon by the defendant on appeal. We will nevertheless consider the issue since we find that manifest injustice will otherwise result. People v. Williams, 114 Mich.App. 186, 199, 318 N.W.2d 671 (1982).

This Court has generally held it improper for a witness to comment or provide the jury an opinion on the credibility of another witness since matters of credibility are to be determined by the trier of fact. People v. Adams, 122 Mich.App. 759, 767, 333 N.W.2d 538 (1983), remanded with jurisdiction retained 417 Mich. 1073, 336 N.W.2d 751 (1983). While the cases enumerated this rule of law have generally involved opinions given by non-defendant witnesses on the credibility of another witness or upon the guilt or innocence of the defendant, People v. Row, 135 Mich. 505, 507, 98 N.W. 13 (1904); People v. Adams, supra; People v. Parks, 57 Mich.App. 738, 750, 226 N.W.2d 710 (1975); People v. Walker, 40 Mich.App. 142, 145, 198 N.W.2d 449 (1972), we find the rule applicable where the defendant is also a witness, thus precluding the prosecutor from requesting a defendant to comment upon the credibility of the complainant and other witnesses. Under the facts of this case, we cannot conclude that the improper cross-examination was harmless since this case involved a classic credibility contest between the complainant and the defendant and since the defendant was asked to comment on the veracity of all material witnesses as a definite pattern of prosecutorial strategy.

The prosecutor also commented as follows during his closing arguments:

"If you'll recall his cross-examination testimony you'll recall that he testified that he was present at the preliminary examination back in December of 1981. He sat through the whole thing, he heard Debbie DeFord testify, he heard one of the boys testify, and he also admitted that he'd reviewed, to some extent anyway, the police report in connection with this case. Now, there's nothing wrong with his doing that, per se, reviewing the police report, but the point is, ladies and gentlemen of the jury, that the defendant knew--and also he was the last witness to testify in this case--he knew before he took the witness stand, completely, what the People's proofs were going to be. He knew completely what they were. He also admitted that he sat through proceedings in this case back in February of this year. All of our witnesses, except Trooper Stayer, testified at that time. He indicated on the witness stand he heard them all testify. He testified, himself, back then. He was cross-examined at that time. He indicated that he later heard all the remarks that both I made and his attorney made, concerning that testimony.

"So, ladies and gentlemen of the jury, the point is that the defendant has known for some time precisely what the People's proofs were going to be. He's had plenty of time to try to figure a way around our proofs and also to get prepared to tell his story in a convincing manner. Now, there is abundant proof in this case that the defendant, in fact, cooked up an explanation around our proofs."

Again, defense counsel failed to object to the prosecutor's comments at trial. In the interest of precluding any manifest injustice, however, we undertake appellate review. People v. Williams, supra.

This Court has twice considered the propriety of a prosecutor commenting to the jury that a defendant's presence in court provided the defendant an opportunity to fabricate testimony to make it significantly consistent with testimony of prosecution witnesses. People v. Fredericks, 125 Mich.App. 114, 335 N.W.2d 919 (1983), and People v. Smith, 73 Mich.App. 463, 470-471, 252 N.W.2d 488 (1977), lv. den. 402 Mich. 803 (1977). In both cases, the prosecutor's comments related to each defendant's opportunity to hear testimony throughout the then-ongoing trial prior to testifying. In both cases, the defendants on appeal argued that such prosecutorial comment improperly infringed upon their constitutional right to be present at trial, U.S. Const., Am. VI; People v. Montgomery, 64 Mich.App. 101, 103, 235 N.W.2d 75 (1975), though neither defendant preserved that question for appellate review by objecting at trial. This Court held in both cases that the comments were improper and therefore error.

In Smith, however, the error was found to be harmless when viewed in light of the full summation given. We further note that the defendant in Smith was convicted of murder committed in the perpetration of a kidnapping, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581. Significant evidence was introduced at trial tending to prove the defendant's guilt of these charges. Moreover, but for the comment on the defendant's opportunity to fabricate testimony, the prosecutor's summation in Smith was error free.

In Fredericks, this Court found that the error that occurred when the prosecutor commented upon the defendant's opportunity to fabricate testimony based on his presence in court could not be harmless beyond a reasonable doubt under the circumstances of that...