People v. Buckey, Docket Nos. 73929

• Citation: 424 Mich. 1,378 N.W.2d 432
• Decision Date: 04 December 1985
• Docket Number: 74232,Docket Nos. 73929
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant; Cross-Appellee, v. David Grove BUCKEY, Defendant-Appellee; Cross-Appellent. PEOPLE of the State of Michigan, Plaintiff-Appellant; Cross-Appellee, v. Robert Alvin McWHORTER, Defendant-Appellee; Cross-Appellant.
• Court: Supreme Court of Michigan

Page 432

378 N.W.2d 432

424 Mich. 1

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

PEOPLE of the State of Michigan, Plaintiff-Appellant; Cross-Appellee, v. Robert Alvin McWHORTER, Defendant-Appellee; Cross-Appellant.

Docket Nos. 73929, 74232.

Supreme Court of Michigan.

Argued June 25, 1985.

Decided Dec. 4, 1985.

George B. Mullison, Bay County Pros. Atty. by Thomas J. Rasdale, Asst. Pros. Atty., Martha G. Mettee, Bay City, for plaintiff-appellant/cross-appellee in No. 73929.

State Appellate Defender Office by Richard B. Ginsberg, Asst. Defender, Detroit, Mary L. Sawnick, Legal Secretary, for defendant-appellee; cross-appellant in No. 73929.

James J. Gregart, Pros. Atty., Michael H. Dzialowski, Joseph S. Skocelas, Asst. Pros. Attys., Appellate Div., Kalamazoo, for the People.

State Appellate Defender Office by F. Martin Tieber, Deputy Defender, Lansing, for defendant-appellee; cross-appellant in No. 74232.

RILEY, Justice.

The issue common to both of these cases, and the one which we directed the parties to address, is whether error requiring reversal occurs when the prosecutor argues that the defendant's presence at trial is an opportunity for the defendant to fabricate testimony.

The Court of Appeals panels in both cases answered affirmatively, thus reversing defendants' convictions. We reverse the judgments of the Court of Appeals.

In Buckey, ¹ two members of the Court of Appeals panel also held that questions by the prosecutor during cross-examination of defendant concerning whether various prosecution witnesses were lying constituted error requiring reversal. Here again, we reverse the judgment of the Court of Appeals.

The McWhorter ² panel also found that the prosecutor erred in questioning defendant about his financial condition at times both before and after an alleged kidnapping. We remand the case to the Court of Appeals for a determination whether this was error that requires reversal.

Finally, after we granted the prosecutors' applications for leave to appeal, both defendants brought cross-appeals alleging other errors which had not been addressed by the Court of Appeals. We remand the cases to the Court of Appeals for consideration of these issues.

I

A. People v. Buckey

Defendant Buckey was convicted of assault with intent to commit criminal sexual conduct in the second degree. An earlier trial resulted in a mistrial when the jury was unable to agree upon a verdict. In both proceedings, Buckey was charged with and tried for the completed offense of second-degree criminal sexual conduct. M.C.L. Sec. 750.520c(1)(f); M.S.A. Sec. 28.788(3)(1)(f).

Testimony established that defendant met the complainant at a bar on the evening in question and that after some period of time the two left in a jeep. Defendant drove to a field and stopped the vehicle. The complainant testified that defendant touched her breasts and that he forced her to touch his exposed genitals. She further testified that she struggled with defendant to get out of the jeep and that, when she did get out, defendant grabbed her, pushed her to the ground, and got on top of her. At that point a car pulled up, and she got out from under defendant and ran over to the car. The occupants, four boys, gave her a ride home. The four boys testified to seeing defendant either push the complainant to the ground or hold her on the ground.

Defendant gave a statement to the police when he was arrested in which he claimed that the complainant had not objected to his sexual advances. He further stated that she "freaked out" after she declined his proposition of further sexual activity. He stated that nothing happened on the ground outside of the jeep.

At trial, defendant's testimony was consistent with his statement, except for his description of what had happened outside of the jeep. He testified that she had fallen to the ground as she got out of the vehicle. She tried to kick him and may have fallen again as she ran to the boys' car, and he may have fallen at that time as well.

During his closing argument in both trials the prosecutor made the following unobjected-to remarks:

"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 this [sic, 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."

Following his conviction, defendant appealed to the Court of Appeals, arguing inter alia that certain questions asked of him on cross-examination ³ and the above-quoted closing argument constituted prosecutorial misconduct which deprived him of his right to a fair trial. All three members of the panel agreed that the prosecutor's closing argument resulted in error requiring reversal, relying on People v. Fredericks, 125 Mich.App. 114, 335 N.W.2d 919 (1983), and People v. Smith, 73 Mich.App. 463, 252 N.W.2d 488 (1977), lv. den. 402 Mich 803 (1977). Judge Cynar disagreed with the majority's finding that the cross-examination was improper and not harmless beyond a reasonable doubt, writing that a timely objection could have cured any prejudice. People v. Buckey, 133 Mich.App. 158, 167, 348 N.W.2d 53 (1984) (Cynar, J., concurring in part).

B. People v. McWhorter

Defendant McWhorter was charged and convicted of conspiracy to kidnap, M.C.L. Secs. 750.349, 750.157a; M.S.A. Secs. 28.581, 28.354(1), and kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581.

The facts are succinctly set forth in the Court of Appeals opinion:

"Defendant's convictions arose out of the abduction of David Nixon from defendant's law office by William Snyder and Joseph Postelwaite. The evidence tended to show that the kidnapping was arranged by defendant as a means of extorting payment of legal services rendered.

"Defendant was retained by Douglas Suess to represent his parents and a friend who had been arrested in Florida while driving trucks filled with marijuana. The marijuana was being shipped to other states, including Michigan, as part of an operation equally run by Suess and Nixon.

"Nixon owed Suess his share of the proceeds from marijuana sales which had accumulated during the course of the venture. Suess intended to pay defendant with some portion of these proceeds; however, Nixon refused to provide him with any money. When Nixon refused to pay Suess, defendant told him to be more emphatic and forceful with Nixon.

"Ultimately, defendant offered Snyder the opportunity to work off fees which Snyder owed to him. Defendant asked Snyder to follow Nixon and scare him into giving Suess some money. Snyder proved to be unable to accomplish the task and suggested recruiting some help. The pair agreed to seek assistance from Postelwaite.

"At some point, Snyder, Postelwaite, Suess, and defendant all met at defendant's office. Defendant indicated that Nixon would be coming in shortly. The group agreed that if the meeting with Nixon did not go right and he would not pay the money, they would grab him.

"Nixon arrived at defendant's office and went downstairs with defendant into his law library. An argument ensued. Defendant returned from the library and told Snyder to grab Nixon as soon as possible. Defendant and others then left the office. Snyder and Postelwaite bound Nixon with a cord and took him to Postelwaite's farm where he was tied to a tree. Nixon eventually agreed to pay $30,000. When this offer was conveyed to defendant, he agreed to accept the deal and arrangements were made for collecting the funds.

"Defendant denied involvement in the extorting of money from Nixon. He claimed that he only learned that Nixon had been beaten and abducted after the fact."

A careful review of the record indicates that defendant confirmed much of the prosecution witnesses' testimony, while denying those parts which would incriminate him. He made repeated references to other witnesses' testimony or lack thereof.

The meeting at defendant's office and the abduction took place on May 14, 1977. On the following day, Nixon paid $30,000 in cash and was released. Defendant's secretary picked up $15,000 in cash from Snyder and Postelwaite in a grocery store parking lot and took the money to defendant's office.

In his closing argument, the prosecutor made the following remarks:

"I'm not going to belabor that, because I think the line is drawn. I think on the one side of that line you have one person, two persons, six people and on the other side of the line you have Bob McWhorter who says here is where I was and all the other people who were involved say, hey, Bob, you were over here with us. What are you trying to tell us? You didn't know what was going on. You were obvious [sic] as to what was going on. We are the...