People v. Crabtree, Docket No. 77-411

• Decision Date: 03 January 1979
• Docket Number: Docket No. 77-411
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tilmon CRABTREE, Defendant-Appellant. 87 Mich.App. 722, 276 N.W.2d 478
• Court: Court of Appeal of Michigan — District of US

Page 478

276 N.W.2d 478

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tilmon CRABTREE, Defendant-Appellant.

Docket No. 77-411.

87 Mich.App. 722, 276 N.W.2d 478

Court of Appeals of Michigan.

Jan. 3, 1979.

Released for Publication March 29, 1979.

[87 MICHAPP 724] James R. Neuhard, State App. Defender by Domnick J. Sorise, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Frank D. Willis, Pros. Atty., Thomas C. Nelson, Asst. Atty. Gen., Pros. Attys. App. Service, for plaintiff-appellee.

Before DANHOF, C. J., and V. J. BRENNAN and CAMPBELL, ^* JJ.

CAMPBELL, Judge.

The defendant was convicted by a jury of criminal sexual conduct in the third degree, M.C.L. § 750.520d(1); M.S.A. § 28.788(4)(1), and was sentenced to a term of imprisonment from 4 to 15 years.

The 14-year-old alleged victim in this matter, as a result of apparent peer group pressures and inner dilemmas which we only speculate about, visited the prosecutor on the day before trial was [87 MICHAPP 725] to begin. She informed him that she wanted to drop the charges against the defendant and explained that "he didn't touch me" and that a police officer had pressured her into the charge in the first place. The prosecutor responded with a thinly-veiled threat of a perjury charge against the victim if she changed her story from that given at the preliminary examination (wherein she testified to the sexual act). At trial, this episode was revealed to the court and jury only as a result of the defense counsel's thorough cross-examination of the witness. On redirect the prosecutor announced "for the record", that "as Prosecutor of Van Buren County * * * I do not intend to prosecute this person as a perjuror. I am just interested in the truth".

Prosecution intimidation of witnesses has been condemned, People v. Pena, 383 Mich. 402, 175 N.W.2d 767 (1970), whether the witnesses are defense witnesses or prosecution witnesses. People v. Harley, 49 Mich.App. 729, 212 N.W.2d 810 (1973). We recognize the dilemma of the prosecutor when confronted with such a situation. But there were three additional problems which conclusively tilted the balance here toward reversal. First, neither the trial court nor either of the counsel asked the young witness if she had in fact been intimidated by the threat. Justice Adams in People v. Pena,supra, suggested this, in particular, was a question to be asked by the trial court. Here, the prosecutor even requested that the judge ask the witness the question, but the trial judge declined. Second, the prosecutor made no effort to bring the matter to the attention of the court, by examination or otherwise. Rather, a thorough cross-examination of the witness by defense counsel yielded the information which, it is clear, would never have been [87 MICHAPP 726] revealed otherwise. And finally, the prosecutor's announcement that he would not prosecute her for perjury coming after she had testified against the defendant was a blatant attempt to bolster the witness's credibility. Such stands as an independent error, but also combines, in aggregate, with the prosecutor's improper handling of the entire incident of the witness's attempted recantation.

Other errors at trial also combined with the former to require reversal. Contrary to the prosecutor's assertion at trial, he is not permitted to show the general lack of morality of a defense witness by evidence of specific instances of conduct. Rather, specific instances of conduct may be inquired into on cross-examination only if probative of truthfulness and if concerned with the witness's character for truthfulness or untruthfulness. MRE 608(b), People v. Bouchee, 400 Mich. 253, 253 N.W.2d 626 (1977). Marijuana use is not such an instance of specific conduct contemplated by the rule.

Neither may the prosecutor rebut reputation evidence of character with specific instances of conduct, however, inquiry is allowable into reports of relevant specific instances of conduct. MRE 405, People v. Roeder, 79 Mich.App. 595, 262 N.W.2d 872 (1977).

The resolution of the issues above makes discussion of the other issues raised by defendant unnecessary.

The defendant's conviction is reversed and the case remanded for a new trial. The trial court should particularly ascertain whether the action of the prosecutor intimidated the victim into testifying as she did at trial.

Reversed and remanded.

[87 MICHAPP 727] V. J. BRENNAN, Judge, dissenting.

I disagree with the majority's disposition insofar as it is based on the question of intimidation of the complainant.

The facts surrounding the defendant's claim of prosecutorial intimidation of the complainant are as follows. On the day before trial the complainant visited the prosecutor and stated that she wanted to drop the charges and that defendant "didn't touch" her. The prosecutor then reviewed the complainant's preliminary examination testimony and explained that if she changed her testimony she could be prosecuted for perjury. When asked at trial why she wanted to drop the charges the complainant stated that she didn't like courtrooms and she wanted to "get out of going to Court".

After reaffirming her original version of the incident, the following colloquy took place between the complainant and the prosecutor:

"BY MR. HAMLIN (Prosecutor):

"Q * * * has Lieutenant Hogmire and myself had conversations with you in the last couple of days?

"A Yes.

"Q During each of these conversations have we indicated to you that we wanted you to tell the truth?

"A Yes.

"Q Now, have you told the truth?

"A Yes.

"Q Now, when Mr. Hogmire came to your house...