People v. Enos

• Decision Date: 07 July 1988
• Docket Number: Docket Nos. 92544,92736
• Citation: 168 Mich.App. 490,425 N.W.2d 104
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Anthony ENOS, Defendant-Appellant. 168 Mich.App. 490, 425 N.W.2d 104
• Court: Court of Appeal of Michigan — District of US

Page 104

425 N.W.2d 104

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Anthony ENOS, Defendant-Appellant.

Docket Nos. 92544, 92736.

168 Mich.App. 490, 425 N.W.2d 104

Court of Appeals of Michigan.

Submitted April 16, 1987.

Decided Jan. 6, 1988.

Released for Publication July 7, 1988.

[168 MICHAPP 491] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William D. Bond, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the people.

State Appellate Defender by Chari Grove, for defendant-appellant.

Before CYNAR, P.J., and SHEPHERD and JASPER, ^* JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of two counts of uttering and publishing, M.C.L. Sec. 750.249; M.S.A. Sec. 28.446. Thereafter, defendant pled guilty to being an habitual offender, second offense, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082. Defendant was then sentenced to ten to twenty-one years in prison on each count and now appeals as of right. We find one issue dispositive and reverse defendant's convictions.

Defendant was convicted, in large part, because of the testimony of two accomplices, Wesley Davidson and Kurt Fromm. They both testified that they found a checkbook in a dumpster and that defendant instructed Fromm to make out checks to Davidson and sign the checking account holder's name to the checks. The three of them then went to party stores and auto parts stores and cashed several checks. Defendant's version of events, supported somewhat by defense witnesses, was that Davidson and Fromm had told him they had received[168 MICHAPP 492] their social security and insurance checks and that those were the checks they were cashing at the auto parts stores. This testimony was bolstered by letters from Davidson and Fromm, written and signed while in jail, which stated that the defendant did not know anything about the checks which were cashed, but that defendant thought Davidson and Fromm were cashing social security and insurance checks which they had received in the mail. At trial, both Davidson and Fromm testified that the letters were a lie.

It is the examinations of both Davidson and Fromm and the closing arguments with respect to their testimony which constitute the heart of the prosecutorial misconduct which we find to have occurred in this case. Although the introduction of an accomplice's promise of truthfulness is not necessarily error, it is error if used by the prosecutor to suggest that the government has some special knowledge that the witness is testifying truthfully. People v. Buschard, 109 Mich.App. 306, 311 N.W.2d 759 (1981), vacated 417 Mich. 996, 334 N.W.2d 376 (1983), reaff'd 129 Mich.App. 160, 341 N.W.2d 260 (1983).

On direct examination of accomplices Davidson and Fromm, the prosecutor emphasized that they were allowed to plea bargain in exchange for truthful testimony regarding defendant:

"Q. And were you allowed to plead to one count of attempted uttering and publishing, a felony charge, if you testified truthfully regarding William Enos?

"A. [Witness Davidson] Yes.

"Q. And were you aware that if you do not testify truthfully here that that deal would not have been fulfilled on your part?

"A. Yes.

[168 MICHAPP 493] "Q. Have you testified truthfully today regarding this matter?

"A. Yes I have.

* * *

"Q. Were you allowed to plead to a lesser felony in exchange for your truthful testimony in this matter?

"A. [Witness Fromm] Yes.

"Q. You understand that if you do not testify truthfully that the deal fails, and you could be recharged?

"A. Yes."

On cross-examination, Davidson testified that he had fled to Georgia after the crimes because "two guys that came from nowhere" had threatened him. On redirect, the prosecution got Davidson to admit that the incident had never occurred:

"Q. Do you recall having a conversation with me before this trial started today?

"A. Yes.

"Q. And that at that time you told me that incident had not occurred?

"A. Yes.

"Q. Do you understand that you're under oath right now?

"A. Yes.

"Q. You're sworn to tell the truth?

"A. Yes.

"Q. Did that incident occur?

"A. No.

"Q. Was there some sort of threat made to you however before you left for Georgia?

"A. No.

"Q. All right. Why did you go to Georgia?

"A. It was Kurt's idea. He wanted to leave state and take me with him, drag me down there with him.

"Q. Okay. But then the two of you returned voluntarily?

[168 MICHAPP 494] "A. Yes.

"Q. Do you realize that by admitting just now that you lied here in telling about an incident that didn't occur, that the plea agreement entered into between yourself and the prosecution could be voided and you could be charged with another crime, do you understand that?

"A. Yes.

"Q. That the agreement was that you would testify truthfully?

"A. Yes."

Finally, in closing argument, the prosecutor stated with regard to Davidson:

"Now the agreement isn't that he testifies against Mr. Enos, it's that he testified truthfully. And when he got up there and he's on cross-examination he started giving this routine about yeah, these two guys had jumped me up town in Caro. When he was confronted, no, that's not the truth. He admitted, yea, that's not the truth. He realized--he was informed right then that the deal would not necessarily be honored since he breached it. Was asked if he wanted to change anything else about his story, if the rest of the story was true or not, and he indicated yes the rest of it was true. I lied about the two guys. But as far as Mr. Enos knew, and what I told Mr. Enos, everything I've told you has been true."

In this case, the prosecutor did not merely discuss the plea agreement containing...