People v. Fredericks

• Decision Date: 06 July 1983
• Docket Number: Docket No. 57118
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ray Charles FREDERICKS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 919

335 N.W.2d 919

125 Mich.App. 114

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ray Charles FREDERICKS, Defendant-Appellant.

Docket No. 57118.

Court of Appeals of Michigan.

Submitted Nov. 5, 1982.

Decided April 20, 1983.

Released for Publication July 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Richard A. Pattison, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by R. Steven Whalen, Detroit, for defendant-appellant.

Before MacKENZIE, P.J., and MAHER and SIMON, ^* JJ.

PER CURIAM.

Defendant was convicted of conspiracy to commit armed robbery, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), and M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Sentenced to from 5 to 10 years imprisonment, he appeals by right.

On February 6, 1980, two persons, a man and woman, robbed a credit union in Battle Creek. Four witnesses to the robbery, three employees and one a customer of the credit union, stated specifically that defendant was not among the robbers. The prosecution, however, offered the testimony of Gary Tyler and Christine Jones. These witnesses, both of whom had conspired to commit the robbery, testified in exchange for lenient treatment by the prosecutor. They stated that defendant conspired with them, defendant's wife and another individual to hold up the credit union. The defendant, testifying in his own defense, denied that he agreed to participate in the robbery. Defendant also offered the testimony of one other person.

Defendant argues four claims of error which we consider in the order presented to us.

The defendant claims that certain remarks made by the prosecutor during his closing argument require reversal. First, defendant argues that the prosecutor placed the prestige of his office behind the two accomplices who testified for the people. The prosecutor had admitted in his closing argument that the jury might doubt the testimony of these witnesses, in the belief that "they may be lying to save their own necks". But, the prosecutor continued,

"* * * to believe that would * * * mean that you don't believe the independent testimony of the credit union people that were here. To believe that means you have to believe the Prosecutor's office is trumping up charges against these two people and fabricating evidence and I don't believe for a minute that you would take that position. (Emphasis added.)

The defendant objected to this argument, allowing appellate review. See People v. Duncan, 402 Mich. 1, 15-16, 260 N.W.2d 58 (1977). A prosecutor may not place the prestige of his office behind his witnesses. People v. Yearrell, 101 Mich.App. 164, 300 N.W.2d 483 (1980); People v. Cowell, 44 Mich.App. 623, 205 N.W.2d 600 (1973). His argument, however, may be based upon the evidence. People v. Duncan, supra. Moreover, we must view the prosecutor's argument in the context in which it was made. People v. Allen, 351 Mich. 535, 88 N.W.2d 433 (1958). Applying these principles we conclude that the prosecutor's argument was not improper. The context reveals that the prosecutor was rebutting the doubt he had posed to the jury by reference to evidence negating that doubt. Thus, the challenged remark is preceded by a reference to the "independent testimony of the credit union people" which was not inconsistent with the testimony of the accomplices. This is a proper comment upon the evidence.

Second, defendant points to the prosecutor's attempt to impugn defendant's credibility. Defense counsel, the prosecutor had argued, would certainly try to discredit the testimony of the accomplices in his closing argument by suggesting that they were lying to get favorable prosecutorial treatment. Then the prosecutor added: "On the other hand, Mr. Fredericks is no clean bit of living [sic, linen?] himself." The defendant objected to this remark. The prosecutor's statement was improper. It was not a comment upon the evidence; no evidence of defendant's previous misconduct was presented at trial. Moreover, this error is not harmless. Error is not harmless if, in the absence of the error, it is reasonably possible that some juror would have voted to acquit. People v. Oliver, 111 Mich.App. 734, 757, 314 N.W.2d 740 (1981). The defendant's defense rested largely on his testimony that he never agreed to rob the credit union. A juror who believed defendant's version of the facts--who, therefore, would have voted to acquit--may very well have changed his mind after hearing the prosecutor's disparaging remarks. Because these remarks were not harmless beyond a reasonable doubt, we reverse the defendant's conviction.

The final challenged statement also requires reversal. In yet another effort to discredit the defendant's testimony the prosecutor argued:

"[The defendant] has had the added benefit of sitting here throughout the trial and hearing what it is that these witnesses have said against him and if he wanted [,] to fabricate his story to kind of coincide with what they said as much as possible so as to seem believable to you * * *."

The defendant failed to object to this line of argument and thus appellate review is foreclosed unless our failure to consider the issue would result in a miscarriage of justice. People v. Duncan, supra, 401 Mich. at pp. 15-16, 260 N.W.2d 58.

The defendant argues that this comment infringed his right to be present at his trial. The right of an accused to be present at his trial is a fundamental right. People v. Montgomery, 64 Mich.App. 101, 103, 235 N.W.2d 75 (1975). In Michigan, the right is guaranteed by statute, M.C.L. Sec. 768.3; M.S.A. Sec. 28.1026. The right is also grounded in the federal constitution:

"U.S. Const. Am. VI, applicable to the states through the Fourteenth Amendment ( Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 [1965], affords a similar guarantee. As stated in Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, 356 (1970):

" 'One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial.' " People v. Ewing, 48 Mich.App. 657, 659, 211 N.W.2d 56 (1973).

The appellate courts of this state have not yet decided whether a prosecutor may comment upon a defendant's right to be present at trial. We are guided, however, by the case law treating the propriety of prosecutorial references to the defendant's failure to take the stand. It is well-established that such conduct constitutes error. People v. Mancill, 393 Mich. 132, 223 N.W.2d 289 (1974). A prosecutor may not ask the jury to infer guilt from the defendant's failure to testify because this infringes on the defendant's right to remain silent. People v. Mancill, supra. Permitting such inferences would place an intolerable burden on the defendant's decision to exercise or forego his right to remain silent.

This reasoning convinces us that a prosecutor may not burden a defendant's right to be present at trial. This right is as fundamental as the right to remain silent. We do not hold, however, that every comment by the prosecutor burdens the defendant's right to be present at trial. Instead, we restrict our holding to the sort of argument made by the prosecutor in this case. The prosecutor argued, in effect, that the defendant's testimony was not to be believed because, being present at trial, he may have conformed his testimony to that of the witnesses he heard. This method of discrediting a testifying defendant's version of the facts places the defendant between the horns of an intolerable dilemma: the defendant must decide to either present himself at trial and risk being discredited by his presence or absent himself from trial and avoid the risk. A defendant in this position cannot freely exercise his right to be present at trial....