People v. Hall

• Decision Date: 27 February 1974
• Docket Number: No. 11,11
• Parties: , 76 A.L.R.3d 523 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James D. HALL, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 166

215 N.W.2d 166

391 Mich. 175, 76 A.L.R.3d 523

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James D. HALL, Defendant-Appellant.

No. 11.

Supreme Court of Michigan.

Feb. 27, 1974.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Leonard Meyers, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by Roger L. Wotila, Asst. Defender, Detroit, for defendant-appellant; Jack McGinnis, Detroit, on brief.

Before the Entire Bench.

T. M. KAVANAGH, Chief Justice.

This case is before us on leave granted, 389 Mich. 798 (1973), from a decision of the Court of Appeals, 39 Mich.App. 558, 197 N.W.2d 870 (1972) affirming defendant's jury conviction for uttering and publishing. The facts on appeal are uncomplicated.

On April 10, 1969 defendant purportedly cashed an altered payroll check with the Travelers' Express Company. The State maintained that he had altered his paycheck by changing the amount payable from $22.90 to $221.90 and passed it with intent to defraud. Defendant was found guilty of violation of M.C.L.A. § 750.249; M.S.A. § 28.446 and sentenced by the trial court to a term of 5 to 14 years.

On appeal defendant raises three issues, as follows:

1. Whether the prosecutor denied appellant a fair trial by deliberately cross-examining as to his belief in God in violation of M.C.L.A. § 600.1436; M.S.A. § 27A.1436.

2. Whether appellant was denied his constitutional right to a speedy trial.

3. Whether the Michigan statutory scheme regarding uttering and publishing violates equal protection of the laws as guaranteed by the State and Federal Constitutions.

ISSUE I--THE IMPROPER CROSS-EXAMINATION

During the course of the prosecutor's cross-examination of defendant, the following exchange took place before the jury:

'Prosecutor: I forgot to ask you, Mr. Hall, whether or not you believe in the Supreme Being?

'MR. HALL: Yes, I do.'

A reading of the entire exchange reveals that, by his question above, the prosecutor was obliquely trying to remind the defendant that he was under oath. His next question reveals the purpose behind his question:

'MR. PROSECUTOR: You do. And you would not tell a falsehood to save yourself?

'MR. HALL: I beg your pardon?

'MR. PROSECUTOR: Would you tell a falsehood to get out of this crime, sir? ¹

'MR. HALL: Would I lie, is that what you mean?

'PROSECUTOR: Yes, sure. To help your case?'

'MR. HALL: I don't--I don't know.

'PROSECUTOR: Would you tell a falsehood in order to get out of this case? Yes or no?

'MR. HALL: I don't know. I couldn't answer that.

'PROSECUTOR: Your couldn't answer that?

'MR. HALL: No.'

The prosecutor prefaced this line of questioning by inquiring into the religious belief of the defendant. By so doing he insinuated to the jury that the veracity of defendant's testimony was somehow correlated to the strength and conviction of defendant's religious beliefs. He implied that one who believes in God is apt to be more truthful than one who does not. If this is to be permitted, there is no logical reason why the prosecutor may not then inquire into the nature of defendant's religion. Would it not follow that perhaps some religions may have a greater reputation for truth and veracity than others? The criminal trial would revert to no more than a modern day inquisition; with the defendant being tried, convicted and punished on the nature of his religious beliefs.

Our Constitution states (Const.1963, Art. 1, § 18):

'No person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief.'

Further, our statute (M.C.L.A. § 600.1436; M.S.A. § 27A.1436) states:

'No person may be deemed incompetent as a witness, in any court, matter or proceeding, on account of his opinions on the subject of religion. No witness may be questioned in relation to his opinions on religion, either before or after he is sworn.'

This statute leaves little room for discussion by this Court as to whether or not this cross-examination was improper. It clearly was so. As Justice Christiancy, in People v. Jenness, 5 Mich. 305, 319 (1858) stated:

'Under this section, ² it was clearly incompetent to question the witness in this case, in reference to her belief in a God, unless it can be shown that belief or disbelief in a God has no reference to 'opinions on the subject of religion.' Belief is a stronger term than opinion, and necessarily includes the latter. Belief or opinion in reference to the existence or non-existence of a Supreme Being, is, we think, not only a belief or opinion 'on the subject of religion,' but on the most important of all subjects of religion, and that which controls and gives form to all other religious opinions. We think, therefore, It was clearly the intention of the legislature to prevent the first step, and every subsequent step, in all inquiries of this kind; * * *' (Emphasis added)

This Court fully agrees with Justice Christiancy. The Constitution and our Legislature have forbidden that questions, of the nature with which we are here presented, be asked during the course of a criminal proceeding. The asking of such a question is clear error.

The State argues, and it was so held by the Court of Appeals, that since no objection to the question appears on the record, and since 'manifest injustice' was not shown, this type of error does not require reversal. We disagree. If we were, on a case by case basis, to evaluate the entire record to determine if prejudice or manifest injustice occurred therein because of this type of question, we would emasculate our statute and the legislative intent behind it. Our statute clearly states that an accused is entitled to be tried and convicted without the question of his religious opinions ever being put in front of the judge or jury for their consideration. Whether the defendant hesitates, or unhesitatingly responds negatively or positively, or if he should quite properly refuse to respond, he still cannot avoid the risk of stimulating an offensively prejudicial reaction in some quarter of the jury. This Court feels that it is inappropriate for it to take it upon itself to determine whether or not such prejudicial reaction did in fact occur, when our statute clearly attempts to foreclose such review by forbidding the asking of the prejudicial question itself. A defendant is entitled to a trial free of such improper questions. Once the question is asked, this is no longer possible. A new trial is mandated.

ISSUE II--RIGHT TO SPEEDY TRIAL

The defendant was arraigned on July 26, 1969. Examination was held during August, 1969. A motion was made by defendant's trial attorney for procurement of a handwriting expert on October 8, 1969; the motion being granted on October 10, 1969. On June 2, 1970 the defendant's trial attorney requested an adjournment of the trial date and trial was finally held September 24, 1970. From July 26, 1969 through June 2, 1970 there were no motions to delay or adjourn. The State alleges no reason for this delay. Defendant, however, free on bond, made no request for speedy trial.

As the United States Supreme Court stated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), four factors are balanced to determine whether or not appellant was denied his right to speedy trial. They are 'length of delay, the reason for the delay, the defendant's assertion of his right and prejudice to the defendant.' See also People v. Collins, 388 Mich. 680, 202 N.W.2d 769 (1972) and People v. Chism, 390 Mich. 104, 211 N.W.2d 193 (1973).

In ruling on this issue below, the Court of Appeals held that, since no demand for trial was made, People v. Duncan, 373 Mich. 650, 130 N.w.2d 385 (1964) and People v. Miklovich, 375 Mich. 536, 134 N.W.2d 720 (1965) precluded appellate review of the speedy trial issue. After the Court of Appeals' decision was handed down, the United States Supreme Court decided Barker v. Wingo, Supra, and this Court handed down People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972) and People v. Collins, Supra. These latter cases overruled People v. Duncan, Supra and People v. Miklovich, Supra, insofar as they held that a demand by the defendant for trial was a prerequisite to the assertion of the right to speedy trial.

Since, under our new rule, demand by the defendant for a speedy trial is but one of the elements looked at by the Court in determining whether or not this right was abridged, we proceed to evaluate the case on the merits as to this issue.

The delay in this case was from the date of the arraignment, July 26, 1969 until June 2, 1970 when defendant's attorney requested the trial adjourn, a period of approximately 10 months. Under the rationale of People v. Chism, Supra, this length of delay is sufficient for us to examine the other factors that go into the balance.

The State asserts no reason for the 10 month delay. Defendant made no demand for speedy trial. Thus, since the 10 month period of time is not so inherently prejudicial in and by itself as to require dismissal, the controlling element in this case must be the prejudice to the defendant caused by this delay.

Appellant's only substantial claim as to prejudice suffered by the 10 month delay is prejudice to his defense at trial. As part of the prosecution's case, the man who cashed the altered check was called as a witness. When asked, however, if appellant had signed the check in his presence, the witness testified he couldn't remember. Appellant cites to us the following portion of the transcript to demonstrate this presumed prejudice.

(Prosecutor) 'Q. You say he presented the check, and do you remember now whether or not the check was signed in your presence?

(Complaining Witness) 'A. I am almost sure it was. Because otherwise we don't allow any check cashing, unless they are signed in our presence. And if it's already signed, they would have to endorse it over again.

'Q. But you are...