People v. Rosales
| Decision Date | 08 July 1987 |
| Docket Number | Docket No. 87845 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ruben ROSALES, Defendant-Appellant. 160 Mich.App. 304, 408 N.W.2d 140 |
| Court | Court of Appeal of Michigan — District of US |
[160 MICHAPP 305] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William D. Frey, Pros. Atty., and Lawrence J. VanWasshenova, Asst. Pros. Atty., for people.
State Appellate Defender Office (by Richard B. Ginsberg), for defendant-appellant on appeal.
[160 MICHAPP 306] Before WAHLS, P.J., and MAHER and SHIPMAN *, JJ.
The issue we are confronted with in this case is whether a defendant is entitled to reversal of his conviction when the prosecutor takes advantage of a bench trial and injects several errors into the proceeding that he admittedly would not have injected into a jury trial, and the judge is silent as to those errors. We hold that although error is less likely to be harmful at a bench trial, the prosecutor's duty to promote justice and avoid error is nonetheless as imperative as it is in a jury trial.
Following a bench trial in Monroe Circuit Court, defendant, Ruben Rosales, was convicted of four counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. 28.797. Defendant then pled guilty to a third-felony offender charge, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. He was sentenced to concurrent prison terms of from twenty-five to seventy-five years for each conviction.
As a result of an armed robbery by three masked men, Manuel Soto was convicted by a jury of armed robbery. Before he was sentenced, Soto entered into an agreement with the prosecution to testify against defendant and another in exchange for dismissal of an habitual offender charge and no recommendation regarding his sentence. According to Soto, defendant was the third person involved in the robbery.
Defendant testified that he had not robbed the store. However, because defendant was not arrested until 1 1/2 years after the robbery, he was unable to recall where he was on the day of the robbery. Evidence that tended to discredit Soto's [160 MICHAPP 307] testimony included evidence that defendant had dated Soto's girlfriend while Soto was in prison, and that Soto had asked defendant to be an alibi witness for him or to find someone else to testify for him, but defendant refused. Soto also demanded $1000 from defendant for not implicating him in the robbery.
During trial, the prosecutor made several "errors," which he states would not have been made at a jury trial. The defense attorney failed to object to the errors and the trial court made no comment on them. As stated above, defendant was found guilty. We find that due to the cumulative effect of the errors, defendant was denied a fair trial and manifest injustice resulted. Thus, we are forced to reverse and remand.
Initially, defendant argues that by referring to Soto's prior consistent testimony from the preliminary examination and by stating his belief that Soto's testimony was honest, the prosecutor improperly bolstered and vouched for the credibility of his witness. Defendant's conviction rested in large part on Soto's credibility; therefore, defendant argues that manifest injustice resulted from these errors.
During direct examination, the prosecution elicited the following testimony from Soto:
As a general rule, neither a prosecutor nor anyone else is permitted to bolster a witness' testimony by referring to prior consistent statements of that witness. As Justice Brennan, in People v. Hallaway, 389 Mich. 265, 276, 205 N.W.2d 451 (1973), commented:
"Where the prior extra-judicial statement of a witness agrees with his testimony, the out-of-court remark is self-serving and is not generally permitted under any established exception to the hearsay rule."
This case concerns a scenario similar to that discussed in Hallaway. In 1984, Soto was offered favorable sentencing if he implicated his companions in the crime. In January, 1985, Soto testified at the preliminary examination. As of April 15, 1985, the date he testified at defendant's trial, he had not yet been sentenced. Therefore, both at the preliminary examination and at defendant's trial Soto had a legitimate hope that favorable testimony on his part might lead to a light sentence for him. Soto's credibility clearly was of essential importance in the case. The testimony of Soto and defendant in large measure amounted to a credibility contest, the former testifying that defendant planned and participated in the robbery, and the latter testifying that he in fact had absolutely no involvement in, or knowledge of, the criminal activity. Motivation for Soto to falsify or color his testimony in order to receive leniency at sentencing manifestly existed. In such a circumstance where credibility is crucial and motivation to lie is apparent, a prosecutor's reference to the prior consistent statements of a state's witness must be [160 MICHAPP 309] viewed with great suspicion. While we do not decide that the prosecutor's error in this matter, standing alone, would warrant reversal, we conclude that reference to Soto's prior consistent statements constitutes a serious impropriety.
In addition, we note that the prosecutor compounded the error during his closing argument when he expressly vouched for Soto's credibility. The prosecution made the following comments:
It is well-established that the prosecutor may not vouch for the character of a witness. People v. Ignofo, 315 Mich. 626, 24 N.W.2d 514 (1946); People v. Flanagan, 129 Mich.App. 786, 795, 342 N.W.2d 609 (1983); People v. Bairefoot, 117 Mich.App. 225, 229, 323 N.W.2d 302 (1982); People v. Yearrell, 101 Mich.App. 164, 300 N.W.2d 483 (1980). The mere statement alone of the prosecutor's belief in the honesty of a witness' testimony generally does not constitute error requiring reversal if, as a whole, the remarks are fair. Flanagan, supra, p. 796, 342 N.W.2d 609. Soto's prior consistent statements were self-serving and, as already explained, improperly referenced by the prosecutor during examination of the witness. Further reliance on the statements during closing arguments, buttressed by the prosecutorial assessment of Soto's honesty, merely served to amplify the original impropriety. Thus, the assessment of Soto's testimony offered by the prosecutor during closing arguments was improper.
Defendant next argues that another error occurred[160 MICHAPP 310] when the prosecutor improperly bolstered the credibility of Soto's testimony that the witness agreed to testify truthfully in return for a sentence bargain.
During the direct examination of Soto, the prosecutor elicited the following testimony:
The prosecutor does have a duty to disclose promises made to obtain an accomplice's testimony. People v. Atkins, 397 Mich. 163,...
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...complainant's testimony did not constitute error requiring reversal because, as a whole, the remarks were fair. People v. Rosales, 160 Mich.App. 304, 309, 408 N.W.2d 140 (1987). In any case, a prompt admonishment to the jury regarding its role as factfinder would have cured any error. Stana......
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...obligated to present evidence of an alibi in order to prove his innocence was recently addressed by our Court in People v. Rosales, 160 Mich.App. 304, 408 N.W.2d 140 (1987), lv. den. 429 Mich. 861 (1987). This Court reversed the defendant's conviction because the prosecutor in the rebuttal ......
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...not have been cured by an instruction. People v. Gonzalez, 178 Mich.App. 526, 534-535, 444 N.W.2d 228 (1989); People v. Rosales, 160 Mich.App. 304, 307, 408 N.W.2d 140 (1987). During opening argument, the prosecutor noted defendant's nationality and mentioned that many people in the courtro......