Opinion
Docket No. 139303.
Submitted August 11, 1993, at Lansing.
Decided October 19, 1993, at 9:25 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Robert C. Williams, Assistant Prosecuting Attorney, for the people.
Fried, Saperstein, De Vine Kohn, P.C. (by Steven R. Sonenberg), for the defendant.
Defendant was convicted by a jury, as charged, of conspiracy to possess with intent to deliver and to deliver more than 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2) (a)(i). He was sentenced to mandatory life imprisonment without parole, and appeals as of right. We reverse.
The charge arose from an alleged conspiracy to import and sell drugs in the metropolitan Detroit area. Many of the alleged participants in the conspiracy were Chaldean Iraqis. Defendant's trial took place in 1991, during the third and fourth weeks of the Persian Gulf War against Iraq.
Defendant first argues that he was denied a fair trial by the prosecutor's misconduct. Specifically, defendant complains that the prosecutor made numerous references to his nationality, that he vouched for the credibility of the people's informants and for the strength of the people's case, and that he appealed to the jury's fear of drug trafficking in their community. We agree that defendant was denied a fair trial, even if he did not object to every single instance of misconduct now complained of, because the cumulative prejudicial effect of the prosecutor's comments could 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 courtroom audience were also Chaldean. Later, the prosecutor followed the lead of one of his witnesses who, despite defense counsel's successful objections, repeatedly referred to defendant as being part of the "Arab connection." The prosecutor even told the witness, after being told to rephrase a question, that the witness could "[t]alk about the Columbians [sic] and everybody all you want, but we can't mention that `A' word, do you understand?" The prosecutor also elicited the Arabic nationality of several witnesses who allegedly conspired with defendant to sell drugs and asked them about the large Chaldean population in the Detroit area. He even referred to the "Arabs" during closing argument.
"A defendant's opportunity for a fair trial may be jeopardized when the prosecution interjects issues broader than the guilt or innocence of the accused." People v Rohn, 98 Mich. App. 593, 596; 296 N.W.2d 315 (1980). Even in civil trials, "[i]t is reversible error to deny the opposing party a fair trial by making irrelevant and inflammatory ethnic allusions." George v Travelers Indemnity Co, 81 Mich. App. 106, 114; 265 N.W.2d 59 (1978) (involving "protracted inquiry into the plaintiffs' Chaldean ethnic affiliation"). Whenever "racial, ethnic, or religious matters" are mentioned "there is always the risk of incidentally arousing prejudice — and this Court abhors injecting the poison of prejudice into any legal proceeding." Id. "Any effort to arouse the prejudice of the jury `cannot be overlooked, nor can it ever, in the final analysis, prove other than detrimental to the interests of the litigant whose counsel resorts to such a course.'" Id. (quoting Solomon v Stewart, 184 Mich. 506, 511; 151 N.W. 716). The prosecutor's ethnic allusions were clearly improper, especially because they were made in the context of the Persian Gulf War.
Similarly, it is a prejudicial error to introduce evidence of a witness' agreement to testify truthfully "if used by the prosecutor to suggest that the government has some special knowledge that the witness is testifying truthfully." People v Enos, 168 Mich. App. 490, 492; 425 N.W.2d 104 (1988). Such testimony should be admitted only with great caution. Rosales, supra at 311. For example, in Enos, the defendant's conviction was reversed where the prosecutor not only discussed the plea agreements and the promise to testify truthfully, but also told the witnesses that the deal would be voided if they lied and then recalled a particular witness, forced him to admit he had lied, threatened to charge him with perjury, asked him if he had lied about anything else — which he denied — and then reemphasized these events during the closing argument. Enos, supra at 492-495.
Here, the prosecutor elicited testimony from two accomplices-turned-informants that the prosecutor had personally promised to send them to prison for life without parole if they lied. He forced one of them to admit that, although he "could" lie and embellish his story, he would not do so because he had been promised life in prison if he lied. The prosecutor referred to this promise again during closing argument. Further, the prosecutor impermissibly elicited testimony from law enforcement officers regarding the steps they had taken to ensure that the informants were telling the truth. See Rosales, supra at 311; see also People v Smith, 158 Mich. App. 220, 230-231; 405 N.W.2d 156 (1987). The prosecutor's comments were improper in light of these cases.
Also, a prosecutor is not permitted to inflame the jury's emotions regarding "the drug problem." People v Williams, 65 Mich. App. 753, 756; 238 N.W.2d 186 (1975). Further, he may not express a personal belief in the defendant's guilt. People v McCoy, 392 Mich. 231, 240; 220 N.W.2d 456 (1974). "`The prosecutor may not attempt to place the prestige of his office, or that of the police, behind a contention that the defendant is guilty, but he may argue that the evidence shows that the defendant is guilty.'" People v Erb, 48 Mich. App. 622, 632; 211 N.W.2d 51 (1973) (quoting People v Cowell, 44 Mich. App. 623, 628; 205 N.W.2d 600).
During closing argument, the prosecutor stated that the street value of the cocaine involved was enough "to retire the debt of half the Third World countries" and was more "than all of us together will earn in our lifetime probably." He told the jury that the evidence might give them the impression "that this whole world is full of dope dealers" but that that was because "we get them all in this trial because we're working with one of the biggest organizations that you can ever imagine." He also referred to evidence that tended to show that some activities in furtherance of the alleged conspiracy had taken place at a public swimming pool and asked, "How much do you think of this happens when you're out at the swimming pool?"
Additionally, the prosecutor stated several times that his case was very strong, that "[t]his is in front of you, it is in black and white moving pictures and it doesn't get any better than that," and that the evidence was so strong that "sometimes these cases seem too good." He stated that "[t]his wasn't a bought case, this was a perfect case, this was a perfect case. These dope cases don't get any better." Finally, he said that the case had been "presented to you well wrapped up, well organized, [and] that's as good as it is going to get" and asked "[w]hat more can you possibly expect law enforcement to do to prove the case to you?" Again, the prosecutor's comments were improper.
Defendant also argues that the prosecutor erred in introducing evidence that there was a very unusual secret compartment in defendant's car that contained a gun holster and also by introducing evidence that defendant may have facilitated an assault by driving another drug dealer to the location where he was beaten. We agree in part.
Evidence of the secret compartment was marginally relevant and therefore the trial court did not abuse its discretion in admitting it. However, the beating occurred well after the termination of the alleged conspiracy. Therefore, evidence of defendant's role in the beating was irrelevant to defendant's participation in the conspiracy. Such evidence was also highly prejudicial because it contributed to the prosecutor's effort to show that defendant was a bad person who deserved to be convicted.
It is possible that the prejudice resulting from some of the errors below could have been cured by a timely instruction. In the aggregate, however, and in light of the timing of the trial and of the credibility disputes involved, these errors undoubtedly deprived defendant of a fair trial. Given the mandatory life sentence without parole, we cannot reward the prosecutor's improper attempt to obtain a conviction at any cost.
Defendant also argues that his sentence constitutes cruel and unusual punishment. Because we are ordering a new trial, this issue is moot. We note, however, that the Supreme Court has rejected defendant's argument. See People v Fluker, 442 Mich. 891; 498 N.W.2d 431 (1993); People v LoyRafuls, 442 Mich. 915; 503 N.W.2d 453 (1993).
Reversed.