Opinion
Docket No. 52058.
Decided April 13, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and Gerald L. Charland, Assistant Prosecuting Attorney, for the people.
Nora J. Pasman and John Nussbaumer, Assistant State Appellate Defenders, for defendant on appeal.
Defendant was convicted by a jury of first-degree criminal sexual conduct, sexual penetration while armed with a dangerous weapon, MCL 750.520(b)(1)(e); MSA 28.788(2)(1)(e), and armed robbery, MCL 750.529; MSA 28.797. He appeals and we reverse.
The complainant in this case testified that she and her husband had known defendant for four or five years. On October 9, 1979, at approximately 11 p.m., the complainant answered a knock at the door and found defendant, who said he had come to talk about a debt he owed complainant's husband. The complainant's husband was not at home, and she invited defendant in while she wrote down her husband's phone number. As defendant was about to leave, he pulled out a knife, put it to the complainant's throat, and subsequently forced her to perform a sexual act. Defendant also took some cash from the complainant's purse. The entire episode took place in approximately 15 minutes.
In his opening statement, defense counsel told the jury that the complainant and her husband were framing defendant in retaliation for defendant's nonpayment of a debt owed complainant and her husband arising out of a drug transaction between them. Defendant, testifying in his own behalf, explained to the jury how he had been lured to the complainant's home on the night in question.
Defendant was allowed to testify in detail concerning the drug transaction which resulted in the debt owed complainant and her husband and also testified that complainant's husband had been very persistent in attempting to collect the debt right up until the time of the alleged incident. Another witness testified that he was present during the alleged drug transaction and was allowed to relate those details which he could recall.
On cross-examination, complainant testified that she had no knowledge of any drug transactions between her husband and defendant and also stated that her husband had not engaged in drug activities for quite some time. Complainant's husband testified that defendant did owe him some money, but that he could not recall how much or what the debt was for, and denied that he was involved in a drug transaction with defendant.
Defendant contends that the trial court improperly disallowed testimony concerning more recent drug activities on the part of complainant's husband, which allowed the complainant's husband to portray himself as completely out of the drug business, creating an impression that he was no longer interested in collecting a drug-related debt. The proffered testimony was intended to support defendant's contention that the complainant had a motive for testifying falsely. As a general principle, a witness's bias or prejudice may be shown by extrinsic evidence, since "particular conduct and circumstances form the only means practically available for effectively demonstrating the existence of bias". 3A Wigmore, Evidence (Chadbourn Rev), § 948, p 784. There is no conflict between this rule and MRE 608(b). See, e.g., United States v Opager, 589 F.2d 799, 801 (CA 5, 1979).
There seems little question that, since the case against defendant consisted almost entirely of complainant's testimony, any possibility of the existence of a motive for testifying falsely should be presented to the jury. Of course, the trial court has wide discretion in determining how far afield the inquiry should go, and "has the responsibility for seeing that the sideshow does not take over the circus". McCormick, Evidence (2d ed), § 41, p 81.
The inference defendant sought to establish by the excluded evidence was highly tenuous, and we believe that defendant was afforded sufficient opportunity to demonstrate the possibility that the prosecution's chief witnesses may have had a motive for testifying falsely. There was no abuse of discretion by the trial court in excluding testimony concerning other drug activities of the complainant's husband.
In his next issue, defendant would lead one to believe that at least four witnesses were allowed to repeat statements made by the complainant in an effort to show that she consistently told the same story. We find that complainant's husband was the only witness to testify to the substance of a statement made by complainant. Nonetheless, the testimony of complainant's husband was not admissible to prove the truth of defendant's guilt, and in the absence of a defense claim of recent fabrication, it was inadmissible to bolster the credibility of the complainant by showing that her story had not varied from the time of the incident. People v Therrien, 97 Mich. App. 633; 296 N.W.2d 8 (1979).
The error of admitting the bolstering testimony was compounded by the prosecutor's argument to the jury. While addressing the jury, the prosecutor implied that he was personally vouching for the credibility of the complainant, and improperly interjected extraneous matters in the case by attempting to appeal to the civic-mindedness of the jury.
Defense counsel's failure to object is only one factor to consider. With our assessment of the efficacy of a cautionary instruction, under the circumstances here, the absence of an objection is not fatal, and further the error cannot be considered harmless. People v Wright (On Remand), 99 Mich. App. 801; 298 N.W.2d 857 (1980).
Reversed and remanded for a new trial.
I must respectfully dissent from the majority opinion.
While I agree that the trial court properly excluded extrinsic evidence of alleged current drug dealing on the part of complainant's husband, I do not agree with the majority that such evidence would have been proper to show bias. Testimonial evidence of current drug dealing offered in response to denial of such dealing would not be relevant to bias based on an old drug-related debt. Such evidence would only be relevant to determine credibility. Thus, the evidence was properly excluded under MRE 608(b), which does not allow admission of extrinsic evidence of specific instances of conduct to attack the credibility of a witness.
I agree that the testimony of complainant's husband as to the substance of the statement made by complainant was admitted in error. However, I do not conclude that that testimony, in conjunction with the prosecutor's remarks to the jury, resulted in reversible error. The jury witnessed complainant-wife's testimony as to her statement. If her testimony was perceived as credible, the husband's hearsay testimony had little effect. If the jury tended to disbelieve complainant, the husband's testimony would have presented a further example of defendant's theory that husband and wife had fabricated the charges to get even with defendant.
Defendant's contention that certain remarks by the prosecutor amounted to reversible error is without merit. First, these claims were not preserved for review in that no objection was made to them at trial. The remarks were not so prejudicial that they could not have been cured by a cautionary instruction. People v Rojem, 99 Mich. App. 452; 297 N.W.2d 698 (1980), People v Lasenby, 107 Mich. App. 462, 468; 309 N.W.2d 572 (1981). Failure to consider the issue would not have resulted in a miscarriage of justice. People v Chaplin, 102 Mich. App. 748, 753; 302 N.W.2d 569 (1980), rev'd on other grounds 412 Mich. 219; 313 N.W.2d 899 (1981). See also People v Duncan, 402 Mich. 1, 15-16; 260 N.W.2d 58 (1977).
Consideration of the remarks reveals harmless error at best. When evaluated in the light of the relationship it bears to the evidence admitted at trial, the prosecutor's statement, which defendant claims vouches for the credibility of complainant, becomes little more than an attempt to argue guilt based on the evidence to be adduced at trial. See People v Cowell, 44 Mich. App. 623; 205 N.W.2d 600 (1973), People v Erb, 48 Mich. App. 622; 211 N.W.2d 51 (1973). A prosecutor "is free to argue that the evidence shows that the defendant is guilty * * * and he has not only the right but the duty to vigorously argue the people's case". People v Cowell, supra, 628-629.
Similarly, I am not persuaded that the allowance of the remarks defendant claims appealed to the civic duty of the jury constituted error. The complained-of remarks did not inject into the trial broader issues than guilt, nor was there an appeal to save the city from crime. People v Lasenby, supra, 468. The remarks simply do not approach the level of expression found prejudicial in People v Wright (On Remand), 99 Mich. App. 801, 808-809; 298 N.W.2d 857 (1980), lv den 410 Mich. 854 (1980).
Even when considered together, the admission of the husband's hearsay testimony and the prosecutor's remarks amount to nothing more than harmless error under the standard articulated in People v Wright, supra, 810-811.
I would affirm defendant's conviction.