People v. Buckey

Buckey 1985]

PEOPLE v BUCKEY PEOPLE v McWHORTER 7). (Calendar 6, 73929, 25, Argued 74232. June Nos. Docket Nos. 4, 1985. post, Rehearings denied 1205. —DecidedDecember jury Bay in the Circuit David G. was convicted Court, Theiler, J., X. of assault with intent to commit John Appeals, second-degree of criminal sexual conduct. The Court Kelly, P.J., J., concurring Kingsley, (Cynar, and in M. J. curiam, opinion per holding part), reversed in an prosecution engaged improper in cross-examination of the de- credibility regarding the of other witnesses and in fendant presence during improper argument final thereby gave opportunity testimony, trial him an to fabricate (Docket infringing upon present at trial No. to be 68728). cross-appeals. people appeal, the defendant The and by jury in the Kalamazoo Robert A. McWhorter was convicted Court, Salmon, J., kidnap conspiracy to Circuit Marvin J. Burns, P.J., kidnapping. Appeals, The Court of R. B. and and Bell, JJ., unpublished opinion in an R. M. Maher reversed curiam, during per finding error in the assertion closing argument present in that because the defendant was trial, throughout he was to fabricate the courtroom able regarding testimony, questioning (Docket kidnapping financial condition before and after the No. 54321). people appeal, cross-appeals. The and the defendant opinion by joined by Riley, Ryan, In an Justice Justices Supreme Brickley, Boyle, Court held: prosecutors’ during closing argument comments that the presence during gave opportu- of the defendants them an trial ^[1] [2, See the Comment or Am Jur Witnesses nesses dence is uncontradicted as accused’s failure to Am Jur §§ annotations 2d, 2d, References 4. argument by Trial §§ testify. §§ 106 et the ALR3d/4th 656-669. for Points court or 14 ALR3d 723. seq. amounting in Headnotes counsel Quick improper Index prosecution reference under Wit- evi- 424 Mich nity testimony to fabricate or conform to that of their other requiring witnesses was not error reversal. Opportunity permis- 1. and motive are to fabricate inquiry any prosecutor may sible areas of witness. A com- upon testimony ment and draw inferences from the of a wit- ness, defendant, including may argue a and that the witness is evidence, worthy supported by of belief. Where the as in cases, argument presence these an that the defendant’s at trial opportunity testimony afforded him an to fabricate or to con- testimony proper form his to that of other witnesses is com- upon credibility. ment Buckey, questioning by prose- 2. In of the defendant regarding credibility prosecution cutor of certain witnesses However, improper. prejudice no unfair to the defendant resulted, timely objection any prejudice. and could have cured McWhorter, required In remand is to determine whether the prosecutor’s questioning of relative to his finan- kidnapping cial condition before and after the was error which requires reversal. Buckey, reversed and remanded.

McWhorter, reversed and remanded. joined by Cavanagh, Williams, Justice Chief Justice dissent- ing, by prosecutor upon stated that comments a a defendant’s opportunity testimony being present to fabricate because of at impermissibly infringe upon right trial the defendant’s to be present rights testify at trial and the and to assist determining defense. The focus in whether a com- justified ments were should be on whether the comments could impermissibly infringe upon chill or the exercise of a constitu- statutory right, tional or rather than whether the comments were direct concerning or indirect. Prohibition of comments a opportunity testimony being to fabricate because of present people at trial would not be debilitative because ways attacking credibility numerous of a defendant’s already prosecutor. available to a While the mere fact that a listening defendant has particu- been to other witnesses is not larly probative credibility, prejudicial of its effect could be substantial. writing separately, Justice stated that where the provided record does not establish that a defendant a statement before trial and testify the defendant does not before the evidence, prosecutor conclusion of by all the a comment implying that testified last so that he could perjury commit is an unconstitutional comment on a matter give not in evidence and on the defendant’s earlier failure to a presumption statement, innocence is also violative of and right of counsel. to the assistance of the defendant’s and (1984) App reversed. 348 NW2d 53 133 Mich Opinion of the Court Closing Argument — Attorneys — — Prosecuting Witnesses 1. Credibility. Comments on upon from the prosecutor may draw inferences comment A defendant, witness, may argue including testimony of a worthy belief; supported where that the is not witness evidence, presence trial argument at the defendant’s an testimony opportunity to con- or an to fabricate afforded him proper testimony com- to that of other witnesses form his upon credibility. ment Opinion by Dissenting Cavanagh, Closing Argument — Attorneys — — Prosecuting 2. Witnesses Credibility. Comments on upon opportunity a defendant’s Comments impermis- being present at trial fabricate trial sibly infringe upon to be the defendant’s testify rights in defense. and the to assist J. Closing Argument — — — Prosecuting Attorneys 3. Witnesses Credibility. Comments on provided a a defendant the record does not establish that Where testify does not before trial and the defendant statement before evidence, of all the a comment conclusion implying last so that he could testiñed perjury comment a matter commit is an unconstitutional give a earlier failure to evidence and statement, presumption also of innocence and is violative of of counsel. the defendant’s to the assistance Kelley, Attorney General, Louis J. Frank J. George Caruso, Mullison, General, B. Solicitor Prosecuting Attorney, J. and Thomas Rasdale Prosecuting Mettee, Attor- Martha G. Assistant neys, people Buckey. for Kelley, Attorney General,

Frank J. Louis Gregart, General, Caruso, Prose- James J. Solicitor 424 Mich 1 Opinion of the Court cuting Attorney, and H. Michael Dzialowski and Joseph Prosecuting Skocelas, S. Assistant Attor- neys, people for the in McWhorter. Appellate (by

State Defender B. Richard Gins- berg) Buckey. for defendant Tieber) Appellate (by

State F. Defender Martin for defendant McWhorter. J. The issue common to both of these

Riley parties cases, and the one which we directed the requiring address, is whether error reversal occurs prosecutor argues when presence the defendant’s opportunity at trial is an for the defen- testimony. dant to fabricate Appeals panels The Court of in both an- cases affirmatively, reversing swered thus defendants’ judgments convictions. We reverse the of the Court Appeals. Buckey,1 Ap- In two members of the Court of peals panel prose- questions by held also during cutor cerning cross-examination of defendant con- prosecution

whether various witnesses lying requiring were constituted error reversal. again, judgment Here of we reverse the of the Court Appeals. panel pros-

The McWhorter2 also found that the questioning ecutor erred in about financial an condition times both before and after

alleged kidnapping. We remand the case to the Appeals Court for a determination whether this requires was error that reversal.

Finally, granted prosecutors’ appli- after we the 1People Buckey, App 158; gtd 133 Mich 348 NW2d 53 lv (1984). 419 Mich 924 McWhorter, People unpublished curiam, opinion per decided (Docket 2, 1984 54321), May gtd No. lv 419 Mich 924 Buckey op the Court appeal, defendants for to both leave cations cross-appeals alleging brought errors which other Appeals. by the Court of not been addressed had Appeals for of to the Court the cases remand We these issues. consideration People Buckey

A. Buckey was of assault convicted Defendant in the conduct to commit criminal sexual intent degree. in a mis- An earlier trial resulted second trial when the agree upon

jury a to was unable charged proceedings, In both verdict. completed offense of second- tried for the with and degree MCL conduct. criminal sexual 28.788(3)(l)(f). 750.520c(l)(f);MSA Testimony met defendant established that evening question complainant on in at a bar period time the two left that after and some stopped jeep. field and Defendant drove complainant that defendant testified vehicle. her to her and that he forced breasts touched genitals. exposed She further testified touch get struggled out of with defendant that she get jeep that, out, she did defendant when ground, got grabbed pushed her, her to the point pulled up, top got she her. a car At to the from defendant and ran over out under gave occupants, boys, ride four her a car. The seeing boys The four testified to home. ground push complainant hold or

either ground. her on the police gave a statement when

Defendant he claimed that he was arrested which objected complainant to his ad- had not sexual He she "freaked out” further stated that vances. proposition of further sexual after she declined 1 Opinion the of Court activity. nothing happened the He stated that on ground jeep. of outside testimony trial,

At was consistent except description statement, with his his of for happened jeep. what had fied that she had outside of the to the testi- He got ground

fallen as she may of out the vehicle. She tried to him kick again boys’ car, have fallen as ran to the she may he have fallen at that time well. as

During argument closing both his in trials the following unobjected-to made the re- marks: you’ll

If recall his cross-examination you’ll recall that he he was testified that preliminary at the examination back December through thing, of 1981. He sat the whole he heard Debbie testify, testify, boys DeFord he heard one of the reviewed, admitted and he also that he’d to police some anyway, report extent in connec- Now, tion nothing wrong with this case. there’s that, se, [sic, doing per with this reviewing the his] police is, report, point but gentle- ladies and men of jury, that the defendant knew —and testify also he the last witness to in this case —he stand, knew before he took witness com- pletely, People’s proofs what the going were to be. He completely knew what were. He also through admitted case proceedings that sat in this February back in year. this All our witnesses, except Trooper Stayer, testified at that time. He indicated on the witness stand he heard testify. testified, himself, them all He back then. He was cross-examined at that time. He indicated that he later heard all the remarks both made, made attorney concerning that testimony. So, gentlemen ladies and jury, point the defendant has known for pre- some time cisely People’s proofs what going were be. plenty He’s had figure of time to try way Bucket op the Court get prepared tell proofs and also to around our convincing manner. story conviction, appealed Following his alia, arguing, inter Appeals, the Court of of him cross-examina- asked questions certain closing argument con- above-quoted tion3 and the of defendant commenced his cross-examination prior proceedings at in questioning the case and about the case. The defendant about attendance prepared reading police reports in connection with exchange following occurred: And, you [Prosecuting Attorney]: "Q. Harkin testified that Detective taped. your you statements You’re didn’t have said that saying want happen? that didn’t happened he come the second time over "A. That [Defendant]: jailhouse, yes. that, talking talking "Q. the first time. I’m about I’m not about correct, never asked me. "A. That’s ”Q. he saying lying you about that? he’s Are "A. That’s correct. lying? saying ”Q. you is that Debbie DeFord And are say lying? Why I DeFord is "A. "Q. would Debbie lying saying you is about what —her that Debbie DeFord Are place Road? out on Nine Mile about what took place. really I knows took "A. don’t think she what asking you’re saying lying. ”Q. asking you if she’s I’m what —I’m "A. Yes. question. Attorney]: I think answered "[Defense responsive. "The It was Court: your testimony [Prosecuting right, you’re "Q. Attorney]: it All is saying lying. she’s said, lyin’, say I all "A. I think —like I can’t she’s don’t [Defendant]: sayin’ really happened out there. I’m is she don’t realize what , they "Q. boys what How about—how about who observed ob— you they’re saying lying too? are Uh-huh, part "A. "Q. about of it. So, Harkin, got right. Detective that was one All we’ve least more, liar, got boys. saying four You’re and we’ve four things. they’re lying about certain they say lying, saying they didn’t tell "A. didn’t were all I’m the— ”Q. (undistinguishable). You said "A. truth. —whole Well, "Q. you, you they you saying that I asked indicated —are were lying, Buckey? Mr. they No, they’re really lyin’, just not tellin’ what "A. weren’t saw. 424 Mich 1 op the Court which prosecutorial deprived

stituted misconduct to a fair All three him trial. members closing the panel agreed reversal, argument requiring resulted error People Fredericks, 114; relying on Mich App People Smith, (1983), 335 NW2d 919 lv den App NW2d 488 (1977). Judge Cynar disagreed Mich 803 finding that majority’s the cross-examination was improper and not harmless reasonable beyond doubt, that a writing objection could have timely People Buckey, any cured 133 Mich prejudice. (1984) J., App NW2d 53 (Cynar, concurring part). v McWhorter B. charged

Defendant McWhorter was and con- 750.349, kidnap, victed of MCL conspiracy 28.581, 28.354(1), 750.157a; MSA and kidnapping, 750.349; MCL MSA 28.581. facts are set forth in the succinctly Court of

The. Appeals opinion: Defendant’s convictions out of arose the abduc-

tion of David Nixon from defendant’s law office Snyder William and Joseph Postelwaite. The evi- dence to kidnapping tended show that was arranged by defendant extorting as a means of payment legal services rendered. Defendant by Douglas was retained Suess to represent parents and a friend who had been arrested in Florida driving while trucks filled with right, people All saying so have one we liar and four not what "Q. they they saw, really you’re saying? is that what — No, sayin’ they 'em. "A. what I’m is I think Mr. let Detective Harkin cops they programmed and the other — "Q. only case, programmed You’re the one that hasn’t been in this you’re saying?” that what Opinion of the Court being marijuana shipped to marijuana. The part states, including Michigan, as of an other operation equally run Suess and Nixon. proceeds from Suess share Nixon owed during accumulated

marijuana sales which had pay intended to the course of the venture. Suess proceeds; these portion of defendant however, some with any him provide with refused to Nixon Suess, pay to defen- money. dant Nixon refused When and emphatic forceful told him to be more Nixon. Snyder oppor- offered Ultimately, defendant owed him. Snyder to fees which to tunity work off Snyder Nixon and scare Defendant him into to follow asked Snyder money. proved giving Suess some suggested accomplish the task and to be to unable agreed help. pair to seek recruiting some from Postelwaite. assistance Postelwaite, Suess, Snyder, and point, At some office. Defendant defendant all met at defendant’s indicated The coming in shortly. Nixon would be that meeting if with Nixon group agreed pay money, go right he not did they would grab him. would office and Nixon at defendant’s went arrived An library. into his law

downstairs with defendant argument library Defendant returned from ensued. Snyder grab Nixon as soon as and told left possible. Defendant others then the office. Snyder and bound Nixon with a cord and Postelwaite took farm where he was him Postelwaite’s eventually agreed pay tied to a tree. Nixon $30,000. dant, conveyed this offer was to defen- When accept arrange- agreed he deal and collecting for the funds. ments were made extorting in the Defendant denied involvement money only of learned that Nixon from Nixon. He claimed

had been beaten abducted after the fact.

A review of the record indicates careful prosecution confirmed much of the wit- op the Court testimony, denying parts nesses’ while those which repeated would incriminate him. He made refer- ences to other witnesses’ or lack thereof. meeting at defendant’s office and the abduc- place May following tion took 1977. On the day, paid $30,000 Nixon in cash and was released. secretary picked up $15,000 Defendant’s in cash Snyder grocery from parking and Postelwaite in a store money

lot and took the to defendant’s office. closing argument,

In his made following remarks: going that, I’m not to belabor I think the line is drawn. I think on the one side of that you line and on the person, persons, have one people two six you

other side of the line have Bob McWhorter says who here is I where was and all people other say, Bob, who were involved hey, you were over here you with us. What are trying to tell us? You didn’t know going what was on. on. You were obvious as going to what was [sic] patsies We are the on the other side of this line. I on, didn’t know going what was says Bob Mc- Whorter. Well, challenge I you you ask to look at

that because that is where the line is drawn. Did he know? Did he not know? you When think about drawn, how that line is I want you to remember many this. How present How of those other witnesses were in the during courtroom this testimony? many people knew where that line was so when it came time to walk you line knew where to walk? I submit you only to because that one person one knew where that line was person heard all that testimony. Attorney]: I object, will [Defense Your Honor. That is the every fact, case. In has to be during all the testimony. improper. That’s

The Court: may proceed. You People Opinion of the Court Honor. Your [Prosecuting Attorney]: you, Thank only person is the Bob McWhorter Specifically, testimony go, to knew where where who knew had submit any implications togo to avoid very it he walked took that line and you carefully. Appeals, to the of Court appealed

Defendant People v allegations. Relying raising numerous Fredericks, reversed supra, Appeals of the Court convictions, requiring error finding defendant’s closing argument. in the prosecutor’s reversal II has ad- in these cases been common issue The Appeals, the Court of panels two by dressed first consid- issue was differing results. The Smith, The Smith Court supra. People ered remark, unobjected-to found the gave oppor- them in court presence the defendants’ "inadvisable.” testimony, their to conform tunity harmless However, the error was it held cured instruction could have curative because a Smith, supra, 470-471. any prejudice. Fredericks, supra. People other case was

The Fredericks Court reversed argued to prosecutor had because the conviction have altered may the defendant jury other testimony wit- to match Smith, the trial. As in during he had heard nesses in Fredericks had not objected to Smith, however, argument. Unlike the prosecutor’s the Fredericks Court found the error be This considered harmless. type that could be finding that was based Court’s conclusion right, fundamental argument infringed on which, i.e., trial, right to be 768.3; statute, noted, MCL guaranteed Court Opinion of the Court 28.1026, MSA tion, the United States Constitu Const, US Am VI. The Fredericks Court analogized prosecutorial comment refer testify. ences to the defendant’s failure to Com type ments the latter are erroneous because they infringe on the defendant’s constitutional Const, V; to remain silent. US Am Const 1, § Mancill, art 393 Mich NW2d The Fredericks Court be just lieved that as comment on the defendant’s testify "place[s] failure an intolerable burden on forego the defendant’s decision to exercise or his right silent,” to remain reference to the defen opportunity dant’s to conform his to impermissibly that of other witnesses burdens his right present to be at trial: discrediting This method testifying a defen- places

dant’s version of the facts between the horns of an intolerable dilemma: the present defendant must decide to either trial himself at being presence and risk discredited his or absent himself from trial and the avoid risk. A position defendant his that, in this freely cannot exercise right Therefore, present to be at trial. we hold argument jury, his to the a may not attempt to discredit a defendant’s testi- mony by presence reference to the defendant’s at [Fredericks, supra, trial. 120.] In Fredericks, contrast to Smith and from cases jurisdictions other have found similar remarks permissible argument credibility. telling be on In brevity, rejected arguments the courts have identi- imper- cal to defendants’ at bar that such remarks missibly infringe right present to be at Martin, 595, trial. State v 101 NM 686 P2d (1984); 937 Hoxsie, 7, State v 101 NM 9; 677 P2d (1984); Howard, v 872, State 323 NW2d Opinion of the Court State, 664, Reed 664-666 (SD, 1982); SW2d Robinson, (Tex State Super 157 NJ 1982); App, cert den NJ 119-120; 384 A2d 484; 391 A2d supra, Robinson, State 120, the held

In court deny did not comments4 that or present at trial right to be him: against confront witnesses Obviously these witnesses he did confront reading a his trial. And reasonable was of the comments at that were clearly reveals testi- credibility of defendant’s comment on a defendant mony. It is well settled when silent and takes waives remain defense, thereby subjects stand his own credibility to the as himself cross-examination story. issue would involve whether of his And . . Here the issue story been . fabricated. had his testi- credibility whether testimony of that of the mony was tailored to witnesses, perfectly proper inquiry. other [Cita- tions omitted.]

Ill supra, Fredericks, argue defendants Relying imper- prosecutorial comments issue right a constitutional missibly burden defendant’s him for exercis- present penalizing to at trial by be ing that right._ 4 sitting Buniak told while Mr. Buniak testified. Mr. "He was here mortar, specific specific making It mortar. was

us kind said he used a color in he used that, Robinson about of his trademark. When I asked Mr. ability listen had the to sit here and same color. He testify .... to the other witnesses and me, gentlemen. saying, I think it’s I was "Excuse ladies As story, interesting story, he was Mr. when to note that Robinson’s comported testifying other stories from presented with the the witness stand way point say at it looks in a which would that were incredible It to It doesn’t credible. It looks unbelievable. me. look Robinson, something supra, 119-120. looks like fabricated.” 1 Mich Court analogized above,

As noted the Fredericks Court comment similar that at issue to comment aon right testify defendant’s at trial. Remarks of type prohibited they the latter are ask the jury to draw the inference that guilty something hiding merely or has because he California, not taken the stand. Griffin v 380 US (1965);People 609; 1229; 85 Ct 14 L S Ed 2d 106 v supra.5 Mancill, Had the comment in the instant something cases been like: "If defendant was inno appeared cent, would he have for trial?” the anal ogy might applicable. be That would seem to abe presence direct comment on the defendant’s at analogy However, trial. we think the on is strained Here, facts the cases bar. at the comments only indirectly right related to defendants’ to be present Any resulting at trial. inference was not guilt, directly of but rather that defendants had opportunity to conform their be testify. cause heard other witnesses agree Therefore, we are unable to with the Appeals Court of in the at cases bar that prosecutors’ arguments directly in fact commented right present on the defendants’ trial. be at arguments simply Rather, we believe the con- credibility. cerned the defendants’ It is well-estab- prosecutor may upon lished that the comment vein, urge parallel 5 In a similar defendants that a right be drawn alleged infringement between the to be at trial impermissible rights e.g., in their prosecutorial cases intrusions on other — comment a defendant’s exercise of Sixth Amend right Rushen, improper, ment to counsel held v Bruno F2d (CA 9, 1983), (1984); People Meredith, cert den US 920 Ill 1065; App (1980), testimony 3d 405 NE2d 1306 the defendant’s refusal to consent to a search held violative of his Fourth Amendment rights, People prosecutorial Stephens, App 133 Mich 349 NW2d 162 comment on the defendant’s exercise the marital privilege reversal, requiring Spencer, found to he error App 527; (1983); 343 NW2d 607 reference exercise of the Fifth Amendment to remain held silent arrest Bobo, improper, People 390 Mich 212 NW2d 190 People 15 Opinion the Court of may testimony from it and inferences and draw including defendant, argue witness, that People worthy Wirth, Mich of belief. not App (1896);People Couch, 49 Mich 66 NW (1973); 391 Mich lv den 211 NW2d App 623; 205 NW2d Cowell, 44 Mich testimony Opportunity motive to fabricate any inquiry permissible witness. of of areas are presented arguments cases in the instant Both prosecutions’ testimony theory defendants’ explanations carefully appeared of drawn to be prosecutors presented. testimony cases, the In both testi- of defendants’ the content commented mony earlier inconsis- to his own either in relation testimony (Buckey), testimony to the or tent (McWhorter). witnesses other rights may argue other further Defendants argue permitted prosecutors implicated to are if be right i.e., to in the instant those as did cases— right silent, the attor- testify, to remain rights may privilege. be ney-client These latter attempt to because, an contend, affected, might prosecutorial tactic, a defendant combat this right testify, his to waive induced not be arrest, or at make a statement silent and remain testify to earlier as a witness his counsel call the defen- consistent with which were discussions testimony. trial dant’s why point argument misses the

This improper arguments prosecutors’ in these were may, suggest that a do not cases. We argue every who testifies case, that a defendant merely fabricated has through the evidence. trial and heard has sat every will Thus, be said it cannot forfeiting one a choice between faced with be pres- e.g., being may that he exercise so another — 424 Court testifying trial, ent but not so to avoid as prosecutorial risk of he comment that fabricated testimony. When, here, however, as the evidence support argument per- inference, does that the is fectly proper credibility. In comment on this situa- prosecutorial tion, the comment not that the present trial, defendant was at the but that his presence gave opportunity him the to conform his testimony. they accept argument To defendants’ that exercising right

must choose between their to right be at trial and some other would be say right to a that defendant has the to fabricate or conform without comment. Finally, reject Buckey’s argument we prosecutor’s improper that comments were focused on his status aas defendant. compelled may A defendant be at trial "to write or speak appear identification, court, for to in stand, particular gesture.” stance, walk, or assume to make a California,

Schmerber v (1966); 757, 764; US 86 S Ct 16 L Ed 2d 908 People Markley, App 658, 661; 99 Mich (1980), grounds NW2d 615 rev’d on other 413 Mich procedures might These said be to take advantage presence yet of trial, the defendant’s our has research disclosed no case which has held procedures such violative to attend his trial. closing arguments

Therefore, we hold that proper. the instant cases were

IV alleged Next, consider we the second of instance prosecutorial prompted misconduct which reversal Buckey. The conduct which the basis was for finding of error cross- People Opinion of the Court Buckey6 in which he was asked examination complainant, the four whether believed young lying. men, Harkin and Detective were questioning Appeals found the

The Court improper [is] "it for on the erroneous basis provide opinion on the an witness to comment or credibility credibility of trier of witness since matters of another determined

are be App 759, 767; 333 Adams, 122 Mich fact. jurisdiction re- NW2d 538 remanded 1073; (1983).” 417 Mich NW2d tained supra, Buckey, cited the Court 163. The cases Appeals applying nondefen- rule concerned commenting credibility of dant witnesses other witnesses defendant.7 rule witness guilt

or or innocence of Appeals the is the Court of believed apply the also where defendant should supra, providing opinion. Buckey, 163. the Appeals agree it of that was with the Court We improper defendant for the ask credibility prosecution wit- comment nesses. Defendant’s not credibility

opinion of their probative However, we do not of the matter. agree prejudice the unfair error resulted defendant. might This was not a where defendant case bolstering improper prejudiced by of the

have been allowing prosecution by credibility witnesses or opinion guilt credibility to be ex- an pressed. on his or strategy

Concededly, prosecutor’s by inviting label him to discredit defendant prosecution However, the sub- "liars.” witnesses exchange stance of the indicates that questions. fail to rather well We dealt by how he discern was harmed questions._ 6 nSee 3. 7 Row, 505, 507; (1904); People Mich NW 13 Adams, Parks, 738, 750; supra; People App 57 Mich 226 NW2d Walker, 142, 145; (1975); People App 198 NW2d 424 Mich 1 Dissenting Cavanagh,

Moreover, noted, Appeals as the Court of defen- dant’s trial counsel did not raise the objection Cynar urged on appeal. agree We with Judge timely objection defense counsel could have "[a] cured any prejudice, either by precluding such further or questioning by obtaining an appropri- ate cautionary instruction.” Buckey, supra, (Cynar, J., concurring in part).

Therefore, we reverse the judgment of the Court Appeals on this issue.

V We prosecutors’ hold that closing arguments presence defendants’ gave trial them an opportunity to fabricate or conform their testi- mony to that of other witnesses did not result error which requires reversal. Additionally, prosecutor’s cross-examination of defendant Buckey did not result in error requiring reversal. Accordingly, judgments Ap- Court of peals in both cases are reversed. Buckey is re- manded to the Court of Appeals for consideration of the issues raised in defendant’s cross-appeal. McWhorter is remanded to the Appeals Court of for consideration of whether ques- tioning of defendant McWhorter as to his financial condition was error which would require reversal and also for consideration of the issues raised in defendant’s cross-appeal.

Ryan, Brickley, Boyle, JJ., concurred with Riley, J.

Cavanagh, J. I respectfully dissent from the majority’s determination that a prosecutor may comment on a defendant’s opportunity to fabricate testimony because of his presence at trial. I am People Dissenting Opinion Cavanagh, prosecutorial persuaded im- comments that such infringe permissibly on a defendant’s constitu- statutory trial, to be as tional and testify rights and assist in his as his well App Fredericks, 125 See defense. 114, 119-120; 335 NW2d majority be error for a concedes it would The presence prosecutor ab- link a defendant’s or guilt innocence, or at trial with ultimate sence per- linking presence credibility is that with but holding, pays majority In no heed missible. so prosecuto- 5 where cases it footnote to the cites infringe upon could the exer- rial comments which having lights little to other cise of constitutional improper. guilt The focus have been found do with imper- could be on whether comments should missibly infringe a exercise of constitu- chill or right, statutory rather than whether tional or prose- If or are "direct” "indirect.” comments cutor merely can call a defendant a liar testimony from trial and differs he attended forego may witnesses, either other appearing testifying or until testifies. court prosecuto- suggest majority The does that such always justified, not does rial comments are but improper. intimate be do not not know where ing when would the line be drawn. could Follow- reasoning, majority’s it would seem pros- any differs, time defendant’s argue ecutor could details to make the that he manufactured certain

story appear consistent with testimony. other certainly

Prohibiting these comments would debilitating people. al- to the be ways ready has to attack a defendant’s numerous credibility prior peachment statements; im- inconsistent — arguments prior convictions; story inherently incredible or 424 Mich 1 Opinion by Levin, J. guilt evidence of is overwhelming; comparisons

of witnesses’ demeanors while testifying. The mere fact that a defendant has been listening to other witnesses is not probative particularly of his credi- bility, but its prejudicial effect could be substan- tial.

I would not hold such per comments be error requires se that reversal. See People v Buckey, 158, App 164-165; Mich Fred (1984); 348 NW2d 53 ericks, supra; Smith, People App Mich 470-471; lv 252 NW2d 488 den While the against evidence McWhorter was relatively strong, the Court of Appeals found error requiring reversal because prosecution witnesses were convicted felons who had "entered into various arrangements favorable with pros ecution in exchange for their testimony.” It also found that McWhorter was not incredible and that it might have been believed but for improper comments. I am per suaded that this conclusion was clearly erroneous affirm would that determination.

As to defendant Buckey, find the issue to be even closer. Since Buckey’s trial was essentially a credibility contest between complainant and defen- dant, the jury convicted defendant of the lesser included offense of assault with intent to commit second-degree criminal sexual conduct and the prosecutor questioned improperly about the credibility witnesses, of other I would affirm the determination of the Court of Appeals error occurred which requires reversal. Cavanagh,

Williams, C.J., concurred with J. The question presented, in these cases on appeal, consolidated is whether the Court of Levin, J. Appeals properly convic- reversed the defendant’s having adverted on the basis of the tion opportunity hear all the defendant’s testified, the attendant before evidence suggestion may modified have the defendant that testimony have otherwise would from what he trial remand for a new reverse and would said. Buckey. and affirm in McWhorter opinion that Court concludes The of the require reversal. do not comments suggesting "in from Court draws back The every argue may] de- [the case testimony has fabricated testifies fendant who merely through heard the trial and he sat however, cases, In the instant the evidence.” support the infer- does "the evidence Court finds testimony.” "fabricated the defendants ence” that specify opinion what does not The Court that either to show shows or tends evidence Buckey testimony. In fabricated or McWhorter may Buckey have done that he there is evidence there is not. In McWhorter so. gave Buckey, a statement

In the defendant police shortly He was after his arrest. preliminary trial. and at the examination at the people’s completion and the case After the gave presentation evidence, of all his other testimony somewhat from statement that varied given police shortly arrest. after his had to the gave McWhorter, a statement

In agent. was Because the statement to an fbi people people, succeeded and the offered having the defen- when the statement excluded sought introduced, no there was to have it dant testimony at evidence that McWhorter’s record trial was the he heard of what altered as a result trial. 1

A permissible Motive, bias, and interest are areas inquiry comment. Because trials occur event, sometime after the opportunity all witnesses have an testimony. to fabricate their All wit- ample nesses have time to think about and re- going they say. hearse what are Most witnesses they testify, talk to someone before either an investigator lawyer. may or a A witness be asked if he has discussed his with another person and whether he made aware of the testimony of other witnesses. prosecutors many here did not in so words

argue opportunity the defendants had an testimony, fabricate or that fabricated their acknowledges, but, as the Court the innuendo is there. agree

All would that no witness has a is, however, It fabricate. the essence of the defen- rights silent, counsel, dant’s to remain to consult presumed innocent, and to be fully be made aware of all the evidence before he required speak to decide whether to at all. Consequently, the defendant has the constitution- ally protected opportunity to know all the evi- speak. dence before he decides whether This right is not secured to him so that he can fabricate testimony, among things, that, but so other he innocently something does not overlook before he speaks thereby appear withholding and to be something speaking falsely. or constitutionally

Comment on the protected opportunity to all know the evidence speak before he decides whether to is an attack on privileges his exercise of his constitutional and rights. violative of those Bucket

B charge Buckey of second- was tried twice degree The first trial conduct. criminal sexual jury was unable in a mistrial when concluded upon agree trial concluded The second a verdict. being guilty Buckey of- of the lesser found with to commit second-de- with intent fense of assault gree Ap- The Court of sexual conduct.1 criminal findings peals of two reversed on the' basis prosecutorial the cross- The first was misconduct. Buckey in which examination complain- he that the him believed asked ant, whether police young men, officer the four lying. here, second, was which consider The were the argument suggesting closing testimony Buckey of the had heard opportunity to fabricate had an other witnesses an presented explanation for against him. charge of sec- on a arrested

When ond-degree conduct, he made a sexual criminal police. met that he had He said to the statement agreed complainant her to take in a bar and the home. friend’s for a while stop hotel, in his at a left After a pair "four-wheeling.” go Jeep drove Buckey parked. touched her He According genitals. touched his breasts and she Buckey, love, but if she wanted to make he asked any not have birth she did she refused because acting "weird.” She then started control device. boys Jeep got left some She out hap- up. anything if When asked who had driven Jeep pened ground no. he said outside hap- complainant’s of what account At trial the they pened prior the hotel was time left to the Buckey’s generally to statement with consistent 28.788(7((2). 750.520g(2); MSA MCL 424 Mich Levin, J. police testimony. his trial She that the and denied they "four-wheeling,” agreed went but that parked. Buckey pulled the off road and She also Buckey breasts, had her but said touched genitals. forced touch claimed he had her to response Buckey’s inquiry She said that her to having was whether she interested sex was indeed could not she did have that she any birth control device. point, complainant’s however,

At this ac- the diverged Buckey’s. According sharply count from complainant, struggle get the to she had to out to grabbed Buckey her, of the car. of the car Outside pushed ground, got top her to the on of her. pulled got up, up When another car she from under occupants, to and went over that car. The boys, gave

four her a ride home. boys preliminary The four testified at the hear- ing and at trial that when drove into the field ground. They the two observing Buckey push the to were on testified complainant

the the ground being top or to his of her. closing argument prosecutor

In his com Buckey’s opportunity mented on or fabricate testimony: conform his "The defendant has known precisely people’s proofs for some time what going plenty try were He’s be. had time to figure way proofs get around our and also to prepared story convincing to tell his in mann er."2_ 2Immediately statement, this before said: you’ll testimony you’ll "If recall his cross-examination recall preliminary

he testified that he was at the examination back through thing, in December of 1981. He sat whole he heard testify, boys testify, Debbie DeFord admitted that he’d he heard one of also reviewed, anyway, police report to some extent Now, nothing wrong in connection with doing case. this there’s that, se, per reviewing police report, is, point but the ladies gentlemen jury, the defendant knew —and also he Buckey Opinion by Levin, J.

c McWhorter charged with and convicted of conspiracy kidnap3 to kidnapping.4 The Court of Appeals held that comments by prose- made during cutor his closing argument concerning presence McWhorter’s at trial and his opportunity to conform his testimony improper, were reversed conviction, and remanded for a new trial.

McWhorter’s convictions arose out of the abduc- tion of David Nixon from McWhorter’s law office twice, After he November ground the lies best—he felt it was in his best interest to lie to because he could witness Brian report, however, dant he the mean much one Harkin, testified, through proceedings fact, perjured Debbie And, defendant] He He indicated that he later heard all the remarks that both I made He knew the last witness to also believes that our The 3 MCL "Now, MCL testified, himself, ground example witnesses, except Trooper Stayer, cooked if Guettler once ground outside the you attorney DeFord took a stand, completely, he told Detective told Detective before the 750.349, 750.157a; 750.349; himself; there is abundant before sits completely 9th, 1981, indicated on outside the don’t think to him. I up of—of this. through outside the urinate, testify, an made, MSA 28.581. it’s in his best interest to lie to continued that there was evidence that Jeep. explanation testify preliminary begins police report in this case back in back then. He was cross-examined at that time. what ignore when Detective Harkin interviewed the defen- mean, Jeep. Harkin that concerning after he and once to walk over to the he’d lie to the witness stand swing Now, Now, Harkin, what the Jeep. in this case—he knew before he took the MSA preliminary proof he told a lie about He said that he say he had to come in here and if around our 28.581, 28.354(1). In those circumstances it was in his were. He also admitted that he sat examination, you gets in this case that the had even been you’d him, you, absolutely nothing People’s proofs evidence of Detective recall the testified at that time. He [the something testimony.” think examination, chance and kicked at know that the truth doesn’t February he heard them all of those four proofs. Now, only again. before Brian Guettler Detective nothing taking place you.” completed, got did of this review the were If out of the after he hears happen boys took defendant, you’d him, young going here is Harkin. year. testify [sic] place back on look at testify. simply on the police All of to be. boys. Jeep just car. had He 424 Mich 1 by Joseph Postelwaite.5 Snyder William was that McWhorter prosecution’s theory The Suess, and Postelwaite agreed Snyder, from extorting money Nixon as a means of kidnap Nixon, to be used half of which was approximately fees to McWhorter. pay legal Suess to meeting prosecution’s explanation May as a provided place his office was that McWhorter and where the go would willingly where Nixon if did meeting be executed kidnapping could not result in a resolution. satisfactory trial that McWhorter had been re The evidence at established Kenney by Douglas represent parents and Patrick tained who had been arrested in Florida while tained substantial shipped apparently Suess to driving which con trucks being quantities marijuana. marijuana of The was states, operation including Michigan, part an to other as run Suess and Nixon. proceeds marijuana Nixon owed Suess his of the from sales share during Suess which had accumulated intended however, the course of the venture. portion proceeds; 'pay McWhorter with some of these money. provide any him with When Nixon Nixon refused to Suess, emphatic pay him more refused to McWhorter told to be forceful with Nixon. Snyder opportunity to work off fees which McWhorter offered an Snyder Snyder owed him. McWhorter asked to follow Nixon and giving money. Snyder proved him into Suess some to be unable scare to accomplish suggested recruiting help. pair the task and some sought assistance from Postelwaite. Suess, Postelwaite, Nixon, Snyder, and McWhorter all met at Kenney secretary, McWhorter’s office.Patrick lene McWhorter and of the state’s witnesses Whorter, and McWhorter’s Char- Crouch, present. point, testimony were also At this diverge. According to Mc- point among parties at some after a discussion in the office, basement conference room at McWhorter’s with testified meeting McWhorter left Kenney and Crouch to have lunch at a local restaurant. Nixon shortly departure, emerged after their from the by Snyder room and was assaulted and Postelwaite. Postel- Snyder waite testified that he and intended to extract information regarding money from Nixon owed Suess. Various forms of severe results, and, physical and Postelwaite concluded that produce point, Snyder abuse failed to at some did not want to remain might They McWhorter’s officebecause someone arrive. took Nixon to overnight Postelwaite’s farm where he was held and released the next upon $30,000 day payment of cash. Charlene Crouch testified that she $15,000 up picked Snyder parking in cash from in the Postelwaite grocery following day lot of Kalamazoo store on the and returned it to McWhorter’s office. his involvement trial, denied At McWhorter kidnapping. that of confirmed His any that he had witnesses, denied but other planning knowledge or the fact of until after beating and abduction. of the execution closing argument, said: In his that, I think going to belabor I’m not of that on the one side I think the line is drawn. line people persons, six person, two one you have Bob you line have the other side and on McWhorter the other I and all was says here is where who Bob, say, hey, involved people who were trying you are us. What over here with you were going on. what was didn’t know tell us? You to You were We are going on. was as to what obvious [sic] I this line. side of patsies on the other on, says Bob Mc- going know what didn’t Whorter. you to look at Well, I ask challenge you and drawn. Did line is where the that because you think about When Did he not know? he know? how that drawn, you to remember I want line is witnesses were those other many How this. testimony? during this in the courtroom so that line was people knew where many How when where knew you line to walk it came time person one you only I submit to walk? person that one line was because knew where that heard testimony. all that Honor. object, I Your Attorney]: will [Defense fact, case. In every in the defendant’s

That is he testimony. during the all has to be improper. That’s may proceed. You

The Court: you, Your Honor. Attorney]: Thank [Prosecuting person only is the Specifically, Bob McWhorter testimony go, knew where to knew where who I implications and submit go any had to to avoid very it line and he walked you he took carefully. Mich 1 Opinion by Levin,

D prosecutor The could on properly inquire cross- police examination statement to the why Buckey’s explanation did not to the that he fully conform gave after he heard the other witnesses tes- had tify. Buckey’s lawyer object prose- did not to the circumstances, argument. cutor’s Under new trial is not justified prosecutor’s argument. McWhorter,

In the defendant’s did lawyer ob- ject. I would reverse and for a trial in remand new McWhorter.

The McWhorter were in comments impermissible on in comments matters evi- dence. There in nothing is the record that indi- changed cates McWhorter or supplemented his testimony hearing after of other Indeed, witnesses. when McWhorter’s lawyer twice sought to introduce the of a copy statement which given, McWhorter had before ex- preliminary amination, to an fbi agent, objected and succeeded in excluding the only evidence which would supported have or contradicted comments closing argument. prose- cutor’s assertion simply has no basis the record. if Even one to agree were that a prosecutor may properly make the objected-to argument, proposi- tion I consider before a com- subsequently, such must, ment minimum, made there aat be a factual basis in the support record to the claim.

Jury argument must be based solely presented evidence trial and reasonable infer- People 29 v Levin, J. m.6 This is the adduced therefro that can be enees and for both civil and criminal cases rule in both prose While the and counsel.7 prosecution defense from to draw inferences jury ask the may cutor record,8 comment may in the appearing facts facts and the argue on the testimony,9 belief,10 worthy is not evidence that witness going to obtain a conviction not seek may imply jury11 the evidence before beyond implicates the jury that evidence not before closing in their Although, defendant.12 "[c]ounsel must there . latitude . . given are wide arguments a basis of fact be tions.” Pritchett for such asser [in evidence] States, v United App 87 US DC added.)13 (1950). (Emphasis 374, 438 376; 185 F2d 6 Wolfish, 520, 1861; e.g., See, 533; 60 L Ed 2d Bell v 99 S Ct 441 US 478, 485; 1930; Kentucky, citing Taylor (1979), v 436 US 98 S Ct 447 Williams, (1978) added), Estelle v (emphasis and see 56 L Ed 2d 126 Winship, (1976). In re 1691; 501; 397 48 L Ed 2d 126 425 US 96 S Ct (3d 1068; (1970); Wigmore, 358; Evidence L 368 9 90 S Ct 25 Ed 2d US 369, ed), Local Union No 2511; 361 F2d Rommell-McFerran Co v § (CA 658, 6, 1966). 661-662 7 369, supra; See, e.g., Co v Local Union No n 6 Rommell-McFerran Morris, (CA 396, 5, 1978); Edwards v United States v 568 F2d 401 (CA 5, 1975); Sears, Co, 276, Hall v Texas Roebuck & 512 F2d 284-285 Co, (CA 875, 5, 1962); Wigmore, R 6 & New Orleans 307 F2d 878-880 (3d ed), 1806. Evidence § 8 Morlock, 284, e.g., People See, 286; v 206 NW2d 538 233 Mich 177; (1983); People Gonyea, 126 Mich (1925); App v 337 NW2d 325 (1977). Caldwell, People 690, 691; App v 1 See also 78 Mich 261 NW2d DiHarce-Estrada, (CA 637, 5, 1976); United States v 526 F2d 641-642 1966). (CA States, 165, 168-169 5, Dunn v McMillian v United 363 F2d States, (CA 883, 5, 1962). United 307 F2d 886 (1914). Caldwell, Cona, 641; 9 People n 8 180 Mich 147 NW2d 525 supra. 10 Couch, e.g., People See, 69, App 49 211 NW2d 250 Mich (1973). lv den 391 755 11 Vera, (CA See, 1349, 11, 1983); e.g, United States v 701 F2d (CA 971, 5, 1981), Phillips, cert den United States 664 F2d (1982). US 1136 12See, States, e.g., supra; States v McMillian v United United n 8 Martinez, Velasquez, (CA 5, 1972); United States v 466 F2d (CA 1009, 1012 5, 1974). 496 F2d States, App See also Stewart v United 247 F2d 42 101 US DC Kirkes, 719, 723-724; (1957); 2d 249 P2d Cal 424 1

30 by Levin, J. Opinion The trou particularly comment closing argument blesome because "[t]he [a prosecuting] must be considered as com attorney ing from one who virtue of his office and as by State representative great power wields People Kirkes, (Cal v 816, 243 831 influence.” P2d 1952).14Indeed, App, when an remark is improper made a state’s his by attorney, position repre as a government sentative of the lead "a may jury , in . . place more confidence word than in [his] member of the bar.” United an ordinary Spangelet, 1958).15 States v (CA 2, 258 F2d 342 "The responsibility public prosecutor of a differs advocate; from that of duty the usual is to seek justice, not ABA merely to convict.” Code of Pro fessional Responsibility, Ethical Consideration 7- 13.16

II McWhorter, Where, as in the defendant has not given evidence, a statement admitted into such prosecutorial imper- comments also constitute an missible comment on the defendant’s exercise of his constitutional to remain silent.

The Supreme United States Court has consis- held tently that after an accused given has been Kirkes, Superseded, People supra (reversing n 13 an order trial). denying murder, prosecution appeared new In this for it where eight that the the years defendant was not indicted until more than after killing and the state’s witness had told no one of a certain implicating indicted, occurrence argument defendant until after prosecuting attorney long the witness’ silence safety against was because of her fear for her own if she testified improper supported defendant was held it was not evidence. States, App See also Allen United 106 US DC F2d (1959); States, supra accord Stewart v United n 13 at 55-56. predecessor provision of this is ABA Canons of Professional primary duty lawyer Ethics No 5: prosecution engaged public "The of a convict, justice is not to but to see that is done.” postarrest may rights, not be silence Miranda impeachment purposes. Doyle Ohio, used for 2240; 49 L Ed 2d 91 US Although 96 S Ct distinguished,17

Doyle the Court has been holding that, where has remained steadfast (Miranda warnings) may government have action govern- silent, the accused to remain induced ment purposes.18 impeachment may his silence for not use give person does not a state- Where an accused allowing trial, ment before speak until after all the comment on his failure to give require in, evidence is tends to accused prelimi- trial, a statement before indeed before having nary examination, that his to establish testimony of witnesses at the trial did heard the testimony. cause him to alter his This is not contrary Doyle. the rationale of Ill contrary to fun- comment is justice criminal damental maxim of the American system, presumption innocence, and violates the defendant’s Fifth and Sixth Amendment rights. ” ’protects The Due Process Clause the accused 17 Charles, 404; 2180; See Anderson v 447 US 100 S Ct 65 L Ed 2d (1980) (defendant 222 trial Jenkins v reh den 448 US 912 could be asked at why pretrial testimony), statement differed from his trial (1980) Anderson, 231; 2124; 447 US 100 S Ct 65 L Ed 2d 86 (use Weir, prearrest permissible), 455 US silence and Fletcher (1982) (silence 603; 1039; 102 S Ct 71 L Ed 2d 490 after arrest but defendant), warnings may impeach before Miranda used be On (CA Remand, 6, 1982), corpus proceeding, 680 F2d 437 habeas Weir v Wilson, (CA 6, 1984), 744 532 F2d cert den 469 US 1223 18 ("no See, Anderson, e.g., supra, Jenkins v n 17 447 US 240 arrest”), government petitioner action induced to remain silent before Weir, 606, supra, citing and Fletcher v Charles maintained after n 17 US Anderson v ("Doyle against the use a criminal defendant of silence bars assurances”). receipt government 1Mich

against proof conviction except upon beyond reasonable doubt of fact consti every necessary ” Francis tute the charged.’ crime with which he is Franklin, 307, 1965; 85 L 313; 471 US 105 S Ct (1985).19 Ed 2d 344 con "provides This standard crete presumption substance for the of innocence— that bedrock 'axiomatic and elementary’ principle whose 'enforcement lies at the foundation ” In re Win administration of our criminal law.’ ship, 358, 363; 1068; US 90 S Ct 25 L Ed 2d (1970).20

The presumption of innocence "is a of de way scribing the prosecution’s duty produce both to guilt evidence of and to convince the jury beyond a reasonable Taylor Kentucky, doubt.” US 478, 483-484, n 12; 98 S Ct L 1930; 56 Ed 2d 468 (1978).21 permits It "the accused to 'remain inactive secure, until the prosecution has taken up its burden produced persua evidence effected Wolfish, . . Bell . .” sion 441 US 99 S (1979).22 Ct 60 L 2d Ed The presumption also serves "as an admonishment to the jury judge an guilt accused’s or innocence solely evidence adduced at trial and not on the basis of suspicions may arise from the fact of his arrest, indictment, or or from custody, other mat ters not introduced as proof at the trial.” Id. (Emphasis 533.23 supplied.)_ 19 York, Patterson v New 197, See also 204-205; 432 US 97 S Ct Winship, supra, 2319; In re (1977); 53 L Ed 2d 281 n 6 397 US 364. Winship opinion quotes States, Coffin v United 432; 20 The 156 US (1885). Taylor Kentucky, 394; v 15 S Ct 39 L Ed 481 See also n 6 supra; Williams, supra, Estelle v 503, reh den 426 US 954 n 6 425 US Remand, Estelle, (1976); On (CA 5, 1976). Williams v 537 F2d 856 21 Taylor opinion State, cites Carr v 152, 156; 192 Miss 4 So 2d (1941), McCormick, 967-969). (see Evidence, McCormick, p 887 806 Evi Wolfish, supra. ed], pp See also Bell v dence [3d n 6 22Quoting Taylor Kentucky, supra 484, Similarly, at n 12. see Shannon, People (1979). App 138, 143; 88 Mich 276 NW2d 546 23Citing Taylor Kentucky, supra, 436 US 485. See also Estelle v 33 particular prac of a impact actual Since "[t]he cannot be jurors always judgment tice on ., . of deleteri probability . fully determined for close rights on fundamental calls ous effects Williams, Estelle v 501, 425 US scrutiny.” judicial (1976).24 126 Such 1691; 48 L Ed 2d 504; 96 S Ct insinuations, indica requires scrutiny "[n]o guilt should be implications suggesting tions or other than admissible displayed jury, before United permissible argument.” evidence 1977).25 Dawson, 563 (CA States v 149, 5, 151 F2d because, again, prose is true particularly This apt carry . . . are cutor’s "insinuations much prop when should weight against the accused Berger States, 295 US v United none.” carry erly (1935).26 78, L 1314 88; 629; 55 S Ct 79 Ed to comment permitted When a is Wigmore, Williams, Winship, supra; supra; 6 n 6 In re n 6 Evidence (3d ed), § 2511. 24 Texas, 532; 1628; opinion 85 S Ct The Estelle cites Estes v US Murchison, 133; 623; 75 S Ct 14 L Ed and In re 349 US 2d (1955). 99 L Ed (CA 5, 1967). Texas, Quoting 381 F2d Brooks v State of 26The Court said: ordinary [prosecuting] attorney representative not of an "The is the obligation sovereignty party controversy, to a but of a whose obligation govern all; govern impartially compelling as is as its interest, therefore, prosecution is not that it and whose a criminal case, such, justice he is in a shall win a peculiar but that shall be done. As law, very the twofold definite sense the servant guilt escape aim of which is that may prosecute But, shall not or innocence suffer. He vigor- indeed, with earnestness and he should do so. — blows, may liberty foul while he strike hard he is not at to Strike duty improper ones. It calculated to legitimate average jury, is as much his to refrain from methods produce wrongful every conviction as it is to use bring say just means to about a one. It fair to that the greater degree, in a or less has confidence that these obligations, plainly upon prosecuting attorney, will which so rest faithfully Consequently, improper suggestions, be insinua- observed. and, apt especially, personal knowledge tions assertions of are weight properly carry carry L Ed 1314. against they should much the accused when States, 78, 88-89; Berger 55 S Ct none.” v United 295 US (Emphasis supplied.) States, 236, 247-248; See also Viereck v United 318 US 63 S Ct L 87 Ed 1 Opinion by Levin, J. by testifying last a defendant could have molded testimony prior witnesses, to conform to reversing proof is the burden of presumption of innocence. The comment communi- jury cates to the that in the absence of evidence to contrary may it assume both that the defen- dant testified last order to conform his testi- mony and that he did fact conform his testi- mony.

IV only prosecutorial Not does such comment seek presumption to transform the of innocence into a presumption perjury, penalizes it exercising right for his constitutional to hear all including evidence, witnesses, his own before testifying. right

A defendant has a constitutional to decide if, when, he will take the stand. Brooks v Tennessee, 605, 406 US 612; 92 S 1891; Ct 32 L Ed (1972).27 deciding 2d 358 testify, Before whether to only a defendant has the to hear not all the evidence, state’s but all also his own witnesses: Although a defendant usually will have some strength idea of evidence, of his he cannot be absolutely certain that his witnesses will testify as expected or will be effective on the stand. They may collapse persis- under skillful and cross-examination, tent through no fault of their they may own impress fail jury as honest and reliable witnesses. . . . [T]he unlikely to know whether this will prove entirely favorable. Because these uncer- tainties, a defendant may not know at the close of the State’s case whether his own testimony will be Washington, 668, Cf. 686; Strickland v 2052; 466 US 104 S Ct (1984); Sullivan, Cuyler L Ed 2d 674 446 US 100 S Ct 64 L Ed 2d 333 at 609- his cause. [Id. helpful necessary or even 610.] recog- has Court Supreme

The United States exercise this to the defendant allowing nized that a defen- ease the risk and increase right may concluded but testimony, his conforming dant’s burden- justify to not sufficient danger the is when decision whether defendant’s ing the Id. at 611.28 testify. will all hear right a to has

Because evidence, evidence, his own as well as the state’s proce to court testify, deciding whether before have been right of this exercise dures that burden Amendment of the Sixth as violative regarded the counsel is right to right to counsel. "[T]he counsel,” Mc assistance to the effective right Richardson, 759, 771, 14; 90 n S Ct 397 US Mann v (1970),29 is right and this 2d 763 1441; 25 L Ed with the interferes government the denied when tactical "important to make of counsel ability Tennessee, supra Brooks decision,” take the will when the defendant whether were burdened because rights stand.30 McWhorter’s testify to last right of his constitutional exercise that he testified him to insinuations subjected his conforming perjury by he did to commit when witnesses. preceding to that of the V penalty constitute a Such insinuations 28 requiring a crimi Tennessee statute The Court held any "desiring testify other testi shall do so before to nal defendant case,” trying by violated mony court defense is heard for the against to rights self-incrimination the accused’s constitutional the assistance of counsel. supra. Washington, n 27 Cited in Strickland Washing Tennessee, supra Strickland v at 612-613. Cf. Brooks v Sullivan, supra, cases); 446 US ton, (citing Cuyler n 27 supra v. n 27 344. rights.

exercise of constitutional Few cases have question directly dealt on the whether comment opportunity perjure himself by exercising infringe- testify last is an rights. ment of or Sixth his Fifth Amendment California, Griffin US S Ct sufficiently analogous 14 L Ed 2d 106 recognition require this case to that constitutional Griffin, error was committed. In stressed the defendant’s and to take failure the stand

urged upon jury the inference that such inability failure demonstrated the defendant’s deny guilt. Holding prosecutorial such com- privilege ment of the Fifth Amendment violative against self-incrimination, United States Su- preme penalty Court "a deemed statement imposed exercising for courts constitutional privilege. privilege by making It cuts down on the costly.” its assertion Id. at 614. inquiry

The Court in Griffin focused its on "compelled whether Griffin had been ... to be a against witness himself.”31 The instant case also question right calls into the Sixth Amendment purpose "penalty analysis,” counsel. For the of any, however, little, is there if valid distinction privilege against between the self incrimination right and the to counsel.32In Griffin both and the prosecutorial sought case, instant comments raise an unfavorable inference from the exercise of constitutionally protected right. a Es- pecially guilt where of the accused turns 31 Const, US Am V. Yeager, 613, Accord United ex rel States Macon v 476 F2d (CA 3, (1973) 1973), (comment cert 414 US den on having Solem, (D lawyer); Supp defendant called Zemina 438 F SD, 1977), (CA 1978) (comment 8, aff'd 573 F2d 1027 on defendant having lawyer); People Meredith, 1065, App called a Ill 3d 1071- (1980) (comment having 405 NE2d 1306 on defendant called a lawyer). credibility witnesses, such largely on the "penalty” free exer- on the a constitutes comment rights. of those cise unless the was that inference

In Griffin guilty exercised not have he would were testify. right refused Amendment his Fifth McWhorter that unless is the inference Here other wit to hear needed testimony to could conform that he nesses so constitu not have exercised would theirs he testify all the at the conclusion tional concurring Hugo remarks Black’s Justice evidence. in Grunewald States, 425- 353 US v United (1957), are L Ed 2d 963; 1 426; 77 S Ct apposite: that would special circumstances no are] [There privilege to discredit a constitutional

justify use of it. The value who asserts person or convict destroyed if largely privileges constitutional them. relying on penalized for persons can be VI argument respond majority to the infringe prosecutor’s right accused’s comments by relying Schmer- at trial to be 1826; 16 757, 764; 86 Ct California, S 384 US ber taking of a held that the which L Ed 2d 908 police sample by physician direction blood objection after his over his from the defendant driving his Fifth not violate did arrest for drunken against privilege self-incrimination. Amendment cases, States Schmerber, related United 2d 1149 1926; 18 L Ed Wade, 218; 388 87 S Ct US (1967),33 263; California, US 87 S 388 and Gilbert v appear requiring in an that a The Court held bag” "put money lineup say in the did the identification violate the Fifth Amendment. Mich 1 Opinion by Levin, (1967),34concerning Ed

Ct 18 L 2d 1951; procedures, decided identification were ground that the evidence was non-testimonial and scope outside of the Fifth the Amendment.35 distinguishable The instant case is from Schmer- progeny ber and in is at its that what issue is not defendant, the but rather the identification testimony. content of his At the of substantive risk being tautological, testimony is testimonial not physical.

VII majority jurisdic- The relies on from other cases Super Robinson, In tions. State 157 NJ (1978), A2d 569 cert den 77 NJ A2d 498 appellate an intermediate court that ruled closing by argument comments " by 'comported that with presented way the other that stories were in a taking handwriting exemplars Court held that of was not violative of the Fifth Amendment. 35 The Court said in Schmerber: privilege protects being compelled testify an accused from "[T]he against himself, provide or otherwise the State evidence of a nature, testimonial or communicative withdrawal analysis question blood and use of in this case did not involve compulsion (Emphasis supplied.) to these ends.” majority In Wade the reasoned: compelling merely "We have no doubt the accused to exhibit person prosecution his involves no prior for observation witness to trial compulsion give having of the accused to evidence testi- significance. Similarly, compelling witnesses, speak monial . . . Wade to within hearing purportedly distance of the even to utter words robber, compulsion uttered was not to utter statements of nature; required ’testimonial’ identifying use voice as an characteristic, physical speak guilt.” (Emphasis supplied.) not to companion California, In the case of Gilbert v the Court held that taking handwriting exemplars did not violate the defendant’s rights. Although acknowledged Court one’s voice and hand- writing handwriting communication, majority are means of said that a "mere written, exemplar, in contrast to the content what is itself, body physical identifying like the voice or outside is an characteristic protection.” (Emphasis supplied.) Fifth [the Amendment’s] People Levin, 39 v Opinion point say it at and looks incredible which I would ” comment on the witnesses’ credibil- to me’ was a ity deprive defendant of and did not trial. This or to at to confront witnesses be unconvincing opinion of the court’s presumption innocence consider the failure to arguments on Fifth Sixth Amendment and the Super 159; 366 court, 145 A2d NJ which the lower (1976), decision, well as its failure its as 1371 based in no there evidence to consider that fabricated record to indicate testimony.36 Texas, 644 v 633 SW2d In Reed (Tex 1982), simply App, that a the court declared here was to the comment issue comment similar Howard, 323 NW2d 872 In v "reasonable.” (SD, 1982), State constitu- address the the court did not simply com- concluded tional issues and credibility. challenged The ment the defendant’s 7; Hoxsie, 677 v 101 NM in New Mexico courts (1984), Martin, 101 in v NM P2d State 620 (1984), discussion, relied, 595; P2d 937 without 686 in Robinson. decision persuasive of the Court more the decisions find opinion particularly Appeals,37 the well-reasoned App People Fredericks, 114; 125 Mich 335 v (1983), uniformly held that have NW2d 919 which are such comments improper.38_ 36 Appeals parallels People opinion The in the instant case Court (1983). Fredericks, 114; App 335 919 125 Mich NW2d 37 Smith, 470-471; App 463, People 488 Mich 252 NW2d v Mich 803 73 Fredericks, 114; (1977); App People Mich lv den 125 (1983); App Buckey, Mich 348 NW2d 335 NW2d 919 53 Morris, (1984); People App 139 Mich NW2d that, excluding judges sitting by designation, appears at least It agreed, principle, eight Appeals judges such Court of have infringe impermissibly and Sixth on a defendant’s Fifth remarks Amendment rights. Smith, Fredericks, cases, Buckey, defendant’s In three of Smith, panel object In found error counsel failed to at trial. cases, although Buckey, defense In two Fredericks and be harmless. 424 J. .

VIII prose- The state contends in that the McWhorter comments, error, if cutor’s harmless. were beyond error was not doubt. harmless a reasonable "prove beyond The state must a reasonable complained of doubt the error did contrib- not Chapman ute to the verdict obtained.” Califor- nia, 824; 24; US 87 S Ct 17 L 2d 705 Ed (1967). An error of is not constitutional dimension possibility harmless if "there is a reasonable might [it] have contributed to the conviction.” Fahy Connecticut, 85, 86-87; 229; 375 US 84 CtS (1963). 11 L Ed 2d 171 McWhorter,

In because the critical issue was knowledge participation McWhorter’s and in the plan credibility fact, before the as a witness persons awas central issue. Most of the who people acknowledged testified for the their com- plicity in the of commission the offense. This is not against case where evidence the defendant overwhelming”39 was otherwise "so that the consti- beyond not, doubt, tutional error did a reasonable contribute to his conviction. concerning comments the de- appear

fendant’s order would to have may to, been directed and of, have had the effect raising jurors’ in the minds at least the inference perjuring that McWhorter was himself so as to appear guilty. might an Such inference tend to object trial, counsel failed Appeals the Court of reached the merits and found the Buckey comments were reversible error. The panel finding read Smith as "improper such comments to be and therefore in error.” case, Morris, In the most objected. recent defense counsel The Court Appeals "ill-advised,” found the comment to be but held that trial court’s instruction was curative. Wainwright, 371; Milton v 407 US 92 Ct L S 33 Ed 2d 1 (1972); Harrington California, 250, 254; 395 US 89 S Ct 23 L Ed 2d 284 jury version McWhorter’s to disbelieve cause events. of the

IX not establish does sum, the record In where provided before a statement testify the conclusion before does not trial and he evidence, a comment of all innuendo last with testified that the defendant argument to make other reason —there is no perjured himself, unconstitutional is an —that evidence, not in a matter comment on give statement, and earlier failure presumption of innocence violative is also the assistance of the defendant’s counsel. Buckey, for a new remand

I would affirm in McWhorter. trial

Case Details

Case Name: People v. Buckey

Court Name: Michigan Supreme Court

Date Published: Dec 4, 1985

Citation: 378 N.W.2d 432

Docket Number: Docket Nos. 73929, 74232. (Calendar Nos. 6, 7)

Court Abbreviation: Mich.