*1 v CALLOWAY PEOPLE 11, 1988, Rapids. February at Grand Submitted Docket No. 87249. 18, 1988. appeal applied July Leave to for. Decided Calloway, Arthur Callo- also known as Charles Howard Everett Court, by jury way, a in Kalamazoo Circuit convicted was J., Mullen, first-degree possession and of murder H. Charles during felony. ap- of a Defendant firearm the commission pealed. Appeals held: The surrounding publicity 1. failed to show that Defendant trial, having provide deprived failed to case him of fair his transcript voir dire which this Court can review change having move for a of trial venue. claim failed to court, and thus has not 2. did not raise in the trial Defendant appeal, preserved whether evidence of certain for the issue of police inculpatory to a officer statements defendant made by the on the have admitted based should not been warnings. Appellate issue not review of an of Miranda absence important appropriate trial court where an raised in the regarding admissibility is raised constitutional of the outcome of case. evidence that decisive rule the Miranda is not itself is not the case here since such but, rather, safeguard procedural right, is a a constitutional privilege dеsigned protect an individual’s Fifth Amendment self-incrimination, testimony police and the officer’s equivocal due to its nature. determinative of the outcome not obligated, sponte, not to conduct a 3. trial court was sua The hearing of defendant’s confes- on the issue of voluntariness "alerting no circumstances” which indi- sion since there were impaired. capacity volitional cated that defendant’s bearing prosecution on the did withhold evidence 4. The References 2d, Appeal and Error 508. § Am Jur 2d, seq. 748 et Criminal Law §§ Am Jur 2d, 529,1080-1090. Am Jur Evidence §§ 2d, 260-264. §§ Am Jur Trial 2d, 87, 89, 484, 533. Jur §§ Am Witnesses ground change publicity for of venue. in criminal сase as Pretrial 17. 33 ALR3d credibility Contrary of one of its witnesses. to defendant’s claim, prosecution maintained file on the witness. prosecution, closing arguments, 5. its did not vouch witnesses, credibility argue its facts not in evidence *2 argument jury’s duty or an make that it was the civic support police by convicting the defendant. 6. Defendant was not denied fair a trial when the trial court petition corpus refused his for a writ of habeas to return a prosecution testimony. witness for further The witness had exclaimed, jury recess, spectator while the was in a that by identified in the court room had been hired defendant tо testifying. intimidate him from This claim is meritless since the jury present during was not this incident. 7. by Reversal of defendant’s convictions is im- mandated proper questioning by prosecution the of of one its witnesses regard religious case, with to the witness’ beliefs. this questions regarding religion where the and answers had little swaying jury, presents good argument value in terms of the a adoption for regarding questioning the of a harmless error rule religious on belief. denying 8. The trial court did not err in defendant’s motion Viewing light for a directed verdict. the in a evidence most prosecution, to the favorable a rational trier of fact cоuld have charged found the of essential elements the crimes were proven beyond a reasonable doubt. 9. of Defendant’s claim ineffective assistance of and trial appellate counsel is merit. without denying 10. trial The court did not abuse its discretion in brought defendant’s motion for a new a trial on claim that the great weight verdict was the of the evidence. conducting evidentiary 11. trial The court did not err an hearing regarding gestae late the endorsement of a res witness prosecution, allowing the nor did it abuse its discretion in gestae testify the late-endorsed res witness in rebuttal. Revеrsed. J., Weaver, separately prejudicial concurred to state that resulting questioning regarding error from a witness reli- gious beliefs cannot deemed be harmless. Publicity Appeal. — — — 1. Criminal Law Fair Trial defendant, appeal A who on that he trial claims was denied fair pretrial publicity, due to trial fails show such deprived provide publicity him of a fair trial where he fails to Appeals transcript jury of of Court with voir dire and change fails to move for a of trial venue. Appeal Preserving — 2. Question. not, rule, general Appeals review an issue as a will however, appellate appeal, review first time on raised appropriate an court is where an raised in the trial issue not question regarding the admis- important is raised constitutional sibility of the outcome of the which is decisive of the evidence
case. — — 3. Criminal Law Confessions Voluntariness. question required generally to address the is not A however, sponte; in cases sua of a confession the voluntariness raised, certain of voluntariness where a substantial mental, circumstances,” "alerting emo- as the defendant’s such police threats or physical or evidence tional or condition duress, imposе physical may forms and mental other obvious judge investi- duty a more active role and on the to assume gate hearing of voluntariness. for a issue the need Argument. Closing — —Law 4. Criminal Trial closing upon prosecutor’s argument proper if it is based A upon a case on the is not called decide evidence and office; people prestige prosecutor’s have *3 of the of basis case, argue right upon testimony in a the comment to worthy and is not of belief to and that a witness facts evidence lying. is that a defendant contend Appeal. — Religious — — Beliefs 5. Law Witnesses Criminal beliefs; religious inquire may a a A as to witness’ and a new trial will be conviction will be reversed prosecutor questioned appeal a witness where the ordered religious cautionary regarding in- beliefs and no the witness’ given by questioning regarding the trial such struction (Const 600.1436; judge jury art MSA to the MCL § 27A.1436). Ap- Sufficiency — — —Law of Evidence 6. Criminal Evidence peal. reviewing Appeals, in a claim that evidence The Court of conviction, against support a the defendant was not sufficient prose- light view in most favorable must the evidence a a trier of could cution and determine whether rational fact elements of the crime were have found that the essential proven beyond a doubt. reasonable Appeal. — —Law Assistance of Counsel 7. Criminal evidentiary hearing gener- or A motion for a new trial for an appellate ally prerequisite a claim review of defendant’s a for counsel, of ineffective assistance of unless the detail of the deficiency apparent permit in the record the Court of Appeals to decide the issue. Appeal. — — 8. Criminal Law Evidence great weight The whether conviction is generally credibility of the evidence involves issues of the evidenсe; Appeals, witnesses or circumstantial in reviewing appeal, this issue on looks to whether was an there by denying abuse of discretion the trial motion for a resolving credibility new trial rather than issues anew. — Appeal. — — 9. Criminal Law Evidence Rebuttal decision admit evidence in rebuttal within rests the trial discretion; improperly during court’s if evidence is admitted rebuttal, required only egregious if reversal is error so miscarriage justice. as to result in a Kelley, Attorney Frank J. General, Louis J. Gregart, Caruso, General, Solicitor James J. Prose- cuting Attorney, Lait, and J. James Assistant Prosecuting Attorney, people. fоr the Marovich), (by
Marovich & Milton J. Stroba and Calloway, propria persona, Howard Everett for appeal. defendant on P.J.,
Before: and R. M. Cynar, Weaver JJ. Pajtas,*
Cynar, P.J. Defendant was convicted first-degree murder, 28.548, MCL 750.316; MSA possession during and of a dant was of a firearm the commission 28.424(2).
felony, 750.227b; MCL MSA Defen- imprisonment sentenced life years felony- murder conviction and two for the firearm conviction. The convictions an followed *4 jury earlier in which the unable appeals reach unanimous verdict. Defendant as right. We reverse. The second trial commenced on October * judge, sitting Appeals assignment. by Circuit on the Court of 169 shooting charges out The instant arose 1983. (also as Johnnie Lee Reed known death September Johnny). 17, 1982, as Reed was shot porch of residence at 606 on the front he stood Michigan. Kalamazoo, Street Florence shooting around noon. occurred sometime prosecution, Jones, witness for Robert Lee placed of the crime. Jones’ at scene defendant part plea-bargain testimony of a was offered as prosecutor. agreement and the between Jones exchange testifying against defendant, Jones for any immunity prosecution in- from received in the case. volvement instant September 17, 1982, 11:00 at about On A.M., with his brother at the Polar Bear store Jones was Jimmy they defendant drive Lee. Jones when saw parking lot. Defendant onto the store’s a blue van told them that "hunting” gun he had a and was left the Some- Reed. The Jones brothers store. for time later, Jones’ house and defendant went got him over to the van. Jones into motioned they to commit a van after decided breaking entering.
They house, did not break and drove to but at home. While defen- enter since the resident was driving around, defendant dant and Jones were walking up Defendant Florence Street. saw Reed stоpped, block, told to drive circled another and Jones they park After from Reed’s across house. minutes, came out of his five fifteen Reed waited passenger out of Defendant reached house. window a rifle as Reed was and shot Reed with coming porch. shots, five fired off the Defendant told were fired before three of which drive off. Jones to living Thompson
Fifteen-year-old with Ella began living with killed. She before he was Reed Previously, October, Reed and his 1981. Reed in *5 wife, argued Reed, Ola Mae had about Reed and Thompson living together. Reed told Ola that he going stay Thompson was with rаther than return Afterwards, to Ola. Ola used to come steps and sit on the front different times of Reed’s house at during day. day shooting, Thompson On the of the
sweeping apartment the floor in the and Reed was porch Thompson on the front when heard shots. lying She went outside and saw Reed face down on porch. Thompson van, had seen a blue but she identify belonging could not as the one it defen- Thompson dant. also stated that Reed and Ola had argued morning on the he was killed.
Kalamazoo Police Officer that, Jack Orr testified twenty-five hearing police about dispatch minutes after shooting light
of the and that a blue van suspect spotted vehicle, Orr the van on Westnedge engine North Street. felt hood, Orr very which was warm. He also saw ammunition on tray. belonged the dash The van to defendant. Ola stated that she saw Reed at her home They argued around 9:00 a.m. and she told him to day, leave. Later in the Ola was van blue belonging Lively Church, to the Stone of which she was a Mitchell, member. Pastor Eldon who was driving, picked up had Ola "around noon” and she hospital. went to a downtown then religious person asked Ola if she was a and how long belonged she has church she attends.
Several Florence Strеet residents heard the shots and saw the blue van. none of the belonging residents identified the van as to defen- dant.
Officers Robert McFletcher and Thomas Martin they February testified that 6, arrested defendant on objection, related, 1983. Martin without defen- booking dant’s statement area: speaking I asked him had and got He I been leg— has a wooden prosthesis remove —he there was it to make sure that I could examine so anything like in it or weapons concealed [sic] that, I how he lost his did asked him that. As he me, "That me that he—he said leg, and told *6 I me on a paper killed ran over guy on the motorcycle.” I that repeat himself and he him to asked said, paper that ran guy you say I killed on "That motorcycle.” me on a over that cross-examination, acknowledged Martin On defendant, he though even misheard may have first state- that he had heard defendant’s thought very clearly. ment trial, in- prosecutor day the fourth
On to of his intention endorse formed the trial court mother-in-law, as Ethel defendant’s Phillips, her a sub- witness, could not serve police but out of her not come she would poena because Phillips was claimed that prosecutor house. The her made of threats afraid beсause prosecutor asked the family. to go in order for the officers capias to writ issue to The court her court. bring into her house and issued the writ. to endorse
Afterwards, prosecutor sought prose- The court denied Phillips as a witness. endorsement. request late cutor’s a rebuttal testify to as permitted Phillips the court vigorously objected counsel Defense witness. had claiming that defendant Phillips’ testimony, which would during his case opened door to call a witness. rebuttal entitle prosecutor. in favor of the court ruled The trial that, day Reed was testified Phillips 12:10 home between killed, her came p.m. p.m. and 12:20 to use the telephone. Phillips and defendant had the following conversation: He come to my phone, house use the [sic] said,
then he "I I got myself think into a little trouble.” Q. (By Mr. Christopherson, continuing) you Did
say anything him, then? said, A. I "I won’t ask what kind.” Q. What he say, did then? said, "Well,
A. He guy one that caused^me my I leg, got lose think I him.” Q. you After he know— guy "The one stated — leg, him,” caused me to my got lose I think I you what say did after that? "Yes,
A. itwas bad?”
Q. say What did he after that? know, A. He didn’t but he found out later on. Following convictions, defendant moved to *7 set aside the verdict and dismiss charges due the prosecutor’s misconduct involving Phil- lips. The trial court dеnied defendant’s motions.
Defendant
raises numerous
issues on appeal.
First, he claims that he
a
was denied
fair trial due
pretrial
trial
and
of
We
publicity
his case.
first
note that defendant has failed to
an
provide
ade-
quate record for
us
review
by
this
issue
not
Court with
supplying this
a transcript
of the jury
voir dire. This
requires
alone
us to
v
People
affirm.
Coons,
735,
158
740;
(1987),
NW2d
lv
(1987).
den
Next, defendant claims that inculpatory statement he made to Officer Martin should have App 169 Mich the Court given the Miranda1 since was not been excluded alleges warnings. addition, In defendant motion, con court, should have on its own hearing volunta so to test the as ducted a Walker2 statements. riness of defendant’s Initially, of whether these note that issue we Miranda was in violation of were taken statements not raised rule, general proceedings in the below. As an issue raised for Court will not review this appeal. People Davis, 122 Mich the first time (1983). App important an where 597; 333 NW2d regard- is raised constitutional ing admissibility deci- the evidence and is appellate case, of the review is of the outcome sive People Catey, appropriate. 135 Mich 422 Mich lv den 356 NW2d to meet case, has failed either In this appellate requirement review so as to warrant itself The Miranda rule is this issue. right. only procedural Rather, it is constitutional safeguard designed protect Fifth an individual’s privilege against self-incrimination. Amendment Godboldo, 605; 405 (1986). Secondly, the testi- statements determinative Martin were not outcome fied to due to Martin dant’s statements. claim. testimony. equivocal of Martin’s nature may misheard defen-
testified that he
have
Thus, we decline
review this
reject
additiоn,
defendant’s assertion
we
sponte,
court,
have conducted
sua
should
the trial
hearing
if defendant’s
to determine
a Walker
voluntarily made. In
*8
v
were
statements
ALR3d 974
(1965).
Miranda
v Walker
(1966).
Arizona,
(On Rehearing),
384 US
436;
86 S Ct
1602;
331;
16 L Ed 2d
132 NW2d
694;
App
Hooks,
112 Mich
480;
dant stated that her confession was made in re- and, therefore, sponse leniency offers voluntary. The court generally held that a trial required question is not to address a of the vоluntariness of a sponte. confession sua "alerting impose certain may circumstances” duty on judge to assume a more active role investigate hearing the need for a on the voluntariness Alerting confession. circum- mental, may stances physical be emotional or condition, police threats, evidence of or other physical obvious forms of and mental duress. Powe, supra, fn 31. The court limited its holding to cases where "a substantial Id., voluntariness was raised.” 844. People Ray, See also 31, 48; NW2d 296 "alerting case, In this there were no circum- indicating stances” that defendant’s volitional ca- pacity may impaired. Thus, have been the trial obligated, sponte, court was not sua to conduct a hearing Walker and test the voluntariness of de- fendant’s statements. alleges pro-
Next, defendant several instances of deprived secutorial misconduct which him of a fair separately. trial. We will address each instance despite having that, Defendant claims counsel’s discovery order, obtained a with- credibility. held certain information on Jones’ Be- testified, fore Jones defense counsel informed the *9 App 810 169 Mich 820 bring oral motion an trial court of his intention prose- in chambers at to allow him to look that Counsel claimed cutor’s file Jones. many prosecution as its witness on had used Jones produc- sought "at least a counsel occasions and prosecutor claimed list of cases.” tion of the file that such existed. long
It the law in this state has been produced at trial all to have defendant is entitled bearing guilt on his or innocence the evidence including prosecutor’s control, which within may prior of witnesses which be used statements impeachment. People Dellabonda, 265 Mich v (1933); People v Florin 500-501; 251 594 NW (1978), App 128, chi, 133; 269 NW2d Further, in lv den 405 Mich 23, 32-33; 328 Turner, Court statеd: this Discovery the defendant a decent exists to allow prepare and extend him the opportunity to adversary system fairness which the fundamental Johnson, 524 SW2d provide. State seeks 1975). (Mo, Furthermore: principal purpose discovery to advise "[A] in stand- what faces defense counsel trial; permits more accurate evaluation of ing it considering disposi- weighed in to be the factors cannot charges trial. While we of the without tion know have led to that such disclosure does tions DC [232] whether many disposition without 511 F2d such disclosure would cases.” [798] Lewis, result supra, [1975]. trial, in such we do in this case US disposi- know case, did not refuse the reports, In the within materials, to defen- or evidence to disclose simply Defense no file on Jones. dant. There from he had information claimed that counsel attorneys they other had had cases which prosecution Jones was a witness. counsel provide explanation why could not an he could not obtain the names of these other cases from his Thus, sources. defendant has not shown that prosecutor withheld or discoverable material mis- represented provided. that all material was *10 prosecutor, closing claims in
Defendant
that the
argument,
credibility
vouched for the
of his wit-
argued
nesses,
in
facts not
and
evidence
made a
argument.
duty
disagree.
civic
We
prosecutor’s
argument
closing
proper
A
is
if it is
upon
jury
based
the
is
evidence
the
not called
upon
prestige
to decide a case on the
the
basis of
App
Yearrell,
of his office.
v
101 Mich
(1980).
people
167; 300
The
have the
right
upon
testimony
to
case,
comment
the
in a
argue the facts and evidence that a witness is not
worthy of
and
Jansson,
belief
to contend that
defendant
a
lying. People
Mich
(1982).
As to defendant’s two first claims argument prosecutor, by the we have examined the comments their context and are convinced prosecutor that no error occurred since the was merely commenting proper credibility, on the witnesses’ a closing argument, especially
area for
when
conflicting
there is
evidence and the
guilt
or innocence turns on which
Flanagan,
witness is to be believed.
(1983).
App 786, 795-796;
Mich
tо the convict- (On ing Remand), People Wright defendant. See Mich App 801, 808-811; 298 NW2d den 410 lv complains a denied
Defendant also petition a his fair trial when court refused corpus to return Jones for further writ of habeas testimony. During apparently jury recess, a Jones spectator up as and identified stood allegedly by defendant, shot who assailant hired up kidnapped kill car, him and threatened argu- This defendant. him if he testified specious totally ment since present during this incident. alleges error,
In his fifth claim asking prosecutor injected Mae error Ola person. religious Reed if she was asked: religious рerson. you
Q. Ola are A. Yes. Okay. long belonged you have Q. How you go
church to now? *11 years. A. For nine questioning by the is
This line of People Hall, 179- clear error. In Supreme the Court 215 NW2d question prosecutor’s the defend- held that a inquiring he in a whether believed Su- ant Being, although preme merely it was a reminder oath, under and to the defendant was despite objection by counsel, defense violat- 1, § 600.1436; 1963, art and MCL ed Const provision provides: The constitutional incompetent person to be a witness on No shall be rendered religious opinions on of belief. of his matters account requiring MSA 27A.14364 and constituted error reversal. The Court noted the statutе left little analysis by asking room for the Court since this question legal clear error. Id. rejected any applica- addition, the Hall Court analysis
tion of a harmless error to violations of the statute: argues, The state it by was so held Appeals, Court of that since no objection to the question record, appears on the and since "mani- shown, injustice”
fest was not type this error require were, does not disagree. reversal. We If we basis, on a case case to evaluate the entire record tice occurred if prejudice injus- to determine or manifest type ques- therеin because of this tion, we would our emasculate statute and the legislative intent it. clearly behind Our statute states that an accused is entitled to be tried and question religious convicted without opinions of his being put judge ever in front of the or jury for their consideration. Whether the defen- hesitates, dant unhesitatingly responds nega- or tively positively, or or if he quite properly should respond, refuse to he still cannot avoid risk of stimulating offensively an prejudicial reaction in quarter some jury. This Court that it feels is inappropriate upon for it to it take to deter- itself mine prejudicial whether or not such reaction did occur, in fact when our clearly attempts statute foreclose by forbidding asking such review question the prejudicial itself. A defendant is enti- questions. tled to a trial Once improper free of such asked, longer possi- this is no ble. A new mandated. [391 182-183.] holding The Hall reaffirmed provides: The statute person may incompetent any No be deemed as a witness court, proceeding, opinions matter or on account of his *12 subject religion. may questioned No witness be in relation to opinions religion, or either before after he is sworn. 810 169 Mich op the Court Bouchee, People 253; 253 In NW2d Mich Wells, 545-546; 82 Mich (1979), (1978), this lv den NW2d second-degree crim- Court reversed the defendant’s finding conviction, a violation conduct inal sexual of the Hall examination, prosecutor, holding the on direct when complainant if she the at- asked Judge Kelly Wells, in dissented church. tended claiming holding subjected Hall should be that the provided analysis as in a harmless error MCL objection 769.26; 28.1096 where there was no MSA testimony. the Burton, 418; 258 distinguished Hall and the no of Hall since in Bouchee and found violation ques- Burton, the before the defendant answered regarding God, in the trial court his belief tion quickly the intervened and instructed dis- questiоn. regard the trial the The Court felt appellate the obviated need court’s swift action prejudiced by speculation whether defendant was question. this questions earlier, the im
As indicated were proper. Reversal of defendant’s convictions thus supra, Burton, there was no mandated. Unlike cautionary court. The wit instruction questions. permitted Al to answer the ness though reversing, express our we are we wish prohibition against disagreement with the Hall analysis. application error The in of a harmless questions quiry to which herein involved two brief Further, four words. two the answers totalled brief questions only аnd two brief answers could meaning listener. While have uncertain ques questions asked, the should not have been little in terms of and the answers have value tions improper swaying jury. We are convinced determining ques bearing questions had *13 People 825 v Opinion op the Court guilt. tion of case, defendant’s In this because a analysis appropriate, sug harmless error is it is gested Supreme the Court revise Hall and its progeny. challenges
Defendant also trial the court’s de- nial of his motion for a directed verdict. More specifically, prosecutor argue defendant does not requisite
failed tо establish the
ele-
first-degree
alleges
ments
that
Instead,
murder.
the evidence was insufficient because Jones
inherently
totally spurious.
argu-
was an
ment is
incredible witness. This
reviewing
a claim for
the denial of a
motion,
directed verdict
we view
light
evidence in
most
favorable
prosecution and determine whether
a rational
trier of fact could have found that
the essential
proven beyond
elements
the crime were
a rea-
People Hampton,
sonable doubt.
v
407 Mich
368;
Defendant also claims that he was denied effec
preliminary
tive assistance of
at
counsel
exam
appeal. Initially,
ination,
trial and
we note that
defendant did not move for a new
trial or for
hearing. Generally,
required
Ginther5
is
un
this
apparent
less
error is
from the record for this
Court
Juarez,
to review the
issue.
(1987).
App 66, 73;
We,
Mich
preliminary or trial. examination Ginther, 169 oр the Court appellate counsel, to his claim of ineffective As wholly meritless, since this claim is this reviewing errors. of trial all of defendant’s claims reject assertion We also improperly a new denied his motion for trial against the on the that the verdict was basis great weight evidence. a conviction whether generally great weight involves of the evidence *14 credibility evidence. or circumstantial
issues of McCumby, People 710, 717; 344 130 Mich v (1984). (1983), In 911 den Mich lv NW2d appeal, reviewing to the Court looks on this issue deny- in discretion was an abuse of whether there ing ing trial rather than resolv- the motion a new People credibility Atkins, 397 issues anew. v (1976). 163, An abuse 172; Mich NW2d оnly where the trial will be found discretion court’s denial of the the clear manifestly motion was People weight Ross, evidence. (1985). App 483, 494; We 378 NW2d 145 Mich The evidence was no of discretion. find abuse conflicting. It to decide what was for testimony. weight Thus, to the it should assess no there was error. was im- addition, claims that it defendant permit evidentiary
proper
to
an
to
for the
hearing
prosecutor
explain
to allow
surrounding
decision to
his
with-
circumstances
just prior
Phillips’
endorsement until
hold
proofs.
trial,
a new
defendant
In his motion for
improper
bootstrapped
rebuttal
testi-
his claim of
Phillips
mony by
denial of
late
court’s
claiming that she was
of this witness
endorsement
prosecutor
gestae
not
was
a res
duly
witness
in
disagree.
diligent
producing
Since
her. We
gestae
Phillips
a res
claimed that
diligent
duly
witness and
People
endorsing
in
witness,
her
aas
the court was re-
quired
hearing
evidentiary
an
hold
to decide
questions.
these
Pearson,
See
698, 721-723; 273
reh den 406
(1979).
Mich 1104
Finally, defendant claims that
the trial court
allowing Phillips
testify
erred
in rebuttal.
The decision to admit evidence in rebuttal
within the trial court’s discretion.
rests
v Hub-
bard,
321,
findWe 5, abuse discretion. On prosecu- 1983, the trial was convened to hear the tion’s motion to strike defense, defendant’s alibi on the basis that the notice of alibi was deficient for specificity. Although Phillips lack of was listed as original an notice, alibi witness her August name was stricken defendant at the hearing. prosecution withdrew its mo- Phillips tion to strike defendant’s alibi defense. *15 among was not the names of rebuttal witnesses prosecutor’s the information. list of witnesses endorsed on the
Phillips testify did not in the first testify trial. The did not either. Defen- presented through Tracy dant an alibi and Leоn testimony supported Snell. Snell’s defendant’s alibi since Snell claimed that defendant was with him during Phillips’ the time the crime was committed. directly testimony testimony rebutted Snell’s since phone she stated during her that defendant came to use allegedly Thus, the time he with Snell. Phillips testify it was not error allow rebuttal.
Reversed. [July- by Weaver, J. Concurrence Pajtas, concurred. J.,
R. M. (concurring). I concur Weaver, col- my with J. of Ola questioning prosecutor’s leagues because reversal requiring was error Reed Mae I do given. instruction cautionary thoughtful analysis provided believe that 179-183; Hall, in my since revisiting, needs cannot magnitude of such error prejudicial view harmless. deemed be