Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and child torture, MCL 750.136a; MSA 28.331(1). Defendant was sentenced to two concurrent 6V2 to 10 year terms of imprisonment and appeals as of right. Defendant raises several issues on appeal, two of which require reversal.
Defendant’s conviction arose out of the physical abuse of William Cormendy, the ten-month-old son of defendant’s girlfriend, Laurie Cormendy. At the time of the incident, defendant lived with Cormendy, William, and Cormendy’s two-year-old son, *572 Matthew, in Ferndale. On the evening of February 24, 1984, defendant and Cormendy took William to the emergency room of Providence Hospital. Medical personnel observed a three-inch laceration behind William’s left knee, along with bruises in various stages of healing around his eyes and on his face, wrists, buttocks and legs. He was also malnourished and underweight. X-rays revealed six bone fractures, three in his right leg and one in each arm and the left leg. According to medical testimony, the breaks were in various stages of healing, indicating that they had occurred at different times in the past. After a police investigation, defendant and Cormendy were arrested and charged with assault with intent to commit murder, assault with intent to maim, and child torture. At trial, defendant’s charge of assault with intent to commit murder was reduced to the charge of assault with intent to inflict great bodily harm less than murder.
Before defendant’s trial commenced, Cormendy was tried and convicted of assault with intent to do great bodily harm, assault with intent to maim, and child torture. On August 8, 1986, we reversed her conviction in an unpublished per curiam opinion, on the ground that the court erred in admitting testimony by Cormendy’s mother that Cormendy had considered aborting William. (Docket No. 82261). On February 3, 1987, the Supreme Court reversed and reinstated Cormendy’s conviction on the ground that no objection to the admission of the evidence had been made.
Defendant in the instant case first argues that he was denied the effective assistance of counsel at trial. After defendant’s trial, defendant moved for *573 and was granted by this Court a Ginther 1 hearing to be held in the trial court. At this hearing, defense counsel testified along with an attorney, James Feinberg, claimed to be an expert in the field of conducting criminal trials. At the end of the Ginther hearing, the trial judge found that defense counsel’s performance met the minimal level of performance required by the constitution, although his conduct was in some instances unprofessional and some of the legal theories advanced were "highly questionable at best.”
In
Strickland v Washington,
Before
Strickland
was decided, Michigan followed the two-part test of
People v Garcia,
Defendant’s first allegation of ineffective assistance of counsel involves defense counsel’s decision to call Cormendy to the stand as a witness for defendant. 2 Cormendy testified upon direct examination that the laceration on William’s leg occurred accidently when she was holding William and a butter knife while arguing with her mother about laundry, and that William’s bruises resulted from Matthew’s throwing toys at him. She testified that she had never seen defendant be mean to William and that defendant was a good father to him. Upon cross-examination, the prosecutor impeached Cormendy by introducing a written state *576 ment which Cormendy had made to an officer of the Ferndale Police Department after she was arrested. In this statement, Cormendy stated that defendant was very mean to William, that defendant pushed her down while she was holding William, that defendant called William names, and that defendant would only give William milk when defendant wanted to. The prosecutor also introduced a tape-recorded statement Cormendy made to Oakland County Assistant Prosecutor Lawrence Kozma on December 12, 1984. The recording was played to the jury. In it, Cormendy accused defendant of causing the laceration on William’s leg, of picking William up the wrong way, of calling William a "retard,” of twisting William’s arms and legs, of yelling at William, and of encouraging Matthew to throw toys at William. Before the tape was played, defense counsel elicited from Cormendy that a family friend had told her to call Kozma and implicate defendant. Cormendy also stated that she made the written statement while she was scared and upset. These prior inconsistent statements were the only incriminating evidence against defendant at trial.
Defense counsel testified at the Ginther hearing that he knew that Cormendy would be impeached by these incriminating statements. Nevertheless, he chose to put Cormendy on the stand for three reasons. First, he wanted to counter any negative inference that had occurred when, after Cormendy initially refused to testify when called by the prosecutor, the prosecutor waved a tape before the jury, asking Cormendy whether at the time her statement had been recorded by Kozma she had agreed to testify. Second, defense counsel wanted someone to testify that defendant was innocent. Third, he wanted to have someone testify in exoneration of defendant without having to call defen *577 dant. He realized defendant was a special education student in high school, and he did not want defendant to have to match wits with the prosecutor upon cross-examination. Nor did he want to subject defendant to impeachment by the use of defendant’s prior convictions for larceny over $100 and attempted felonious assault.
We feel that calling Cormendy to the stand, and subjecting her to impeachment by the only incriminating evidence against defendant, was so serious an error that counsel was not functioning as the "counsel” guaranteed by the Sixth Amendment. This error clearly prejudiced defendant. Defense counsel admitted that there was no testimony implicating defendant other than Cormendy’s statements. The only other evidence suggesting that defendant harmed William was Cormendy’s mother’s testimony that Cormendy informed her that defendant was always yelling at Cormendy and the children and that he called William a "retard.” If Cormendy had not been called to testify, Cormendy’s prior inconsistent statements would not have been revealed to the jury. Without the statements, there probably was no case against defendant. Because of the presumption of innocence and the burden of proof that a defendant must be found guilty beyond a reasonable doubt, the jury probably would not have found sufficient evidence to convict defendant. The jury’s request to have the recorded statement replayed is indicative of their reliance on it. While the trial judge instructed the jury that the statements were for impeachment purposes only, the jury may have ignored the instruction, given the emotion-packed subject matter of the case and the obvious relevance of the statement.
We do not agree with the trial judge’s conclusion that defense counsel’s decision to call Cormendy *578 did not constitute ineffective assistance of counsel since it was a matter of trial strategy. Although defense counsel presented reasons for his action, his actions were not sound trial strategy, as required by Strickland. At the Ginther hearing, attorney Feinberg testified that defense counsel should not have called Cormendy to the stand. He felt that the recorded statement was damaging since it solidified the prosecution’s entire case. We cannot ignore defense counsel’s error on the basis that it was trial strategy when defendant would likely have been acquitted but for the strategy.
Although calling Cormendy to the stand was the major mistake committed by defense counsel, another serious mistake was committed when defense counsel failed to object on any of the three occasions in which the prosecutor referred to the fact that Cormendy had already been convicted. The prosecutor made these statements during his opening argument, cross-examination of Cormendy, and closing argument. Defense counsel did not object. In fact, defense counsel himself questioned Cormendy as to whether she had already been convicted of child torture. The conviction of another person involved in the criminal enterprise is not admissible at the defendant’s separate trial.
People v
Lytal,
We also feel a new trial is warranted because of the prosecutor’s improper closing argument. Initially, we note that defendant did not object to the prosecutor’s closing argument. Appellate review of alleged improprieties in a prosecutor’s closing argument is precluded, absent an objection at trial, unless failure to consider the issue would result in a miscarriage of justice.
People v Duncan,
During the prosecutor’s closing argument, the prosecutor made the following comments:
This is a sham. This evidence presented by the Defense is a sham meant to mislead you. It’s a bunch of lies, just like the testimony that Gene Dalessandro had nothing to do with the injuries to this child. It’s disreputable really to come in front of you thirteen people and sit on that witness stand and say, "Yes, I swear to tell the truth, the whole truth and nothing but the truth,” and, "Yes, these albums are albums I put together in December of ’83 before William went to the hospital, and they show our loving, warm relationship.”
They’re Defense exhibits meant to convey an impression for you thirteen of this man, proffered by the Defense and brought before you and said, "Here’s our facts; look at how wonderful we are.”
But you see what they did with them? They’re lies. They’re damnable lies. They’re demonstrative lies. They’re fabrications of evidence. That’s the way this whole thing has been run.
During rebuttal closing arguments, the prosecutor made the following comments:
The Defense brings you lies.
This exhibit, Mr. Perrotta [defense counsel] holds it up for you, "This is an exhibit; this was found in the house right after they were arrested.” Yeah, like this photograph album? Was it found then, or was it written last week? Does it have the same evidentiary value as the album they put in? Does it have the same truth? Does it have the same meaning to deceive you? He talks about red herrings, he’s brought a whole boat load of them in this case. He’s thrown them out here in bushel baskets.
In
People v Wise,
The prosecutor may not question defense counsel’s veracity. . . . When the prosecutor argues that the defense counsel himself is intentionally trying to mislead the jury, he is in effect stating that defense counsel does not believe his own client. This argument undermines the defendant’s presumption of innocence. . . . Such an argument impermissibly shifts the focus from the evidence itself to the defense counsel’s personality.
In the instant case, the prosecutor’s argument attacked defense counsel and suggested to the jury that defense counsel was intentionally trying to mislead the jury. Such argument was improper. The people cite
People v Charles,
During closing argument, the prosecutor also made the following comments:
Their intent is shown by what they did. The kid was starved. He was mistreated. He was left to lay on his head, on the back of his head until it was flat, a flattened head. Look at the pictures of this little innocent baby. Look at the terror on his face, the sadness in those eyes. You’ll draw the conclusion what these pictures show. They show a beaten, abused child. The intent of Gene Dalessan *581 dro and Laurie Cormendy is evidenced by what they did to him. . . . We’ve shown injuries in this case that are revolting, that are sickening. They shouldn’t happen to a dog, let alone a ten month old baby. They shouldn’t happen to anything. No person and no thing should be treated this way.
If [defendant] was going to go running off to the hospital, as he would have you believe, because he saw a little bit of blood that was as big as the end of your finger, he would have taken this kid to the hospital when he first started screaming out in agony when he had a broken arm, like any of you or an innocent person would do when this little babe, totally innocent little baby was crying out in pain.
He was in so much pain, it’s a wonder he could eat. William was in so much pain from what Gene Dalessandro did to him, it’s a wonder he could eat. It’s a wonder he lived. It’s a wonder he lived.
Now, it’s important because, in a way, that’s this pitiful little ten month old child’s only way of telling the world what was being done to him by this person, Gene Dalessandro.
It is improper for the prosecutor to appeal to the jury to sympathize with the victim. Wise, supra, p 104. By constantly referring to "the poor innocent baby,” the prosecutor was injecting the element of sympathy for William into the case. While the prosecutor did not specifically state that the jury should sympathize with William, the prosecutor’s statements were obviously intended to elicit just that emotional response.
In addition, during his closing argument, the prosecutor referred to the written and recorded statements made by Cormendy. This was improper, as the evidence was used solely for impeachment. A prosecutor may not argue facts material to the case which are not in evidence.
People v Dane,
Since we reverse on the issues of ineffective assistance of counsel and improper closing argument, we need only briefly address the remaining issues which may resurface in defendant’s new trial.
Although it was error for the prosecutor to mention Cormendy’s conviction during opening and closing argument and during cross-examination of Cormendy,
Lytal, supra,
this error standing alone would not require reversal as defendant did not object and defense counsel himself referred to the fact that Cormendy had been convicted of child torture.
People v Buckey,
It was not error requiring reversal for the trial court to permit Cormendy to testify against defendant’s wishes. The decision to call a witness is a matter of trial strategy. Viaene, supra, p 693. We are not willing to set forth a rule that every time defense counsel places a witness on the stand against a defendant’s wishes error requiring reversal occurs.
We do not feel that two statements made by the trial judge impermissibly shifted the burden of proof onto defendant. Both statements occurred during instances in which the prosecutor had raised relevancy objections and the judge was questioning defense counsel as to how his line of questioning related to the case. When the statements are read in the context in which they were made, it is apparent that the judge was merely *583 stating that defense counsel’s line of questioning was irrelevant unless it tended to establish that defendant did not commit the offenses. The judge’s use of the word "prove” was obviously not intended to infer that defendant bore the burden of proving his innocence. The judge clearly instructed the jury that defendant was presumed innocent until proven guilty beyond a reasonable doubt and that the people bore the burden of proving defendant’s guilt. Defendant’s argument that the judge failed to properly instruct the jury on the burden of proof is also without merit. The judge’s instruction clearly and properly informed the jury that defendant was presumed innocent and that the people bore the burden of proof.
Contrary to defendant’s assertion, we find that the trial court did not err in denying defendant’s motion for a directed verdict made at the conclusion of the prosecutor’s proofs. We find that there was sufficient evidence from which a rational trier of fact could find the elements of the crimes proven beyond a reasonable doubt.
People v Hamp
ton,
The trial court did not err in ordering the court reporter to play back his backup tape of Cormendy’s tape-recorded statement after the jury asked the trial court if they could rehear the tape. Such action is allowed by
People v White,
The prosecutor did not question Cormendy in a manner which encouraged Cormendy to invoke the Fifth Amendment and refuse to testify. While it is true that a prosecutor may not intimidate a witness in or out of court,
People v Pena,
Although the court did err in denying defendant’s motion to sequester the witnesses, this error does not require reversal since defendant was not prejudiced. Most of the witnesses were medical witnesses, and William’s condition was not in issue. The primary issue at trial was whether defendant was responsible for the injuries, and the fact that the witnesses were not sequestered did not prejudice defendant in this area.
The court did not err in allowing Cormendy’s mother to testify that William cried every time defendant came near him. The testimony was relevant in that it tended to show that William feared defendant. MRE 401. The testimony was not more prejudicial that probative. MRE 403. Defendant was free to explain away the testimony by evidence that William cried whenever anyone approached his crib, as evidenced by Dr. Lucas’s testimony, or that the mere fact that William cried did not mean that defendant physically abused the child, or that there were other reasons for William’s crying.
The prosecutor’s vague reference to other "incidents” involving defendant did not constitute error requiring reversal. In the first reference, defendant’s neighbor merely stated, in response to a question by the prosecutor, that he had met defendant in 1982 "in another incident.” In the second reference, defense counsel’s objection to reference *585 to an "incident” was sustained and the incident was not further mentioned. We fail to see how these slight references prejudiced defendant.
Finally, error requiring reversal did not occur when the prosecutor asked the protective services worker on redirect examination whether he believed Cormendy’s statement made to the worker that everything was fine in their home. The worker was not impermissibly commenting on Cormendy’s credibility; rather, he was stating whether he, himself, thought that everything was fine in the home.
Because we find that defendant did not receive the effective assistance of counsel and that defendant was denied a fair trial because of the prosecutor’s improper closing argument, we reverse defendant’s conviction and remand for a new trial consistent with this opinion.