*1 210 84 v McCAIN
PEOPLE 4, 1978, Rapids. April at Grand Docket No. 77-1423. Submitted 19, appeal applied for. June 1978. Leave to Decided of conduct in S. criminal sexual William McCain convicted Court, White, degree, William S. first Berrien Circuit closing arguments appeals, alleging Defendаnt improperly had not prosecutor certain facts which addressed Held: introduced into evidence trial. been again prosecutor in his and in rebuttal a impermissibly of con- discussed the circumstances which no evidence introducеd versation about there been error, despite the lack of reversible at trial. This constituted defendant, objection at trial because arguments that the Court of tainted the deliberations so given just say Appeals defendant was a and cannot that the trial. fair Reversed remanded. and Gillis, J., He hold that the error did dissented. would prejudice not render a fair could not so timely
impartial a had the defendant entered verdict and that any prejudice. objection have сured instruction could curative He would affirm.
Opinion of the Court Jury 1. Not in Record. —Deliberations—Evidence—Facts to to be confined Deliberations of are sented; attorney argue of may or refer facts knowledge. attorney’s persоnal within that record which are Appeal 2. Remarks— Law —Prosecutor’s Error —Criminal Preserving Miscarriage of Justice. Issue — alleged impro- Appeals on the basis of The Court will reverse objected priety háve not been which remarks [1] [2] [3] [4] 75 Am Jur 5 Am Jur 75 Am Jur Am Jur 2d, 2d, 2d, 2d, Referеnces Appeal and Trial Trial 1015. Trial §§ § § 211, for Points Error §§ et 218 et seq. seq. 545, 548, Headnotes 549. McCain Opinion of the Court where a review of the record convinces the Court that miscarriage justice particu- the remarks in a resulted lar *2 Improper Argument First-Degree 3. Criminal Law —Prosecutor’s — Evidence—Credibility—Appeal Criminal Sexual Conduct — and Error. again A reference in his and on telephone by defendant, a rebuttal to call a while the discussing the relative credibilities of a com- plаining first-degree witness and the defendant criminal case, sexual conduct error was reversible where no evidence telephone had been introduced at trial relative to the any significantly improper tip can because fаctor the scales by weigh used to where the issue of hinges identification on the relative credibilities of witness by Gillis, Appeal Preserving Injustice. 4. and Error — Issue —Manifest Appeals The Court of will not entertain issues raised for the first affirmatively time on absеnt record that shows that a injustice occurred; manifest counsel cannot sit has back and parachute appellate harbor error to be used as an in the event failure. Kelley, Attorney General,
Frank J. Robert A. Derengoski, Genеral, Smietanka, Solicitor John Prosecuting Attorney, Dunñeld, and Chris W. As- Prosecuting Attorney, people. sistant for the appeal. M. Sturwin, Jack for defendant on J., Before: R. B. P. and J. H. Gillis Burns, D. C. JJ. Riley, D. C. J. Defendant William Sherman Mc Riley, charged Cain was with criminal sexual conduct in degree, 750.520b(1)(e); contrary the first to MCL 28.788(2)(1)(e), MSA and convicted of that offense appeal, at a trial. He raises on several issues one which mandates reversal his conviction. App 84 op Opinion the Court examination,
At defendant’s quеstion night that on the testified neighbor, Wright, was asked she While at Wright’s two children. Ms. babysit for call from received a she going that a man was effect she, should complainant, stop over thereafter, Shortly to enter the house. him allow com- admitted arrived and was and conversed They watched television plainant. impending hint of the without for awhile assault. cleaning she was testified that as
Complainant her, object which grabbed placed up, defendant neck, and threat- a knife to аs he described While they if cried out. to kill her she ened rang and defendant an- struggled, complainant’s over swered, his hand holding *3 said stated that defendant Complainant mouth. in "being there about something telephone on the while”. a little call, al-
Fоllowing act of complainant forced submit legedly leaving the ac- intercourse. Before sexual a tele- defendant made cording complainant, did call, complainant the substance of which not relate. left, contacted complainant
After defendant to the accompanied them police eventually theAt bar Wright working. was bar where police to the identified defendant complainant he was arrested. October, 1976, but in
Defendant was tried cоncluded, when the mistrial was declared deliberation, were dead- period after a trial was A second reaching locked on a verdict. 7, 1976. commenced on December then v McCain Opinion of the Court opening argument, In his out lined thе evidence which he intended to introduce. complainant’s anticipated His recitation of mony corresponded testi
with her earlier complainant’s However, examination presented testimony actual the second trial alleged telephone never mentioned the call defend subsequent ant made from the house charged act of sexual assault.1
Defendant testified in his own behalf. He admit- going Wright’s night ted question. to Ms. house on the receiving
He also admitted Wright call from Ms. while at the house and telling right her that he would be down to the bar Wright working. point where Ms. From this diverges complain- from that of the ant. He stated that when he arrived at the house complainant young was there with two men. He stayed claimed tо have at the house for short time order to check on Ms. having children. He denied ever touched or sex- ually complainant. According attacked to defend- proceeded ant, he left bar, the house and to a where he сalled Ms. at of em- ployment coming to tell her that he was to see her. He stated that he atwas the bar where Ms. Wright worked with friends for about an hour police complainant before the arrived with and he was arrested. testified for the defense and cor- story. calling
roborated defendant’s She admitted coming to tell her that defendant was *4 calling to the house and later to talk to defendant. She stated that defendant called her at the bar to coming tell her that he wаs there. She testified prosecution’s brief on concedes the absence of regarding from the third call. Opinion op the Court employment for defendant at her that was was arrested. an hour before he over During closing argument, his length the credibilities of at relative discussed complainant’s testimony
versus that emphasized of the He the circumstances Wright: call from defendant to Ms. detail, signifi- significant other "There was one argument. explore later in this we will
cance of which That is that this discussion, says, they that after Linda or Karen intercourse, having other were and while phone call. the defendant made a call, phone he made the does not know to whom "She the conversa- somebody related but he indiсated tion, moments, —she or along in a few minutes that he would be to that effect. or words phone you he made such a "The tells that Wright you that she received such call. Linda told phone call. most midnight phone made three calls. The "At he рhone call that he said he interesting of the three is the Wright. made to Linda to tell her that he says,
"He he called be there in a few minutes. would over after twelve she says "Linda that at five call, over phone telling that he would be receivеd her and, fact, was over in a few minutes he there few minutes. call, interesting phone ladies and "The fact that interesting testi- gentlemen, facts that have been and the —and he and fied to the defendant [sic], Wright, must be witnesses is that world, call, least phone if not heard around the Tuttle heard heard around Because Karen Watervliet. time, as phone same as near the exact call at about the tell, home. we can from Linda own made, from "She knows the call was she togethеr, as piece the time As we can about, the testi- knows what the conversation *5 People v McCain 215 op Opinión the Court mony practically to it in the same as the words defend- ant and Linda testified to. gentlemen,
"Ladies and I you, would ask how would taking Karen Tuttle have known about that time, matter, at that subject and on that had it Wright’s not been made at Linda house? There is no way. gentlemen jury, "Ladies and of the unless the defend- right ant was there at Linda unless the made, phone call was as the says and Karen says, time, Tuttle at that house and at that after the place.” act of sexual intercourse had taken in Defense counsel
no mention of the fact the complainant in fact testified as to the third telephone call. The prosecutor referred to the phone call in rebut- tal in argument language similar previ- as was ously quoted.
The error of the
arguing the effect
of testimony
presented
that was not
the trial
has
prosecution
been concеded
ap-
peal. It
anis
rule of law
elementary
the jury’s
deliberations
are confined to the
evidence
sented. An attorney may
argue
or refer
facts not of the record which are within that
attorney’s personal knowledge. People v
Quick,
58
Dane,
321;
(1885),
Mich
25
People v
NW 302
59
Brocato,
550;
Mich
26
People v
(1886),
NW 781
17
App 277;
(1969),
Mich
Our issue to prosecu- decide is whether remarks, given tor’s the fact that defense counsel object, did not constitute reversible error. We will only reverse оn the basis of unobjected-to remarks where our review convinces us that the remarks resulted in a miscarriage justice particu- Auer, People 667; lar defendant. McGee, (1975), supra, NW2d 528 MCL App 210 G'illis, by J. H. us, we 769.26; the record before MSA 28.1096. On argument so tainted the find that that defend- that we cannot say deliberations just and fair trial. ant was given credibility came down to a essentially This case battle between tending to show there was physical
While
*6
assaulted,
the
complainant
sexually
that
had been
crimе
direct
defendant
to the
tying
evidence
the
testimony
complainant.
the
the
Where
on
credi-
hinges
issue of identification
the relative
witness
factor
testimony,
improper
bilities
used
the
significantly
by
the scales
tip
can
Abdo,
People
81 Miсh
See
weigh
(1978).
635;
The conviction reversed and remanded. is Burns, J.,P. R. B. concurred. (dissenting). Gillis, I respеctfully J. dissent. this will by
As noted Court majority, issues the first time on entertain raised for a record that affirmatively absent shows injustice manifest has occurred. used cannot and harbor to be "Counsel sit back error parachute appellate in the еvent of failure.”
as an People v McCain Gillis, J. H. Brocato, App 277; 169 NW2d objections prose- no Defense counsel made argument closing cutor’s in the instant case. With- by incorporating doubt, out a erred testimony into his liminary from the produced
examination which was not prejudice However, trial. this error did not so impar- could render a fair and tial verdict in case. testimony question was not a crucial link produced against
in the chain of evidence defend- previously at triаl. ant The victim had testified on at the matter examination. The prosecutor clearly intended to elicit the opening at trial as can be seen statement that made reference to it.
The other adduced at trial was more than sufficient to convict crime charged herein. *7 cautionary judge the trial
A
instruction
any prejudice
would have cured
created
prosecutor’s closing arguments.1
remaining
have been
issues
examined
they
writer does not believe
warrant discus-
sion nor do
reversible error.
constitute
circumstances,
Under such
I would affirm de-
conviction.
fendant’s
327,
People Blassingame,
335;
(1975), Corsa, App 479, 485; NW2d