PEOPLE v WELLS
Docket No. 30547
Michigan Court of Appeals
April 17, 1978
82 Mich. App. 543
Submitted November 1, 1977, at Detroit.
Questions by a prosecutor, put to a complaining witness, which attempted to convey to the jury that the complainant was more worthy of belief than the defendant because the complainant attended church result in reversible error.
Reversed and remanded.
M. J. KELLY, J., dissented:
Such questions by the prosecutor did not result in manifest injustice to the defendant and, in the absence of any objection by the defendant, his conviction should be affirmed.
OPINION OF THE COURT
1. WITNESSES-CRIMINAL LAW-COMPLAINANT-RELIGIOUS BELIEFS-CHURCH ATTENDANCE-STATUTES.
Questioning by a prosecutor of a complaining witness which elicited testimony to the effect that because she attended church she knew what it was to take an oath and that her testimony was worthy of belief because she respected that oath constituted an unauthorized inquiry into the complainant‘s religious beliefs and was a direct violation of the statute which prohibits questioning a witness in relation to her opinions on religion, either before or after she is sworn (
2. WITNESSES-CRIMINAL LAW-COMPLAINANT-RELIGIOUS BELIEFS-CREDIBILITY-CHURCH ATTENDANCE-APPEAL AND ERROR.
Questions put to a complaining witness whereby it appears that
DISSENT BY M. J. KELLY, J.
3. WITNESSES-CRIMINAL LAW-COMPLAINANT-RELIGIOUS BELIEFS-OATH-STATUTES.
A prosecutor‘s questioning of a complaining witness which elicited testimony that because the complainant attended church she knew what it was to take an oath and that her testimony was worthy of belief because she respected that oath was not a violation of the statute which prohibits questioning a witness as to her religious belief and did not result in manifest injustice to the defendant where the defendant had a fair trial under all the circumstances (
4. APPEAL AND ERROR-CRIMINAL LAW-FAILURE TO OBJECT-MISCARRIAGE OF JUSTICE-STATUTES.
Reversal on an error which was not objected to at trial is appropriate only where it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice (
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Craig L. John, Assistant Prosecuting Attorney, for the people.
Lawrence Baron, Assistant State Appellate Defender, for defendant on appeal.
Before: BEASLEY, P. J., and D. E. HOLBROOK, JR. and M. J. KELLY, JJ.
D. E. HOLBROOK, JR., J. Defendant was tried by jury and convicted of criminal sexual conduct in
Upon trial defendant interposed a consent defense. Review of the trial testimony indicates that there existed a vast disparity between the testimony of the defendant and that of the complainant. It is readily apparent that the verdict of the jury hinged greatly upon whose testimony to believe thereby relegating the crucial issue to that of credibility.
During direct examination of the complainant the prosecutor asked and the complainant answered as follows:
“Q Do you go to church, by the way?
“A Yes.
“Q What church?
“A Christ The Good Shepherd.
“Q Would it be fair to say, then, that you know what it is to take an oath?
“A Yes.
“Q Do you respect that oath?
“A Yes.”
By virtue of such testimony, in response to prosecutorial questioning, the complainant in effect testified that because she attended the “Christ The Good Shepherd” church she knew what it was to take an oath and that her testimony was worthy of belief because she respected that oath. Such questioning by the prosecutor, in our opinion, constitutes an unauthorized inquiry into complainant‘s religious beliefs, which, while not identical, is sufficiently similar to that prohibited in People v Hall, 391 Mich 175; 215 NW2d 166 (1974), People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977), and
In essence it appears the prosecutor was attempting to convey to the jury that complainant was more worthy of belief than defendant because she attended church, knew what it was to take an oath and respected that oath because of her church attendance. Hence, implicit in the questions and answers was a conveyance to the jury that complainant had certain religious beliefs and because of such beliefs she knew what it was to tell the truth.
In a case such as this, when the crucial issue is that of credibility, such questions by a prosecutor put to a complaining witness are unwarranted, prejudicial and constitute reversible error. Nor does defendant‘s failure to object to such questions save the error. People v Hall, supra.
Resolution of the foregoing being dispositive, appellant‘s issue relating to a remand for resentencing becomes moot and resolution of his remaining allegation of error unnecessary.
Reversed and remanded.
BEASLEY, P. J., concurred.
M. J. KELLY, J. (dissenting). This defendant was apprehended a little after four o‘clock in the morn-
Defendant testified on his own behalf that he had had an argument with his fiancee earlier in the evening, began drinking beer and whiskey and by the time he encountered the complainant he considered himself intoxicated although he only wanted to talk to the complainant and see if something of a sexual nature might develop. He explained that the rifle was in the car for the purpose of rabbit hunting and that he only knocked on the window with the rifle to get the complainant‘s attention, not to intimidate her. A reading of this record leaves no doubt that defendant‘s testimony was fully incredible and that the complainant‘s testimony was completely believable. To reverse this verdict and judgment on the ground that the witness was examined “in relation to [her] opinions on religion” in violation of the statute,
Were this the court of last resort one would be tempted to reexamine the historical basis for the constitutional provision in question,
This trial was concluded on April 1, 1976. People v Hall, supra, was released shortly after its decisional date of February 27, 1974. What more comfortable feeling for a knowledgeable defense attorney than to allow a two or three line religious reference to put in the bank for later appellate review in case of conviction? The ebb and flow of a trial must not be measured by the existence of irregularities. There is no such thing as a perfect trial. The question is whether or not the defendant had a fair trial under all the circumstances, and I believe that he did here. I find no manifest injustice. I do not mean to be facetious but supposing the prosecutor had asked the witness where she attended high school and her reply was “Christ the Good Shepherd“.
I would affirm.