People v. Fisher ( 1997 )

559 N.W.2d 318 (1996) 220 Mich. App. 133

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Charles FISHER, Defendant-Appellant.

Docket No. 167938.

Court of Appeals of Michigan.

Submitted December 6, 1995, at Detroit. Decided November 15, 1996, at 9:10 a.m. Released for Publication February 25, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Joseph A. Puleo, Assistant Prosecuting Attorney, for People.

Kenneth M. Mogill, Detroit, and Charles R. Fisher, Freeland, in pro. per.

Before WHITE, P.J., and HOLBROOK, and P.D. SCHAEFER,^[*] JJ,

WHITE, Presiding Judge.

Defendant, Dr. Charles Fisher, was tried on charges of inciting perjury, M.C.L. § 750.425; M.S.A. § 28.667, and attempted obstruction of justice, the latter offense charged pursuant to M.C.L. § 750.505; M.S.A. § 28.773, which provides for punishment of offenses indictable at common law, and M.C.L. § 750.92; M.S.A. § 28.287, the statute regarding attempts to commit crime. A jury convicted defendant of inciting perjury. He appeals, challenging whether venue was proper in Wayne County, the admission of evidence claimed to be hearsay, and the prosecutor's conduct. We affirm.

I

It is undisputed that defendant's wife was murdered in 1984 in the home she shared with defendant in Wayne County. Defendant was tried and convicted of that murder in 1984 in Detroit Recorder's Court. The conviction was set aside by the trial court and defendant was retried and convicted in 1988. Defendant was then imprisoned in Jackson from April 1988 to June 1990, during which time his appeal of the second conviction was pending and the incidents underlying the instant case occurred. On November 25, 1991, defendant's second conviction was reversed by the Michigan Supreme Court and the case was remanded to the Detroit Recorder's Court for a new trial. People v. Fisher, 439 Mich. 884, 476 N.W.2d 889 (1991).

In January 1993, defendant was charged in the instant case by a two-count felony complaint, which stated, inter alia, that defendant had been convicted and was sentenced to life in prison on April 1, 1988, and that while confined at Jackson Prison between 1988 and 1990 defendant had an appeal pending, which included a remand to the Detroit Recorder's Court for evidentiary hearings conducted in 1989, as well as other postconviction motions heard in 1988 and 1989. With regard to the inciting perjury count, the complaint stated that defendant knowingly attempted to persuade, incite, and procure R.B. (Ricardo Bush) to swear to a false affidavit for use by defendant's appellate attorney in legal pleadings that would either further defendant's appeal of his murder conviction or be used to help him obtain a new trial. The complaint stated under the attempted obstruction of justice count that defendant attempted to interfere with the orderly administration of justice by "knowingly, willfully, and corruptly attempting to interfere with the proper and legitimate criminal investigation and prosecution of the murder case of People v Charles Ray Fisher [Wayne County Circuit Court No. 88-500087]." At the June 1993 trial of this case, Ricardo Bush testified that he was an inmate at Jackson State Prison in 1988, where he met defendant while both were in quarantine before being placed inside the prison. Bush was serving time for violating probation and breaking and entering and was a convicted fourth-offense habitual criminal. According to Bush, he and defendant discussed why they were in prison, exchanged presentence reports, and defendant initially told him he did not commit the murder, but, rather, he had been home by himself when some "black guys" came in, knocked him out, and tied him up, later doing the same to his wife when she came home. Bush testified that he told defendant that defendant should either find out who actually murdered his wife or pay someone to confess to the crime. After both men left quarantine, Bush was sent to maximum security, where he received a note from defendant asking him to find someone who would do what they had talked about. Bush was later placed in the same security level as defendant and saw defendant in the recreation yard, where defendant asked Bush if he knew anyone who would say he broke into the Fisher house.

Bush testified that he told defendant that he would do it for $1,500, and defendant agreed. Bush told defendant that $500 was for Bush, and $1,000 was for his rap partner, Anthony Smith. Bush testified that, in reality, he did not have a rap partner, and had lied to defendant. The arrangement was that defendant would pay Bush in dollar tokens, which inmates could draw every two weeks.

Bush testified that defendant started giving him details of the house, "things that only the police and the criminal would know." Bush testified that defendant described his Canton home as being ranch-style, with a swimming pool, and bushes in the front. He told Bush that there were beer cans left at the scene of the crime, a point only the police and person who broke in would know, and which was not in the police reports. Bush testified that over the course of a few months, defendant told him other details of the crime and crime scene, and gave him a sketch of the layout of the home. Bush no longer had the sketch. Defendant told Bush that the Fisher dog left from the garage, that there were boxes in the garage, and that there was a beer can left on the counter. He also told him about the layout of the house. Bush testified that defendant told him to say that a "white guy" had driven Bush and Smith out to the home during the day, that they returned that night and, after the crime, left the defendant's truck near Tiger Stadium. Bush testified that defendant told him that the perpetrators had entered through an unlocked door, that when defendant came out of the bedroom, the perpetrators had jumped him and taped him up, and that the perpetrators had then sat around drinking and ransacked the house. When defendant's wife arrived, the perpetrators did the same to her, robbed her of money and plane tickets in her purse, and drove away in defendant's truck after leaving her on the living room floor.

Bush further testified that the arrangement was that, in return for the $1,500, Bush would sign an affidavit under oath and send it to defendant's attorney, the affidavit stating that Bush had committed the crime and did not want to see the wrong guy go to jail. Bush testified that, eventually, defendant admitted that he was responsible for killing his wife and that he had done it because she was running off and leaving him for a cousin. Bush testified that defendant told him that if Bush confessed to the crime he would be convicted only of manslaughter and would not receive an additional sentence. Bush said he received about three hundred dollar tokens from defendant. He further testified that Christina Smith, a pen buddy of his, was aware of the arrangement between Bush and defendant, as were two inmates, Eric Docket and William Mundy. Bush testified that as a result of his agreement with the prosecutor to testify, he would receive three years off the ten-to fifteen-year sentence he was serving.

Bush said that he last received money from defendant in 1988, that he and defendant eventually broke ties because Bush was not going to sign the affidavit and they stopped running into each other, and that he had no further contact with defendant after he left Jackson Prison. Bush testified that he next heard about defendant when he read a newspaper article stating that defendant had won his appeal and that he, Bush, then wrote the Wayne County Prosecutor because he had been in jail for ten years and seeing a man he knew had killed somebody get out of jail "didn't sit well" with him. Bush testified that he received no response to his first letter, which he had sent to the wrong address, and that he wrote a second letter in which he mentioned the beer cans. He was eventually taken from prison to speak to two prosecutors and a detective. Bush testified that he asked the prosecutor for two years off his sentence for good time, which habitual offenders are not entitled to, and sentence credit for the year he served in the county jail for violating probation. The prosecution had Bush read into the record the agreement he signed with the prosecutor's office.

On cross-examination, Bush testified that defendant never gave him an affidavit to sign, that Bush never wrote out a statement, never submitted anything to a lawyer, never signed anything, and had nothing in writing.

Eric Docket testified that in 1988 he was a prisoner at Jackson State Prison and knew Bush. He knew defendant "somewhat." He was taken from the prison around January 1993 and was asked questions by representatives of the Wayne County Prosecutor's office, some of which he responded to. He testified that he was serving a life sentence for second-degree murder and armed robbery and that he had delivered a message to defendant from Bush asking about a "packet," which he was told was about some land. Defendant responded by saying that he would see Bush on "draw day," the day inmates received money. Docket testified that Bush said he was "squeezing" defendant for money in exchange for a promise to admit to murdering his wife. Docket said Bush never intended to confess to murdering defendant's wife. Docket testified that Bush told him that defendant had killed his wife by suffocating her with some duct tape. He testified that he did not want to be in court because it was risky and that, in exchange for his testimony, the prosecutor's office promised him a letter of recommendation. On cross-examination, Docket testified that Bush admitted to him that it was Bush's idea to "squeeze" defendant for money. Docket said he never saw defendant give Bush any tokens and never saw defendant meet with Bush. On redirect examination, Docket testified that he was asked to provide a written statement before meeting with the prosecutor's office, but that he would not give a statement until after he had talked to Bush because he "wasn't going to say nothing" until he knew if Bush was going to be charged. Docket testified that he saw Bush with a sketch that Bush said was of defendant's house.

Michael Reynolds, the Assistant Wayne County Prosecutor who had prosecuted defendant at his second murder trial in February and March 1988, testified that defendant was convicted of first-degree murder and was sentenced on April 1, 1988. In May, defendant filed a motion to extend the time to file a new trial motion in the trial court, after which an extension was granted until August 31, 1988. When the prosecutor asked Reynolds whether, on August 31, 1988, the case was pending in Wayne County for purposes of defendant's motion for a new trial, defense counsel stated he would so stipulate. Reynolds explained that even though defendant had been convicted and sentenced, the trial court was still in control of the case and was being asked to make decisions regarding the case. Reynolds testified that he learned that defendant's conviction was overturned around Thanksgiving 1991 and that subsequently the case was again pending in Wayne County.

Reynolds testified that he first became aware of the instant allegations after the prosecutor's office received a letter from Bush on November 10, 1992, that was routed to Reynolds and eventually led to the initiation of the instant case. Reynolds stated that the prosecutor's office and Bush entered into a signed agreement on January 21, 1993, according to which the prosecutor would recommend to the sentencing court that Bush receive credit for time served and disciplinary credits.

Reynolds testified that he went to the Fisher home in January 1988. He described the home to the jury, over objection. Reynolds testified that the home was in a subdivision in Canton, had a swimming pool, sat far back from the road and at a good distance from other homes, with shrubs and bushes in the front, and was ranch-style. Reynolds then testified that he was present during the entire 1988 trial, and he was asked numerous questions, over objection, in response to which he was permitted to summarize testimony from defendant's second murder trial. Reynolds testified that there had been testimony about the Fishers' dog, that braided rope was found in the garage, that there was access through the garage to the family room, that there was a beer can left on the counter, that a neighbor had seen defendant out and about on the evening in question with two much darker men in defendant's red pickup truck that was being driven by defendant, that the pickup truck had been found later in southwest Detroit near the Ambassador Bridge, that there was no indication in the physical proofs that the home had been ransacked, that a large amount of money had been left in a dresser drawer in the master bedroom, and that Mrs. Fisher was found on the living room floor and had died of anoxia caused by duct tape that had been placed over her nose and mouth. Defense counsel requested a sidebar conference, the jury was excused, and the court reminded the prosecutor that the murder case was not being tried and that the court was permitting Reynolds' testimony to show the statements were made, not for the truth of the matters asserted. Reynolds was further permitted to testify that there had been testimony at defendant's second trial that defendant's wife had worked on the evening she was murdered, that she was found in a nurse's uniform, and that the fingerprints found did not belong to anyone in the criminal justice system.

Christina Smith testified that she had been corresponding with Bush since 1988. She testified that Bush told her that defendant was "looking out for" him, which she interpreted to mean that defendant was taking care of him, buying him things, giving him money. On cross-examination, Smith testified that she did not know where Bush's letters were. She testified that Bush never told her that he was receiving money from defendant, only that defendant was "looking out" for him, and that Bush never said that defendant wanted him to confess to a particular crime.

Defense counsel waived the production of the remaining witnesses and the prosecution rested. Defense counsel then renewed his motion for a directed verdict, initially made after the jury was sworn, on the basis of absence of testimony establishing venue. The trial court stated that it would rule with regard to the motion after receiving briefs the following day. Defendant presented no witnesses. The next day, the court heard argument regarding the venue question. The court noted that the attempted obstruction of justice charge involved several acts and that one of them was that defendant intended to obstruct justice in the case pending against him in Wayne County. The court concluded that venue was proper in Wayne County for the attempted obstruction of justice count. The court questioned the propriety of venue for the inciting perjury count, but left open the question whether both counts were properly brought in Wayne County because they arose out of the same transaction. The court's ruling regarding this final issue is not before us. Nonetheless, it appears that defendant does not contest that if venue of the attempted obstruction of justice charge was proper, the prosecution of both counts in Wayne County was proper.^[1] The jury found defendant guilty of inciting perjury and not guilty of attempted obstruction of justice.^[2] Defendant was sentenced to six months' to five years' imprisonment.

II

Defendant first argues that the trial court erred in holding that venue was proper in Wayne County because all the alleged acts giving rise to the charges occurred in Jackson County and because, unless otherwise prescribed by the Legislature, venue is proper only where the offense was committed.

A trial court's determination regarding the existence of venue in a criminal prosecution is reviewed de novo. See People v. Meredith (On Remand), 209 Mich.App. 403, 407-409, 531 N.W.2d 749 (1995). Venue is a part of every criminal case and must be proved by the prosecutor beyond a reasonable doubt. Id. at 408, 531 N.W.2d 749; People v. Belanger, 120 Mich.App. 752, 755, 327 N.W.2d 554 (1982). Due process requires that trial of criminal prosecutions should be by a jury of the county or city where the offense was committed, except as otherwise provided by the Legislature. People v. Lee, 334 Mich. 217, 225-226, 54 N.W.2d 305 (1952). The indictment or information must state that the offense was committed in the county or within the jurisdiction of the court. M.C.L. § 767.45(1)(c).

The felony complaint in the instant case stated under "place of offense," the Wayne Circuit Court, the City of Detroit, and Jackson Prison. The complaint stated under both counts that defendant's alleged acts were intended to affect proceedings pending in Wayne County. Although venue was properly alleged, venue regarding the crimes charged is not statutorily prescribed and we have found no Michigan cases addressing the situs of the crimes of inciting perjury and attempted obstruction of justice where the legal proceeding intended to be affected is pending in a county different from the county in which the alleged acts took place. Guided by federal authority, we conclude that the trial court did not err in finding that venue of the attempted obstruction of justice count was proper in Wayne County, where the proceedings intended to be affected were pending.

The majority of the United States Courts of Appeals, including the Sixth Circuit, have held that in obstruction of justice cases,^[3] venue is proper in the district where the court proceeding affected is pending.^[4]United States v. Frederick, 835 F.2d 1211 (C.A.7, 1987) (involving a charge under a witnesstampering statute, 18 U.S.C. § 1512); United States v. Reed, 773 F.2d 477, 483-484 (C.A.2, 1985) (involving both perjury and obstruction of justice charges under 18 U.S.C. § 1623 and 1503, respectively); United States v. Scaife, 749 F.2d 338, 346, 348 (C.A.6, 1984) (involving a charge under 18 U.S.C. § 1512); United States v. Johnson, 713 F.2d 654 (C.A.11, 1983) (involving a charge under 18 U.S.C. § 1503 of endeavoring to obstruct justice by kidnapping a friend of the informant); United States v. Barham, 666 F.2d 521 (C.A.11, 1982) (involving a charge under 18 U.S.C. § 1503 of endeavoring to obstruct justice by attempting to persuade a witness to change his statement and then shooting him); United States v. Kibler, 667 F.2d 452, 454 (C.A.4, 1982) (involving a charge under 18 U.S.C. § 1503 of threatening a witness in an endeavor to influence him to testify falsely in a pending criminal case); United States v. Tedesco, 635 F.2d 902 (C.A.1, 1980), (involving a charge under 18 U.S.C. § 1503 of endeavoring to induce a witness not to testify fully). See also United States v. Manfredi, 789 F.Supp. 961, 963-964 (N.D.Ind.,1992) (involving a perjury charge under 18 U.S.C. § 1621). As of this writing, apparently only the Court of Appeals for the District of Columbia Circuit maintains that venue is proper only where the acts taken to obstruct justice occurred. United States v. Swann, 142 U.S.App.D.C. 363, 365, 441 F.2d 1053 (1971).^[5] That defendant was charged with attempted obstruction of justice, and not the completed offense, does not defeat venue in the county where the proceeding intended to be affected was pending.^[6]Reed, supra at 486. We note that in the federal cases discussed, there was no requirement that the proceedings intended to have been affected actually were affected. In fact, the statute itself punishes the attempt. We see no meaningful distinction based on whether a defendant is successful in actually obstructing justice. What is important is that the offense is not committed unless there is an act done with the intent to obstruct justice in the county where the proceeding is pending.

In addition to the above federal authority, some state courts have arrived at the same result in cases involving perjury or tampering with a witness, finding venue proper in the county where the affected proceeding is pending, by relying on statutes providing that venue is proper in any county in which any of the requisite acts or effects occur. See Anno: Construction and effect of statutes providing for venue of criminal case in either county, where crime is committed partly in one county and partly in another, 30 ALR2d 1265, § 27, 1291, and Later Case Service Supp (1995), § 27, p 146 the annotation citing People v. Vario, 165 Misc. 842, 2 N.Y.S.2d 611 (1938) (Queens County Court, 1938) (applying a statute that provided that when a crime is committed partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county, the court held that a Queens County grand jury had jurisdiction to indict the defendant for inciting and attempting to procure a witness to commit perjury even though it was alleged that the incitement and attempt took place in Kings County, because the effects of the alleged acts were intended to take place in Queens County), and the later case service citing State v. Hall, 26 Or.App. 17, 20, 552 P.2d 272 (1976) (applying statutes that provided that "[i]f conduct constituting elements of an offense or results constituting elements of an offense occur in two or more counties, trial of the offense may be held in any of the counties concerned," Or.Rev.Stat. 131.315(1), and "[i]f the offense is an attempt or solicitation to commit a crime, trial of the offense may be held in any county in which any act that is an element of the offense is committed," Or.Rev.Stat. 131.315(8), the court held that venue regarding a charge of attempt to induce a witness in an official proceeding to withhold testimony was proper in the county where the official proceeding was pending).

Michigan has a similar statute, M.C.L. § 762.8; M.S.A. § 28.851, concerning a felony consisting of more than one act, to which the trial court indirectly alluded. That statute provides:

Whenever a felony consists or is the culmination of two or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any one of said acts was committed.

While the Michigan statute does not use the words "effects" or "results," it has been similarly interpreted. In People v. Flaherty, 165 Mich.App. 113, 418 N.W.2d 695 (1987), this Court applied the statute and affirmed the defendant's conviction of larceny by false pretenses, M.C.L. § 750.218; M.S.A. § 28.415, rejecting the defendant's argument that insufficient evidence was presented regarding venue because he never set foot in the county where he was tried. The defendant's insurance agency was located in Macomb County and he was tried in St. Clair County. The defendant had allegedly defrauded a general insurance agency, having accepted money from it for an insurance policy that was never issued. Flaherty, supra at 118-119, 418 N.W.2d 695. This Court noted that evidence was presented that the larceny was accomplished through mail and telephone communications that moved across county boundaries, and that some of these acts had their effects in St. Clair County, including the general agency's authorization of an invoice and placing of payment to the defendant in the mail. This Court stated "[w]e find no particular significance in the fact that defendant was physically present in Macomb County when he initiated the various communications. The effective false representation occurred in St. Clair County." Id. at 119, 418 N.W.2d 695.

Thus, in applying the statute, the place of commission of an act is not limited to the place of the defendant's physical presence. An act that has effects elsewhere that are essential to the offense is, in effect, committed in the place where the act has its effects. Here, the felony complaint stated Wayne County as one of the places of the offense and that defendant's alleged acts were intended to affect proceedings pending in that county. The obstruction charge required proof that defendant intended to hinder the due course of justice in the case pending in Wayne County. We conclude that venue was proper in Wayne County, where the proceedings intended to be affected were pending.

III

Defendant next argues that the trial court committed error requiring reversal in allowing hearsay testimony into evidence by permitting assistant prosecutor Reynolds to paraphrase testimony from defendant's prior murder trial and by allowing Docket and Smith to testify about statements made by Bush. We disagree.

Hearsay is "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c).

A

The trial court allowed Reynolds to paraphrase testimony from defendant's second homicide trial during the perjury trial, stating that the testimony was not hearsay because it was not offered to prove the truth of the matter asserted, but only to show that the statements were made. Reynolds related testimony regarding the condition of the crime scene, what items were allegedly taken from the crime scene, the circumstances surrounding the crime, and the cause of the victim's death. Defendant argues that the statements were, in fact, offered for the truth of the matter asserted, because, in order for Bush to be regarded as credible, his version of events had to be shown to coincide with events as they actually occurred. We are not persuaded by this argument.

Before Reynolds' testimony, Bush testified that defendant provided him with details of the crime scene and the circumstances surrounding the crime so that Bush could confess to the murder of defendant's wife. Reynolds' account of the testimony at defendant's second trial was offered to show the consistency between the facts Bush testified that defendant related to him in prison and the facts as presented at the trial. The testimony was offered to show that Bush had gotten his information about the death of defendant's wife from defendant as part of a scheme by which defendant would be exonerated of his wife's murder. Reynolds' account of the testimony was offered only to show that the testimony was given, not that it was true. If the facts Bush claimed to have learned from defendant pursuant to the plan were consistent with the testimony at trial, it makes it more likely that defendant, who was present at trial, provided the information to Bush. The truth of the testimony at the murder trial is unimportant; what is important is that there was, in fact, testimony coinciding with Bush's testimony. Thus, the trial court did not err in allowing Reynolds to relate testimony from defendant's prior murder trial because it was not offered to prove the truth of the matter asserted.

B

Eric Docket testified at trial that Bush told him that defendant wanted Bush to "take the case for him" and that Bush was "squeezing" defendant, which meant that Bush was to admit to murdering defendant's wife in exchange for money, but Bush never planned to "take the case." Before the admission of this testimony, to which defendant did not specifically object at the time, there was a lengthy colloquy regarding whether the prosecutor would be permitted to elicit testimony from Docket regarding Bush's statements to him. The discussion centered on whether Bush's statements to Docket were prior consistent statements, which are not hearsay under MRE 801(d)(1)(B). The court ruled that the prosecutor could rehabilitate Bush through prior consistent statements made to others. We conclude that the court did not err.

MRE 801(d)(1)(B) provides:

A statement is not hearsay if—[t]he declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Defense counsel cross-examined Bush extensively in an effort to establish that Bush benefited from his agreement with the prosecutor to testify in exchange for sentence credit. Defense counsel also asked:

Q. Now, when you wrote to them [the prosecutors], it wasn't because you were outraged because somebody's conviction was set aside, but that you saw this as an opportunity to get something for yourself; isn't that right?

A. No.

Q. You saw it as an opportunity to get something for yourself, didn't you?

A. No, not really.

Thus, one of defendant's theories at trial was that Bush had fabricated his claim in order to "sell something to the prosecutor" and that he had an improper motive. Because Bush's statements to Docket were made to a friend and preceded Bush's contact with the prosecutor, they arguably preceded his motive to fabricate. Therefore, Docket's testimony regarding Bush's statements was not hearsay under MRE 801(d)(1)(B).

Further, on direct examination, Bush testified, without objection, that Docket, Smith, and William Mundy were aware of his dealings with defendant. On cross-examination, defense counsel elicited testimony from Bush that he admitted to Docket, Smith, and Mundy that he was squeezing defendant, although Bush later denied using the word "squeeze." Thus, the admission of Docket's testimony, if erroneous, was harmless.

C

Christina Smith testified that she had received correspondence from Bush stating that defendant was "looking out for" Bush, which Smith interpreted to mean that defendant was buying things for Bush or giving money to Bush. For the reasons discussed regarding Docket's testimony, we conclude that Smith's testimony also was not hearsay under MRE 801(d)(1)(B) and that its admission was harmless in any event.

In addition, because the statement that defendant was "looking out for" Bush is consistent with defendant's theory at trial that he agreed to pay Bush to help him solve his wife's murder, its admission, if erroneous, was harmless for this reason as well.

IV

Defendant next argues that while paraphrasing the testimony from defendant's second murder trial, Reynolds improperly commented on the credibility of testimony favorable to the defense. Defendant further argues that during closing argument, the prosecutor both improperly commented on the credibility of Docket's testimony by characterizing it as "truthful" and misstated testimony.

This Court reviews claims of prosecutorial misconduct case by case, examining the pertinent portion of the record to evaluate the remarks in the context they were made. People v. Bahoda, 448 Mich. 261, 266-267, 531 N.W.2d 659 (1995); People v. Legrone, 205 Mich.App. 77, 82, 517 N.W.2d 270 (1994). A prosecutor may not argue the effect of testimony that was not entered into evidence at trial. People v. Stanaway, 446 Mich. 643, 686, 521 N.W.2d 557 (1994). However, a prosecutor is free to argue the evidence and all reasonable inferences from the evidence as it relates to the prosecution's theory of the case. Bahoda, supra at 282, 531 N.W.2d 659.

A

During Reynolds' testimony at trial regarding the testimony from defendant's second murder trial, the following exchange occurred:

Q. [Prosecutor]; Was there testimony elicited at the trial relative to an alleged assault upon Dr. Fisher?

A. Yes, there was.

Q. And was there testimony relative to whether or not Dr. Fisher had been struck?

A. There was certainly a question about that, yes.

Q. Was there any indication during the course of the trial—

The Court: Excuse me. Your question was whether or not there was any testimony and not whether there were any questions about it. The witness's statement is stricken.

You can ask your question again.

A. I'm sorry, your Honor.

Q. (By Mr. Donaldson [prosecutor], continuing) Was there any testimony about Dr. Fisher himself having been taped up?

A. There was testimony that Dr. Fisher claimed to have been taped up. And there were questions and testimony about the consistency of physical evidence to that—

Mr. Mogill [defense counsel]: May we approach the bench?

Following this exchange, the trial court excused the jury and cautioned Reynolds against expressing his opinion regarding the truth of the testimony he was paraphrasing. When the trial court asked defense counsel whether that addressed his objection, defense counsel further complained that Reynolds was giving his opinion by his demeanor, choice of words, and tone of voice. The trial court stated that it would not caution Reynolds regarding his demeanor because that was something the jury had to judge.

We agree that Reynolds' characterization of the truth or accuracy of the claim that defendant had been struck or taped was irrelevant and inadmissible, as was his assessment of other evidence presented at trial. The relevant issue is what testimony was presented at trial, which would make Bush's account of what defendant told him in prison more or less credible, not the truth of the testimony. Nevertheless, Reynolds did not state that he had some special knowledge regarding whether the testimony was truthful. Bahoda, supra at 276-277, 531 N.W.2d 659. Defendant complains that Reynolds stated that during defendant's prior murder trial there was testimony that defendant claimed to have been taped up and that there were questions and testimony about the consistency of physical evidence. While this testimony was irrelevant, it does not rise to the level of error requiring reversal. Id. at 277, 531 N.W.2d 659.

Defendant also complains on appeal that when the prosecutor questioned Reynolds about the testimony at defendant's prior murder trial, he asked for a factual statement from Reynolds on many occasions, rather than asking if there had been testimony at trial with regard to each matter. However, on several occasions, the trial court interrupted the prosecutor, and corrected the form of the questions to reflect that they were directed to whether there had been testimony at the murder trial with regard to each matter. Because the trial court timely corrected the prosecution in front of the jury and the form of the questions did not indicate any special knowledge regarding defendant's guilt or innocence on the part of the witness or the prosecutor, we find no error requiring reversal. Further, the truth of defendant's testimony at the murder trial was not at issue in the instant case. The prosecutor's opinion regarding whether the testimony was truthful, even if conveyed, was irrelevant. We note that the prosecutor did not argue that defendant lied at his murder trial and the jury should therefore conclude that he was lying in the instant case.

B

During the prosecution's closing argument in this case, the following exchange occurred:

[Prosecutor, presenting argument]: Let's get back to what this case is all about. Was there a relationship? That's almost conceded. Was there a transfer of money between Ricardo Bush and Dr. Fisher? Did he pay him money? Bush tells you that he did. Docket says that he did.

Mr. Mogill: Objection, Docket did not testify to that.

The Court: I'm going to overrule the objection. He's arguing what he believes the evidence tends to show. I remind the jurors that what the lawyers say is not evidence. What you heard from the witness stand is the evidence.

Defendant argues on appeal that this comment was improper because the only statements Docket made about Bush receiving anything from defendant were hearsay statements in which Bush allegedly claimed to have received money from defendant. Defendant argues that the prosecutor's statement led the jury to believe that Docket had personal knowledge regarding a transfer of money between Bush and defendant.

A prosecutor is free to argue the evidence and all reasonable inferences therefrom as it relates to the prosecution's theory of the case. Bahoda, supra at 282, 531 N.W.2d 659. On cross-examination, Docket testified that he never saw defendant exchange anything with Bush and never saw defendant giving Bush tokens. On redirect examination, the prosecution referred to this testimony and asked Docket if he knew tokens were paid to Bush by defendant. Docket testified that on one occasion, Bush had been without money, and the next thing he knew, Bush had money. Docket testified that he asked Bush where the money came from, and Bush told him that it had come from defendant. Defendant did not object to this testimony. During closing argument, the prosecutor stated that Docket said that defendant paid Bush money, not that Docket personally observed such an exchange. We conclude this statement does not require reversal, especially in light of the court's cautionary statement.

C

Defendant also argues that the prosecutor impermissibly vouched for the credibility of Docket's testimony during his closing argument. The prosecutor stated:

He didn't want to be here. I think it should be clear to you it wasn't until I boxed him in that he became truthful with you in terms of what he knew. Why?

Well, use your common sense. You are a prisoner. Who is the enemy in prison. It's the People. You don't help the enemy. You don't do that. And if you do, you are taking some risks.

What do you think it's like inside of a prison having come and testified against another inmate, someone who you share your life with? So, Docket's testimony props up Bush. And I promised him a letter outlining his cooperation in the case. Nothing more.

There's absolutely nothing improper about that. And it's truthful. Christina Smith comes in, she says, I never met you before, Mr. [Prosecutor]. No promises here. Yeah, I knew about the scam before he ever started doing it.

We conclude that the prosecutor was arguing that the circumstances surrounding Docket's testimony explained his reluctance to testify and that his testimony was corroborated, which indicates he was being truthful. We reject defendant's argument that this constitutes prosecutorial misconduct, because there was no implication that the prosecution had any special knowledge of Docket's credibility. Bahoda, supra.

D

Finally, defendant argues that the prosecutor engaged in misconduct by commenting on evidence that was not presented to the jury. During closing argument, the prosecutor stated:

Mr. Mundy is the third person mentioned in the original statement given to the prosecutor's office that was conducted along with Docket and Smith. Mundy says, I don't want to say nothing. I don't even know. That is the normal reaction when an investigation is done by our office. I don't know nothing about nothing.

Defendant did not object to this comment at trial and, therefore, we will review only for a miscarriage of justice. Stanaway, supra at 686-687, 521 N.W.2d 557.

Special Investigator Kenneth May had earlier testified that he was unable to obtain a statement from William Mundy. Specifically, May testified on cross-examination that "the only thing that Mr. Mundy would say to me is I would rather not discuss it or I would rather not talk about it." Therefore, the statement complained of was merely a comment or recapitulation of testimony presented at trial. Under these circumstances, we conclude that failure to review this issue would not result in a miscarriage of justice.

V

With regard to the defendant's claims of error raised in his supplemental brief, we conclude that Bush's credibility was properly left to the jury, the jury was fairly instructed, and defendant was properly charged.

Affirmed.

P.D. SCHAEFER, J., concurred.

HOLBROOK, Judge (concurring).

I concur with the majority that defendant's conviction should be affirmed. I write separately to distinguish this case from People v. Meredith (On Remand), 209 Mich.App. 403, 531 N.W.2d 749 (1995), in which I dissented from the majority's holding that M.C.L. § 762.8; M.S.A. § 28.851 provided a basis for venue in the prosecution of a conspiracy charge by the mere fact of a coconspirator's travel through the prosecuting county. Id. at 408-409, 531 N.W.2d 749. It remains my opinion that mere travel through a county, without more, does not constitute an overt act in furtherance of a conspiracy formed in another county. Id. at 416-417, 531 N.W.2d 749 (Holbrook, Jr., J., dissenting). In this case, however, the nexus between defendant Fisher's felonious acts and the prosecuting county was not merely incidental or fortuitous, but, rather, was direct and substantial. As the majority in this case notes: "Here, the felony complaint stated Wayne County as one of the places of the offense and that defendant's alleged acts were intended to affect proceedings pending in that county." Ante, p 324. Thus, venue was properly established in Wayne County.

I concur in all other aspects of the majority opinion.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The prosecution argues that defendant abandoned the venue issue by failing to order and provide the transcript of the sentencing, at which the trial court was to make its final ruling regarding the venue issue. The trial transcripts reflect the court's ruling regarding the attempted obstruction of justice count. The court reserved ruling only on the question whether venue was also proper regarding the inciting perjury count because both counts arose out of the same transaction. However, on appeal, defendant appears to concede that if venue with regard to either count was proper, the prosecution of both counts in Wayne County was proper:

In finding that venue for both counts was proper in Wayne County, the trial judge ruled that venue was proper for the attempted obstruction of justice count, and that, through the "same transaction" test, venue was, therefore, also proper for the incitement to perjury count. While People v. White, 390 Mich 245 [212 N.W.2d 222 (1973)], does hold that multiple charges growing out of the same transaction must be brought in a single criminal proceeding, the trial judge erred in ruling that venue was appropriate in Wayne County for the attempted obstruction of justice charge.

We thus conclude that the issue that was abandoned for failure to file the transcript—whether venue of the incitement to commit perjury count is proper as an adjunct to the attempted obstruction of justice count—is not challenged by defendant in any event.

[2] The crime that defendant was convicted of, inciting perjury, is defined at M.C.L. § 750.425; M.S.A. § 28.667 as:

Any person who shall endeavor to incite or procure any person to commit the crime of perjury, though no perjury be committed, shall be guilty of a felony, punishable by imprisonment in the state prison not more than five years.

Perjury is defined at M.C.L. § 750.423; M.S.A. § 28.665 as:

Any person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, a felony, punishable by imprisonment in the state prison not more than fifteen years.

With regard to the attempted obstruction of justice charge, the jury was instructed regarding what constitutes an attempt and, regarding the obstruction offense, was instructed:

In order to show that the Defendant is guilty of obstruction of justice, the People would have to show beyond a reasonable doubt that the Defendant induced Ricardo Bush to commit perjury.

Second, the People would have to establish beyond a reasonable doubt that at the time of the inducement, the Defendant intended to hinder the due process of justice in the pending case in Wayne County known as the People v. Charles Fisher. That case was pending from 1988 through 1990. And what they would have to show is that the Defendant intended to hinder the due course of justice in that case by the perjury of Ricardo Bush.

[3] A number of federal statutes fall under the obstruction of justice rubric, including the predecessor version of 18 U.S.C. § 1503, involved in the cases cited as involving that section, with the exception of United States v. Reed, 773 F.2d 477 (C.A. 2, 1985), and 18 U.S.C. § 1512. The former version of 18 U.S.C. § 1503 (1976) stated in pertinent part:

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness ... or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer ... or corruptly, or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

Section 1503 was amended in 1982 to delete references to witnesses; attacks on witnesses are now covered by 18 U.S.C. §§ 1512-1514. See n. 5, infra, 63 Boston ULR 919, n 1 (1983). Section 1512 took effect October 12, 1982, and stated at that time in pertinent part:

(a) Whoever knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1) influence the testimony of any person in an official proceeding;

* * * * * *

shall be fined not more than $250,000 or imprisoned not more than ten years, or both.

Sections 1621 to 1623 are entitled Perjury Generally, Subornation of Perjury, and False Declarations Before Grand Jury or Court, respectively.

[4] All the cases cited in this paragraph were decided before the addition of a venue provision to 18 U.S.C. § 1512, effective November 18, 1988, which provides:

(h) A prosecution under this section or section 1503 may be brought in the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be affected or in the district in which the conduct constituting the alleged offense occurred. [18 U.S.C. § 1512(h).]

[5] The Eighth Circuit Court of Appeals, in United States v. Brakke, 934 F.2d 174 (C.A. 8, 1991), held that in a prosecution under 18 U.S.C. § 1501, which proscribes the obstructing, resisting, or opposing of any officer of the United States serving, or attempting to serve or execute, any legal or judicial writ or process of any court of the United States, venue is proper where the acts of obstruction took place, and not where the process was issued. Brakke is of limited relevance to the issue before us. The Brakke court questioned whether § 1501 is an obstruction of justice statute and found especially significant the fact that §§ 1503 and 1512 have a special venue provision not contained in § 1501. The special venue provision referred to by the Brakke court took effect in 1988 (see n. 4, supra) and played no part in the decision of the various federal cases on which we rely.

In United States v. Hersch, 850 F.Supp. 483 (E.D.Va., 1994) (conviction vacated and remanded on other grounds in unpublished opinion of the United States Court of Appeals for the Fourth Circuit, issued October 11, 1996, 1996 U.S.App. Lexis 26640), relied on by defendant, the court applied Kibler's "verb test" to a perjury charge and concluded that venue was proper only where the oath is taken or the false statements are made. We conclude that Hersch has no application to the attempted obstruction of justice charge. We also note that United States v. Nadolny, 601 F.2d 940 (C.A.7, 1979), relied on by defendant, was overruled in United States v. Frederick, supra.

For a thorough, although now outdated, discussion of the federal courts' formerly divergent approaches regarding proper venue in obstruction of justice cases brought under 18 U.S.C. § 1503, see Anno: Venue of prosecution for unlawfully influencing, intimidating, or impeding a federal officer, witness, or juror, under 18 USCS § 1503, 64 ALR Fed 678, 679 (describing the two approaches as (1) that the locus delicti of the crime is the place where the actual physical acts occurred, and (2) that since the crime is the obstruction of justice, the location of its commission is in the district where the effect of the acts occur, the district whose due administration is affected). See also note, Criminal Venue in the Federal Courts: The Obstruction of Justice Puzzle, 82 Mich.L.R. 90 (1983), and note. Venue in Constructive Contempt Prosecutions Under 18 USC § 1503: An Act-Oriented Approach, 63 Boston ULR 919 (1983).

[6] We also reject defendant's argument that venue is proper only in Jackson County, pursuant to M.C.L. § 768.6; M.S.A. § 28.1029 and M.C.L. § 768.7; M.S.A. § 28.1030, the latter of which provides that the circuit court for the county in which the prison where the crime or offense punishable by imprisonment in such institution occurred "shall have jurisdiction." This latter section does not preclude venue being proper in another county as well.