People v. Wells , 82 Mich. App. 543 ( 1978 )

82 Mich. App. 543 (1978) 267 N.W.2d 448

PEOPLE
v.
WELLS

Docket No. 30547.

Michigan Court of Appeals.

Decided April 17, 1978.

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 the second degree, MCLA 750.520c; MSA 28.788(3). Subsequently sentenced to a prison term of not less than 3 nor more than 15 years, defendant appeals as of right.

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 People v Poteat, 74 Mich App 598; 255 NW2d 1 (1977). Such questions are also in direct violation of MCLA 600.1436; MSA 27A.1436, the pertinent portion of which reads: "No witness may be questioned in relation to his opinions on religion, either before or after he is sworn." We cannot help but find that the prosecutor, in asking the questions that he did, was attempting to unfairly bolster complainant's credibility. We believe such conduct to be totally unwarranted and of the type of influence condemned in Hall, supra, Bouchee, supra, and Poteat, supra.

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 morning when he got stuck in the snow after abducting the complainant at rifle point at Metropolitan Airport. The police officers happened on the scene, the complainant jumped out of the car and the arrest of the defendant followed.

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, MCLA 600.1436; MSA 27A.1436, is carrying the holding in People v Hall, 391 Mich 175; 215 NW2d 166 (1974), and People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977), to outright absurdity. It is time that the Supreme Court reviewed the havoc that People v Hall and its progeny has wrought and reinvigorated the rule that reversal on unobjected-to error is appropriate only where "it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice". MCLA 769.26; MSA 28.1096.

Were this the court of last resort one would be tempted to reexamine the historical basis for the constitutional provision in question, Const 1963, art 1, § 18, and the legislative intent of the statute hereinabove referred to. Certainly the question of incompetency is obsolete beyond a doubt and the correlation to veracity in today's profane (secular) America is dubious.

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.