People v. Buckey ( 1985 )

Riley J.

The issue common to both of these cases, and the one which we directed the parties to address, is whether error requiring reversal occurs when the prosecutor argues that the defendant’s presence at trial is an opportunity for the defendant to fabricate testimony.

The Court of Appeals panels in both cases answered affirmatively, thus reversing defendants’ convictions. We reverse the judgments of the Court of Appeals.

In Buckey,¹ two members of the Court of Appeals panel also held that questions by the prosecutor during cross-examination of defendant concerning whether various prosecution witnesses were lying constituted error requiring reversal. Here again, we reverse the judgment of the Court of Appeals.

The McWhorter² panel also found that the prosecutor erred in questioning defendant about his financial condition at times both before and after an alleged kidnapping. We remand the case to the Court of Appeals for a determination whether this was error that requires reversal.

Finally, after we granted the prosecutors’ applications for leave to appeal, both defendants brought cross-appeals alleging other errors which had not been addressed by the Court of Appeals. We remand the cases to the Court of Appeals for consideration of these issues.

I

A. People v Buckey

Defendant Buckey was convicted of assault with intent to commit criminal sexual conduct in the second degree. An earlier trial resulted in a mistrial when the jury was unable to agree upon a verdict. In both proceedings, Buckey was charged with and tried for the completed offense of second-degree criminal sexual conduct. MCL 750.520c(l)(f); MSA 28.788(3)(l)(f).

Testimony established that defendant met the complainant at a bar on the evening in question and that after some period of time the two left in a jeep. Defendant drove to a field and stopped the vehicle. The complainant testified that defendant touched her breasts and that he forced her to touch his exposed genitals. She further testified that she struggled with defendant to get out of the jeep and that, when she did get out, defendant grabbed her, pushed her to the ground, and got on top of her. At that point a car pulled up, and she got out from under defendant and ran over to the car. The occupants, four boys, gave her a ride home. The four boys testified to seeing defendant either push the complainant to the ground or hold her on the ground.

Defendant gave a statement to the police when he was arrested in which he claimed that the complainant had not objected to his sexual advances. He further stated that she "freaked out” after she declined his proposition of further sexual activity. He stated that nothing happened on the ground outside of the jeep.

At trial, defendant’s testimony was consistent with his statement, except for his description of what had happened outside of the jeep. He testified that she had fallen to the ground as she got out of the vehicle. She tried to kick him and may have fallen again as she ran to the boys’ car, and he may have fallen at that time as well.

During his closing argument in both trials the prosecutor made the following unobjected-to remarks:

If you’ll recall his cross-examination testimony you’ll recall that he testified that he was present at the preliminary examination back in December of 1981. He sat through the whole thing, he heard Debbie DeFord testify, he heard one of the boys testify, and he also admitted that he’d reviewed, to some extent anyway, the police report in connection with this case. Now, there’s nothing wrong with this [sic, his] doing that, per se, reviewing the police report, but the point is, ladies and gentlemen of the jury, that the defendant knew — and also he was the last witness to testify in this case —he knew before he took the witness stand, completely, what the People’s proofs were going to be. He knew completely what they were. He also admitted that he sat through proceedings in this case back in February of this year. All of our witnesses, except Trooper Stayer, testified at that time. He indicated on the witness stand he heard them all testify. He testified, himself, back then. He was cross-examined at that time. He indicated that he later heard all the remarks that both I made and his attorney made, concerning that testimony.

So, ladies and gentlemen of the jury, the point is that the defendant has known for some time precisely what the People’s proofs were going to be. He’s had plenty of time to try to figure a way around our proofs and also to get prepared to tell his story in a convincing manner.

Following his conviction, defendant appealed to the Court of Appeals, arguing, inter alia, that certain questions asked of him on cross-examination³ and the above-quoted closing argument constituted prosecutorial misconduct which deprived him of his right to a fair trial. All three members of the panel agreed that the prosecutor’s closing argument resulted in error requiring reversal, relying on People v Fredericks, 125 Mich App 114; 335 NW2d 919 (1983), and People v Smith, 73 Mich App 463; 252 NW2d 488 (1977), lv den 402 Mich 803 (1977). Judge Cynar disagreed with the majority’s finding that the cross-examination was improper and not harmless beyond a reasonable doubt, writing that a timely objection could have cured any prejudice. People v Buckey, 133 Mich App 158, 167; 348 NW2d 53 (1984) (Cynar, J., concurring in part).

B. People v McWhorter

Defendant McWhorter was charged and convicted of conspiracy to kidnap, MCL 750.349, 750.157a; MSA 28.581, 28.354(1), and kidnapping, MCL 750.349; MSA 28.581.

The. facts are succinctly set forth in the Court of Appeals opinion:

Defendant’s convictions arose out of the abduction of David Nixon from defendant’s law office by William Snyder and Joseph Postelwaite. The evidence tended to show that the kidnapping was arranged by defendant as a means of extorting payment of legal services rendered.

Defendant was retained by Douglas Suess to represent his parents and a friend who had been arrested in Florida while driving trucks filled with marijuana. The marijuana was being shipped to other states, including Michigan, as part of an operation equally run by Suess and Nixon.

Nixon owed Suess his share of the proceeds from marijuana sales which had accumulated during the course of the venture. Suess intended to pay defendant with some portion of these proceeds; however, Nixon refused to provide him with any money. When Nixon refused to pay Suess, defendant told him to be more emphatic and forceful with Nixon.

Ultimately, defendant offered Snyder the opportunity to work off fees which Snyder owed to him. Defendant asked Snyder to follow Nixon and scare him into giving Suess some money. Snyder proved to be unable to accomplish the task and suggested recruiting some help. The pair agreed to seek assistance from Postelwaite.

At some point, Snyder, Postelwaite, Suess, and defendant all met at defendant’s office. Defendant indicated that Nixon would be coming in shortly. The group agreed that if the meeting with Nixon did not go right and he would not pay the money, they would grab him.

Nixon arrived at defendant’s office and went downstairs with defendant into his law library. An argument ensued. Defendant returned from the library and told Snyder to grab Nixon as soon as possible. Defendant and others then left the office. Snyder and Postelwaite bound Nixon with a cord and took him to Postelwaite’s farm where he was tied to a tree. Nixon eventually agreed to pay $30,000. When this offer was conveyed to defendant, he agreed to accept the deal and arrangements were made for collecting the funds.

Defendant denied involvement in the extorting of money from Nixon. He claimed that he only learned that Nixon had been beaten and abducted after the fact.

A careful review of the record indicates that defendant confirmed much of the prosecution witnesses’ testimony, while denying those parts which would incriminate him. He made repeated references to other witnesses’ testimony or lack thereof.

The meeting at defendant’s office and the abduction took place on May 14, 1977. On the following day, Nixon paid $30,000 in cash and was released. Defendant’s secretary picked up $15,000 in cash from Snyder and Postelwaite in a grocery store parking lot and took the money to defendant’s office.

In his closing argument, the prosecutor made the following remarks:

I’m not going to belabor that, because I think the line is drawn. I think on the one side of that line you have one person, two persons, six people and on the other side of the line you have Bob McWhorter who says here is where I was and all the other people who were involved say, hey, Bob, you were over here with us. What are you trying to tell us? You didn’t know what was going on. You were obvious [sic] as to what was going on. We are the patsies on the other side of this line. I didn’t know what was going on, says Bob Mc-Whorter.

Well, I challenge you and I ask you to look at that because that is where the line is drawn. Did he know? Did he not know? When you think about how that line is drawn, I want you to remember this. How many of those other witnesses were present in the courtroom during this testimony? How many people knew where that line was so when it came time to walk that line you knew where to walk? I submit to you only one person knew where that line was because that one person heard all that testimony.

[Defense Attorney]: I will object, Your Honor. That is the defendant’s right in every case. In fact, he has to be present during all the testimony. That’s improper.

The Court: You may proceed.

[Prosecuting Attorney]: Thank you, Your Honor. Specifically, Bob McWhorter is the only person who knew where to go, knew where the testimony had to go to avoid any implications and I submit to you he took that line and he walked it very carefully.

Defendant appealed to the Court of Appeals, raising numerous allegations. Relying on People v Fredericks, supra, the Court of Appeals reversed defendant’s convictions, finding error requiring reversal in the prosecutor’s closing argument.

II

The common issue in these cases has been addressed by two panels of the Court of Appeals, with differing results. The issue was first considered in People v Smith, supra. The Smith Court found the prosecutor’s unobjected-to remark, that the defendants’ presence in court gave them opportunity to conform their testimony, "inadvisable.” However, it held that the error was harmless because a curative instruction could have cured any prejudice. Smith, supra, 470-471.

The other case was People v Fredericks, supra. The Fredericks Court reversed the defendant’s conviction because the prosecutor had argued to the jury that the defendant may have altered his testimony to match the testimony of other witnesses he had heard during the trial. As in Smith, the defendant in Fredericks had not objected to the prosecutor’s argument. Unlike Smith, however, the Fredericks Court found the error to be of the type that could not be considered harmless. This conclusion was based on the Court’s finding that the argument infringed on a fundamental right, i.e., the right to be present at trial, which, the Court noted, is guaranteed by statute, MCL 768.3; MSA 28.1026, and by the United States Constitution, US Const, Am VI. The Fredericks Court analogized the comment to prosecutorial references to the defendant’s failure to testify. Comments of the latter type are erroneous because they infringe on the defendant’s constitutional right to remain silent. US Const, Am V; Const 1963, art 1, § 17; People v Mancill, 393 Mich 132; 223 NW2d 289 (1974). The Fredericks Court believed that just as comment on the defendant’s failure to testify "place[s] an intolerable burden on the defendant’s decision to exercise or forego his right to remain silent,” reference to the defendant’s opportunity to conform his testimony to that of other witnesses impermissibly burdens his right to be present at trial:

This method of discrediting a testifying defendant’s version of the facts places the defendant between the horns of an intolerable dilemma: the defendant must decide to either present himself at trial and risk being discredited by his presence or absent himself from trial and avoid the risk. A defendant in this position cannot freely exercise his right to be present at trial. Therefore, we hold that, in his argument to the jury, a prosecutor may not attempt to discredit a defendant’s testimony by reference to the defendant’s presence at the trial. [Fredericks, supra, 120.]

In contrast to Smith and Fredericks, cases from other jurisdictions have found similar remarks to be permissible argument on credibility. In telling brevity, the courts have rejected arguments identical to defendants’ at bar that such remarks impermissibly infringe on the right to be present at trial. State v Martin, 101 NM 595, 599; 686 P2d 937 (1984); State v Hoxsie, 101 NM 7, 9; 677 P2d 620 (1984); State v Howard, 323 NW2d 872, 874 (SD, 1982); Reed v State, 633 SW2d 664, 664-666 (Tex App, 1982); State v Robinson, 157 NJ Super 118, 119-120; 384 A2d 569 (1978), cert den 77 NJ 484; 391 A2d 498 (1978).

In State v Robinson, supra, 120, the court held that the prosecutor’s comments⁴ did not deny the defendant his right to be present at trial or to confront the witnesses against him:

Obviously he did confront these witnesses and was present at his trial. And a reasonable reading of the comments clearly reveals that they were a comment on the credibility of defendant’s testimony. It is well settled that when a defendant waives his right to remain silent and takes the stand in his own defense, he thereby subjects himself to cross-examination as to the credibility of his story. And that issue would involve whether the story had been fabricated. . . . Here the issue of defendant’s credibility was whether his testimony was tailored to that of the testimony of other witnesses, a perfectly proper inquiry. [Citations omitted.]

Ill

Relying on Fredericks, supra, defendants argue that the prosecutorial comments at issue impermissibly burden a defendant’s constitutional right to be present at trial by penalizing him for exercising that right._

As noted above, the Fredericks Court analogized comment similar to that at issue to comment on a defendant’s right to not testify at trial. Remarks of the latter type are prohibited because they ask the jury to draw the inference that the defendant is guilty or hiding something merely because he has not taken the stand. Griffin v California, 380 US 609; 85 S Ct 1229; 14 L Ed 2d 106 (1965); People v Mancill, supra.⁵ Had the comment in the instant cases been something like: "If defendant was innocent, would he have appeared for trial?” the analogy might be applicable. That would seem to be a direct comment on the defendant’s presence at trial. However, we think the analogy is strained on the facts of the cases at bar. Here, the comments only indirectly related to defendants’ right to be present at trial. Any resulting inference was not directly of guilt, but rather that defendants had the opportunity to conform their testimony because they heard other witnesses testify.

Therefore, we are unable to agree with the Court of Appeals in the cases at bar that the prosecutors’ arguments in fact commented directly on the defendants’ right to be present at trial. Rather, we believe the arguments simply concerned the defendants’ credibility. It is well-established that the prosecutor may comment upon the testimony and draw inferences from it and may argue that a witness, including the defendant, is not worthy of belief. People v Wirth, 108 Mich 307; 66 NW 41 (1896); People v Couch, 49 Mich App 69; 211 NW2d 250 (1973), lv den 391 Mich 755 (1973); People v Cowell, 44 Mich App 623; 205 NW2d 600 (1973).

Opportunity and motive to fabricate testimony are permissible areas of inquiry of any witness. Both arguments in the instant cases presented the prosecutions’ theory that defendants’ testimony appeared to be carefully drawn explanations of the testimony presented. In both cases, the prosecutors commented on the content of defendants’ testimony in relation either to his own earlier inconsistent testimony (Buckey), or to the testimony of other witnesses (McWhorter).

Defendants further argue that other rights may be implicated if prosecutors are permitted to argue as did those in the instant cases — i.e., the right to testify, the right to remain silent, and the attorney-client privilege. These latter rights may be affected, they contend, because, in an attempt to combat this prosecutorial tactic, a defendant might be induced not to testify, to waive his right to remain silent and make a statement at arrest, or to call his counsel as a witness to testify to earlier discussions which were consistent with the defendant’s trial testimony.

This argument misses the point of why the prosecutors’ arguments were not improper in these cases. We do not suggest that a prosecutor may, in every case, argue that a defendant who testifies has fabricated his testimony merely because he has sat through his trial and heard the evidence. Thus, it cannot be said that every defendant will be faced with a choice between forfeiting one right so that he may exercise another — e.g., being present at trial, but not testifying so as to avoid the risk of prosecutorial comment that he fabricated testimony. When, as here, however, the evidence does support that inference, the argument is perfectly proper comment on credibility. In this situation, the prosecutorial comment is not that the defendant was present at the trial, but that his presence gave him the opportunity to conform his testimony. To accept defendants’ argument that they must choose between exercising their right to be present at trial and some other right would be to say that a defendant has the right to fabricate or conform testimony without comment.

Finally, we reject defendant Buckey’s argument that the prosecutor’s comments were improper because they focused on his status as a defendant. A defendant may be compelled at trial "to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Schmerber v California, 384 US 757, 764; 86 S Ct 1826; 16 L Ed 2d 908 (1966); People v Markley, 99 Mich App 658, 661; 298 NW2d 615 (1980), rev’d on other grounds 413 Mich 852 (1982). These procedures might be said to take advantage of the defendant’s presence at trial, yet our research has disclosed no case which has held such procedures violative of the defendant’s right to attend his trial.

Therefore, we hold that the closing arguments in the instant cases were proper.

IV

Next, we consider the second instance of alleged prosecutorial misconduct which prompted reversal in Buckey. The conduct which was the basis for the finding of error was the prosecutor’s cross-examination of Buckey⁶ in which he was asked whether he believed the complainant, the four young men, and Detective Harkin were lying.

The Court of Appeals found the questioning erroneous on the basis that "it [is] improper for a witness to comment or provide an opinion on the credibility of another witness since matters of credibility are to be determined by the trier of fact. People v Adams, 122 Mich App 759, 767; 333 NW2d 538 (1983), remanded with jurisdiction retained 417 Mich 1073; 336 NW2d 751 (1983).” Buckey, supra, 163. The cases cited by the Court of Appeals applying that rule concerned nondefendant witnesses commenting on the credibility of other witnesses or on the guilt or innocence of the defendant.⁷ The Court of Appeals believed that the rule should also apply where the defendant is the witness providing the opinion. Buckey, supra, 163.

We agree with the Court of Appeals that it was improper for the prosecutor to ask defendant to comment on the credibility of prosecution witnesses. Defendant’s opinion of their credibility is not probative of the matter. However, we do not agree that the error resulted in unfair prejudice to defendant.

This was not a case where the defendant might have been prejudiced by improper bolstering of the credibility of prosecution witnesses or by allowing an opinion on his guilt or credibility to be expressed. Concededly, the prosecutor’s strategy was to discredit defendant by inviting him to label prosecution witnesses "liars.” However, the substance of the exchange indicates that defendant dealt rather well with the questions. We fail to discern how he was harmed by the questions._

Moreover, as the Court of Appeals noted, defendant’s trial counsel did not raise the objection urged on appeal. We agree with Judge Cynar that "[a] timely objection by defense counsel could have cured any prejudice, either by precluding such further questioning or by obtaining an appropriate cautionary instruction.” Buckey, supra, 167 (Cynar, J., concurring in part).

Therefore, we reverse the judgment of the Court of Appeals on this issue.

V

We hold that the prosecutors’ closing arguments that defendants’ presence at trial gave them an opportunity to fabricate or conform their testimony to that of other witnesses did not result in error which requires reversal. Additionally, the prosecutor’s cross-examination of defendant Buckey did not result in error requiring reversal. Accordingly, the judgments of the Court of Appeals in both cases are reversed. Buckey is remanded to the Court of Appeals for consideration of the issues raised in defendant’s cross-appeal. McWhorter is remanded to the Court of Appeals for consideration of whether the prosecutor’s questioning of defendant McWhorter as to his financial condition was error which would require reversal and also for consideration of the issues raised in defendant’s cross-appeal.

Ryan, Brickley, and Boyle, JJ., concurred with Riley, J.

1 People v Buckey, 133 Mich App 158; 348 NW2d 53 (1984), lv gtd 419 Mich 924 (1984).

2 People v McWhorter, unpublished opinion per curiam, decided May 2, 1984 (Docket No. 54321), lv gtd 419 Mich 924 (1984).

3 The prosecutor commenced his cross-examination of defendant by questioning defendant about his attendance at prior proceedings in the case and about reading police reports prepared in connection with the case. The following exchange occurred:

"Q. [Prosecuting Attorney]: And, Detective Harkin testified that you said that you didn’t want to have your statements taped. You’re saying that didn’t happen?

"A. [Defendant]: That happened the second time he come over to the jailhouse, yes.

"Q. I’m not talking about that, I’m talking about the first time.

"A. That’s correct, he never asked me.

”Q. Are you saying he’s lying about that?

"A. That’s correct.

”Q. And are you saying that Debbie DeFord is lying?

"A. Why would I say Debbie DeFord is lying?

"Q. Are you saying that Debbie DeFord is lying about what — her testimony was about what took place out on Nine Mile Road?

"A. I don’t think she really knows what took place.

”Q. I’m asking you what — I’m asking if you’re saying she’s lying.

"A. Yes.

"[Defense Attorney]: I think he answered the question.

"The Court: It was responsive.

"Q. [Prosecuting Attorney]: All right, is it your testimony you’re saying she’s lying.

"A. [Defendant]: I don’t think — like I said, I can’t say she’s lyin’, all I’m sayin’ is she don’t really realize what happened out there.

"Q. How about — how about the boys who observed what they ob — , are you saying they’re lying too?

"A. Uh-huh, about part of it.

"Q. All right. So, we’ve got at least Detective Harkin, that was one liar, and we’ve got four more, the four boys. You’re saying that they’re lying about certain things.

"A. I didn’t say they were lying, all I’m saying is they didn’t tell the—

”Q. You said (undistinguishable).

"A. —whole truth.

"Q. Well, I asked you, you indicated — are you saying that they were lying, Mr. Buckey?

"A. No, they weren’t lyin’, they’re just not tellin’ what they really saw.

"Q. All right, so we have one liar and four people not saying what they — they really saw, is that what you’re saying?

"A. No, what I’m sayin’ is I think they let Mr. Detective Harkin and the other cops — they programmed 'em.

"Q. You’re the only one that hasn’t been programmed in this case, is that what you’re saying?”

4 "He was sitting here while Mr. Buniak testified. Mr. Buniak told us he used a specific mortar, a specific color in making mortar. It was kind of his trademark. When I asked Mr. Robinson about that, he said he used the same color. He had the ability to sit here and listen to the other witnesses testify and ....

"Excuse me, ladies and gentlemen. As I was saying, I think it’s interesting to note that his story, Mr. Robinson’s story, when he was testifying from the witness stand comported with the other stories that were presented in a way which I would point at and say it looks incredible to me. It doesn’t look credible. It looks unbelievable. It looks like something fabricated.” Robinson, supra, 119-120.

5 In a similar vein, defendants urge that a parallel be drawn between the alleged infringement on the right to be present at trial in their cases and impermissible intrusions on other rights — e.g., prosecutorial comment on a defendant’s exercise of his Sixth Amendment right to counsel held improper, Bruno v Rushen, 721 F2d 1193 (CA 9, 1983), cert den 469 US 920 (1984); People v Meredith, 84 Ill App 3d 1065; 405 NE2d 1306 (1980), testimony that the defendant’s refusal to consent to a search held violative of his Fourth Amendment rights, People v Stephens, 133 Mich App 294; 349 NW2d 162 (1984), prosecutorial comment on the defendant’s exercise of the marital privilege found to he error requiring reversal, People v Spencer, 130 Mich App 527; 343 NW2d 607 (1983); reference to a defendant’s exercise of the Fifth Amendment right to remain silent at arrest held improper, People v Bobo, 390 Mich 355; 212 NW2d 190 (1973).

6 See n 3.

7 People v Row, 135 Mich 505, 507; 98 NW 13 (1904); People v Adams, supra; People v Parks, 57 Mich App 738, 750; 226 NW2d 710 (1975); People v Walker, 40 Mich App 142, 145; 198 NW2d 449 (1972).