Opinion
Docket No. 15160.
Decided September 27, 1973.
Appeal from Lapeer, James P. Churchill, J. Submitted Division 2 June 18, 1973, at Lansing. (Docket No. 15160.) Decided September 27, 1973.
Richard L. Harley was convicted of uttering and publishing. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Martin E. Clements, Prosecuting Attorney, and Edward B. Meth, Assistant Prosecuting Attorney, for the people.
David A. Nelson, P.C., for defendant on appeal.
OPINION OF THE COURT
The defendant, Richard L. Harley, was found guilty by a jury of uttering and publishing, MCLA 750.249; MSA 28.446, was sentenced to a term of 3 to 14 years, and appeals as of right without having made a motion for a new trial.
The first issue arises as a result of testimony given by the defendant to the effect that the chief witness called him in the hospital, apologized for getting him into trouble by lying about the checks, and then indicated that he would straighten the matters out with the prosecuting attorney. During the conference on instructions, the trial judge indicated that he would instruct that such testimony could be used for credibility purposes only; however defense counsel insisted that it be considered as substantive evidence, since it might benefit his client. Naturally, the defense counsel did not object to the instructions as given. Defendant now asserts that the court should have given the original version of the instruction.
In light of GCR 1963, 516.2, it is doubtful if this issue is properly before the Court. Exceptions to the "no objection-no error" language of 516.2 have been made where "manifest injustice" results. Hunt v Deming, 375 Mich. 581; 134 N.W.2d 662 (1965). However, the defendant has no basis for complaint where, as here, his trial strategy failed to produce the desired results.
Secondly, the defendant asserts that he was denied a fair trial by virtue of the fact that the jury was coerced into a hasty verdict by certain remarks made by the trial court, citing People v London, 40 Mich. App. 124; 198 N.W.2d 723 (1972), and the cases cited therein. The trial court herein exhibited no impatience with the jury, but rather merely explained to the jury that if they were unable to reach a verdict within an hour, they would be taken to lunch at county expense. The court further indicated that it was necessary to limit the cost of this lunch. There was absolutely no attempt to force the jury to reach a verdict before lunch nor any attempt to convey to the jury that they should hasten their deliberations.
The third, and perhaps most important, issue concerns certain threats made by the prosecutor to a res gestae witness to the effect that he would prosecute her for the same crime as defendant if she did not leave the county or for perjury if she testified favorably to defendant at trial. The trial court was apprised of the existence of these threats by the witness, whereupon the court informed the witness that she should not hold back any pertinent evidence. The witness then took the stand and testified favorably to the defendant.
There is no question that interference, intimidation and threats by the prosecutor to a witness constitutes grounds for reversal, since such actions usually deprive the defendant of his right to a fair trial. People v Pena, 383 Mich. 402; 175 N.W.2d 767 (1970); People v Butler, 30 Mich. App. 561; 186 N.W.2d 786 (1971). While we condemn the prosecutor for his attempts to pervert the ends of justice, we find that no reversible error resulted therefrom. The record clearly indicates that the trial court's assurances to the witness purged the possible taint left by the prosecutor's actions. We would note further that neither a motion for a mistrial nor a motion for a new trial were made before the trial court. If the taint left by the prosecutor's actions gave rise to any hesitancy to testify by the witness which would not appear from the cold words of the transcript, the proper place to raise the question would have been before the trial court who had the opportunity to observe the behavior of the witness.
The remainder of the issues raised have been carefully examined and found lacking in merit. Not only was the question of improper remarks by the prosecutor not properly preserved for appellate review, but the remarks fell within the scope of permissible inferences from the evidence. The testimony concerning an assault made by defendant on one of the witnesses was introduced by defense counsel on cross-examination; therefore defendant has no cause for complaint. The question of the weight of the evidence is a jury matter and cannot be raised for the first time on appeal; a motion for new trial being a necessary prerequisite. See People v Ragland, 34 Mich. App. 673; 192 N.W.2d 73 (1971). There was sufficient evidence, if believed by the jury, to find defendant guilty beyond a reasonable doubt.
Affirmed.
McGREGOR, J., concurred.
While I concur with the majority that the prosecutor's threats and intimidation directed toward a res gestae witness are to be condemned, I cannot agree that such action was not reversible error and does not mandate a reversal.
It is indefensible for a prosecutor to intimidate a witness either in or out of court. People v Pena, 383 Mich. 402, 406; 175 N.W.2d 767, 768 (1970).
Here the record discloses that the prosecutor met with the witness, used questionable language, told the witness if she lied she would be prosecuted for perjury, that he would eventually obtain evidence to convict her and the defendant of the crime, and closed by stating "I'll get you one way or the other, you and Richard Harley [defendant] if you don't leave the county".
The prosecutor's inference was clear, the witness was to either testify favorable for the prosecutor or face perjury charges. Such conduct on the part of the prosecutor is reprehensible under the rationale of Pena, supra.
Notwithstanding the fact that the witness eventually testified favorably to the defendant, the prosecutor's conduct cannot be lightly classified as harmless error.
Not only was the evidence produced at trial against the defendant extremely weak, the prosecutor's actions toward the witness were so offensive to the maintenance of a sound judicial process and such an affront to the integrity of the trial process that it can never be regarded as harmless error. People v Robinson, 386 Mich. 551, 563; 194 N.W.2d 709, 713-714 (1972).
Therefore, I vote to reverse and remand for a new trial.