People v. Bahoda

531 N.W.2d 659, 448 Mich. 261

Opinions

Riley, J.

In the instant case, we are asked to review three claims of prosecutorial misconduct and one claim of improperly admitted evidence. With respect to the first claim of prosecutorial misconduct, we must decide whether use of and reference to the terms "Arab,” "Arab connection,” and "Iraqi” at a trial conducted during the Per sian Gulf War deprived defendant of a fair trial. Reviewing the statements in context, including the other evidence admitted at trial, we conclude that the statements were innocuous, not intended to inflame the jury, and not of a degree that prejudiced defendant’s right to a fair trial.

Second, we must decide whether the prosecutor improperly bolstered the credibility of his witnesses by eliciting their promises to give truthful testimony or face prosecution and life imprison-, ment. We conclude that this line of questioning was relevant and did not result in any improper bolstering of prosecution witnesses.

Third, we must decide whether the prosecutor appealed to the fears and prejudices of the jury by allegedly injecting a civic duty argument, expressing a personal opinion about defendant’s guilt, and using denigrating terms to describe defendant. Again, we find no error requiring reversal. Reviewing the argument in its entirety, we are persuaded that it was based on evidence produced at trial, in part responding to argument by defense counsel, and accordingly did not appeal to the fears and prejudices of the jury. We also conclude that the claimed use of denigrating terms did not result in error requiring reversal.

Finally, turning to the alleged evidentiary error, we must determine whether the trial judge abused his discretion in admitting evidence that prosecution witness Salwan Asker was beaten while defendant was present in another room. We conclude that the trial judge did not abuse his discretion in admitting this evidence because it was relevant to Asker’s motivation for cooperating with the government. In any event, admission of this evidence was harmless in light of other evidence demonstrating defendant’s participation in this conspiracy. Thus, we are persuaded that defendant was not deprived of a fair trial. Accordingly, we reverse the decision of the Court of Appeals and reinstate defendant’s conviction.

i

Defendant Saad Bahoda was indicted by a grand jury for conspiracy to possess with intent to deliver and to deliver in excess of 650 grams of cocaine.¹ The indictment alleged a conspiracy beginning in January of 1985 and continuing until August, 1989. While nine individuals were named in the indictment, only defendant Bahoda and codefendant Basam Jarges were prosecuted in the instant trial.

The jury trial commenced on February 4, 1991, before Oakland Circuit Court Judge Richard D. Kuhn. On February 12, 1991, the jury found defendant guilty as charged. He was later sentenced to mandatory life in prison without parole.

Defendant appealed his conviction in the Court of Appeals. He claimed that he was denied a fair trial because of references to his Arabic ethnicity during the prosecutor’s opening statement and during the questioning of prosecution witnesses Rene Arias, Wissam Abood, Salwan Asker, and Lawrence Awdishi Similarly, defendant claimed that the prosecutor improperly bolstered the credibility of two prosecution witnesses by eliciting testimony of an agreement that promised to send them to prison for life if they lied at trial. Likewise, defendant claimed error requiring reversal because the prosecutor resorted to a civic duty argument, improperly embellished the strength of his case to the effect that drug cases do not get any better than the instant case, and improperly denigrated defendant. Finally, defendant maintained that it was irrelevant and prejudicial to admit evidence that prosecution witness Salwan Asker was beaten by Emanual Newman, after being driven to this location by defendant.

The Court of Appeals agreed with defendant, finding that "defendant was denied a fair trial, even if he did not object to every single instance of misconduct now complained of, because the cumulative prejudicial effect of the prosecutor’s comments could not have been cured by an instruction.” 202 Mich App 214, 216; 508 NW2d 170 (1993).² The Court also found error requiring reversal in the admission of evidence regarding defendant’s participation in the beating of Salwan Asker because it tended to show that defendant was a bad person who deserved conviction.³ Id. at 220.

We granted leave to appeal on May 6, 1994.⁴

ii

We turn first to whether defendant was denied a fair trial by the use of Arabic and Iraqi references. Defendant reminds us that this jury trial occurred during the third and fourth weeks of the Persian Gulf War and is relevant because defendant and many of the alleged coconspirators are Chaldean Iraqis.

A

As with all forms of prosecutorial misconduct, this Court abhors the injection of racial or ethnic remarks into any trial because it may arouse the prejudice of jurors against a defendant and, hence, lead to a decision based on prejudice rather than on the guilt or innocence of the accused.⁵ Therefore, this Court is not hesitant to reverse where potentially inflammatory references are intentionally injected, with no apparent justification except to arouse prejudice.⁶ In reviewing such claims, this Court examines the remarks in context to determine whether they denied defendant a fair trial.⁷ See People v Allen, 351 Mich 535; 88 NW2d 433 (1958).

B

Against this backdrop, we turn to defendant’s specific claims of misconduct. At trial, several references were made to Arabic ethnicity,⁸ the first occurring during the prosecutor’s opening statement. In discussing the expected testimony of prosecution witness Salwan Asker, the prosecutor explained that Asker chose to cooperate with the government after he was arrested on immigration charges. In doing so, the prosecutor noted that "Mr. Asker will tell you he’s an Iraqi native, as are many people in this crowd.”⁹ Defense counsel did not object, and thus no limiting instruction was given.

After opening statements, the prosecutor called Rene Arias. Arias informed the jury that he was a Cuban native who was testifying for the government under a plea arrangement subjecting him to fifteen years in prison rather than mandatory life. When referring to members of the drug conspiracy, Arias often referred to them either using ethnic or racial references. Specifically, Arias referred to one member as the "Argentina” or "Argentine,” to others as the "Columbians [sic],” to one man as "black,” and to defendant, Ray Akrawi, and Atheer Gappi as the "Arabs” or the "Arab connection.”

Reacting to Arias’ comments regarding ethnicity, the prosecutor occasionally used the same term to phrase a follow-up question. Generally, however, defense attorneys objected to these Arabic references, resulting either in a rephrasing of the question¹⁰ or simply being sustained by the trial judge.¹¹ After a few references to Arabic ethnicity, both the prosecutor and the trial judge admonished Arias. No such objection or admonishment was offered with respect to any other nationality, however.

On cross-examination, defense counsel immediately questioned Arias regarding his Cuban heritage and his arrival in this country by means of the Mariel boat lift. Defense counsel also questioned Arias regarding his immigration status and his possible deportation. At one point, Arias became frustrated with questions about his ethnicity and responded: ”You told me before — you ask me —you ask me before not to talk about Arabs, now you’re talking about M[a]rielitas.”

On redirect examination, more references emerged regarding Arabs. After one reference of note,¹² an objection ensued, followed by a discussion in the presence of the jury regarding the use of the term "Arabs.” It was observed that the United States was fighting a war in the Middle East, not Colombia, and reference to the term "Arab” was not appropriate. After ordering the prosecutor to rephrase the question, the prosecutor stated:

Q. Talk about the Columbians and everybody all you want, but we can’t mention that "a” word, do you understand?

A. I understand.

Q. Okay. You were mad at the Columbians, and you were also mad at somebody else. Don’t tell us their nationality or group, but why were you [mad] at them?

Subsequently, the prosecutor elicited references to the Iraqi nationality of several prosecution witnesses, including Wissam Abood, Salwan Asker, and Lawrence Awdish. In doing so, the prosecutor also inquired of these witnesses whether Detroit had a large Chaldean population. They answered in the affirmative, indicating that many Chaldeans left Iraq to avoid discrimination and religious persecution.

c

While it was unfortunate that this trial occurred during the Persian Gulf War, our review of the comments persuade us that they did not prejudice defendant by causing the jury to convict because of prejudice rather than the evidence. Unlike Cluett v Rosenthal, 100 Mich 193, 200; 58 NW 1009 (1894), we do not find a "studied purpose to arouse the prejudice of the jury . . . .” In Rosenthal, the comments were clearly intentional and designed to arouse prejudice against Jewish defendants. The plaintiff’s. counsel referred to the defendants as "[tjhese men of Jerusalem,” suggesting that the defendants, like all Jews, were taking advantage of the plaintiff, and, in doing so, caricatured the speech and gestures of Jews. Id. at 199. Similarly, in Nemet v Friedland, 273 Mich 692, 696; 263 NW 889 (1935), this Court found error requiring reversal where the plaintiff’s counsel commented that "I think this man, like the Jew Shylock, was after the last pound of flesh and last drop of blood.” Finally, in Solomon v Stewart, 184 Mich 506, 511; 151 NW 716 (1915), defense counsel consistently made arguments that the transaction at issue was a "Jew deal.”

We simply do not have the deliberate arousal of prejudice in this instance as was the case in Rosenthal, Friedland, and Stewart. We find this situation more akin to the facts in People v Marji, 180 ; 447 NW2d 835 (1989),¹³ and George v Travelers Indemnity Co, 81 Mich App 106, 114-116; 265 NW2d 59 (1978).¹⁴ In those cases, the questioning was improper and probably irrelevant, but did not rise to the level of error requiring reversal.

In the instant case, most of the comments were improper and possibly irrelevant.¹⁵ Nonetheless, we find the comments, viewed in context, to be innocuous, unintended, and not of a degree that prejudiced defendant’s right to a fair trial.¹⁶ On these facts, where most of the prosecution witnesses were of Arab descent, we find it difficult to believe that the prosecutor deliberately injected ethnicity in an attempt to convince the jury to convict on the basis of prejudice or that the mere reference to Arabic ethnicity deprived defendant of a fair trial.

Simply because these references occurred during the Persian Gulf War does not mean that reversal is required. It must be remembered that we were fighting with, as well as against, those of Arabic heritage during the Persian Gulf War. Hence, prejudice by use of Arabic ethnicity does not automatically follow. In this case, we are persuaded that these comments were not deliberately injected by the prosecutor, but rather were responses by a witness who, because of his limited command of the English language, used this term to distinguish one group of purchasers from another. In this context, where references were frequently followed by admonishments by the prosecutor and trial judge, we are convinced that defendant received a fair trial.

Finally, the prosecutor’s comment during his opening statement and the questioning of the ethnic heritage of various witnesses probably were improper. However, given that the names of these witnesses were obviously Arabic in origin and the defense theory was that many of these witnesses faced deportation if they did not seek a plea, we cannot find error requiring reversal. Read in its entirety, along with the other evidence against defendant,¹⁷ we conclude at this point that defendant was not denied a fair trial because of the prosecutor’s references to ethnicity.

hi

Defendant’s second claim of prosecutorial misconduct alleges improper bolstering of prosecution witnesses. The prosecutor is said to have improperly elicited the substance of either a plea arrangement¹⁸ or other reward for testifying, including "use immunity,”¹⁹ in exchange for telling the truth at defendant’s trial. The prosecutor then reminded the jury of these agreements during closing argument.²⁰ A detective also testified concerning general police procedures that help verify statements made by informants. However, in doing so, he did not refer specifically to any government witness in this case.²¹_

Included in the list of improper prosecutorial commentary or questioning is the maxim that the prosecutor cannot vouch for the credibility of his witnesses to the effect that he has some special knowledge concerning a witness’ truthfulness.²² See, e.g., People v Enos, 168 Mich App 490, 492; 425 NW2d 104 (1988). While this is generally improper, the simple

reference to a plea agreement containing a promise of truthfulness is in itself [not] grounds for reversal. A more accurate statement of the law appears to be that, although such agreements should be admitted with great caution, admissibility of such an agreement is not necessarily error unless it is used by the prosecution to suggest that the government had some special knowledge, not known to the jury, that the witness was testifying truthfully.

Footnotes

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[23]

Generally, "[b]y calling a witness who testifies pursuant to an agreement requiring him to testify truthfully, the Government does not insinuate possession of information not heard by the jury and the prosecutor cannot be taken as having expressed his personal opinion on a witness’ veracity.” United States v Creamer, 555 F2d 612, 617-618 (CA 7, 1977).²⁴

Reviewing the record in this light, we are per suaded that the comments and questions did not rise to the level of error requiring reversal. The questioning, as it relates to the entire trial,²⁵ was proper and did not convey a message to the jury that the prosecutor had some special knowledge or facts indicating the witness’ truthfulness.²⁶ See, e.g., People v Williams, 123 Mich App 752, 755-756; 333 NW2d 577 (1983).²⁷_

Although defendant questions whether the contents of the plea arrangement or rewards were admissible absent a request by the defense,²⁸ given the entire circumstances of this case, including cross-examination of defense attorneys, "we cannot say that they were fatally prejudicial or entirely without provocation.”²⁹ Allen, supra at 544.

With respect to witness Hadair, aside from some initial questioning concerning the basics of the plea arrangement,³⁰ which defense counsel immediately began questioning about on cross-examination, the alleged bolstering occurred on redirect examination.³¹ There, the prosecutor was attempt ing to respond to impeachment questioning regarding a prior hearing at which Hadair named several coconspirators but failed to mention any dealings or discussions with defendant. While proper impeachment does not invite improper bolstering, after reviewing it in context, and given its brevity, we are persuaded that it did not convey any special knowledge.³² We construe this questioning simply as an attempt to rehabilitate a prosecution witness.³³

Likewise, the prosecutor’s redirect examination of Asker was brief and in response to vigorous cross-examination that had the effect of showing that Asker was lying to keep himself from being deported or going to prison, or because of his drug addiction.³⁴ On the basis of these facts, we do not deem this questioning error requiring reversal because the questioning was brief, was on redirect examination,³⁵ and was in response to questioning that arguably required some attempt at rehabilita tion.³⁶ Moreover, in this case, the questioning was objected to and was allowed to stand, with the judge admonishing the prosecutor to move on to a different line of questioning. Viewed in its entirety, we conclude that it was not error.

We also find the comments during closing argument brief and not improper bolstering of prosecution witnesses. There was no objection to the closing argument. Read in their entirety, the comments were fair and distinguishable from conduct found to require reversal in other cases.³⁷ Assuming there was some impropriety in this argument, the judge’s instruction that arguments of attorneys are not evidence dispelled any prejudice.³⁸

Finally, we are persuaded that the testimony of Agent Palombella likewise did not result in improper bolstering. While he testified regarding police procedures used to verify the events occurring in any criminal organization, he did not relate it specifically to this case. Unlike People v Smith,39 nothing in his testimony indicated that he believed the prosecution witnesses testified truthfully or that the stories of specific witnesses were verified. Finally, any impermissible inference flowing from his testimony did not amount to error requiring reversal in this six-day jury trial.

IV

Defendant’s final claim of prosecutorial misconduct asserts prejudicial error stemming from the prosecutor’s closing argument. Defendant maintains the prosecutor resorted to a "civic duty” argument about the "drug problem” in society, thus appealing to the fears and prejudices of jury members. He also contends that the prosecutor expressed personal opinions about defendant’s guilt by improperly referring to the strength of his case and denigrating defendant on evidence not produced at trial.

Generally, "[p]rosecutors are accorded great latitude regarding their arguments and conduct.” People v Rohn, 98 Mich App 593, 596; 296 NW2d 315 (1980), citing People v Duncan, 402 Mich 1; 260 NW2d 58 (1977). They are "free, to argue the evidence and all reasonable inferences from the evidence as it relates to [their] theory of the case.” People v Gonzalez, 178 Mich App 526, 535; 444 NW2d 228 (1989). See also People v Bigge, 297 Mich 58, 68; 297 NW 70 (1941). Nevertheless, prosecutors should not resort to civic duty arguments that appeal to the fears and prejudices of jury members⁴⁰ or express their personal opinions of a defendant’s guilt,⁴¹ and must refrain from denigrating a defendant with intemperate and prejudicial remarks.⁴² Such comments during closing argument will be reviewed in context to determine whether they constitute error requiring reversal.⁴³

A. CIVIC DUTY

Specifically, defendant claims that the prosecutor made an improper civic duty argument to the jury by referring to the size of the drug problem,⁴⁴ the pervasive nature of this drug organization,⁴⁵ the amount and value of the drugs seized during the arrest,⁴⁶ and the unique locations at which some of these drug transactions occurred.⁴⁷

While there are numerous claims of misconduct, we are persuaded that all these references constituted permissible commentary on evidence admitted at trial. References to the size of the drug organization, the amount and value of the drugs, and locations at which some of these transactions occurred were all "reasonable inferences from the evidence as it relates to his theory of the case.” Gonzalez, supra at 535. Simply because some drug deals occurred at a public pool or bakery, i.e., evidence admitted at trial, does not make commentary about it impermissible. On these facts, we are persuaded that the prosecutor was not "injecting issues broader than the guilt or innocence of the accused under the controlling law,” but was rather asking the jury to convict on the basis of evidence produced at trial. Accordingly, we do not discern any improper attempt to appeal to the fears and prejudices of jury members.

Moreover, we note that defense counsel failed to object.⁴⁸ We believe that if defense counsel perceived any impropriety, he should have objected and sought an appropriate instruction. In any event, we agree that the conduct certainly did not rise to the level of error requiring reversal.

B. PERSONAL OPINIONS

Defendant also claims that the prosecutor committed prejudicial error by injecting personal opinion regarding the strength of his case.⁴⁹ Reviewing these isolated comments in context, we find no error requiring reversal.⁵⁰

We conclude that these comments were intended to rebut the defense theory that this was a "bought” case, i.e., that government witnesses were granted some type of favor in exchange for their testimony against defendant, or that the government witnesses were simply liars. While using the prestige of the prosecutor’s office to inject personal opinion is improper,⁵¹ the rebuttal nature of these comments did not amount to error requiring reversal.⁵² There was a substantial amount of evidence against defendant. The prosecutor simply commented on the effect and strength of this evidence, albeit some of the com- merits may have been ill-advised. On the record before us, we do not believe the jury suspended its power of judgment in favor of the "wisdom” or "belief ” of the prosecutor’s office.⁵³

In the instant case, the prosecutor was merely responding to defense claims that the prosecutor had presented a bought case. These comments were so innocuous that it did not cause a timely objection.⁵⁴ Moreover, the evidence presented was not so even-sided that it could be deemed a "credibility contest.” Indeed, the defendant did not even present a case. We are persuaded that, even if the prosecutor’s statements were improper, they did not rise to the level of error requiring reversal.

C. DENIGRATING DEFENDANT

Following the contention that the prosecutor improperly expressed personal opinions about defendant’s guilt is the claim that the prosecutor improperly denigrated defendant. Defendant contends that the prosecutor referred to defendant and his associates as "thieves, like the thieves and the sharks that they are,” when in fact there were no allegations or evidence of theft. See, e.g., People v Fredericks, 125 Mich App 114, 118; 335 NW2d 919 (1983). We disagree.

Defendant takes the comment out of context. The prosecutor was explaining what occurred after the organization’s leader died.⁵⁵ Indeed, the comment was directed at members of the organization generally, not simply defendant. Given the isolated nature of this comment in this lengthy record and its explanatory purpose, we certainly would not find error requiring reversal, and we so hold.⁵⁶

v

Finally, we turn to the question whether the trial judge abused his discretion in admitting evidence regarding defendant’s involvement in the beating of prosecution witness Salwan Asker.

Generally, evidence that is relevant will be ad missible. MRE 401 defines relevant evidence as evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” MRE 403. The trial judge in the present case followed this procedure when deciding to admit this evidence on the basis that Asker’s motivation for testifying was at issue.

When reviewing evidentiary decisions under MRE 401 and 403, our review is limited to whether the decision was an abuse of discretion.⁵⁷ In doing so, we are mindful that

close questions arising from the trial judge’s exercise of discretion on matters concerning the admission of evidence do not call for appellate reversal because the reviewing justices would have ruled differently. Reversal is warranted only if the resolution of the question by the trial court amounted to an abuse of discretion. The decision upon a close evidentiary question by definition ordinarily cannot be an abuse of discretion. [People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982).]

On the record before us, we do not discern such an abuse of discretion. While Asker’s beating occurred after the conspiracy charged in the indictment, the evidence was relevant to demonstrate Asker’s motivation for testifying and cooperating with the authorities.⁵⁸ We are persuaded, as was the trial judge, that the credibility of Mr. Asker, a key prosecution witness, was clearly at issue in this case. This evidence was probative of Salwan Asker’s explanation for cooperating with the authorities, while also touching on his credibility. Indeed, it directly refuted the defense inference that Asker was lying and only testifying in order to avoid prosecution, deportation, or simply to get help with his drug addiction.

While it may be argued that the evidence portrayed defendant as a "bad person”⁵⁹ even though defendant did not participate in the beating,⁶⁰ given the relevancy of the testimony, the trial judge’s contemporaneous assessment of its effect on the jury, and defendant’s failure to request a limiting instruction,⁶¹ we are persuaded that the trial judge did not abuse his discretion in admitting the testimony. As the United States Court of Appeals for the Third Circuit explained in United States v Long, 574 F2d 761, 767 (CA 3, 1978): "If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.” We follow this wisdom, realizing that "Rule 403 determinations are best left to a contemporaneous assessment of the presentation, credibility, and effect of testimony” by the trial judge. People v VanderVliet, 444 Mich 52, 81; 508 NW2d 114 (1993).

Assuming, however, that admission of the testimony was error, we deem it harmless in light of other evidence demonstrating defendant’s participation in the conspiracy.⁶² Several witnesses testified about defendant’s direct involvement in this drug conspiracy, including coconspirators Asker, Arias, Hadair, Abood, and Awdish. On one occa sion, Special Agent James Helverson observed a narcotics transaction between Larry Awdish and defendant. Moreover, there was evidence from several witnesses that defendant possessed a beeper for use in drug transactions. There was also evidence that defendant’s car contained a secret compartment used for hiding narcotics or a small gun. Finally, there was evidence that defendant fled after the indictment was issued, at which time he traveled under an assumed name and changed his physical appearance. Given the totality of this evidence, we find that any error in admitting Asker’s testimony regarding the beating was harmless.⁶³

VI

Our review of the three claims of prosecutorial misconduct persuade us that none of the prosecutor’s statements or actions rose to the level of error requiring reversal.⁶⁴ This was a high stakes, hard fought case, vigorously contested by able advocates. Given that reality, it is inevitable that the record will not be pristine. It does not follow that the trial was not fair. Accordingly, the decision of the Court of Appeals is reversed and defendant’s conviction and sentence are reinstated.

Brickley, C.J., and Boyle and Mallett, JJ., concurred with Riley, J.

1

MCL 750.157a; MSA 28.354(1); MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).

2

Specifically, the Court of Appeals held that all references to Arabic ethnicity were improper especially because the trial occurred during the Persian Gulf War, id. at 217; that the prosecutor improperly elicited testimony concerning his promise to send certain government witnesses to prison if they did not testify truthfully, id. at 218; and that the prosecutor improperly inflamed the jury about the drug problem and also improperly commented on the strength of the state’s case, id. at 218-219. However, the panel did not specifically rule on defendant’s claim that the prosecutor denigrated him, even though it was properly raised in the Court of Appeals.

3

The Court also held that evidence of a secret compartment used for drug trafficking was relevant and its admission did not constitute an abuse of discretion. Id. at 220. This issue is not before us. Moreover, the Court did not reach defendant’s claim that his sentence constituted cruel and unusual punishment because it was ordering a new trial in any event. Id. Again, this issue is not before us.

4

445 Mich 881.

5

See, e.g., Solomon v Stewart, 184 Mich 506; 151 NW 716 (1915); Nemet v Friedland, 273 Mich 692; 263 NW 889 (1935). As explained in Cluett v Rosenthal, 100 Mich 193, 200; 58 NW 1009 (1894):

The courts are open to aliens and citizens alike; and any attempt, by arousing the prejudice of jurors, to curtail this right, is a departure from the proper privilege of counsel, and, when carried to the extent indicated by the language quoted, is sufficient to justify reversal of the case. It is unnecessary to cite cases decided by this Court in which the privilege of counsel in arguing cases has been considered. It is enough to say that the Court will not regard captious objections to arguments, and will allow something for the zeal of counsel, and will hesitate in any case to consider that counsel have intentionally transgressed the rule. But where the language is such as evinces a studied purpose to arouse the prejudice of the jury, based upon facts not in the case, we cannot overlook it, or consider that a party against whom such effort has been made has had a fair consideration of his case at the hands of the jury,

6

See, e.g., Nemet, n 5 supra at 696-697; People v Hill, 258 Mich 79, 87-89; 241 NW 873 (1932) (reference to the defendant’s race).

It is the duty of the public prosecutor to see that the person charged with crime receives a fair trial, so far as it is in his power to afford him one, and it is likewise his duty to use his best endeavor to convict persons guilty of crime; and in the discharge of this duty an active zeal is commendable, yet his methods to procure conviction must be such as accord with the fair and impartial administration of justice .... [People v Dane, 59 Mich 550, 552; 26 NW 781 (1886).]

When an attempt is made to arouse ethnic prejudices, the rule of reversal appears universal:

The primary requisites for . . . the reversal of a conviction ... by reason of a prosecutor’s statement, complained of as appealing to racial, national, or religious prejudice against the defendant or a defense witness, are that such statement must have been intended or have a tendency to engender such prejudice, that it must have been unjustified, and that the defendant was or may have been thereby deprived of his fight to a fair and impartial trial. [70 ALR4th 664, § 2, p 671.]

7

We agree with the following statement made in People v Cowell, 44 Mich App 623, 627-628; 205 NW2d 600 (1973):

The question of the propriety of a prosecutor’s remarks is dependent upon all the facts of the case. A statement cannot be taken out of context. Just as jury instructions must be read as a whole, so must the remarks of the prosecutor. The prosecutor’s remarks must be evaluated in light of the relationship or lack of relationship they bear to the evidence admitted at trial. The fact that a statement has been reversible error in one case does not automatically mean that a similar remark is reversible error in another case. Each case must be considered on its own facts. For example, a remark found to constitute reversible error because it was not supported by the evidence would not be reversible error in a case where it was supported by the evidence. [Emphasis added.]

We note that many Court of Appeals decisions have reviewed prosecutorial misconduct in terms of whether "it was deliberately injected into the proceedings by the prosecution, if it deprived the defendant of a fundamental element of the adversary process or if it is of a particularly inflammatory or persuasive kind.” See, e.g., People v Furman, 158 Mich App 302, 318; 404 NW2d 246 (1987); People v Gallon, 121 Mich App 183, 188-189; 328 NW2d 615 (1982); People v Swan, 56 Mich App 22, 32; 223 NW2d 346 (1974). Contrary to the dissent’s suggestion, this test is not and never has been whether defendant is guilty regardless of the error. The test is simply whether the conduct rose to the level of denying defendant a fair trial.

8

The prosecutor also referred to others in the organization as Colombians, who were in Florida, and to Rene Arias as "a Cuban, who came here during the Miriel [sic, Mariel] boat lift . . . .”

9

Defense counsel, in his opening statement, explained that most of the prosecution witnesses were involved in a drug conspiracy and thus sought a deal to avoid mandatory life in prison. Without mentioning nationality, defense counsel noted that "[t]hese witnesses, many of them, if not all of them, faced deportation to countries that had repressive political regimes and where they faced fates that were arguably worse than mandatory life in prison without parole in an American jail.”

10

Q. How much was each kilogram of cocaine costing, if you buy it in a 35 lump sum like that?

A. Well, to them, to the Arab connection, we give a different deal. All depend how much we pay ourselves.

Q. Okay. You said to the Arab connection, the deal would depend upon what you guys paid?

A. Yes.

Mr. Procida [Jarges’ counsel]: And I’m going to object to reference to nationality at this point.

Mr. Bunting [prosecutor]: I have no objection. I was just using this for help.

Q. (By Mr. Bunting, continuing): To these men, Ray, Saad . and Atheer . . .

A. (Interposing): Yes.

11

Q. Then what happened?

A. Then Ray leave. Then next day, because I told them somebody with the car is coming up, because I don’t want them to believe I was the one driving the car, because I don’t want them to follow me, because I was dealing for these people for almost a month. I don’t know. I don’t know. I been listening a lot about Arabic, Chaldean, Iraqi, you know.

Mr. Sonenberg [Defendant’s counsel]: Your Honor, I am going to object to any reference to nationality. I don’t think that [it] is relevant.

The Court: The Court will sustain the objection. Try not to do that.

12

Q. You were mad at who [sic]?

A. To the Columbians [sic] and to the Arabs.

Q. Why were you mad at the Columbians?

A. Because they promised me a lot of things, you know, like if the deal we made before, if you got caught, we support your family, we support your lawyer, we support everything.

Q. Did they support your family?

A. They don’t do nothing.

Q. Did they support your lawyer?

A. Nothing.

Q. And you were mad at who, the Arabs too?

A. Yes, I was mad to them ....

13

In closing argument, the prosecutor stated:

This man comes from the Middle East, and he’s not content to make his money from the gas station. He needs more. He gets into the cocaine, nontaxable income life-style. [Id. at 538.]

14

On cross-examination, the prosecution questioned a witness concerning where "Chaldeans originated, the number of churches they attend, and the size and cohesiveness of the Detroit Chaldean community . . . .” Id. at 115.

15

We do note, however, that defense counsel specifically attacked various prosecution witnesses for accepting plea arrangements with the government in order to avoid deportation. Accordingly, it may be relevant as a response to proofs raised or expected to be raised by the defense. See, e.g., People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977) (opinion of Ryan, J.).

16

Indeed, many comments were not objected to by defense counsel, thus eliminating the possibility of curative instruction.

17

See part v for a full discussion of the evidence against defendant.

18

Q. [Redirect examination by the prosecutor]: Now, obviously when you’re discussing cocaine with Saad Bahoda here at the place over on Greenfield in Oakland County, there was nobody else around was there?

A. [By Mr. Hadair]: I don’t believe so, no.

Q. If you wanted to come in and lie to this Jury, you could say, oh, yeah, I talked with Saad Bahoda at the Arcade and he delivered me five kilograms. You could say that, couldn’t you?

A. I believe so I could.

Q. But that would be a lie?

A. Right.

Q. You could say, yeah, he delivered me five kilograms multiple times. We did it over and over and over again, correct?

A. Um-hum.

Q. But you know what your agreement is, right?

A. Truthful testimony.

Q. What happens if you don’t provide truthful testimony?

A. I get charged with life without parole.

Q. That’s life, mandatory life in prison?

A. Yes.

Q. You could say that you dealt with Basam Jarges here, correct?

A. Yes.

Q. You could say that at the time when Harry Kalasho and the rest of you went to Jeff Weitzer’s house, or whatever it is, that Basam Jarges was right there with an AK47, you could say that, couldn’t you?

A. Yes, I could.

Q. But the only person you went with was Basil Mezy, Nick Konja, Sam the Bull, Harry Kalasho, right?

A. I think there was another individual — uhhh—uhhh—he’s the same person that delivered the cocaine to me, the five kilos. I think he was present. If I see him I know him.

Q. But you could say something about Basam Jarges.

A. Yes, I could.

Q. If you wanted to, if we wanted you to lie, right?

A. Right.

Q. But you understand that wouldn’t be truthful testimony?

A. Yes.

Q. What would happen if you lied?

A. I’d be facing life without parole, in Jackson.

19

Q. [Redirect examination by the prosecution]: But, you understand what the situation is, don’t you Mr. Asker?

A. Yes, sir.

Q. If you lie to this Jury what happens?

A. I go to jail for life, I have been promised by you.

Q. If you lie about the drug dealer, or any part of this organization you are going to be prosecuted, aren’t you?

A. Yes, sir.

Q. You understand that?

A. Yes, sir.

Mr. Sonenberg: Your Honor, I object to this line of questioning.

Mr. Bunting: Your Honor, I think the implication from the Defense was that he was lying to save his skin. I think I am allowed to bring out the fact that if he lies now he loses his skin.

The Court: We can go on from there.

Mr. Bunting: Excuse, me?

The Court: I said the Court is going to allow the answer to stand, but ask him to go on.

Mr. Bunting: Yes, your Honor.

20

The only thing I think you will recall, really, is the two things that we promised. One that Hadair would get relocated to a Federal Prison so he wouldn’t get killed, and two, that if Asker ever lied we would put him in prison for the rest of his life. And that is all that come [sic] out of the Prosecutor in Oakland County.

21

Q. [By the prosecutor]: So did you attempt to develop witnesses from inside the organization?

A. [By Agent Palombella]: Yes, sir, we did.

Q. And when you find a witness like that do you just swallow their story, hook, line and sinker?

A. No, sir, not at all.

Q. Well, what do you do?

A. Well, an attempt to verify what they say is — every attempt to verify what they say is made. And, as opposed to saying, for example, do you know this individual or do you know this individual, one approach might be that we know about the organization. Why don’t you tell us what you know about it? Who reports to who? Who collects money? Who picks up and dropped off loads of dope? Who are the enforcement people? For example, if non-payment is made who is responsible for going out in the old vernacular breaking thumbs and following up to collect the money? And from each individual interview that we conduct, then we try to determine from our own knowledge about associations from surveillance and from other cooperating witnesses’ testimony or information that they provide us, we try to come up more or less with a composite chart and see if there is any variation from what one informant might tell us to what another informant might tell us, maybe, our own observations. For example, if one person says one drug dealer never associates or deals with another one, for example, we may have a thirty-five millimeter (35 mm) photo or some video footage that shows, in fact, that they were at each other’s house, we’ll have to discount that aspect of it.

22

See, generally, anno: Use of plea bargain or grant of immunity as improper vouching for credibility of witness — state cases, 58 ALR4th 1229; anno: Propriety and prejudicial effect of comments by counsel vouching for credibility of witness — state cases, 45 ALR4th 602; anno: Propriety and prejudicial effect of prosecutor’s argument to jury indicating that he has additional evidence of defendant’s guilt which he did not deem necessary to present, 90 ALR3d 646.

23 People v Buschard, 109 Mich App 306, 316; 311 NW2d 759 (1981) (emphasis supplied), vacated and remanded 417 Mich 996; 334 NW2d 376 (1983), reaff’d on remand 129 Mich App 160, 165; 341 NW2d 260 (1983) (“Our reasons for finding no error were detailed at length in our first opinion ... we decline to change our initial opinion”).