People v. Wells

267 N.W.2d 448, 82 Mich. App. 543, 1978 Mich. App. LEXIS 2248

• Court: Michigan Court of Appeals
• Decided: April 17, 1978
• Docket: Docket 30547
• Status: Published

Opinions

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.