People v. Perkins

Bash ara, J.

(dissenting). I must respectfully dissent from the majority opinion.

While I agree that the trial court properly excluded extrinsic evidence of alleged current drug dealing on the part of complainant’s husband, I do not agree with the majority that such evidence would have been proper to show bias. Testimonial evidence of current drug dealing offered in response to denial of such dealing would not be relevant to bias based on an old drug-related debt. Such evidence would only be relevant to determine credibility. Thus, the evidence was properly excluded under MRE 608(b), which does not allow admission of extrinsic evidence of specific instances of conduct to attack the credibility of a witness.

I agree that the testimony of complainant’s husband as to the substance of the statement made by complainant was admitted in error. However, I do not conclude that that testimony, in conjunction with the prosecutor’s remarks to the jury, resulted in reversible error. The jury witnessed complainant-wife’s testimony as to her statement. If her testimony was perceived as credible, the husband’s hearsay testimony had little effect. If the jury tended to disbelieve complainant, the husband’s testimony would have presented a further example of defendant’s theory that husband and wife had fabricated the charges to get even with defendant.

Defendant’s contention that certain remarks by the prosecutor amounted to reversible error is without merit. First, these claims were not preserved for review in that no objection was made to them at trial. The remarks were not so prejudicial that they could not have been cured by a cautionary instruction. People v Rojem, 99 Mich App 452; 297 NW2d 698 (1980), People v Lasenby, 107 Mich *631App 462, 468; 309 NW2d 572 (1981). Failure to consider the issue would not have resulted in a miscarriage of justice. People v Chaplin, 102 Mich App 748, 753; 302 NW2d 569 (1980), rev’d on other grounds 412 Mich 219; 313 NW2d 899 (1981). See also People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977).

Consideration of the remarks reveals harmless error at best. When evaluated in the light of the relationship it bears to the evidence admitted at trial, the prosecutor’s statement, which defendant claims vouches for the credibility of complainant, becomes little more than an attempt to argue guilt based on the evidence to be adduced at trial. See People v Cowell, 44 Mich App 623; 205 NW2d 600 (1973), People v Erb, 48 Mich App 622; 211 NW2d 51 (1973). A prosecutor "is free to argue that the evidence shows that the defendant is guilty * * * and he has not only the right but the duty to vigorously argue the people’s case”. People v Cowell, supra, 628-629.

Similarly, I am not persuaded that the allowance of the remarks defendant claims appealed to the civic duty of the jury constituted error. The complained-of remarks did not inject into the trial broader issues than guilt, nor was there an appeal to save the city from crime. People v Lasenby, supra, 468. The remarks simply do not approach the level of expression found prejudicial in People v Wright (On Remand), 99 Mich App 801, 808-809; 298 NW2d 857 (1980), lv den 410 Mich 854 (1980).

Even when considered together, the admission of the husband’s hearsay testimony and the prosecutor’s remarks amount to nothing more than harmless error under the standard articulated in People v Wright, supra, 810-811.

I would affirm defendant’s conviction.