People v. Bahoda

Levin, J.

(dissenting). Saad Bahoda was convicted of conspiracy with intent to deliver more than 650 grams of cocaine, and was sentenced to the mandatory term of life imprisonment without parole.

I would affirm the decision of the Court of Appeals 1 reversing Bahoda’s conviction and remanding for a new trial because of prosecutorial misconduct

• in proffering evidence that Bahoda and other participants were Iraqis,

• in vouching for the credibility of other participants in the alleged conspiracy through questioning that they agreed to provide "truthful” testimony in exchange for charge and sentence concessions,

• by appealing to the jury’s sense of civic responsibility,_

*294 • by vouching for the strength of his case.

I also agree with the Court of Appeals that the trial judge erred in allowing the introduction of evidence that, sometime after the conspiracy had concluded, Bahoda played a role in the beating of one of the witnesses.

I would additionally address the constitutionality of the mandatory sentence of life imprisonment without the possibility of parole, which this Court declined to address in People v Fluker, 442 Mich 891 ; 498 NW2d 431 (1993). 2

i

Early during the prosecutor’s examination of the first witness, Rene Arias, a lawyer representing the codefendant tried with Bahoda, objected "to reference to nationality at this point” when the prosecutor said, "You said to the Arab connection . . . .” The prosecutor indicated that he would desist.

Soon thereafter during the direct examination, Arias said "I been listening a lot about Arabic, Chaldean, Iraqi.” Bahoda’s lawyer objected to any reference to nationality. The court sustained the objection with the admonition: "Try not to do that.” But soon thereafter there was another reference by the witness to the "Arab connection,” and twice more before the exchange set forth in the margin occurred. 3 _

*295 While the failure -of Bahoda’s lawyer to object more persistently 4 might be thought by some to justify ignoring what occurred, the prosecutor’s flip admonition to the witness — avoid the "a word”— and his failure thereafter to himself obey that admonition to the witness — when he, the prosecutor, on a number of occasions, thereafter inter *296 jected "ethnicity” 5 — lead me to conclude that this was not inadvertent, and that it cannot be excused.

If the prosecutor had spoken of the Irish, or the Jewish, or the Italian, or the German connection, we might be more sensitive in our reactions. There should be zero tolerance of ethnic references, and a heavy burden should be imposed on the prosecutor to justify any such reference. If, as here, the prosecutor fails to sustain such burden, a new trial should be ordered without requiring the defendant to show prejudice. Such references without justification should be regarded as so offensive to the maintenance of a sound judicial process that reversal and remand for a new trial should ordinarily follow as a matter of course.

After every wave of immigration, the Irish to the east coast, the Germans to the Midwest, the Jews and Italians, demagogues — politicians, religious and political — and some prosecutors have sought to exploit prejudice against newcomers.

Similar waves of immigration of African Americans from the South during and following World War II, of Vietnamese and Koreans in more recent years, and of Hispanics to the southwest, have been exploited by the unprincipled. Now, it is the immigration of Iraqis, Chaldeans, Muslims, and other Arabs to Dearborn and other Michigan cities where some of the largest American Arabic communities have formed.

One need not have lived in Boston in the late nineteenth century, or in Minnesota during World War I, or in the major cities where Jewish and Italian immigrants congregated, to know that there was prejudice against the Irish, Germans, Jews and Italians. One does not have to be a *297 Korean or Vietnamese to know about the prejudice against them, or an African American to know about the prejudice against them, or an Iraqi, Chaldean, Muslim or Arab to understand that there is prejudice against them.

That Bahoda was an Iraqi was irrelevant and immaterial. When it was first mentioned, his lawyer remained silent. But as the references to ethnicity became more frequent, he objected. The prosecutor defended the references to Bahoda’s ethnicity. Then, instead of adhering to the court’s rulings barring such references, as he said he would, he unabashedly returned to the ethnic theme. 6

The American Bar Association Standards provide respecting the prosecution function:

(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or . opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant. [7] _

*298 (c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.[ 8 ]

(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.

(e) It is the responsibility of the court to ensure that final argument to the jury is kept within proper, accepted bounds. [9]

The Court of Appeals, in reversing Bahoda’s conviction, sent the correct message to the bench and bar: What occurred at Bahoda’s trial will not be tolerated — at least where it is combined with other prosecutorial misconduct:__

*299 It is possible that the prejudice resulting from some of the errors below could have been cured by a timely instruction. In the aggregate, however, and in light of the timing of the trial and of the credibility disputes involved, these errors undoubtedly deprived defendant of a fair trial. Given the mandatory life sentence without parole, we cannot reward the prosecutor’s improper attempt to obtain conviction at any cost. [10]

A self-respecting judiciary would not allow, and lawyers would know, that such conduct will not be allowed.

A majority informs the profession today that where it appears to a majority of this Court that the defendant is guilty, well-established standards designed to assure all accused persons a fair trial will not be enforced.

ii

Bahoda was charged, with eight other persons, with conspiring to possess with intent to deliver, 11 and to deliver, 12 in excess of 650 grams of cocaine. The charges were part of a crackdown against the remnants of the Kalasho drug dealing organization in the Detroit metropolitan area. The members of the Kalasho organization were alleged to have conspired to buy and sell large quantities of cocaine, between January, 1985, and August, 1989.

A number of drug dealers testified pursuant to agreements with the prosecutor for charge and sentence concessions. Rene Arias testified that he had repeated dealings with Bahoda, Ray Akrawi *300 and Atheer Gappi, involving kilos of cocaine. 13 Arias detailed cocaine deliveries to Bahoda and others beginning in late 1986 or early 1987 through January, 1988.

Hassan Haidar testified that he talked to Bahoda about purchasing a kilo of cocaine, but the transaction was not concluded. 14 Wissam Abood testified that he arranged to purchase cocaine from Ray Akrawi in 1988. 15 Abood said that Bahoda was driving the automobile in which Akrawi was a passenger at the time of the first delivery. Abood said that he observed Bahoda driving the automobile on three other occasions when he purchased drugs from Akrawi. 16

Salwan Asker, 17 an early participant in the Ka *301 lasho organization, testified that Bahoda worked with Akrawi. Asker said that he and Bahoda delivered drugs on a number of occasions. Asker discussed a road trip with Bahoda to collect money owed to the drug organization. Asker also provided, over objection, testimony regarding an incident during which Bahoda drove him to meet another drug dealer, Emanuel Newman. Newman beat Asker with a stick containing numerous hex-head screws while Bahoda was in an adjacent room. 18 Bahoda then drove Asker to the home of Asker’s uncle. Asker said that he ultimately decided to cooperate with the government because of threats made to him and his family after the beating. 19 _

*302 Direct evidence of drug dealing was presented in testimony regarding an aborted undercover attempt to buy cocaine from Ray Akrawi, with Bahoda present, in November 1988 by a special agent of the Drug Enforcement Administration and an informant. This transaction fell through when Akrawi and Bahoda recognized Hayes’ car as one seized from another drug dealer who had been arrested. 20

Witnesses testified concerning a controlled purchase on February 1, 1989, that was arranged between Larry Awdish, 21 Awdish’s cousin, Duraid Karim, Atheer Gappi, and Bahoda. Awdish and Karim communicated with Bahoda to purchase one-eighth of a kilo of cocaine (approximately four and one-half ounces) in Southfield. At the agreed location, Karim entered another automobile, paid $3,000 and received an aluminum foil ball containing cocaine from Bahoda. 22

*303 In his closing argument, the prosecutor reviewed the testimony of the witnesses and the evidence. The prosecutor commented on the amount of money that was involved. 23 He referred to the locations where the members of the Kalasho organization arranged their drug deals, and commented on the pervasiveness of drugs. 24 The prosecutor commented during rebuttal on the strength of the evidence he had presented. 25 Following the *304 conclusion of the rebuttal, Bahoda’s counsel moved for a mistrial based on the prosecutor’s comments.

hi

The gist of the majority’s opinion is that none of the errors urged by Bahoda are sufficient to warrant reversal. The majority concludes, "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.” 26 The majority touches upon but does not engage in harmless-error analysis. Nor does the majority consider the cumulative prejudicial effect of what occurred at the trial. 27 The majority separately addresses each of Bahoda’s claims, and avoids considering the larger, more fundamental question whether Bahoda received a fair trial. 28

IV

The prosecutor’s improper references to Bahoda’s Arab ethnicity are most objectionable. The *305 prosecutor during his opening statement referred to the Iraqi background of one of the witnesses, as well as Iraqi spectators; permitted references to, and himself referred to, the "Arab connection”; questioned witnesses concerning their Chaldean background and the Chaldean community; and referred to "the Arabs” in his closing argument.

While the majority expresses disapproval of the ethnic references, 29 and states that most of the comments were "improper and possibly irrelevant,” 30 the majority nevertheless concludes that the comments "did not prejudice defendant by causing the jury to convict because of prejudice rather than the evidence.” 31 The majority ignores that the trial occurred during this country’s involvement in the Gulf War. 32

The majority also concludes that the comments were not deliberately injected into the proceedings by the prosecution. While I agree that a number of the references to Arabs may not have been deliberate, the prosecutor deliberately — long after he agreed to refrain from commenting on ethnicity— asked witnesses their birthplaces and inquired concerning the nature and size of the Chaldean community in the Detroit area. 33 _

*306 When the prosecution interjects issues beyond the defendant’s guilt or innocence, the defendant’s right to a fair trial may be jeopardized. 34 This is particularly true of ethnic allusions. 35

v

The prosecutor erred when he bolstered the testimony of Asker 36 and Haidar. 37 Both witnesses were testifying pursuant to charge and sentence plea agreements that had been arranged with the prosecution. The prosecutor elicited testimony on redirect examination that each witness had agreed to testify truthfully and would be sent to prison for life if he lied.

The prosecutor elicited testimony from a police investigator that he had verified the stories of both witnesses. The Court of Appeals found that this testimony suggested to the jury that the prosecutor had special knowledge of the truth of the witnesses’ testimony. 38

Although a prosecutor has a duty to disclose the *307 terms of a plea agreement, 39 he may not vouch for the credibility of a witness. 40

Asker was asked on redirect examination, "if you lie to this Jury what happens?” He responded, "I go to jail for life, I have been promised by you.” 41 (Emphasis added.) Asker thus made explicit what was implicit in the prosecutor’s belaboring that the charge and sentence concessions were in exchange for truthful testimony. 42

It is well established that a lawyer trying a case for a party may not testify at the trial, and that, again, the prosecutor may not personally vouch for the truth of the testimony he offers. The prosecutor in this case crossed both lines. The United States Court of Appeals for the Ninth Circuit observed:

A strong case can be made for excluding a plea agreement promise of truthfulness. The witness, who may otherwise seem untrustworthy, may appear to have been compelled by the prosecutor’s threats and promises to come forward and be truthful. The suggestion is that the prosecutor is forcing the truth from his witness and the unspoken message is that the prosecutor knows what the truth is and is assuring its revelation.[ 43 ]

The in-exchange-for-truthful-testimony incantation is Orwellian. The prosecutor decides what is *308 truthful testimony, 44 and the witness has no practical opportunity for judicial review. The witness knows the testimony he must provide to obtain the benefit of the bargain he made with the prosecutor. These witnesses, facing life imprisonment without parole, knew that the prosecutor, if dissatisfied with their testimony, had the power to make them run the gauntlet, and fully understood what the prosecutor meant by truthful testimony. But the jury, unless instructed by the court concerning that esoteric meaning of truthful testimony, might be misled by prosecutorial repetition of the in-exchange-for-truthful testimony incantation.

The majority dismisses Bahoda’s argument that the prosecutor’s questions to Asker and Haidar were error. 45 The majority concludes that the prosecutor was merely attempting on redirect examination to rehabilitate these witnesses. 46

The majority notes that the redirect questioning of Asker was in response to vigorous cross-examination by defense counsel regarding Asker’s motive to lie. The majority states, "On the basis of these facts, we do not deem this questioning error requiring reversal because the questioning was brief, was on redirect examination, and was in response to questioning that arguably required some attempt at rehabilitation.” 47 That the questioning occurred on redirect examination does not justify what otherwise would be inadmissible.

While the testimony of the investigator may have been general, 48 I agree with the Court of Appeals that the questioning was improper because it suggested that the authorities had taken *309 special steps to assure that witnesses were telling the truth, and was tantamount to an expression of opinion by the police/prosecutor regarding the truthfulness of the witnesses. 49

VI

The prosecutor argued that the street value of the cocaine could "retire the debt of half the Third World countries,” and was more than most of the jurors together could expect to earn in their lifetimes. The prosecutor observed that some of the allegedly conspiratorial activities took place at a community swimming pool in Oakland County. The prosecutor commented on the size and pervasiveness of the drug problem.

As the majority notes, a prosecutor is accorded much latitude in constructing his arguments, 50 and is free to comment on the evidence and the inferences to be drawn from the evidence. 51 A prosecutor may not, however, argue issues broader than the defendant’s guilt or innocence without infringing on the defendant’s right to a fair trial. 52 Prosecutors are not permitted to appeal to the juror’s sense of "civic duty.” 53

In People v McCoy, 392 Mich 231, 239-240 ; 220 NW2d 456 (1974), this Court criticized the prosecutor’s rebuttal summation that his office did not "bring cases unless we’re sure, unless we’re posi *310 five.” The Court said that "it is not permissible for the prosecutor to vouch for the defendant’s guilt on his own knowledge or on the knowledge of police officers who did not testify.” 54

The prosecutor in the instant case assured the jury that the evidence "doesn’t get any better,” and was almost "too good,” and that the case was "perfect” and "well organized [and] that’s as good as it is going to get.” The majority characterizes these comments as "isolated,” 55 and "innocuous.” 56 The majority states that the comments were intended to rebut defense counsel’s theory that this was a "bought” case. Implicit in the majority’s reasoning is the notion that the prosecutor should be permitted special leeway in responding on rebuttal. Such a view is unsupported by case law. 57

VII

I also agree with the Court of Appeals that it *311 was error to admit evidence regarding the beating of Asker after the conclusion of the alleged con-. spiracy. 58 It is not claimed that Bahoda participated in the beating. The Court of Appeals concluded that the evidence was irrelevant and prejudicial because it was designed only to show that Bahoda was a person deserving of conviction. 59

The majority finds no abuse of discretion in the admission of the evidence, concluding that it was admissible because Asker’s credibility was in issue and the evidence was probative of Asker’s motive for cooperating with the authorities. Assuming that Asker’s motive was relevant, the evidence that he had been beaten shortly before he decided to cooperate with the authorities could have been admitted without Asker’s testimony that Bahoda had driven him to and from the site of the beating, and was in an adjoining room during the beating. The evidence that Bahoda had driven Asker served no relevant purpose, and portrayed Bahoda as a duplicitous and dishonorable enforcer. 60

Cavanagh, J., concurred with Levin, J.

Weaver, J., took no part in the decision of this case._

202 Mich App 214 ; 508 NW2d 170 (1993).

My reasons are set forth in a dissenting statement in Fluker, 442 Mich 892 -893, in which Chief Justice Cavanagh joined.

Q. You were mad at who?

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

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

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

*295 Mr. Sonenberg (interposing): I’m going to object in reference to nationality.

Mr. Bunting: Well, he didn’t object when he said Columbians, your Honor. I don’t know what the problem is when he . . .

Mr. Sonenberg (interposing):. Well, you know, we’re not — we haven’t sent our men over to Columbia to fight a major war, your Honor.

Mr. Bunting: Well, we’re fighting beside Arabs over there, too. It’s not like we’re all fighting all Arabs. There’s Arab people that are in the Coalition.

Mr. Sonenberg: I just don’t think it has any place in this trial, Judge.

Mr. Bunting: Okay. We’ll go along.

The Court: Rephrase.

Q. (By Mr. Bunting, continuing): 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 made [sic] at them?

A. I was mad at them because, thanks to them, we got caught.

Q. Okay. [Emphasis added.]

The prosecutor opened and closed with ethnic references. In his opening statement, he declared that Salwan Asker, one of the witnesses for the prosecution, "will tell you he’s an Iraqi native, as are many people in this crowd.” In his closing argument, the prosecutor referred to "[n]inety-nine (99) kilograms that the Cuban said he was delivering to the Arabs.”

During the trial, there were frequent references to the ethnicity of witnesses, Bahoda and his codefendant. Rene Arias testified that cocaine "was going to [Bahoda],” and that "[t]his one was for the Arab connection.” Again, question: "You hadn’t talked to [Bahoda] but one time in 1988, and this is June of ’88, and where do you say these 99 kilos were supposed to go, the ones that came from New York by semi-truck?” Answer: "To the Arabic connection.” And again, question: "Did you tell them about Saad [Bahoda] and Atheer?” Answer: "I told the Arab connection, yes, I do.”

See ns 15, 17, and 21.

See ns 15, 17 and 21.

7 The following appears in the commentary:

Personal Belief

Expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony and tend to exploit the influence of the prosecutor’s office and undermine the objective detachment that should separate a lawyer from the cause being argued. Such argument is expressly forbidden by the Code of Professional Responsibility, and many courts have recognized the impropriety of such statements. This kind of argument is easily avoided by insisting that lawyers restrict themselves to statements such as "The evidence shows ...” or something similar.

The line between permissible and impermissible argument is a thin one. Neither advocate may express personal opinion as *298 to the justice of his or her cause or the veracity of witnesses. Credibility is to be determined solely by the triers, but an advocate may point to the fact that circumstances or independent witnesses give support to one witness or cast doubt on another. The prohibition pertains to the advocate’s personally endorsing, vouching for, or giving an opinion. The cause should turn on the evidence, not on the standing of the advocate, and the testimony of witnesses must stand on its own.

The following appears in the commentary:

Appeals to Passion or Prejudice

Arguments that rely on racial, religious, ethnic, political, economic, or other prejudices of the jurors introduce into the trial elements of irrelevance and irrationality that cannot be tolerated. Of course, the mere mention of the status of the accused as shown by the record may not be improper if it has a legitimate bearing on some issue in the case, such as identification by race. But where the jury’s predisposition against some particular segment of society is exploited to stigmatize the accused or the accused’s witnesses, such argument clearly trespasses the bounds of reasonable inference or fair comment on the evidence. Accordingly, many courts have denounced such appeals to prejudice as inconsistent with the requirement that the defendant be judged solely on the evidence.

9 Standard 3-5.8.

10 202 Mich App 220 .

MCL 750.157a; MSA 28.354(1).

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

Arias was arrested on June 28, 1988, by federal agents while driving his pickup truck containing 99 kilos of cocaine. He pleaded guilty in federal court, agreeing to testify on behalf of the government, and received a reduced sentenced of fifteen years.

Haidar acknowledged that he did not see Bahoda buy or sell cocaine or handle proceeds from cocaine sales, and that he did not mention Bahoda when he testified at a related court proceeding in July 1990. On redirect examination, the prosecutor reminded Haidar that he was under obligation to provide "truthful testimony” as part of his agreement with the government. '

The prosecutor began the direct examination of Abood with questions regarding Abood’s Chaldean/Iraqi heritage and the reasons why he immigrated to the United States.

At the time of Bahoda’s trial, Abood was facing charges in Macomb County for delivering over 650 grams of cocaine. Abood stated that he was not testifying pursuant to an agreement with the prosecution, although he faced a possible sentence of mandatory life imprisonment.

The prosecutor began his direct examination by asking Asker where he was born, and questioning him about the Chaldean community in the Detroit area. Counsel for both Bahoda and the codefendant objected to the questioning in the following colloquy:

Q. In fact, in the Detroit area it is one of the largest Chaldean ...

Mr. Procida: Objection.

Mr. Sonenberg: Your Honor, I have an objection, I don’t understand this line of questioning and I think it is irrelevant.

Mr. Bunting: I don’t think it is irrelevant, your Honor, I think it a reason why he didn’t want to go back.

*301 The Court: I think you put the reason on — he put the reason on the record.

Bahoda’s lawyer objected to the admission of testimony regarding Asker’s beating by Newman on the grounds that the evidence was prejudicial and irrelevant. The beating occurred after the alleged conspiracy concluded. There was no evidence that Bahoda participated in the actual beating. The prosecutor stated that he intended to offer this evidence to refute any attempt by the defense to challenge Asker’s credibility. He argued that evidence regarding the beating was relevant to the reason why Asker decided to cooperate with the government and to show Bahoda’s participation in drug dealing.

Asker said that he was testifying under agreement with the government for which he received immunity. In the following exchange, on redirect examination, the prosecutor reminded Asker of his promise to testify truthfully as part of the agreement:

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 looses [sic] his skin.

*302 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. [Emphasis added.]

Dea agents engaged in surveillance of the informant’s house, but were unable to produce a good recording of the transaction.

Awdish was questioned by the prosecutor regarding his birthplace (Iraq). Awdish had been arrested by the Western Wayne Narcotics Task Force in Wayne County in May 1987 for- possessing over 650 grams of cocaine. Awdish participated in several controlled purchases for which he received a reduced state sentence. He then started working for the dea in early 1989 when he participated in the controlled purchase. He stated that he had tried to set up several controlled purchases with Bahoda previously, but they did not go through. Awdish was originally sentenced to ten years by the federal court. As a result of his cooperation, the sentence was reduced to six months. While on supervised release, Awdish was required to continue cooperating with the government.

Awdish testified that, although the transaction lasted approximately ten minutes, he saw Bahoda’s face for about five seconds. A police officer testified that he was conducting surveillance of the transaction from across a busy street. Although he did not see Bahoda *303 during the transaction, he identified Bahoda as a passenger when he pulled up next to the automobile about one block away from the buy site. Awdish and Karim were equipped with devices to make sound recordings of the transaction. The devices did not work; nor was there video surveillance.

He stated:

You can do the math better than I. That was enough cocaine there to retire the debt of half the Third World countries in the world — in the world. There is a lot of cocaine there. Think it through. Nine thousand nine hundred (9,900) doubled times a hundred (100). That’s more money — I don’t know what your jobs are — but that’s more money than all of us together will earn in our lifetime probably.

The prosecutor said,

I don’t know if any of you are from the south end of the county and I don’t care to know. But, doesn’t it just amaze you the people who are dealing multi-, multi-million dollars of cocaine — multi-kilograms of cocaine. They’re dealing with four Nationals and, you know, these Columbians and buying and selling cocaine. Go to a swimming pool to discuss this stuff. How much do you think of this happens when you’re out at the swimming pool? Just boggles your mind, doesn’t it? Boggles mine.

It’s so pervasive. It’s so pervasive in this organization. But they go out and they talk about this stuff like it’s — like it’s you and I talking about selling ice cream. Or buying gasoline at the market.

The prosecutor said:

Well, there is the surveillance, there’s the delivery, sometimes these cases seem too good, and they have to argue about something I guess.

*304 This wasn’t a bought case, this was a perfect case, this was a perfect case. These dope cases don’t get any better.

This case is presented to you well wrapped up, well organized, that’s as good as it is going to get.

Ante, pp 292-293.

See People v McCoy, 392 Mich 231, 240 ; 220 NW2d 231 (1974); People v Bairefoot, 117 Mich App 225, 232 ; 323 NW2d 302 (1982); People v Green, 74 Mich App 601, 607 ; 254 NW2d 788 (1977).

Most of the evidence regarding Bahoda’s involvement in the alleged conspiracy came from witnesses testifying pursuant to agreements with the prosecution. The only other evidence of Bahoda’s drug dealing came from the testimony of the dea agents and another witness who was testifying as a government informant. While such testimony may not be inherently unreliable, in the absence of any objective evidence of guilt, such as photographs, video or audio recordings, issues of credibility were central to the prosecution’s case.

Ante, pp 266-267.

Ante, p 272.

Ante, p 271.

The majority argues that "[i]t 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 Arab ethnicity does not automatically follow.” Ante, p 272. The argument ignores the hostility of the rhetoric and emotions aroused in this country toward Iraqis, non-Iraqis of Arab descent, and even persons who do not regard themselves as Arabic, during the Gulf War.

The majority notes that Bahoda’s lawyer did not object to each Arab or Iraqi reference, thereby preventing the trial court from issuing a curative instruction. Ante, p 272, n 16. The record shows that Bahoda’s lawyer objected to a number of the references. These objections were sufficient to put the prosecutor and the trial court on notice that these comments were objectionable.

People v Rohn, 98 Mich App 593 ; 296 NW2d 315 (1980); George v Travelers Indemnity Co, 81 Mich App 106 ; 265 NW2d 59 (1978).

as See, e.g., Nemet v Friedland, 273 Mich 692, 697 ; 263 NW 889 (1935); George , n 34 supra.

In George , a civil case, the defendant insurance company sought to introduce irrelevant evidence regarding the Chaldean background of the claimant. Id. at 114 . The Court declined to reverse because the plaintiff failed to object and request a curative instruction and because the questioning was not so prejudicial as to deny a fair trial, considering all the evidence. Id. at 115-116 . Nevertheless, the Court observed that "[c]ounsel who indulge in such argument always bear the risk that unnecessary prejudice will, in the right case, overwhelm an otherwise proper presentation of relevant evidence.” Id. at 116, n 4 .

In the instant case, Bahoda’s lawyer adequately registered his objections to the ethnic allusions and questioning.

See n 19.

See n 14.

202 Mich App 217 -218.

People v Atkins, 397 Mich 163 ; 243 NW2d 292 (1976).

People v Enos, 168 Mich App 490, 492 ; 425 NW2d 104 (1988); People v Rosales, 160 Mich App 304, 311 ; 408 NW2d 140 (1987); People v Buschard, 109 Mich App 306, 316 ; 311 NW2d 759 (1981), vacated and remanded 417 Mich 996 ; 334 NW2d 376 (1983), reaff’d on remand 129 Mich App 160 ; 341 NW2d 260 (1983).

See n 19.

The parallel questioning and responses of Haidar, and Asker’s statement, "I have been promised by you,” suggest that both witnesses may have been schooled in their responses by the prosecutor.

United States v Roberts, 618 F2d 530, 536 (CA 9, 1980).

See n 14.

Ante, pp 279-281.

Id, pp 280-281.

Id.

Id., pp 281-282.

See People v Smith, 158 Mich App 220, 231 ; 405 NW2d 156 (1987).

People v Duncan, 402 Mich 1 ; 260 NW2d 58 (1977); People v Rohn, n 34 supra, p 596.

People v Marji, 180 Mich App 525, 538 ; 447 NW2d 835 (1989).

Rohn , n 34 supra, p 596.

Id., pp 596-597; People v Biondo, 76 Mich App 155, 158 ; 256 NW2d 60 (1977); People v Meir, 67 Mich App 534, 537-538 ; 241 NW2d 280 (1976); People v Williams, 65 Mich App 753, 755-756 ; 238 NW2d 186 (1975) (citing People v Farrar, 36 Mich App 294 ; 193 NW2d 363 [1971]).

Such arguments have also been criticized by the Court of Appeals. In People v Smith, 158 Mich App 220, 231 ; 405 NW2d 156 (1987), citing People v Fuqua, 146 Mich App 250, 254 ; 379 NW2d 442 (1985), the Court said, "A prosecutor may argue the credibility of the witnesses and the guilt of the defendant, but may not support the argument with the authority or prestige of the prosecutor’s office or the prosecutor’s personal knowledge.” In People v Humphreys, 24 Mich App 411, 418 ; 180 NW2d 328 (1970), the Court of Appeals held that a remark in the prosecutor’s rebuttal argument was improper because it encouraged the jury "to suspend its own powers of critical analysis and judgment in deference to those of the police and the prosecutor.” The Court ruled similarly in other cases prosecutorial comments on the guilt of the defendant and the strength of the evidence. See People v Erb, 48 Mich App 622, 631-632 ; 211 NW2d 51 (1973); People v Tarpley, 41 Mich App 227, 237 ; 199 NW2d 839 (1972).

Ante, p 288.

Ante, p 287.

Without analysis, the majority dismisses defendant’s motion for mistrial, commenting that the prosecutor’s remarks did not cause a timely objection. See n 30. The majority incredibly concludes that this was not a credibility contest.

The majority dismisses Bahoda’s claim that the prosecutor denigrated him in closing. The Court of Appeals did not address this issue.

This evidence was objected to by Bahoda’s lawyer. See n 18.

202 Mich App 220 .

The majority does not engage in harmless-error analysis, but conclusorily asserts that, even if there was error, it was harmless in light of the other evidence presented. Ante, p 291. While there was ample evidence of Bahoda’s participation, the source of that evidence was the testimony of witnesses whose credibility was suspect. In the absence of other more objective evidence, I do not understand how the majority can conclude that the evidence of the beating was harmless.