People v. Calloway

180 Mich. App. 295 (1989) 446 N.W.2d 870 PEOPLE v. CALLOWAY Docket No. 118061. Michigan Court of Appeals. Decided September 18, 1989. Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, James J. Gregart, Prosecuting Attorney, and James J. Lait, Assistant Prosecuting Attorney, for the people. Marovich & Stroba (by Milton J. Marovich), and Howard Everett Calloway, in propria persona. Before: CYNAR, P.J., and WEAVER and McDONALD, JJ. ON REMAND CYNAR, P.J. A circuit court jury convicted the defendant of first-degree murder, MCL 750.216; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On appeal, this Court found reversal was mandated by improper questioning by the prosecutor of one of his witnesses in regard to the witness' religious beliefs. People v Calloway, 169 Mich App 810; 427 NW2d 194 (1988). The Supreme Court considered the application for leave to appeal and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, vacated the judgment of our Court and remanded the case to this Court for further consideration. 432 Mich 902 (1989). On remand, we are ordered to consider: (1) whether this case can be distinguished from People v Hall, 391 Mich 175; 215 NW2d 166 (1974), because the questions were part of a relevant inquiry about the witness' activities at the time of the killing; and (2) whether this case can be distinguished from Hall, supra, because the witness being questioned was someone other than a defendant facing criminal charges. Except as otherwise noted in our discussion herein, we include by reference the testimony as *297 stated in our opinion prior to remand to this Court. Testimony of witnesses other than Ola Reed had indicated that the suspect vehicle involved in the crime was a blue van owned by the defendant. The shooting occurred sometime around noon. On direct examination, Ola Reed stated that, on the day of the shooting, she saw Johnny Reed at her house around 9:00 in the morning. Later in the day, Pastor Elden J.W. Mitchell of the Lively Stone Church, where Ola Reed was a member, picked her up at her house around noon in a blue van which had windows. He drove her to the hospital located downtown. At this point, the prosecutor asked: Q. Ola, are you a religious person? A. Yes. Q. Okay. How long have you belonged to the church you go to now? A. For nine years. Immediately following a cross examination, Ola Reed acknowledged that the only time she was in a blue window van was around noon when her pastor picked her up together with the four children she was baby sitting to take her to the hospital. This was after the shooting. Const 1963, art 1, § 18 states: No person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief. Further, MCL 600.1436; MSA 27A.1436 states: No person may be deemed incompetent as a witness, in any court, matter or proceeding, on *298 account of his opinions on the subject of religion. No witness may be questioned in relation to his opinions on religion, either before or after he is sworn. In People v Hall, supra, p 180, the prosecutor prefaced his line of questioning in the following manner: Prosecutor: I forgot to ask you, Mr. Hall, whether or not you believe in the Supreme Being, Mr. Hall: Yes, I do. The prosecutor next asked a number of questions, which gave the impression that the truthfulness of the answers depended on the defendant's belief or disbelief in the Supreme Being. The questions were: "Mr. Prosecutor: You do. And you would not tell a falsehood to save yourself?" "Mr. Prosecutor: Would you tell a falsehood to get out of this crime, sir?" "Prosecutor: Would you tell a falsehood in order to get out this case?" and "Prosecutor: You couldn't answer that?" The Hall Court decided that the cross examination was clearly incompetent. Further, the Court observed, once such a question is asked, a new trial is mandated, Hall, supra, p 183. All the same, the Court indicated an exception, stating in part: [U]nless it can be shown belief or disbelief in a God has no reference to "opinions on the subject of religion." [391 Mich 181.] We believe this case to be distinguishable from Hall, supra. First, the direct examination before and after the two brief questions which were asked had no reference to "opinions on the subject of religion." Secondly, a fair reading of the testimony of Ola Reed indicates the questions were part of a relevant inquiry about the witness' activities at the time of the killing. *299 Additionally, the remand to this Court is for further consideration whether this case can be distinguished from People v Hall, supra, because the witness being questioned was someone other than a defendant facing criminal charges. Our statute (MCL 600.1436; MSA 27A.1436) states in part: No witness may be questioned in relation to his opinions on religion, either before or after he is sworn. Under the statute as written, there is little room for discussion. The statute does not distinguish a witness who is a defendant facing criminal charges from any other witness. However we would urge the Court, when the facts in a case before the Court are appropriate, to reconsider it's position in People v Hall, supra, that once improper questions are asked, a new trial is mandated. We believe the facts in this case are appropriate for such reconsideration. For the reasons stated herein, we affirm the defendant's convictions. Affirmed. McDONALD, J., concurred. WEAVER, J. (concurring). I concur with my colleagues that this case is distinguishable from People v Hall, 391 Mich 175; 215 NW2d 166 (1974), because the questions were part of a relevant inquiry about the witness' activities at the time of the killing and because the direct examination before and after the questions had no reference to "opinions on the subject of religion." Id. at 181, citing People v Jenness, 5 Mich 305, 319 (1858). However, I do not believe that the analysis provided by Hall, supra, needs revisiting. In my view, *300 improper questioning of a witness on the subject of religion may not be deemed harmless.