Opinion
Docket Nos. 78-1673, 78-1674.
Decided December 20, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and William F. Lavoy, Assistant Prosecuting Attorney, for the people.
James Krogsrud, Assistant State Appellate Defender, for defendant on appeal.
Before: R.B. BURNS, P.J., and M.F. CAVANAGH and D.E. HOLBROOK, JR., JJ.
Defendant was charged with one count of first-degree criminal sexual conduct, MCL 750.520(b); MSA 28.788(2), and one count of third-degree criminal sexual conduct, MCL 750.520(d); MSA 28.788(4). He was jury convicted of two counts of third-degree criminal sexual conduct. Thereafter sentenced to 10 to 15 years imprisonment for each conviction, to be served concurrently, he now appeals as of right.
Defendant first contends that the trial court erred in admitting testimony which bolstered complainants' credibility. The testimony in question includes: 1) repeated affirmance on direct examination by complainants of the truth of their testimony; 2) testimony by a town constable that another unidentified person had contacted him regarding the charged offenses; 3) testimony by an investigating officer that the complainants' testimony at trial was consistent with their previous statements to him.
While defendant failed to preserve this issue for appeal by timely objection at trial, this Court will nevertheless consider manifest and serious error to prevent fundamental injustice even absent such objection. People v Holmes, 292 Mich. 212; 290 N.W. 384 (1940), People v Dorrikas, 354 Mich. 303; 92 N.W.2d 305 (1958), People v Larry Goodwin, 40 Mich. App. 709; 199 N.W.2d 552 (1972). Although we do not find any manifest or serious error in complainants' affirmance on direct examination of the truth of their testimony we do find the constable's testimony to be hearsay. People v Hallaway, 389 Mich. 265, 275; 205 N.W.2d 451 (1973). Moreover, since there was no claim of recent fabrication by defendant, allowing their credibility to be bolstered by their prior consistent statements was error. Brown v People, 17 Mich. 429 (1868), Stewart v People, 23 Mich. 63 (1871), People v Purman, 216 Mich. 430; 185 N.W. 725 (1921), People v Hallaway, supra, People v Coles, 79 Mich. App. 255; 261 N.W.2d 280 (1977), People v Harris, 86 Mich. App. 301; 272 N.W.2d 635 (1978). Since complainants' testimony was the sole evidence to establish that a crime had been committed, the bolstering testimony might well have tipped the scales, in the minds of the jury, from innocent to guilty. Such error, in our minds, constituted a fundamental injustice and we therefore reverse.
Defendant's final contention is that the trial court erred in allowing statements in arguments of counsel as to complainants' social and economic position. Defendant also failed to preserve this issue for appeal by timely objection. While error may indeed have occurred, the prejudicial effect on defendant was not so great as to produce fundamental injustice.
Reversed and remanded for a new trial.