People v. Dawsey

• Decision Date: 18 July 1977
• Docket Number: Docket No. 27675
• Citation: 76 Mich.App. 741,257 N.W.2d 236
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Henry DAWSEY, Defendant-Appellant. 76 Mich.App. 741, 257 N.W.2d 236
• Court: Court of Appeal of Michigan — District of US

Page 236

257 N.W.2d 236

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Henry DAWSEY, Defendant-Appellant.

Docket No. 27675.

76 Mich.App. 741, 257 N.W.2d 236

Court of Appeals of Michigan.

July 18, 1977.

Released for Publication Sept. 2, 1977.

[76 MICHAPP 744] George Stone, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Andrea L. W. Solak, Asst. Pros. Atty., for plaintiff-appellee.

[76 MICHAPP 745] Before MAHER, P. J., and V. J. BRENNAN and KAUFMAN, JJ.

MAHER, Presiding Judge.

Judge Kaufman's opinion deals adequately with all but one of the issues defendant raises in his appeal from his conviction for first-degree criminal sexual conduct, M.C.L.A. § 750.520b(1)(e); M.S.A. § 28.788(2)(1)(e). Unlike Judge Kaufman, I cannot conclude that the court below committed reversible error when it limited cross-examination of the complainant under M.C.L.A. § 750.520j; M.S.A. § 28.788(10).

At defendant's trial, his counsel was able to elicit from the complainant that an act of sexual intercourse was not something new to her. An objection from the prosecutor, sustained by the court, terminated that line of questioning. The court, although expressing serious doubts about "any statute that eliminates for the trier of the fact * * * the credibility of the parties involved", correctly ruled the questioning of the complainant about her prior sexual activity with persons other than defendant was prohibited under M.C.L.A. § 750.520j; M.S.A. § 28.788(10). Defense counsel registered his objection to the prohibition against inquiry into the complainant's prior sexual activity.

The challenged statutory provision reads:

"(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim's past sexual conduct with the actor.

[76 MICHAPP 746] (b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

(2) If the defendant proposes to offer evidence described in subsection (1) (a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (1)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1)."

Since defense counsel did not attempt to offer either opinion or reputation evidence of the complainant's sexual conduct, only the restriction on evidence of specific instances of the complainant's sexual conduct is at issue in this appeal. Defendant contends that the statutory restriction on evidence of complainant's sexual activity denied him his constitutional right of confrontation. Quoting his brief, "(d)isallowing cross-examination destroyed one of defendant's most effective means of attacking her veracity".

A legislative prohibition against evidence of a certain class, even for the worthy purpose of preventing witnesses from suffering embarrassment on the stand, may not limit the Sixth Amendment right to confrontation guaranteed all defendants. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In Davis, a key prosecution witness may have been under pressure to fabricate because of his juvenile probationary status, but an Alaska statute prevented defense cross-examination about that status. The Supreme Court held that following this statutory restriction on cross-[76 MICHAPP 747] examination produced an error of constitutional magnitude.

"In this setting we conclude that the right of confrontation is paramount to the State's policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record if the prosecution insisted on using him to make its case is outweighed by petitioner's right to probe into the influence of possible bias in the testimony of a crucial identification witness." 415 U.S. at 319, 94 S.Ct. at 1112.

Similarly strong is language in Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309 (1973):

"The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the 'accuracy of the truth-determining process.' Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970); Bruton v. United States, 391 U.S. 123, 135-137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). It is, indeed, 'an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal'. Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965)."

Davis and Chambers are clear; legislative or judicial attempts to prevent meaningful cross-examination are constitutionally unacceptable. I cannot see, however, how the trial court's obedience to the statute impaired in any significant way defendant's cross-examination of the complainant. Defendant's inability to explore the complainant's sexual past, in order to "attack her veracity", was inconsequential.

An early Michigan case, reviewing a conviction for statutory rape, upheld the exclusion of cross-[76 MICHAPP 748] examination about chastity. "Lack of chastity cannot be used to impeach the credibility of a female witness." People v. Mills, 94 Mich. 630, 637-638, 54 N.W. 488, 490 (1893). See also, People v. Connelly, 157 Mich. 260, 122 N.W. 80 (1909). Not long afterwards, however, the Supreme Court held that it was in the discretion of the trial court to allow a defendant in a murder trial to be cross-examined about her chastity. People v. Cutler, 197 Mich. 6, 163 N.W. 493 (1917). People v. Mills, supra, was criticized as being inconsistent with many Michigan decisions, both criminal and civil, that authorized the questioning of a female witness about her chastity.

Recent decisions, in upholding the restriction of cross-examination of a rape complainant about her chastity, emphasize the discretion left to the trial court. People v. Whitfield, 58 Mich.App. 585, 228 N.W.2d 475 (1975), People v. Sturgis, 35 Mich.App. 380, 192 N.W.2d 618 (1971), People v. Weems, 19 Mich.App. 553, 172 N.W.2d 865 (1969). These cases indicate a proper skepticism for the view that sexual activity can be equated with moral character and thus with testimonial reliability.

In People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973), the Supreme Court had little tolerance for the prosecutor who cross-examined defendant's alibi witnesses about their lesbian relationship:

"It (the cross-examination) did no more than put in front of the jury the fact that he, the prosecutor, personally felt these witnesses to be of disreputable character and unworthy of belief." 390 Mich. at 686, 213 N.W.2d at 124.

The inability to impeach a witness by showing a lack of chastity was at one time a minority position, although a strong one. Anno: Cross-examination as to sexual morality for purpose of affecting credibility of witness, 65 A.L.R. 410. Modern codes [76 MICHAPP 749] of evidence allocate no place among the methods of impeachment for cross-examination about unchaste conduct. Model Code of Evidence, rule 106; Uniform Rules of Evidence, rule 608; Federal Rules of Evidence, rule 608; Proposed Michigan Rules of Evidence, rule 608.

Insight into the sexual mores of a witness is rarely a help to a jury in determining if the witness is disposed towards untruthfulness. ¹ There is no reason to consider an unchaste witness as mendacious. Dean Ladd observed:

"History contains the names of many highly respected persons whose honor in telling the truth would not be questioned and yet whose sex life would hardly be the model for future generations. The frank novels and biographies of the present day disclose habits of living, not commendable or in conformity with legal and ethical standards, and yet not representative of people whose word under oath would be regarded as bad." Ladd, Credibility Tests Current Trends, 89 U.Pa.L.Rev. 166, 181 (1940).

In a very recent opinion, People v. Bouchee, 400 Mich. 233, 253 N.W.2d 626 (1977), the Supreme Court found prejudicial error in cross-examination of defendant and his wife about the legitimacy of [76 MICHAPP 750] their children. "We cannot agree with the apparent assumption of the trial court, and the express holding of the Court of Appeals, that the legitimacy of the Bouchees' four children related to the truthfulness or untruthfulness of the defendant or his wife as witnesses." 400 Mich. at 253, 253 N.W.2d at 633.

Defendant had no complaint when the trial court, following the statute, stopped a line of questioning that would have produced no answers relevant to the complainant's character for truthfulness.

Since consensual intercourse appears inconsistent with the charge of first-degree criminal sexual conduct, it is appropriate to consider briefly whether the trial court, in following the statute, impermissibly limited defendant from substantiating his version of his encounter with the complainant.

An attack on a rape complainant's character for veracity by cross-examination about her sex life may produce answers that are misused in support of a claim that the sexual conduct under scrutiny was consensual. It is therefore helpful to distinguish between evidence that is offered to demonstrate the...