People v. DerMartzex

• Decision Date: 18 December 1973
• Docket Number: No. 6,J,6
• Citation: 213 N.W.2d 97,390 Mich. 410
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robelto DERMARTZEX, Defendant-Appellant. an. Term. 390 Mich. 410, 213 N.W.2d 97
• Court: Michigan Supreme Court

Page 97

213 N.W.2d 97

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robelto DERMARTZEX, Defendant-Appellant.

No. 6, Jan. Term.

390 Mich. 410, 213 N.W.2d 97

Supreme Court of Michigan.

Dec. 18, 1973.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Thomas P. Smith, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by Richard S. McMillin, Asst. Defender, Detroit, for defendant-appellant.

Before the Entire Bench.

LEVIN, Justice.

This appeal concerns the admissibility of evidence of acts tending to show the commission of a crime other than the crime charged in the information and the defendant's claim that the judge is obliged Sua sponte to caution the jury against the misuse of such evidence.

Robelto Dermartzex was charged and convicted of assault with intent to commit rape. The Court of Appeals affirmed. 29 Mich.App. 213, 185 N.W.2d 33 (1970). We also affirm.

I

Ten year old Donna Klenz, a resident of Toronto, spent part of her summer vacation with Dermartzex and his wife at their home in Detroit.

Donna testified that while accompanying Dermartzex to Detroit, he 'was touching (her) private spots.' This testimony was admitted over objection that it was inadmissible because it occurred before the date of the assault charged in the information. ¹

Donna testified, without further objection, that Dermartzex further sexually mistreated her during her stay in Detroit: 'He put his private spot in my, in the back of my private spot'; 'He put his private spot into my front spot'; '(He kissed me) on my private spots, in the front'; 'He had these movie pictures (of 'sex shows') and he showed them to me.' She added that Dermartzex's acts of physical familiarity were committed 'often.'

While evidence of a prior conviction of a defendant may be admissible to impeach his credibility, the general rule is that evidence tending to show the commission of other criminal offenses by the defendant is inadmissible on the issue of his guilt or innocence of the offense charged.

Evidence of other crimes is barred because it has been decided that whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant's guilt or innocence. 'This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.' People v. Matthews, 17 Mich.App. 48, 52, 169 N.W.2d 138, 140 (1969).

It also has been decided, however, that the probative value of such evidence may outweigh the disadvantages where the people seek to use such evidence to show the defendant's 'motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question.' M.C.L.A. § 768.27; MS.A. § 28.1050.

Similarly, it has been held that the probative value outweighs the disadvantage where hte crime charged is a sexual offense and the other acts tend to show similar familiarity between the defendant and the person with whom he allegedly committed the charged offense. The rationale of this exception to the general rule is well expressed by Mr. Justice Christiancy in an appeal from a conviction of the offense of incest:

'(W)here a witness has testified to a fact or transaction which, standing alone and entirely unconnected with anything which led to or brought it about, would appear in any degree unnatural or improbable in itself, without reference to the facts preceding and inducing the principal transaction, and which, if proved, would render it more natural and probable; Such previous facts are not only admissible and relevant, but they constitute a necessary part of such principal transaction--a link in the chain of testimony, without which it would be impossible for the jury properly to appreciate the testimony in reference to such principal transaction.' (Emphasis by the Court.) People v. Jenness, 5 Mich. 305, 323 (1858). ²

The principal issue confronting a jury in most statutory rape cases, and particularly so where the charged offense is Attempted statutory rape, is the credibility of the alleged victim. Limiting her testimony to the specific act charged and not allowing her to mention acts leading up to the assault would seriously undermine her credibility in the eyes of the jury. Common experience indicates that sexual intercourse and attempts thereat are most frequently the culmination of prior acts of sexual intimacy.

Dermartzex was charged not with statutory rape, but with the inchoate crime of assault with intent to commit rape. Allowing the admission of evidence of antecedent sexual acts preceding the charged assault is especially justified where an inchoate offense is charged against a member of the victim's household. Otherwise the testimony of the victim concerning the seemingly isolated unsuccessful assault may well appear incredible.

We do not wish to be understood as holding that other acts of sexual intimacy between the parties is always admissible. The trial judge, here as whenever any evidence is offered for any purpose, enjoys the discretion of excluding relevant evidence if its probative value is outweighed by the risks of unfair prejudice, confusion of issues or misleading the jury. ³ In this case, the defendant did not ask the judge to exercise this discretion.

II

Dermartzex contends that the judge, despite Dermartzex's failure to object to the admission of the testimony or to request a limiting instruction, committed reversible error by failing to caution the jury on the limited purpose for which evidence of other crimes is admissible.

Dermartzex cites language in People v. Kelly, 386 Mich. 330, 192 N.W.2d 494 (1971), as authority for his contention that the failure to give a limiting instruction is plain error requiring reversal. In People v. Chism, 390 Mich. 104, 120--121, 211 N.W.2d 193, 200 (1973), we dismissed this language as dicta and held that 'in the absence of request or proper objection under present Michigan case law, there is no absolute requirement that the trial judge give limiting instructions, even though such an instruction should have been given.' The Court concluded: '(F)ailure to instruct in this case where there was no request for such instruction and no objection to the failure to instruct was not reversible error.' In Chism, as here, the other crime's evidence established a prior incident involving the defendant and the victim, and in both the issue was whether the defendant was the person who committed the assault. ⁴

The facts of this case demonstrate the impolicy of imposing an absolute requirement upon trial judges to offer Sua sponte a limiting instruction. Neither Donna nor the prosecutor ever characterized or explicitly described as separate criminal offenses (gross indecency, sodomy, contributing to the delinquency of a minor) Dermartzex's alleged prior acts of sexual misconduct. Defense counsel may well have declined to request a limiting instruction because he thought it might be counter-productive to emphasize to the jury that the prior acts, besides establishing a chain leading up to the charged offense, also...