People v. Garvie

• Decision Date: 22 April 1986
• Docket Number: Docket No. 78011
• Citation: 148 Mich.App. 444,384 N.W.2d 796
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rickey Gene GARVIE, Defendant-Appellant. 148 Mich.App. 444, 384 N.W.2d 796
• Court: Court of Appeal of Michigan — District of US

Page 796

384 N.W.2d 796

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rickey Gene GARVIE, Defendant-Appellant.

Docket No. 78011.

148 Mich.App. 444, 384 N.W.2d 796

Court of Appeals of Michigan.

Submitted June 19, 1985.

Decided Jan. 22, 1986.

Released for Publication April 22, 1986.

[148 MICHAPP 446] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Michael Hocking, Pros. Atty., and K. Davison Hunter, Asst. Pros. Atty., for the People.

State Appellate Defender by Derrick A. Carter, for defendant-appellant on appeal.

Before ALLEN, P.J., and WAHLS and O'BRIEN, ^* JJ.

PER CURIAM.

Defendant was convicted as charged of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). Sentenced to life imprisonment, he appeals as of right.

I

Defendant contends that he was denied his constitutional rights to cross-examine the victim regarding prior false allegations of sexual activity and to present evidence that the victim's depression was due to sexual activity with someone else. The following facts are relevant to our analysis of defendant's argument.

The victim was a seven-year-old boy named [148 MICHAPP 447] Troy. In June, 1982, Troy and his family moved from Lansing to Potterville. About the same time, a close family friend named Debbie also moved with her three children from Lansing to Potterville. Defendant was Debbie's live-in boyfriend at that time.

After getting settled into the new environment and getting the kids started at a new school, the two families began seeing much of each other again. Defendant often babysat Troy and his younger brother and Debbie's three kids while the two mothers went shopping and did other things together. On a couple occasions, Troy stayed at Debbie's overnight.

On March 19, 1983, Debbie's daughter Peggy told her mother that Troy had indicated he had been sodomized by defendant. Troy's mother was told about this the next day and Troy confirmed that defendant had sodomized him. Defendant denied abusing Troy but said that Troy had indicated that he was sodomized by Joey, a boy in Lansing. Troy insisted that he had been sodomized by both Joey and defendant.

At trial, Troy's mother testified that Troy's disposition changed around September, 1982, and he became more withdrawn and less affectionate. Troy's father testified that he noticed the change in Troy in the winter. The change was significant enough that Troy's mother sought counselling to try and find out what was wrong. After March 20, 1983, when Troy told about being victimized by defendant, Troy's disposition returned to normal. The prosecutor used this evidence of Troy's changes in disposition to bolster Troy's testimony that he had been sodomized by defendant on February 4, 1983, and on at least ten other occasions.

Defendant strenuously sought at trial to introduce evidence of Troy's accusation against Joey. [148 MICHAPP 448] Primarily, defendant had in mind impeaching Troy by proving that the accusation against Joey was false. Defendant however, was unable to come up with any credible proofs to show that Troy had lied. Defendant also sought to use Troy's accusation against Joey, assuming it was true, as an explanation for Troy's change in disposition. The prosecutor opposed this use, arguing that there was too large a time gap between Troy's last opportunity to be abused by Joey (before Troy left Lansing in June, 1982) and his disposition change in September or October. Defendant has not addressed the significance of this time gap but merely refers this Court to the discussion in part I of People v. Mikula, 84 Mich.App. 108, 269 N.W.2d 195 (1978).

The issue before us arises in the context of our rape-shield law, M.C.L. Sec. 750.520j(1); M.S.A. Sec. 28.788(10)(1). Notwithstanding the statute, "the defendant should be permitted to show that the complainant has made false accusations of rape in the past". People v. Hackett, 421 Mich. 338, 348, 365 N.W.2d 120 (1984). Typically, such impeachment has occurred where, before trial, the complainant has acknowledged that a prior accusation was false. See People v. Werner, 221 Mich. 123, 190 N.W. 652 (1922); People v. Wilson, 170 Mich. 669, 137 N.W. 92 (1912); People v. Evans, 72 Mich. 367, 40 N.W. 473 (1888). A different situation was presented in Mikula, supra. In that case, whether the complainant's accusation was true or false, the prosecutor had a legitimate use for the evidence. However, for reasons that we state later, we do not find the instant case analogous to Mikula.

Troy has not acknowledged that his accusation against Joey was false and it does not appear likely that Troy would have changed his testimony [148 MICHAPP 449] at trial. ¹ Furthermore, defendant has no credible evidence that Troy falsely accused Joey but seeks to rely merely on a few inferences of little probative value. We do not believe that defendant's right to confront Troy extends to turning the trial into a fishing expedition on the question of Joey's guilt or innocence. The trial court did not err in applying the rape-shield law to prohibit defendant from placing evidence of Troy's accusation against Joey before the jury where defendant's efforts to characterize the accusation as false would have been futile.

In Mikula, supra, 84 Mich.App. p. 114, 269 N.W.2d 195, this Court stated the well-settled rule that "where the prosecution substantiates its case by demonstrating a physical condition of the complainant from which the jury might infer the occurrence of a sexual act, the defendant must be permitted to meet that evidence with proof of the complainant's prior sexual activity tending to show that another person might have been responsible for her condition". The Court concluded that this common-law rule was not limited to the conditions expressly included in the rape-shield statute. Thus we think the rule might apply in a proper case to a change in disposition similar to what occurred here to Troy. However, in the instant case, the prosecutor properly objected that there was too great an intervening period between the possible assault by Joey and the change in Troy's disposition. Defendant has never responded to the prosecutor's objection and has not offered any evidence showing that Troy's symptoms may be causally linked to an event occurring at least three months earlier. Accordingly, we find no error.

[148 MICHAPP 450] In Mikula, the prosecutor introduced evidence showing that the complainant's hymenal ring was not intact. That evidence was not of such a nature as to suggest when the condition was caused. The defendant's effort to show that the complainant's condition was attributable to someone else quite rightly, therefore, did not turn on a question of timing but simply on showing that someone else may have had intercourse with the complainant or otherwise broken her hymen. In contrast to Mikula is People v. Russell, 241 Mich 125, 216 N.W. 441 (1927). In Russell, the prosecutor introduced the fact of the complainant's pregnancy. In response, the defendant produced evidence that, around the time of conception, the complainant was sneaking out late at night to see another boy. We think it patent that, if defendant had not linked up the complainant's late-night escapades with the time her pregnancy began, defendant's proofs would have been objectionable. The case before us is more like Russell than like Mikula and we conclude that defendant did not lay an adequate foundation for admission of the evidence.

II

Defendant next contends that the admission of similar acts evidence, i.e., defendant's numerous uncharged acts of sodomy on Troy, denied him a fair trial. The trial court exercised its discretion and allowed the evidence pursuant to People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973). We find DerMartzex to be on point and the trial court's ruling eminently correct.

III

Defendant argues that he was denied a fair trial [148 MICHAPP 451] when Troy was shown, over objection, two suggestive and prejudicial "anatomically correct" dolls to demonstrate the sexual offense. Defendant asserts that the dolls were prejudicial as depicted because the "man" doll when compared to the "cute little boy" doll was designed particularly to appear "cynical" looking (defendant possibly intends to say "sinister" looking). Our review at oral argument of photographs of these dolls does not suggest that untoward prejudice would have resulted to defendant at trial from the mere appearance of the dolls.

Defendant further asserts that the dolls were admitted at trial without a proper foundation establishing that their use was necessary to assist Troy while testifying. Defendant acknowledges that Troy was timid but suggests that timidity is not unnatural in such a sensitive case. We think the situation presented to the trial court was one for the sound exercise of its discretion. People v. Gunter, 76 Mich.App. 483, 493-494, 257 N.W.2d 133 (1977). The court did not find the dolls' looks to be prejudicial and believed they would assist Troy in testifying. We find no abuse of discretion. ²

IV

Defendant next argues that the trial court erred in finding that Troy's examining physician and Debbie's daughter Peggy were not res gestae witnesses. While the court did make such a finding, it also ruled that defendant did not timely raise the [148 MICHAPP 452] issue. Defendant was aware of the two witnesses and their testimony well before trial and did not object to the prosecutor's failure to endorse or call them until after the prosecution rested, at which time defense counsel brought a motion to dismiss. As an alternative to granting the motion, counsel asked that the court instruct the jury that the missing witnesses' testimony could be considered as favorable to the defense. Defendant did not allege that any prejudice had resulted but asserted merely that the prosecutor had an absolute duty to produce all res gestae witnesses. We agree with the trial court tha...