People v. Hernandez

• Citation: 377 N.W.2d 729,423 Mich. 340
• Decision Date: 13 November 1985
• Docket Number: Nos. 72645,72646,s. 72645
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel HERNANDEZ, Defendant-Appellant. 423 Mich. 340, 377 N.W.2d 729
• Court: Michigan Supreme Court

Page 729

377 N.W.2d 729

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel HERNANDEZ, Defendant-Appellant.

Nos. 72645, 72646.

423 Mich. 340, 377 N.W.2d 729

Supreme Court of Michigan.

Nov. 13, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph T. Barberi, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., Lansing, for people.

James R. Neuhard, State Appellate Defender by Terence R. Flanagan, Lansing, for defendant.

PER CURIAM.

This defendant persuaded the trial court to exclude evidence that he had committed a prior bad act. The issue now before us is whether the defendant's own direct examination testimony introduced the subject to the jury, thus opening the door for the prosecution to cross-examine the defendant on the prior bad act and introduce rebuttal testimony that the prior bad act did occur. We agree with the defendant that his testimony on direct examination did not introduce the prior bad act and that evidence of the prior bad act should not have been admitted at trial. We therefore reverse the defendant's conviction and remand the case to the circuit court for a new trial.

I

In separate informations, the defendant was charged with having engaged in sexual contact with C.C., a person under the age of thirteen, on July 1, 1979, and on July 14, 1979. M.C.L. Sec. 750.520c(1)(a); M.S.A. Sec. 28.788(3)(1)(a). More than a year before the trial, the defendant filed a written motion in limine requesting the trial court to exclude evidence that, in August of 1979 he had kissed a young girl named K.P. on the mouth. Not long after, the trial court issued a written order reserving its ruling on this matter until the trial.

The case was tried in late July of 1981. When the defendant's motion in limine was again considered, the trial court held that the evidence concerning K.P. should be excluded:

"But the court has great reluctance, and, in fact, will not allow the testimony of [K.P.] for the reason the court cannot see the similarity between kissing which may've been a totally innocent act and the other acts of which the defendant is accused which are obviously of a sexual nature. I assume kissing in some instances does lead to other acts of intimacy, sometimes it doesn't. Sometimes it's done for purely affectionate reasons. But I do not see the similarity between the two, and I believe that if the court were to allow it that the prejudicial effect would in this particular case far outweigh, far, far outweigh any probative value it would have. So, therefore, the court will rule, and does rule, that the prosecutor may not ask this witness any questions relating to a specific occurrence or occurrences which may've occurred, and which were contained in the prosecutor's offer of proof."

In due course, the defendant took the stand and denied any impropriety with C.C. The prosecutor seized on the final question and answer of the defendant's direct examination as an invitation to inquire whether the defendant had ever kissed K.P.:

"Q. Mr. Hernandez, did you ever touch this child, [C.C.]?

"A. No, I haven't.

"Q. Did you ever touch her in a sexual manner as she testified?

"A. I never touched that child.

"Q. Did you ever touch any child in the manner she testified?

"A. I never touched any child.

"[Defense Counsel ]: I don't have any further questions. Thank you.

"[Assistant Prosecutor]: Could I have the last question and answer read back, your honor?

"The Court: Yes.

"Cross Examination by [Assistant Prosecutor]:

"Q. Mr. Hernandez, your testimony is you have never touched any child in a sexual manner?

"A. Never touched any child.

"Q. Have you ever kissed a little girl?

"A. I've kissed a lot of children.

"Q. Have you ever kissed [K.P.]?

"A. Not to my knowledge, no, I have never.

"Q. Did you ever take [K.P.] into your cabin one time when you were looking for something and kiss her and put your arm around her, and then tell [K.P.] don't tell your parents, let's let this be our little secret?

"A. No sir.

"Q. You never did that?

"A. No sir.

"Q. Do you know who [K.P.] is? You saw her?

"A. Yes, I know who she is.

"Q. And you're swearing under oath you never ever kissed [K.P.] in her life?

"A. No, I have not.

"Q. And you're swearing under oath that you never told [K.P.] don't tell anybody about this, let's keep this our little secret?

"A. I never have."

The defendant did not object at the time those questions were asked, ¹ but once the jury was absent, he strenuously objected to what had happened, as well as to the prosecution's plan to call K.P. as a rebuttal witness. The defendant observed that K.P.'s name was never mentioned during the direct examination. Moreover, argued the defendant, the final question and answer of his direct examination had concerned his sexual touching. Unpersuaded, the trial court ruled that it would allow the prosecution to employ K.P. as a rebuttal witness:

"The court finds that one of the, if not the leading, one of the leading cases involving the matter of rebuttal testimony is found in the case of People v. Bennett, 393 Mich 445 [224 NW2d 840 (1975) ]. At 449 and 450 the court stated that rebuttal is limited to the refutation of relevant and material evidence, hence evidence bearing on an issue properly raised in the case. Such issue, of course, could be one raised in the prosecutor's case in chief, or one raised by way of defense, and evidence on either would be subject to rebuttal. But here where the prosecutor did not offer this evidence in his case in chief, which he would've had to do if this were to be regarded as an admission, it did not bear on an issue raised by the People; neither does it bear on an issue raised by the defense. In People v. Grigsby [On Remand ], 99 Mich App 672, 675 [299 NW2d 21 (1980) ], it is clear that rebuttal testimony is limited to the refutation of relevant and material evidence, hence evidence bearing on an issue properly raised in a case. It is also clear that a prosecutor may not elicit a denial of some statement not properly in the case and subsequently inject the issue into the case through rebuttal. They cite [People v.] McGillen # 1, [392 Mich 251; 220 NW2d 677 (1974) ], they cite Bennett and others. This general subject matter was reviewed, I thought, rather thoroughly, and the court took the position that the alleged activity between the defendant and the young child, [K.P.], was not to be injected into the case by the People. In this situation we have a situation where not only has the defendant denied ever touching in any way the alleged victim in this case, [C.], but has also testified in response to a question asked by his attorney that he never touched any other little girl as well. Further on cross examination he has denied having ever kissed [K.P.] and also denied having told her not to tell anyone of the particular instant [sic]. The prosecution attempted to offer this evidence in its case in chief, and was rejected by the court. However, in this instance we have a question that was raised by the defense counsel and answered by his client. The subject matter was then gone into on cross examination without objection, and the court believes that this is a--that the subject matter is proper for rebuttal as long as it's limited to the refutation of relevant and material evidence, and it was evidence which bears on an issue that was raised by the defense. Therefore, I will allow the rebuttal testimony of this young child."

In his direct examination of K.P., the assistant prosecutor elicited the following testimony:

"Q. Okay. And did Danny go into the closet with you?

"A. Yes.

"Q. What happened, if anything, in the closet?

"A. He said that he was going to teach me how to kiss.

"Q. Okay. And what happened next?

"A. He kissed me.

"Q. Okay. And where were his hands when he kissed you?

"A. Just on my back.

"Q. Okay. How old were you then?

"A. Eleven.

"Q. Okay. What did Danny say to you, if he said anything, after he kissed you?

"A. He said don't tell anyone, it's just our little secret."

K.P.'s testimony was emphasized at several points in the assistant prosecutor's argument to the jury:

"One of the questions I thought about was why didn't [C.] tell her mother about this earlier? I think you got that answer by [K.]. The same reason that [K.] didn't tell her folks, her brother or anybody about this, as defense counsel so kindly brought out, is because that man told these little girls not to tell people what he was doing to them. He denied it. Well, I didn't touch--I didn't touch any of those girls. I never did anything like this, he says. Then [K.] gets on the stand under oath and recounts an incident to you where not only did he teach her how to kiss, apparently he decided to teach [C.] how to do a little bit more than kiss. He wanted it to be our little secret. Let's not tell anybody. That shows you what the defendant was doing. It was up at the cottage, the same summer of '79, and she's an attractive little eleven year old girl. He says, hey, here's my chance. I'll kiss her in the closet. I'll teach her how to kiss and see what's going to happen next. Boy, I don't want anybody to know about this because I know I shouldn't be doing this kind of thing. I shouldn't be going after little eleven year old girls. I'm a forty year old man. I shouldn't be doing this kind of stuff. So, little girl, let's just keep this our little secret. Do you think [K.] was lying to you? Is she part of this vast conspiracy to convict this defendant? I don't think the evidence shows that. It shows a plan or scheme.

* * *

"Why would [C.] and her family lie? There has been no reason whatsoever from that witness stand; no reason whatsoever that [C.] and her family would lie about what happened. There's no reason [K.] would lie about what happened. The judge will tell you that you can only listen to evidence from the witness stand. Finally look at what the defendant's little...