People v. Ivers

• Court: Michigan Supreme Court
• Writing for the Court: MICHAEL F. CAVANAGH; MALLETT, C.J., and BRICKLEY and TAYLOR, JJ., concurred with MICHAEL F. CAVANAGH; BOYLE; WEAVER and MARILYN J. KELLY, JJ., concurred with BOYLE
• Citation: People v. Ivers, 587 N.W.2d 10, 459 Mich. 320 (Mich. 1998)
• Decision Date: 28 December 1998
• Docket Number: Docket No. 111177,No. 14,14
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Patrick IVERS, Defendant-Appellee. Calendar

Page 10

587 N.W.2d 10

459 Mich. 320

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Patrick IVERS, Defendant-Appellee.

Docket No. 111177.

Calendar No. 14.

Supreme Court of Michigan.

Argued Dec. 10, 1998.

Decided Dec. 28, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Stuart J. Dunnings, III, Prosecuting Attorney, and Samuel R. Smith, Assistant Prosecuting Attorney, Lansing, MI, for the people.

State Appellate Defender (by Fred E. Bell ), Lansing, MI for the defendant-appellee.

Elwood Brown, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, MI, amicus curiae for Prosecuting Attorneys Association of Michigan.

MICHAEL F. CAVANAGH, J.

The defendant was convicted of third-degree criminal sexual conduct. ¹ However, the Court of Appeals reversed, finding that the trial court erred in prohibiting testimony about statements made by the complainant to a friend earlier in the day of the alleged rape. We agree with the Court of Appeals that the proposed testimony was not excludable under the rape-shield statute, M.C.L. § 750.520j; MSA 28.788(10), and was otherwise relevant.

I

It is undisputed that the defendant engaged in sexual penetration with complainant Allison Campbell at the defendant's apartment on the Michigan State University campus in the early morning hours of August 24, 1994. The issue at trial was whether the complainant consented.

The complainant testified that on the day in question she was visiting Michigan State University to determine whether she would attend college there. She visited a high school friend, Mary Rachel Stevens, at Stevens' dormitory room, where she later met the defendant, an acquaintance of Ms. Stevens. They and another person went to defendant's apartment, where beer was consumed, and later were part of a group that went to a party at another location, where the complainant consumed additional alcohol. Defendant, complainant, Ms. Stevens, and another friend left the party. The complainant testified that she could not remember anything between the time that she was walking toward the defendant's apartment until she became conscious of the fact that the defendant was on top of her with his penis in her vagina, at which point she told him to stop and cried.

The prosecution's theory was that the defendant raped the complainant and caused personal injury to her and knew or had reason to know that she was physically incapacitated due to the consumption of alcohol. Defendant was charged with first-degree criminal sexual conduct. ²

As noted, the defense was consent. The defendant testified that he and Ms. Campbell had kissed several times as they walked from the party to his apartment. When they reached the apartment, they continued kissing as they sat in a chair. He asked her if she wanted to go to the bedroom, to which she replied, "Yes." He testified that they each removed their clothes and got on the bed and had intercourse. At that time the complainant appeared to be laughing. Defendant asked, "What's so funny?" and realized that she was crying.

While there was some evidence to corroborate both defendant's and complainant's versions of the events, their testimony was the critical evidence on the central issue of consent.

II

The issue presently before us concerns the defense efforts to introduce testimony from Ms. Stevens about statements made by complainant. At the preliminary examination, Stevens had testified about a conversation she had with the complainant before they went out that night:

Q. Okay. All right. Before you and Allison went out that night, did you have a conversation with her regarding having sex?

A. Yes.

Q. Please tell us what she said and what you said?

Mr. Adams [prosecutor ]: Objection on hearsay and rape shield. Unless it has to do with sex with the Defendant.

The Court: I'll take the answer then I'll just disregard it if [it] doesn't fall within the ...

The Witness: We had talked about having sex and she had told me that she had talked to her mom about being on the pill and that she knew she was going to college and that she--that she was ready to have sex and she knew that it would probably happen her freshman year at college.[ ³

At trial, the prosecutor moved in limine to exclude the testimony of the conversation between complainant and Ms. Stevens. The circuit judge made a record of the testimony, eliciting comparable testimony from Ms. Stevens. ⁴ The trial judge ruled that the testimony would not be allowed under the rape shield statute:

I believe it's absolutely irrelevant and immaterial whether a young woman says that she's ready to have sex or not in the context of the conversation that has been reported to this Court. It means no more than a similar statement or similar action by a young man who may have purchased and carries with him a condom. This type of testimony is absolutely inadmissible under [MCL] 750.520j [MSA 28.788(10) ], which limits admissibility to prior sexual conduct in instances where there has been a prior relationship between the accused and the alleged victim. If this is brought forth as an issue of credibility, it is more prejudicial than it is probative since there are several other conflicts in the testimony of Miss Campbell and other witnesses of which this Court is already aware.

For example, the question of how she came to have bruises on her legs and arms and her neck, where I believe one of the witnesses will testify that he fell on her; and whether or not she was unconscious in bed.

For those reasons, the People's motion in limine to prohibit the testimony both of Mary Rachel Stevens on this topic and the alleged victim is prohibited. Excuse me, the testimony is prohibited. The motion is granted.

Thereafter, defense counsel made reference to Ms. Stevens' testimony that the complainant had asked her to "get her a guy" that night, and requested to be able to ask about that. The prosecutor said that no such testimony had yet been elicited, ⁵ but that if it were forthcoming the same objection would be made, and that the complainant would deny having made such a request. Defense counsel argued that the testimony would not be covered under the rape shield statute, but the prosecutor disagreed, and the trial judge excluded the evidence:

Ms. Vander Voord [prosecutor ]: The term "get me a guy" to most people means get me a guy for something other than just hello, how are you, Your Honor. The inference to the jury is certainly that "get me a guy" means get me a guy to have sex with, and I think that's a common, everyday connotation of those words. If I asked Your Honor to get me a guy, I would expect that you'd know what I mean. I don't mean, gee, Judge, I want to have a nice conversation with one of your male friends.

I think it's the wrong connotation to present for this jury. Number one, it would be covered under the same rape-shield law and, number two, the victim denies ever asking Mary Rachel to, quote, "get her a guy."

The Court: I'm going to prohibit this as well. On cross-examination the Prosecutor asked Mary Rachel Stevens whether there was any other conversation about sex that night. Mary Rachel Stevens says there was not. I disagree with the Prosecutor. I don't think saying "get me a guy" necessarily means I want sex, or go get me some guy so I can have a sexual liaison tonight. I think it can be equally interpreted that I don't want to be the fifth wheel if we're going out tonight. I don't want to be the only person there without a date. So, I will grant the motion.

At the conclusion of the trial the jury found the defendant guilty of the lesser offense of third-degree criminal sexual conduct. The judge sentenced the defendant to two to fifteen years in prison.

III

On appeal, the Court of Appeals reversed on the basis of the exclusion of Ms. Stevens' testimony. ⁶ The majority found the rape shield statute ⁷ inapplicable:

The proffered testimony did not concern the complainant's past sexual conduct, opinions about her sexual conduct or her reputation regarding sexual conduct. Accordingly, it was not precluded by the rape-shield statute. It concerned statements made by the complainant to her friend showing that she had discussed birth control with her mother in anticipation of going away to college, that she believed that she was "ready" for sex, and that she asked her friend to "find her a guy." [op at 12.]

The Court of Appeals found the evidence relevant, even though it was somewhat removed in time from the alleged assault:

Although the statements in this case were somewhat removed from defendant's alleged act of sexual aggression, we conclude that the statements were "incident" to the alleged sexual conduct because they were made on the evening of the alleged assault and evidenced a state of mind that the complainant may have been contemplating having sex that evening. See [People v. Adair, 452 Mich. 473, 481, 550 N.W.2d 505 (1996).] We note that these statements are by no means proof that the complainant was "ready" for sex on the night in question or that "getting a guy" meant that she wanted to have sex that night. However, the testimony was relevant in that it had a tendency to make the existence of a fact which was of consequence, i.e., consent, more probable than it would have been without the evidence. MRE 401. [Id.][[ ⁸

IV

The prosecutor would have us believe that the Court of Appeals erred in distinguishing between "conduct" and "statements" in analyzing the proposed testimony under the rape shield statute. In a prosecutor's view, "speaking," "discussing," and "conversing" are all forms of conduct. The case law is replete with examples of "conduct" that have verbal aspects. Further, the prosecutor urges that the policies underlying the rape shield statute are applicable to the kinds of statements in question here. Conversations with sexual content carry an...