People v. Justice

• Decision Date: 20 January 1993
• Docket Number: No. 116125,No. 94834,94834,116125
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, Cross- Appellee, v. Anderson Junior JUSTICE, Defendant-Appellee, Cross-Appellant. COA
• Court: Michigan Supreme Court

Page 376

495 N.W.2d 376

441 Mich. 916

PEOPLE of the State of Michigan, Plaintiff-Appellant, Cross- Appellee, v. Anderson Junior JUSTICE, Defendant-Appellee, Cross-Appellant.

No. 94834.

COA No. 116125.

Supreme Court of Michigan.

Jan. 20, 1993.

ORDER

On order of the Court, the application for leave to appeal is considered, and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE the judgment of the Recorder's Court for the City of Detroit. As the Court of Appeals noted, the evidence of prior sexual activities was probative of an issue involved in this case. People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973). In the circumstances of this case, the trial court did not abuse its discretion in determining that the probative value of the evidence was not outweighed by the danger of unfair prejudice. The application for leave to appeal as cross-appellant is also considered, and it is DENIED.

LEVIN, J., dissents from entry of the order of peremptory reversal of the Court of Appeals, and states as follows:

I would deny or grant leave to appeal.

I

I agree with the majority that "evidence of prior sexual activities was probative of an issue involved in this case" and was admissible pursuant to People v. DerMartzex, 390 Mich. 410, 414-415, 213 N.W.2d 97 (1973), where this Court said:

"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. In this case, the defendant did not ask the judge to exercise this discretion." (Emphasis deleted.)

II

The defendant was charged in two files with first-degree criminal sexual conduct. One alleged that he had sexual intercourse with his daughter between May 17, 1986, and July 12, 1986. The other alleged that he had sexual intercourse with her on June 20, 1987. The 1986 case was tried first and resulted in a jury verdict of acquittal. The defendant was then tried in the 1987 case. The daughter claimed that from shortly after she turned fourteen years old, in early 1985, through about a month before she had a baby, her father had had sex with her every day or every other day. She said that June 20, 1987, was the first time her father had sex with her after the birth of the child. The people introduced at both trials blood test evidence suggesting the likelihood that the defendant was the father of the child.

III

For the reasons set forth in DerMartzex, the trial judge correctly ruled admissible the evidence tending to show that the defendant had had sex on many prior occasions with his daughter in 1986. Without such evidence, "the testimony of the victim concerning the seemingly isolated" June 20, 1987, act might well have appeared "incredible." 390 Mich. at 415, 213 N.W.2d 97.

The policy and purpose of the DerMartzex exception to "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," DerMartzex, p. 413, 213 N.W.2d 97, does not justify admission of evidence tending to show that the defendant was the father of his daughter's child.

It appears that the Court of Appeals did not err in ruling, in light of the admission of testimony that the defendant had had sex with his daughter over a long period of time, that the probative value of the additional evidence, that tended to show the defendant was the father of his daughter's child, was outweighed by the risks of unfair prejudice, confusion of issues, or misleading the jury.

IV

I adhere to the view that peremptory reversal should be reserved for cases in which the law is settled and no factual assessment is required. ¹ In the instant case, as indicated in the peremptory order, factual and legal assessment is required. Peremptory disposition is not appropriate.

V

Further, this Court's peremptory disposition does not comply with the requirements of Const.1963, art. 6, Sec. 6, which requires that "[d]ecisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision...."

The order of peremptory reversal of the Court of Appeals does not contain a statement of facts or an adequate statement of reasons for decision.

The statement in this Court's order that "[i]n the circumstances of this case [which are not set forth in the order], the trial court did not abuse its discretion in determining that the probative value of the evidence was not outweighed by the danger of unfair...