People v. Layher

Decision Date17 July 2001
Docket NumberDocket No. 116315, Calendar No. 6.
Citation464 Mich. 756,631 N.W.2d 281
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Neto Alan LAYHER, Defendant-Appellant.
CourtMichigan Supreme Court

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Lenore M. Ferber, Assistant Prosecuting Attorney, Ann Arbor, for the people.

State Appellate Defender (by Peter Jon Van Hoek), Detroit, for the defendant-appellant.

Opinion

WEAVER, J.

Defendant appeals the judgment of the Court of Appeals affirming his conviction for one count of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(b)(ii), and two counts of second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(b)(ii).1 We granted leave limited to whether the trial court erred so as to require reversal in allowing the prosecutor to cross-examine a defense witness concerning a prior charge for which he was acquitted.

We conclude that the overly broad holding of People v. Falkner, 389 Mich. 682, 695, 209 N.W.2d 193 (1973), which states "no inquiry may be made regarding prior arrests or charges against" a witness that did not result in a conviction, is inconsistent with precedent and with the approach to the admission of evidence that we have followed since the adoption of the Michigan Rules of Evidence.2 We hold, consistent with existing precedent and the Michigan Rules of Evidence, that a trial court may allow inquiry into prior arrests or charges for the purpose of establishing witness bias where, in its sound discretion, the trial court determines that the admission of evidence is consistent with the safeguards of the Michigan Rules of Evidence.

We conclude that evidence of the witness' prior arrest without conviction to show the witness' bias was admissible under MRE 402 and MRE 403. The judgment of the Court of Appeals is affirmed and the defendant's conviction is upheld.

I

Defendant, Neto Layher, was convicted by jury over his general denial of three counts of criminal sexual conduct involving his minor niece, the complainant. During trial, all witnesses were sequestered.

In the summer of 1996, complainant was fifteen and staying with her grandmother, defendant's mother. Complainant, who is mentally slow, testified at trial that three incidents occurred sometime before July 5, 1996. During the first incident, defendant rubbed complainant's breasts and genitals, first over and then under her clothes, while she was sleeping in her grandmother's bedroom. Complainant testified that she did not tell anyone because she was scared. The second incident happened when she was sleeping on the floor in her grandmother's room while her grandmother and complainant's sibling slept in the be nearby. Defendant woke her by touching her over her clothes in the same manner as before. He left the room and then returned again, this time touching her under her clothes as before. Defendant asked her if she would tell. Again, she testified that she said she would not because she was scared. The third incident occurred when complainant was lying on her grandmother's bed. No one else was in the room. She testified that defendant gave her five dollars because she was not going to tell and then took the money back. Defendant again began rubbing complainant under her clothes. During this incident, complainant testified that defendant penetrated her vagina with his finger.

Complainant and her siblings had, throughout their lives, been moved from the home of one family member to the next. As a result, none of the witnesses were able to testify with specificity regarding when the children were at one home or another. For example, complainant's grandmother testified that the children were not with her at the beginning of the summer of 1996, but, rather, were with her at the end of the summer. The grandmother's testimony was inconsistent with that of all the other witnesses.

Sometime after the incidents described above, complainant and her two siblings went to live with Karen Byrd, the girlfriend of another uncle. Complainant and Ms. Byrd testified that complainant told Ms. Byrd of the incidents. Ms. Byrd then contacted the authorities. Soon after the authorities became involved, complainant and her siblings were moved from Ms. Byrd's home to the home of Christine (Layher) Walton, an aunt.

While the children were staying with Ms. Walton, Robert (Bob) Ganger, who was working for defense counsel, was sent by defense counsel to investigate the case. Mr. Ganger testified that he was sent in response to a call defense counsel received saying that Ms. Walton and complainant wanted to talk to an attorney. It was not specified who made that call. Mr. Ganger first visited with Ms. Walton and then with Ms. Walton and complainant on two additional visits. Mr. Ganger became the lead defense witness as a result of these conversations.

As a result of the conflict in testimony between Mr. Ganger and complainant, the prosecution sought to introduce the fact that Mr. Ganger had been tried and acquitted on the charge of criminal sexual conduct involving a child under the age of thirteen. The prosecution reasoned:

My position is that is certainly relevant in this case to show bias. Bias is very important for the jury to hear. And this particular charge ... is necessary for the jury to hear about because of this particular case and the fact that Neto Layher is charged with a criminal sexual conduct.
I certainly think that that shows bias that he's going to try to assist another person who has been charged with the same thing he's been charged with, and obviously I would believe he would think wrongly accused of.

The trial court allowed the cross-examination to proceed. The Court of Appeals affirmed3 the trial court's ruling on this evidentiary matter. We granted leave to appeal, limited to whether the trial court abused its discretion by allowing introduction of this evidence of Mr. Ganger's prior arrest and acquittal.

II
A

We review evidentiary decisions for abuse of discretion. People v. Starr, 457 Mich. 490, 494, 577 N.W.2d 673 (1998); People v. Bahoda, 448 Mich. 261, 289, 531 N.W.2d 659 (1995). The trial court's decision on close evidentiary questions cannot "by definition" be an abuse of discretion. People v. Golochowicz, 413 Mich. 298, 322, 319 N.W.2d 518 (1982). However, where decisions regarding the admission of evidence involve preliminary questions of law such as whether a rule of evidence or statute precludes admissibility, our review is de novo. People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999).

Logical relevance is the foundation for admissibility. People v. VanderVliet, 444 Mich. 52, 60, 508 N.W.2d 114 (1993). Logical relevance is defined by MRE 402 and MRE 401. MRE 402 provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible.

As defined by MRE 401, "relevant evidence" is evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

B

The prosecutor introduced evidence of Mr. Ganger's past arrest and acquittal of criminal sexual conduct involving a child less than thirteen to create an inference of bias on the part of Mr. Ganger in favor of defendant. Bias is a common-law evidentiary term used "to describe the relationship between a party and a witness ... in favor of or against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest." United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984).

In Abel, the United States Supreme Court addressed the issue of bias in the context of the Federal Rules of Evidence (on which the MRE are modeled). The defendant and a defense witness in that case belonged to the Aryan Brotherhood, a secret prison gang that encouraged members to commit perjury, theft, and murder to protect each other. The Abel Court concluded that evidence showing a witness' membership in the gang was sufficiently probative of bias to warrant its admission. The Court first noted that the FRE govern the admissibility of such evidence, but that, while the rules address impeachment of a witness by character evidence and conduct (FRE 608), by evidence of a criminal conviction (FRE 609), and by showing of religious beliefs or opinion (FRE 610), they do not expressly address impeachment for bias. Id. at 49, 105 S.Ct. 465. The Court concluded that possible bias of a witness is a permissible basis of impeachment under the FRE despite the omission of any express treatment of impeachment for bias. After reiterating the nature and admissibility of relevant evidence under FRE 401 and FRE 402, the Court stated at p. 51:

A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony.

* * *

We think the lesson to be drawn from all of this is that it is permissible to impeach a witness by showing his bias under the Federal Rules of Evidence just as it was permissible to do so before their adoption....

The Court explained the meaning of "bias" as follows:

Bias is a term used in the "common law of evidence" to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess
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