People v. Layher

• Decision Date: 07 March 2000
• Docket Number: Docket No. 208502.
• Citation: 238 Mich. App. 573,607 N.W.2d 91
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Neto Alan LAYHER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

607 N.W.2d 91

238 Mich. App. 573

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Neto Alan LAYHER, Defendant-Appellant.

Docket No. 208502.

Court of Appeals of Michigan.

Submitted September 15, 1999, at Lansing.

Decided November 19, 1999, at 9:00 a.m.

Released for Publication March 7, 2000.

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

State Appellate Defender (by David A. Moran), for the defendant on appeal.

Before: TALBOT, P.J., and FITZGERALD and MARKEY, JJ.

TALBOT, P.J.

Following a jury trial, defendant was convicted of one count of first-degree criminal sexual conduct (CSC), M.C.L. § 750.520b(1)(b)(ii); MSA 28.788(2)(1)(b)(ii), and two counts of second-degree CSC, M.C.L. § 750.520c(1)(b)(ii); MSA 28.788(3)(1)(b)(ii). The trial court sentenced defendant to concurrent terms of twenty to forty years' imprisonment for the first-degree CSC conviction and eight to fifteen years' imprisonment for each second-degree CSC conviction. Defendant appeals as of right. We affirm.

I

Defendant first argues that the trial court erred in allowing the prosecutor to cross-examine a defense witness with evidence of a prior criminal charge for which he was acquitted, contrary to People v. Falkner, 389 Mich. 682, 209 N.W.2d 193 (1973). We disagree.

Complainant, who is learning disabled, testified that when she was fifteen years old, her uncle (defendant) fondled her on three separate occasions and digitally penetrated her once. Defense witness Robert Ganger, who was employed by defendant to investigate the allegations, testified that on the two occasions he spoke with complainant, she denied that defendant had either "touched [her] private parts" or "put his finger in [her] private parts."

Following direct examination, the prosecutor moved to question Ganger concerning the fact that he had been charged and acquitted of first-degree CSC against his daughter, then a child under the age of thirteen. The prosecutor argued that evidence that Ganger had been through the entire criminal process and ultimately acquitted of a charge similar to that for which defendant was on trial was admissible to show that he may have colored his investigation and testimony in defendant's favor. Over defense counsel's objection, the trial court permitted the prosecutor to cross-examine Ganger regarding the prior charge. The trial court reasoned that the prior charge was not being offered to impeach Ganger's credibility or to show his predisposition to commit CSC crimes. Instead, the trial court ruled that the evidence was being offered for the limited purpose of showing Ganger's potential bias toward defendant. In addressing the issue of bias, the trial court stated:

[The prosecutor] certainly could argue on the one hand that the witness would be biased because he is employed, I would assume, by you [defense counsel] and your client [defendant]. She could also and apparently seeks to do so, argue that as a result of him being accused and acquitted of a crime which he claims he did not do of a very similar nature, that he is therefore biased in the Defendant's favor and presumably would color his testimony to help the Defendant, another person who he may believe would be also wrongly accused of the same crime.

The prosecutor subsequently extracted testimony that Ganger had been charged, tried, and acquitted of first-degree CSC against his daughter and that he knew defendant had been charged with firstdegree CSC when he spoke to complainant and her aunt during his investigation.

In Falkner, the Supreme Court set forth a seemingly broad rule forbidding examinations concerning prior arrests and charges that did not result in conviction:

We hold that in the examination or cross-examination of any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in conviction; neither may such witness be examined with reference to higher original charges which have not resulted in conviction, whether by plea or trial. [Id. at 695, 209 N.W.2d 193.]

In People v. Bell, 74 Mich.App. 270, 284, 253 N.W.2d 726 (1977), this Court explained the rationale for the rule as follows:

[The Falkner Court] reasoned that since an individual may be charged or arrested for an offense of which he may never be tried, or tried and found not guilty, or the charge dismissed, the truth-seeking function of a trial and the protection of the individual would best be served if only convictions could be used for impeachment purposes. Convictions are specific and definite proof of past misconduct whereas charges or arrests are only inferences of misconduct.

Although the prohibition is phrased broadly, subsequent cases construing Falkner have limited its holding to instances where, as in Falkner, the prior arrests or charges are used for the purpose of "impeaching" a witness' credibility. See, e.g., People v. Yarbrough, 183 Mich.App. 163, 164-165, 454 N.W.2d 419 (1990); People v. Westbrook, 175 Mich.App. 435, 437, 438 N.W.2d 300 (1989); Scott v. Hurd-Corrigan Moving & Storage Co., Inc., 103 Mich.App. 322, 343, 302 N.W.2d 867 (1981); People v. Torrez, 90 Mich.App. 120, 124, 282 N.W.2d 252 (1979); People v. Harrington, 76 Mich. App. 118, 121, 256 N.W.2d 52 (1977); see also People v. Sanders, 394 Mich. 439, 440, 231 N.W.2d 639 (1975); People v. Rappuhn, 390 Mich. 266, 270-271, 212 N.W.2d 205 (1973). Consequently, this Court has recognized an exception to the ostensibly strict holding where "the prior arrest is not used to directly impeach the witness but to bring out the witness's bias or interest in the outcome of the case." People v. Hogan, 105 Mich.App. 473, 483, 307 N.W.2d 72 (1981); see also People v. Bostic, 110 Mich.App. 747, 750, 313 N.W.2d 98 (1981). We note that the cases applying the bias exception have involved situations where the prosecutor or defense sought to introduce pending charges or arrests not yet resulting in conviction.¹ However, where an unproven charge is offered not to impeach the witness, but to show the witness' bias or interest in the case, we find no compelling reason to distinguish between charges that have yet to be proved and those that the prosecution has either failed to prove or dismissed.

Our conclusion is consistent with federal and state authority emphasizing that the bias or interest of a witness is almost always relevant to the substantive issue of witness credibility. In United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984), the United States Supreme Court stated:

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 all evidence which might bear on the accuracy and truth of a witness' testimony.

Similarly, in addressing the constitutional right to confrontation, the Court explained:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to ... discredit [ ]the witness.... A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial and is "always relevant as discrediting the witness and affecting the weight of his testimony." [Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), quoting 3A Wigmore, Evidence (Chadbourn rev.), § 940, p. 775.]

See also People v. Morton, 213 Mich.App. 331, 334, 539 N.W.2d 771 (1995) (the bias or interest of a witness is always a relevant subject of inquiry on cross-examination); People v. Lester, 232 Mich.App. 262, 273, 591 N.W.2d 267 (1998); People v. Coleman, 210 Mich.App. 1, 8, 532 N.W.2d 885 (1995); and People v. Mumford, 183 Mich.App. 149, 152, 455 N.W.2d 51 (1990) (the credibility of a witness is an issue "of the utmost importance" in every case; evidence of a witness' bias or interest in a case is highly relevant to credibility); see also People v. Kelly, 231 Mich.App. 627, 644, 588 N.W.2d 480 (1998) ("[a] limitation on cross-examination that prevents a defendant from placing before the jury facts from which bias, prejudice, or lack of credibility of a prosecution witness might be inferred constitutes denial of the constitutional right of confrontation"); People v. Minor, 213 Mich.App. 682, 685, 541 N.W.2d 576 (1995) ("[a] witness' motivation for testifying is always of undeniable relevance and a defendant is entitled to have the jury consider any fact that may have influenced the witness' testimony"). Accordingly, we conclude that inquiry may be made on cross-examination regarding prior arrests or charges that did not result in conviction where the evidence is offered for the purpose of and is relevant to establishing a witness' bias or interest.

Unlike in Falkner and its progeny, the prosecutor in this case did not offer evidence that was completely unrelated to defendant or to the charges for which he was on trial to impeach Ganger's veracity.² Instead, the prosecutor's motion to question Ganger about the prior CSC charge came after the...