People v. Lukity, Docket No. 110737, Calendar No. 5.

Decision Date13 July 1999
Docket NumberDocket No. 110737, Calendar No. 5.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Chris Anthony LUKITY, Defendant-Appellee.
CourtMichigan Supreme Court

Frank J. Kelley, Prosecuting Attorney, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Robert John Berlin, Chief Appellate Lawyer, and Edward L. Graham, Assistant Prosecuting Attorney, Mount Clemens, for the people.

John D. Lazar, Royal Oak, for the defendant.



Defendant was convicted by a jury of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(b); MSA 28.788(2)(1)(b), committed against his fourteen-year-old daughter. He was sentenced to 25 to 50 years' imprisonment. The Court of Appeals reversed his conviction and remanded the matter for a new trial. Unpublished opinion per curiam, issued October 3, 1997 (Docket No. 179955). It held that defendant was denied the right to a fair trial on the basis of the cumulative effect of three errors: 1) prosecution witnesses improperly testified regarding complainant's character for truthfulness before complainant testified and before defendant attacked her character for truthfulness, 2) the prosecutor improperly introduced evidence relating to defendant's use of marijuana with his son, and 3) an expert witness improperly testified that complainant's behavior was consistent with that of a sexual abuse victim. We granted the prosecution's application for leave to appeal. 457 Mich. 864, 577 N.W.2d 695 (1998). We find error in the admission of evidence bolstering complainant's character for truthfulness before defendant attacked it, but conclude that this error was harmless. Further, we find no error in the admission of the other challenged evidence. We accordingly reverse the Court of Appeals decision and reinstate defendant's conviction.

Statement of Facts

At trial, complainant testified that defendant sexually assaulted her over forty times in a two-year period, including "[m]aybe two" times in May, 1992. (The charge at issue arises out of an alleged incident of sexual intercourse on or about May 1, 1992.) Complainant testified that she finally reported the sexual abuse to a teacher in May, 1993. She also testified that she attempted suicide following her report of the abuse.

Defendant's son testified that he observed his father engaging in inappropriate wrestling with his sister. He testified that defendant later "said that he was very sorry that he did this and that it was her [complainant] that said to do these things not him and that he just said he really screwed up and just kept saying he was sorry." Defendant's son also testified that defendant told him that complainant "had eyes like her mother's ...."

Defendant testified that he did not engage in sexual intercourse with complainant. He explained that his conversation with his son about being sorry did not relate to any sexual activity.

Standard of Review

At issue are three alleged errors regarding the admission of evidence. The decision whether to admit evidence is within the trial court's discretion; this Court only reverses such decisions where there is an abuse of discretion. People v. Starr, 457 Mich. 490, 494, 577 N.W.2d 673 (1998). However, decisions regarding the admission of evidence frequently involve preliminary questions of law, e.g., whether a rule of evidence or statute precludes admissibility of the evidence. This Court reviews questions of law de novo. People v. Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998). Accordingly, when such preliminary questions of law are at issue, it must be borne in mind that it is an abuse of discretion to admit evidence that is inadmissible as a matter of law.

I. Evidence Supporting Complainant's Character For Truthfulness

The first issue before us is whether the trial court abused its discretion in allowing the prosecution to introduce evidence supporting complainant's character for truthfulness before she had even testified. Specifically, the trial court allowed the prosecution to present the testimony of complainant's teacher, complainant's brother, complainant's mother and the investigating police officer regarding complainant's good character for truthfulness. Resolution of this issue requires a determination whether defense counsel's opening statement attacked her character for truthfulness.

MRE 608(a) states:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Where a defense counsel attacks a witness' character for truthfulness in an opening statement, the prosecution may present evidence that supports the witness' character for truthfulness on direct examination. United States v. Cruz, 805 F.2d 1464, 1479-1480 (C.A.11, 1986); United States v. Jones, 763 F.2d 518, 522 (C.A.2, 1985).

Here, in his opening statement, defense counsel stated that defendant's defense was that the charged incident "didn't happen." Specifically, defense counsel stated in pertinent part:

[T]here are only two people on the face of this Earth who [are] in a position to know what happened and there may be evidence from which you may come to the conclusion that one or both of them don't even know what happened. Because there is a potential for evidence that one of the witnesses that will be offering testimony has serious problems that may affect her ability to recount and describe.

The trial court found that this opening statement attacked complainant's credibility and accordingly overruled defendant's objection to evidence supporting complainant's character for truthfulness.

The trial court's ruling failed to note the distinction between credibility and character for truthfulness and the implications of this distinction. Credibility is defined as "[w]orthiness of belief; that quality in a witness which renders his evidence worthy of belief." Black's Law Dictionary (6th ed.), p. 366. Credibility may be attacked in numerous ways, e.g., demonstrating a witness' inability to perceive or remember the event at issue. Attacking a witness' character for truthfulness is one of the means by which a witness' credibility may be attacked. Thus, the two terms are not synonymous; rather, character for truthfulness is a specific aspect of credibility. MRE 608(a) states that "credibility" may be attacked or supported by opinion or reputation evidence, subject to two limitations: 1) that the evidence refer only to "character for truthfulness" and 2) that evidence supporting a witness'" character for truthfulness" is only admissible after the witness' "character for truthfulness" has been attacked.

Here, defense counsel did not accuse complainant of intentionally lying, but he asserted that she had emotional problems that affected her ability to recount and describe and that the charged incident, which she was expected to describe, did not happen. These assertions indicated that her testimony would not be worthy of belief. Accordingly, defense counsel's opening statement did attack her credibility. But it did not attack her character for truthfulness, i.e., it did not suggest that she was lying. An attack on a witness' credibility, like the one at issue, that is not an attack on the witness' character for truthfulness does not trigger MRE 608(a)(2). In the absence of an attack on complainant's character for truthfulness, the prosecution was not entitled, under MRE 608(a), to support her character for truthfulness. Further, we note that evidence of complainant's character for truthfulness is simply unresponsive to defendant's contention that complainant suffered emotional problems that affected her ability to recount and describe—the contention the bolstering evidence was allegedly admitted to rebut. Because the evidence bolstering complainant's character for truthfulness was inadmissible as a matter of law under MRE 608(a) when her character for truthfulness had not been attacked, the trial court abused its discretion in allowing the prosecution to introduce such evidence.

Having concluded that the trial court erred in admitting this evidence, we must next determine whether this error requires reversal of defendant's conviction. In People v. Mateo, 453 Mich. 203, 212, 551 N.W.2d 891 (1996), this Court held:

In Michigan, the harmless-error rule is primarily embodied in statute [MCL 769.26; MSA 28.1096], with additional statements of the doctrine in our court rule [MCR 2.613(A) ] and evidentiary rule [MRE 103].

Section 26 provides in pertinent part:

No judgment or verdict shall be ... reversed ... in any criminal case, on the ground of ... the improper admission... of evidence, ... unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.

The Mateo Court held at 206, 551 N.W.2d 891:

Under our statute, as under federal law, a reviewing court is not to find nonconstitutional preserved error harmless simply because it concludes the jury reached the right result. Disregarding errors that do not affect substantial rights, the reviewing court is to examine the record as a whole and the actual prejudicial effect of the error on the factfinder in the case at hand. Where the error asserted is the erroneous admission of evidence, the court engages in a comparative analysis of the likely effect of the error in light of the other evidence. [Citations omitted.]

It explained, at 215, 551 N.W.2d 891:

Simply stated, ... reversal is only required if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its

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