People v. Mikula
| Decision Date | 20 April 1978 |
| Docket Number | Docket No. 77-803 |
| Citation | 269 N.W.2d 195,84 Mich.App. 108 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vence MIKULA, a/k/a Vincent Michael Mikula, Defendant-Appellant. 84 Mich.App. 108, 269 N.W.2d 195 |
| Court | Court of Appeal of Michigan — District of US |
[84 MICHAPP 110] Robert J. Beuerle, Traverse City, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John D. Foresman, Pros. Atty., Thomas C. Nelson, Asst. Atty. Gen., Pros. Attys. Appellate Service, for plaintiff-appellee.
Before WALSH, P. J., and MAHER and BEASLEY, JJ.
Defendant was charged with first-degree criminal sexual conduct. M.C.L. § 750.520b(1)(a); M.S.A. § 28.788(2)(1)(a). He was tried by [84 MICHAPP 111] a jury and convicted of second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(a); M.S.A. § 28.788(3)(1)(a). He was sentenced to 5 to 15 years imprisonment and now appeals. The following issues are presented for our consideration: 1
(1) Did the criminal sexual conduct act, M.C.L. § 750.520j(1)(b); M.S.A. § 28.788(10)(1)(b) prohibit admission of evidence of the complainant's prior sexual conduct with third persons where that evidence was offered to explain the origin of the condition of the complainant's hymen and vaginal opening?
(2) Did the aforementioned statute preclude admission of prior false accusations of sexual assault made by the complainant?
(3) Did the trial court err in admitting hearsay testimony regarding the content of the complaining witness's complaint?
(4) Did the trial court err in permitting a medical expert to testify concerning the results of a gynecological examination of the complainant that was conducted six months after the alleged incident.
In a pretrial motion defense counsel stated that a police report contained an allegation that the complainant had been involved in a sexual incident with a 14-year-old boy some months prior to the alleged incident with the defendant. 2 Counsel moved the court to order discovery of the details of the prior incident and to admit whatever evidence [84 MICHAPP 112] was obtained arguing that it would be relevant for one of two purposes:
(1) If the prior incident involved sexual penetration of the complainant, it would provide an alternative explanation for her physical condition; or
(2) If the incident did not occur, the complainant's false accusation would be important impeachment evidence.
The trial court denied the motion ruling that M.C.L. § 750.520j(1)(b); M.S.A. § 28.788(10)(1)(b) prohibited the introduction of such evidence.
At trial, over timely objection, two prosecution witnesses were permitted to relate the details of the alleged assault as told to them by the complainant six months after the alleged incident. Neither witness was the first person to whom the complainant had related the incident. 3
The prosecution also introduced expert medical testimony concerning the condition of the complainant's genital area. The testimony was based upon an examination conducted approximately six months after the alleged incident. The doctor testified that the complainant did not have an intact hymenal ring and that her vaginal opening was unusually open for a child of her age. In his opinion, the findings were "entirely consistent although certainly not diagnostic of" attempted or partial penetration by an adult penis. 4 Defendant [84 MICHAPP 113] unsuccessfully objected to the testimony on the ground that no connection had been shown between the complainant's condition and the alleged incident.
We address the issues in the order recited above.
The statutory provision under consideration reads in pertinent part as follows:
"Sec. 520j. (1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease." M.C.L. § 750.520j(1)(b); M.S.A. § 28.788(10)(1)(b).
Defendant argues that the intent of this provision is to permit an accused to introduce specific instances of the complainant's sexual activity to show the origin of a physical condition offered as circumstantial evidence of defendant's guilt. 5 The prosecution contends that the specific physical condition here involved is not included in the [84 MICHAPP 114] statute and the proffered evidence was, therefore, properly excluded. We are persuaded that the defendant's interpretation of the statute is correct.
It is well settled that where the prosecution substantiates its case by demonstrating a physical condition of the complainant from which the jury might infer the occurrence of a sexual act, the defendant must be permitted to meet that evidence with proof of the complainant's prior sexual activity tending to show that another person might have been responsible for her condition. People v. Hunter, 374 Mich. 129, 132 N.W.2d 95 (1965), People v. Russell, 241 Mich. 125, 216 N.W. 441 (1927), People v. Keller, 227 Mich. 520, 198 N.W. 939 (1924), People v. Werner, 221 Mich. 123, 190 N.W. 652 (1922). 6 The question in this case is whether the Legislature intended to retain that rule only for the conditions expressly included in the statute to the exclusion of other physical conditions. We think not. We are persuaded that there is no rational distinction between the evidence expressly allowed under the statute and that offered in this case.
Certainly proof of the origin of the condition found in this case has no more potential for harassment of a complainant than proof of the origin of one of the conditions expressly included in the statute. Moreover, the prosecution offered the evidence of the condition found in this case for the same purpose for which evidence of a condition included in the statute would be introduced, I. e. to prove the guilt of the accused. The introduction of evidence of the origin of the condition to rebut the inference of guilt is equally important to the defense whether the condition be one of those included[84 MICHAPP 115] in the statute or another condition similarly probative of one of the elements of the crime.
We conclude, therefore, that the Legislature intended that evidence of specific instances of sexual activity is admissible to show the origin of a physical condition when evidence of that condition is offered by the prosecution to prove one of the elements of the crime charged provided the inflammatory or prejudicial nature of the rebuttal evidence does not outweigh its probative value.
The trial court's order denying the discovery motion necessarily implied that the aforementioned statute also precluded introducing impeachment evidence of prior false accusations by the complainant. We address this issue separately because such evidence is admissible for reasons distinct from those discussed in the preceding issue.
In a prosecution for a sexual offense, the defendant may cross-examine the complainant regarding prior false accusations of a similar nature and, if she denies making them, submit proof of such charges. People v. Werner, 221 Mich. 123, 190 N.W. 652 (1922), People v. Wilson, 170 Mich. 669, 137 N.W. 92 (1912), People v. Evans, 72 Mich. 367, 40 N.W. 473 (1888). In a case such as the one before us, where the verdict necessarily turned on the credibility of the complainant, it is imperative that the defendant be given an opportunity to place before the jury evidence so fundamentally affecting the complainant's credibility.
We emphasize that the complainant is not to be put on trial for any prior sexual activity. The evidence here discussed seeks to impeach her not because she is shown to be unchaste but because [84 MICHAPP 116] she has lied concerning similar charges in the past. See People v. Wilson, supra, 170 Mich. at 673-74, 137 N.W. 92.
Hearsay testimony concerning the details of a complaint of sexual assault is admissible where the complainant is of "tender years" if her statement is shown to have been spontaneous and without indication of manufacture, and if any delay in making the complaint is excusable insofar as it is caused by fear or other equally effective circumstances. People v. Baker, 251 Mich. 322, 232 N.W. 381 (1930), People v. Taylor, 66...
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...or semen found in the post-rape medical tests. See United States v. Kasto, 584 F.2d 268, 271 n. 2 (8th Cir.1978); People v. Mikula, 84 Mich.App. 108, 269 N.W.2d 195, 198 (1978); State v. Cosden, 18 Wash.App. 213, 568 P.2d 802, 806 (1977); McLean v. United States, 377 A.2d 74, 78 (D.C.App.19......
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