People v. Morse

• Citation: 586 N.W.2d 555,231 Mich.App. 424
• Decision Date: 28 August 1998
• Docket Number: Docket No. 204213
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen Keith MORSE, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 555

586 N.W.2d 555

231 Mich.App. 424

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen Keith MORSE, Defendant-Appellant.

Docket No. 204213.

Court of Appeals of Michigan.

Submitted Feb. 4, 1998, at Detroit.

Decided Aug. 28, 1998, at 9:10 a.m.

Released for Publication Dec. 10, 1998.

[231 Mich.App. 425] James D. A. Buttrey, Howell, for the defendant.

Before SAAD, P.J., and WAHLS and GAGE, JJ.

SAAD, P.J.

I NATURE OF THE CASE

Charged with seven counts of first-degree criminal sexual conduct ¹ and two counts of second-degree criminal sexual conduct ² against his former wife's two daughters, defendant vehemently denies these charges and contends that the complainants have motive to lie. Defendant appeals the trial court's denial of his pretrial request to introduce evidence that Mr. Wiltse, who lived with the complainants' mother, sexually abused the girls three years before defendant's alleged offenses. Wiltse pleaded guilty to sexual abuse charges and is now serving a prison sentence. Defendant contends that complainants' allegations against him are "highly similar" in nature to Wiltse's previous sexual abuse. Defendant says that if the jury is not allowed to learn of the Wiltse offenses against complainants, then the jury will inevitably conclude that the complainants' highly age-inappropriate sexual knowledge could only come from defendant having committed such acts.

The trial court ruled that the proffered evidence must be excluded under Michigan's rape-shield statute, M.C.L. § 750.520j; MSA 28.788(10), which precludes evidence of prior sexual conduct of the victim. Defendant argues that the rape-shield law is intended to prevent a rape trial from becoming a trial of a victim's morality and sexuality, and thus has no relevance to this case, where defendant seeks only to show that nonconsensual sexual acts are the real source of the two girls' age-inappropriate knowledge. Defendant also avers that the girls disliked and

successfully got rid of Mr. Wiltse by using these similar allegations and that they similarly dislike and want to get rid of him. Thus, according to defendant, the girls' unusual knowledge of sex and their motive will be made clear only if the jury is told about the earlier sexual abuse. Accordingly, defendant asks this court to reverse the trial court's ruling that the rape-shield statute precludes admission of this evidence.

II FACTS AND PROCEEDINGS

During the preliminary examination, eight-year-old E.A.P. ³ testified that she lived with her grandmother, but that earlier in the year she had lived in two motels with her mother, sister, brother, and defendant, and that

[defendant] ... lifted up my ... nightgown and stuck his hand down my underwear.... He put his finger in my private.... I was sleeping on the ground and he ... asked me to get in bed with him.... [W]hen I went to face [my sister and brother], he stuck his private into my butt.... It was around like four times.... He said if I ever told anybody then he would beat my butt.

The other complainant, C.L.P., testified that she was nine years old and gave the same account of her and her sister's past and present living arrangements, adding that one of the periods in a motel included the Easter holiday. She testified that "[defendant] likes to tickle me and he put his hand down my underwear and tickled me, but he tickled my private too.... He'd just touch it." She also testified that "Saturday morning.... with my nightgown on, [defendant] stuck his thing-a-ma-jig in my butt."

The people charged defendant with three counts of first-degree criminal sexual conduct (finger penetration of vagina/anus) and three counts of first-degree criminal sexual conduct (finger penetration of vagina), regarding E.A.P., and with one count of first-degree criminal sexual conduct (penile penetration of vagina/anus) and two counts of second-degree criminal sexual conduct, regarding C.L.P.

Defendant maintains (1) the acts did not occur and (2) the details provided by the girls are false and are instead the product of sexual assaults perpetrated by one Bradley Wiltse, some three years earlier. According to defendant, Wiltse pleaded guilty of molesting E.A.P. and was accused of doing the same to C.L.P., and the sexual assaults alleged here are highly similar to the acts that occurred with Wiltse. ⁴ Defendant contends that exclusion of this evidence would violate his Sixth Amendment right to confrontation as well as his right to present a defense.

In denying defendant's motion in limine, the trial court found that this evidence should be excluded under the rape-shield statute, M.C.L. § 750.520j; MSA 28.788(10). Because both parties requested a stay if the trial court ruled against them, the trial court stayed proceedings to permit this appeal.

This Court initially denied defendant's interlocutory application for leave to appeal on February 13, 1997. Defendant then sought leave to appeal to the Supreme Court, which remanded the case to this Court for our consideration as on leave granted. 455 Mich. 852, 567 N.W.2d 242 (1997).

III ANALYSIS

Michigan's rape-shield statute, M.C.L. § 750.520j; MSA 28.788(10), provides as follows:

(1) Evidence of specific instances 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:

(a) Evidence of the victim's past sexual conduct with the actor.

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

(2) If the defendant proposes to offer evidence described in subsection (1)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may offer an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (1)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).

This statute, and its parallel provision in MRE 404(a)(3), ⁵ constitutes a legislative policy determination that sexual conduct or reputation regarding sexual conduct as evidence of character and for impeachment, while perhaps logically relevant, is not legally relevant. People v. Hackett, 421 Mich. 338, 346, 365 N.W.2d 120 (1984), citing McCormick, Evidence (1st ed), § 155. Indeed, as we stated in People v. Powell, 201 Mich.App. 516, 519, 506 N.W.2d 894 (1993):

Enactment of the Michigan rape-shield statute reflected the Legislature's determination that, in the overwhelming majority of prosecutions, evidence of a rape victim's sexual conduct with parties other than the defendant, as well as the victim's sexual reputation, is neither an accurate measure of the victim's veracity nor determinative of the likelihood of consensual sexual relations with the defendant.

In Michigan, as in our sister states, rape-shield statutes are typically invoked where the victim is an adult. However, our courts and others have ruled on the applicability of rape-shield statutes in cases of child sexual abuse. ⁶ For example, in People v. Arenda, 416 Mich. 1, 6, 330 N.W.2d 814 (1982), the people charged defendant with first-degree criminal sexual conduct involving his eight-year-old son. The prosecutor filed a motion in limine to preclude evidence of sexual conduct between the boy and any person other than defendant, although the prosecutor acknowledged that he had no knowledge of such conduct. Id. The defendant opposed the motion, because in light of the boy's young age and his detailed description of events, defendant wanted the right to introduce evidence, if he found any, of the complainant's sexual conduct with others. Id.

The trial court in Arenda excluded the evidence on the basis of the rape-shield statute, and the Supreme Court upheld this ruling. However, the Supreme Court recognized that such evidence could be admissible in certain circumstances:

In most cases, the relevancy, if any, of such evidence will be minimal.

* * * * * *

... [T]he only cases in which such evidence can arguably have more than a de minimis probative value are ones involving young or apparently inexperienced victims. These children and others are the ones who are most likely to be adversely affected by unwarranted and unreasonable cross-examination into these areas. They are among the persons whom the statute was designed to protect. [Id. at 12-13, 330 N.W.2d 814 (emphasis added).]

Importantly, the Arenda Court made numerous references that the defendant's argument was purely theoretical; he had no proof that the boy actually had any other source of sexual knowledge. Id. at 6, 12, 14, 330 N.W.2d 814. Thus, as the Court itself noted, on the record presented there, the defendant was not denied the right of confrontation. Id. at 14, 330 N.W.2d 814. As later noted in Hackett, supra at 346, 365 N.W.2d 120, the Arenda Court "left for future case-by-case determinations the question whether under different sets of facts the rape-shield statute's prohibitions would be unconstitutional as applied."

In Hackett, our Supreme Court again addressed challenges to the constitutionality of the rape-shield statute as applied to child sexual abuse cases and "further explicate[d]" its decision in Arenda. Id. at 346, 365 N.W.2d 120. The Hackett Court stated:

By enacting a general exclusionary rule, the Legislature recognized that in the vast majority of cases, evidence of a rape victim's prior sexual conduct with others, and sexual reputation, when offered to prove that the conduct at issue was consensual or for general impeachment is inadmissible. People v. Arenda, ...