People v. Patterson

• Decision Date: 08 November 1977
• Docket Number: Docket No. 27063
• Citation: 262 N.W.2d 835,79 Mich.App. 393
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William D. PATTERSON, Defendant-Appellant. 79 Mich.App. 393, 262 N.W.2d 835
• Court: Court of Appeal of Michigan — District of US

Page 835

262 N.W.2d 835

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William D. PATTERSON, Defendant-Appellant.

Docket No. 27063.

79 Mich.App. 393, 262 N.W.2d 835

Court of Appeals of Michigan.

Nov. 8, 1977.

Released for Publication March 7, 1978.

[79 MICHAPP 396] Lustig & Friedman, P. C., by Michael S. Friedman, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Eaman & Ravitz, P. C. (S.E. Anti-Rape) by Allyn Ravitz, Detroit, for plaintiff-appellee.

Before D. E. HOLBROOK, and R. B. BURNS and CAVANAGH, JJ.

R. B. BURNS, Judge.

The defendant was found guilty by a jury of third-degree criminal sexual conduct, M.C.L.A. § 750.520d; M.S.A. § 28.788(4). He appeals and we affirm.

The facts in this case are adequately set forth in the opinion written by Judge M. F. Cavanagh.

I would affirm the trial court on the basis of the reasoning set forth by Judge T. M. Burns in People v. Thompson, 76 Mich.App. 705, 257 N.W.2d 268 (1977).

D. E. HOLBROOK, Presiding Judge (concurring in result).

This [79 MICHAPP 397] writer has carefully considered my brother Judge M. F. Cavanagh's opinion in this case and appreciates the dedicated work that is reflected in his fine opinion. Because I do not deem it necessary to agree with all of his reasoning in order to dispose of this case, I would concur in the result. The reason for this opinion is that in camera questioning should not be permitted, unless unusual facts exist or until the Michigan Supreme Court has spoken on the question. Further, if in camera proceedings are required under certain circumstances, this writer is apprehensive that innovative minds of defense counsel may advance claims that require in camera proceedings wherein the result obtained reveals only a fishing expedition was desired.

I have noted my brother Judge R. B. Burns' opinion and likewise am in complete agreement with the result obtained by Judge T. M. Burns in People v. Thompson, 76 Mich.App. 705, 257 N.W.2d 268 (1977).

There may be a case in the future where this writer may have to declare his decision in the matter, but declines to do so in this case because he deems it unnecessary.

Affirmed as to result.

CAVANAGH, Judge, concurring separately.

A jury found defendant guilty of third-degree criminal sexual conduct, M.C.L.A. § 750.520d; M.S.A. § 28.788(4). He was sentenced to a prison term of 71/2 to 15 years. His appeal is as of right.

Prior to trial defendant moved the court to quash the information. Defendant contended that the statute was unconstitutional because it was vague and uncertain, and because it impermissibly restricted his right to confront and cross-examine [79 MICHAPP 398] the witnesses against him. The motion was denied by the trial court.

Before selecting the jury, the trial judge, on defendant's motion, conducted an in camera hearing to permit cross-examination of the complainant regarding her prior sexual conduct. The judge ruled at the outset of this hearing that cross-examination of the complainant before the jury as to her intercourse with her boyfriend, Dale Patterson (defendant's nephew), on the night of the alleged offense would be permissible under M.C.L.A. § 750.520j(1)(b); M.S.A. § 28.788(10)(1)(b). However, the court found that cross-examination at trial into complainant's sexual relations with other men, on prior occasions, was prohibited by M.C.L.A. § 750.520j; M.S.A. § 28.788(10). This ruling notwithstanding, defense counsel would be permitted to inquire into these matters at the hearing in order to establish a record for appeal. Defense counsel proceeded to cross-examine the prosecutrix. At the conclusion of the hearing the trial judge repeated his earlier ruling, stressing that it was compelled by the statute.

Defendant's appeal assails the constitutionality of the criminal sexual conduct statute on two grounds. He first claims it to be infirm because it is too vague to meet the due process requirements of the U.S. Constitution. Alternatively, he argues that the criminal sexual conduct statute offends the Sixth Amendment by denying him his right of cross-examination.

The same two issues were very recently addressed, with varying results, by two other panels of this Court. ¹ In People v. Thompson the panel unanimously rejected both of defendant's challenges[79 MICHAPP 399] to the statute. In People v. Dawsey the panel was in agreement in rejecting the vagueness challenge to the statute, but differed in its disposition of the Sixth Amendment cross-examination issue. The Dawsey majority upheld the statute, stating:

"Defendant did not attempt to produce witnesses to testify about the complainant's reputation for chastity. Had he done so, and been denied, a serious question about the statute's constitutionality would have to be faced. See Commonwealth v. Manning, Mass., 328 N.E.2d 496 (1975). But here, where defendant only complains of his inability to attack the complainant's veracity with cross-examination about her sexual history, there is no basis for holding the statute unconstitutional." ²

The dissenting opinion of N. J. Kaufman, J., after a thorough analysis of the statute and apposite case law, concluded that the evidentiary provision of the criminal sexual conduct statute was unconstitutional because it violated the defendant's Sixth Amendment rights of confrontation and cross-examination.

As to the first issue raised, I am in accord with Dawsey, supra, and Thompson, supra, and do not find the statute to be impermissibly vague.

The test was stated by the United States Supreme Court in Giaccio v. Pennsylvania : ³

"(A) law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without [79 MICHAPP 400] any legally fixed standards, what is prohibited and what is not in each particular case."

The statute adequately provides fair notice of the conduct proscribed.

My resolution of the Sixth Amendment issue, however, is not in harmony with the Thompson panel and Dawsey majority. Nor, although I find his reasoning generally more persuasive, am I in complete agreement with my brother Kaufman's dissent in Dawsey.

That part of the statute before us precludes, with exceptions not pertinent here, admission of "(e)vidence of specific instances of the victim's sexual conduct" in prosecutions for criminal sexual conduct. M.C.L.A. § 750.520j(1); M.S.A. § 28.788(10)(1). The question confronting us is whether this statute is constitutional when applied to limit cross-examination designed to elicit facts tending to show that the intercourse was consensual.

Two arguments are made in support of the statute: (1) the evidence is logically irrelevant to a defense of consent; and (2) even assuming some probative value, the prejudicial effect of this evidence will always justify its exclusion.

The first argument persuaded the Dawsey majority, which stated it as follows:

"A complainant's willingness to engage in sex with certain partners does no make it more likely that she consented in the incident for which defendant stands charged." ⁴

In People v. Oliphant ⁵ the Michigan Supreme [79 MICHAPP 401] Court held that evidence of the defendant's alleged prior sexual encounters with nonconsenting partners was probative of nonconsent in the act for which the defendant was on trial. The Court's finding of relevance seems to be the product of the following reasoning: (1) the prior acts were nonconsensual; (2) defendant "orchestrated" them to make them appear consensual; (3) the "orchestration" of the act for which the defendant was on trial was similar; (4) therefore this act was more probably nonconsensual. Simply stated, the Court found that on the issue of consent, the defendant's prior sexual conduct with third persons was probative of the defendant's conduct, under similar circumstances, with the prosecutrix.

In his dissenting opinion in Oliphant, Justice Levin considered the application of the majority's reasoning, to the problem presented in this case, and concluded:

"While it is always possible to rationalize distinctions, it will be difficult to reconcile on a principled basis treating defendants differently from complainants." ⁶

This writer has long subscribed to the view that the use made of similar acts evidence in our trial courts, and upheld by our appellate courts, frequently exceeds the narrow exception which the statute ⁷ was designed to create. However, the Supreme Court's view is controlling, and the rationale of Oliphant indicates that evidence of the prosecutrix's prior sexual conduct with third persons[79 MICHAPP 402] may, on the facts of a given case, be logically relevant to the issue of consent. ⁸

Having concluded that this evidence may in some cases have probative value for the defense, the question becomes whether, consistent with a defendant's right of confrontation and cross-examination, this evidence can always be excluded as more prejudicial than probative, and, if not, under what circumstances the evidence may come in.

In Thompson, supra, the Court stated:

"While factual situations in which the victim's sexual behavior with third persons is arguably probative of consent are imaginable, the probative value of such evidence would not outweigh the prejudice to society and the criminal justice system of the consequences of its admission." ⁹

The test of probative value versus prejudicial impact is a familiar one, and suggests a further analogy to the similar acts cases. ¹⁰ Perhaps because of its familiarity, Thompson seems to assume its applicability here. I would question that [79 MICHAPP 403] assumption and the extension of the parallel to the similar acts cases. To examine their validity let us look to a comparison of the probative value and prejudicial impact of each of the two sorts of evidence.

In...