People v. Powell

• Citation: 201 Mich.App. 516,506 N.W.2d 894
• Decision Date: 20 September 1993
• Docket Number: Docket No. 151214
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Adie POWELL, Jr., Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 894

506 N.W.2d 894

201 Mich.App. 516

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Adie POWELL, Jr., Defendant-Appellee.

Docket No. 151214.

Court of Appeals of Michigan.

Submitted Feb. 17, 1993, at Lansing.

Decided Sept. 20, 1993, at 9:15 a.m.

Released for Publication Nov. 5, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Robert E. Weiss, Pros. Atty., and Donald A. Kuebler, Chief, Appellate Div., for the People.

Barney R. Whitesman, Flint, for defendant-appellee.

Before: CORRIGAN, P.J., and SHEPHERD and McDONALD, JJ.

CORRIGAN, Presiding Judge.

The people appeal by leave granted from an order granting defendant's motion to suppress evidence obtained pursuant to a search warrant and from an order granting defendant's motion to admit evidence of the victim's sexual conduct with third parties in this prosecution for criminal sexual conduct, M.C.L. § 750.520b(1)(e); M.S.A. § 28.788(2)(1)(e). We reverse both orders. ¹

The incident underlying the charges occurred on October 19, 1991. The victim alleged that she was visiting defendant, a neighbor whom she had known for approximately four to five years, at his apartment. When the victim attempted to leave, defendant prevented her from doing so. After threatening her with a club, he sexually assaulted her. Defendant contends that the victim, a prostitute, consented to have sexual intercourse with him and then falsely accused him of sexual assault only because he failed to pay her. We address two issues on appeal: (1) whether the court erred in ruling admissible certain evidence pertaining to the victim's sexual activities with persons other than defendant and (2) whether the court erred in suppressing evidence obtained pursuant to a search warrant that was determined to be invalid.

I. Evidence of the Victim's Prior Conduct

The court abused its discretion in ruling admissible certain evidence regarding the victim's employment as a topless dancer and allegations that the victim was a prostitute. The people contend admission of the evidence will violate the rape-shield statute, M.C.L. § 750.520j; M.S.A. § 28.788(10), while defendant argues preclusion of the evidence will violate his constitutional right to confront witnesses. The lower court found the rape-shield statute applicable, but ruled the evidence could be admitted because it was "material to a fact at issue," defendant's consent defense, and "the prejudicial nature [did] not outweigh its probative value." ² We disagree and hold that the evidence is inadmissible.

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. People v. LaLone, 432 Mich. 103, 437 N.W.2d 611 (1989); People v. Wilhelm (On Rehearing), 190 Mich.App. 574, 476 N.W.2d 753 (1991); People v. Lucas (On Remand), 193 Mich.App. 298, 484 N.W.2d 685 (1992). Thus, the statute precludes all evidence of specific instances of a victim's sexual conduct, as well as opinion and reputation evidence of the same, except that a defendant may introduce evidence of the defendant's past sexual conduct with the victim or evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease, if the evidence is material and its prejudicial effect does not outweigh its probative value. M.C.L. § 750.520j(1); M.S.A. § 28.788(10)(1). However, recognizing that application of the statute's evidentiary exclusion might in some instances violate a defendant's Sixth Amendment right to confrontation, our Supreme Court has indicated that such evidence may be admissible when offered for the narrow purpose of showing a victim's bias or motive for filing a false claim. People v. LaLone, supra; People v. Hackett, 421 Mich. 338, 365 N.W.2d 120 (1984).

In the instant case, defendant seeks the introduction of testimony by a third party that on a date before the assault he saw the victim walking with persons whom he had been informed were prostitutes and that on a date after the incident in question he viewed the victim dancing topless at a local topless club. Defendant also seeks to testify that, approximately two months after the incident, he saw the victim standing on a corner waving to passing cars while dressed in a short skirt. He contends she was engaging in what he believed to be attempts to solicit prostitution. Defendant claims this evidence is material to his defense that the victim consented to have intercourse in exchange for money. We agree that in an appropriate case a defense such as defendant's might require the admission of evidence demonstrating the victim's employment as a prostitute at the time of the alleged assault. This, however, is not the case. The majority of the evidence defendant attempts to introduce is not material to his claim that the victim was a prostitute from whom he solicited services on the date in question. A victim's employment as a topless dancer does not render her a prostitute. The offer of this evidence constitutes nothing more than an attempt to place before the jury the victim's "questionable" sexual character. Clearly, this is the type of evidence that the rape-shield statute was enacted to address.

Moreover, we find defendant's remaining evidence considerably more prejudicial than probative. The person who viewed the victim in the company of alleged prostitutes testified that he did not know whether the women were in fact prostitutes. In any event, he had never heard anything bad about the victim's reputation. Likewise, defendant's self-serving testimony that two months after the crime, he witnessed the victim allegedly soliciting was of questionable probative value with respect to whether she had solicited him two months earlier. The court erred in ruling the proffered evidence admissible. ³

II. Suppression of Evidence--Sufficiency of Affidavit

We next conclude that the court erred in suppressing the fruits of the search of defendant's apartment. The crime occurred just before noon; the warrant was procured the same day. The search warrant affidavit did not explicitly state that the victim herself was the source of the information. However, a common-sense reading of the affidavit, taken as a whole, establishes that the named victim was the actual source of the allegations underlying the search warrant affidavit. A crime victim, in contrast to an underworld informant, is presumptively reliable. Additionally, the victim's reliability was proven by the self-authenticating details of the crime contained in the affidavit. Accordingly, M.C.L. § 780.653; M.S.A. § 28.1259(3), as amended by 1988 P.A. 80, was satisfied.

The affidavit states that the affiant, a Flint police sergeant with ten years experience, was investigating a criminal sexual conduct case earlier that day at the defendant's apartment. The affidavit then identifies the complainant by name. It stated that the complainant visited the defendant's apartment, her neighbor of four years. After talking and drinking gin with him for about forty-five minutes, the complainant asked him for her coat. When defendant declined to get it, she went to the bedroom to look for it. Defendant subsequently grabbed the complainant from behind and threatened her with a carved wooden club. The affiant then furnished specific details of three counts of first-degree criminal sexual conduct, as well as explicit details of the crime--for example, the presence of semen on defendant's cranberry-colored robe and the bed. The affiant also described the location of items of physical evidence that the complainant and the defendant had touched. The affiant sought permission to search for these items, including the drinking glasses, the gin bottle, the brown club or stick, the cranberry-colored robe, and bed clothing.

Pursuant to M.C.L. § 780.653; M.S.A. § 28.1259(3), an affidavit may be based upon information supplied by a named or unnamed source. If the source is named, the affidavit need only contain affirmative allegations that permit the magistrate to conclude that the source had personal knowledge of the facts alleged. If the source is unnamed, allegations in the affidavit must show that the source is credible or that the information is reliable.

A common-sense reading of the affidavit, taken as a whole, yields the conclusion that the affiant obtained her information directly from the named crime victim. The victim was not an "unidentified informant" in the classical sense. Neither police officers nor identified crime victims are subject to the requirements once applied to confidential informers from the criminal milieu under Aguilar/ Spinelli. ⁴ Indeed, the United States Supreme Court has traditionally assumed the veracity of information supplied by the victim. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965). Michigan courts also consider identified citizens and police officers to be presumptively reliable. See, e.g., People v. Goeckerman, 126 Mich.App. 517, 522, 337 N.W.2d 557 (1983), and cases noted therein; People v. Harris, 95 Mich.App. 507, 291 N.W.2d 97 (1980); People v. Emmert, 76 Mich.App. 26, 255 N.W.2d 757 (1977). Because the rape victim was identified by name by an experienced police officer, both the officer and the victim are considered presumptively reliable. The magistrate properly concluded that the source had personal knowledge of the facts alleged.

Alternatively, if we apply the second prong of the statute, and conclude that the source is unnamed, reliability of the information is established by the self-authenticating details in the search warrant...