People v. Vasher, Docket No. 99680

• Decision Date: 10 August 1995
• Docket Number: Docket No. 99680,No. 13,13
• Citation: 537 N.W.2d 168,449 Mich. 494
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Francis VASHER, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 168

537 N.W.2d 168

449 Mich. 494

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Francis VASHER, Defendant-Appellee.

Docket No. 99680.

Calendar No. 13.

Supreme Court of Michigan.

Argued March 8, 1995.

Decided Aug. 10, 1995.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training, and Appeals, Detroit, for people.

Ellen C. Wallaert, Eastpointe, for defendant.

Opinion

WEAVER, Justice.

The case before us involves the intertwined evidentiary issues of undue prejudice, character, religious beliefs, and the rules of procedure regarding rebuttal.

In June, 1986, defendant Francis Vasher was babysitting his four-year-old granddaughter and two other three-year-old girls. The events of that night resulted in Vasher being shot by the father of one of the girls ¹ and convicted by a jury of three counts of first-degree criminal sexual conduct. The evidence at trial showed that defendant performed various acts of sexual penetration on all three of the girls.

At trial the prosecution called all three victims, several of their parents, the officer in charge of the case, and the doctor who had examined one of the victims. Vasher took the stand in his own defense. During direct examination, Vasher denied having assaulted the children. He claimed that he always treated them as he would his own children. On cross-examination, Vasher said that on the basis of the Bible, he believed fourteen was an acceptable age for a girl to bear children. However, he denied that he had said young girls should be initiated into sex by their own family members. On rebuttal, the prosecution called Sherry Culkar, the mother of one of the victims. She testified that Vasher had told her that it used to be common practice for family members to introduce young girls to sexual intercourse.

The Court of Appeals reversed defendant's convictions, finding that the prosecutor's questions violated the statutory ban against inquiry into religious freedom, that certain testimony outlining defendant's sexual philosophy was both more prejudicial than probative and inadmissible character evidence, and that certain rebuttal testimony was improper. The people sought leave to appeal, which we granted. 447 Mich. 886 (1994). We reverse the decision of the Court of Appeals.

I

We turn first to the statutory ban against inquiry into religious beliefs. On cross-examination, Vasher was asked:

Q. But you do believe in having sex with young children, don't you?

A. No, I do not.

Q. Mr. Vasher, haven't you time and time again expressed your philosophy to a number of people that children should be taught by either their father, their brother, their uncle or their grandfather what it is like to have sex?

A. No, ma'am, never.

Q. You never said that to anyone, sir?

A. No.

Q. Have you told people, sir, that anything over twelve, it is too late.

A. No.

Q. Well, how young would you go, Mr. Vasher?

A. I think according to the Bible the Blessed Virgin was fourteen when she conceived Christ. And I believe that God makes no mistake. Apparently, fourteen is an adequate age for a woman to produce a child.

Q. And fourteen, then, is an adequate age for you to engage in sexual relationships with a child, is that true, is that your statement?

A. If there was a love relationship, and they were wanting to get married, I think that would be between the two consenting adults.

Q. So, if you loved a fourteen year old, then you would have sex with her, is that what you are telling us?

A. No. I am not saying that.

Mr. Cripps: Your Honor, at this point, we all know we are here on a charge involving very young children. His feelings about young adults having premarital sex or whatever is not relevant to the charge in relation to small children here. I am afraid we are getting far afield. I would like to lodge an objection.

Ms. Diehl: I think we are talking about having sex with minor children, which is against the law. And I think it is very relevant if his philosophy is he thinks there is nothing wrong with it.

The Court: I will sustain the objection.

Q. (By Ms. Diehl ): You know who Sherry Culkar is, don't you?

A. Yes, I do.

Q. She was married to your son, Frank, Jr., is that correct.

A. They lived together.

Q. They lived together?

A. Yes.

Q. Did you tell her that girls of thirteen should have sex with men in the family such as uncles, fathers, grandfathers so they know what sex is like, know what good sex is?

Q. (By Ms. Diehl ): Did you tell Sherry Culkar that?

A. No.

Q. Did you tell Sherry Culkar it is a right or duty of a father, grandfather, uncle to instruct young females?

A. No, I did not.

Q. You have a sister by the name of Miss Philomena Hart?

A. Hurd. Yes. Yes, I do.

Q. Did you tell her that anything over twelve years old is too old for you?

A. No, I certainly haven't.

Q. Do you know Shirley Byers?

A. Yes, I do.

Q. Did you voice to her your philosophy concerning young girls being that they should have sex at the time their period starts or it is too late; and the best person to teach a young girl sex was her father, brother or uncle?

A. No, I did not.

Vasher argues, and the Court of Appeals agreed, that any questioning about Vasher's "sexual philosophy" was forbidden after Vasher's nonresponsive answer that his belief that fourteen was "an adequate age for a woman to produce a child" was based on the Bible. This one statement was the only reference made in this context of any religious belief held by Vasher. M.C.L. § 600.1436; M.S.A. § 27A.1436 provides: "No witness may be questioned in relation to his opinions on religion, either before or after he is sworn." The threshold question is whether these questions have no reference to "opinions on the subject of religion...." People v. Jenness, 5 Mich. 305, 319 (1858).

Clearly, the prosecutor's question "how young would you go" was not designed to elicit defendant's religious beliefs. Vasher's answer, phrased in terms of the Bible and the Virgin, does bring in his religion. This nonresponsive answer does not itself create error requiring reversal. A prosecutor has no duty to caution a witness to refrain from discussing religion in an answer. People v. Sommerville, 100 Mich.App. 470, 487, 299 N.W.2d 387 (1980). However, defendant did not open himself to questioning about his religious beliefs by making this voluntary statement. People v. Bouchee, 400 Mich. 253, 253 N.W.2d 626 (1977). Here the follow-up questions by the prosecutor did not refer to Vasher's interpretation of the Bible, but instead focused on what Vasher believed was an adequate age for a girl to begin sexual relations. Therefore, we find no impropriety.

We wish to make clear that we in no way alter the rule set forth in People v. Hall, 391 Mich. 175, 215 N.W.2d 166 (1974), that the Legislature has forbidden that questions on the subject of religion be asked during the course of a criminal proceeding. However, a subject does not become taboo when a witness makes a nonresponsive answer referring to religious beliefs. For example, if a witness says he is truthful because his religion forbids him to lie, this answer does not preclude questioning him further about and even impeaching him on his veracity. See in contrast, the lines of questioning in People v. Jenness, supra (a witness for the prosecution was asked by the defendant's counsel whether she believed in God, and whether she had at one time disavowed a belief in a Supreme Being), People v. Hall, supra (the prosecutor asked the defendant whether he believed in the Supreme Being), and People v. Bouchee, supra (the prosecutor asked the defendant if he was a member of any church and followed that up by asking which church it was, the Court asked the defendant whether accepting the Bible would stop him from having sexual relations with a woman to whom he was not married, and the prosecutor asked a defense witness, a minister, whether the defendant was a religious man and further questioned him regarding whether he was a practicing Christian).

Because defendant was not questioned concerning his religious beliefs, M.C.L. § 600.1436; M.S.A. § 27A.1436 does not apply.

II

The Court of Appeals found that the evidence showing defendant had said it was acceptable for family members to initiate young girls into sexual activity was more prejudicial than probative. ² MRE 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (Emphasis added.) By omitting this key concept of "substantially outweighed," the Court of Appeals applied the wrong standard of admissibility to the evidence.

In this context, prejudice means more than simply damage to the opponent's cause. A party's case is always damaged by evidence that the facts are contrary to his contentions, but that cannot be grounds for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one. In the pungent phrase of Judge Sloan in State v. Rollo, 221 Or. 428, 438, 351 P.2d 422 (1960), the party "is entitled to hit as hard as he can above, but not below, the belt." McCormick, Evidence (2d ed), § 185, p. 439.

The Court of Appeals apparently felt that the evidence concerning defendant's sexual philosophy was unfairly prejudicial because it might lead the jury to believe that defendant acted in conformity. Evidence presents the danger of unfair prejudice when it threatens the fundamental goals of MRE 403: accuracy and fairness. Gold, Federal Rule of Evidence 403: Observations on the nature of unfairly prejudicial evidence, 58 Wash.L.R. 497 (1983). The perceived danger here is that the jury...