People v. Williams

Citation95 Mich.App. 1,289 N.W.2d 863
Decision Date22 January 1980
Docket Number78-1972 and 78-2168,Docket Nos. 78-1441,78-1808
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold WILLIAMS, a/k/a Harold Jackson, Frank Anderson, Lavoier Respress andWilbur Johnson, Defendants-Appellants.
CourtCourt of Appeal of Michigan — District of US

Charles H. Brown, Detroit, for Williams.

Gerald M. Lorence, Detroit, for Anderson.

Cynthia Goldfarb, Detroit, for Respress.

Loren E. Monroe, Detroit, for Johnson.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Appellate Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and RILEY and THEILER, * JJ.

KAUFMAN, Presiding Judge.

We agree with and adopt the statement of facts presented in the dissenting opinion. However, we note that the dissenting opinion declines to discuss the constitutional implications in this case arising out of the defendant's failure to abide by the notice requirements of the restrictive evidence provision of the criminal sexual conduct statute, M.C.L. § 750.520j(2); M.S.A. § 28.788(10) (2). We find such a discussion to be called for. This opinion, then reflects the view that that portion of the restrictive evidence provision, which requires notice and an evidentiary hearing before admission of evidence of specific instances of sexual conduct between a complainant and a defendant, violates a defendant's Sixth Amendment rights to confrontation and cross-examination.

Although prior decisions of this Court have upheld the constitutionality of this restrictive evidence provision in the face of challenges that the preclusion of evidence regarding prior instances of a victim's sexual conduct with third persons denies a defendant his right of confrontation, no case has considered the factual situation presented here. In the instant case, one of the codefendants, who had engaged in prior sexual conduct with the complainant, sought to admit this evidence to show the complainant's consent. This attempt served to no avail because of the defendants' failure to abide by the statutory notice provisions. In point of fact, because of such improper notice, the trial court declined to conduct an in camera hearing to weigh the probative value of this evidence against its prejudicial nature.

A litany of cases is cited in the dissenting opinion. It becomes necessary to re-analyze the propositions raised in these opinions and place them in their proper perspective.

In People v. Thompson, 76 Mich.App. 705, 257 N.W.2d 268 (1977), lv. den. 402 Mich. 829 (1977), the defendant therein sought reversal of his first-degree criminal sexual conduct conviction. On appeal, that defendant argued that the trial court's prohibition against questioning the victim about her sexual activities with third persons, prior to the alleged rape, violated his sixth amendment rights to confront and cross-examine his accuser. That defendant further argued that inquiry into the victim's sexual background should have been permitted since it was probative to the issue of consent, that defendant's principal defense. This Court rejected that defendant's arguments as irrelevant and of minimal evidentiary significance. In so holding, the Court recognized that factual situations do exist in which the victim's sexual behavior with third persons is arguably probative of consent. The victim's sexual behavior with the actor, as in the instant case, then would be of greater moment.

The majority in People v. Dawsey, 76 Mich.App. 741, 257 N.W.2d 236 (1977), rejected the argument of the defendant therein that his sixth amendment confrontation right was abridged when the trial court denied him the opportunity of questioning the complainant therein about her previous sexual activities with third persons. The Court held that a defendant is precluded from exploring a complainant's sexual past in order to attack her veracity. This holding was narrow, however.

The Dawsey Court did not reach the issue of the constitutionality of the statutory provision restricting evidence with respect to opinion or reputation evidence of a complainant's sexual conduct. Moreover, the Dawsey Court indicated that, had that defendant attempted to produce a witness to testify about that complainant's reputation for chastity and been denied, serious constitutional questions would have been raised. The Court's quote from People v. McLean, 71 Mich. 309, 312, 38 N.W. 917 (1888) is particularly illuminating considering the facts of the instant case:

" 'Evidence that the prosecutrix is a common prostitute, or that her character for chastity is bad, is admissible, and particular acts of unchastity or sexual intercourse with the Defendant may be shown; but evidence of such acts with a third person is not admissible'." Dawsey, supra, 76 Mich.App. 752-753, 257 N.W.2d 240.

In the case at bar, the defendants, on the issue of the complainant's consent, sought to introduce evidence that the complainant was a common prostitute and that she had had previous sexual conduct with one of the codefendants. Both attempts were denied by the trial court.

In People v. Patterson, 79 Mich.App. 393, 262 N.W.2d 835 (1977), the constitutionality of the restrictive evidence provision was upheld in three separate opinions. Judges R. B. Burns and Holbrook summarily rejected that defendant's sixth amendment confrontation argument. Judge Cavanagh, in a separate concurring opinion which is quite instructive, held that the subject statute was unconstitutional to the extent that it excludes evidence which, if received, might raise in the mind of a juror a reasonable doubt as to a defendant's guilt. Further, upon a defense counsel's offer of proof, a defendant should be entitled to an in camera hearing at which he may conduct, for the court's consideration, the proposed cross-examination. The trial court must then determine whether this evidence would raise a reasonable doubt in the mind of a juror. This determination would be reviewable under a "clearly erroneous" standard by this Court, Patterson, supra, 413-414, 262 N.W.2d 835.

The evidence which the defendants sought to introduce with respect to the complainant's prior sexual activity with codefendant Williams could raise a reasonable doubt in the mind of a juror.

In People v. Khan, 80 Mich.App. 605, 264 N.W.2d 360 (1978), lv. den. 402 Mich. 903 (1978), this Court again upheld the constitutionality of the evidence limitation provision, finding a complainant's previous sexual encounters with persons other than a defendant to be logically and legally irrelevant.

It is noteworthy that none of the aforementioned cases dealt with specific instances of prior sexual conduct between a complainant and a defendant, as here. Moreover, language in these cases suggests that their application is narrow in scope. Such application should not be extended to encompass the situation herein.

Restrictive evidence provisions are not given such an interpretation in California. In People v. Blackburn, 56 Cal.App.3d 685, 690, 128 Cal.Rptr. 864, 866-867 (1976), it was stated:

"The relevance of past sexual conduct of the alleged victim of the rape with persons other than the defendant to the issue of her consent to a particular act of sexual intercourse with the defendant is slight at best." (Emphasis added.)

The California Evidence Code Section 1103, as amended, contains no provision allowing a trial court, in the exercise of its discretionary powers, to deny evidence of specific instances of prior sexual conduct between a complainant and a defendant.

Furthermore, recently adopted FRE 412 requires the trial court to conduct an evidentiary hearing to consider specific instances of sexual conduct between a complainant and a defendant if the defendant complies with the statutory notice provision. Whereas, in Michigan, upon a defendant's compliance with the notice provision, the evidentiary hearing is still subject to the discretion of the trial court.

When evidence of specific instances of sexual conduct between a complainant and a codefendant is presented, the requirement for a hearing on the evidence lacks validity. The very nature of this evidence is personal between the parties. As such, a hearing upon its admissibility would necessarily break down into a consideration of the complainant's word against the defendant's word. Such a credibility assessment is better placed before the jury. The trial court usurps their role as a factfinding body when it preliminarily reviews and denies admission of this evidence through exercise of its discretionary powers. The hearing requirement retains its constitutional validity only in situations involving previous sexual conduct between a complainant and third persons. A trial court ruling on admissibility is more in order in that situation.

This conclusion is not affected by the fact that codefendant Williams did not comply with the 10 day notice provision required by the statute. Many states choose not to impose a notice requirement where previous relations between a complainant and a defendant are concerned. See generally, Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1, fn. 196 at 32, and pp. 100-102 (1977). There seems to be no logical justification for its imposition. We find this requirement unconstitutional when applied to preclude evidence of specific instances of sexual conduct between a complainant and a codefendant.

The object behind imposition of a notice requirement is to allow the prosecution to investigate the validity of a defendant's claim so as to better prepare to combat it at trial. This rationale is sound when applied to notices of alibi and insanity defenses. It loses its logical underpinnings however when applied to the instant situation. As stated, the very nature of the evidence sought to be presented, i. e., prior ...

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6 cases
  • State v. Lajoie
    • United States
    • Oregon Supreme Court
    • May 25, 1993
    ...(1979). The trial court may then order an in camera hearing to determine whether the evidence is admissible. Id. In People v. Williams, 95 Mich.App. 1, 289 N.W.2d 863 (1980), rev'd on other grounds, 416 Mich. 25, 330 N.W.2d 823 (1982), the Michigan Court of Appeals held that the notice-and-......
  • Michigan v. Lucas
    • United States
    • U.S. Supreme Court
    • May 20, 1991
    ...assault and sentenced him to a prison term of 44 to 180 months. The Michigan Court of Appeals reversed. Relying on People v. Williams, 95 Mich.App. 1, 289 N.W.2d 863 (1980), rev'd on other grounds, 416 Mich. 25, 330 N.W.2d 823 (1982), the Court of Appeals held that the State's notice-and-he......
  • Testerman v. State, 382
    • United States
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    • September 1, 1984
    ...(1982); State v. Domangue, 50 So.2d 599 (La.1977); Commonwealth v. Grieco, 386 Mass. 484, 436 N.E.2d 167 (1982); People v. Williams, 95 Mich.App. 1, 289 N.W.2d 863 (1980); State v. Boyd, 643 S.W.2d 825 (Mo.App.1982) (reasonable contemporaneousness required); State v. Crisp, 629 S.W.2d 475 (......
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    • United States
    • Michigan Supreme Court
    • December 23, 1982
    ...of two counts of first-degree criminal sexual conduct. A divided Court of Appeals reversed and remanded for a new trial. 95 Mich.App. 1, 289 N.W.2d 863 (1980). The majority held the notice provision of Sec. 520j unconstitutional when applied to preclude evidence of specific instances of sex......
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