People v. Dawsey

257 N.W.2d 236, 76 Mich. App. 741, 1977 Mich. App. LEXIS 971

• Court: Michigan Court of Appeals
• Decided: July 18, 1977
• Docket: Docket 27675
• Status: Published

Opinions

R. M. Maher, P. J.

Judge Kaufman’s opinion deals adequately with all but one of the issues defendant raises in his appeal from his conviction for first-degree criminal sexual conduct, MCLA 750.520b(l)(e); MSA 28.788(2)(l)(e). Unlike Judge Kaufman, I cannot conclude that the court below committed reversible error when it limited cross-examination of the complainant under MCLA 750.520j; MSA 28.788(10).

At defendant’s trial, his counsel was able to elicit from the complainant that an act of sexual intercourse was not something new to her. An objection from the prosecutor, sustained by the court, terminated that line of questioning. The court, although expressing serious doubts about "any statute that eliminates for the trier of the fact * * * the credibility of the parties involved”, correctly ruled the questioning of the complainant about her prior sexual activity with persons other than defendant was prohibited under MCLA 750.520j; MSA 28.788(10). Defense counsel registered his objection to the prohibition against inquiry into the complainant’s prior sexual activity.

The challenged statutory provision reads:

"(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence 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 (l)(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 order 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 (l)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).”

Since defense counsel did not attempt to offer either opinion or reputation evidence of the complainant’s sexual conduct, only the restriction on evidence of specific instances of the complainant’s sexual conduct is at issue in this appeal. Defendant contends that the statutory restriction on evidence of complainant’s sexual activity denied him his constitutional right of confrontation. Quoting his brief, "[djisallowing cross-examination destroyed one of defendant’s most effective means of attacking her veracity”.

A legislative prohibition against evidence of a certain class, even for the worthy purpose of preventing witnesses from suffering embarrassment on the stand, may not limit the Sixth Amendment right to confrontation guaranteed all defendants. Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974). In Davis, a key prosecution witness may have been under pressure to fabricate because of his juvenile probationary status, but an Alaska statute prevented defense cross-examination about that status. The Supreme Court held that following this statutory restriction on cross-examination produced an error of constitutional magnitude.

"In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.” 415 US at 319.

Similarly strong is language in Chambers v Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297, 309 (1973):

"The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the 'accuracy of the truth-determining process.’ Dutton v Evans, 400 US 74, 89 [91 S Ct 210; 27 L Ed 2d 213] (1970); Bruton v United States, 391 US 123, 135-137 [88 S Ct 1620; 20 L Ed 2d 476] (1968). It is, indeed, 'an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal’. Pointer v Texas, 380 US 400, 405 [85 S Ct 1065; 13 L Ed 2d 923] (1965).”

Davis and Chambers are clear; legislative or judicial attempts to prevent meaningful cross-examination are constitutionally unacceptable. I cannot see, however, how the trial court’s obedience to the statute impaired in any significant way defendant’s cross-examination of the complainant. Defendant’s inability to explore the complainant’s sexual past, in order to "attack her veracity”, was inconsequential.

An early Michigan case, reviewing a conviction for statutory rape, upheld the exclusion of cross-examination about chastity. "Lack of chastity cannot be used to impeach the credibility of a female witness.” People v Mills, 94 Mich 630, 637-638; 54 NW 488 (1893). See also, People v Connelly, 157 Mich 260; 122 NW 80 (1909). Not long afterwards, however, the Supreme Court held that it was in the discretion of the trial court to allow a defendant in a murder trial to be cross-examined about her chastity. People v Cutler, 197 Mich 6; 163 NW 493 (1917). People v Mills, supra, was criticized as being inconsistent with many Michigan decisions, both criminal and civil, that authorized the questioning of a female witness about her chastity.

Recent decisions, in upholding the restriction of cross-examination of a rape complainant about her chastity, emphasize the discretion left to the trial court. People v Whitfield, 58 Mich App 585; 228 NW2d 475 (1975), People v Sturgis, 35 Mich App 380; 192 NW2d 618 (1971), People v Weems, 19 Mich App 553; 172 NW2d 865 (1969). These cases indicate a proper skepticism for the view that sexual activity can be equated with moral character and thus with testimonial reliability.

In People v Whalen, 390 Mich 672; 213 NW2d 116 (1973), the Supreme Court had little tolerance for the prosecutor who cross-examined defendant’s alibi witnesses about their lesbian relationship:

"It [the cross-examination] did no more than put in front of the jury the fact that he, the prosecutor, personally felt these witnesses to be of disreputable character and unworthy of belief.” 390 Mich at 686.

The inability to impeach a witness by showing a lack of chastity was at one time a minority position, although a strong one. Anno: Cross-examination as to sexual morality for purpose of affecting credibility of witness, 65 ALR 410. Modern codes of evidence allocate no place among the methods of impeachment for cross-examination about unchaste conduct. Model Code of Evidence, rule 106; Uniform Rules of Evidence, rule 608; Federal Rules of Evidence, rule 608; Proposed Michigan Rules of Evidence, rule 608.

Insight into the sexual mores of a witness is rarely a help to a jury in determining if the witness is disposed towards untruthfulness.¹ There is no reason to consider an unchaste witness as mendacious. Dean Ladd observed:

"History contains the names of many highly respected persons whose honor in telling the truth would not be questioned and yet whose sex life would hardly be the model for future generations. The frank novels and biographies of the present day disclose habits of living, not commendable or in conformity with legal and ethical standards, and yet not representative of people whose word under oath would be regarded as bad.” Ladd, Credibility Tests — Current Trends, 89 U Pa L Rev 166, 181 (1940).

In a very recent opinion, People v Bouchee, 400 Mich 233; 253 NW2d 626 (1977), the Supreme Court found prejudicial error in cross-examination of defendant and his wife about the legitimacy of their children. "We cannot agree with the apparent assumption of the trial court, and the express holding of the Court of Appeals, that the legitimacy of the Bouchees’ four children related to the truthfulness or untruthfulness of the defendant or his wife as witnesses.” 400 Mich at 253.

Defendant had no complaint when the trial court, following the statute, stopped a line of questioning that would have produced no answers relevant to the complainant’s character for truthfulness.

Since consensual intercourse appears inconsistent with the charge of first-degree criminal sexual conduct, it is appropriate to consider briefly whether the trial court, in following the statute, impermissibly limited defendant from substantiating his version of his encounter with the complainant.

An attack on a rape complainant’s character for veracity by cross-examination about her sex life may produce answers that are misused in support of a claim that the sexual conduct under scrutiny was consensual. It is therefore helpful to distinguish between evidence that is offered to demonstrate the complainant’s disposition towards untruthfulness and evidence offered to show the improbability of the complainant’s story that defendant forced her to engage in sex. In Harris v Neal, 153 Mich 57; 116 NW 535 (1908), a civil action brought against the rapist by his victim, the court made this careful distinction. The question under review was whether, in a civil action, evidence of plaintiff’s bad reputation for chastity was " 'material as bearing upon the probability of plaintiff’s testimony’ ”.

"In the interest of clearness we think it proper for us to distinguish the question raised by defendant’s contention from certain other questions which often arise. The question is different from the one which arises when a female witness upon cross-examination for the purpose of affecting her credibility is asked questions imputing lack of chastity. While the law in such cases is not thoroughly settled, this much may be safely stated, tht the trial court has authority to exclude such testimony (Knickerbocker v Worthing, 138 Mich 224 [101 NW 540 (1904)]) and that the answers of the witness are conclusive. The question before us is also to be distinguished from the question which arises when it is sought to impair the credibility of a witness by proof of reputation. In such a case the proof of reputation is confined to reputation for veracity. Leonard v Pope, 27 Mich 145 [1873]; People v Abbott, 97 Mich [484] 488 [56 NW 862 (1893)]. The principles governing the admissibility of testimony in the two classes of cases above mentioned have no application to the question before us, and if they had, they would not sustain defendant’s contention. The rule invoked by defendant’s counsel is a different rule. He invokes the rule applied by this court in People v Ryno, 148 Mich 137 [111 NW 740 (1907)]. That was a criminal case wherein respondent was convicted of rape. There we held: 'The bad reputation of a prosecuting witness above the age of consent for chastity prior to the date of the offense charged’ was admissible as tending to prove that the intercourse may have been had by consent, and we reversed the judgment because this rule was violated by the trial court.” 153 Mich at 58.

As Harris indicates, the cases have recognized that not all evidence dealing with a complainant’s sexual history is equally valuable when consent becomes an issue at trial. While evidence indicating that the complainant is a person of "indiscriminate promiscuity”, Comment, 43 U Chi L Rev 613, 624 (1976), may tend to prove her consent to sex on a particular occasion, a complainant’s willingness to engage in sex with certain partners does not make it more likely that she consented in the incident for which defendant stands charged.

"There are an unspecified number of reasons why the prosecutrix may consent to sexual relations with a third person but refuse defendant. The totality of the circumstances becomes significantly dissimilar so that a continuance of consensual behavior becomes unreliable.” People v Mitchell, 44 Mich App 679, 690; 205 NW2d 876 (1973), (dissenting opinion of Bronson, J.) lv granted, 395 Mich 752 (1975).

In an early Florida case, Rice v State, 35 Fla 236; 17 So 286 (1895), a defendant convicted of rape alleged error in the trial court’s refusal to permit the complainant to be cross-examined about prior acts of intercourse. The Florida Supreme Court answered:

"The fact that a woman may have been guilty of illicit intercourse with one man is too slight and uncertain an indication to warrant the conclusion that she would probably be guilty with any other man who sought such favors of her. If she was a woman of general bad reputation for chasitity, or had been guilty of acts of lewdness with the defendant the case would be different. In the first instance the evidence would bear directly upon the question as to whether such a woman would be likely to resist the advances of any man; and, in the second, as to whether, having yielded once to the sexual embraces of the defendant, she would not be likely to yield again to the same person.” 35 Fla at 238-239.

The Michigan approach is similar. Citing a case relied on in Rice, supra, the Supreme Court wrote in People v McLean, 71 Mich 309, 312; 38 NW 917 (1888):

"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. McDermott v State, 13 Ohio St 332 [1862].”

While some jurisdictions do permit a defendant to delve indiscriminately into a complainant’s sex life, they are the minority. Anno: Admissibility in rape cases of evidence of previous unchastity, or reputation for unchastity, of prosecutrix, 140 ALR 364.

"In this country, while the prosecutrix may be questioned as to acts of intercourse with the accused in order to disprove the allegation of force in a rape case, there is doubt as to whether questions as to her intercourse with other men are proper. In numerous cases, it is held that, while the chastity of the prosecutrix is in issue and may be attacked by evidence of her general bad character for chastity, it cannot be assailed by evidence of specific acts of unchastity with other persons than the accused.” 4 Jones on Evidence (6 ed), §25:16, pp 154-155. See also FRE 404; proposed MRE 404.

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 NE2d 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.

Affirmed.

V. J. Brennan, J., concurred.

1 People v Bastian, 330 Mich 457; 47 NW2d 692 (1951), People v Smallwood, 306 Mich 49; 10 NW2d 303 (1943), and People v Cowles, 246 Mich 429; 224 NW 387 (1929), all involved a defendant’s ability to discredit a rape complainant’s testimony by showing her to be a person obsessed with sex who only imagined a sexual episode with defendnat. In all three cases the charge was statutory rape, where consent was not at issue. The testimony erroneously excluded was offered to buttress admitted testimony from medical experts that "the mind of the girl was so warped by sexual contemplation and desires as to lead her to accept the imagined as real or to fabricate a claimed sexual experience”. People v Cowles, 246 Mich at 431.

Proof of mental abnormality is an accepted means of impeachment. 3A Wigmore on Evidence (Chadbourn Rev), § 934a; Comment, 59 Yale LJ 1324 (1950). It is different from impeachment by showing a lack of chastity.