People v. Hernandez

377 N.W.2d 729, 423 Mich. 340
Michigan Supreme Court·Decided November 13, 1985·No. Docket 72645, 72646·Published·Cited by 9 cases

Opinions

Per Curiam.

This defendant persuaded the trial court to exclude evidence that he had committed a prior bad act. The issue now before us is whether the defendant’s own direct examination testimony introduced the subject to the jury, thus opening the door for the prosecution to cross-examine the defendant on the prior bad act and introduce rebuttal testimony that the prior bad act did occur. We agree with the defendant that his testimony on direct examination did not introduce the prior bad act and that evidence of the prior bad act should not have been admitted at trial. We therefore reverse the defendant’s conviction and remand the case to the circuit court for a new trial.

I

In separate informations, the defendant was [342] charged with having engaged in sexual contact with C.C., a person under the age of thirteen, on July 1, 1979, and on July 14, 1979. MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). More than a year before the trial, the defendant filed a written motion in limine requesting the trial court to exclude evidence that, in August of 1979, he had kissed a young girl named K.P. on the mouth. Not long after, the trial court issued a written order reserving its ruling on this matter until the trial.

The case was tried in late July of 1981. When the defendant’s motion in limine was again considered, the trial court held that the evidence concerning K.P. should be excluded:

But the court has great reluctance, and, in fact, will not allow the testimony of [K.P.] for the reason the court cannot see the similarity between kissing which may’ve been a totally innocent act and the other acts of which the defendant is accused which are obviously of a sexual nature. I assume kissing in some instances does lead to other acts of intimacy, sometimes it doesn’t. Sometimes it’s done for purely affectionate reasons. But I do not see the similarity between the two, and I believe that if the court were to allow it that the prejudicial effect would in this particular case far outweigh, far, far outweigh any probative value it would have. So, therefore, the court will rule, and does rule, that the prosecutor may not ask this witness any questions relating to a specific occurrence or occurrences which may’ve occurred, and which were contained in the prosecutor’s offer of proof.

In due course, the defendant took the stand and denied any impropriety with C.C. The prosecutor seized on the final question and answer of the defendant’s direct examination as an invitation to inquire whether the defendant had ever kissed K.P.:

[343] Q. Mr. Hernandez, did you ever touch this child, [C.C.]?
A. No, I haven’t.
Q. Did you ever touch her in a sexual manner as she testified?
A. I never touched that child.
Q. Did you ever touch any child in the manner she testified?
A. I never touched any child.
[Defense Counsel]: I don’t have any further questions. Thank you.
[Assistant Prosecutor]: Could I have the last question and answer read back, your honor?
The Court: Yes.
Cross Examination by [Assistant Prosecutor]:
Q. Mr. Hernandez, your testimony is you have never touched any child in a sexual manner?
A. Never touched any child.
Q. Have you ever kissed a little girl?
A. I’ve kissed a lot of children.
Q. Have you ever kissed [K.P.]?
A. Not to my knowledge, no, I have never.
Q. Did you ever take [K.P.] into your cabin one time when you were looking for something and kiss her and put your arm around her, and then tell [K.P.] don’t tell your parents, let’s let this be our little secret?
A. No sir.
Q. You never did that?
A. No sir.
Q. Do you know who [K.P.] is? You saw her?
A. Yes, I know who she is.
Q. And you’re swearing under oath you never ever kissed [K.P.] in her life?
A. No, I have not.
Q. And you’re swearing under oath that you never told [K.P.] don’t tell anybody about this, let’s keep this our little secret?
A. I never have.

The defendant did not object at the time those [344] questions were asked,1 but once the jury was absent, he strenuously objected to what had happened, as well as to the prosecution’s plan to call K.P. as a rebuttal witness. The defendant observed that K.P.’s name was never mentioned during the direct examination. Moreover, argued the defendant, the final question and answer of his direct examination had concerned his sexual touching. Unpersuaded, the trial court ruled that it would allow the prosecution to employ K.P. as a rebuttal witness:

Free access — add to your briefcase to read the full text and ask questions with AI

People v. Hernandez, 377 N.W.2d 729, 423 Mich. 340 (Mich. 1985).

377 N.W.2d 729 (People v. Hernandez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Gibbs v. Woods
E.D. Michigan, 2020
Martez Bickham v. Thomas Winn
888 F.3d 248 (Sixth Circuit, 2018)
People of Michigan v. Harvey Deandre Moore
Michigan Court of Appeals, 2016
People of Michigan v. Reginald Deshawn Walker
Michigan Court of Appeals, 2016
People v. Katt
639 N.W.2d 815 (Michigan Court of Appeals, 2002)
People v. Leo
470 N.W.2d 423 (Michigan Court of Appeals, 1991)
People v. Engelman
453 N.W.2d 656 (Michigan Supreme Court, 1990)
People v. Sutherland
385 N.W.2d 637 (Michigan Court of Appeals, 1985)
People v. Hernandez
377 N.W.2d 729 (Michigan Supreme Court, 1985)