People v. Hernandez

377 N.W.2d 729, 423 Mich. 340
CourtMichigan Supreme Court
DecidedNovember 13, 1985
DocketDocket 72645, 72646
StatusPublished
Cited by9 cases

This text of 377 N.W.2d 729 (People v. Hernandez) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

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]*342charged 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]*343Q. 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]*344questions 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:

The court finds that one of the, if not the leading, one of the leading cases involving the matter of rebuttal testimony is found in the case of People v Bennett, 393 Mich 445 [224 NW2d 840 (1975)]. At 449 and 450 the court stated that rebuttal is limited to the refutation of relevant and material evidence, hence evidence bearing on an issue properly raised in the case. Such issue, of course, could [345]*345be one raised in the prosecutor’s case in chief, or one raised by way of defense, and evidence on either would be subject to rebuttal. But here where the prosecutor did not offer this evidence in his case in chief, which he would’ve had to do if this were to be regarded as an admission, it did not bear on an issue raised by the People; neither does it bear on an issue raised by the defense. In People v Grigsby [On Remand], 99 Mich App 672, 675 [299 NW2d 21 (1980)], it is clear that rebuttal testimony is limited to the refutation of relevant and material evidence, hence evidence bearing on an issue properly raised in a case. It is also clear that a prosecutor may not elicit a denial of some statement not properly in the case and subsequently inject the issue into the case through rebuttal. They cite [People v] McGillen #1 [392 Mich 251; 220 NW2d 677 (1974)], they cite Bennett and others. This general subject matter was reviewed, I thought, rather thoroughly, and the court took the position that the alleged activity between the defendant and the young child, [K.P.], was not to be injected into the case by the People. In this situation we have a situation where not only has the defendant denied ever touching in any way the alleged victim in this case, [C.], but has also testified in response to a question asked by his attorney that he never touched any other little girl as well.

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

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)

Cite This Page — Counsel Stack

Bluebook (online)
377 N.W.2d 729, 423 Mich. 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hernandez-mich-1985.