People v. Lukity

596 N.W.2d 607, 460 Mich. 484

• Court: Michigan Supreme Court
• Decided: July 13, 1999
• Docket: 110737, Calendar No. 5
• Status: Published

Opinions

Taylor, J.

Defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b(l)(b); MSA 28.788(2)(l)(b), committed against his fourteen-year-old daughter. He was sentenced to 25 to 50 years’ imprisonment. The Court of Appeals reversed his conviction and remanded the matter for a new trial. Unpublished opinion per curiam, issued October 3, 1997 (Docket No. 179955). It held that defendant was denied the right to a fair trial on the basis of the cumulative effect of three errors: 1) prosecution witnesses improperly testified regarding complainant’s character for truthfulness before complainant testified and before defendant attacked her character for truthfulness, 2) the prosecutor improperly introduced evidence relating to defendant’s use of marijuana with his son, and 3) an expert witness improperly testified that complainant’s behavior was consistent with that of a sexual abuse victim. We granted the prosecution’s application for leave to appeal. 457 Mich 864 (1998). We find error in the admission of evidence bolstering complainant’s character for truthfulness before defendant attacked it, but conclude that this error was harmless. Further, we find no error in the admission of the other challenged evidence. We accordingly reverse the Court of Appeals decision and reinstate defendant’s conviction.

STATEMENT OF FACTS

At trial, complainant testified that defendant sexually assaulted her over forty times in a two-year period, including “[m]aybe two” times in May, 1992. (The charge at issue arises out of an alleged incident of sexual intercourse on or about May 1, 1992.) Complainant testified that she finally reported the sexual abuse to a teacher in May, 1993. She also testified that she attempted suicide following her report of the abuse.

Defendant’s son testified that he observed his father engaging in inappropriate wrestling with his sister. He testified that defendant later “said that he was very sorry that he did this and that it was her [complainant] that said to do these things not him and that he just said he really screwed up and just kept saying he was sorry.” Defendant’s son also testified that defendant told him that complainant “had eyes like her mother’s . . . .”

Defendant testified that he did not engage in sexual intercourse with complainant. He explained that his conversation with his son about being sorry did not relate to any sexual activity.

STANDARD OF REVIEW

At issue are three alleged errors regarding the admission of evidence. The decision whether to admit evidence is within the trial court’s discretion; this Court only reverses such decisions where there is an abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). However, decisions regarding the admission of evidence frequently involve preliminary questions of law, e.g., whether a rule of evidence or statute precludes admissibility of the evidence. This Court reviews questions of law de novo. People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998). Accordingly, when such preliminary questions of law are at issue, it must be borne in mind that it is an abuse of discretion to admit evidence that is inadmissible as a matter of law.

I. EVIDENCE SUPPORTING COMPLAINANT’S CHARACTER FOR TRUTHFULNESS

The first issue before us is whether the trial court abused its discretion in allowing the prosecution to introduce evidence supporting complainant’s character for truthfulness before she had even testified. Specifically, the trial court allowed the prosecution to present the testimony of complainant’s teacher, complainant’s brother, complainant’s mother and the investigating police officer regarding complainant’s good character for truthfulness. Resolution of this issue requires a determination whether defense counsel’s opening statement attacked her character for truthfulness.

MRE 608(a) states:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Where a defense counsel attacks a witness’ character for truthfulness in an opening statement, the prosecution may present evidence that supports the witness’ character for truthfulness on direct examination. United States v Cruz, 805 F2d 1464, 1479-1480 (CA 11, 1986); United States v Jones, 763 F2d 518, 522 (CA 2, 1985).

Here, in his opening statement, defense counsel stated that defendant’s defense was that the charged incident “didn’t happen.” Specifically, defense counsel stated in pertinent part:

[TJhere are only two people on the face of this Earth who [are] in a position to know what happened and there may be evidence from which you may come to the conclusion that one or both of them don’t even know what happened. Because there is a potential for evidence that one of the witnesses that will be offering testimony has serious problems that may affect her ability to recount and describe.

The trial court found that this opening statement attacked complainant’s credibility and accordingly overruled defendant’s objection to evidence supporting complainant’s character for truthfulness.

The trial court’s ruling failed to note the distinction between credibility and character for truthfulness and the implications of this distinction. Credibility is defined as “[worthiness of belief; that quality in a witness which renders his evidence worthy of belief.” Black’s Law Dictionary (6th ed), p 366. Credibility may be attacked in numerous ways, e.g., demonstrating a witness’ inability to perceive or remember the event at issue. Attacking a witness’ character for truthfulness is one of the means by which a witness’ credibility may be attacked. Thus, the two terms are not synonymous; rather, character for truthfulness is a specific aspect of credibility. MRE 608(a) states that “credibility” may be attacked or supported by opinion or reputation evidence, subject to two limitations: 1) that the evidence refer only to “character for truthfulness” and 2) that evidence supporting a witness’ “character for truthfulness” is only admissible after the witness’ “character for truthfulness” has been attacked.

Here, defense counsel did not accuse complainant of intentionally lying, but he asserted that she had emotional problems that affected her ability to recount and describe and that the charged incident, which she was expected to describe, did not happen. These assertions indicated that her testimony would not be worthy of belief. Accordingly, defense counsel’s opening statement did attack her credibility. But it did not attack her character for truthfulness, i.e., it did not suggest that she was lying. An attack on a witness’ credibility, like the one at issue, that is not an attack on the witness’ character for truthfulness does not trigger MRE 608(a)(2). In the absence of an attack on complainant’s character for truthfulness, the prosecution was not entitled, under MRE 608(a), to support her character for truthfulness. Further, we note that evidence of complainant’s character for truthfulness is simply unresponsive to defendant’s contention that complainant suffered emotional problems that affected her ability to recount and describe — the contention the bolstering evidence was allegedly admitted to rebut. Because the evidence bolstering complainant’s character for truthfulness was inadmissible as a matter of law under MRE 608(a) when her character for truthfulness had not been attacked, the trial court abused its discretion in allowing the prosecution to introduce such evidence.

Having concluded that the trial court erred in admitting this evidence, we must next determine whether this error requires reversal of defendant’s conviction, hi People v Mateo, 453 Mich 203, 212; 551 NW2d 891 (1996), this Court held:

In Michigan, the harmless-error rule is primarily embodied in statute [MCL 769.26; MSA 28.1096], with additional statements of the doctrine in our court rule [MCR 2.613(A)] and evidentiary rule [MRE 103].

Section 26 provides in pertinent part:

No judgment or verdict shall be . . . reversed ... in any criminal case, on the ground of. . . the improper admission ... of evidence, . . . unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.

The Mateo Court held at 206:

Under our statute, as under federal law, a reviewing court is not to find nonconstitutional preserved error harmless simply because it concludes the jury reached the right result. Disregarding errors that do not affect substantial rights, the reviewing court is to examine the record as a whole and the actual prejudicial effect of the error on the factfinder in the case at hand. Where the error asserted is the erroneous admission of evidence, the court engages in a comparative analysis of the likely effect of the error in light of the other evidence. [Citations omitted.]

It explained at 215:

Simply stated, . . . reversal is only required if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.

However, because it was unnecessary to the resolution of the matter before it, the Mateo Court did not decide the issue of “the level of assurance an appellate court on direct review must have that a preserved, nonconstitutional error was not prejudicial and thus harmless.” Id. at 218, 220-221.

In People v Gearns, 457 Mich 170; 577 NW2d 422 (1998), a majority of this Court decided that issue by adopting the “highly probable” standard for preserved, nonconstitutional error. Under this standard, the test is whether “it is highly probable that the [erroneously admitted] evidence did not contribute to the verdict[] in light of the strength and weight of the untainted evidence.” Id. at 173. This test effectively creates a presumption that such an error justifies reversal of a conviction unless the prosecutor demonstrates that the error is harmless.

The test articulated by the Geams majority is inconsistent with § 26 because it places the burden on the prosecutor to demonstrate that a preserved, nonconstitutional error is harmless. In contrast, § 26 states that the types of error listed are not grounds for reversal unless it shall “affirmatively appear” that such an error resulted in a miscarriage of justice. Thus, § 26 creates a presumption that preserved, non-constitutional error is harmless, which presumption may be rebutted by a showing that the error resulted in a miscarriage of justice.¹ The Mateo Court correctly so held at 211:

[Section 26] should not be construed to require actual innocence, but, rather, it should be viewed as a legislative directive to presume the validity of verdicts and to reverse only with respect to those errors that affirmatively appear to undermine the reliability of the verdict. [Emphasis added.]

Section 26, with its rebuttable presumption, clearly places the burden on the defendant to demonstrate that a preserved, nonconstitutional error resulted in a miscarriage of justice. We are therefore convinced that the test adopted by the Gearns majority, which placed the burden on the prosecution to demonstrate that it was “highly probable” that a preserved, non-constitutional error “did not contribute to the verdict,” is wrong because it conflicts with the burden of proof established by § 26. We accordingly overrule the Gearns test.²

Both Mateo and Gearns indicated the necessity of determining a “level of assurance” for deciding whether a preserved, nonconstitutional error justified reversal of a conviction. In the context of § 26, with its rebuttable presumption of harmlessness, this would be articulated as the level of assurance that a preserved, nonconstitutional error resulted in a miscarriage of justice. The Mateo Court suggested three possible levels of assurance: highly probable, more probable than not, and reasonable likelihood. Mateo at 219. Section 26 itself provides no specialized level of assurance. In the absence of any such provision in the statute, we believe that the “more probable than not” standard is proper. Given that § 26 places the burden on a defendant to demonstrate a miscarriage of justice, any higher standard, e.g., “highly probable,” would place a greater burden on defendants than § 26 envisions. It would be troubling indeed if a defendant’s demonstration that it was more probable than not that a preserved, nonconstitutional error resulted in a miscarriage of justice was deemed insufficient to justify a new trial. On the other hand, a lower standard, like “reasonable likelihood,” would be inconsistent with § 26’s rebuttable presumption of harmlessness. Accordingly, we conclude that the level of assurance that a preserved, nonconstitutional error justifies reversal of a conviction is the “more probable than not” standard.

In summary, we reiterate that § 26 controls judicial review of preserved, nonconstitutional error.³ Section 26 places the burden on the defendant to demonstrate that “after an examination of the entire cause, it shall affirmatively appear that the error asserted has resulted in a miscarriage of justice.” We agree with the Mateo Court’s holding that reversal is only required if such an error is prejudicial and that the appropriate inquiry “focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.” Mateo at 215. The object of this inquiry is to determine if it affirmatively appears that the error asserted “undermine [s] the reliability of the verdict.” Id. at 211. In other words, the effect of the error is evaluated by assessing it in the context of the untainted evidence to determine whether it is more probable than not that a different outcome would have resulted without the error. Therefore, the bottom line is that § 26 presumes that a preserved, nonconstitutional error is not a ground for reversal unless “after an examination of the entire cause, it shall affirmatively appear” that it is more probable than not that the error was outcome determinative.⁴

Here, there was no physical evidence of the alleged assault. However, this case did not present a simple credibility contest between complainant and defendant. The testimony of complainant’s brother (who is also defendant’s son) included discussion of an apology by defendant in which he virtually confessed that he had sexually assaulted complainant.^{5 6}Defendant testified at trial and contended that this apology did not relate to any sexual contact with complainant. However, defendant confirmed that he made such an apology and offered no explanation for his statements to the effect that it was complainant’s idea “to do these things” and that she “had eyes like her mother’s.” The apology, with these unexplained references, is strong evidence that defendant was admitting and apologizing for the charged conduct with complainant. Complainant’s brother’s testimony about this apology, confirmed in large part by defendant, is untainted by the improper bolstering of complainant’s character for truthfulness. In the context of this untainted evidence, defendant has not demonstrated that it is more probable than not that the outcome would have been different without this error. Thus, it does not “affirmatively appear that the error complained of has resulted in a miscarriage of justice.” Accordingly, this preserved, nonconstitutional error is not a proper ground for reversal of defendant’s conviction under § 26.

H. EVIDENCE THAT DEFENDANT SMOKED MARIJUANA WITH HIS SON

The second issue before us is whether the trial court erred in allowing the prosecution to cross-examine defendant regarding his use of marijuana with his son.

MRE 404 states:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same ....

MRE 405 states:

(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into reports of relevant specific instances of conduct.

Here, on direct examination, defendant testified regarding his role as a father and provider and gave examples of the types of activities he engaged in with his children.⁶ He essentially claimed that he only engaged in appropriate activities with his children. This claim was clearly “evidence of a pertinent trait of character” in the context of a trial on charges that defendant raped his daughter. Thus, this evidence offered by the accused was admissible under MRE 404(a)(1). This testimony opened the door to cross-examination about whether he considered himself a “role model” and whether he tried to “instill morals and values” in his children. Defendant responded affirmatively to these questions. The prosecutor then asked whether defendant provided marijuana to or smoked marijuana with his son. This cross-examination inquired into a specific instance of conduct to rebut defendant’s claim that he only engaged in appropriate activities with his children. Where, as here, evidence of a pertinent character trait is admitted, MRE 405(a) allows cross-examination into relevant specific instances of conduct. Accordingly, the cross-examination regarding whether defendant smoked marijuana with his son was admissible under MRE 404(a)(1) and MRE 405(a). The prosecutor did not engage in misconduct by asking these questions on cross-examination, and the trial court did not abuse its discretion in allowing it.

Defendant and the Court of Appeals improperly framed this issue as whether this “bad act” evidence was admissible under MRE 404(b). MRE 404(b) states:

(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.

(2) The prosecution in a criminal case shall provide reasonable notice in. advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting the evidence.

Here, the prosecutor did not attempt to introduce evidence that defendant smoked marijuana with his son to prove that defendant had acted in conformity with his character for marijuana use. Rather, he merely cross-examined defendant regarding this issue, as permitted by MRE 405(a), in response to defendant’s testimony, under MRE 404(a)(1), that he was a father who only engaged in appropriate activities with his children. This cross-examination under MRE 405(a) simply did not implicate MRE 404(b). Thus, the prosecutor was not obligated, under MRE 404(b), to demonstrate a purpose under which such evidence would be admissible or to provide notice.

Accordingly, we find no error in this cross-examination and, therefore, no justification for reversal of defendant’s conviction on this basis.

HI. EVIDENCE THAT COMPLAINANT’S BEHAVIOR WAS CONSISTENT WITH THAT OF SEXUAL ABUSE VICTIMS

The third issue before us is whether the trial court erred in allowing an expert to testify that complainant’s behavior was consistent with that of a sexual abuse victim.

In People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995), this Court reiterated general principles regarding child sexual abuse expert testimony:

(1) an expert may not testify that the sexual abuse occurred, (2) an expert may not vouch for the veracity of a victim, and (3) an expert may not testify whether the defendant is guilty.

It also clarified aspects of such testimony:

(1) an expert may testify in the prosecution’s case in chief regarding typical and relevant symptoms of child sexual abuse for the sole purpose of explaining a victim’s specific behavior that might be incorrectly construed by the jury as inconsistent with that of an actual abuse victim, and (2) an expert may testify with regard to the consistencies between the behavior of the particular victim and other victims of child sexual abuse to rebut an attack on the victim’s credibility. [Id. at 352-353.]

The Peterson Court specified two situations in which an expert may testify that a victim’s behavior was consistent with that of a sexual abuse victim:

Unless a defendant raises the issue of the particular child victim’s post-incident behavior or attacks the child’s credibility, an expert may not testify that the particular child vietim’s behavior is consistent with that of a sexually abused child. Such testimony would be improper because it comes too close to testifying that the particular child is a victim of sexual abuse. [Id. at 373-374 (emphasis added). ][⁷]

Here, Judith Schiap7 ⁸ testified that complainant’s psychiatric behaviors were consistent with those of a sexual abuse victim. She testified about characteristics that fit within a sexual abuse victim profile. She acknowledged that some of the characteristics in the profile were also consistent with other traumas and specifically stated that suicide attempts were consistent with traumas other than sexual abuse.

Defendant’s theory was that complainant had emotional problems, unrelated to any sexual abuse, that made her testimony incredible. In his opening statement, defense counsel asserted that complainant had “serious problems that may affect her ability to recount and describe.” This theory raised the issue of complainant’s post-incident behavior, e.g., her suicide attempts. Under Peterson, raising the issue of a complainant’s post-incident behavior opens the door to expert testimony that the complainant’s behavior was consistent with that of a sexual abuse victim. Accordingly, the trial court did not abuse its discretion in allowing Schiap to so testify.

Moreover, defendant effectively cross-examined Schiap and convincingly argued in closing that the fact that a behavior is “consistent” with the behavior of a sexual abuse victim is not dispositive evidence that sexual abuse occurred. Specifically, he argued that “almost any behavior is not inconsistent with being a victim of sexual assault.” In the context of defendant’s effective cross-examination and closing argument regarding this issue, any error in admitting this evidence would not have resulted in a miscarriage of justice that would justify reversal under § 26.

Accordingly, we find no error in the admission of this expert witness testimony that justifies reversal of defendant’s conviction.

CONCLUSION

For these reasons, we conclude that the admission of evidence bolstering complainant’s character for truthfulness was error here, but that this error did not result in a miscarriage of justice that would justify reversal of defendant’s conviction under § 26. Further, we conclude that the other two. evidentiary errors found by the Court of Appeals were not, in fact, errors.⁹ We accordingly reverse the Court of Appeals decision and reinstate defendant’s conviction.

Weaver, C.J., and Corrigan and Young, JJ., concurred with Taylor, J.

1 The dissent misreads our opinion by suggesting that we have held that § 26 creates a rebuttable presumption solely because of the words “affirmatively appear” that are found in the section. The dissent’s understanding is flawed. We have reached the conclusion that there is such a presumption through the language and structure of the statute as a whole, which when read in its entirety creates this presumption. Specifically, § 26 states in pertinent part, “No judgment or verdict shall be . . . reversed ... in any criminal case, on the ground of [listed types of error] unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” (Emphasis added.) This language speaks for itself. Moreover, we are not the first court to understand this language in this fashion. The Mateo Court similarly concluded that § 26 creates such a presumption, as noted below.

2 We do not lightly overrule prior decisions of this Court. Yet the rule of stare decisis is not an inexorable command. People v Graves, 458 Mich 476, 481; 581 NW2d 229 (1998). “When it becomes apparent that the reasoning of an opinion is erroneous, and that less mischief will result from overruling the case rather than following it, it becomes the duty of the court to correct it.” Id., citing Attorney General ex rel Barnes v Midland Co Bd of Supervisors, 178 Mich 513, 518; 144 NW 883 (1914). That is the situation we face here with the Geams test, which is of recent vintage and has perforce had little reliance placed upon it. Indeed, the principled concurrence of Justice Brickley, who authored the lead opinion in Geams, supports this approach.

3 In contrast, § 26 does not apply to preserved, constitutional error. See Mateo at 206; People v Anderson (After Remand), 446 Mich 392, 404-407; 521 NW2d 538 (1994).

4 The dissent criticizes our effort to give meaning to § 26 not on the basis of any claimed misunderstanding by us of the language of § 26 but rather on the basis that this reading will produce unfortunate results. Whether it will or not is unknown at this time. But if the standard mandated by the Legislature in § 26 proves unworkable or unfair, the Legislature can, of course, be expected to modify it. This Court’s duty is to follow the law articulated by the Legislature rather than to adopt a standard that a majority of the Court merely prefers in contravention of the plain language of an applicable statute.

5 In addition to the direct testimony quoted above, this apology was also explored on cross-examination of complainant’s brother:

Q. Now, this discussion with your father you described it in detail what he supposedly admitted to having done?

A. Are you talking about the conversation we had at the table when I was helping him move?

Q. That’s correct.

A. You want me to try and give you his exact words?

Q. Well, you said that he said he had screwed up and that he was sorry and that he started to cry and you described he said that [complainant] and your mother had similar eyes. I think that’s what you said.

A. He also said that he was sorry, that it was her idea, kind of putting — trying to put the blame on [complainant].

6 The defendant introduced this evidence almost immediately on direct examination. He testified, “We would watch t.v., we like to go on picnics. We liked picnics. I pla[yed] catch with them, sports, you know, basketball. When they were younger they played soccer, we did that, Cub Scouts. My daughter was in Girl Scouts. I wasn’t involved with that except helping with her projects. Just, you know, things that you do with your kids, try to spend time with them.”

7 The Peterson Court stated that a defendant attacks the complainant’s credibility when he “highlights behaviors exhibited by the victim that are also behaviors within [the child sexual abuse accommodation syndrome] and alludes that the victim is incredible because of these behaviors.” Id. at 374, n 13. Here, defendant did not attack complainant’s credibility in this manner.

8 At the time she testified, Schiap had a bachelor’s degree in psychology, was clinical director of the child adolescent unit of a psychiatric facility, and had twenty-two years of experience in the field.

9 We also disagree with the Court of Appeals comment regarding a portion of the prosecutor’s closing argument. The relevant portion of the closing argument stated:

“May 1, 1992. We chose that date because we have to choose a date. We have to indicate on or about, Judge Schwartz said, on or about a certain date that the crime occurred. In that case, we have forty or so sexual molestations. You pick one. We picked May 1, 1992 because you heard [the complainant] say that that was the time of the Regina High School Parade or some event. That is how she knew the date of May 1, 1992.”

The Court of Appeals concluded that the prosecutor improperly asked the jury to pick a date. However, in context, it is clear that the prosecutor was describing the process by which May 1, 1992, was chosen and was not inviting the jury to pick some other date.