Levin, J.
Garry Mitchell was convicted of second-degree murder.
Evidence was admitted over objection that, while awaiting trial in this case, Mitchell made sexual advances to a cellmate and related to him prior homosexual experiences in prison.
The people contend that the evidence was admissible
i) to rebut the defense that Mitchell was himself the victim of a homosexual assault by the person who was killed;
ii) to impeach Mitchell’s testimony that he had not made homosexual advances to other persons; and
iii) to show Mitchell’s propensities and character as a homosexual.
The Court of Appeals, in affirming Mitchell’s conviction, stated that by his defense Mitchell had put in issue his character as a homosexual. 44 Mich App 679; 205 NW2d 876 (1973).
We reverse and remand for a new trial.
I
Mitchell, in his early twenties, met Donald Guthrie, in his sixties, in a bar on the evening of November 8, 1970. Mitchell testified that he asked Guthrie for a ride to Lapeer and that Guthrie instead invited him to spend the night at his trailer home. Soon after arriving at the trailer, Mitchell went to sleep in the second bedroom. When he awoke the next morning he found Guthrie sitting at a table drinking whiskey and was invited to join him. After a quantity of beer and whiskey had been consumed, Mitchell became ill and laid down in the master bedroom. He was awakened by Guthrie pulling at his pants; he knocked Guthrie’s hand away and asked him what he was doing. Guthrie then grabbed Mitchell’s testicles and squeezed. Mitchell hit Guthrie about the head five or six times. Guthrie stepped away, reached behind his back, produced a knife and wielded it in Mitchell’s direction. Mitchell wrestled the knife away and stabbed Guthrie.
Mitchell fled in Guthrie’s car. Two days later, on
November 11, he wrote his parole officer describing the incident. A few days later, after his arrest, Mitchell made a formal statement to the police and, subsequently a second statement. The letter and the two statements were introduced as part of the prosecution’s case-in-chief. Mitchell’s trial testimony, the letter and statements relate essentially the same account of the events of November 8th and 9th.
In the letter to the parole officer there was no specific reference to homosexuality; Mitchell said: "I began to get up and he grabbed my penis, and it hurt, so I hit him about five or six times and yelled for him to get the hell away from me.”
In the first statement, on the day of his arrest, in response to a question Mitchell said that he thought Guthrie’s intentions were sexual, but did not claim that his conduct was justified or mitigated by the sexual nature of the assault:
"When you were woke up by Guthrie pulling on your pants, what did you think he was trying to do?
"I didn’t know what to think.
"Didn’t you tell one of the officers earlier that you thought he was trying to give you a blow job, as you stated it to them?
"I think that was his intention.
"Did Guthrie threaten you in any way before he pulled the knife?
"No, just grabbed me by my balls.
"Did he give any sign to you that he might have been a homosexual?
"No, none.
"When you took the knife away from Guthrie, what were you thinking about?
"Just stopping him.”
In the second statement, six days later, the following appears:
"Have you ever had guys make passes at you before?
"Yes.
"Where?
"In 1966 in an armed robbery charge.
"Have you ever made passes towards guys?
"No, just once in prison.”
Mitchell testified on direct examination that he responded to the last question "No”, and did not add "just once in prison”; in neither incident did he make any sexual advances and both times he had been propositioned.
Mitchell was cross-examined concerning those incidents and was asked whether he had ever made a homosexual advance, pass or attack or consented to any homosexual act while incarcerated; he responded in the negative.
A person who occupied Mitchell’s cell while he was awaiting trial in the instant case testified on rebuttal, over objection, that Mitchell told him "how many homosexual activities he participated in with other prisoners”, described those activities, "said he screwed a lot of guys down there in prison”, that Mitchell "patted me on the butt many times”, and that "[h]e was constantly propositioning me with some kind of homosexual activity”.
On surrebuttal, another cellmate gave testimony
tending to negative the rebuttal testimony. Mitchell’s motion for a continuance to have still another cellmate produced was denied.
In closing the prosecutor argued the evidence of Mitchell’s "homosexual tendencies”.
Mitchell’s lawyer, responding briefly to that argument, said that homosexuality was not "the issue”.
II
The defense was self-defense, not that Mitchell was the victim of a homosexual attack.
Mitchell did not — in the letter, the statements or in his trial testimony — claim that he responded as he did, following Guthrie’s alleged assault, because he had been subjected to a homosexual advance or attack.
Mitchell claimed self-defense. The meritorious issue was whether Mitchell honestly believed that he was in danger of being killed or of serious bodily harm and whether he acted properly in resisting the perceived threat.___
Mitchell’s only characterization of Guthrie’s conduct as homosexual was in the first statement to the police,
introduced by the people.
In the letter and at the trial Mitchell described the grabbing as painful. He did not claim that the stabbing of Guthrie was justified or mitigated because he was affronted, repulsed or outraged by sexual overtones.
Mitchell’s lawyer, in argument during trial outside the presence of the jury, said that he did not regard homosexuality as an issue. In closing argument, following argument to the contrary by the prosecutor, he said that it was not the issue.
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Levin, J.
Garry Mitchell was convicted of second-degree murder.
Evidence was admitted over objection that, while awaiting trial in this case, Mitchell made sexual advances to a cellmate and related to him prior homosexual experiences in prison.
The people contend that the evidence was admissible
i) to rebut the defense that Mitchell was himself the victim of a homosexual assault by the person who was killed;
ii) to impeach Mitchell’s testimony that he had not made homosexual advances to other persons; and
iii) to show Mitchell’s propensities and character as a homosexual.
The Court of Appeals, in affirming Mitchell’s conviction, stated that by his defense Mitchell had put in issue his character as a homosexual. 44 Mich App 679; 205 NW2d 876 (1973).
We reverse and remand for a new trial.
I
Mitchell, in his early twenties, met Donald Guthrie, in his sixties, in a bar on the evening of November 8, 1970. Mitchell testified that he asked Guthrie for a ride to Lapeer and that Guthrie instead invited him to spend the night at his trailer home. Soon after arriving at the trailer, Mitchell went to sleep in the second bedroom. When he awoke the next morning he found Guthrie sitting at a table drinking whiskey and was invited to join him. After a quantity of beer and whiskey had been consumed, Mitchell became ill and laid down in the master bedroom. He was awakened by Guthrie pulling at his pants; he knocked Guthrie’s hand away and asked him what he was doing. Guthrie then grabbed Mitchell’s testicles and squeezed. Mitchell hit Guthrie about the head five or six times. Guthrie stepped away, reached behind his back, produced a knife and wielded it in Mitchell’s direction. Mitchell wrestled the knife away and stabbed Guthrie.
Mitchell fled in Guthrie’s car. Two days later, on
November 11, he wrote his parole officer describing the incident. A few days later, after his arrest, Mitchell made a formal statement to the police and, subsequently a second statement. The letter and the two statements were introduced as part of the prosecution’s case-in-chief. Mitchell’s trial testimony, the letter and statements relate essentially the same account of the events of November 8th and 9th.
In the letter to the parole officer there was no specific reference to homosexuality; Mitchell said: "I began to get up and he grabbed my penis, and it hurt, so I hit him about five or six times and yelled for him to get the hell away from me.”
In the first statement, on the day of his arrest, in response to a question Mitchell said that he thought Guthrie’s intentions were sexual, but did not claim that his conduct was justified or mitigated by the sexual nature of the assault:
"When you were woke up by Guthrie pulling on your pants, what did you think he was trying to do?
"I didn’t know what to think.
"Didn’t you tell one of the officers earlier that you thought he was trying to give you a blow job, as you stated it to them?
"I think that was his intention.
"Did Guthrie threaten you in any way before he pulled the knife?
"No, just grabbed me by my balls.
"Did he give any sign to you that he might have been a homosexual?
"No, none.
"When you took the knife away from Guthrie, what were you thinking about?
"Just stopping him.”
In the second statement, six days later, the following appears:
"Have you ever had guys make passes at you before?
"Yes.
"Where?
"In 1966 in an armed robbery charge.
"Have you ever made passes towards guys?
"No, just once in prison.”
Mitchell testified on direct examination that he responded to the last question "No”, and did not add "just once in prison”; in neither incident did he make any sexual advances and both times he had been propositioned.
Mitchell was cross-examined concerning those incidents and was asked whether he had ever made a homosexual advance, pass or attack or consented to any homosexual act while incarcerated; he responded in the negative.
A person who occupied Mitchell’s cell while he was awaiting trial in the instant case testified on rebuttal, over objection, that Mitchell told him "how many homosexual activities he participated in with other prisoners”, described those activities, "said he screwed a lot of guys down there in prison”, that Mitchell "patted me on the butt many times”, and that "[h]e was constantly propositioning me with some kind of homosexual activity”.
On surrebuttal, another cellmate gave testimony
tending to negative the rebuttal testimony. Mitchell’s motion for a continuance to have still another cellmate produced was denied.
In closing the prosecutor argued the evidence of Mitchell’s "homosexual tendencies”.
Mitchell’s lawyer, responding briefly to that argument, said that homosexuality was not "the issue”.
II
The defense was self-defense, not that Mitchell was the victim of a homosexual attack.
Mitchell did not — in the letter, the statements or in his trial testimony — claim that he responded as he did, following Guthrie’s alleged assault, because he had been subjected to a homosexual advance or attack.
Mitchell claimed self-defense. The meritorious issue was whether Mitchell honestly believed that he was in danger of being killed or of serious bodily harm and whether he acted properly in resisting the perceived threat.___
Mitchell’s only characterization of Guthrie’s conduct as homosexual was in the first statement to the police,
introduced by the people.
In the letter and at the trial Mitchell described the grabbing as painful. He did not claim that the stabbing of Guthrie was justified or mitigated because he was affronted, repulsed or outraged by sexual overtones.
Mitchell’s lawyer, in argument during trial outside the presence of the jury, said that he did not regard homosexuality as an issue. In closing argument, following argument to the contrary by the prosecutor, he said that it was not the issue.
Since Mitchell did not claim that his conduct was justified or mitigated by a sense of outrage engendered by an offensive homosexual advance, the rebuttal evidence of homosexual advances and experiences was not admissible on the ground that it was responsive to Mitchell’s defense.
Ill
Mitchell did not assert on direct examination that he had never made homosexual advances.
On direct examination he denied making the response attributed to him in the second statement to the police.
A proper rebuttal of Mitchell’s denial would have been the testimony of someone who was present when he made the second statement to the police.
Evidence that the statement, if made, might
have been true was not admissible to show that the statement was made.
Mitchell’s negative response to the question, on cross-examination, whether he had made homosexual advances to other persons was not subject to rebuttal. Recently adopted MRE 608(b) permits the court, in its discretion, to allow "inquiry” into specific instances of the conduct of a witness "concerning his character for truthfulness or untruthfulness”.
This is consistent with the common-law rule.
The people were limited to "inquiry” of Mitchell himself. Extrinsic evidence was not admissible. Mitchell’s sexual propensities or preferences do not bear on his character for truthfulness or untruthfulness.
We conclude that the rebuttal testimony was not admissible to impeach Mitchell’s testimony on cross-examination that he had not made homosexual advances to other persons.
IV
Evidence of Mitchell’s propensities or character as a homosexual was not admissible.
Recently adopted MRE 404, which is also consistent with the common-law rule,
provides, with exceptions not here pertinent, that "[e]vidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion” but that evidence of "other crimes, wrongs, or acts” may 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”.
No claim is made that the evidence of Mitchell’s sexual preferences or propensities was admissible under the "similar acts” proviso to the general rule prohibiting evidence of a person’s character. The proffered evidence is accordingly subject to the general prohibition of character evidence and to the specific rule which permits evidence of a pertinent trait of character of an accused only when offered by him or by the prosecution to rebut character evidence offered by him.
Mitchell did not, contrary to the Court of Appeals analysis, put in issue his character and, accordingly, rebuttal evidence regarding his character was inadmissible.
V
The people argue that Mitchell "portrayed” himself as a heterosexual and if the judge had not admitted the evidence of Mitchell’s homosexual propensities the jury would have been left with a false impression that he had no such tendencies and on that account might have acquitted him. The argument elides that it was the prosecution which introduced the subject matter and brought about whatever "portrayal” resulted from Mitchell’s response, and that Mitchell did not claim that his conduct was justified or mitigated by the sexual connotations of Guthrie’s assault.
A thread connecting all the arguments for admissibility is the claim that the people were responding to defense evidence — rebutting a defense of homosexual assault, impeaching Mitchell’s testimony, rebutting character evidence — rather than affirmatively. It is apparent on examination of the record, however, that the prosecutor’s purpose was to show affirmatively Mitchell’s asserted homosexuality and to make him out as a sexual aggressor and not simply to forestall an unexpressed defense, impeach testimony or rebut an express defense or defendant’s evidence or to explain ambiguities in the evidence regarding Guthrie’s intentions.
The people acknowledge that the cross-examination and rebuttal evidence "does not readily comport with any of the standard categories usually denominated under the general rubric of
'impeachment’ They contend that "the general rules related to introduction of character evidence do not provide the proper framework for analysis of the rebuttal testimony in this case”, and that the rebuttal evidence should not be deemed inadmissible because it "cannot be pigeonholed into one of the traditional categories of impeachment”, and that the "instant case presents an unusual situation which necessitates a balance of a variety of factors”. In a word, the people seek an exception to the rules of evidence.
Evidence of specific sexual acts may be admissible, when material, as "similar acts” where they tend to prove motive, intent or the like. Where not so admissible, a further exception to the general rule prohibiting proof of propensities or traits of character
may
be justified — in exercise of the judicial power to decide on the rules of evidence
— in order to avoid misleading the jury where there is probative evidence that the person’s sexual preferences or tendencies are atypical, having in mind the person’s age, marital history and general appearance.
If a defendant were to claim, for example, that homosexual overtures were shocking and offensive and that the reasonableness of subsequent conduct should be assessed with that in mind, evidence of comparable homosexual experience
might tend to refute the claimed "sense of outrage”. In this case, however, Mitchell made no such claim.
To be sure the jury might have inferred, al
though Mitchell made no such defense, that he had been subject to a homosexual advance and might also have inferred that he was a heterosexual and additionally inferred "a sense of outrage”. It was, however, the prosecutor who introduced the statements which contained the homosexual characterization of the attack and the references to homosexual advances in prison. But for the introduction of the statements, Mitchell would have had no occasion to deny having made a response attributed to him in one of the two statements or to explain what he did say.
But for the prosecutor’s cross-examination of Mitchell, there would have been no other reference to the subject matter. Without the evidence introduced by the prosecutor in his case-in-chief, his line of questioning on cross-examination and his closing arguments, there would have been no sexual characterization of the assault at the trial.
We are not prepared to say that because an unasserted sexual connotation might be inferred, the door is open to proof of sexuality or sexual experience.
We conclude that a further and concededly unprecedented exception to the general rule prohibiting propensity evidence was not warranted in this case.
Reversed and remanded for a new trial.
Kavanagh, C.J., and Williams, Fitzgerald, and Ryan, JJ., concurred Levin, J.
Coleman, J. I concur excepting as to footnotes 12 and 14.
Blair Moody, Jr., J., took no part in the decision of this case.