People of Michigan v. Derek Joseph Bailey
332984
| Mich. Ct. App. | Nov 28, 2017Background
- Derek Bailey was tried in Grand Traverse County and convicted by a jury of two counts of first-degree criminal sexual conduct (victim under 13) for sexual assaults on his stepdaughter DT; sentenced to concurrent 25–50 year terms.
- Related prior trial in Leelanau County involved the same defendant and both stepdaughters; PT (another stepdaughter) previously testified there and was later called as an other-acts witness in the Grand Traverse trial.
- Prosecution introduced other-acts testimony from PT and DJ (a minor cousin) describing sexual misconduct, and testimony from two adult sisters-in-law describing lewd conduct; defendant moved to exclude this evidence as improper MRE 404(b) propensity evidence and for lack of timely notice under MRE 404(b)(2) and MCL 768.27a.
- Trial court denied the motion in limine, concluding any late notice was not prejudicial given the earlier Leelanau proceedings; defendant objected at trial and raised related appellate claims.
- On appeal, defendant argued (1) improper admission of other-acts evidence and inadequate notice, (2) prosecutorial vouching for the victim, (3) ineffective assistance for failure to object to vouching, and (4) evidentiary rulings about pornography; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of other-acts evidence (PT, DJ) under MCL 768.27a / MRE 404(b) | Other-acts were admissible to show propensity under MCL 768.27a and relevant to credibility | Admission was improper propensity evidence under MRE 404(b) and unfairly prejudicial under MRE 403 | Evidence admissible under MCL 768.27a; probative value not substantially outweighed by unfair prejudice; no abuse of discretion |
| Notice under MRE 404(b)(2) and MCL 768.27a(1) | Notice was adequate given prior Leelanau trial and supplemental lists/briefs | Notice was untimely and prejudicial | Any notice deficiency did not produce outcome-determinative prejudice; reversal unwarranted |
| Admission of sisters-in-law testimony (adult other acts) | Testimony relevant; even if error, harmless given other strong evidence | Testimony was improper and prejudicial other-acts evidence | Even assuming error, defendant suffered no prejudice given overwhelming admissible testimony; no reversal |
| Prosecutorial vouching and related ineffective assistance claim | Prosecutor argued from the evidence that the victim was credible | Prosecutor vouched improperly for DT; trial counsel ineffective for not objecting | Prosecutor did not impermissibly vouch (arguments based on record); claim of ineffective assistance fails because objection would have been futile |
Key Cases Cited
- Lukity v. People, 460 Mich 484 (standards of review for evidentiary error and prejudice analysis)
- Jackson v. People, 498 Mich 246 (failure to provide MRE 404(b)(2) notice reversible only if outcome-determinative prejudice shown)
- Watkins v. People, 491 Mich 450 (MCL 768.27a allows propensity evidence; apply MRE 403 weighing favoring probative value)
- Waclawski v. People, 286 Mich App 634 (requirement of substantial evidence that other acts occurred before admission)
- Crawford v. People, 458 Mich 376 (definition and application of unfair prejudice under MRE 403)