People v. Adair

Adair v ADAIR PEOPLE 1994, 1, Rapids. at Grand Submitted March 165341. Docket No. appeal sought. 17, 1994, 9:20 a.m. Leave at Decided October on Circuit Court to the Jackson bound over D. Adair was William degree for in the third sexual conduct of criminal two counts assaulting denied sexually wife. The defendant allegedly his trial, sought place. the defendant took Before the incident he and permitting trial evidence that him to offer at an order after the date of sexual relations had consensual his wife purpose charges in the criminal that resulted incident alleged unlikely showing sexual assault that was Schmucker, J., court, found place. Chad C. The trial had taken 28.788(10), statute, 750.520j; did rape-shield MCL that the conduct prohibit of a victim’s sexual use of evidence not alleged assault after an sexual that occurred with a defendant prof- probative value the trial and that but before outweighed prejudicial ordered effect and its fered testimony concerning contact be- questions sexual thirty occurring within and the victim the defendant tween prosecutor permitted. The be days incident would after the granted. appealed leave Appeals held: The Court of spe- provides that all evidence of statute 1. The inadmissible conduct of a victim’s sexual incidents cific probative is not value except material and its where prejudicial inflammatory and it outweighed by nature or its topics, it is “evi- specific of which is that one with two deals past the actor.” conduct with sexual dence of the victim’s 28.788(10)(l)(a). 750.520j(l)(a);MSA "past must mean sexual phrase conduct” sexual 2. The in the place that resulted the incident took before conduct that References 2d, 497. § Am Jur Evidence prosecution, rape admissibility, in forcible Modern status prior 94 ALR3d 257. complainant’s acts. case, Rules of rape Rule 412 of Federal Admissibility under ALR Evidence, sexual behavior. victim’s evidence of 519. Fed Opinion of the Court charge criminal and does not mean all sexual conduct that took place trial, believes, before as the trial court because the trial "past” surplusage court’s construction renders the word Courts, nugatory. interpreting legislative enactments, should meaning assume that any each word has some and will avoid any part construction that renders a statute or of the statute surplusage nugatory. 3. Because the defendant intended to use evidence of sexual conduct with alleged his wife that occurred after the assault for general impeachment her, being his defense the inci- happen place dent did not and not took with her consent, the constitutional of confrontation is not at issue. Accordingly, ordering the trial court erred in that the defen- present dant could at trial evidence of sexual contact between the defendant thirty days and his wife that occurred within alleged after the criminal conduct. part.

Order vacated in Giovan, J., dissenting, W. J. stated that the reaches by relying statutory its result on a rule of construction that assumes carefully every has considered admitting word of the Legisla- statute while a belief that the probably contemplated ture never this situation. The word "past” was ordinary used in the statute in its sense and referred to all conduct that occurred before trial. The decision of the trial court should be affirmed. — Rape-Shield — Words and Phrases "Past Sexual Conduct” Statute. phrase "past The sexual conduct” as used in the statute refers to conduct that upon occurred before an incident (MCL charge which a 750.520j[l][a]; criminal is based 28.788[10][l][a]). Kelley, Attorney Frank General, Thomas L. Casey, General, Solicitor Hurst, Dennis Prosecut- ing Attorney, ecuting Attorney, Dungan, and Michael Assistant Pros- people.

for the Ballard, Travis for the defendant. Shepherd

Before: P.J., and McDonald, J.W. Giovan,* JJ._

* judge, sitting Appeals by Circuit assignment. on the Court of Adair Opinion op the Court appeal by people leave The P.J. McDonald, permitting May granted 26, 1993, order a subsequent regarding admission victim, defen- defendant between acts prosecution of defendant wife, in this dant’s third-degree conduct, criminal sexual counts of two 28.788(4). vacate that We 750.520d; MSA portion order. alleged charges incident that of an arise out September morning early hours in the

occurred 27, Although complaint had for divorce 1992. date, and the this defendant filed before been in the marital to reside both continued victim and the vic- Defendant their children. home with and the victim resided different shifts worked tim tri-level home. The victim level of the in the lower sleeping in the basement when she was testified sexually assaulted the room and entered defendant to admit trial, filed a motion defendant her. Before showing had subse- the victim he and evidence quent relations, that he and the sexual consensual marriage during en- their the course of victim gaged form the basis to those which in acts similar engaged charges, that the victim had of party. At on issue with a third relations sexual appeal ruling admissible evi- court’s is the trial showing subsequent contact between sexual dence defendant occurring thirty within

and the victim alleged days of the assault. inadmissibility admissibility of evidence or

The regarding in criminal sexual conduct a victim’s governed by conduct cases is sexual statute, 28.788(10). 750.520j; MSA stat- part: pertinent ute reads (1) the victim’s specific instances of Evidence of conduct, opinion of the victim’s evidence sexual conduct, evidence of reputation sexual App 207 Mich Opinion of the Court sexual conduct shall not be admitted un- victim’s 520g der sections 520b to 750.520b-750.520g; [MCL 28.788(2)-28.788(7)] only unless and to the extent judge following finds that proposed evidence is material to a fact at issue in the case and that nature does not its inflammatory prejudicial outweigh probative its value: (a) Evidence the victim’s sexual conduct with the actor. (b) specific Evidence of instances of sexual activ-

ity showing origin semen, the source or preg- nancy, or disease. Defendant argues the statute inapplicable be- cause the acts at issue involve subsequent rather than "past sexual conduct.” We find no merit to this contention. As this Court previously stated Stull, 14, 338 NW2d (1983): Contrary claim, to defendant’s this statute does not only bar complainant’s evidence of activity prior alleged bars, rape. It with two exceptions,

narrow evidence of all sexual activity not incident alleged to the rape. Having found the conduct at issue falls within the exclusionary language statute, we must next determine whether one of the exceptions exclusion apply. Subsection regarding b showing the origin semen, source or pregnancy, or disease has no relevance to the evidence defen- dant seeks to admit. MCL 750.520j(l)(b); MSA 28.788(10)(l)(b). However, a, subsection permitting under certain circumstances admission "[ejvidence of the victim’s conduct actor,” with the was utilized the trial court support of ruling its that evidence of subsequent sexual conduct between the victim and defendant People v Adair op Opinion the Court of the assault was occurring thirty days within 28.788(10)(1) MSA 750.520j(l)(a); admissible. (a). "past” The trial court found conduct referred trial, to that occurred before the date of conduct the not conduct that occurred before date of only the offense. We believe the trial court erred so holding. suggested

To read the statute as the trial Legislature’s court renders the use of the word meaningless. statute, a "past” construing When Court presumes every this word has some meaning any will avoid construction of it any part surplusage renders a statute or George nugatory. Saint Greek Orthodox Church of Southgate Laupmanis Associates, PC, v 204 Mich 278; 514 NW2d 516 therefore We find the "past reference subsection a to conduct” encompasses conduct that occurs the inci- before charges dent and not to conduct underlying subsequent thereto.1

Concluding proffered evidence is inadmissi- to pursuant ble statute does not inquiry. Supreme end the Our Court has noted that under certain limited situations exclusion evidence under the rape-shield may statute uncon- stitutionally abridge defendant’s to con- People Hackett, frontation. 1Although interpret plain meaning of we the statute to include issue,

only say exception incident can that conduct that occurs before the at we not Legislature intentionally application of excluded the Rather, subsequent conduct. we believe the likely failed to consider the issue at all. At the time of the more than typical rarely enactment criminal sexual conduct case statute’s involved the question subsequent sexual conduct between the However, given the of MCL defendant and the victim. amendment 28.788(12) 750.520(1); rape exception to abolish the marital conduct, 138, prosecution for criminal sexual see 1988 PA and the growing complex increasing recognition ever number relationships, likely subsequent it is the issue of nature of abusive sexual conduct between the victim and the actor will continue to Court’s, Nonetheless, Legislature’s, and not this func arise. keep legislation tion to current. 207 Opinion of the Court examples, NW2d 120 As the Court noted involving proffer situations of evidence of a complainant’s prior sexual conduct for the narrow purpose making showing of bias or ulterior motive for charge

a false as well as evidence indicat- ing the victim had made false accusations in the past. Id. at 348. properly

To raise a claim that exclusion of evi- dence under statute violates a right confrontation, defendant’s constitutional defendant proof an must make offer of and demon- purpose strate its relevance to the for which it is sought to be admitted. The motion is to be denied showing relevancy. unless there is a "sufficient” Only of proof if there ais sufficient offer of concern- ing a defendant’s constitutional to confronta- simply tion, "as distinct from use of sexual con- impeachment,” duct as evidence of character or for hearing evidentiary will an in camera be war- ranted. Id. at 350.

The evidence at issue herein does not fall under any categories noted the Court in Hack- ett. Defendant wishes to use evidence of subse- quent impeachment purposes. sexual conduct for Defendant’s defense is that the incident never occurred. Defendant believes evidence that engaged subsequent victim sexual contact with lying defendant will indicate she is when she ques- states sexual contact occurred on the date in agree tion. We do not believe this follows. We prior subsequent evidence of as well as may contact between and defendant relevant be when defense is consent. Consent however is not defendant’s defense. Moreover even proposed possessed if we determined the probative many value, some there are instances logically under the law where excluded relevant evidence is competing policy interests, because i.e. People v Adair Dissent W.J. protection privileged inquiry into communi- preclusion hearsay, cations, and the limita- 404(b). prior evidence, tion of bad act MEE These examples are familiar of instances which the probative admissibility of evidence is restricted competing superior policy. Hackett; because of supra Additionally, 345-346. at the law bars evi- may prejudice jury dence that and mislead the arguable only probative worth. Arnenda, 1; 416 Mich 330 814 NW2d attempts Here, defendant to introduce evidence merely impeach- of the victim’s sexual conduct for purposes. ment This does not rise to the level of a showing necessitating "sufficient” of relevance an hearing. supra; People Hackett; in camera v App (1993), Byrne, 502 386 NW2d finding let alone a of a violation of defendant’s to confrontation. Exclusion of the evidence infringe unduly will not defendant’s constitutional right to confrontation. portion permitting

That of the order the intro- evidence, therefore, duction of the contested vacated. J., concurred.

Shepherd, (dissenting). my J.W. J. In Giovan, view the rape-shield statute does not bar evidence of the complainant’s sexual conduct with the defendant alleged that occurred after the date of the assault. majority says plain meaning The that the of the ("Evidence applicable exception1 of the victim’s actor.”) past sexual conduct the is that the with questioned part exception. evidence is not If plain meaning ordinarily of a statute is re- plain meaning words, flected in its literal then the here is that the evidence is not excluded. Evidence 750.520j(l)(a); 28.788(10)(l)(a). App Mich W.J. Dissent trial, the conduct at that time is

is offered at "past” it occurred before or after conduct whether alleged assault. quite plain enough, meaning

But is not majority necessary seems, as finds it to resort applied construction, the one here a rule of being presume every word in a that none of them can be that we must meaning statute has seen as so surplusage nugatory. Accordingly, "past” said, because all conduct is at the time of applied unnecessary trial, literally if it that word would be conduct; to all and so the word "past” referring only must be understood as charged, conduct that occurred the offense before and not after.

Remarkably, using however, after "no only justification words” rule as the wasted finding meaning in the statute that does not fit majority opinion goes words, its literal say on to premise of the rule does not exist. principle George of Saint Orthodox Church of Southgate Laupmanis Associates, PC, 204 (1994), 278; 514 NW2d 516 applied meaningless is unless there is room for its presumption Legislature carefully that the thought consequences about the of each word by majority But used. we are assured the I —and quite agree Legislature fact, that, in the did not — have, then, think about this issue at all. What we reading plain meaning is not a of the of the statute, but instead a construction of artificial applying assumption of result an that is acknowl- edged to be nonexistent. responsibility declines for the re by saying Legislature’s obliga

sult tion, it is the "keep legislation Court’s,

not the current.” required. But no action is All necessary is that the Court itself abstain People 295 Adair v W. J. Dissent Legislature carefully pretense from a projected consequence it used of each word majority seems it did not. The we know that when obliged result for reach an unintended somehow fell onto the than that arrangement. words better reason no given paper the "dictio Dubbed in a nary” construction,2 never been that has school interpreting accepted statutes. method of an construing nonex- the statute under a Instead principle People premise, v under the istent (1983), Stull, 14; 338 NW2d 402 127 Mich person a third conduct with whose context —sexual here, the statute should have been also absent —is light the Court said in the of what viewed People 302, 307-308; 379 Perkins, 424 Mich v (1982), bar, which, at 390 like the case NW2d complainant an involved conduct between accused: case proposed testimony this Because the activity between the related to sexual defendant, strong prohibitions on evi- activities, complainant’s past sexual of a dence opin- in several recent

which we have discussed indicates, ions,6 are not involved.7 As the statute evidentiary the more usual we are faced with to the materiality issues issues in the case and the balancing proba- of its danger prejudice. of unfair tive value with the (1984); Hackett, 338; People 421 Mich 365 NW2d 120 6 See v (1982); Williams, 25; People People Arenda, 330 NW2d 823 v v 330 NW2d 814 Arenda, explained supra: n 6 As we law, specific exceptions, rape-shield certain was "The with designed sexual conduct to exclude evidence of the victim’s persons . . . other than defendant. with represent prohibitions law contained in the "The that, cases, legislative in most such evidence is determination a irrelevant. . . . (CA 727, 733, 2, 1951), Judge Mills, quoting F2d Schwartz v Learned Hand. 207 Dissent W. J. prohibitions "The in the law are also a reflection of the histories,

legislative inquiries determination that into sex even relevant, minimally carry danger unfairly prejudic- when a of (Emphasis added.) ing misleading jury.” and 416 Mich 10. Indeed, 404(aX3) provides MRE for different treatment prior activity evidence of defendant: sexual between a and a "(a) Generally. person’s Character Evidence Evidence of a character or trait of his character purpose particular is not admissible for the proving conformity that he acted in therewith on a occasion, except: "(3) Character of Victim of Sexual In Conduct Crime. conduct, prosecution for a criminal evidence of the past victim’s specific sexual conduct with the defendant and evidence of activity showing origin instances of sexual the source semen, pregnancy, or disease.” 8 and -9 [Footnotes omitted.] evidentiary prohibitions that the Court ref- (1) avoiding unnecessary erences are aimed at (2) complainants,

humiliation of reporting (3) deterrents to the prosecution assaults, and of sexual question guilt distraction from the People Arenda, accused. 814 v 416 Mich 330 NW2d very person Sexual conduct with the assault, hand, accused of the on the other has a qualitatively probative value, different level of if the was not at all concerned with excluding conduct, evidence of such as the Su- preme patently inappropriate observes, Court they to infer that drew a distinction it about on the basis whether it occurred before or after the charged. time of the crime "past” obvious, then, It should be that the word ordinary was used the statute in its sense. up Whether or punctilio, not measures to a scrivener’s nothing irregular, manifestly there is referring all, after occurred in the example, opinion to all conduct that has "past” Take, as conduct. following passage from the People Hackett, 338, 347- (1984): 348; 365 NW2d People v Adair by Giovan, Dissent W. J. J. rule, enacting general exclusionary By a Legislature recognized majority that the vast cases, rape prior evidence of a victim’s others, reputation, conduct with and sexual when prove offered to that the conduct at issue was general impeachment is inadmis- consensual or for [Emphasis supplied.] sible. "prior” synonym

The word is used here as a for "past.” Supreme If we can assume that a Court justice writing publication for will be at least as diligent language anonymous with as an drafter of legislation, apply and if rule we were same majority of construction that does with the say statute, that, we would because the word "prior” superfluous, regard is otherwise we must saying general exclusionary the Court as that rule bars evidence of a victim’s sexual conduct alleged crime, that occurs before the but not after. , That would be a tortured view of the Court what hardly said, and the result reached here is more acceptable. ruling proffered

Besides that evidence is act, excluded adds probative that it has insufficient value to com- admissibility mand under the constitutional contends, of confrontation.3 The and the defendant agreed, trial court has that the evidence subse- quent relations is relevant to consensual show because, the assault never occurred if he had forcibly alleged, her not assaulted as she would agreed have to have sex with him on two occasions relatively within a short time thereafter. While not the later acts of consensual sex would neces- sarily preclude finding complainant that the was Hackett, obvious, supra. perhaps See As is I do not suggest necessary justify to the constitution to to resort admission of the evidence. Dissent W. J. they certainly

assaulted, are not to the irrelevant point. 401. MRE majority says that the evidence is not suffi-

ciently probative only it because is offered "impeachment.” say only by But it can dis- torting meaning proffered of the term. The impeachment, said, evidence would be is because the defendant contends that the assault never saying and, therefore, occurred the defendant is lying. that the Saying that the assault never occurred is contra- impeachment. diction, not In the law of evidence "impeachment” capacity refers to an attack on the regard of a character, to witness tell the truth in to moral capacity, corrup- bias, interest, mental Offering contradictory testimony tion, and the like. something on the in substantive issues the case is quite any impeaching different, and effect of such Wigmore, evidence is incidental. 3A Evidence (Chadbourn rev), p § 908, 698. majority’s "impeachment” definition of coin- prosecutor’s "preju- cides with the definition of argument dice.” When asked on oral how the complainant prejudiced by evidence, would be the prosecutor responded jury might the that a con- clude that the acts of consensual sex are inconsis- having tent with her dant. been assaulted the defen- Precisely apparently, evidence, so. The excluded would tell us too much about the truth of what barely occurred. The hidden rationale behind these irregular impeachment prejudice notions of proposition rape-shield the the statute ex- cludes evidence of a defendant’s innocence order protect being exposed the from as Surely yet a liar. we have not come to that. any proof necessary If additional were to demon- Adair W.J. Dissent anomaly today’s the full extent of the strate supplied by ruling, the fact that it would be no resemblance to the excluded evidence bears policy statute, which, in a behind protect complainants word, unnecessar- is to from embarrassing ily of sexual conduct. The reputation-rending degrading conduct that keep jury from in this Court will the ears complainant, woman, is that a married case agreed with her husband to have sexual relations get out, If the word should on two occasions. speak again. probably no one will to her with, then, we left is that evidence What are probative of the defendant’s innocence and that is that Legislature thought excluding, never imputes and which complainant, no unchaste behavior to

must be excluded nevertheless charge spare order from the single extravagance in the use of a word. my

In the trial court did not abuse its view deeming questioned evidence ad- discretion missible. For the above reasons say prop-

I erly could not have reached a different result.

Case Details

Case Name: People v. Adair

Court Name: Michigan Court of Appeals

Date Published: Oct 17, 1994

Citation: 524 N.W.2d 256

Docket Number: Docket 165341

Court Abbreviation: Mich. Ct. App.