PEOPLE v CARNER
Docket No. 48553
Court of Appeals of Michigan
Submitted June 3, 1981. - Decided July 12, 1982.
117 Mich. App. 560
1. Reversal is mandated by reason of the failure of the trial court to exercise its discretion when it determined to permit the introduction of evidence of prior sexual acts between the defendant and the complainant.
2. The trial court abused its discretion in refusing to limit
REFERENCES FOR POINTS IN HEADNOTES
[1, 2, 8, 15-17] 29 Am Jur 2d, Evidence §§ 324-326.
65 Am Jur 2d, Rape § 70 et seq.
Admissibility at trial of criminal case, of evidence of defendant‘s criminal acts other than those charged-Supreme Court cases. 93 L Ed 184.
Admissibility, in prosecution for sexual offense, of evidence of other similar offenses. 77 ALR2d 841.
[2, 17] 5 Am Jur 2d, Appeal and Error § 881.
[3, 4, 9] 5 Am Jur 2d, Appeal and Error § 809.
[3-6, 9] 81 Am Jur 2d, Witnesses §§ 515, 516.
[5] 81 Am Jur 2d, Witnesses §§ 612, 613.
[7] 5 Am Jur 2d, Appeal and Error § 896.
[9] 81 Am Jur 2d, Witnesses § 74.
[10] 29 Am Jur 2d, Evidence § 719.
65 Am Jur 2d, Rape § 79.
Time element as affecting admissibility of statement or complaint made by victim of sex crime as res gestae, spontaneous exclamation, or excited utterance. 89 ALR3d 102.
[11] 21A Am Jur 2d, Criminal Law § 753.
[12] 21A Am Jur 2d, Criminal Law §§ 872, 873.
[13] 81 Am Jur 2d, Witnesses §§ 641, 644.
[14] 75 Am Jur 2d, Trial § 241.
Comment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused‘s failure to testify. 14 ALR3d 723.
3. The trial court erred in permitting the prosecution to present extrinsic evidence of the prior inconsistent statement of a witness relative to a collateral matter, since the prosecution elicited the statement concerning the collateral matter and was thus bound by the witness‘s testimony.
4. The defendant was denied a fair trial by reason of the overzealous behavior of the prosecution coupled with the trial court‘s failure to exercise any discretion in controlling the prosecutor‘s conduct.
5. Reversal is mandated by reason of the failure of the trial court to positively indicate and identify the fact that the court was exercising its discretion in determining whether to admit for the purpose of impeachment evidence of defendant‘s prior conviction.
6. The late endorsement of witnesses does not mandate reversal.
7. Since a delay of more than 18 months in bringing a defendant to trial results in a presumption of prejudice, the duty is on the prosecution on remand to rebut that presumption of prejudice.
8. The prosecution properly used prior consistent statements of the complainant to rebut defense counsel‘s implication that the complainant‘s trial testimony was coached.
BEASLEY, P.J., concurred in the conclusion that reversal is mandated; however, he would hold that the admission of the prior acts testimony was proper, that the broad brush conclusion from the entire record that the defendant was deprived of a fair trial is not an independent ground for reversal, and that no error resulted from the trial court‘s failure to embark on a dissertation on how it reached its determination with respect to the admission of the prior conviction evidence.
M. J. KELLY, J., concurred with Judge BAGULEY on all issues except the similar acts issue. As to that issue he concurred with Judge BEASLEY.
Reversed.
OPINION BY N. A. BAGULEY, J.
1. CRIMINAL LAW - EVIDENCE - PRIOR ACTS - RULES OF EVIDENCE.
Evidence of prior sexual acts between the complainant and a
2. CRIMINAL LAW - EVIDENCE - PRIOR ACTS - RULES OF EVIDENCE.
The failure of a trial court to inquire as to the nature of the evidence of specific prior bad acts which are sought to be admitted to establish the elements of a crime and weigh the probative value of such evidence against its prejudicial effect before admitting that evidence constitutes an abuse of discretion mandating reversal (
3. WITNESSES - CRIMINAL LAW - BIAS - APPEAL.
A witness may be questioned about his or her bias concerning a defendant even where the questioning might introduce evidence that the defendant committed another offense; the scope of cross-examination of a witness to show bias rests in the sound discretion of the trial court and will not be deemed error absent a clear showing of an abuse of discretion.
4. CRIMINAL LAW - EVIDENCE - BIAS - PREJUDICE.
It is an abuse of discretion for a trial court to permit cross-examination of a witness as to collateral matters for the purpose of showing the bias of the witness where the nature of the cross-examination is highly prejudicial to the defendant and the probative value is minimal by reason of the fact that the witness has already admitted that he lied to the police.
5. CRIMINAL LAW - EVIDENCE - CROSS-EXAMINATION - IMPEACHMENT.
The rule of evidence which allows admission of extrinsic evidence of a prior inconsistent statement of a witness if the witness is afforded an opportunity to explain or deny the statement is limited by the collateral matter rule which prohibits the prosecution from using prior inconsistent statements to impeach any statements concerning collateral matters which were elicited by the prosecution from the witness, the prosecution being bound by the witness‘s testimony as to collateral matters elicited by the prosecution (
6. EVIDENCE - COLLATERAL MATTERS - CROSS-EXAMINATION.
A matter raised on cross-examination is collateral if the cross-examining party would not be entitled to go into it in the case in chief.
A criminal defendant is denied a fair trial where the prosecution engages in overzealous and prejudicial behavior and the trial court fails to exercise any discretion in controlling the prosecution‘s conduct.
8. EVIDENCE - PRIOR CONVICTIONS.
A trial court must exercise its discretion in deciding whether to exclude a reference to a prior criminal conviction; in the discharge of that duty, the trial court must positively indicate and identify its exercise of discretion.
9. CRIMINAL LAW - ENDORSEMENT OF WITNESSES.
Late endorsement of a witness by the prosecution does not mandate reversal where the defendant fails to show any prejudice resulting from the denial of an opportunity to properly meet the testimony of such a witness.
10. EVIDENCE - HEARSAY - EXCITED UTTERANCES - RULES OF EVIDENCE.
A statement made by the complainant on the day following an alleged act of criminal sexual conduct relating to that conduct is not an excited utterance within the meaning of the excited utterance exception to the hearsay rule (
11. CONSTITUTIONAL LAW - CRIMINAL LAW - SPEEDY TRIAL - BALANCING TEST.
A balancing test is employed in attempting to resolve whether a defendant‘s right to a speedy trial has been violated; such test considers the following four factors: length of delay, the reason for the delay, the defendant‘s assertion of his right, and prejudice to the defendant.
12. CONSTITUTIONAL LAW - CRIMINAL LAW - SPEEDY TRIAL - DELAY - PRESUMPTIONS.
Prejudice to a criminal defendant is presumed after a delay of 18 months in bringing the defendant to trial; the prosecution has the duty to rebut this presumption of prejudice.
13. EVIDENCE - PRIOR CONSISTENT STATEMENTS - REBUTTAL.
Prior consistent statements of a witness may be admitted to rebut the suggestion raised by opposing counsel that the trial testimony of the witness was coached.
14. CONSTITUTIONAL LAW - CRIMINAL LAW - RIGHT TO REMAIN SILENT - PROSECUTORIAL COMMENTS.
A prosecutor‘s statement that the state‘s evidence is uncontra-
OPINION BY BEASLEY, P.J.
15. CRIMINAL LAW - EVIDENCE - SIMILAR ACTS EVIDENCE.
Evidence of similar acts, to be admissible, requires the following foundation: (1) substantial evidence that the defendant actually perpetrated the bad act; (2) the bad act must be probative of defendant‘s motive, intent, absence of mistake, design, scheme, plan or system in committing the charged offense; and (3) the evidence must be material to the determination of defendant‘s guilt of the charged offense.
16. CRIMINAL LAW - EVIDENCE - SIMILAR ACTS EVIDENCE - CRIMINAL SEXUAL CONDUCT.
Evidence of prior sexual assaults on a complainant by the defendant in a trial for criminal sexual conduct in the first degree is admissible where there is substantial evidence that the defendant committed the prior assaults since such evidence is probative of defendant‘s scheme, plan, or system in committing the charged offense and demonstrates the use of force or coercion which is an element of the charged crime.
17. EVIDENCE - PRIOR CONVICTIONS.
The failure of a trial court to embark upon a discussion of how its conclusion to admit for impeachment purposes evidence of a prior conviction is not evidence of a failure by the court to exercise its discretion.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Geoffrey H. Nichol, Assistant Prosecuting Attorney, for the people.
Lander C. McLoyd, Assistant State Appellate Defender, for defendant on appeal.
Before: BEASLEY, P.J., and M. J. KELLY and N. A. BAGULEY,* JJ.
N. A. BAGULEY, J. Defendant was convicted of
Defendant was charged with raping his 16-year-old daughter on January 6, 1978, using force or coercion. On appeal, he has raised numerous allegations of error, several of which require reversal. We first discuss those errors which mandate reversal.
I
ADMISSION OF PRIOR SEXUAL INVOLVEMENT BETWEEN DEFENDANT AND HIS DAUGHTER
Prior to trial, defense counsel moved to preclude the use of similar acts evidence by the prosecutor and asked for an offer of proof detailing the similar acts evidence which the prosecutor intended to introduce. The defense motion was denied, the trial judge stating that the bad acts testimony had much more probative value and far outweighed any “slight prejudice” which might occur to the defendant. The jury was later instructed to consider the evidence only to determine if the defendant “was acting purposefully, that is, that his acts were the result of a characteristic scheme, plan or system he had used before“.
The complainant‘s testimony concerning similar sexual acts included allegations that defendant would first tell her he was going to have sex with her, hit or slap her if she resisted, and then have sex with her. This evidence tended to prove that any verbal demands by defendant for sexual intercourse were in fact threats and complainant could have reasonably believed that force and violence
The use of force or coercion is an element of the charged offense. See
Evidence of prior acts tending to show force or coercion at the time of the charged offense may be admitted where its probative value is not outweighed by its prejudicial effect. Unfortunately, the trial judge admitted carte blanche all the prior bad sexual acts of defendant, refusing to inquire into the specific bad acts before they were disclosed to the jury. By so doing, the trial judge precluded the proper exercise of his discretion to exclude evidence which was more prejudicial than probative. By abdicating his discretion, the trial judge abused his discretion.
Although we hold that the trial court abused its discretion here, we take note that the exception to the general rule precluding use of similar acts testimony announced in People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), would apply here. In that case, the Court found that admission of evidence of antecedent sexual acts was especially
Regardless of whether the prior sexual acts testimony was admissible on the issue of force or coercion or under the rule of DerMartzex, the trial judge, upon being asked by the defense to exercise his discretion to exclude the testimony as overly prejudicial, should have determined what the actual testimony would entail before ruling that it was admissible. We find his failure to exercise his discretion to be reversible error.
II
THE PROSECUTOR‘S IMPEACHMENT TACTICS
For some unknown reason, defense counsel on direct examination questioned a next-door neighbor of defendant concerning her statements to police shortly after learning of the alleged incident between the complainant and defendant. The witness stated that her first reaction upon learning of defendant‘s alleged behavior was to hate defendant and try to make defendant look as bad as possible when she spoke with police officers. Later,
Defense counsel moved for a mistrial, arguing that the mention of such matters before the jury was grounds for a mistrial and reversible error and that the prosecutor‘s questions were outside the scope of direct examination. The motion was overruled after the prosecutor stated that defense counsel had elicited testimony from the witness that she had lied to the police, entitling the prosecutor to go into it on cross-examination. The prosecutor also asked the witness if she had told police officers that defendant had told her he was a hit man. She was also asked if she had told police officers that defendant always had money. The witness replied negatively to both questions. The witness was further asked whether she had told police officers that one of defendant‘s sons told her his dad would kill the family if people found out what was going on. The witness replied that she had told this to police officers but that it was not true. Defense counsel again objected.
All these “questions” posed by the prosecution were technically proper cross-examination to impeach the witness‘s credibility for truthfulness. See
We have held that a witness may be questioned concerning her bias in regard to a defendant even where the questioning might introduce evidence of another possible offense against the defendant. People v Chaplin, 102 Mich App 748, 751; 302 NW2d 569 (1980), rev‘d on other grounds 412 Mich 219; 313 NW2d 899 (1981).1 The scope of cross-examination of witnesses to show bias rests in the sound discretion of the trial court and will not be deemed error absent a clear showing of an abuse of discretion. Chaplin, supra.
While the prosecutor‘s questions here were particularly probative of the witness‘s credibility for truthfulness, the questions also severely prejudiced defendant. Further, the witness had already testified on direct examination that she had previously lied, making it unnecessary for the prosecutor to delve into specific allegedly untruthful statements by the witness regarding prior bad acts of defendant.
III
REBUTTAL TESTIMONY ON COLLATERAL MATTERS
The prosecutor presented a rebuttal witness to contradict the neighbor‘s testimony regarding her statements to police. The officer testified that he interviewed the neighbor. The neighbor stated that the complainant had told her she was raped several times by defendant and was warned not to tell anyone or she would be killed. Defendant‘s objection on hearsay grounds was overruled. The officer also testified that the neighbor told him that defendant had come to the neighbor‘s house one
The officer‘s testimony regarding the neighbor‘s prior statement to him that complainant had said she would be killed by defendant if anyone discovered the sexual assaults was improper extrinsic evidence of a collateral matter. Since the neighbor testified on direct examination that complainant did not tell her why no one should be told about the assaults, the prosecutor was entitled to ask the neighbor on cross-examination, if not overly prejudicial, whether she told the police that the complainant had said that she would be killed by her father if anyone discovered the sexual assaults.
There is no question that the officer‘s testimony regarding the statements about the defendant‘s handgun and alleged status as a hit man were collateral matters extremely prejudicial to defendant. The officer‘s testimony regarding the neighbor‘s statement of the complainant‘s fear of defendant requires closer scrutiny to determine if this involved a collateral matter. In Bixby v Gallagher, 43 Mich App 328, 339; 204 NW2d 295 (1972), this Court adopted an Indiana Supreme Court test as to whether or not something is “collateral“. If the cross-examining party would be entitled to go into the matter in its case in chief, the matter is not collateral. In the instant case, the prosecutor could not have presented the neighbor‘s statements to the officer regarding the complainant‘s statements to the neighbor in his case in chief because the complainant‘s statements were hearsay. Therefore, all of the officer‘s testimony regarding the prior inconsistent statements of the neighbor constituted improper extrinsic impeachment on collateral matters. The officer‘s testimony, together with the prosecutor‘s inflammatory questioning regarding other alleged bad acts of defendant, were highly prejudicial to defendant and should not have been admitted by the trial court. Neither the cross-examination nor the rebuttal testimony presented by the prosecutor survived either prong of the harmless error rule. See People v Lauzon, 84 Mich App 201, 205; 269 NW2d 524 (1978).
IV
DENIAL OF A FAIR TRIAL
A review of the entire trial record convinces us that defendant was deprived of a fair trial by the overzealous conduct of the prosecutor and by the trial court‘s failure to control the prosecutor‘s conduct and provide serious consideration of defendant‘s attempts to fairly present his case.
In addition to the errors noted above, we hereby note some further instances of prejudicial behavior by the prosecutor. Defendant was linked to the Oakland County child slayings by innuendo. The
V
IMPEACHMENT OF DEFENDANT BY PRIOR CONVICTION
Prior to jury selection, defense counsel had moved to bar the prosecution‘s use for impeachment purposes of defendant‘s 1971 conviction for attempted rape. Both counsel asked the judge to weigh the probative value of the conviction against the prejudicial effect of its use. The court denied the motion without comment.
On request, a trial judge must exercise his discretion in deciding whether to exclude reference to a prior conviction record. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). In order to comply with the rule in Jackson, the trial court must positively indicate and identify its exercise of discretion. People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). Although counsel for both sides here argued the probative effect versus the prejudicial impact of the prior conviction, the trial court merely stated that the motion in limine was denied. The situation in the instant case is quite similar to that in People v West, 408 Mich 332; 291 NW2d 48 (1980), and, therefore, we hold that the trial court erred by not positively indicating and identifying its exercise of discretion in deny-
VI
REMAINING ISSUES
Defendant raises several other issues on appeal, none of which requires reversal.
Defendant contends that two witnesses who were endorsed over defense objection the morning of the first day of trial were not res gestae witnesses and testified to inadmissible hearsay statements by the complaining witness. It is true that the two witnesses, a social worker at complainant‘s high school and a protective services worker with the Oakland County Department of Social Services, were not res gestae witnesses and, therefore, did not have to be endorsed by the prosecutor. The social worker interviewed the complainant the afternoon prior to the day on which the alleged offense occurred and on the day following the offense. The protective services worker was present during the second meeting with the complainant. At that meeting, the complainant told the two witnesses of the rape which had allegedly occurred the night before. See People v Johnston, 76 Mich App 332, 337; 256 NW2d 782 (1977). Even though the prosecutor was not required to endorse these witnesses, no reversible error occurred because defendant has not shown prejudicial surprise which deprived him of an opportunity to meet the evidence. In ruling that the late endorsement would be permitted, the trial court made it clear that defense counsel could have any time he needed to interview the witnesses endorsed that day. Defendant does not now claim that he was
Defendant‘s claim that the testimony of the two late-endorsed witnesses concerning statements made to them by the complaining witness was inadmissible hearsay is correct. The statements made by the 16-year-old complainant the day following the alleged rape were not excited utterances. People v Sommerville, 100 Mich App 470, 488-490; 299 NW2d 387 (1980);
Regarding defendant‘s contention that his constitutional right to a speedy trial was violated, we find that the record is too sketchy to make a determination. Because of the impact on the prosecution‘s right to retry defendant, defendant is entitled to an evidentiary hearing at which the trial judge should consider and make a ruling on several factors which are crucial to defendant‘s claim that his right to a speedy trial was violated.
The Michigan Supreme Court in People v Collins, 388 Mich 680, 688; 202 NW2d 769 (1972), recognized as the definitive test the general rule applicable to speedy trial cases established in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). The test requires a balancing of four factors: length of delay, reason for delay, whether defendant asserted his right to a speedy trial and prejudice to defendant caused by the delay.
Under Michigan law, delay in excess of 18 months results in a presumption of prejudice. People v Den Uyl, 320 Mich 477; 31 NW2d 699 (1948). It is the prosecutor‘s duty to rebut this presumption of prejudice. People v Bennett, 84 Mich App 408; 269 NW2d 618 (1978). Defendant here was arrested January 24, 1978, and trial commenced on July 30, 1979. Therefore, absent a proper explanation by the prosecutor, prejudice to defendant is presumed. People v Bennett, supra.
Defendant contends that he asserted his demand for a speedy trial in October of 1978. This claim cannot be verified by reference to the file. Therefore, defendant should be given an opportunity on remand to show that he asserted his right to a speedy trial in October of 1978, and the trial court should make a finding of fact with respect to defendant‘s claim. If it is established that defendant did assert his right to a speedy trial, this factor is “entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right“. People v Bennett, supra, 411, quoting from Barker v Wingo, supra, 531-532.
Regarding the fourth factor of prejudice to defendant, because of the 18-month delay, the prosecution must rebut the presumption of prejudice. The speedy trial guarantee protects three interests of defendant: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. The last of these
On remand, the prosecution should be given the opportunity to rebut any specific instances of prejudice which defendant may make. The trial court should make a specific finding regarding any conflict in opposing claims by the defense and the prosecution. Once the trial court has made appropriate findings on each of the four factors, each of the factors should be balanced to determine whether defendant‘s right to a speedy trial was violated.
We do not believe that reversible error occurred simply on the basis that the prosecutor asked a witness whether defendant told her that he had written a book entitled “Jailhouse Blues“. While this question, when considered with other prejudicial questioning by the prosecutor, has been determined to require reversal, the question alone did not severely prejudice defendant. It did not, as defendant claims, necessarily alert the jury to defendant‘s previous incarceration.
No error occurred in the prosecution‘s opening statement. The prosecutor was not disparaging the credibility of defense witnesses by stating that she would not call family members as witnesses. She stated that the family may not have known what
We also do not feel that the prosecutor improperly used prior consistent statements of the complainant to bolster her credibility. Defense counsel implied during cross-examination that the complainant was coached in her testimony by the prosecutor and that her testimony was not the same at trial as statements earlier made to the prosecutor. Therefore, the prosecutor‘s questioning of the complainant on rebuttal brought out evidence probative of whether the complainant had made prior inconsistent statements. It was within the trial court‘s discretion to allow such testimony. Stewart v People, 23 Mich 63, 74-76 (1871).
Since reversible error has been found elsewhere, we decline to consider whether error requiring reversal was committed by the prosecutor in asking the complainant about her pregnancy and subsequent abortion. The pregnancy and abortion did not show penetration as an element of the charged offense since the complainant was found to be pregnant one day after the charged offense. See People v Borowski, 330 Mich 120, 125; 47 NW2d 42 (1951). Indeed, the prosecution, in its opening statement, indicated that the complainant had probably gotten pregnant as the result of a prior rape by her father on December 3, 1977. We agree that the similar acts evidence might have been admissible under the rule of DerMartzex, supra, if the trial court had recognized and exercised its discretion in admitting evidence of such acts. However, it is a separate question whether the complainant‘s pregnancy and abortion should also have come in to bolster the complainant‘s
The prosecutor did not impermissibly comment on defendant‘s silence at trial by indicating that the complainant‘s testimony was uncontradicted. People v Balog, 56 Mich App 624, 628; 224 NW2d 725 (1974).
The remaining error, which concerns a violation of the indeterminate sentencing act,
Reversed.
BEASLEY, P.J. (concurring). I concur in reversing and remanding for a new trial.
I do not, however, share the conclusion that the trial judge abused his discretion by the way he handled the prior similar sexual acts testimony. Defendant argues that the similar act testimony was improperly admitted. In People v Yeo,1 this Court analyzed the admissibility of prior bad acts under
“[T]his Court imposed three standards to establish a foundation for similar acts evidence: (1) substantial evidence that defendant perpetrated the bad act, (2)
Defendant‘s prior sexual assaults on the victim in this case were admissible. There was substantial evidence that defendant committed the other sexual assaults. The evidence was also probative of defendant‘s scheme, plan, or system in committing the charged offense. The prior bad acts demonstrated defendant‘s use of force or coercion which is a material element of criminal sexual conduct in the first and third degrees.2 Therefore, I would find that the similar acts testimony was admissible so long as the prosecution established the proper foundation.
Neither do I share the broad brush conclusion that from the “entire trial record” defendant was deprived of a fair trial by overzealous conduct of the prosecutor and by the trial court‘s failure to control the prosecutor‘s conduct and provide serious consideration of defendant‘s attempts to fairly present his case. Imputation of reversible error should be specific.
I do not agree that, in ruling upon defendant‘s motion to suppress reference to a 1971 conviction for attempted rape for impeachment, the trial court erred by “not positively indicating and identifying its exercise of discretion” in denying the motion. In the context of the oral argument concerning defendant‘s motion, I would hold the trial judge exercised his discretion. Failure to embark upon a dissertation of how he reached his conclu-
However, the assistant prosecutor‘s cross-examination of Carol Hedglen, a neighbor who was called as a defense witness, was improper and highly prejudicial. While great latitude is given on cross-examination, the actions of the prosecutor in bringing before the jury the allegation that defendant told the witness that he had killed four people a long time ago, that he had written a book called “Jailhouse Blues“, that he said he carried a gun 24 hours a day, and that he was a hit man, far exceeded the scope of matters brought out on direct examination.
Thus, by her cross-examination of this witness, the prosecutor brought before the jury inflammatory matters not relevant or material to defendant‘s guilt or innocence and which reached a level so as to constitute reversible error. The prosecutor called another neighbor as a rebuttal witness who testified as to collateral matters of a highly prejudicial nature.
Last, the sentence imposed by the trial court was obviously in violation of People v Tanner.3 Since this is a concurrence, I would not see any purpose in further comment regarding other details of the majority opinion. Consequently, I would concur in reversing for the reasons indicated in this opinion.
M. J. KELLY, J. (concurring). I concur in Judge BAGULEY‘s authored opinion requiring reversal and in Judge BEASLEY‘s concurring opinion on the similar acts issue.
Notes
Further, the Court stated:
“If the prosecutor desired to show bias, it would have been sufficient to elicit an admission from the witness that she had posted the money to secure the defendant‘s release on bail. Instead, however, the prosecutor chose to emphasize Miss Ellis‘s prostitution activities and thereby necessarily suggested to the jury that the defendant was a person of bad character because he was closely associated with a prostitute and may have been her pimp.” Id.
The Court also determined:
“The evidence was not admissible under