Opinion
355454
09-09-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. CHRIS PHILIP GLISSON, Defendant-Appellee.
UNPUBLISHED
Berrien Circuit Court LC No. 2020-000834-FH
Before: Ronayne Krause, P.J., and Beckering and Boonstra, JJ.
PER CURIAM
In this interlocutory appeal involving a charge of assault by strangulation or suffocation, MCL 750.84, the prosecution appeals by leave granted the trial court's order denying its motion in limine to exclude evidence. On appeal, the prosecution argues that the trial court abused its discretion in deciding to allow defendant, Chris Philip Glisson, to present irrelevant evidence relating to the potential existence of a sex tape involving the complainant, Steven Meridy, Jr., and defendant's daughter, as well as an offensive comment the complainant had allegedly made in the past to defendant's daughter. For the reasons set forth in this opinion, we agree and reverse. We note, however, that our ruling is limited in scope to the narrow question presented, being whether the evidence at issue was admissible for the specific purposes intended by defendant. This opinion does not limit the trial court from determining whether the evidence at issue, or any other evidence, is admissible for other proper purposes.
People v Glisson, unpublished order of the Court of Appeals, entered February 10, 2021 (Docket No. 355454).
I. PERTINENT BACKGROUND AND PROCEDURAL HISTORY
This case arises out of an altercation that occurred between the complainant and defendant at St. Joseph High School. Defendant worked at the school, and the complainant was a student. The complainant, who was 18 years old, had started dating defendant's 16-year-old daughter, SG. SG believed defendant did not like the complainant, so on February 20, 2020, she asked the complainant to talk with defendant "to smooth things out." The complainant located defendant at school and the two started talking. Their discussion ultimately led to a physical altercation that was captured (without sound) on one of the school's surveillance videos. The video shows the two had a conversation for a substantial period of time, during which defendant became increasingly animated and periodically advanced into the complainant's personal space, then backed away. Eventually, the two were so close together their faces were almost touching. Defendant then grabbed the complainant's neck, shoved him onto a table, and bent over him. After another staff member came upon the scene, the two broke their physical contact.
The prosecution charged defendant with assault by strangulation or suffocation, MCL 750.84(1)(b). At defendant's preliminary hearing, the complainant testified that after defendant made threatening statements to him, defendant then wrapped both of his hands around the complainant's throat, lodged his thumbs into the complainant's neck, and squeezed, cutting off the complainant's circulation. During cross-examination, defense counsel asked the complainant about the existence of an alleged "sex video" between complainant and SG, and whether the complainant had ever threatened SG, namely, that he hoped she "chokes on a dick and dies."Over the prosecution's objections, the complainant was allowed to answer both questions; he denied having or claiming to have such a video or threatening SG.
Defendant's statements to the police imply that the complainant had threatened to release a sex tape and made a vulgar remark to SG before a two-week period in which they were not speaking. At the motion in limine hearing, defense counsel said that defendant would testify that the threats were made at the time the events at the high school occurred, as well as previously.
Following the preliminary hearing, the prosecution moved in limine to exclude evidence regarding an alleged sex tape between the complainant and defendant's daughter, as well as evidence that the complainant allegedly made an offensive comment to defendant's daughter, contending that the evidence was irrelevant and would only distract the jury and attack the complainant's general character. In response, defense counsel argued that the evidence was relevant for several reasons, including to impeach the complainant, to show that defendant's actions were not intentional, and to show that defendant acted in self-defense. Defense counsel also contended that defendant had a constitutional right to present a defense. The trial court held a motion hearing at which it agreed with defense counsel and denied the prosecution's motion. This Court granted the prosecution's application for leave to appeal, and the trial court granted a stay of proceedings pending our resolution of this evidentiary ruling.
II. ANALYSIS
The prosecution contends on appeal that evidence of an alleged sex tape between the complainant and SG, as well as evidence that the complainant made an offensive comment to defendant's daughter, are not relevant to any material fact the jury must decide and would only serve to distract the jury and attack the complainant's character. Although we do not foreclose the trial court from admitting the evidence on proper grounds pursuant to the rules of evidence, we agree that defendant has not set forth any proper purpose for admission of this evidence.
This Court reviews preserved evidentiary issues for an abuse of discretion. People v Mahone, 294 Mich.App. 208, 212; 816 N.W.2d 436 (2011). Additionally, this Court "review[s] for an abuse of discretion a trial court's ruling on a motion in limine." People v Langlois, 325 Mich.App. 236, 240; 924 N.W.2d 904 (2018). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." Mahone, 294 Mich.App. at 212. "A trial court abuses its direction when it makes an error of law or operates within an incorrect legal framework." Langlois, 325 Mich.App. at 240.
"[I]t is essential that prosecutors and defendants be able to give the jury an intelligible presentation of the full context in which disputed events took place." People v Sholl, 453 Mich. 730, 741; 556 N.W.2d 851 (1996). "The more the jurors [know] about the full transaction, the better equipped they [are] to perform their sworn duty." Id. at 742. The Michigan Supreme Court recognized in People v Delgado, 404 Mich. 76, 83; 273 N.W.2d 395 (1978), that "[i]t is the nature of things that an event often does not occur singly and independently, isolated from all others, but, instead, is connected with some antecedent event from which the fact or event in question follows as an effect from a cause" and that "[w]hen such is the case and the antecedent event incidentally involves the commission of another crime, the principle that the jury is entitled to hear the 'complete story' ordinarily supports the admission of such evidence."
Generally, however, "evidence of other crimes, wrongs, or acts of an individual is inadmissible to prove a propensity to commit such acts." People v Crawford, 458 Mich. 376, 383; 582 N.W.2d 785 (1998). MRE 404(b)(1) specifically provides that "[e]vidence of other crimes, wrongs, or acts" may be admissible for other purposes. For other-acts evidence to be admissible at trial, the following must be established:
First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [People v VanderVliet, 444 Mich. 52, 55; 508 N.W.2d 114 (1993), amended 445 Mich. 1205 (1994).]MRE 404(b) does not provide a "res gestae exception." People v Jackson, 498 Mich. 246, 274; 869 N.W.2d 253 (2015).
At the outset, we conclude that evidence of any physical threats the complainant made to defendant or SG during or immediately preceding the February 20, 2020 encounter is admissible.The jury will be required to decide whether defendant assaulted the complainant by strangulation or suffocation, which may include determining whether defendant acted in self-defense or the defense of others. As a result, the jury is entitled to hear anything the complainant said in the minutes before the physical altercation indicative of an imminent unlawful use of force by the complainant.
SG was present during a portion of the incident at issue.
With respect to evidence of a sex tape and a prior insulting remark the complainant allegedly made to SG, the prosecution asserts that not only is this evidence irrelevant under MRE 402, it would essentially amount to "other acts" evidence that would primarily serve to paint the complainant as a bad person. As such, it is inadmissible under MRE 404(b) and unduly prejudicial under MRE 403. On the other hand, defendant contends that the proffered evidence merely relates to the complainant's previous statements that are not subject to MRE 404(b). However, in response to the motion in limine in the trial court, defendant argued that the complainant threatened to release the sex tape in an attempt to convince SG to rekindle their relationship. Defendant also characterizes the complainant's statement directing SG "to choke on a dick and die," as a threat. Testimony concerning such threats could be considered evidence of "other acts" as contemplated by MRE 404(b) and is subject to scrutiny if the sole purpose of its admission is to give rise to an impermissible character-to-conduct inference. Jackson, 498 Mich. at 263. Nonetheless, even if the proffered evidence is not subject to the limitations in MRE 404(b), the evidence must still be relevant to be admissible.
MRE 402 provides that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court." It also provides that "[e]vidence which is not relevant is not admissible." MRE 402. MRE 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Relevant to this case, a person who commits assault by strangulation or suffocation is guilty of a felony. MCL 750.84(1)(b). "Strangulation or suffocation" means "intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person." MCL 750.84(2)
Defendant argued against the prosecution's motion to exclude, contending that the threats that the complainant made caused "emotional hotness" between him and the complainant, which shows that he did not intentionally strangle the complainant. The trial court appeared to agree with defendant and held that evidence of the sex tape and the statement to SG was relevant to establish defendant's state of mind.
To the extent that defendant's use of the phrase "emotional hotness" is an attempt to apply the elements of "heat of passion" and "adequate provocation" to this matter, such a defense is inapplicable to the circumstances of this case. The "adequate provocation" defense is generally considered when determining whether to mitigate a homicide from murder to manslaughter. See People v Pouncey, 437 Mich. 382, 388-392; 471 N.W.2d 346 (1991). This case involves an assault, not a homicide, and evidence of provocation is irrelevant. See People v Mitchell, 149 Mich.App. 36, 39; 385 N.W.2d 36 (1986) ("An assault is not mitigated to a lesser offense because of the existence of provocation."). See also People v Stevens, 306 Mich.App. 620, 628-629; 858 N.W.2d 98 (2014) (explaining that evidence of provocation is irrelevant for a conviction for assault with the intent to do great bodily harm).
Additionally, to the extent defendant claims that evidence relating to the complainant's alleged threat to release a sex tape or utterance of an offensive remark to SG helps support defendant's theory that he accidentally touched the complainant's neck in an effort to restrain him, we fail to see the relevancy between the proffered evidence and defendant's theory. See People v Yost, 278 Mich.App. 341, 403; 749 N.W.2d 753 (2008) ("The relationship of the elements of the charge, the theories of admissibility, and the defenses asserted governs what is relevant and material.") (quotations marks and citation omitted). Although testimony involving matters that occurred before the day of the altercation may establish the motive for defendant's actions, it would not make it more or less probable that defendant actually intended to assault the complainant by strangulation or suffocation. MRE 401.
Moreover, we disagree with defendant's proposition that the evidence was admissible to prove he acted in self-defense or the defense of others. MCL 780.972(2) of the Self-Defense Act, MCL 780.971 et seq., provides the following regarding the use of nondeadly self-defense:
An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual. [emphasis added.]
Evidence of the complainant's "specific acts of violence is admissible only to prove an essential element of self-defense, such as a reasonable apprehension of harm." People v Edwards, 328 Mich.App. 29, 37; 935 N.W.2d 419 (2019).
Defendant argued and the trial court agreed that the evidence was relevant and admissible to support a claim of self-defense. However, the evidence does not illustrate acts of aggression. The complainant creating a sex tape and threatening to release that sex tape does not constitute a specific act of violence. See id. Additionally, the complainant having allegedly told SG "to choke on a dick and die," although offensive and malicious, does not constitute an act of violence. See id. Therefore, that evidence was not admissible to establish defendant's self-defense claim.
Because we conclude that the evidence in dispute is irrelevant for the purposes intended, and thus, inadmissible for those purposes under MRE 402, we need not address the prosecution's MRE 403 argument.
Similarly, we conclude that the trial court erred in holding that the evidence was admissible to prove the complainant's bias, interest, or motive to lie. The common-law term "bias" is "used to describe the relationship between a party and a witness . . . in favor of or against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest." People v Layher, 464 Mich. 756, 762; 631 N.W.2d 281 (2001) (quotation marks and citation omitted; alteration in original). The Michigan Supreme Court has endorsed the stance that "[p]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence that might bear on the accuracy and truth of a witness' testimony." Id. at 765 (quotation marks and citation omitted; alteration in original).
Defendant repeatedly argued in the trial court that evidence regarding the existence of a sex tape and the complainant's insults to defendant's daughter were relevant to proving that the complainant was biased and had motive to lie on the stand against defendant, and the trial court agreed. However, defendant fails to explain how such facts would incentivize the complainant to lie about defendant's conduct or the altercation at issue.
Furthermore, evidence that the complainant had previously insulted or threatened SG or claimed the existence of a sex tape is inadmissible because it involves a collateral matter to the charged offense. Generally, "a witness may not be contradicted regarding collateral, irrelevant, or immaterial matters." People v Vasher, 449 Mich. 494, 504; 537 N.W.2d 168 (1995). See also People v LeBlanc, 465 Mich. 575, 590; 640 N.W.2d 246 (2002) ("[I]t has long been the law of this state that a cross-examining attorney must accept the answer given by a witness regarding a collateral matter."); MRE 608(b). Impeachment is proper when it is regarding issues closely related to the defendant's guilt or innocence. LeBlanc, 465 Mich. at 590. "However, the law in this realm has nuances, including the rule, noted in [Vasher] that impeachment can be proper on matters 'closely bearing on defendant's guilt or innocence.'" Id. There are generally three types of facts that are not considered collateral, which are as follows:
The first consists of facts directly relevant to the substantive issues in the case. The second consists of facts showing bias, interest, conviction of crime and want of capacity or opportunity for knowledge. The third consists of any part of the witness's account of the background and circumstances of a material transaction which as a matter of human experience he would not have been mistaken about if his story were true. [People v Rosen, 136 Mich.App. 745, 759; 358 N.W.2d 584 (1984) (quotation marks and citation omitted).]
Defendant argued that introducing evidence regarding the sex tape and the offensive statement was central to impeaching the complainant because it would show that he lied when testifying at the preliminary examination that a sex video never existed and that he never made the alleged offensive comment to SG, which would hurt his credibility. The trial court's oral findings at the motion hearing indicate that it did not specifically hold that the evidence was admissible for this purpose. Nevertheless, introducing evidence to impeach the complainant on whether the sex tape existed and whether he threatened SG would constitute impeachment on a collateral matter. These issues do not appear to bear on defendant's guilt or innocence on the charged offense or any substantive issue in the case. See LeBlanc, 465 Mich. at 590; Rosen, 136 Mich.App. at 759. It is not relevant to defendant's state of mind as far as it relates to his lack of intent or self-defense claim. Additionally, the evidence does not establish or prove the complainant's bias against defendant. See id. Furthermore, the evidence appears unrelated to a witness's "account of the background and circumstances of a material transaction which as a matter of human experience he would not have been mistaken about if his story were true." Id. Therefore, admitting evidence to show that the sex tape existed, that the complainant threatened to release it, or that the complainant had previously threatened or insulted SG would be introducing evidence to impeach the complainant on a collateral matter, which is impermissible. See LeBlanc, 465 Mich. at 590.
Our ruling does not prevent defendant from arguing that a troubled relationship with SG could be evidence of bias by the complainant that might color his testimony about the events in question.
Finally, defendant is not entitled to introduce the evidence for the purposes he has expressed pursuant to the Confrontation Clause or his right to present a defense. The Confrontation Clause of the United States Constitution and Michigan's 1963 Constitution grant defendants the right to confront witnesses against them. U.S. Const, Am VI; Const 1963, art 1, § 20. "A primary interest secured by the Confrontation Clause is the right of cross-examination." People v Adamski, 198 Mich.App. 133, 138; 497 N.W.2d 546 (1993). However, the right to cross-examine a witness is not unlimited. Id. For example, "[t]he right of cross-examination does not include a right to cross-examine on irrelevant issues." Id.
Additionally, defendants have a due-process right to present a defense. See People v Solloway, 316 Mich.App. 174, 198; 891 N.W.2d 255 (2016). See also U.S. Const, Am XIV; Const 1963, art 1, § 17. But like a defendant's right to confront witnesses, the "the right to present a defense is not absolute." Solloway, 316 Mich.App. at 198. A "defendant must still comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Id. (quotation marks and citation omitted). Therefore, "the right to present a defense extends only to relevant and admissible evidence." Id. (quotation marks and citations omitted).
Although defendant has a right to cross-examine the complainant, that right is not unlimited, and in this case, the evidence defendant wishes to elicit in order to prove the complainant's bias, defendant's lack of intent, and defendant's acting in self-defense is unrelated to doing so. See Adamski, 198 Mich.App. at 138. It certainly paints an unflattering portrait of the complainant, such that if the jurors heard it they may conclude that he is not a nice person, but use of the evidence for this reason is not proper; having an offensive personality does not entitle anyone to strangle them. Because defendant's "right to present a defense extends only to relevant and admissible evidence," Solloway, 316 Mich.App. at 198, defendant's right to present a defense does not require the admission of evidence regarding the sex tape and prior insulting threats the complainant made to SG. Defendant failed to properly explain how the evidence would prove the complainant's bias or his lack of intent, and the evidence is inadmissible to prove self-defense, as it does not in any way evidence an imminent unlawful use of force by the complainant. Therefore, the Confrontation Clause and defendant's right to present a defense did not require the admission of the evidence.
We reiterate that our ruling does not preclude admission of the evidence for a proper purpose that has not yet been brought to light. And the trial court may certainly allow defendant to present evidence at trial of any threats the complainant made to defendant or SG during their encounter that would cause a person to "honestly and reasonably belie[ve] that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual." MCL 780.972(2). But threatening to reveal a sex tape and insulting one's daughter is not evidence relevant to self-defense.
Defendant argues that while he did not raise this concern in the trial court, "there are serious questions of whether [the complainant] believes the prosecutor may not charge him as long as his testimony is favorable to the prosecution in general and especially in relation to the existence of the sex tape-regardless of whether or not the prosecutor made an express agreement with [the complainant]." We decline to adopt defendant's pure speculation as grounds for the admission of evidence.
Reversed and remanded. We do not retain jurisdiction.
Ronayne Krause, P.J. (dissenting)
I respectfully dissent. First, the trial court's denial of the prosecution's motion in limine was provisional and preliminary; the trial court explicitly and properly ruled that the prosecution could and should renew its objection at trial, where the objection could be more appropriately evaluated in light of the other evidence introduced. Secondly, at issue is ultimately whether defendant may have a reasonable opportunity to challenge whether he had the requisite specific intent and to show that the victim may have been motivated to exaggerate what occurred during the altercation. I conclude that the prosecution has not established that exclusion of the evidence is warranted on the existing record and at the present stage of the proceedings. I would therefore affirm.
I. PERTINENT BACKGROUND AND PROCEDURAL HISTORY
As the majority briefly discusses, this case arises out of an altercation that occurred between the victim and defendant at St. Joseph High School. Defendant worked at the school, and the victim was a student. The victim, who was 18 years old, had been dating defendant's 16-year-old daughter, SG, although that relationship may have been troubled. According to the victim, SG believed defendant did not like the victim, so on February 20, 2020, she asked the victim to talk with defendant "to smooth things out." The victim located defendant outside of defendant's classroom at school, and the two started talking. Their discussion made its way from there to the school's "student center/lunch room," where defendant and the victim were recorded (without sound) by one of the school's surveillance videos.
The video recording is approximately twelve and a half minutes long. It shows that defendant was somewhat larger than the victim. The video begins with both of them walking, side by side and without any obvious antagonism, into approximately the middle of the view before stopping and partially turning towards each other. The victim testified that defendant "raised his voice a lot and was flamboyant with his body, hand gestures, pointing, stuff like that." The video seemingly supports the victim's description, but shows that the victim was also somewhat animated at times as well. Defendant made several phone calls early in the video. Other individuals walked into or through the scene from time to time; one of whom, notably, backed away from the conversation in what appears to have been an apprehensive manner. Approximately two and a half minutes into the video, a female student (identified by defendant as SG) approached and joined defendant and the victim. Although defendant continued talking to the victim, he gestured toward SG on several occasions, while SG mostly appeared to observe.
Throughout most of the recording, defendant and the victim appear to remain at least a foot and a half away from each other. However, defendant clearly became more animated and agitated as the conversation went on. Slightly more than seven minutes into the video, defendant gestured at SG and moved between SG and the victim, touched SG on the shoulder, and then returned to his previous distance. At approximately nine and a half minutes into the video, defendant moved closer to the victim, for reasons not readily apparent. Exactly what transpired next is partially obscured, but at nine minutes and forty-five seconds, it is clear that defendant had his hands around the victim's neck. According to defendant's statements to the police, the victim started getting" 'handsy'" and" 'snappy'" with him, causing him to feel threatened, so he grabbed the victim in an effort to control the victim. The victim testified that defendant twice threatened to take the victim's life and then "just basically pounced on my neck."
Defendant did not testify at the preliminary examination, but a copy of the police report is in the lower court record. My reliance on the police report should not be construed as a determination of whether it is or is not directly admissible; however, for purposes of resolving this appeal, I presume, but again do not decide, that the substantive contents of the report could be admitted.
Defendant's hands remained on the victim's neck for approximately five seconds, following which defendant and the victim engage in a brief but vigorous, albeit partially-obscured, physical struggle. Although not entirely clear, it appears that defendant may have placed his hands back on the victim's neck, at least briefly. Meanwhile, SG backed away and walked out of the scene. Shortly after ten minutes into the video, defendant and the victim spend some considerable time chest-to-chest, possibly mutually restraining each other. According to defendant, he began praying while the victim told him" 'I got something for you'" and" 'you just worked your last day.'" The victim agreed only that defendant spoke some kind of prayer. At ten minutes and forty-five seconds, a "school resource officer" walks into the scene. Shortly thereafter, defendant and the victim disengaged and spent some time talking to, or in front of, the resource officer. The victim made a phone call and gestured at defendant, and then at approximately eleven minutes and forty-five seconds, walked out of the scene. Shortly thereafter, defendant and the resource officer also walked out of the scene.
In his brief on appeal, defendant references a supposed second video recording that offers a better view of what specifically occurred during the struggle. According to defendant, this second recording objectively contradicts the proposition that he strangled the victim. However, as the prosecution points out, no such second recording was introduced into evidence or even provided to this Court on appeal. If it exists, it may be of value in defendant's defense, but we are a court of record, so this Court cannot consider it. Nevertheless, the fact that such a second recording may exist-and would clearly have some bearing on whether defendant would be deprived of a substantial defense if the prosecution's motion in limine were to be granted-is a reason why it is premature to decide whether the evidence at issue in this appeal should be excluded.
The prosecution charged defendant with assault by strangulation or suffocation, MCL 750.84(1)(b). At defendant's preliminary hearing, the victim testified that after defendant made threatening statements to him, defendant then wrapped both of his hands around the victim's throat, lodged his thumbs into the victim's neck, and squeezed, cutting off the victim's circulation. During cross-examination, defense counsel asked the victim about an alleged "sex video" between victim and SG, and whether the victim had ever threatened SG, namely, that he hoped she "chokes on a dick and dies." Defendant's statements to the police imply that the victim had threatened to release a sex video and made a vulgar remark to SG before a two-week period in which the victim and SG were not speaking. At the motion hearing, defense counsel said that defendant would testify that the threats were made at the time the events at the high school occurred, as well as previously. Over the prosecution's objections, the victim was allowed to answer both questions; he denied having or claiming to have such a video or threatening SG.
Following the preliminary hearing, the prosecution moved in limine to exclude evidence regarding the alleged sex video or that the victim had ever threatened SG, contending that the evidence was irrelevant. In response, defense counsel argued that the evidence was relevant for several reasons, including to impeach the victim, to show that defendant's actions were not intentional, and to show that defendant acted in self-defense. Defense counsel also contended that defendant had a constitutional right to present a defense. The trial court held a motion hearing at which it expressed particular concern that if the alleged sex video actually existed, then the victim had committed perjury, and it admonished the prosecution against knowingly permitting perjured testimony. The trial court concluded that the evidence was relevant and admissible, so it denied the prosecution's motion. However, the trial court specifically emphasized that its denial was provisional only. It informed the prosecutor that objections could still be made at trial, and that it would consider any arguments regarding admissibility at that time, when it would have more context and other testimony available to consider. As noted, this Court granted the prosecution's application for leave to appeal.
II. STANDARD OF REVIEW AND PRINCIPLES OF LAW
The prosecution contends that evidence of an alleged sex video between the victim and SG, as well as evidence that the victim made an offensive comment to defendant's daughter, are not relevant to any material fact the jury must decide and would only serve to distract the jury and attack the victim's character. In addition to the standards of review set forth by the majority, I would add that "decisions regarding the admission of evidence frequently involve preliminary questions of law, such as whether a rule of evidence or statute precludes admitting of the evidence." People v Gursky, 486 Mich. 579, 606; 786 N.W.2d 579 (2010). This Court reviews de novo questions of law, and it is automatically an abuse of discretion to admit evidence that is legally inadmissible. Id. Otherwise, an abuse of discretion occurs "when the trial court chooses an outcome falling outside th[e] principled range of outcomes." People v Babcock, 469 Mich. 247, 269; 666 N.W.2d 231 (2003). In the absence of legal error, "a trial court's decision on a close evidentiary question cannot, by definition, qualify as an abuse of discretion." People v Smith, ___Mich App ___, ___; ___N.W.2d ___(2021) (Docket No. 346044), slip op at pp 12-13.
As the majority observes, "it is essential that prosecutors and defendants be able to give the jury an intelligible presentation of the full context in which disputed events took place." People v Sholl, 453 Mich. 730, 741; 556 N.W.2d 851 (1996). "The more the jurors [know] about the full transaction, the better equipped they [are] to perform their sworn duty." Id. at 742. The Michigan Supreme Court recognized in People v Delgado, 404 Mich. 76, 83; 273 N.W.2d 395 (1978), that "[i]t is the nature of things that an event often does not occur singly and independently, isolated from all others, but, instead, is connected with some antecedent event from which the fact or event in question follows as an effect from a cause" and that "[w]hen such is the case and the antecedent event incidentally involves the commission of another crime, the principle that the jury is entitled to hear the 'complete story' ordinarily supports the admission of such evidence." Generally, the context in which an act takes place may be highly relevant to understanding the nature of that act, especially where the actor's state of mind is at issue. See People v Yost, 278 Mich.App. 341, 356-357; 749 N.W.2d 753 (2008). However, evidence that is inadmissible for reasons other than lack of relevance does not become admissible solely because it could be considered part of the "res gestae." See People v Jackson, 498 Mich. 246, 265-275; 869 N.W.2d 253 (2015).
III. ADMISSIBILITY IN GENERAL
A person who commits assault by strangulation or suffocation is guilty of a felony. MCL 750.84(1)(b). "Strangulation or suffocation" means "intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person." MCL 750.84(2). Assault is a specific-intent crime. People v Johnson, 407 Mich. 196, 210; 284 N.W.2d 718 (1979). Pursuant to a plain reading of the statute, assault by strangulation or suffocation requires a defendant to have intentionally impeded normal breathing or circulation of the victim's blood. In other words, it is not sufficient that the defendant applied pressure to a victim's throat or neck, so the reason why a defendant put his hands on a victim's neck may be critical. Here, defendant would not be guilty of assault by strangulation or suffocation (although he might be guilty of some other crime) if he put his hands on the victim's neck for the purpose of restraining the victim, and any impairment of the victim's breathing or circulation was entirely incidental.
As the majority concludes, it is manifestly apparent that any express or implied threat of violence made by the victim during the February 20, 2020, lunchroom discussion, either toward defendant or toward SG, who was also present, would definitely be admissible. Threats (and therefore also the absence of threats) are not hearsay when introduced to show something other than the truth of the substantive contents of the threat, such as the effect on the listener or to attack credibility. People v Martinez, ___Mich ___, ___; 952 N.W.2d 911 (2021) (Docket No. 160060); People v Solloway, 316 Mich.App. 174, 198-199; 891 N.W.2d 255 (2016); People v Cameron, 52 Mich.App. 463, 465-466; 217 N.W.2d 401 (1974). I would add that it is possible, although I would not now decide, that anything said by the victim afterwards that tends to show the victim to have been the aggressor, or that tends to show that the victim intended to lie about what happened during the altercation, might also be admissible.
The prosecution's motion was limited to evidence regarding the existence of the sex video (and the victim's alleged intention of releasing the sex video) and the victim's alleged hostile commentary toward SG. It would seem intuitively obvious that the evidence at issue, or at least defendant's belief about the evidence at issue irrespective of its truth, played an important role in precipitating the altercation and alleged assault. It would also seem intuitively obvious that the jury might want a full picture of the nature of the dispute. Therefore, presuming the evidence to be legally admissible, I would not find an abuse of discretion by the trial court. Smith, ___Mich App at ___, slip op at pp 12-13.
"[E]vidence of other crimes, wrongs, or acts of an individual is inadmissible to prove a propensity to commit such acts." People v Crawford, 458 Mich. 376, 383; 582 N.W.2d 785 (1998). MRE 404(b)(1) specifically provides that "[e]vidence of other crimes, wrongs, or acts" may be admissible for other purposes. For other-acts evidence to be admissible at trial, the following must be established:
First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [People v VanderVliet, 444 Mich. 52, 55; 508 N.W.2d 114 (1993), amended 445 Mich. 1205 (1994).]
Importantly, MRE 404(b) is a rule of inclusion, and it excludes evidence only if that evidence has no relevance for anything other than showing character or propensity. Jackson, 498 Mich. at 258-260. For example, "[p]rior acts of violence by the victim may be relevant to the issue of self-defense." People v Taylor, 195 Mich.App. 57, 61; 489 N.W.2d 99 (1992); see also Galbraith v Fleming, 60 Mich. 403, 406; 27 N.W. 81 (1886). Clearly, prior acts by the victim could be admissible under MRE 404(b) to show defendant's state of mind. Put another way, the victim's prior conduct may not be used to show that the victim acted in conformity with that prior conduct on this occasion, but it may be used to show that a defendant reasonably expected the victim to act in a particular manner. Nowhere in Jackson did our Supreme Court hold that "res gestae" evidence is inherently irrelevant to a proper purpose under MRE 404(b), but rather only held that such evidence enjoys no special exemption from the operation of MRE 404(b). Although a different outcome might prove warranted upon a renewed objection at trial, I would not find defendant's intended purpose for the evidence precluded by MRE 404(b) at this stage of the proceedings.
Nevertheless, MRE 404(b) is not the only consideration at issue. MRE 402 provides that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court." It also provides that "[e]vidence which is not relevant is not admissible." MRE 402. MRE 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403. It is also necessary to consider defendant's arguments in support of admitting the evidence in more detail, keeping in mind, as noted, that the gravamen of the issue is whether defendant can establish either that he did not physically strangle the victim or that he lacked the requisite specific intent to strangle the victim.
IV. "EMOTIONAL HOTNESS"
Defendant argued that the victim's alleged threats caused "emotional hotness" between him and the victim; which, he argues, shows that he did not intentionally strangle the victim. The trial court appeared to agree with defendant and held that evidence of the sex video and the statement to SG was relevant to establish defendant's state of mind. I agree with the majority that, to the extent that defendant's use of the phrase "emotional hotness" is an attempt to apply the elements of "heat of passion" and "adequate provocation" to this matter, such a defense is inapplicable to the charge.
The "adequate provocation" defense can, if accepted by the trier of fact, mitigate a homicide from murder to manslaughter. See People v Pouncey, 437 Mich. 382, 388-392; 471 N.W.2d 346 (1991). This is because adequate provocation or heat of passion can negate the specific element of malice aforethought, People v Mendoza, 468 Mich. 527, 40; 664 N.W.2d 685 (2003), which is the unique distinction between murder and lesser grades of homicide. Id.; People v Mesik (On Reconsideration), 285 Mich.App. 535, 545-546; 775 N.W.2d 857 (2009). Evidence of the historical background to a dispute between a defendant and a victim may be necessary for a jury to fully and properly determine whether a homicide was the product of reasonable provocation. See People v Townes, 391 Mich. 578, 589; 218 N.W.2d 136 (1974). However, defendant is charged with an assault, not a homicide.
Persons are generally obligated to restrain their passions and control their tempers, even where a provocation is understandable. People v Mortimer, 48 Mich. 37, 40; 11 N.W. 776 (1882). As discussed, the requisite specific intent for defendant's charged offense is not malice aforethought, but rather intentionally impeding the victim's normal breathing or blood circulation. It is irrelevant whether that specific intent was itself a product of provocation or heat of passion. People v Mitchell, 149 Mich.App. 36, 38-39; 385 N.W.2d 717 (1986). Indeed, if defendant acted out of anger or provocation, that would make it more likely he intentionally tried to impede the victim's breathing or circulation, not less likely. Provocation and self-defense are not the same thing. See People v Coffey, 28 Mich.App. 602, 603; 184 N.W.2d 457 (1970). Provocation is irrelevant to defendant's assault charge. MRE 401. Therefore, the evidence is inadmissible for the purpose of establishing "emotional hotness."
V. SELF-DEFENSE
Defendant also argued that the evidence was relevant to prove he acted in self-defense or the defense of SG. I agree, at least insofar as the evidence could be relevant to prove that defendant believed he was acting in self-defense, because even if defendant was wrong, that belief could negate the specific intent to strangle the victim.
As the majority sets forth, MCL 780.972(2) of the Self-Defense Act, MCL 780.971 et seq., provides the following regarding the use of nondeadly self-defense:
An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual. [emphasis added.]
In other words, the relevance, and therefore the admissibility, of the evidence turns on whether it could show defendant to have honestly and reasonably believed that the victim was imminently about to use force against him. To that end, a victim's prior acts of violence known to a defendant may be admissible to show that the defendant reasonably feared imminent harm. People v Edwards, 328 Mich.App. 29, 36-38; 935 N.W.2d 419 (2019). As noted, the alleged threat to release a sex video would reasonably be construed as harmful and malicious, and thus "threatening" in a general lay sense. However, under the circumstances, it is not a threat of imminent force or violence, nor would such a threat suggest that the person issuing that threat had any tendency toward violence. Likewise, the alleged threat "to choke on a dick and die" is, under the circumstances, clearly offensive hyperbole rather than an indication of imminent violence, and it would tend to suggest a tendency toward malicious vulgarity and disrespectfulness rather than violence. However, I would not find that conclusion dispositive, because an unreasonable but nevertheless honest belief in the imminence of unlawful violence could show that defendant did not have the specific intent to strangle the victim, but rather only to restrain the victim.
The trial court observed that "fighting words are not protected." "Fighting words" are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" or "likely to cause an average addressee to fight." Chaplinsky v New Hampshire, 315 U.S. 568, 572-573; 62 S.Ct. 766; 86 L.Ed.2d 1031 (1942). In general, "fighting words" are usually relevant in a First Amendment context, along with defamation and true threats, where the question is whether the person who utters "fighting words" may be punished for doing so. See TM v MZ, 326 Mich.App. 227, 243; 926 N.W.2d 900 (2018). "Fighting words" might establish reasonable provocation, but as discussed, reasonable provocation is inapplicable to an assault charge. However, although never decided in any Michigan case, it is possible that "fighting words" could constitute "some evidence" of a self-defense claim. See People v Squire, 123 Mich.App. 700, 708-709; 333 N.W.2d 333 (1983). I have not found any jurisdiction in which "fighting words" are sufficient, standing alone, to justify a preemptive physical attack. E.g., Demeritt v Trahan, 755 SO2d 952, 956 (La App, 1999); Appeal of United Parcel Service, 125 NH 753, 756; 484 A.2d 1217 (NH, 1984), State v Soukup, 656 N.W.2d 424, 429 (Minn, 2003). Indeed, a person who assaults another in response to "offensive language" may be considered the original aggressor. See Rowe v United States, 164 U.S. 546, 555-557; 17 S.Ct. 172; 41 L.Ed. 547 (1896); see also Mortimer, 48 Mich. at 40. Nevertheless, the issue is not whether the victim's use of "fighting words" confers defendant with a defense, but rather whether the use of "fighting words" makes it more or less likely that defendant had the requisite specific mental state to commit assault by strangulation.
Even if the victim's alleged statements constituted "fighting words," they did not justify defendant's attack on their own. However, Squire suggested that "fighting words" could be relevant to a self-defense claim if accompanied by and directly suggesting imminent physical aggressiveness. Squire, 123 Mich.App. at 709. I do not disagree with the trial court's implied finding that defendant's alleged commentary constituted "fighting words." Again, critically, at issue is primarily whether defendant can show that he lacked the requisite specific intent, which does not necessarily require him to establish a "true" claim of self-defense. If he actually believed himself to be in danger, and he actually believed it was necessary to restrain the victim, he could possibly show that any choking was accidental, even if defendant's belief was objectively unreasonable. Although "fighting words" cannot justify an assault by themselves, they can obviously serve to amplify the perceived aggressiveness of accompanying conduct. Furthermore, under these circumstances, the substance of those "fighting words" would tend to explain that the dispute between defendant and the victim was (allegedly) far more serious than merely some vague parental disapproval. Again, even if that would not establish a true claim of self-defense, defendant could show that any choking was accidental if he honestly, albeit unreasonably, believed he was in danger and trying to restrain the victim.
I note that whether these particular "fighting words" could support a claim that defendant honestly believed he had an immediate need to restrain the victim is a close question. As noted, a close evidentiary question cannot constitute an abuse of discretion. The trial court therefore properly ruled that the evidence was relevant and admissible.
VI. VICTIM'S BIAS
Defendant argued that introducing evidence regarding the alleged sex video and the alleged threats was central to impeaching the victim, because the evidence would show that the victim lied when testifying at the preliminary examination that a sex video never existed and that he never made the alleged offensive comment to SG. Therefore, the evidence would hurt the victim's credibility. It is not clear to me whether the evidence would be admissible for this purpose alone. However, for the reasons discussed above, I would not decide that question.
I note, however, that I trust the prosecutor, as an officer of the court and as the carrier of a special burden to seek justice rather than just to convict, see MRPC 3.8, took to heart the trial court's admonitions regarding knowingly presenting perjured testimony. If the alleged sex video does (or did) really exist, then the victim did commit perjury, MCL 750.422, at the preliminary examination. Irrespective of whether the victim should have been asked about the alleged sex video, the victim chose to answer the question rather than exercise his rights under the Fifth Amendment, and materiality is not an element of perjury. People v Lively, 470 Mich. 248, 251-257; 680 N.W.2d 878 (2004). In that event, it would be a disappointing ethical violation for the prosecutor not to take appropriate corrective action, minimally by ensuring that defendant may impeach the victim with the fact that the victim committed perjury. I would hold that irrespective of whether the evidence at issue is held to be admissible, if defendant can prove that the victim committed perjury at the preliminary examination, then defendant is entitled to have the jury informed that the victim committed perjury, even if the jury is not informed of the specific substance of that perjury.
VII. DANGER OF MISLEADING THE JURY
The prosecution argues that even if the evidence was relevant, it should nevertheless be excluded under MRE 403 because any probative value would be substantially outweighed by the danger of misleading the jury or wasting time. The prosecution argues that its introduction would effectively shift the focus of the trial away from whether defendant intentionally impeded the victim's breathing or circulation, and onto whether the victim was a bad person who deserved to be assaulted. I think this would clearly be true if defendant were seeking to introduce the sex video itself, but defendant has plainly disclaimed any such goal.
Most importantly, however, this argument is simply premature. The trial court's denial of the prosecutor's motion in limine was explicitly provisional, subject to objections being raised and argued again at the time of trial. A determination of whether evidence should be excluded under MRE 403 is "best left to a contemporaneous assessment of the presentation, credibility, and effect of testimony," VanderVliet, 444 Mich. at 81, and "can only be made in the context of the entire trial" in light of "the evidence as a whole." People v Watkins, 491 Mich. 450, 489; 818 N.W.2d 296 (2012). I am not persuaded by the prosecutor's speculation that the mere mention of a sex video, a possible statement of intent to release the video, and a single crass comment are so utterly revolting to civilized beings that the jury could not be expected to follow a limiting instruction. Cf. People v Robinson, 417 Mich. 661, 665-666; 340 N.W.2d 631 (1983). The prosecution would, of course, be entitled to request that the jury be given an appropriate such limiting instruction. Furthermore, I trust the trial court can keep any questioning appropriately limited and within the bounds of propriety.
Nothing in this opinion should be construed as precluding the prosecution from making an objection and argument under MRE 403 at the time of trial, but based on what has been presented to this Court so far in this record, I am unpersuaded that exclusion of the evidence under MRE 403 is appropriate at this time.