Opinion
No. 338547
03-20-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. TODD DAVID SNYDER, Defendant-Appellee.
UNPUBLISHED Mackinac Circuit Court
LC No. 16-003769-FH Before: MARKEY, P.J., and SHAPIRO and GADOLA, JJ. PER CURIAM.
Plaintiff appeals by leave granted an order granting defendant's motion to cross-examine the complainant regarding prior allegations of sexual assault. We affirm.
People v Snyder, unpublished order of the Court of Appeals, issued July 31, 2017 (Docket No. 338547).
I. FACTS
In July 2016, police were dispatched to the Grand Hotel on Mackinac Island regarding a complaint of criminal sexual conduct against a woman we identify as AK. TS, a long-time family friend of AK's mother, and AK went to Mackinac Island in defendant's boat and met defendant and his estranged wife for dinner. After spending the evening drinking, AK, TS, and defendant went back to their room at the Grand Hotel. TS was on the couch, and AK and defendant occupied the beds. AK reported that she woke up to defendant "sucking on her breasts," and digitally penetrating her vagina. TS woke up during the incident, pulled defendant away, and punched and choked him. TS then took AK to the hallway to call police. Defendant was subsequently arrested and charged with one count of third-degree criminal sexual conduct under MCL 750.520d(c) (victim physically helpless).
Before trial, defendant moved to cross-examine AK regarding an alleged prior false accusation of sexual assault she had made against a classmate, JR, while in college. Defendant submitted an affidavit of public safety officer Richard LaPlante, who took the original complaint from AK. In JR's subsequent statement to the police, he indicated that he and AK had a class together and had spent time together socially. He explained that before the alleged sexual assault, AK had messaged him, sent him pictures, and touched him, including hugging him and laying her head on his lap. On the night of the incident, JR claimed AK invited herself over to his apartment and got into his bed; then the two massaged each other and began kissing. Eventually, the two had intercourse. JR claimed that when AK asked him to stop, he did so, and AK left. According to AK's account to investigators, she said " '[n]o and '[s]top' at least four times," but JR continued to have intercourse with her "for approximately 3 minutes."
Officer LaPlante did not take substantive statements of JR and AK because the complaint was investigated by the department's soon to retire detective. LaPlante, after AK's initial complaint, directed AK to a local hospital for a sexual assault examination. Before the department's detective could arrive at the hospital to interview her, AK relayed word through hospital staff that she did not wish to speak to the officers or pursue a criminal complaint. But according to LaPlante, the policy of the university's public safety department was to fully investigate such complaints "even when the alleged victim does not wish to pursue charges."
According to the police report, several university officials were also notified of the incident, including an associate dean of students, the assistant director of student housing, and the university's Title IX officer.
Two days after the incident, AK acceded to the police requests for a statement and provided information regarding the incident from her perspective. In his affidavit, LaPlante averred that "it is my opinion that AK did not provide an accurate description of events between her and JR." At the hearing on defendant's motion, LaPlante was permitted to offer his opinion that JR was credible and "gave a great interview," and that JR provided an "accurate depiction of what his -- had occurred in that evening." Further, LaPlante testified that it was his opinion that AK's statement was not credible because "[i]t's lacking . . . there's a void in [AK's] statement."
Further information provided to the trial court at the motion hearing regarding the earlier incident were that JR had passed a polygraph examination and that the county prosecutor had denied the public safety department's request for a warrant. The prosecutor denied the request because the witness statements were equivocal, and JR had passed a polygraph test.
Defendant asserted in his motion that "[t]his was not the first time AK has used an allegation of sexual assault in response to interpersonal conflict." Defendant argued that he was entitled to cross-examine AK regarding the prior accusation of sexual assault because the incidents were similar. He requested an in camera evidentiary hearing because he had "a good-faith basis for presenting this evidence." Plaintiff did not file a brief in opposition before a "closed session" hearing, and the trial court expressed his consternation over that fact.
Following the hearing, the trial court issued an order granting defendant's motion:
The Court finds that the People failed to offer any rebuttal testimony contradicting the allegations of an alleged false accusation by [AK] in a similar
circumstance to those confronted by this Defendant. Further, the Court finds the People's arguments and cases cited are not sufficiently similar to the events in question and are misplaced as the Defendant has indicated no intention of introducing extrinsic evidence of test results related to the prior incident, the basis of the Motion before the Court.
Plaintiff now appeals by leave granted.
II. ANALYSIS
A. STANDARD OF REVIEW
"This Court reviews de novo both constitutional claims and preliminary questions of law regarding admissibility of evidence." People v Duenaz, 306 Mich App 85, 90, 98; 854 NW2d 531 (2014). The trial court's ultimate decision regarding admissibility of evidence is reviewed for an abuse of discretion. Id. A trial court abuses it discretion when the trial court's decision is outside the range of principled outcomes. Id., citing People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011).
This Court reviews a trial court's findings of fact for clear error. People v Shipley, 256 Mich App 367, 372-273; 662 NW2d 856 (2003); MCR 2.613(C). "A finding is clearly erroneous if it leaves this Court with a definite and firm conviction that a mistake was made." Id. at 273.
B. DISCUSSION
Plaintiff argues that the trial court erred when it allowed an in camera hearing regarding the admissibility of the alleged prior false accusation and ultimately abused its discretion by ruling it would permit cross-examination of the complainant regarding a prior accusation of sexual assault defendant asserts was false. We disagree.
Michigan's rape-shield statute, MCL 750.520j, " 'bars, with two narrow exceptions, evidence of all sexual activity by the complainant not incident to the alleged rape.' " People v Adair, 452 Mich 473, 478; 550 NW2d 505 (1996), quoting People v Stull, 127 Mich App 14, 17; 338 NW2d 403 (1983) (emphasis in original). "[T]he Legislature recognized that in the vast majority of cases, evidence of a rape victim's prior sexual conduct with others, and sexual reputation, when offered to prove that the conduct at issue was consensual or for general impeachment is inadmissible." People v Hackett, 421 Mich 338, 347-348; 365 NW2d 120 (1984). The two narrow exceptions in the statute that permit the admission of evidence of the complainant's sexual activity are not present in this case: "(a) Evidence of the victim's past sexual conduct with the actor[, and] (b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease." MCL 750.520j(1).
But in limited situations, evidence of the complainant's other sexual activity "may not only be relevant, but its admission may be required to preserve a defendant's constitutional right to confrontation." Hackett, 421 Mich at 348. One such exception is that a defendant accused of a sexual offense "should be permitted to show that the complainant has made false accusations of rape in the past." Id. at 348. This Court has explained that
false accusations are relevant in subsequent prosecutions based upon the victim's accusations because the fact that the victim has made prior false accusations of rape directly bears on the victim's credibility and the credibility of the victim's accusations in the subsequent case, and preclusion of such evidence would unconstitutionally abridge the defendant's right to confrontation. [People v Dale Williams, 191 Mich App 269, 272; 477 NW2d 877 (1991).]
A defendant wishing to cross-examine a complainant regarding prior false accusations of rape to preserve the defendant's constitutional right of confrontation must first "make an offer of proof with regard to the proposed evidence and to demonstrate its relevance to the purpose for which the evidence is sought to be admitted." Hackett, 451 Mich at 350. The trial court must deny the motion absent "a sufficient showing of relevancy in the defendant's offer of proof . . . ." Id. If a defendant makes "a sufficient offer of proof" as to the defendant's "constitutional right to confrontation, as distinct simply from use of sexual conduct as evidence of character or for impeachment, the trial court shall order an in camera evidentiary hearing to determine the admissibility of such evidence . . . ." Id.
Plaintiff raises several issues regarding whether the trial court erred when it held an in camera hearing. In general, "issues that are not properly raised before a trial court cannot be raised on appeal absent compelling or extraordinary circumstances." People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). In order to preserve an issue, a party must raise an objection in the trial court "at a time when the trial court has an opportunity to correct the error[.]" Id. at 551. In this case, plaintiff failed to object to the trial court conducting the "closed session" hearing, and thus, plaintiff has waived this issue.
Plaintiff also argues that the trial court erred when it held that the cross-examination would be allowed regarding the prior incident involving JR because it was similar to the charged incident involving defendant. We disagree.
"In a prosecution for a sexual offense, the defendant may cross-examine the complainant regarding prior false accusations of a similar nature and, if she denies making them, submit proof of such charges." People v Mikula, 84 Mich App 108, 115; 269 NW2d 195 (1978) (emphasis added). Despite this statement in Mikula, plaintiff fails to cite any authority for the proposition that the circumstances of prior allegation of sexual activity must be similar to the circumstances of the charged offense for evidence of a prior false accusation of a sexual offense to become relevant and admissible under MRE 401 and MRE 403.
Similarity of charged offense and a prior instance of sexual activity might bear upon admissibility to show consent, see Hackett, 421 Mich at 355-356, but the defense claim in this case is that the complainant's allegation of sexual assault is fabricated and that she has made prior false allegations of sexual assault in the past.
As noted already, "false accusations are relevant in subsequent prosecutions based upon the victim's accusations because the fact that the victim has made prior false accusations of rape directly bears on the victim's credibility and the credibility of the victim's accusations in the subsequent case . . . ." Dale Williams, 191 Mich App at 272. Admissibility of evidence of prior alleged false accusations of sexual assault will depend primarily on whether the defendant produces sufficient evidence that the prior accusation was, in fact, false. See id. at 273-274 (holding that the defendant was "unable to offer any concrete evidence to establish that the victim had made a prior false accusation of being sexually abused . . . ."). "Typically, such impeachment has occurred where, before trial, the complainant has acknowledged that a prior accusation was false." People v Garvie, 148 Mich App 444, 448; 384 NW2d 796 (1986) (citations omitted). And, "the trial court continues to possess the discretionary power to exclude relevant evidence offered for any purpose where its probative value is substantially outweighed by the risks of unfair prejudice, confusion of issues, or misleading the jury." Hackett, 421 Mich at 351. "Although 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.
The trial court concluded that defendant submitted sufficient evidence in his offer of proof to justify permitting cross-examination of the complainant about the prior alleged false accusation. Defendant submitted, as part of his offer of proof, JR's testimony that his prior encounter with AK was entirely consensual, from which it may be inferred that AK's prior allegation of sexual assault was not true. Defendant also presented LaPlante's affidavit and testimony that JR had passed a polygraph examination. Additionally, LaPlante was permitted to offer his opinion, with respect to the credibility of JR's and AK's respective versions of the occurrence. Defendant further presented evidence through LaPlante that the Marquette County Prosecuting Attorney had declined to prosecute the prior incident because the statements of AK and JR were equivocal and because JR had passed a polygraph examination. Of course, the fact that JR was not charged with a crime does not establish that AK's accusation was false. See Williams, 191 Mich App at 273 n 1; People v Yarger, 193 Mich App 532, 538; 485 NW2d 119 (1992), overruled on other grounds People v Cooks, 446 Mich 503, 530; 521 NW2d 275 (1994). In sum, we cannot find that the trial court clearly erred, MCR 2.613(C), in making its preliminary factual finding that defendant presented sufficient evidence that AK's prior accusation was false so as to permit cross-examination of AK at trial of the present case. Shipley, 256 Mich App at 372-273.
Plaintiff also argues that allowing defendant to present what amounts to mere allegations will result in a "trial within the trial" to determinate the truth or falsity of AK's prior accusation. This argument presents a close question. In Williams, this Court explained that the defendant in that case "was not entitled to have the court conduct a trial within the trial to determine whether there was a prior accusation and whether that prior accusation was true or false." Williams, 191 Mich App at 274. In this regard, we note that the admission of evidence at trial must comply with the Rules of Evidence, which are more restrictive than at the preliminary hearing on the admissibility of the evidence. See MRE 104(a) ; MRE 1101(b) ; People v Ivers, 459 Mich 320, 334; 587 NW2d 10 (1998) (BOYLE, J., concurring) ("The trial court is not limited by the Rules of Evidence in what it may consider in making its determination of admissibility, with the exception of privileges."). But, as the trial court hinted in rendering its ruling, the mere mention, let alone evidence that a witness submitted to a polygraph examination will not be admissible at trial. People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003)("The bright-line rule that evidence relating to a polygraph examination is inadmissible is well established."); see also People v Rocha, 110 Mich App 1, 8; 312 NW2d 657 (1981).
"Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the Rules of Evidence except those with respect to privileges." MRE 104(a).
"(b) The rules other than those with respect to privileges do not apply in the following situations and proceedings:
(1) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a)." MRE 1101(b)(1).
In addition to the inadmissibility of evidence regarding a polygraph test and its results, a witness, such as LaPlante, may not act as a human lie detector, opining concerning the credibility of statements other witnesses made, i.e., AK and JR. See People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). MRE 608(a) clearly only permits opinion evidence regarding character in that regard. People v Knox, 469 Mich 502, 514; 674 NW2d 366 (2004).
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. [MRE 608(a).]
As our Supreme Court explained in People v Musser, 494 Mich 337; 835 NW2d 319 (2013), permitting a lay or expert witness to offer opinion testimony concerning credibility invades the province of the jury as the fact-finder.
It is the Anglo-Saxon tradition of criminal justice that makes jurors the judges of the credibility of testimony offered by witnesses. Because it is the province of the jury to determine whether a particular witness spoke the truth or fabricated a cock-and-bull story, it is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial. Such comments have no probative value, because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence. [Id. at 348-349 (Citations, quotation marks, and alterations omitted).]
By strict adherence to the Rules of Evidence and existing case law, the trial court has the ability to limit cross-examination of AK and the admission of evidence regarding the falsity of AK's earlier allegation—through the testimony of JR and LaPlante—to both preserve defendant's right of confrontation, Hackett, 421 Mich at 348, and to prevent the inquiry from rising to the level of a trial within the trial, Williams, 191 Mich App at 274.
As just noted, LaPlante may not testify to his opinion regarding credibility. --------
We affirm and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola