Enunciating what has become known as the "common sense of society" test, the Hicks Court, quoting from State v Millard, 18 Vt. 574, 577; 46 Am Dec 170 (1846), stated: People v William Clark, 68 Mich. App. 48, 52; 241 N.W.2d 756 (1976); People v Dexter, 6 Mich. App. 247, 252-253; 148 N.W.2d 915 (1967). 98 Mich. 86, 90; 56 N.W. 1102 (1893).
Remand for an evidentiary hearing regarding whether newly discovered evidence requires a new trial is inappropriate when the allegations in the briefs and supporting affidavit "have no official record support." People v Clark, 68 Mich App 48, 53; 241 NW2d 756 (1976). See also People v Williams, 275 Mich App 194, 200; 737 NW2d 797 (2007) (regarding a motion to remand for a hearing regarding ineffective assistance of counsel).
When SA, another of Tingley's stepdaughters, subsequently testified that DA had "false memory syndrome" and "liked to make up stories," Tingley's attorney commented to the prosecutor, "Would you like to laugh a little louder," to which the prosecutor replied, "I'm sorry, I didn't realize I was under oath." In People v Clark, 68 Mich App 48, 51-52; 241 NW2d 756 (1976), the prosecutor laughed "during the course of" a defense witness's testimony. In contrast, in the present case, the prosecutor allegedly laughed only in response to SA's testimony regarding false memory syndrome.
A number of panels of this Court have concluded that the Dexter "common sense of society" test remains viable after Howell, since the Howell standard was approved by only three justices. See, e.g., People v William Clark, 68 Mich. App. 48, 52-53; 241 N.W.2d 756 (1976), People v Masten, 96 Mich. App. 127, 132; 292 N.W.2d 171 (1980), rev'd on other grounds 414 Mich. 16; 322 N.W.2d 547 (1982), and People v Dauer, 131 Mich. App. 839; 346 N.W.2d 599 (1984). "Viable" or not, however, Dexter is not, under principles of stare decisis, binding upon us; one panel of this Court is not bound to follow the opinion of another panel on any question of law.
Under these circumstances it appears, and subsequent panels of this Court have held, that the common sense of society test remains viable after Howell, though somewhat limited. People v William Clark, 68 Mich. App. 48, 52-53; 241 N.W.2d 756 (1976); People v Masten, 96 Mich. App. 127, 132; 292 N.W.2d 171 (1980), rev'd on other grounds 414 Mich. 16; 322 N.W.2d 547 (1982). On the other hand, the commentary to the Michigan Criminal Jury Instructions notes the confusion in this area but appears to rely upon Justice LEVIN'S definition of gross indecency.
A remand is thus unnecessary. People v William Clark, 68 Mich. App. 48; 241 N.W.2d 756 (1976)."
Two panels of this Court have found that Howell's section II announced no more than the law of that case. People v William Clark, 68 Mich. App. 48, 53; fn 1; 241 N.W.2d 756 (1976), People v Jones, 75 Mich. App. 261, 272, fn 5; 254 N.W.2d 863 (1977). Without the limitations set forth in Howell's section II, the gross indecency statute operates by its terms to control both public and private conduct.
Therefore, any error remains preserved for appeal only if it resulted in manifest injustice. MCL 769.26; MSA 28.1096, People v Duncan, 402 Mich. 1, 15-16; 260 N.W.2d 58 (1977), People v William Clark, 68 Mich. App. 48, 51-52; 241 N.W.2d 756 (1976). We do not find that standard met in the case at bar.
As to defendant's third claim concerning the prosecution's comments on cross-examination and in closing argument, we do not believe defendant was deprived of a fair trial where no objection was made to these comments during cross-examination or following closing argument. People v William Clark, 68 Mich. App. 48, 52; 241 N.W.2d 756 (1976). However, even were we to consider defendant's claim on appeal, we find the prosecution's remarks unplanned and the remainder of his cross-examination of defendant permissible.
A remand is thus unnecessary. People v William Clark, 68 Mich. App. 48; 241 N.W.2d 756 (1976). Defendant's more persuasive contention is that the preliminary examination was itself impermissibly suggestive.