
95 Mich. App. 1 (1980)
289 N.W.2d 863
PEOPLE
v.
WILLIAMS
PEOPLE
v.
ANDERSON
PEOPLE
v.
RESPRESS
PEOPLE
v.
JOHNSON
Docket Nos. 78-1441, 78-1808, 78-1972, 78-2168.
Michigan Court of Appeals.
Decided January 22, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal *5 Attorney, Appeals, Timothy Scallen, Assistant Prosecuting Attorney as to the appeals of Williams and Anderson, Anne B. Wetherholt, Assistant Prosecuting Attorney as to the appeal of Respress, and Brian Marzec, Assistant Prosecuting Attorney as to the appeal of Johnson.
Charles H. Brown, P.C., for defendant Williams.
Gerald M. Lorence, P.C., for defendant Anderson.
Cynthia R. Goldfarb, for defendant Respress.
Loren E. Monroe, for defendant Johnson.
Before: N.J. KAUFMAN, P.J., and D.C. RILEY and J.X. THEILER,[*] JJ.
N.J. KAUFMAN, P.J.
We agree with and adopt the statement of facts presented in the dissenting opinion. However, we note that the dissenting opinion declines to discuss the constitutional implications in this case arising out of the defendants' failure to abide by the notice requirements of the restrictive evidence provision of the criminal sexual conduct statute, MCL 750.520j(2); MSA 28.788(10)(2). We find such a discussion to be called for. This opinion, then, reflects the view that that portion of the restrictive evidence provision, which requires notice and an evidentiary hearing before admission of evidence of specific instances of sexual conduct between a complainant and a defendant, violates a defendant's sixth amendment rights to confrontation and cross-examination.
Although prior decisions of this Court have upheld the constitutionality of this restrictive evidence *6 provision in the face of challenges that the preclusion of evidence regarding prior instances of a victim's sexual conduct with third persons denies a defendant his right of confrontation, no case has considered the factual situation presented here. In the instant case, one of the codefendants, who had engaged in prior sexual conduct with the complainant, sought to admit this evidence to show the complainant's consent. This attempt served to no avail because of the defendants' failure to abide by the statutory notice provisions. In point of fact, because of such improper notice, the trial court declined to conduct an in camera hearing to weigh the probative value of this evidence against its prejudicial nature.
A litany of cases is cited in the dissenting opinion. It becomes necessary to re-analyze the propositions raised in these opinions and place them in their proper perspective.
In People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977), lv den 402 Mich 829 (1977), the defendant therein sought reversal of his first-degree criminal sexual conduct conviction. On appeal, that defendant argued that the trial court's prohibition against questioning the victim about her sexual activities with third persons, prior to the alleged rape, violated his sixth amendment rights to confront and cross-examine his accuser. That defendant further argued that inquiry into the victim's sexual background should have been permitted since it was probative to the issue of consent, that defendant's principal defense. This Court rejected that defendant's arguments as irrelevant and of minimal evidentiary significance. In so holding, the Court recognized that factual situations do exist in which the victim's sexual behavior with third persons is arguably probative of *7 consent. The victim's sexual behavior with the actor, as in the instant case, then would be of greater moment.
The majority in People v Dawsey, 76 Mich App 741; 257 NW2d 236 (1977), rejected the argument of the defendant therein that his sixth amendment confrontation right was abridged when the trial court denied him the opportunity of questioning the complainant therein about her previous sexual activities with third persons. The Court held that a defendant is precluded from exploring a complainant's sexual past in order to attack her veracity. This holding was narrow, however.
The Dawsey Court did not reach the issue of the constitutionality of the statutory provision restricting evidence with respect to opinion or reputation evidence of a complainant's sexual conduct. Moreover, the Dawsey Court indicated that, had that defendant attempted to produce a witness to testify about that complainant's reputation for chastity and been denied, serious constitutional questions would have been raised. The Court's quote from People v McLean, 71 Mich 309, 312; 38 NW 917 (1888), is particularly illuminating considering the facts of the instant case:
"`Evidence that the prosecutrix is a common prostitute, or that her character for chastity is bad, is admissible, and particular acts of unchastity or sexual intercourse with the Defendant may be shown; but evidence of such acts with a third person is not admissible'." Dawsey, supra, 752-753.
In the case at bar, the defendants, on the issue of the complainant's consent, sought to introduce evidence that the complainant was a common prostitute and that she had had previous sexual *8 conduct with one of the codefendants. Both attempts were denied by the trial court.
In People v Patterson, 79 Mich App 393; 262 NW2d 835 (1977), the constitutionality of the restrictive evidence provision was upheld in three separate opinions. Judges R.B. BURNS and HOLBROOK summarily rejected that defendant's sixth amendment confrontation argument. Judge CAVANAGH, in a separate concurring opinion which is quite instructive, held that the subject statute was unconstitutional to the extent that it excludes evidence which, if received, might raise in the mind of a juror a reasonable doubt as to a defendant's guilt. Further, upon a defense counsel's offer of proof, a defendant should be entitled to an in camera hearing at which he may conduct, for the court's consideration, the proposed cross-examination. The trial court must then determine whether this evidence would raise a reasonable doubt in the mind of a juror. This determination would be reviewable under a "clearly erroneous" standard by this Court, Patterson, supra, 413-414.
The evidence which the defendants sought to introduce with respect to the complainant's prior sexual activity with codefendant Williams could raise a reasonable doubt in the mind of a juror.
In People v Khan, 80 Mich App 605; 264 NW2d 360 (1978), lv den 402 Mich 903 (1978), this Court again upheld the constitutionality of the evidence limitation provision, finding a complainant's previous sexual encounters with persons other than a defendant to be logically and legally irrelevant.
It is noteworthy that none of the aforementioned cases dealt with specific instances of prior sexual conduct between a complainant and a defendant, as here. Moreover, language in these cases suggests that their application is narrow in *9 scope. Such application should not be extended to encompass the situation herein.
Restrictive evidence provisions are not given such an interpretation in California. In People v Blackburn, 56 Cal App 3d 685, 690; 128 Cal Rptr 864, 866-867 (1976), it was stated:
"The relevance of past sexual conduct of the alleged victim of the rape with persons other than the defendant to the issue of her consent to a particular act of sexual intercourse with the defendant is slight at best." (Emphasis added.)
The California Evidence Code Section 1103, as amended, contains no provision allowing a trial court, in the exercise of its discretionary powers, to deny evidence of specific instances of prior sexual conduct between a complainant and a defendant.
Furthermore, recently adopted FRE 412 requires the trial court to conduct an evidentiary hearing to consider specific instances of sexual conduct between a complainant and a defendant if the defendant complies with the statutory notice provision. Whereas, in Michigan, upon a defendant's compliance with the notice provision, the evidentiary hearing is still subject to the discretion of the trial court.
When evidence of specific instances of sexual conduct between a complainant and a codefendant is presented, the requirement for a hearing on the evidence lacks validity. The very nature of this evidence is personal between the parties. As such, a hearing upon its admissibility would necessarily break down into a consideration of the complainant's word against the defendant's word. Such a credibility assessment is better placed before the jury. The trial court usurps their role as a factfinding *10 body when it preliminarily reviews and denies admission of this evidence through exercise of its discretionary powers. The hearing requirement retains its constitutional validity only in situations involving previous sexual conduct between a complainant and third persons. A trial court ruling on admissibility is more in order in that situation.
This conclusion is not affected by the fact that codefendant Williams did not comply with the ten-day notice provision required by the statute. Many states choose not to impose a notice requirement where previous relations between a complainant and a defendant are concerned. See generally, Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, fn 196 at 32, and pp 100-103 (1977). There seems to be no logical justification for its imposition. We find this requirement unconstitutional when applied to preclude evidence of specific instances of sexual conduct between a complainant and a codefendant.
The object behind imposition of a notice requirement is to allow the prosecution to investigate the validity of a defendant's claim so as to better prepare to combat it at trial. This rationale is sound when applied to notices of alibi and insanity defenses. It loses its logical underpinnings however when applied to the instant situation. As stated, the very nature of the evidence sought to be presented, i.e., prior instances of sexual conduct between a complainant and a codefendant, is personal between the parties. As such, it does not involve a subject matter that requires further witnesses to develop. An in camera hearing will necessarily focus on a complainant's word against the word of a codefendant. Requiring notice in this situation, then, would serve no useful purpose. There would be no witnesses to investigate and, *11 thus, no necessity for preparation time. In view of the foregoing, we find that the trial court's denial of codefendant Williams' proffered evidence represents a consideration of form over substance. The evidence should have been admitted despite noncompliance with the notice provision. This ten-day notice provision loses its constitutional validity when applied to preclude evidence of previous relations between a complainant and a defendant.
The ten-day notice provision should not preclude the admission of the evidence on behalf of the codefendants as well, albeit for different reasons. The defendants jointly petitioned for separate trials. The trial court denied these severance motions. Since all of the defendants raised consent as a defense, joinder was proper. See People v Hurst, 396 Mich 1; 238 NW2d 6 (1976). Nevertheless, joinder should not serve to deny codefendant Williams his right to properly present his defense. He had a right to have the jury consider evidence of his previous sexual contacts with the complainant on the issue of consent. The fact that, had the trials been held separately, the remaining defendants would not have had such a right, should not prejudice codefendant Williams. This conclusion must follow even though, as a result, the other codefendants' defenses would be bolstered by evidence deemed irrelevant under prior case law, Thompson, supra. A limiting instruction might be provided restricting the jury's consideration of this evidence to codefendant Williams' defense. However, we recognize that it is naive to assume that such an instruction would be at all effective. As stated in Bruton v United States, 391 US 123, 129; 88 S Ct 1620, 1624; 20 L Ed 2d 476, 481 (1968),
"`The naive assumption that prejudicial effects can *12 be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction * * *'"
Thus, we conclude that evidence of the complainant's previous sexual contacts with codefendant Williams should have been admitted on the issue of consent. Codefendant Williams had the right to present this evidence in his own defense. The remaining defendants should have been allowed to benefit from the admission of this evidence because of its relevance and materiality to codefendant Williams' defense, the joinder of the defendants in one trial, and a realistic consideration of the inefficacy of limiting instructions in such instances.
Additionally, it should be noted that the trial court did not allow defense counsel to delve into the complainant's prior criminal record as evidenced by her rap sheet.[1] It precluded this inquiry due to defendants' failure to abide by the notice provisions of the criminal sexual conduct statute. In response to complaint by defense counsel that these materials had not been made available for discovery until the day of trial, the court held that, nevertheless, this evidence did not constitute newly discovered information tending to make the evidence described in MCL 750.520(j)(1)(a) and (b) admissible. The problem with this conclusion is that this evidence might have been admissible as prior conviction evidence reflective upon the complainant's credibility or lack thereof. In such case, the trial court had a duty to exercise its discretion in reviewing this proffered evidence without regard to any notice provisions. See People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), and *13 People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978). Thus, we find the trial court erred in summarily dismissing this evidence without determining its nature.
Lastly, defendants raise a claim of ineffective assistance of counsel based on the ten-day notice provision violation by counsel. We cannot accept this claim. The law in this area is in a state of flux, as evidenced by the varied nature of the opinions cited herein. Moreover, at least one of the assigned counsel was appointed just before the trial and could in no way have complied with the statutory notice provision. In view of the foregoing, we are not prepared to hold that the Garcia-Beasley standards for ineffective assistance of counsel were violated herein. See People v Garcia, 398 Mich 250, 264-266; 247 NW2d 547 (1976).
In view of the foregoing, we reverse and remand for a new trial. If this trial is held jointly, the trial court should consider any evidence of previous relations between defendant Williams and the complainant. The other defendants should be allowed to benefit from the admission of this evidence as well, for the reasons stated hereinbefore. However, if separate trials are held, evidence of previous relations between defendant Williams and the complainant should only be admitted at defendant Williams' trial. This evidence should not inure to the benefit of the remaining defendants. Additionally, whether joint or separate trials are held, the trial court(s) should rule upon the admissibility of prior convictions of the complainant, if any, according to the Jackson-Crawford standards.
J.X. THEILER, J., concurred.
D.C. RILEY, J. (dissenting).
Following a jury trial in Detroit Recorder's Court, March 6 through 14, *14 1978, defendants, under separate counts, were all found guilty of first-degree criminal sexual conduct, MCL 750.520b(1); MSA 28.788(2)(1). Defendant Williams was sentenced to 1-1/2 to 10 years imprisonment; defendants Anderson and Respress were sentenced to terms of one year and one day to five years, the latter being given concurrent sentences for conviction under two counts; defendant Johnson was sentenced to 6-1/2 to 20 years in prison.
The evidence adduced at trial revealed that shortly after midnight on October 19, 1977, the complainant, Myrna Cage, entered the Moon Glow Lounge in the City of Detroit. Shortly thereafter she was accosted by defendants, who, she claimed, forced her at knifepoint out of the bar and to a house owned by two of the defendants. There, defendants engaged in the various sexual acts for which they were convicted.
Defendant Williams was the only one of the accused to take the stand. He testified that the complainant voluntarily left the Moon Glow Lounge with all four defendants; that she agreed at the bar to have sex with Williams and, upon reaching the house, agreed to have sex with the others. He reiterated that all the sexual acts were consensual and that the complainant responded willingly.
During opening argument, Williams' attorney informed the jury that the defendants expected the evidence to show that the complainant and Williams had had previous sexual relations. Following objection and argument, the lower court ruled that the defendants were precluded from introducing this evidence because of their failure to comply with the notice requirements of the criminal sexual conduct statute, MCL 750.520j(2); *15 MSA 28.788(10)(2). For the same reason, the court also rejected any evidence of prostitution by the victim.
The following day, after receipt of the complainant's "rap sheet" which contained a recent accosting and soliciting citation, the defendants again argued for the admission of evidence of prior sexual conduct between complainant and Williams and for the introduction of evidence as to the complainant's reputation for prostitution. The trial judge extended his original decision and further held that the "rap sheet" did not constitute newly discovered evidence under the statute in question so as to render it, or evidence of previous sexual contact, admissible at trial.
Defendants all appeal their convictions below, raising a plethora of evidential and constitutional allegations of error, none of which I would consider meritorious. Therefore, I dissent.
MCL 750.520j; MSA 28.788(10), enacted in 1974, controls the substantive and procedural admissibility of evidence relating to a victim's previous sexual behavior.
"Sec. 520j. (1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(a) Evidence of the victim's past sexual conduct with the actor.
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
"(2) If the defendant proposes to offer evidence described *16 in subsection (1)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (1)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1)."
Defendants Anderson and Johnson argue that the preclusion of evidence regarding prior instances of a victim's sexual conduct with third persons is overbroad and unconstitutionally denies them the right of confrontation. Both Anderson and Williams advance a similar argument with respect to the victim's reputation. The exclusion of evidence regarding prior instances of a victim's sexual conduct with third persons has been held constitutional by different panels of this Court. People v Khan, 80 Mich App 605; 264 NW2d 360 (1978), People v Dawsey, 76 Mich App 741; 257 NW2d 236 (1977), People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977), cf., People v Patterson, 79 Mich App 393; 262 NW2d 835 (1977). The validity of the exclusion of reputation evidence has not yet been ruled upon. However, I would not address this question inasmuch as the proffered evidence was clearly excludable because of defendants' failure to comply with the notice requirements of the statute. Thus, a constitutional decision becomes unnecessary. People v Vanderford, 77 Mich App 370, 373; 258 NW2d 502 (1977), Stanek v Secretary of State, 33 Mich App 527, 530; 190 NW2d 288 (1971).
Defendant Anderson also questions on appeal whether the notice provision of MCL 750.520j has been superseded by the adoption of MRE 404(a)(3). *17 This issue was not argued to the court below; hence, it has not been preserved for appellate review. See People v Stoudemire, 65 Mich App 664, 669; 238 NW2d 365 (1975), People v Phelps, 57 Mich App 300, 305; 225 NW2d 738 (1975).
Defendant Williams next maintains that, because the failure to give timely notice resulted from prosecutorial misconduct and the late appearance of retained counsel, the trial court nevertheless had the discretion, under the circumstances, to allow him to make an offer of proof concerning the excluded evidence at an in camera hearing. A review of the record discloses defendant Williams' preliminary contentions to be without merit. Defendant Williams was represented by appointed counsel at the time of his arraignment on the information and for the 10-day period thereafter, even though retained counsel had not yet filed an appearance. The contention that prosecutorial misconduct concealed the excluded evidence evaporates in the light of that defendant's personal knowledge of previous intimacy between himself and the complainant, knowledge which he possessed well before the notice deadline. Although per se excluded, the same may be said for defendant Williams' self-admitted prior awareness of the victim's reputation for prostitution. Moreover, the complainant's accosting and soliciting citation would only reinforce, not establish, her alleged reputation.
Williams also asserts that the complainant's "rap sheet" containing the recent arrest for prostitution constituted newly discovered information under MCL 750.520j(2). He reasons this information would have made evidence of prior sexual contact between himself and complainant more likely to be admitted at trial, and concludes that *18 the trial judge therefore abused his discretion in refusing to conduct an in camera hearing on the matter. Even assuming, arguendo, that the "rap sheet" constituted newly discovered information, the statute clearly makes the decision to order a hearing discretionary as indicated by the word "may". On these facts, given the dubious probative relationship between complainant's arrest for prostitution and the asserted prior sexual conduct with this particular defendant, I would find no abuse of discretion.
Finally, Williams contends that the prosecutor's failure to disclose certain promises made to the complainant in order to induce her to testify constituted misconduct sufficient to justify reversal. I disagree. No charges pending against the complainant were dismissed or even reduced. The date set for trial on the accosting and soliciting citation was merely adjourned and reset for a later date. Although a previous warrant for probation violation was taken off the LEIN (Law Enforcement Information Network) system, the violation charge was not dismissed, and a hearing thereon was held immediately following the complainant's testimony in the present case. Significantly, at a post-trial hearing on a motion for new trial, the complainant stated that she testified solely to avoid having the instant case dismissed and further indicated that she was unaware of the above adjournment and the removal of the probation warrant until well into and after, respectively, her testimony in the case at bar. Contrary to those cases cited by defendant, no deals were made nor was there any evidence bearing directly on the charged offense undisclosed by the prosecution.
Defendants Respress and Johnson allege that *19 their attorneys' failure to file timely notice was a mistake serious enough to deny them a fair trial. People v Garcia, 398 Mich 250, 266; 247 NW2d 547 (1976). To the extent that these defendants' claims depend on facts not of record, it was incumbent upon them to construct a supportive evidentiary record at the trial court level in connection with a motion for a new trial. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). Inasmuch as these defendants have made no showing that either of their attorneys possessed any knowledge of evidence regarding the complainant's past acts or reputation within the time frame in question, their claims are fatally deficient.
Defendant Johnson also asserts that his counsel's failure to demand a Wade[1] hearing was indicative of ineffective assistance of counsel. His defense counsel properly moved for such a hearing but the motion was dismissed based on defendant Johnson's failure to appear. I would not allow defendant Johnson to profit from his own negligence and, thus, would reject his claim.
Finally, defendant Johnson contends that the trial judge improperly disregarded his duty in imposing sentence upon him. I find nothing in the record indicating that the trial judge disregarded his duty or considered any improper factors in sentencing defendant Johnson. See People v McIntosh, 62 Mich App 422, 443; 234 NW2d 157 (1975), rev'd on other grounds 400 Mich 1; 252 NW2d 779 (1977), People v LaPine, 47 Mich App 553, 555-556; 209 NW2d 726 (1973).
I would affirm the convictions of all four defendants.
NOTES
[*]  Circuit judge, sitting on the Court of Appeals by assignment.
[1]  A rap sheet containing a record of the complainant's prior arrests and convictions was made available to defense counsel on the day of trial.
[1]  United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).
