Constitutional Right to Present a Defense Trumped in Criminal Sexual Conduct Conviction
When prosecutors and trial judges take shortcuts with a defendant’s rights, appellate courts often look the other way by declaring “harmless error” or holding that even clear violations “are not of constitutional magnitude” warranting a new trial. Recently the Michigan Court of Appeals invoked both of these aphorisms in affirming a sexual assault conviction where the defendant did not get to present a complete defense.
Raymond King was convicted by a jury in Kent Circuit Court on two counts of first-degree criminal sexual assault against his granddaughter. At trial, King tried to introduce evidence that his daughter, the alleged victim’s mother, had a history of “enticing her own daughters into dishonest behavior to serve her own ends,” such as stealing, and that this would show the daughter had the granddaughter fabricate the sexual assault allegations.
In fact, the granddaughter had been arrested for shoplifting on the night of King’s alleged assault. King worked as a youth specialist at the Kent County Juvenile Detention Facility and had his granddaughter released into his custody. King denied any sexual contact that night with his granddaughter, although King’s wife testified at trial the two had argued and King slapped his granddaughter.
The trial judge agreed with the prosecutor that “purported evidence of theft” by King’s daughter or granddaughters was inadmissible as evidence to impeach their credibility. The Court of Appeals noted the prosecutor and trial court incorrectly relied on Michigan Rule of Evidence 609 — dealing with impeachment evidence related to a witness’s criminal conviction, which was not applicable here — rather than MRE 608, which deals with “evidence of character and conduct” of a witness. MRE 608 allows admission of evidence referring to the witness’s “character for truthfulness or untruthfulness.”
Despite the fact that the trial court improperly applied the law and used the wrong evidentiary rule, Judge Jane E. Markey ruled against the Defense. Writing for the Michigan Court of Appeals, he reasoned that even if the trial court excluded the proposed evidence under the incorrect rule, it was still the right decision. Judge Markey explained that King’s evidence of his daughter and granddaughter’s untruthfulness “came from unsubstantiated, anonymous hearsay contained in a Children’s Protective Services report.” King’s counsel failed to offer any additional evidence to substantiate this report. Furthermore, the lone allegation of stealing was “too dissimilar” from the granddaughter’s accusation of sexual assault to demonstrate any pattern of dishonest behavior.
King’s appeal also addressed the admissibility of evidence related to his own character. At trial, King’s attorney tried to ask King’s former supervisor about his “reputation for interacting with teenagers at the Kent County Juvenile Detention Facility.” Such character evidence is admissible under MRE 404(a)(1). However, the trial court refused to allow the question. On appeal, the prosecutor argued King’s “reputation for interaction with teenagers at his own workplace is not probative of his character regarding sexual abuse of teenage females in his own household.”
The Court of Appeals disagreed. Judge Markey said the trial court should have allowed the question. That said, Judge Markey then declared the error was “harmless,” as it did not affect the outcome of the trial. Judge Markey rationalized that “character evidence of the type excluded here has limited value,” and the jury likely inferred his good work behavior merely from the fact he remained employed for a long time at the detention center. Additionally, King was allowed to present other character evidence, including testimony from family members, that “was more pertinent” than his supervisor’s testimony. Ultimately, Judge Markey said, the prosecution presented a “very strong case” that would not have been overcome by anything the supervisor said.
Judge Markey’s decision was joined by Judge Patrick M. Meter. Judge E. Thomas Fitzgerald also joined Judge Markey’s decision on these evidentiary issues, but he wrote separately on an unrelated question dealing with King’s sentence.
While the Court of Appeals deemed the evidentiary errors in Raymond King’s trial “not of constitutional magnitude,” if you’re the one facing prison time for sexual assault, you want to make sure there are no mistakes at trial or on appeal. That’s why it’s critical to hire counsel that specializes in defending individuals accused of criminal sexual assault. Contact the attorneys at Kirsch & Satawa right away if you or a loved one is facing such charges.
Mark A. Satawa practices in the area of criminal defense, specializing in specializing in sex crimes. He is a member of the board of directors of the National Association of Criminal Defense Lawyers and the Criminal Defense Lawyers of Michigan, and is a frequent continuing legal education speaker on sex offenses, most recently at the Institute for Continuing Legal Education seminar on Proven Defense Strategies for Challenging Criminal Sexual Conduct Cases