Opinion
Docket No. 5,791.
Decided December 3, 1969. Rehearing denied February 3, 1970. Application for leave to appeal filed February 21, 1970.
Appeal from Kalamazoo, Raymond W. Fox, J. Submitted Division 3 June 4, 1969, at Grand Rapids. (Docket No. 5,791.) Decided December 3, 1969. Rehearing denied February 3, 1970. Application for leave to appeal filed February 21, 1970.
Marshall Paffhousen was convicted of statutory rape. Defendant appeals. Reversed and remanded for a new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and H. Michael Dwan, Assistant Prosecuting Attorney, for the people.
Wickett, Erickson Beach, for defendant.
Before: J.H. GILLIS, P.J., and R.B. BURNS and V.J. BRENNAN, JJ.
Defendant was convicted of the statutory rape of a 15-year-old girl. MCLA § 750.520 (Stat Ann 1954 Rev § 28.788).
On appeal, defendant raises four issues, only two of which require our consideration. It was established at trial that the complainant had changed her story about the incident to the policewoman assigned to the case. The prosecutor asked her why she had changed her story, and the question was repeated by the trial court. She replied, "Well, I thought I had better tell the truth for one thing, and, another thing, you don't fool a polygraph machine." Defense counsel objected and asked that the jury be excused.
Thereupon, the following colloquy took place:
"The Court: Now what is the objection?
"Mr. Birkhold (defense counsel): My objection is that to me it is obvious that counsel was trying to get the polygraph in his testimony.
"The Court: No, nothing indicates that.
"Mr. Birkhold: Because he kept asking why she changed her mind, and it is obvious he was working up to get that in, and I ask for a mistrial.
"The Court: No, he hasn't asked for that. I don't know that she has taken a polygraph test. She just decided she would tell the truth before she did. That is her answer.
* * *
"The Court: I don't see anything wrong — if you go much farther you are going to be in trouble — but I don't see anything wrong up until now. You asked the young lady why she changed her story.
"Mr. Birkhold: And I have objected to it.
"The Court: And she said, `I changed my story because you don't fool a polygraph test.' We know a lot of people confess before ever being put on that machine.
"Mr. Birkhold: But his whole tenor of questioning is that this is the thing he was trying to bring out.
"The Court: I think the prosecutor had a right to ask her why she said something different the second time than she did the first. Now all she has said is that she decided she had better tell the truth and you don't fool a polygraph. Maybe you can fool a polygraph, but the question is whether she thought you could. So, at this point I see no error."
Defendant contends that the trial court erred in denying his motion for a mistrial. To so hold would be tantamount to requiring a mistrial every time the word "polygraph" is mentioned in a criminal prosecution. It was not established that the complainant had submitted to a polygraph examination nor was an attempt made to introduce the results of any such examination. The word "polygraph" was not used by counsel, but was volunteered by the witness. It was properly objected to, and the trial court properly ruled that the subject not be pursued any further. It was not, in fact, pursued, and no prejudicial error resulted. Compare the situation here with that in People v. Brocato (1969), 17 Mich. App. 277.
On direct examination of the complainant, the prosecutor inquired about a book and certain photographs which defendant had surrendered to the police, allegedly under duress, at the time of his arrest. The complainant testified that defendant had shown them to her at various times before the time of the alleged offense. When these items were offered into evidence, defense counsel moved to suppress them as evidence on the ground that they were illegally seized. He also objected to their admission as evidence on the ground that they were incompetent, irrelevant and immaterial. The trial court denied the motion to suppress, stating,
"We cannot now interrupt the trial of the case — the defendant obviously, from his statement, knew that the pictures and book had been taken — so, we can't interrupt the trial for that purpose."
Under the circumstances, the denial of the motion to suppress was proper. People v. Ferguson (1965), 376 Mich. 90; People v. Harper (1966), 3 Mich. App. 316; People v. Bradley (1966), 4 Mich. App. 660.
"A defendant with knowledge of facts constituting an alleged search and seizure before trial has the responsibility of communicating same to his attorney who then has the responsibility of moving to suppress in advance of trial." People v. Wilson (1967), 8 Mich. App. 651, 658.
As for defendant's objection on the ground of incompetency, irrelevancy and immateriality, the trial court concluded:
"[I]n my opinion any acts of intimacy, familiarity, protestations of love, affections, general relations between the parties are always admissible in the prosecution for adultery [ sic]. Adultery is not the type of thing that people generally and widely encounter. And such proof is admissible, in my opinion, particularly in a case of a 15-year-old girl to show opportunity, disposition of the parties, intimate relations, their general relations, things that were done which tend to break down the self-respect and modesty of a 15-year-old. For that reason, I have thus far overruled the objection and I will continue to."
The book and the photographs were thereupon admitted as evidence. The book is an alphabetically arranged handbook of sexual terms. Of the 15 photographs allegedly shown the complainant, 7 are snapshots of young women posing alone in the nude or semi-nude. The remaining 8 photographs need be described only as vividly depicting aberrant sexual behavior.
The ruling of the trial court appears to be based on the holding in People v. Donald D. Williams (1965), 2 Mich. App. 91, 94:
"It has long been the rule in Michigan that the evidence of the commission of another offense by the defendant cannot be admitted for the purpose of showing that the defendant was more likely to have committed the offense for which he is on trial, nor as corroborating the testimony relating to the commission of such principal offense. But in cases involving statutory rape, a qualified exception to the general rule permits proof of specific acts of impropriety between the prosecutrix and the accused for the purpose of showing opportunity, disposition of the parties, and intimate relations tending to break down self-respect and modesty."
The above-stated exception was explained in People v. Askar (1967), 8 Mich. App. 95, 101:
"Briefly stated, this exception permits the introduction of evidence of prior offenses, identical with the one charged, between the defendant and the person with whom he is alleged to have committed the act for which he is being tried. See People v. Swift (1912), 172 Mich. 473; People v. Donald D. Williams (1965), 2 Mich. App. 91. With regard to sexual offenses, the general rule of exclusion is `based upon the obvious potential prejudicial effect of such evidence, and the courts have frequently pointed out that such evidence is not admissible merely to show the criminal character of the accused.' Annotation. Admissibility in prosecution for sexual offense, of evidence of other similar offenses, 77 ALR2d 841 at pages 846, 847. Because of this potential prejudice to the accused the exception has been strictly construed and evidence of prior offenses is admissible only for certain purposes, i.e., to show `opportunity, disposition of the parties, and intimate relations tending to break down self-respect.' People v. Donald D. Williams, supra, at page 94. The burden is upon the prosecutor to show for which of these purposes he seeks to introduce evidence of prior offenses and to show that the purpose is material and relevant to the case being tried. Moreover, once the requisite showing has been made and the evidence admitted, we perceive it to be incumbent upon the trial court, whether or not so requested by the defendant, to instruct the jury immediately that the evidence was admitted for a specific purpose and that they shall consider it only for that purpose." (Emphasis supplied.)
In the present case, there was no showing by the prosecutor of a proper ground for admitting the book and the photographs; nor were any cautionary instructions given. While they may have been admissible to show "opportunity, disposition of the parties, and intimate relations tending to break down self-respect," their potential prejudicial effect on the jury necessitated strict adherence to the procedural safeguards attendant to the admission of such evidence. Since such safeguards were not present, the introduction of the book and photographs constituted prejudicial error. People v. Askar, supra.
In order for photographs of this nature to be admissible, it should be established that the evidence was shown to complainant at the time of, or shortly before, the act complained of so as to assist the defendant to arouse a sexual desire within complainant, cause her to experience sexual excitement, or create the atmosphere for the same. It must be shown that the showing of these photographs and book was "sufficiently near in point of time to the disputed act to be substantially a part of it." State v. Graves, (Me, 1966), 224 A.2d 57, 62.
Here, the alleged showing occurred some days before the act complained of. The showing not being an integral part thereof renders these exhibits inadmissible.
In addition to the book and photographs allegedly shown the complainant, two other photographs were introduced into evidence. When defendant took the stand in his own behalf, he denied having any such pictures at the model home where he allegedly had shown them to the complainant. Thereafter, a young girl was called by the prosecution as a rebuttal witness. She testified that defendant had shown her photographs similar to those shown the complainant on a certain occasion when they were alone in the model home. Defense counsel objected to the testimony and to the admission of the additional photographs as evidence, again on the grounds that they were incompetent, irrelevant and immaterial. The trial court reasoned that the evidence was proper to rebut defendant's testimony and the objections were overruled. One of the photographs admitted is a close-up of what appears to be a woman engaged in act of bestiality.
There is nothing in the record to indicate that the photographs shown to the witness were ever shown to the complainant. Whether defendant showed pictures to anyone else is collateral to the issues in this case and impeachment on a collateral issue by extrinsic evidence is improper. McCormick, Handbook of the Law of Evidence, (1954), pp 66, 1011. Since no legitimate purpose was to be served, it was reversible error to place before the jury photographs of such a highly prejudicial nature. Cf. People v. Turner (1969), 17 Mich. App. 123.
Reversed and remanded for a new trial.
All concurred.