Otsego CC: 19-005787-FC
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
By order of November 3, 2023, the plaintiff-appellee was directed to answer the application for leave to appeal the June 9, 2023 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted.
Zahra, J. (dissenting).
In this prosecution for criminal sexual conduct, the trial court made a ruling in limine to allow admission of relevant evidence of prior sexual abuse under MRE 403. The Court of Appeals declined interlocutory review of the trial court's discretionary decision. Nonetheless, this Court injects itself into the preliminary stages of these proceedings and remands this matter to the Court of Appeals for consideration as on leave granted. As a procedural matter, this is a highly fact-intensive dispute that does not warrant immediate intervention from the state's high court. Instead, the proceedings below should continue in the ordinary course to proper adjudication and resolution, as the Court of Appeals held below. The issues raised by defendant can be reviewed at the conclusion of trial, assuming defendant is not acquitted. For the following reasons, I dissent.
Defendant is alleged to have sexually abused both his ex-girlfriend and his underage niece in a short period during 2018 and 2019. The prosecution filed a notice of its intent under MCL 768.27b to admit evidence of defendant's alleged sexual abuse of the niece in the prosecution of his ex-girlfriend for criminal sexual conduct. Although generally considered highly prejudicial, prior acts of sexual abuse are admissible to prove "the defendant's character and propensity" to commit sexual crimes. Whether due to the common lack of physical evidence in sex-crime prosecutions, the high levels of sex-crime recidivism, the massive underreporting of sex crimes, or the extraordinary harm sexual abuse inflicts on society without sanction, the Legislature has made a policy determination to override standard propensity protection and allow admission of other-acts evidence for prosecutions of sex crimes. This is a legislative determination that our courts must respect.
Defendant is charged with first-degree criminal sexual conduct, MCL 750.520b(1)(f), and third-degree criminal sexual conduct, MCL 750.520d(1)(b). In addition, defendant is charged with two counts of assault with intent to commit great bodily harm less than murder or by strangulation, MCL 750.84.
People v Watkins, 491 Mich. 450, 486 (2012); MCL 768.27b (sexual assault and domestic violence); see also MCL 768.27a (special provision for sexual crimes against children).
Watkins, 491 Mich. at 486, 475-476 (explaining that, while "[p]ropensity evidence is prejudicial by nature," there were numerous important policy rationales supporting the Legislature's decision to enact MCL 768.27a); United States v Stout, 509 F.3d 796, 802 (CA 6, 2007) ("[T]he danger of unfair prejudice . . . presented by the unique stigma of child sexual abuse . . . is one that all propensity evidence in such trials presents. It is for this reason that the evidence was previously excluded, and it is precisely such holdings that Congress intended to overrule.") (quotation marks and citation omitted); United States v LaVictor, 848 F.3d 428, 450 (CA 6, 2017) (noting that evidence under FRE 413 could be "inherently prejudicial" but the concern on the admission of prior bad acts was overridden by rule because "propensity evidence has special value in certain violent sexual misconduct cases or that the difficulty of and need for convictions for these crimes warrants a decrease in the usual protections against propensity and character evidence") (quotation marks and citation omitted); see also National Sexual Violence Resource Center, Statistics About Sexual Violence (2015), p 2 ("Rape is the most under-reported crime; 63% of sexual assaults are not reported to police.") (citation omitted), available at <https://www.nsvrc.org/sites/default/files/publications_nsvrc_factsheet_media-packet_statistics-about-sexual-violence_0.pdf> (accessed January 26, 2024) [https://perma.cc/K3RJ-K4SA]; United States Department of Justice, Felony Defendants in Large Urban Counties, 2009 - Statistical Tables (December 2013), p 22 ("The probability that a defendant would eventually be convicted of the original felony charge" was the lowest "for those charged with rape (35%) and assault (33%)."), available at <https://bjs.ojp.gov/content/pub/pdf/fdluc09.pdf> (accessed January 26, 2024) [https://perma.cc/8J86-BC7C]; Rape, Abuse, & Incest National Network, The Criminal Justice System: Statistics (reporting that 2.5% of criminal sexual assaults will result in prison time) <https://www.rainn.org/statistics/criminal-justice-system> (accessed January 26, 2024) [https://perma.cc/8J83-37VD]; National Sexual Violence Resource Center, The Cost of Rape (reporting using statistics from the Centers for Disease Control and Prevention that, of current sexual-abuse survivors, the economic cost on society due to the abuse is at least $3 trillion over the lifetime of the estimated 25 million reported adult victims) <https://www.nsvrc.org/blogs/cost-rape> (accessed January 30, 2024) [https://perma.cc/YYG5-3WF6].
Lash v Traverse City, 479 Mich. 180, 197 (2007) ("It is not within the authority of the judiciary to redetermine the Legislature's choice or to independently assess what would be most fair or just or best public policy.") (quotation marks and citation omitted).
The trial court did in fact thoughtfully consider and respect these policy judgments. Upon cross-motions filed by the parties, the trial court heard from both sides on the admissibility of the evidence. This included the prosecution's arguments that defendant's alleged abuse in both cases had similarities such as coercion and manipulation of a female with whom he had a close, personal relationship and the occurrence of abuse in a residential and domestic setting. The trial court sided with the prosecution, noting repeatedly the extraordinary proximity in time between the separate allegations of abuse and the reliability of the allegations against defendant. As the trial court explained, the alleged abuse of defendant's ex-girlfriend "followed immediately on the heels of . . . the ending of a [sexual] relationship" with defendant's niece. The court reviewed the files and records in both cases and concluded that there were "many, may [sic] incidences of sexual contact between the defendant" and his niece leading up to the alleged abuse of his ex-girlfriend. Notably, the court indicated that admission of the other-acts evidence would be joined with a tailored jury instruction, thus permitting the jury to properly consider evidence and reduce effective prejudice. Defendant sought leave to appeal under MCR 7.203(B), and the Court of Appeals denied the application, citing the lack of immediate justification to review this question on an interlocutory posture.
Established law and procedure counsels heavily against appellate-court intervention here. First, the rules of evidence embody a liberal policy and a strong preference for the admission of relevant evidence. Second, as the judicial bodies designated to oversee trial litigation and with first-hand exposure to the parties and evidence, trial courts are given wide discretion on the admission of evidence. Third, combining the first and second, trial courts are provided especially strong deference when weighing, under the unique facts of the case, whether the potential for unfair prejudice and jury confusion "substantially outweigh[s]" the probative value of evidence under Rule 403. Under the highly deferential review of a trial court's balancing under Rule 403, appellate courts give "the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Fourth, the trial court provided express and on-point factual findings on the comparable sexual-abuse allegations from the record available to the trial court, and defendant produces no exhibits that question those findings.
See MRE 402 (stating that "[r]elevant evidence is admissible" unless there is a specific exception); MRE 403 (explaining that relevant evidence can be excluded under the rule if the danger of "unfair prejudice" "substantially outweigh[s]" the evidence's probative value); 22A Wright & Miller, Federal Practice and Procedure, § 5192, p 19 (describing the rationale behind evidentiary rules and stating, "The admissibility of relevant evidence is made the touchstone because . . . the probability of ascertaining the truth increases in direct proportion to the growth of the factfinder's knowledge") (quotation marks and citation omitted); United States v Nixon, 418 U.S. 683, 710 n 18 (1974) (explaining in the context of privileges that only strong public policies have been found to "transcend[] the normally predominant principle of utilizing all rational means for ascertaining truth") (quotation marks and citation omitted); GN Netcom, Inc v Plantronics, Inc, 930 F.3d 76, 85 (CA 3, 2019); see also People v VanderVliet, 444 Mich. 52, 60 n 7 (1993) ("Because the Michigan Rules of Evidence in general parallel the text of the federal rules on which the state committee's product was based, we find helpful and, in some instances, persuasive, commentary and case law that refers to the Federal Rules of Evidence.").
People v Layher, 464 Mich. 756, 765 (2001) (noting the trial court's "wide discretion" in resolving an evidentiary dispute); United States v Boros, 668 F.3d 901, 907 (CA 7, 2012) (stating the established principle that trial courts have "wide discretion" when ruling on admissibility).
MRE 403. See People v Blackston, 481 Mich. 451, 462, 467-468 (2008) (explaining that "Rule 403 determinations are best left to a contemporaneous assessment of the presentation, credibility, and effect of testimony by the trial judge" and citing federal caselaw for comparison) (quotation marks and citation omitted); United States v Naidoo, 995 F.3d 367, 375 (CA 5, 2021) (stating that discretionary decisions under Rule 403 are reviewed "with an especially high level of deference to the district court") (quotation marks and citations omitted); United States v LeShore, 543 F.3d 935, 939 (CA 7, 2008) ("[W]hen it comes to the necessarily context-sensitive evaluation of a claim under Rule 403, we give special deference to the district court's findings . . . .") (quotation marks and citation omitted); United States v Silva, 889 F.3d 704, 712 (CA 10, 2018) (explaining that the "exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly") (quotation marks and citations omitted); Virgin Islands v Albert, 241 F.3d 344, 347 (CA 3, 2001) ("If judicial restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.") (quotation marks, citation, and brackets omitted); 29 Am Jur 2d, Evidence, § 324, pp 378-379 ("Only rarely, and in extraordinarily compelling circumstances, will the appellate court, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect."). As another federal court convincingly explained, 403 balancing is not conducive to effective appellate-court review. "Many issues that arise in litigation are not amenable to regulation by rule because they involve multifarious, fleeting, special, narrow facts that utterly resist generalization." United States v Layton, 767 F.2d 549, 554 (CA 9, 1985) (quotation marks and citation omitted). "Implicit in the creation of this discretionary power [under Rule 403] is the assumption that truth and justice cannot be captured by mere language, but require the intervention of human sensibilities." Id. (quotation marks and citation omitted).
People v Head, 323 Mich.App. 526, 540-541 (2018) (quotation marks and citation omitted); accord United States v Seymour, 468 F.3d 378, 386 (CA 6, 2006).
People v Reese, 491 Mich. 127, 159 (2012) ("[T]he standard of review requires an appellate court to accept the trial court's findings of fact unless they are clearly erroneous."); Kilian v TCF Nat'l Bank, 343 Mich.App. 621, 638 (2022) ("Generally, the appellant bears the burden of furnishing the reviewing court with a record that verifies the basis of any argument on which reversal or other claim for appellate relief is predicated.") (quotation marks, citation, and brackets removed); 5 Am Jur 2d, Appellate Review, § 415, p 237 ("The appellant bears the burden of providing the reviewing court with an adequate record for review. As a general proposition, it is incumbent upon the appellant to present a record supporting the errors assigned.") (citation omitted). In both the Court of Appeals and in this Court, defendant submitted as record support for his position only lower court filings, the criminal informations for the two sexual-abuse allegations, and the transcript of the trial court's pretrial decision permitting admission of the other acts of sexual assault.
Fifth, under MCL 768.27b, the prosecution filed a notice of its intent to admit prior acts of sexual assault. Defendant filed a response, requesting the court to "deny [the] prosecution's intent" to introduce the evidence; the prosecution then filed a "motion to admit." However, I am aware of no caselaw, rule, or statute that establishes a distinct motion to "deny intent to admit." Further, MCL 768.27b does not require a "motion to admit" on the part of the prosecution, but only pretrial disclosure of the proposed evidence. Modeled off of federal notice requirements, the statute is similar to other criminal discovery provisions designed to provide a defendant with information to effectively meet the prosecution's case. The parties' motions are properly construed as cross-motions in limine, which include "any motion, whether made before or during trial, to exclude [or admit] anticipated . . . evidence before the evidence is actually offered." Such motions are not mandated by Michigan court rules, and trial courts have authority to simply defer their decisions until trial. The motions seek merely a discretionary, advisory opinion on how the court believes the evidentiary issue should be resolved, which can be altered upon a more complete record at trial. Appellate evidentiary review is best left until after the case is presented during trial, where the parties can fully explore the available evidence, the trial court has a complete understanding of the in-case impacts and evidence underlying the dispute, and the trial court can effectively react to and address any prejudice.
The prosecution also filed a notice of intent to admit the evidence under MRE 404(b). The circuit court declined to conclude that the evidence was admissible under that rule, and the prosecution did not file an interlocutory cross-appeal. Therefore, I do not address MRE 404(b).
MCL 768.27b(2) ("If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered . . . .").
See FRE 404(b)(3) (stating that in a criminal case where the prosecution intends to use other-acts evidence, "the prosecutor must: (A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it"); FRE 413(b); MCR 6.201 (setting out the standards for criminal discovery, including witness information); United States v Mota, 685 F.3d 644, 649 (CA 7, 2012) (explaining that the disclosure of exculpatory evidence under Brady v Maryland, 373 U.S. 83 (1963), must be provided to allow defendant's "effective use" at trial) (quotation marks and citations omitted).
Luce v United States, 469 U.S. 38, 40 n 2 (1984); Ohler v United States, 529 U.S. 753 (2000) (reviewing a pretrial motion in limine to admit potentially prejudicial evidence); Wright & Miller, Federal Practice and Procedure (2d ed, April 2023 update), § 5387 (explaining that one method of satisfying the analogous federal notice requirement would be "for the prosecution to make a motion in limine for a ruling in advance of trial on the admissibility of the evidence").
Luce, 469 U.S. at 41 ("[A] ruling [in limine] is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the . . . proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling."); United States v Luce, 713 F.2d 1236, 1239 (CA 6, 1983) ("It is well established that the court need not rule on a motion in limine."); United States v Yannott, 42 F.3d 999, 1007 (CA 6, 1994) ("A ruling on a motion in limine is no more than a preliminary, or advisory, opinion that falls entirely within the discretion of the district court. This preliminary ruling allows the parties to consider the court's ruling in formulating their trial strategy. However, the district court may change its ruling at trial for whatever reason it deems appropriate. The rationale is that facts may have come to the district court's attention which it did not anticipate at the time of its initial ruling.") (citations omitted); People v Finley, 431 Mich. 506, 509-510, 526 (1988) (opinion by Riley, C.J.) (adopting the rationale of United States v Luce, 469 U.S. 38); id. at 526 (Brickley, J., concurring in part and dissenting in part) (same); 75 Am Jur 2d, Trial, § 53, p 266 ("A trial court's ruling on a motion in limine is not a final ruling on the admissibility of the evidence in question, but is only interlocutory, tentative, or preliminary in nature. As such, it is subject to reconsideration and change by the court during the course of the trial, as the evidence in the trial is fully developed. A motion in limine is advisory . . . .") (citations omitted).
Sixth, without more, interlocutory appeals are disfavored. They divide, interrupt, and suspend lower court proceedings and the efficient administration of justice prior to complete resolution of the case. Seventh and finally, the Court of Appeals has discretion to manage its own docket and deny an application for leave to appeal. The Michigan Supreme Court is designed to address legal issues of statewide significance, not to help correct errors that the Court perceives from a cold and incomplete appellate record.
See McCarthy & Assoc, Inc v Washburn, 194 Mich.App. 676, 680 (1992) (reasoning that interlocutory decisions can risk "piecemeal appeals and an unnecessary waste of judicial resources"); Firestone Tire & Rubber Co v Risjord, 449 U.S. 368, 374 (1981) ("Permitting piecemeal appeals would undermine the independence of the [trial] judge, as well as the special role that individual plays in our judicial system."); 4 Am Jur 2d, Appellate Review, § 81, pp 728-729 (stating that limitations on interlocutory orders "prevent[s] fragmentary and premature appeals that unnecessarily delay the administration of justice and . . . ensure[s] that the trial courts fully and finally dispose of the case before an appeal can be heard").
MCR 7.203(B)(1) (stating that the Court of Appeals "may grant leave to appeal" an interlocutory order (emphasis added); Chen v Wayne State Univ, 284 Mich.App. 172, 193 (2009) (noting, in the context of untimely appeals permitted by leave, the Court of Appeals' "discretion to grant leave" under the provision and MCR 7.205); see also People v Flowers, 191 Mich.App. 169 (1991) (explaining that, under a highly analogous rule language, "[t]he decision of a circuit court to grant or deny leave is reviewed under an abuse of discretion standard"); Dietz v Bouldin, 579 U.S. 40, 47 (2016) (stating that courts have "inherent authority to manage their dockets" to ensure the "efficient and expedient resolution of cases").
People v Bullock, 440 Mich. 15, 27 (1992) ("This Court alone is the ultimate authority with regard to the meaning and application of Michigan law."); Grievance Administrator v Deutch, 455 Mich. 149, 157 n 5 (1997) (restating this Court's demanding responsibilities "to promulgate rules that establish, modify, and amend the legal practice and procedure in all Michigan courts, including the power to regulate and discipline members of the Michigan bar"); People v Woolfolk, 304 Mich.App. 450, 475 (2014) (comparing the Court of Appeals, which is the state's "error-correcting court," with the authority of the Michigan Supreme Court); People v Anderson, ___Mich___(2024) (Docket No. 166294) (Zahra, J., dissenting) (discussing application of this principle to an intervention by the Court into a probable-cause determination sufficient to bind over a defendant on a charge of criminal sexual conduct).
In all, by interjecting this Court in an interlocutory, pretrial evidentiary dispute, with rational and on-point trial court findings, based on a trial court decision that functionally serves as an advisory opinion, this Court oversteps the proper role of a court of last resort. The case below should proceed to trial. Appellate courts should review any ultimate admission of defendant's alleged prior acts only after the case has been fully presented, the parties have provided a complete description of their respective cases, the trial court has effectively resolved any material issues, and the jury has properly weighed the competing evidence. For the foregoing reasons, I dissent.
Comments