PEOPLE OF MI V MARSHALL RAYMOND SIMPSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
Plaintiff-Appellee,
v
No. 199856
Clinton Circuit Court
LC No. 96-006069 FC
MARSHALL RAYMOND SIMPSON,
Defendant-Appellant.
Before: MacKenzie, P.J., Bandstra and Markman, JJ.
MARKMAN, J. (concurring).
I join in the analysis of the majority opinion, as well as in its holding, but write separately to
express my concern about the exclusion of one witness’ testimony relating to a statement allegedly made
by complainant that she had been raped by two men while in Lansing. I note, however, that appellant
has not raised this issue on appeal and, therefore, I write only to express my reservations about the trial
court’s decision in this regard. In People v Mikula, 84 Mich App 108, 115; 269 NW2d 195 (1978),
this Court set forth two propositions: First, “In a prosecution for a sexual offense, the defendant may
cross-examine the complainant regarding prior false accusations of a similar nature and, if she denies
making them, submit proof of such charges.” Second, “where the verdict necessarily turns on the
credibility of the complainant, it is imperative that the defendant be given an opportunity to place before
the jury evidence so fundamentally affecting the complainant’s credibility.” Mikula took cognizance of
the rape-shield statute. Id. at 113.
Here, the prosecutor’s case rested largely upon the direct testimony of complainant, as well as
upon the testimony of complainant’s doctor, Ruth Worthington, that the complainant’s physical
condition suggested that she had had sexual intercourse on multiple occasions. Complementing this
testimony, complainant was permitted to testify that she had had consensual sexual intercourse with only
one person on a single occasion. A
dditionally, the trial court admitted complainant’s testimony under
§404(b) that she and defendant had had sexual relations, noting that such acts constituted “evidence that
is central in the assessment of Dr. Worthington’s conclusions concerning physical findings on
examination.”
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Under these circumstances, I believe that the trial court should have allowed defendant to
introduce the testimony of the witness, a friend of complainant. Complainant’s credibility had already
been placed in issue by testimony that had been offered concerning prior (apparently false) reports to
Texas authorities concerning defendant’s abuse, as well as by a false claim that she had had an abortion.
However, the jury was not permitted to hear about her prior rape allegations. If the jury had been
presented with such testimony, it is not inconceivable that they might have concluded that the prior rape
had occurred-- in which case Dr. Worthington’s testimony that the complainant’s physical condition
indicated that she had had sexual relations on more than one occasion would have been less likely to
inferentially implicate defendant. “It is well settled that where the prosecution substantiates its case by
demonstrating a physical condition of the complainant from which the jury might infer the occurrence of
a sexual act, the defendant must be permitted to meet that evidence with proof of the complainant’s
prior sexual activity tending to show that another person might have been responsible for her condition.”
Mikula, supra at 114. Alternatively, had the jury been presented with such testimony, they might have
concluded that the rape did not occur but that complainant’s credibility was called further into question.
Consequently, when the court permitted the prosecutor to offer prior acts testimony-- which, in
my judgment, it correctly decided-- yet precluded defendant from offering testimony concerning prior
conduct by complainant, the defendant was potentially impaired in his ability to effectively confront his
accuser. People v Hackett, 421 Mich 338, 346-51; 365 NW2d 120 (1984). While I recognize the
broad range of discretion of the trial court in making determinations of this sort, id. at 350-51, I
respectfully believe that the better course of action here would have been to permit the witness’
testimony.
Nevertheless, in light of the considerable deference owed to the trial court in its decisions
relating to the admission of testimony, and in light of defendant’s failure to have raised this issue on
appeal, Radtke v Everett, 442 Mich 368, 397-98; 501 NW2d 155 (1993), I join in the result reached
by the majority.
/s/ Stephen J. Markman
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