PEOPLE OF MI V SPENCER ALAN FITZGERALD
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 25, 2000
Plaintiff-Appellee,
v
No. 186969
Recorder’s Court
LC No. 94-007646
SPENCER ALAN FITZGERALD,
Defendant-Appellant.
ON REMAND
Before: Markey, P.J., and Jansen and White, JJ.
MEMORANDUM.
This case is before us on remand1 from the Supreme Court for “reconsideration of the similar
acts issue, in view of the prosecutor’s confession of error.” This Court was also instructed to
“determine whether the error is harmless. See People v Gearns, 457 Mich 170 [; 577 NW2d 422]
(1998).” We affirm.
In light of the prosecutor’s confession of error, we conclude that defendant’s older daughter’s
prior statements were erroneously admitted as prior acts evidence through the older daughter’s
testimony and the youth bureau officer’s testimony at trial. We turn, then, to the question of harmless
error.
Since our initial decision of this case and remand by the Supreme Court, the Supreme Court has
decided People v Lukity, 460 Mich 484; 596 NW2d 607 (1999). Lukity overruled the test for
harmless nonconstitutional error announced in Gearns, supra, cited in the Supreme Court’s order of
remand. Therefore, although the remand order cites Gearns, we apply the test set forth in Lukity as
the correct statement of the current law governing whether preserved nonconstitutional error is harmless.
Lukity states:
Therefore, the bottom line is that § 26 [MCL 769.26; MSA 28.1096] presumes that a
preserved, nonconstitutional error is not a ground for reversal unless “after an
-1
examination of the entire cause, it shall affirmatively appear” that it is more probable
than not that the error was outcome determinative. [460 Mich at 495-496.]2
Although the erroneously admitted evidence was highly prejudicial in that it informed the jury
that the older daughter had accused defendant of raping her when she was about fifteen years old,
(although the older daughter steadfastly denied the truth of the allegations at trial), we are unable to say
that it is more probable than not that this testimony was outcome determinative. The complainant’s
testimony was clear and consistent. She reported the alleged incident promptly and sought assistance.
Defendant offered evidence that the complainant may have been ill or dreaming. We are unable to
conclude that it is more probable than not that the jury would have been unconvinced by the
complainant’s testimony had it not been bolstered by the older daughter’s earlier, recanted allegations.
Thus, although we would reverse under Gearns because the evidence was so potentially prejudicial
that one cannot say that it is highly probable that the evidence did not contribute to the verdict, we affirm
under Lukity because the complainant’s testimony was such that the jury may have found it credible,
convincing and sufficient to establish defendant’s guilt beyond a reasonable doubt, and therefore
defendant has not established that it is more probable than not that the error was outcome
determinative.
Affirmed.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Helene N. White
1
In this Court’s initial opinion, People v Fitzgerald, unpublished opinion per curiam, (Docket No.
186969, issued 12/23/97), the majority concluded that the similar acts evidence was properly admitted,
noting that defendant did not raise an argument under People v Stanaway, 446 Mich 643; 521 NW2d
557 (1994). The dissent concluded that the similar acts evidence was erroneously admitted and that the
error was not harmless.
2
The prior test, set forth in Gearns, supra at 203-205, required that the prosecutor prove that it was
highly probable that the error did not contribute to the verdict.
-2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.