PEOPLE OF MI V KENNETH MICHAEL STRAIGHT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 26, 2011
Plaintiff-Appellee,
v
No. 294730
Chippewa Circuit Court
LC No. 08-008817-FH
KENNETH MICHAEL STRAIGHT,
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and SERVITTO and GLEICHER, JJ.
PER CURIAM.
A jury convicted defendant of four counts of fourth-degree criminal sexual conduct (CSC
IV), MCL 750.520e(1)(b) (sexual contact achieved by force or coercion). The trial court
imposed, concurrently for all four counts, a two-year term of probation, including one year in
jail. Defendant appeals as of right. We reverse and remand for further proceedings.
The incidents giving rise to the charged counts all occurred at an automobile dealership,
where defendant and one of the victims worked. The second victim’s fiancé also worked at the
dealership. The first victim recounted at trial that defendant subjected her to three instances of
sexual contact: two in which defendant placed his hands on her hips, simulated sexual
intercourse with the victim, and made lewd comments; and one in which defendant squeezed the
victim’s breast. The second victim described an incident in which defendant grabbed her hips
from behind and engaged in simulated sex with her. Defendant denied touching either of the
victims.
I
Defendant first complains on appeal that the trial court violated his constitutional rights
of confrontation, and his constitutional right to present a defense, when it excluded evidence that
one of the victims had filed a wrongful termination civil lawsuit against the dealership, and the
other victim’s husband had considered doing so. The parties preserved their respective positions
concerning the potential admissibility of evidence of a victim’s lawsuit or contemplated lawsuit,
both in the course of an initial trial that ended in a mistrial and defendant’s retrial. At the first
trial, the court allowed defense counsel to inquire about the first victim’s filing of a civil lawsuit
against the dealership, but a different judge who presided over the second trial refused to permit
this cross-examination, or cross-examination regarding potential legal action by the second
victim’s husband.
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“It is axiomatic that the credibility of a witness is an issue of the utmost importance in
every case. It is also axiomatic that evidence of a witness’ bias or interest in a case is highly
relevant to his credibility.” People v Mumford, 183 Mich App 149, 152; 455 NW2d 51 (1990)
(internal quotation and citation omitted). “While the scope of cross-examination is a matter left
to the sound discretion of the trial judge, that discretion must be exercised with due regard for a
defendant’s constitutional rights.” People v Grisham, 125 Mich App 280, 284; 335 NW2d 680
(1983). “A limitation on cross-examination preventing a defendant from placing before the jury
facts from which bias, prejudice, or lack of credibility of a prosecution witness might be inferred
constitutes denial of the constitutional right of confrontation.” People v Cunningham, 215 Mich
App 652, 657; 546 NW2d 715 (1996).
However, violations of the rights to adequate cross-examination are
subject to a harmless-error analysis. Whether such an error is harmless in a
particular case depends on a host of factors, including the importance of the
witness’ testimony, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the witness,
the extent of cross-examination otherwise permitted, and the overall strength of
the prosecution’s case. [People v Kelly, 231 Mich App 627, 644-645; 588 NW2d
480 (1998).]
The prosecutor bears the burden of proving the harmlessness of a constitutional error beyond a
reasonable doubt. People v Minor, 213 Mich App 682, 685-686 (opinion by Markman, J.), 690
(concurring opinion by Sapala, J.); 541 NW2d 576 (1995); People v Morton, 213 Mich App 331,
335-336; 539 NW2d 771 (1995).
It is a well-settled rule of law in Michigan that where civil actions have
been commenced on the same matter as the action being tried, it is . . . error for
the trial court to refuse to allow inquiry and argument regarding such connected
action since the bias or interest of a witness is a proper subject of inquiry.
[People v Johnston, 76 Mich App 332, 336; 256 NW2d 782 (1977).]
“[W]hether a witness has filed or is contemplating filing a civil lawsuit, the prospects for which
may be affected by the outcome of a criminal action, is always relevant to a witness’ credibility.”
Morton, 213 Mich App at 334-335; see also Grisham, 125 Mich App at 285 (characterizing as
“reversible error” a trial court’s refusal “to allow inquiry and argument regarding a civil action
which has been commenced with respect to the same matter as the criminal action being tried . . .
.”).
In this case, the trial court prevented defendant from cross-examining the primary
prosecution witness with respect to her initiation of a civil lawsuit against the dealership where
she and defendant had worked together. The primary victim’s civil action, although against the
dealership and not defendant personally, asserted counts premised at least in part on defendant’s
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inappropriate touchings.1 The second, contemplated claim or action involved the second victim
or her husband. Not many details of this contemplated claim appear in the record, but the parties
do not dispute on appeal the fact that the second victim or her husband considered some form of
action against defendant, relating to his touching of the second victim. Defense counsel
presented an offer of proof, which the trial court rejected, in the form of a witness who had
spoken with the second victim’s husband after the witness had taken a test drive with defendant;
defense counsel summarized that the second victim’s husband “was going to bring a suit against
him, [defendant]. He was trying to find out if she was inappropriately touched and if so he was
going to be bringing a suit on behalf of his wife,” the second victim.
The prosecutor disputes that reversal must occur, given that “the jury was informed of the
possible [second victim’s] suit through an offer of proof and there was evidence introduced at
trial that . . . [the dealership’s] owner . . . received a letter from [the first victim’s] attorney.” The
prosecutor supposes that the jury, having heard the prosecutor’s cross-examination of the
dealership owner “insinuating that he wrongly fired [the first victim] in retaliation for her police
report,” “could easily have suspected that [the first victim] would remedy her mistreatment
through a civil suit”; however, this suggestion amounts to pure speculation. The dealership
owner’s testimony also revealed the following:
Q. Did you study any records before you came to court?
A. I just looked at the administrative investigation.
***
1
At the outset of defendant’s first trial, the court ruled, in pertinent part as follows, to permit
reference to the first victim’s civil action:
As to the pending civil suit, it is the Court’s understanding that this civil
lawsuit which is on file is ongoing, it is executory in nature. . . . [A] primary
witness of the People in this case, is the complainant in that case. Understanding
the facts of the case, is that that claim was filed on or about late autumn, early
winter of 2008. It names Fernelius Hyundai or Fernelius auto distributor as the
defendant. [The first victim’s] claim in that lawsuit becomes twofold. As
characterized, it is one of a Whistleblower nature, but also under the ElliottLarsen Civil Rights Act, claiming evidently disparity in treatment by her
employer, and therefore, a wrongful discharge type of action that she has filed.
***
I conclude that it is in fact permissible, [defense counsel], for you to use
the existing lawsuit filed by [the first victim] against [the dealership] . . . .
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The exhibit and then I have a letter from her [the first victim’s] attorney.
I have the last chance written warning for [defendant]. I have the last chance
written warning for Tim [the first victim’s fiancé]. [Emphasis added.]
This isolated, passing reference to the first victim’s retention of an attorney does not necessarily
convey the notion that the first victim had filed a civil action or intended to do so. The lone
reference to a contemplated action by the second victim and her husband took place just before
the trial court excused the jury to consider defense counsel’s offer of proof:
[The second victim’s husband] indicated he was prepared to proceed to
make, I guess, bring a claim against [defendant], if questioned about whether or
not that had happened while she [the potential witness, a dealership customer]
was with him. [Defendant] gave her a test drive of a car and [the second victim’s
husband] called her afterward: Did [defendant] ever touch you? If he did, I am
going to sue.
Even assuming that the jury could track the gist of defense counsel’s offer of proof, it leaves
unanswered what the potential witness might have advised the second victim’s husband, and the
jury never heard more from the potential witness because the trial court refused the defense offer
of proof. We do not detect in the record clear and intelligible elicitations before the jury that
either victim initiated or contemplated a suit premised on defendant’s conduct.
Relative to our assessment whether the constitutionally improper limitation on crossexamination in this case may be deemed harmless beyond a reasonable doubt, obviously the
limitations in this case related to the testimony of defendant’s two victims, very important
witnesses. Kelly, 231 Mich App at 645. The first victim and her fiancé both testified about at
least three acts of sexual contact defendant inflicted on her. However, even were we to accept
the proposition that the first victim’s fiancé’s testimony corroborated or rendered cumulative the
first victim’s account at trial, id., the second victim remained the only source of testimony
concerning the fourth sexual contact count against defendant relating to her. Morton, 213 Mich
App at 336 (declining to find the trial court’s limitation on cross-examination harmless beyond a
reasonable doubt because “the victim-witness was a virtually indispensable witness in
communicating the circumstances of her disability,” an element necessary for the defendant’s
felonious driving conviction).
In summary, the trial court violated defendant’s constitutional rights when it precluded
him from placing on the record some details concerning the first victim’s initiation of a civil
lawsuit against the dealership and the second victim’s consideration of a suit. Because the
desired cross-examination related to the two primary, essential witnesses in the case, one of
whose testimony constituted the only evidence of defendant’s criminal conduct against her, we
cannot conclude that the trial court’s constitutional error qualified as harmless beyond a
reasonable doubt. Consequently, we reverse defendant’s convictions on this basis.
II
Defendant additionally contends that the trial court violated his right to due process by
making “prejudicial comments that shifted the burden of proof.” In light of defendant’s failure
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to raise a timely constitutional objection at trial, we review this unpreserved constitutional
challenge only for plain error affecting defendant’s substantial rights. People v Carines, 460
Mich 750, 763-764, 774; 597 NW2d 130 (1999). Contrary to defendant’s assertion, the trial
court’s comments did not improperly shift the burden of proof.2 The trial court did not suggest
that defendant had any obligation to call witnesses. Rather, the court seemed to be asking for
clarification regarding the direction of defense counsel’s line of inquiry. Moreover, the trial
court instructed the jury multiple times that the prosecutor had the burden to prove its case, and
that defendant need not prove anything. People v Graves, 458 Mich 476, 486; 581 NW2d 229
(1998) (noting the well-established notion that “jurors are presumed to follow their
instructions”). In summary, nothing in the record substantiates a burden shifting by the trial
court.
III
Defendant lastly avers that the trial court erroneously admitted evidence of a witness’s
larceny conviction under MRE 609. “This Court reviews for an abuse of discretion a trial court’s
determination whether a prior conviction involving a theft component may be used to impeach a
defendant.” People v Meshell, 265 Mich App 616, 634; 696 NW2d 754 (2005). To the extent
that our analysis obligates us to decide whether a rule of evidence allows for admission of the
evidence, we consider de novo this legal question. People v Gursky, 486 Mich 596, 606; 786
NW2d 579 (2010).
MRE 609 generally permits the introduction of prior convictions to impeach a witness’s
credibility only if “the crime contained an element of dishonesty or false statement,” MRE
609(a)(1), or “the crime contained an element of theft.” MRE 609(a)(2). When the crime
involves “an element of theft,” the proponent of the evidence must additionally show that “the
crime was punishable by imprisonment in excess of one year or death under the law under which
the witness was convicted,” and the court must determine “that the evidence has significant
probative value on the issue of credibility . . . .” MRE 609(a)(2)(B). With regard to probative
value, “the court shall consider only the age of the conviction and the degree to which a
conviction of the crime is indicative of veracity,” and the “court must articulate, on the record,
the analysis of each factor.” MRE 609(b).
2
In the course of defense counsel’s cross-examination of the first victim about other people who
had been working at the dealership when the charged sexual contacts took place, the court
observed:
But counsel, you are talking about a large amount of people who were
apparently there or who may or may not have seen what occurred. Are you going
to offer those people as witnesses? Why do we need to go through this now?
Why don’t you bring the people in who can tell you what they saw or didn’t see
and then we can deal with the issue that way? It seems to me this is a waste of
time.
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The prosecutor urged the trial court to permit her to impeach defense witness Gerald
Williams with a prior conviction of larceny of property valued between $1,000 and $20,000, a
crime potentially penalized by up to five years in prison. MCL 750.356(3)(a). The court opted
to make a separate record of Williams’s testimony outside the jury’s presence. Williams, aged
26 at the time of trial, testified that the larceny took place when he was 17-years-old. Williams
related that the incident “involved some friends stealing a snowmobile and I rode on it.” After
Williams’s brief testimony, the trial court declared, “I am going to allow the impeachment.” The
vintage of Williams’s larceny conviction was brought to the trial court’s attention, but our review
of the transcript reveals no point at which the trial court articulated an analysis concerning, or
even mentioned, “the degree to which . . . [Williams’s] conviction of the crime is indicative of
veracity.” MRE 609(b). Because the available record does not allow us to ascertain that “the
trial court was aware of the pertinent factors and of its discretion,” People v Meshell, 265 Mich
App at 638, we conclude that the trial court failed to comply with the mandates of MRE 609, and
consequently, abused its discretion in admitting evidence of Williams’s prior conviction.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Amy Ronayne Krause
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
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