holding that “once the prosecution introduced medical evidence to establish penetration, evidence of alternative sources of penetration became highly relevant to material issues in dispute”
How later courts described this case
- holding that “once the prosecution introduced medical evidence to establish penetration, evidence of alternative sources of penetration became highly relevant to material issues in dispute”
- the evidence of adult third-party penetration was relevant to prove that the condition of the eight-year-old girl’s hymen may have been caused by someone other than the defendant
Written by the judges who cited it.
The opinion
*408 Shepherd, P.J.,
(concurring). I concur in the result that the conviction for esc i must be reversed and that the convictions for esc n should be affirmed. The record clearly indicates that the defendant confessed to those acts that constitute esc ii and therefore I believe that any error mentioned in the majority opinion was harmless in view of the overwhelming evidence against him with respect to those acts. Since defendant did not admit the acts constituting esc i, the issue of the source of the child’s broken hymen was crucial and failure to allow the testimony regarding prior sexual conduct with the victim’s father was prejudicial.
Defendant has raised a claim of prosecutorial misconduct and points to a statement in the prosecutor’s closing argument where the following remarks were made to the jury:
I told you it is very hard to be a juror. Well I submit to you if you are convinced beyond a reasonable doubt of Rick Haley’s guilt, I’d trade places with any of you in a minute because I couldn’t wait to jump over that rail and find him guilty if you are convinced beyond a reasonable doubt. . . .
The prosecutor responded with three arguments. First, that the qualifying language, ". . .if you are convinced beyond a reasonable doubt,” mutes any prejudicial effect of the balance of the statement. Secondly, the prosecutor claims he was goaded into these remarks by improper conduct of the defendant’s attorney. Finally it was correctly pointed out that there was neither an objection nor a request for a curative instruction.
I am satisfied that there was no reversible error here even though I agree that the remarks were highly improper and might lead to a reversal in *409 other contexts. The picture of a prosecutor wanting to jump over the rail and take the jury’s place is not one that belongs in an American court room. While the prosecutor accurately points out that a trial is not a basket luncheon, neither is it a Star Chamber inquest. What is required is vigorous advocacy coupled with a modicum of restraint, given the fact that the prosecutor is a representative of the law and the agent of the state. I am also convinced that the insertion of the qualifying language can get lost in the heat of the argument leaving the jury with the impression that here is a prosecutor who is so personally convinced of defendant’s guilt that he would gladly give up his role of advocate just to join the jurors in voting for conviction. If this can be done in one case, it can be done in all cases and criminal trials would then become a contest between the credibility of the lawyers rather than between the witnesses. See generally People v Hill, 258 Mich 79 ; 241 NW 873 (1932), and People v Humphreys, 24 Mich App 411 ; 180 NW2d 328 (1970).
I also find nothing in the record that would justify the argument that defense counsel goaded the prosecutor into making this remark. Defendant’s attorney attacked the credibility of the main witness but that occurs in many cases and the best argument against such an attack is to systematically and methodically point out the evidence which supports the witness’ testimony. This approach also has the added advantage of not gratuitously and unnecessarily delivering arguments on appeal to opposing counsel.
I maintain that jurors are usually intelligent enough to see the truth when they are presented with a rational explanation of the facts by a prosecutor in command of the situation and that no useful purpose is served by cluttering the rec *410 ord with inflammatory histrionics which run the risk of being held prejudicial.
I find no prejudice here because we are reversing on count i for other reasons and because defendant confessed to the acts constituting esc ii.