author: T. M. Burns, J.

text:
    CHRISTY v PRESTIGE BUILDERS, INC
    Docket Nos. 77-5257, 77-5258.
    Submitted May 9, 1979, at Marquette. — ■
    Decided January 22, 1980.
    Leave to appeal applied for.
    Leo and Vivian Glass were owners of a large tract of land which they platted and subdivided. They entered into an agreement with Prestige Builders, Inc., by which Prestige was to build homes in the subdivision, and conveyed the property to Prestige, which in turn sold the individual lots and homes to Thomas and Lana Christy and other purchasers. During the development of the subdivision it was discovered that water from wells drilled below a certain depth was no good, and that there was not sufficient water above that depth to supply all of the homes to be built. Several of the homes were built with wells that were drilled too deep, and their purchasers experienced problems with their water. The Christys and several other purchasers brought an action for damages against Prestige Builders, Gary Young, Prestige’s office manager, Russell Young, one of Prestige’s owners, the Glasses, Anderson Well Drilling, Inc., which had drilled most of the wells in question, and Anderson’s president, Art Anderson. Theories upon which the plaintiffs relied were express warranty, implied warranty, negligence and fraud. The jury returned verdicts in favor of the plaintiffs against Prestige Builders and Gary Young on the basis of express and implied warranty and negligence, and against the Glasses and Anderson Well Drilling for breach of implied warranty and negligence. The Marquette Circuit Court, Edward A. Quinnell, J., denied motions for new trial by all of these defendants. Motions for judgment notwithstanding the verdict were denied as to Prestige Builders, granted in part as to Gary Young, granted as to Anderson Well Drilling and Vivian Glass thus relieving them of all liability, and granted as to Leo Glass on only the implied warranty count.

      References for Points in Headnotes

       61 Am Jur 2d, Pleading §§ 308-311.

       5 Am Jur 2d, Appeal and Error § 886.

       57 Am Jur 2d, Negligence § 34.

       57 Am Jur 2d, Negligence § 37.

       46 Am Jur 2d, Judgments §§ 106, 107.
    57 Am Jur 2d, Negligence § 67.
    77 Am Jur 2d, Vendor and Purchaser § 330.

       22 Am Jur 2d, Damages §§ 345, 346.
    75 Am Jur 2d, Trial § 906.

       58 Am Jur 2d, New Trial §§ 212, 213.

       41 Am Jur 2d, Husband and Wife § 436.

       77 Am Jur 2d, Vendor and Purchaser § 329 et seq.

    Implied warranty by seller, in absence of fraud or misrepresentation, as to fitness, condition or quality of new dwelling. 78 ALR2d 446.

      Leo Glass appeals, alleging that a judgment notwithstanding the verdict should have been granted as to him on the negligence count. Plaintiffs cross-appeal, alleging error in the grant of judgment notwithstánding the verdict as to Leo Glass on the implied warranty count and as to Vivian Glass in its entirety. Plaintiffs bring a separate appeal of the grant of judgment notwithstanding the verdict as to Anderson Well Drilling. Held:

    1. The trial court did not abuse its discretion in allowing the plaintiffs to amend their pleadings after trial to conform to the proofs in respect to an allegation that Leo Glass proceeded with the development of the subdivision after he knew or should have known that it could not be supplied with adequate good water.
    2. Plaintiffs introduced testimony at trial tending to show that Leo Glass was negligent in proceeding with the subdivision. Therefore, his motion for judgment notwithstanding the verdict for failure to prove negligence was properly denied.
    3. The relationship between Leo Glass and the plaintiffs was not such that Glass would have had an affirmative duty to act to prevent harm to the plaintiffs, thus precluding the imposition of liability for nonfeasance. However, the trial court found that Glass was actively negligent in proceeding with the project. Glass should have foreseen the water problems, and it cannot be said that he owed no duty of ordinary care to the plaintiffs. Therefore, the trial court did not abuse its discretion in denying Leo Glass’s motion for judgment notwithstanding the verdict.
    4. Leo Glass made no objection to the jury instructions allowing the jury to apportion the damages among the defendants, therefore his motion for new trial on the basis of the apportionment made was properly denied.
    5. Denial of Glass’s motion for new trial, made on the basis that the verdict was against the great weight of the evidence or that the jury made unwarranted findings of fact, was not an abuse of discretion.
    6. No evidence was presented showing that Vivian Glass knew of the risk that proceeding with the subdivision would entail or that she had designated Leo Glass as her agent for dealing with the property. Her motion for judgment notwithstanding the verdict was properly granted.
    7. There is no implied warranty extending to the sale of land itself.
    8. The motion for judgment notwithstanding the verdict as to Anderson Well Drilling was properly granted. Anderson cannot be said to have warranted the quality of water obtained from the wells, nor is there evidence on the record to indicate that Anderson violated a professional standard of care and was thereby negligent.
    Affirmed.
    1. Pleading — Amendment to Pleadings — Court Rules.
    An amendment to conform the pleadings to the proofs may not be denied where issues not raised by the pleadings are tried by express or implied consent of the parties (GCR 1963, 118.3).
    2. Appeal and Error — Motions — Judgment Notwithstanding the Verdict.
    The Court of Appeals views the evidence in the light most favorable to the nonmoving party when reviewing a denial of a motion for a judgment notwithstanding the verdict.
    3. Negligence — Duty — Question of Law.
    Generally, the question of whether or not a defendant in a negligence case owed a duty to the plaintiff is a question of law for the trial court to decide.
    4. Negligence — Duty — Nonfeasance.
    A definite relationship between a plaintiff and a defendant in a negligence action, of such a character that social policy would require a duty to act on the part of the defendant, must exist in order to impose liability on the defendant for nonfeasance.
    5. Negligence — Motions — Judgment Notwithstanding the Verdict.
    Denial of a defendant’s motion for a judgment notwithstanding the verdict was not improper where the defendant had been found to have been actively negligent in proceeding with the development of a subdivision on his land after being advised of a problem in obtaining water of sufficient quality because the defendant should have foreseen the risk that the ultimate purchasers of lots in the subdivision might suffer the harm which they in fact did suffer, and because it cannot be said that the prospect of harm to those purchasers was so slight or remote that the defendant did not owe them a common law duty of ordinary care.
    6. Damages — Apportionment of Damages —• Instructions to Jury — Waiver.
    A defendant who raised no objection to a jury instruction which allowed the jury to apportion damages among several defendants thereby waived the issue of apportionment and the trial court’s denial of the defendant’s motion for a new trial on that ground was not error.
    7. New Trial — Appeal and Error — Judge’s Discretion.
    The grant or denial of a new trial is within the sound discretion of the trial court and its decision on such a motion will not be reversed on appeal absent an abuse of discretion.
    8. Negligence — Husband and Wife — Torts of Spouse.
    The mere relationship as husband and wife imposes no liability on the wife for the torts of her husband in the development of a subdivision project where there is no evidence showing that the project was the subject of a principal-agent relationship, a partnership or joint venture between the spouses, no evidence that the wife knew of the risk, and no evidence that she had designated her husband as her agent for dealing with the property in question.
    9. Property — Implied Warranty of Habitability — Sale of Land.
    Certain implied warranties of habitability are created in the sale of a new house, but no such implied warranty extends to the sale of land itself.

      Bridges & Collins (by Dennis Shafer), for plaintiffs.

      Wisti & Jaaskelainen (by Michael E. Makinen), for defendants Leo and Vivian Glass.

      Jason, Jason & Finkbiner, P.C. (by Paul M. Marin), for defendant Anderson Well Drilling, Inc.

      Before: D. F. Walsh, P.J., and Bronson and T. M. Burns, JJ.
   T. M. Burns, J.

Although the factual background of this case is not complex, the multiplicity of involved parties does not lend itself to a simple statement of facts. On April 11, 1974, plaintiffs, numerous subdivision homeowners, initiated this action alleging that they had incurred property damage, inconvenience and discomfort because the water supply in their recently purchased new homes was unfit for normal residential use. Named as defendants were Prestige Builders, Inc., which had built the homes and conveyed them to plaintiffs; Gary Young, an office manager for Prestige; Russell Young, one of the three owners of Prestige; Leo and Vivian Glass, spouses who had planned and platted the subdivision in which plaintiffs’ homes were built and who had conveyed the property to Prestige; Anderson Well Drilling, Inc., the company that had drilled the wells that supplied the water to most of the plaintiffs’ homes; and Art Anderson, president of Anderson Well Drilling, Inc. The complaint asserted that plaintiffs were entitled to recovery on four grounds from each defendant: express warranty, implied warranty, negligence and fraud.

A jury trial of this suit began on October 7, 1977. Testimony at the trial established that in 1972 Leo and Vivian Glass owned a sizable tract of property near Marquette, Michigan, which they platted and subdivided. The Glasses previously had entered into an agreement with Prestige Builders to construct homes on the subdivided lots. A model home was built in 1971 and several other homes were built soon thereafter. Each house came with its own well. The wells that were drilled for the earliest built of these houses encountered no water problems.

Other homes, including those subsequently purchased by plaintiffs, were built in the summer and fall of 1972. On or about November 17, 1972, Bill Cole, the owner of ABC Well Drilling Co., which had drilled wells for three of the plaintiffs, notified defendant Gary Young that he had encountered a gravel shelf at a depth of about 42 feet while drilling a well. The water that was above the shelf was good but that which was below it was not. Cole was unable to drill all of the wells in the subdivision, but he advised defendant Gary Young to tell future well drillers to drill only so far as was needed to encounter water without breaking through the shelf.

Gary Young employed Anderson Well Drilling, Inc. to sink the remaining wells. Although Young told Anderson that penetrating the gravel shelf would create an odor problem, it soon became apparent that there was not sufficient water above the shelf to supply all of the houses, and wells were drilled that were too deep.

Subsequently, plaintiffs moved into their new houses and began having problems with their water supply. Plaintiffs from each complaining household recounted the problems that, in varying degrees, they had experienced: water that stained bathroom fixtures and laundry and that looked, tasted and smelled so bad that they could not use it for cooking or drinking. Although defendant Gary Young initially attempted some efforts to resolve the water problem, he was unsuccessful.

Other trial testimony tended to establish that most of the defendants had some knowledge of the water problem prior to the time that plaintiffs moved into their new homes. Following the close of plaintiffs’ proofs, all defendants moved for directed verdicts. All motions were denied except that of defendant Russell Young, who was then dismissed as a defendant. At the conclusion of trial the jury returned verdicts in favor of all plaintiffs against all remaining defendants except Art Anderson in his individual capacity. Defendants Prestige Builders and Gary Young were found liable on the basis of express warranty, implied warranty and negligence. Defendants Leo and Vivian Glass, and Anderson Well Drilling, Inc., were all held liable for breach of implied warranty and negligence. The jury specifically apportioned responsibility for the damages awarded each plaintiff among the several defendants.

All defendants who had been found by the jury to be liable to plaintiffs filed post-trial motions for new trial or judgment notwithstanding the verdict. The trial court denied all of the motions for new trial. In an opinion dated December 13, 1977, the lower court denied Prestige Builders’ motion for judgment notwithstanding the verdict in toto. Defendant Gary Young’s motion was granted with respect to the express warranty and implied warranty counts, but denied as to the count alleging negligence. The motions by Anderson Well Drilling and Vivian Glass were granted as to both counts on which these defendants had been found liable to plaintiffs, implied warranty and negligence. Defendant Leo Glass was granted judgment notwithstanding the verdict only on the implied warranty count.

Defendant Leo Glass now appeals of right the lower court order insofar as it did not grant him judgment notwithstanding the verdict on the count of negligence. Plaintiffs have cross-appealed and argue that the lower court erred when it granted Leo Glass’ motion with respect to the implied warranty count and Vivian Glass’ motion for judgment notwithstanding the verdict. Plaintiffs also appeal the lower court order granting Anderson Well Drilling’s motion for judgment notwithstanding the verdict. No appeals have been taken with respect to the judgments for or against any of the other defendants.

The first issue that we address in this appeal is one raised by Leo Glass pertaining to whether the lower court erred in granting, after trial, plaintiffs’ motion to amend their complaint to conform to the proofs. We are not persuaded that the trial court committed an abuse of discretion in permitting the amendment. Resolution of this issue is governed by GCR 1963, 118.3, which provides:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In such case an amendment of the pleadings to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, amendment to conform to such proof shall not be allowed unless the party desiring amendment satisfies the court that the amendment and the admission of such evidence would not prejudice the objecting party in maintaining his action for defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

The foregoing provisions of this court rule actually address two different situations. The first occurs when "issues not raised by the pleadings are tried by express or implied consent of the parties”. In such cases an amendment to conform the pleadings to the proofs may not be denied. See, 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 415. The latter portion of this subrule concerns "situations in which proffered evidence is met with an objection that it is not within the pleadings”. Id. at 416. Plaintiffs correctly assert that the second facet of this subrule is inapposite here. Defendant Leo Glass does not claim to have objected to the evidence offered by plaintiffs, and the plain language of this subrule’s third sentence does not extend to his reserved objection when plaintiffs first proposed the amendment during trial.

The court rule incorporates a policy favoring amendment when justice would be served thereby. Jones v Causey, 45 Mich App 271, 273; 206 NW2d 534 (1973), lv den 389 Mich 817 (1973). Further, it is designed to "facilitate the amendment of pleadings except where prejudice to the opposing party would result”. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973).

Our examination of the record indicates that defendant Leo Glass could not have been unfairly surprised by the late amendment of plaintiffs’ complaint. In substance, the amendment alleges that defendant Leo Glass proceeded with development of the subdivision after he knew, or should have known, that it could not be adequately supplied with good water. This issue was raised in the extensive pretrial interrogatories to which defendant Leo Glass was a party, in plaintiffs’ opening argument at trial, and in the trial itself during the testimony of an employee of the Marquette County Health Department who established that not only did defendant Leo Glass have knowledge of the water condition but that he had also been requested to take specific corrective measures and should have exercised restraint in proceeding with development of the subdivision. In our opinion then, the lower court did not abuse its discretion in permitting the amendment. Ball v Render, 64 Mich App 148, 151; 235 NW2d 90 (1975). The substance of the amendment was tried with the implied consent of the parties and, thus, the amendment was allowable under § 118.3 of the General Court Rules.

Defendant Leo Glass next argues that even if the amendment was permissible the lower court erred in denying his motion for judgment notwithstanding the verdict on the negligence count because plaintiffs failed to prove the specific act of negligence alleged. We find no merit in this issue. In their amended complaint, plaintiffs alleged that defendant Leo Glass was negligent because he proceeded with development of the subdivision after he knew, or should have known, that the development would encounter difficulty with its water supply. Plaintiffs did introduce at trial testimony tending to establish this specific act of negligence and thus they fulfilled that which was required of them. Automobile Insurance Co of Hartford, Connecticut v Pere Marquette R Co, 322 Mich 468; 34 NW2d 46 (1948).

We also hold to be unmeritorious the argument of defendant Leo Glass that a subdivision proprietor owes absolutely no duty of care to those who ultimately purchase homes from the builder-developer to whom the proprietor sold the land and, therefore, that the lower court erred in denying his motion for judgment notwithstanding the verdict on the negligence count.

In reviewing an appeal from a denial of a motion for judgment notwithstanding the verdict, this Court reviews the evidence in the light most favorable to the nonmoving party. Distco Laminating, Inc v Union Tool Corp, 81 Mich App 612; 265 NW2d 768 (1978), lv den 403 Mich 848 (1978). Defendant Leo Glass argues that at issue here is whether there exists a special relationship between a subdivision proprietor and the ultimate purchasers of homes from a builder-intermediary that would justify the imposition of a legal duty. In general, of course, the question of whether a duty exists is one of law for the trial judge. Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977).

Were we to accept the question here framed by defendant Leo Glass as the pertinent one controlling his liability to plaintiffs, we would tend to agree with him that he was entitled to a judgment notwithstanding the verdict as to his liability for negligence. This is because his failure to warn plaintiffs of the water condition would make him guilty only of passive negligence for nonfeasance. To impose liability for nonfeasance, it is necessary first to find some definite relationship between the plaintiff and defendant of such a character that social policy requires a duty to act. See, Prosser, Torts (4th éd), § 56, p 339. Michigan courts have not recognized relationships of the type between plaintiffs and defendant Leo Glass to be of such great importance that defendant would have an affirmative duty to protect plaintiffs. However, by holding this we do not thereby conclude that the lower court abused its discretion in denying this defendant’s motion.

Plaintiffs alleged, and the trial judge so found, that defendant Leo Glass was actively negligent in that he proceeded with development of the subdivision after being advised of the water problem. Plaintiffs claim that, in so doing, he violated not a duty arising out of any special relationship with plaintiffs, but the general duty "to conform to the legal standard of reasonable conduct in the light of the apparent risk”. Prosser, Torts, supra, § 53, p 324. See also, Moning v Alfono, supra at 443.

It is nearly impossible to state a general rule defining when a duty exists and when it does not. To this end, the Supreme Court in Moning noted the importance of foreseeability as bearing on the establishment of a duty. That is, is it foreseeable that the actor’s conduct may create a risk of harm to the victim?

In the instant case, defendant Leo Glass should have foreseen the risk that the ultimate purchasers of lots in the subdivision might suffer exactly the kind of harm that befell plaintiffs unless the uncertainties about the availability of adequate water were resolved. Because of the procedural posture in which this question arises, a motion for judgment notwithstanding the verdict, and because we cannot say that the prospect of harm to plaintiffs was so slight or remote that defendant Leo Glass did not owe plaintiffs a common law duty of ordinary care, we affirm the lower court’s denial of defendant’s motion.

The final issue raised by defendant Leo Glass is that the lower court erred in denying his motion for a new trial. While we concede that the jury must have encountered great difficulty in apportioning damages among the several defendants, defendant Leo Glass raised no objection at trial to an instruction that suggested that the jury could apportion damages if they could determine the proportional amount of damage caused by each defendant. It is possible that this defendant made a tactical decision to remain silent and hope for an apportionment that favored him. In any event, we hold that defendant had waived this issue.

Neither do we find that a new trial should have been granted because the jury’s verdict was against the great weight of the evidence or because the jury made unwarranted findings of fact. The grant or denial of a new trial is within the sound discretion of the trial judge whose decision on such a motion will not be reversed on appeal absent an abuse of discretion. Kailimai v Firestone Tire & Rubber Co, 398 Mich 230, 232; 247 NW2d 295 (1976). Under the circumstances of this case, it was a proper exercise of discretion for the trial judge to deny defendant Leo Glass’ motion for a new trial and partially grant his motion for a judgment notwithstanding the verdict to correct any inaccuracy in the jury verdict.

Plaintiffs argue on cross-appeal that the lower court erred in granting defendant Vivian Glass’ motion for judgment notwithstanding the verdict. Our examination of the record discloses no evidence showing that the subdivision project had become the subject of a principal-agent relationship, a partnership or a joint venture between Leo and Vivian Glass. Thus, we cannot impute defendant Leo Glass’ knowledge of the water condition to his wife. Because plaintiffs have presented no evidence establishing that defendant Vivian Glass knew of the risk that proceeding with the subdivision would entail or that she had designated her husband as her agent for dealing with the property in question, we affirm the lower court’s ruling. Their mere relationship as husband and wife imposes no liability on Mrs. Glass for her husband’s torts under the facts in the record before us.

We summarily reject plaintiffs’ argument that the lower court erred in granting the motion of defendants Vivian and Leo Glass for judgment notwithstanding the verdict on the implied warranty count of plaintiffs’ complaint. Although Michigan does recognize that certain implied warranties of habitability are created in the sale of a new house, Weeks v Slavik Builders, Inc, 384 Mich 257; 181 NW2d 271 (1970), Cartmell v The Slavik Co, 68 Mich App 202; 242 NW2d 66 (1976), lv den 397 Mich 828 (1976), no such implied warranty extends to the sale of land itself. Further, the existence of the Subdivision Control Act of 1967, MCL 560.101 et seq.; MSA 26.430(101) et seq., does not mandate a different result on this issue. Regardless of whether or not that act was designed, as plaintiffs allege, to protect subdivision homes purchasers from "precisely such defaults as were involved here”, plaintiffs failed to show at trial that the Glasses violated any particular provision of it. The mere invocation of the statute by plaintiffs does not improve plaintiffs’ position with respect to the implied warranty count in their complaint.

Finally, we agree that the lower court acted properly when it granted defendant Anderson Well Drilling’s motion for judgment notwithstanding the verdict. This defendant had no contractual relationship with plaintiffs and cannot be said to have warranted the quality of the water that was obtained from the wells that it drilled. Anderson merely drilled the wells where it was instructed to do so by the subdivision developer. Further, as to the negligence count, there is no evidence in the record that would indicate that Anderson violated a professional standard of care, and on the evidence produced at trial we cannot say that Anderson was guilty of ordinary negligence.

The lower court judgment is affirmed. Defendants Vivian Glass and Anderson Well Drilling may assess costs against plaintiffs, both parties having prevailed in full on appeal. Plaintiffs and defendant Leo Glass are not entitled to costs because none of these parties have bettered their positions by this appeal.


source: Caselaw Access Project

author: Allen, P.J.

license: Public Domain

text:
    PEOPLE v UMERSKA
    Docket No. 78-329.
    Submitted November 20, 1979, at Detroit.
    Decided January 22, 1980.
    Lois Umerska was convicted, after a nonjury trial, of obtaining money under false pretenses, Wayne Circuit Court, Irwin H. Burdick, J. The defendant appeals, alleging that 1) by allowing the prosecution to call a surprise unendorsed witness on the second day of trial the trial court committed reversible error, 2) reversible error occurred because the police officer in charge of the case gave a false answer to defense counsel, and 3) questions by the prosecution and the trial court regarding the defendant’s specific religious belief in witchcraft resulted in reversible error. Held:

    1. The late endorsement of witnesses is within the discretion of the trial court, having due regard for a defendant’s right to a fair trial. In the present case, defense counsel interviewed the witness 30 minutes prior to the endorsement and, in addition, the trial court offered defense counsel further time if counsel so desired. Defense counsel’s cross-examination was thorough and vigorous and the defendant’s rebuttal testimony indicated that the defense counsel was sufficiently familiar with the nature of the endorsed witness’s testimony in time to prepare an adequate rebuttal. There was no error in this regard.
    2. The statement made by the police officer that he knew "absolutely nothing” in response to a question posed by defense counsel as to whether anyone from the bank at which part of the transaction occurred would testify was apparently made in jest and cannot be condoned. However, the statement may not be imputed to the prosecutor. There is no showing of prejudice since defense counsel did have an opportunity to talk with the bank teller prior to the teller’s endorsement as a witness and was given an opportunity to talk further with the witness if counsel wished to do so.
    3. The defendant’s belief in witchcraft as a religion was first introduced by defense counsel. Prior to the introduction of evidence of witchcraft as the defendant’s religion, by the defense, the prosecution had asked the complainant and other witnesses whether the defendant had represented herself or was known to be a witch and whether she claimed to be a psychic. This was far different than questioning the defendant about her religion. The complainant was superstitious and feared witches and witchcraft in general. Once the defense brought up the issue of witchcraft as a religion in an effort to portray that witchcraft was a benign faith of love and trust and to show the complainant was not in fear of the defendant, there was no error in allowing the prosecution to cross-examine the defendant about her religious beliefs in witchcraft. The prosecution kept its inquiries on the subject to only what was necessary to attempt to show that it was the complainant’s fear of the defendant due to the defendant’s belief in witchcraft which was the reason for the complainant’s delay in reporting the crime to the police. In addition, witchcraft and religion, if anything, are opposites as those terms are generally understood. No error resulted from the questioning by the prosecution on this matter.

      References for Points in Headnotes

       41 Am Jur 2d, Indictments and Informations § 60.
    81 Am Jur 2d, Witnesses §§ 4, 74.

       81 Am Jur 2d, Witnesses §§ 478 et seq., 484.

      Affirmed.
    1. Witnesses — Criminal Law — Endorsement of Witnesses — Late Endorsement — Discretion.
    Late endorsement of witnesses is within the discretion of the trial court, having due regard for a defendant’s right to a fair trial.
    2. Constitutional Law — Criminal Law — Defendant’s Religious Beliefs — Witchcraft — Questions by Prosecutor.
    The prosecution’s questioning of a defendant and other witnesses about the defendant’s belief in witchcraft as a religion was entirely proper where 1) the issue of the defendant’s belief in witchcraft as a religion was introduced by the defendant, 2) the questioning was relevant to the motive of the complainant in delaying in reporting to the police a crime allegedly committed by the defendant, and 3) the questions asked by the prosecution were within the limits established by case precedent.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Ann B. Wetherholt, Assistant Prosecuting Attorney, for the people.

      Rickel, Urso, Wokas & Earle, for defendant on appeal.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Allen, P.J.

Witches: "Double, double, toil and trouble; Fire burn, and cauldron bubble.” Macbeth, Act IV, Scene one.

Following a nonjury trial before Circuit Judge Irwin H. Burdick, defendant was found guilty, as charged, of obtaining money under false pretenses, MCL 750.218; MSA 28.415. On December 6, 1977, defendant was sentenced to probation for two years and ordered to pay $4,500 restitution to the complainant, Anna Groves.

The central issue at trial was whether a check for $4,500 given to defendant by Anna Groves on December 30, 1976, was a down payment on defendant’s mobile home which had been up for sale or was, in fact, a repayment of a debt owed by Anna Groves to defendant. The facts as presented by the prosecution disclose that complainant, a middle-aged widow living on social security of about $200 a month and anticipating a modest inheritance from her husband’s estate, had recently suffered a nervous breakdown and was superstitious to the point that she carried a small bag around with her to ward off evil spirits. She met defendant in the first week of November, 1976, when complainant responded to a Detroit News ad that defendant’s mobile home was for sale. At the first meeting, defendant allegedly agreed to sell to complainant for the advertised price of $8,000, holding off the sale until complainant was able to sell the equity in her present home. Complainant received the money on this sale of her home December 23, 1976, and, on December 30, went to defendant’s residence to consummate the mobile home sale. There, she signed a check drawn on the Wayne Bank for $4,500 and accompanied defendant to the Wayne Bank where the check was exchanged for a cashier’s check payable to defendant. The two women then went to defendant’s bank where defendant deposited the check. The parties returned to defendant’s home where, for the first time, defendant informed plaintiff the mobile home had already been sold to another party. However, as noted by the defendant, complainant did not protest or go to the police until February or March, 1977.

In the seven-week period between the parties’ first meeting and December 30, 1976, complainant visited defendant’s home on many occasions. It was on these visits that defendant told complainant she was a psychic, and did Tarot card readings for which she charged complainant $5 a reading. Over defense counsel’s objections on grounds of relevancy, complainant testified that defendant claimed to be a witch with powers to cast a circle of protection around complainant so that nothing could harm her.

Defendant called five witnesses who gave an entirely different version of the facts. According to their testimony, Anna Groves became acquainted with defendant several months prior to December, 1976; that during this period defendant did Tarot card readings for her; that the parties became close friends to the point that on October 20, 1976, defendant gave Anna Groves $4,500 cash with the understanding it would be repaid when her late husband’s estate was settled. The testimony also discloses that after complainant was told the trailer had been sold to another party, she did not complain but, instead, continued to visit defendant; that she gave defendant a purse, shoveled snow, helped measure walls and conducted herself in a manner completely contrary to the way a normal person would react if swindled out of $4,500.

One of the defendant’s witnesses, Roberta Jackson, stated on cross-examination that she and defendant shared a common belief in witchcraft as a religion. Another witness for the defendant, Patricia Williams, when asked on direct examination if she was afraid of defendant because of defendant’s religious beliefs, responded in the negative. Defendant testified in her own behalf and, when asked by defense counsel about the content of her religious beliefs in witchcraft, explained that witchcraft was a religion teaching perfect love and trust. On cross-examination of defendant the prosecution asked a limited number of questions about witchcraft as a religion and about the sect’s organization and officers. Finally, Anna Groves was called as a witness by the defense. At the close of her testimony the court inquired of her about defendant’s belief that she was a witch and any statements defendant made concerning witchcraft in general. Similar questions were asked by the court at the conclusion of defendant’s trial.

On appeal, defendant claims the trial court committed reversible error in three respects: (1) by allowing the prosecutor to call a surprise unendorsed witness on the second day of trial, (2) because the officer in charge of the case gave a false answer to defense counsel when, on the first day of trial, defense counsel asked if the prosecution planned to call anybody from the Wayne Bank and the officer replied he knew "absolutely nothing”, and (3) by allowing questions by the prosecution and the court about defendant’s specific religious belief in witchcraft. Of the three issues raised, the third is the most substantive.

I.

Keith Doelker, the bank teller at the Wayne Bank who handled the December 30 check cashing was called as a witness after the prosecution moved on the second day of trial to endorse Doelker as a res gestae witness. Doelker was not endorsed on the information. The motion was granted over defense counsel’s strenuous objection. On direct examination he testified that on December 30, 1976, two women came to his teller window, one of whom exchanged a $4,500 check drawn on the bank for a cashier’s check. He recalled that one of the women said the check was for a trailer. In People v Meadows, 80 Mich App 680; 263 NW2d 903 (1977), this Court refused to find error when, during trial, the trial court granted the prosecution’s motion for endorsement of a witness who had not been endorsed on the information. In sustaining the trial court’s action the Court first noted that late endorsement of witnesses is within the discretion of the trial court, having due regard for a defendant’s right to a fair trial, People v Tann, 326 Mich 361; 40 NW2d 184 (1949). The Court then found no abuse of discretion because (a) the trial court had given counsel a continuance to prepare for cross-examination, (b) counsel’s cross-examination was vigorous, and (c) defendant’s rebuttal testimony indicated defense counsel was familiar with the nature of the endorsed witnesses’ testimony some time prior to trial. People v Meadows, supra, at 690.

The record reflects that all three conditions were met in the instant case. Defendant’s counsel interviewed the witness 30 minutes prior to the endorsement and, in addition, the trial court offered counsel further time if counsel so desired. Counsel’s cross-examination was thorough and vigorous, and defendant’s rebuttal testimony indicated counsel was sufficiently familiar with the nature of the endorsed witness’s testimony in time to prepare an adequate rebuttal. We find no error.

II.

During the first day of trial, defense counsel inquired of Detective Lindburgh, a police officer assigned to assist the prosecutor in the preparation of the case, whether he "knew anything about anybody from the Wayne Bank”. The detective responded "in jest” that he knew absolutely nothing even though the detective admitted that earlier that day he had talked with Wayne Bank officials about the check-cashing incident of December 30, 1976. Counsel contends this was a deliberate attempt by the prosecutor to conceal the fact that a bank teller would testify and, as such, is grounds for a new trial. Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). While we don’t condone the statement made by Detective Lindburgh, we can’t impute the officer’s response to the prosecutor. The question was ambiguous. Unlike Brady, it was not a statement made by the prosecutor. More importantly, there is no showing of prejudice since counsel did have the opportunity to talk with the bank teller, Doelker, prior to Doelker’s endorsement as a witness, and was given the opportunity to talk further with the witness if counsel wished to do so.

III.

Defendant strenuously argues that the prosecution and the court violated the provisions of MCL 600.1436; MSA 27A.1436, which reads:

"No person may be deemed incompetent as a witness, in any court, matter or proceeding, on account of his opinions on the subject of religion. No witness may be questioned in relation to his opinions on religion, either before or after he is sworn. ”

This statute was most recently construed in People v Theodore Jones, 82 Mich App 510, 516; 267 NW2d 433 (1978). In that case this Court said:

"The purpose of the statute is to strictly avoid any possibility that jurors will be prejudiced against a certain witness because of personal disagreement with the religious views of that witness. This object recognizes the deep personal feelings many people hold on religion, feelings that may unavoidably conflict with a juror’s sworn duty to decide solely on the evidence presented, without injection of personal prejudices.” (Emphasis supplied.)

After carefully examining the entire record of trial we find no violation of the statute in the instant case. Three reasons support our conclusion.

First, the subject of defendant’s religious beliefs was first introduced by defense counsel. Up to that point the prosecutor had asked the complainant and other witnesses whether defendant had represented herself or was known to be a witch and whether she claimed to be psychic. This is far different than questioning defendant about her religion. An obvious weakness in the prosecution’s case was the long delay between December 30, 1976, when complainant signed the check for $4,500, and late February and early March, 1977, when she first made demands on defendant’s husband and then on defendant for repayment. The prosecution sought to explain the delay on grounds that Anna Groves knew defendant was a witch claiming certain psychic powers and was afraid of her. Since defendant introduced the matter of her religious beliefs into evidence, the prosecutor’s questioning was entirely proper and quite within the limits allowed in Theodore Jones, supra, at 515, and People v Bouchee, 400 Mich 253, 262; 253 NW2d 626 (1977). In the 1978 Annual Survey of Michigan Law, Glicksman, Evidence, 25 Wayne L Rev 477, 506 (1979), Professor Glicksman comments on the Theodore Jones opinion as follows:

"The appellate court rejected defendant’s argument as related to the questioning of defendant, who had himself introduced the religious issue by testifying that he was a lay preacher in the church. In reversing defendant’s conviction, however, the court held that the prosecutor improperly questioned defendant’s character witness.” (Emphasis added.)

The prosecutor’s questions on cross-examination of Ms. Jackson concerning religious beliefs were limited to one fleeting reference after which, as on direct examination of the complainant, the prosecutor’s questions were confined to whether defendant was a witch, was psychic or could put hexes on people. Under these circumstances we decline to find error in the cross-examination of Ms. Jackson.

Second, defense counsel cannot have it both ways. Counsel may not have the benefit of responses to questions asked by him which are designed to show the favorable side of defendant’s beliefs but deny the people the right to ask any questions at all on the testimony introduced. It was obvious from the testimony that complainant feared witches and witchcraft in general. To obviate this belief, defense counsel asked a series of questions, the responses to which rebutted the popular belief that witchcraft was an invention of the devil but, instead, was a benign faith of love and trust.

"Q (By Mr. Monash): Would you explain what this means to you? Just explain what the word witch; witchery; witchcraft means to you?
"A [defendant] First of all, we are a religion that is over 40,000 years old. We are the original religion from whence all of the religions came. The word 'witch’ is a paraphrasing; something that has been added, which comes from the anglo saxon word meaning wise.
"In pagan — in early times, we were judges, doctors and knowledgeable people and being a witch, it has nothing to do with anything other than religion. Much is made—
"THE COURT: (Interposing) I’m missing half of what you’re saying as to what it means to you.
"A (By the Witness): It is a religion. It is not new. It means simply wise one. That comes way back from early times. We practice perfect love and perfect peace. With the onset of Christianity, many of us were murdered. So, there came—
"MR. MONASH: (Interposing) That isn’t — I’m not asking for a history of it.
"Q (By Mr. Monash): You say it’s a religion to you and it means certain things, in terms of love, trust and belief.
"A What it means to me, we live it everyday, as opposed to putting it on, on sabbath or holy days.
"Q And your belief of this religion, does it in any way, shape or form, mean casting spells or hexes on other people?
"A Casting evil spells? We don’t believe in evil.”

It was only after the above line of questions were elicited by defendant on direct examination that the prosecution on cross-examination briefly inquired about defendant’s religious belief.

Third, the trial court’s questions at the conclusion of defendant’s testimony and of complainant at the conclusion of her testimony were basically inquiries as to whether defendant stated she was a witch, whether witchcraft was discussed and whether defendant claimed to be psychic. We disagree with defendant’s argument that such questions are, in themselves, questions about the witness’s "opinions on religion”. If anything, witchcraft and religion, as those terms are generally understood, are opposites. Black’s Law Dictionary, 4th ed (1957), defines witchcraft as "supposed intercourse with evil spirits” and defines religion as "one’s views of his relations to his Creator and to the obligations they impose of reverence for his being and character and of obedience to his will”. In the American Heritage Dictionary of English Language, religion is defined as "the expression of man’s belief in and reverence for superhuman power recognized as the creator and governor of the universe”. In view of these definitions we find it does violence to the statute to conclude that, by merely asking if defendant was a witch, whether she discussed witchcraft and whether she represented she had psychic powers, the statute was violated.

We find the following excerpt from the Encyclopedia Britannica entitled "Witchcraft” apposite to the facts of this case:

"Those who have unexplained illness, persistent nightmares, or continuing psychological distress may wonder if they are not being bewitched — or those close to them will suggest this possibility. Divination may be attempted to determine if witchcraft is the cause, who is carrying it out, and what methods are being used (see Azande). Ceremonial protection and cure may be advised. All these measures impose considerable economic expense on the supposed victim and his relatives. If the symptoms do not disappear, anxiety may grow into terror, and the sufferer becomes wan, sleepless, emaciated; the original difficulty is aggravated by the burdens of emotional disturbance. Even if clear-cut bodily symptoms are absent at first, the nervous system may be deranged under strong fear of witchcraft, producing phenomena similar to those of surgical shock leading in some cases to the victim’s death.” 23 Encyclopedia Britannica, Witchcraft, 604, 606 (1967).

The above quoted excerpt lends credence to the prosecutor’s theory that complainant’s reason for not reporting the alleged crime was her fear of defendant who openly claimed to be a witch. It also explains why defense counsel injected testimony that witchery was a religion and the religion was one of love and trust. Under the circumstances, we believe it was proper for defendant to introduce such testimony. But, once having done so, we find no error in the extremely few questions asked by the prosecution on the matters testified to. Had the prosecutor or the court inquired whether defendant’s belief was in God or whether defendant’s obligation was directed toward someone or something other than a Supreme Being known as God, error might well be found. People v Wells, 82 Mich App 543; 267 NW2d 448 (1978), People v Hall, 391 Mich 175; 215 NW2d 166 (1974). But because the prosecutor’s and the court’s inquiries were not in that vein, we find no violation of the statute.

Affirmed.

       The first reference to religion came when defense counsel on recross-examination of complainant questioned as follows:
      "Q [by Mr. Monash, defense counsel]: Mr. Gutter [Assistant Prosecuting Attorney] questioned you about the issue of witchcraft or witchery. Did you discuss this on more than one occasion with Mrs. Umerska about witchcraft or witchery?

        "A Yes, about protecting.
      "Q Was it discussed that the fact that witchcraft is a religion to some people?
      “A To my knowledge it is a religion to the devil.
      "Q To the devil?
      "THE COURT: That wasn’t his question.
      "THE WITNESS: No, but this is the way that I feel.
      "Q (By Mr. Monash): Did you hear my question that it is a religion to them?
      "A Yes.
      "Q Did you discuss witchcraft being a religion?
      "A No.
      "Q Were you afraid of her because of the word 'witchcraft’? Did that make you fearful?
      "A It did.”
      The second reference to religion was also introduced by defense counsel when he was examining Roberta Jackson, a witness for defendant. Ms. Jackson testified that she and defendant shared a common religion.

       "Q My question was, was there any discussion with regard to witchcraft?
      "A Witchcraft, that’s our religion.
      "Q Your religion?
      "A If you be nice to other people, they’ll be nice to you. We have perfect love and perfect trust and live in perfect trust and harmony.
      "Q Have you ever expressed that you can put hexes or signs on people that would cause bad things to happen to them?
      "A Absolutely not. We don’t believe in it.
      "Q Have you, in the recent past, done anything like that to somebody?
      "A I never had. We don’t believe in it.”

       We also note that the instant case was tried without a jury and nothing in the court’s written opinion indicates that the testimony about defendant’s religious belief led the court to hold in favor of plaintiff.


author: Beasley, J.

text:
    PEOPLE v PETTWAY
    Docket No. 78-891.
    Submitted December 5, 1979, at Lansing.
    Decided January 22, 1980.
    Kelly D. Pettway was convicted of first-degree criminal sexual conduct, Recorder’s Court of Detroit, Dalton A. Roberson, J. The information charged defendant with sexual penetration with another person under circumstances involving the commission of another felony. The other felony was breaking and entering an occupied dwelling with intent to commit criminal sexual conduct, which is a statutory offense. Defendant appeals. On appeal defendant alleges that when the first-degree criminal sexual conduct statute spells out "under circumstances involving the commission of any other felony” it means any other felony other than one involving sexual penetration because an essential element of breaking and entering with intent to commit criminal sexual conduct is "the intent to commit criminal sexual conduct”; therefore, the entire proceeding is defective because breaking and entering with intent to commit criminal sexual conduct is not another felony, but instead, is the same or a lesser included offense. Held:

    Criminal sexual conduct is not identical with breaking and entering an occupied dwelling house with intent to commit criminal sexual conduct. They are separate and distinct offenses. Each crime requires proof of different elements. Therefore, the crimes are not the same and one is not a necessarily included offense of the other. The crime of first-degree criminal sexual conduct is complete where a breaking and entering of an occupied dwelling house with intent to commit criminal sexual conduct is followed up with sexual penetration with another person in that dwelling.
    Affirmed.
    References for Points in Headnotes

       65 Am Jur 2d, Rape § 3.
    What constitutes penetration in prosecution for rape or statutory rape. 76 ALR3d 163.

       73 Am Jur 2d, Statutes §§ 145, 146, 204, 206, 225.

       13 Am Jur 2d, Burglary § 24.

      1. Rape — Criminal Sexual Conduct — Sexual Penetration — Statutes.
    A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and the penetration occurs under circumstances involving the commission of any other felony (MCL 750.520b[l][c]; MSA 28.788[2][l][c]).
    2. Statutes — Construction — Legislative Intent — Duty of Court.
    The object of statutory construction is to ascertain the legislative intent from the language of the act; courts are required to ascribe to words, not otherwise defined in a statute, their plain and ordinary meaning.
    3. Criminal Law —• Rape — Criminal Sexual Conduct — Breaking and Entering — Sexual Penetration — Proofs — Lesser Included Offenses.
    The offense of criminal sexual conduct is not identical with the offense of breaking and entering an occupied dwelling with intent to commit criminal sexual conduct; breaking and entering with intent to commit criminal sexual conduct is a separate and distinct offense from the completed act of sexual penetration and each crime requires proof of different elements; therefore, one is not a necessarily included offense of the other.
    4. Criminal Law — Criminal Sexual Conduct — Rape — Breaking and Entering — Sexual Penetration — Statutes.
    Breaking and entering an occupied dwelling with intent to commit criminal sexual conduct is a felony for purposes of the first-degree criminal sexual conduct statute because it constitutes the commission of the "any other felony” requirement; where breaking and entering is combined with the intent to commit criminal sexual conduct, followed up with sexual penetration with another person in that dwelling, the crime of criminal sexual conduct in the first degree has been completed (MCL 750.520b[l][c]; MSA 28.788[2][l][c]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Neis L. Olson, Assistant Prosecuting Attorney, for the people.

      Gerald S. Surowiec, P.C., for defendant on appeal.
    Before: Danhof, C.J., and Beasley and Cynar, JJ.
   Beasley, J.

Defendant, Kelly Dalton Pettway, was convicted by a jury of first-degree criminal sexual conduct in violation of MCL 750.520b(l)(c); MSA 28.788(2)(l)(c). After sentence to not less than 5 years nor more than 15 years in prison, defendant appeals as of right.

The information filed against defendant charged him with sexual penetration with another person under circumstances involving the commission of another felony. The evidence indicated, and the trial judge instructed the jury, that the other felony was breaking and entering an occupied dwelling with intent to commit criminal sexual conduct, which is a statutory offense, MCL 750.110; MSA 28.305.

On appeal, defendant makes an ingenious argument that when the criminal sexual conduct statute spells out "under circumstances involving the commission of any other felony” as one of the circumstances which raises sexual penetration to a "first degree” criminal sexual conduct offense, it means any other felony than one involving criminal sexual penetration. He then reasons that since an essential element of breaking and entering with an intent to commit criminal sexual conduct is "the intent to commit criminal sexual conduct”, it is not another felony, but instead, is the same (or a lesser included) offense. He concludes the entire proceeding is defective, i.e., under the criminal sexual conduct statute, sexual penetration with another person under circumstances involving the commission of breaking and entering with intent to commit criminal sexual conduct is not and cannot by itself be criminal sexual conduct, first degree.

We disagree with the interpretation defendant places upon the statute. The relevant part of the first-degree criminal sexual conduct statute provides:

"Sec. 520b. (1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
"(c) Sexual penetration occurs under circumstances involving the commission of any other felony.” MCL 750.520b; MSA 28.788(2).

The elements of this offense are (1) engaging in sexual penetration with another person and, (2) the penetration occurs under circumstances involving the commission of any other felony.

The evidence here indicates the "other felony” involved was breaking and entering an occupied dwelling with intent to commit criminal sexual conduct, and the trial judge so instructed the jury.

The applicable part of the breaking and entering statute provides:

"* * * Any person who shall break and enter with intent to commit any felony or any larceny therein, * * * any occupied dwelling house * * *.” MCL • 750.110; MSA 28.305.

The elements of this specific intent crime are (1) breaking and entering, (2) an occupied dwelling and, (3) with the intent to commit larceny or any felony.

Defendant argues that the words "other felony” in the first-degree criminal sexual conduct statute mean other than criminal sexual conduct. Specifically, defendant would claim that the other felony requirement for lifting sexual penetration to "first degree” cannot be met by resort to criminal sexual conduct in the second degree, criminal sexual conduct in the third degree, or criminal sexual conduct in the fourth degree. He says they are lesser included offenses, i.e., are the same felony, not another felony.

But, whether or not that analysis is sound, it falls down when applied to breaking and entering with intent to commit criminal sexual conduct.

The fact is that criminal sexual conduct is simply not identical with breaking and entering with intent to commit criminal sexual conduct. For example, in People v Terry Alexander, defendant was convicted of both second-degree criminal sexual conduct and assault with intent to commit criminal sexual conduct involving sexual penetration. This Court reasoned that the assault with intent offense necessitated proof of an element unique to that offense and not required in second-degree criminal sexual conduct, namely, the specific intent to commit sexual conduct involving sexual penetration. This Court said:

"On the facts of this case, the jury did not necessarily find defendant guilty of one crime in finding him guilty of the other.”

Similarly, in the within case, in contrast to the breaking and entering with intent to commit a criminal sexual conduct offense, specific intent is not necessary to a charge of first-degree criminal sexual conduct. The object of statutory construction is to ascertain the legislative intent from the language of the act. Courts must ascribe to words, not otherwise defined in the statute, their plain and ordinary meaning.

As the prosecution correctly argues, felony, as construed in the phrase "any other felony”, refers to any felony other than criminal sexual conduct. It would appear that the "other felony”, breaking and entering with intent to commit criminal sexual conduct, is a separate and distinct offense from the completed act of sexual penetration. Thus, it can be argued that breaking and entering an occupied dwelling with intent to commit criminal sexual conduct can be proved without proof of the act of sexual penetration. They are separate and distinct crimes requiring proof of different elements so that the argument that one is a necessary lesser included offense of the other is without merit. Accordingly, the language of the statute, "any other felony”, is satisfied by proof of the felony, to wit: breaking and entering with intent to commit criminal sexual conduct.

This record indicates sufficient evidence from which the jury could infer the specific intent required to establish a breaking and entering with intent to commit criminal sexual conduct.

Thus, we decline to hold that breaking and entering with intent to commit criminal sexual conduct is not another felony for purposes of MCL 750.520b(l)(c); MSA 28.788(2)(l)(c).

On the contrary, we believe the Legislature intended breaking and entering an occupied dwelling with intent to commit criminal sexual conduct, followed up with sexual penetration with another person in that dwelling, to be first-degree criminal sexual conduct. Under these circumstances, we hold breaking and entering with intent to commit criminal sexual conduct falls within the words of the statute "under the circumstances involving the commission of any other felony”.

Affirmed.

       MCL 750.520b(l)(c); MSA 28.788(2)(l)(c).

       MCL 750.110; MSA 28.305.

       82 Mich App 621; 267 NW2d 466 (1978).

         People v Alexander, supra at 625.

        Smith v City Comm of Grand Rapids, 281 Mich 235; 274 NW 776 (1937).

        Bingham v American Screw Products Co, 398 Mich 546; 248 NW2d 537 (1976), Derwinski v Eureka Tire Co, 79 Mich App 750; 263 NW2d 30 (1977).


author: N. J. Kaufman, P.J. D. C. Riley, J.

text:
    PEOPLE v WILLIAMS PEOPLE v ANDERSON PEOPLE v RESPRESS PEOPLE v JOHNSON
    Docket Nos. 78-1441, 78-1808, 78-1972, 78-2168.
    Submitted June 20, 1979, at Detroit.
    Decided January 22, 1980.
    Leave to appeal granted, 408 Mich 959.
    Harold Williams, Frank Anderson, Lavoier Respress and Wilbur Johnson, under separate counts, were charged with and convicted of first-degree criminal sexual conduct. At trial, defendant Williams sought an in camera hearing relative to the question of the admission of evidence of prior sexual contacts between himself and the complaining witness. The defendants also sought a hearing relative to the admission of evidence of the fact that the complaining witness had recently been arrested for accosting and soliciting, such information having come to light when the prosecution produced the "rap sheet” of the complaining witness during the trial. The hearing relative to these matters was sought because defendants wanted to introduce such evidence for the jury’s consideration relative to the question of consent by the complaining witness to the sexual acts giving rise to the prosecution. The Recorder’s Court of Detroit, Donald L. Hobson, J., denied the request for a hearing and refused to admit the proffered evidence on the basis that the defendants had failed to file a timely notice of their intent to present such evidence, as required by the criminal sexual conduct statute. Defendants appeal separately. The appeals were consolidated. Held:

      References for Points in Headnotes
    [1-4, 6, 7] 65 Am Jur 2d, Rape § 84.
    Modern status of admissibility in forcible rape prosecution of complainant’s prior sexual acts. 94 ALR3d 257.
    [2] 75 Am Jur 2d, Trial §§ 320, 344 et seq., 416.
    [4] 75 Am Jur 2d, Trial § 20 et seq.

    [5] 65 Am Jur 2d, Rape §§ 82-86.
    [6] 21 Am Jur 2d, Criminal Law § 333 et seq.

    [8] 5 Am Jur 2d, Appeal and Error §§ 601-607.
    [9] 62 Am Jur 2d, Pretrial Conference § 10.
    [10] 4 Am Jur 2d, Appeal and Error § 491 et seq.

      1. The refusal of the trial judge to consider and admit the testimony relative to the prior sexual acts between defendant Williams and the complaining witness was error which mandates reversal and remand for a new trial. The statutorily required in camera hearing on the admissibility of such evidence lacks constitutional validity in situations where the evidence relates to personal sexual contacts between a defendant and a complaining witness, since any hearing under those circumstances would necessarily require the trial court to take from the factfinder the question of the relative credibility of the defendant and the complaining witness. Further, the notice requirement of the criminal sexual conduct statute serves no logical purpose with respect to evidence of prior sexual contacts between a defendant and a complaining witness, and, accordingly, failure to file such a notice should not affect a defendant’s right to present such evidence.
    2. The fact that defendant Williams was jointly tried with the other codefendants does not serve to deny Williams his right to have the jury consider his testimony concerning his prior sexual contacts with the complaining witness in its determination of the question of consent. Although the codefendants have no right to present evidence of Williams’ prior sexual contacts with the complaining witness if tried separately, the codefendants have a right to benefit from that evidence when tried with Williams.
    3. The trial court erred in refusing to exercise its discretion with respect to the admission of evidence of the complainant’s criminal record. The failure of the defendants timely to file the statutory notice did not relieve the trial court from considering the question of the admissibility of such evidence. The trial court has a duty to exercise its discretion in reviewing the evidence without regard to any notice provisions.
    4. The failure of defense counsel to file the statutorily required notice of proof relative to complainant’s prior sexual conduct did not constitute ineffective assistance of counsel.
    Reversed.
    D. C. Riley, J., dissented. She would hold that the failure of defendants to file the statutory notice precluded consideration of the question of admission of the proffered evidence. The questions raised on appeal are either not preserved for appellate review and/or are not supported by the record. She would affirm.

      Opinion op the Court
    1. Evidence — Criminal Sexual Conduct — Prior Sexual Conduct — Complaining Witness — Defendant — Appeal and Error.
    A refusal of a trial judge in a criminal sexual conduct trial to admit a defendant’s testimony relative to prior sexual acts between the defendant and the complaining witness is error.
    2. Evidence — Criminal Sexual Conduct — Prior Sexual Conduct — In Camera Hearing — Statutes.
    The in camera hearing relating to testimony concerning prior sexual acts between a defendant and a complaining witness required by the criminal sexual conduct statute lacks constitutional validity because it would necessarily require that the trial court, in its determination of whether such evidence should be admitted, take from the factfinder the question of the relative credibility of the defendant and the complaining witness (MCL 750.520j; MSA 28.788[10]).
    3. Evidence — Criminal Sexual Conduct — Prior Sexual Conduct — Notice — Statutes.
    The failure of a defendant in a criminal sexual conduct trial to comply with the ten-day notice requirement in the criminal sexual conduct statute relative to the admission of testimony concerning prior sexual acts between a defendant and a complaining witness does not affect the right of the defendant to present such evidence, since the logical underpinnings of such a notice requirement do not exist in such a situation, the question necessarily being personal between the defendant and the complaining witness (MCL 750.520j; MSA 28.788[10]). '
    4. Evidence — Criminal Sexual Conduct — Prior Sexual Conduct — Jointly Tried Codependants — Admissibility.
    The fact that a defendant in a criminal sexual conduct trial is jointly tried with codefendants does not serve to deny that defendant his right to have the jury consider relative to the issue of consent evidence of his prior sexual acts with the complaining witness; the jointly tried codefendants have the right to benefit from the admission of such evidence, even though such evidence would not be admissible in the trials of the codefendants if they had been tried separately.
    5. Evidence — Criminal Sexual Conduct — Prior Criminal Record — Notice — Appeal and Error — Statutes.
    It is error for the court in a criminal sexual conduct trial to refuse to consider the question of the admissibility of evidence of a prior criminal record of the complaining witness, which included an accosting and soliciting citation, because defendant failed to comply with the notice requirement of the criminal sexual conduct statute (MCL 750.520j; MSA 28.788[10]).
    Dissent by D. C. Riley, J.
    6. Constitutional Law — Criminal Sexual Conduct — Right to Confrontation — Statutes.

      The provision of the criminal sexual conduct statute which excludes certain types of evidence of prior sexual conduct by the complaining witness with third parties does not deny a defendant his constitutional right to confrontation (MCL 750.520j; MSA 28.788[10]).

    7. Appeal and Error — Criminal Sexual Conduct — Notice — Failure to Give Notice — Constitutional Law — Statutes.

      Failure to Me notice as required by the criminal sexual conduct statute renders unnecessary consideration of the question of the constitutional validity of the provision which bars the admission of reputation evidence (MCL 750.520j; MSA 28.788[10]X

    8. Appeal and Error — Failure to Argue Below — Preservation of Question.

      Failure to raise and argue an issue in the trial court precludes review on appeal, since the issue is not preserved for appellate review.

    9. Evidence — Criminal Sexual Conduct — Hearing — Abuse of Discretion — Statutes.

      A hearing pursuant to the provisions of the criminal sexual conduct statute relative to the admission of newly discovered evidence relating to the reputation of the complaining witness is discretionary and failure to hold such a hearing does not constitute reversible error in the absence of a showing of abuse of discretion.

    10. Appeal and Error — Ineffective Assistance of Counsel — Preservation of Question.

      The question of ineffective assistance of counsel will not be considered on appeal where that question depends upon facts not of record.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, Timothy Scallen, Assistant Prosecuting Attorney as to the appeals of Williams and Anderson, Anne B. Wetherholt, Assistant Prosecuting Attorney as to the appeal of Respress, and Brian Marzec, Assistant Prosecuting Attorney as to the appeal of Johnson.

      Charles H. Brown, P.C., for defendant Williams.

      Gerald M. Lorence, P.C., for defendant Anderson.

      Cynthia R. Goldfarb, for defendant Respress.

      Loren E. Monroe, for defendant Johnson.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   N. J. Kaufman, P.J.

We agree with and adopt the statement of facts presented in the dissenting opinion. However, we note that the dissenting opinion declines to discuss the constitutional implications in this case arising out of the defendants’ failure to abide by the notice requirements of the restrictive evidence provision of the criminal sexual conduct statute, MCL 750.520j(2); MSA 28.788(10)(2). We find such a discussion to be called for. This opinion, then, reflects the view that that portion of the restrictive evidence provision, which requires notice and an evidentiary hearing before admission of evidence of specific instances of sexual conduct between a complainant and a defendant, violates a defendant’s sixth amendment rights to confrontation and cross-examination.

Although prior decisions of this Court have upheld the constitutionality of this restrictive evidence provision in the face of challenges that the preclusion of evidence regarding prior instances of a victim’s sexual conduct with third persons denies a defendant his right of confrontation, no case has considered the factual situation presented here. In the instant case, one of the codefendants, who had engaged in prior sexual conduct with the complainant, sought to admit this evidence to show the complainant’s consent. This attempt served to no avail because of the defendants’ failure to abide by the statutory notice provisions. In point of fact, because of such improper notice, the trial court declined to conduct an in camera hearing to weigh the probative value of this evidence against its prejudicial nature.

A litany of cases is cited in the dissenting opinion. It becomes necessary to re-analyze the propositions raised in these opinions and place them in their proper perspective.

In People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977), lv den 402 Mich 829 (1977), the defendant therein sought reversal of his first-degree criminal sexual conduct conviction. On appeal, that defendant argued that the trial court’s prohibition against questioning the victim about her sexual activities with third persons, prior to the alleged rape, violated his sixth amendment rights to confront and cross-examine his accuser. That defendant further argued that inquiry into the victim’s sexual background should have been permitted since it was probative to the issue of consent, that defendant’s principal defense. This Court rejected that defendant’s arguments as irrelevant and of minimal evidentiary significance. In so holding, the Court recognized that factual situations do exist in which the victim’s sexual behavior with third persons is arguably probative of consent. The victim’s sexual behavior with the actor, as in the instant case, then would be of greater moment.

The majority in People v Dawsey, 76 Mich App 741; 257 NW2d 236 (1977), rejected the argument of the defendant therein that his sixth amendment confrontation right was abridged when the trial court denied him the opportunity of questioning the complainant therein about her previous sexual activities with third persons. The Court held that a defendant is precluded from exploring a complainant’s sexual past in order to attack her veracity. This holding was narrow, however.

The Dawsey Court did not reach the issue of the constitutionality of the statutory provision restricting evidence with respect to opinion or reputation evidence of a complainant’s sexual conduct. Moreover, the Dawsey Court indicated that, had that defendant attempted to produce a witness to testify about that complainant’s reputation for chastity and been denied, serious constitutional questions would have been raised. The Court’s quote from People v McLean, 71 Mich 309, 312; 38 NW 917 (1888), is particularly illuminating considering the facts of the instant case:

" 'Evidence that the prosecutrix is a common prostitute, or that her character for chastity is bad, is admissible, and particular acts of unchastity or sexual intercourse with the Defendant may be shown; but evidence of such acts with a third person is not admissible’.” Dawsey, supra, 752-753.

In the case at bar, the defendants, on the issue of the complainant’s consent, sought to introduce evidence that the complainant was a common prostitute and that she had had previous sexual conduct with one of the codefendants. Both attempts were denied by the trial court.

In People v Patterson, 79 Mich App 393; 262 NW2d 835 (1977), the constitutionality of the restrictive evidence provision was upheld in three separate opinions. Judges R. B. Burns and Holbrook summarily rejected that defendant’s sixth amendment confrontation argument. Judge Cavanagh, in a separate concurring opinion which is quite instructive, held that the subject statute was unconstitutional to the extent that it excludes evidence which, if received, might raise in the mind of a juror a reasonable doubt as to a defendant’s guilt. Further, upon a defense counsel’s oifer of proof, a defendant should be entitled to an in camera hearing at which he may conduct, for the court’s consideration, the proposed cross-examination. The trial court must then determine whether this evidence would raise a reasonable doubt in the mind of a juror. This determination would be reviewable under a "clearly erroneous” standard by this Court, Patterson, supra, 413-414.

The evidence which the defendants sought to introduce with respect to the complainant’s prior sexual activity with codefendant Williams could raise a reasonable doubt in the mind of a juror.

In People v Khan, 80 Mich App 605; 264 NW2d 360 (1978), Iv den 402 Mich 903 (1978), this Court again upheld the constitutionality of the evidence limitation provision, finding a complainant’s previous sexual encounters with persons other than a defendant to be logically and legally irrelevant.

It is noteworthy that none of the aforementioned cases dealt with specific instances of prior sexual conduct between a complainant and a defendant, as here. Moreover, language in these cases suggests that their application is narrow in scope. Such application should not be extended to encompass the situation herein.

Restrictive evidence provisions are not given such an interpretation in California. In People v Blackburn, 56 Cal App 3d 685, 690; 128 Cal Rptr 864, 866-867 (1976), it was stated:

"The relevance of past sexual conduct of the alleged victim of the rape with persons other than the defendant to the issue of her consent to a particular act of sexual intercourse with the defendant is slight at best.” (Emphasis added.)

The California Evidence Code Section 1103, as amended, contains no provision allowing a trial court, in the exercise of its discretionary powers, to deny evidence of specific instances of prior sexual conduct between a complainant and a defendant.

Furthermore, recently adopted FRE 412 requires the trial court to conduct an evidentiary hearing to consider specific instances of sexual conduct between a complainant and a defendant if the defendant complies with the statutory notice provision. Whereas, in Michigan, upon a defendant’s compliance with the notice provision, the evidentiary hearing is still subject to the discretion of the trial court.

When evidence of specific instances of sexual conduct between a complainant and a codefendant is presented, the requirement for a hearing on the evidence lacks validity. The very nature of this evidence is personal between the parties. As such, a hearing upon its admissibility would necessarily break down into a consideration of the complainant’s word against the defendant’s word. Such a credibility assessment is better placed before the jury. The trial court usurps their role as a factfinding body when it preliminarily reviews and denies admission of this evidence through exercise of its discretionary powers. The hearing requirement retains its constitutional validity only in situations involving previous sexual conduct between a complainant and third persons. A trial court ruling on admissibility is more in order in that situation.

This conclusion is not affected by the fact that codefendant Williams did not comply with the ten-day notice provision required by the statute. Many states choose not to impose a notice requirement where previous relations between a complainant and a defendant are concerned. See generally, Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, fn 196 at 32, and pp 100-103 (1977). There seems to be no logical justification for its imposition. We find this requirement unconstitutional when applied to preclude evidence of specific instances of sexual conduct between a complainant and a codefendant.

The object behind imposition of a notice requirement is to allow the prosecution to investigate the validity of a defendant’s claim so as to better prepare to combat it at trial. This rationale is sound when applied to notices of alibi and insanity defenses. It loses its logical underpinnings however when applied to the instant situation. As stated, the very nature of the evidence sought to be presented, i.e., prior instances of sexual conduct between a complainant and a codefendant, is personal between the parties. As such, it does not involve a subject matter that requires further witnesses to develop. An in camera hearing will necessarily focus on a complainant’s word against the word of a codefendant. Requiring notice in this situation, then, would serve no useful purpose. There would be no. witnesses to investigate and, thus, no necessity for preparation time. In view of the foregoing, we find that the trial court’s denial of codefendant Williams’ proffered evidence represents a consideration of form over substance. The evidence should have been admitted despite noncompliance with the notice provision. This ten-day notice provision loses its constitutional validity when applied to preclude evidence of previous relations between a complainant and a defendant.

The ten-day notice provision should not preclude the admission of the evidence on behalf of the codefendants as well, albeit for different reasons. The defendants jointly petitioned for separate trials. The trial court denied these severance motions. Since all of the defendants raised consent as a defense, joinder was proper. See People v Hurst, 396 Mich 1; 238 NW2d 6 (1976). Nevertheless, joinder should not serve to deny codefendant Williams his right to properly present his defense. He had a right to have the jury consider evidence of his previous sexual contacts with the complainant on the issue of consent. The fact that, had the trials been held separately, the remaining defendants would not have had such a right, should not prejudice codefendant Williams. This conclusion must follow even though, as a result, the other codefendants’ defenses would be bolstered by evidence deemed irrelevant under prior case law, Thompson, supra. A limiting instruction might be provided restricting the jury’s consideration of this evidence to codefendant Williams’ defense. However, we recognize that it is naive to assume that such an instruction would be at all effective. As stated in Bruton v United States, 391 US 123, 129; 88 S Ct 1620, 1624; 20 L Ed 2d 476, 481 (1968),

" 'The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction * * ”

Thus, we conclude that evidence of the complainant’s previous sexual contacts with codefendant Williams should have been admitted on the issue of consent. Codefendant Williams had the right to present this evidence in his own defense. The remaining defendants should have been allowed to benefit from the admission of this evidence because of its relevance and materiality to codefendant Williams’ defense, the joinder of the defendants in one trial, and a realistic consideration of the inefficacy of limiting instructions in such instances.

Additionally, it should be noted that the trial court did not allow defense counsel to delve into the complainant’s prior criminal record as evidenced by her rap sheet. It precluded this inquiry due to defendants’ failure to abide by the notice provisions of the criminal sexual conduct statute. In response to complaint by defense counsel that these materials had not been made available for discovery until the day of trial, the court held that, nevertheless, this evidence did not constitute newly discovered information tending to make the evidence described in MCL 750.520(j)(l)(a) and (b) admissible. The problem with this conclusion is that this evidence might have been admissible as prior conviction evidence reflective upon the complainant’s credibility or lack thereof. In such case, the trial court had a duty to exercise its discretion in reviewing this proffered evidence without regard to any notice provisions. See People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), and People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978). Thus, we find the trial court erred in summarily dismissing this evidence without determining its nature.

Lastly, defendants raise a claim of ineffective assistance of counsel based on the ten-day notice provision violation by counsel. We cannot accept this claim. The law in this area is in a state of flux, as evidenced by the varied nature of the opinions cited herein. Moreover, at least one of the assigned counsel was appointed just before the trial and could in no way have complied with the statutory notice provision. In view of the foregoing, we are not prepared to hold that the Garcia-Beasley standards for ineffective assistance of counsel were violated herein. See People v Garcia, 398 Mich 250, 264-266; 247 NW2d 547 (1976).

In view of the foregoing, we reverse and remand for a new trial. If this trial is held jointly, the trial court should consider any evidence of previous relations between defendant Williams and the complainant. The other defendants should be allowed to benefit from the admission of this evidence as well, for the reasons stated hereinbefore. However, if separate trials are held, evidence of previous relations between defendant Williams and the complainant should only be admitted at defendant Williams’ trial. This evidence should not inure to the benefit of the remaining defendants. Additionally, whether joint or separate trials are held, the trial court(s) should rule upon the admissibility of prior convictions of the complainant, if any, according to the Jackson-Crawford standards.

J. X. Theiler, J., concurred.

D. C. Riley, J.

(dissenting). Following a jury trial in Detroit Recorder’s Court, March 6 through 14, 1978, defendants, under separate counts, were all found guilty of first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2)(1). Defendant Williams was sentenced to 1-1/2 to 10 years imprisonment; defendants Anderson and Respress were sentenced to terms of one year and one day to five years, the latter being given concurrent sentences for conviction under two counts; defendant Johnson was sentenced to 6-1/2 to 20 years in prison.

The evidence adduced at trial revealed that shortly after midnight on October 19, 1977, the complainant, Myrna Cage, entered the Moon Glow Lounge in the City of Detroit. Shortly thereafter she was accosted by defendants, who, she claimed, forced her at knifepoint out of the bar and to a house owned by two of the defendants. There, defendants engaged in the various sexual acts for which they were convicted.

Defendant Williams was the only one of the accused to take the stand. He testified that the complainant voluntarily left the Moon Glow Lounge with all four defendants; that she agreed at the bar to have sex with Williams and, upon reaching the house, agreed to have sex with the others. He reiterated that all the sexual acts were consensual and that the complainant responded willingly.

During opening argument, Williams’ attorney informed the jury that the defendants expected the evidence to show that the complainant and Williams had had previous sexual relations. Following objection and argument, the lower court ruled that the defendants were precluded from introducing this evidence because of their failure to comply with the notice requirements of the criminal sexual conduct statute, MCL 750.520j(2); MSA 28.788(10)(2). For the same reason, the court also rejected any evidence of prostitution by the victim.

The following day, after receipt of the complainant’s "rap sheet” which contained a recent accosting and soliciting citation, the defendants again argued for the admission of evidence of prior sexual conduct between complainant and Williams and for the introduction of evidence as to the complainant’s reputation for prostitution. The trial judge extended his original decision and further held that the "rap sheet” did not constitute newly discovered evidence under the statute in question so as to render it, or evidence of previous sexual contact, admissible at trial.

Defendants all appeal their convictions below, raising a plethora of evidential and constitutional allegations of error, none of which I would consider meritorious. Therefore, I dissent.

MCL 750.520j; MSA 28.788(10), enacted in 1974, controls the substantive and procedural admissibility of evidence relating to a victim’s previous sexual behavior.

"Sec. 520j. (1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

"(a) Evidence of the victim’s past sexual conduct with the actor.

"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

"(2) If the defendant proposes to offer evidence described in subsection (l)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (l)(a) or (b) admissible, the judge' may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).”

Defendants Anderson and Johnson argue that the preclusion of evidence regarding prior instances of a victim’s sexual conduct with third persons is overbroad and unconstitutionally denies them the right of confrontation. Both Anderson and Williams advance a similar argument with respect to the victim’s reputation. The exclusion of evidence regarding prior instances of a victim’s sexual conduct with third persons has been held constitutional by different panels of this Court. People v Khan, 80 Mich App 605; 264 NW2d 360 (1978), People v Dawsey, 76 Mich App 741; 257 NW2d 236 (1977), People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977), cf., People v Patterson, 79 Mich App 393; 262 NW2d 835 (1977). The validity of the exclusion of reputation evidence has not yet been ruled upon. However, I would not address this question inasmuch as the proffered evidence was clearly excludable because of defendants’ failure to comply with the notice requirements of the statute. Thus, a constitutional decision becomes unnecessary. People v Vanderford, 77 Mich App 370, 373; 258 NW2d 502 (1977), Stanek v Secretary of State, 33 Mich App 527, 530; 190 NW2d 288 (1971).

Defendant Anderson also questions on appeal whether the notice provision of MCL 750.520j has been superseded by the adoption of MRE 404(a)(3). This issue was not argued to the court below; hence, it has not been preserved for appellate review. See People v Stoudemire, 65 Mich App 664, 669; 238 NW2d 365 (1975), People v Phelps, 57 Mich App 300, 305; 225 NW2d 738 (1975).

Defendant Williams next maintains that, because the failure to give timely notice resulted from prosecutorial misconduct and the late appearance of retained counsel, the trial court nevertheless had the discretion, under the circumstances, to allow him to make an offer of proof concerning the excluded evidence at an in camera hearing. A review of the record discloses defendant Williams’ preliminary contentions to be without merit. Defendant Williams was represented by appointed counsel at the time of his arraignment on the information and for the 10-day period thereafter, even though retained counsel had not yet filed an appearance. The contention that prosecutorial misconduct concealed the excluded evidence evaporates in the light of that defendant’s personal knowledge of previous intimacy between himself and the complainant, knowledge which he possessed well before the notice deadline. Although per se excluded, the same may be said for defendant Williams’ self-admitted prior awareness of the victim’s reputation for prostitution. Moreover, the complainant’s accosting and soliciting citation would only reinforce, not establish, her alleged reputation.

Williams also asserts that the complainant’s "rap sheet” containing the recent arrest for prostitution constituted newly discovered information under MCL 750.520j(2). He reasons this information would have made evidence of prior sexual contact between himself and complainant more likely to be admitted at trial, and concludes that the trial judge therefore abused his discretion in refusing to conduct an in camera hearing on the matter. Even assuming, arguendo, that the "rap sheet” constituted newly discovered information, the statute clearly makes the decision to order a hearing discretionary as indicated by the word "may”. On these facts, given the dubious probative relationship between complainant’s arrest for prostitution and the asserted prior sexual conduct with this particular defendant, I would find no abuse of discretion.

Finally, Williams contends that the prosecutor’s failure to disclose certain promises made to the complainant in order to induce her to testify constituted misconduct sufficient to justify reversal. I disagree. No charges pending against the complainant were dismissed or even reduced. The date set for trial on the accosting and soliciting citation was merely adjourned and reset for a later date. Although a previous warrant for probation violation was taken off the LEIN (Law Enforcement Information Network) system, the violation charge was not dismissed, and a hearing thereon was held immediately following the complainant’s testimony in the present case. Significantly, at a post-trial hearing on a motion for new trial, the complainant stated that she testified solely to avoid having the instant case dismissed and further indicated that she was unaware of the above adjournment and the removal of the probation warrant until well into and after, respectively, her testimony in the case at bar. Contrary to those cases cited by defendant, no deals were made nor was there any evidence bearing directly on the charged offense undisclosed by the prosecution.

Defendants Respress and Johnson allege that their attorneys’ failure to file timely notice was a mistake serious enough to deny them a fair trial. People v Garcia, 398 Mich 250, 266; 247 NW2d 547 (1976). To the extent that these defendants’ claims depend on facts not of record, it was incumbent upon them to construct a supportive evidentiary record at the trial court level in connection with a motion for a new trial. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). Inasmuch as these defendants have made no showing that either of their attorneys possessed any knowledge of evidence regarding the complainant’s past acts or reputation within the time frame in question, their claims are fatally deficient.

Defendant Johnson also asserts that his counsel’s failure to demand a Wade hearing was indicative of ineffective assistance of counsel. His defense counsel properly moved for such a hearing but the motion was dismissed based on defendant Johnson’s failure to appear. I would not allow defendant Johnson to profit from his own negligence and, thus, would reject his claim.

Finally, defendant Johnson contends that the trial judge improperly disregarded his duty in imposing sentence upon him. I find nothing in the record indicating that the trial judge disregarded his duty or considered any improper factors in sentencing defendant Johnson. See People v McIntosh, 62 Mich App 422, 443; 234 NW2d 157 (1975), rev’d on other grounds 400 Mich 1; 252 NW2d 779 (1977), People v LaPine, 47 Mich App 553, 555-556; 209 NW2d 726 (1973).

I would affirm the convictions of all four defendants.

       A rap sheet containing a record of the complainant’s prior arrests and convictions was made available to defense counsel on the day of trial.

        United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).