Order Michigan Supreme Court
Lansing, Michigan
May 27, 2015 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Mary Beth Kelly
150165 Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 150165
COA: 313814
Wayne CC: 12-002077-FC
JOHN DAVID MARSHALL,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the August 5, 2014
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we VACATE in part the judgment of the Court of
Appeals. The Court of Appeals erred in holding that MRE 803(7) is not applicable under
this set of facts, where defendant sought to introduce evidence that there were no
recorded reports of an allegation of sexual assault. Because defendant sought to elicit
testimony relating to the absence of a “matter . . . of a kind of which a memorandum,
report, record, or data compilation [is] regularly made and preserved,” MRE 803(7),
evidence that no report was ever made was admissible “to prove the nonoccurrence or
nonexistence of the matter,” id. See United States v Gentry, 925 F2d 186, 188 (CA 7,
1991) (analyzing the rule’s federal counterpart). The Court of Appeals further erred in
holding that the testimony at issue was not relevant under MRE 401. As observed by the
Court of Appeals concurring opinion, the evidence at issue was probative of the
complainant’s credibility; specifically, the complainant’s claim that she had reported the
abuse to her school teacher. We AFFIRM, however, the Court of Appeals holding that
any error was harmless because defendant was permitted to argue that the absence of a
report undermined the complainant’s credibility. In all other respects, leave to appeal is
DENIED, because we are not persuaded that the remaining questions presented should be
reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 27, 2015
s0520
Clerk