People v. Cope

M. J. Kelly, J.

(dissenting). As I said in my *464concurrence in the original ruling of this Court released February 14, 1985, reversal would have been required if the defendant had chosen not to testify in the face of the trial court’s ruling. See People v Williams, 413 Mich 72; 318 NW2d 462 (1982).

Since the majority now finds an abuse of discretion applying the "clarified balancing test” in People v Allen, 429 Mich 558; 420 NW2d 499 (1988), I believe that the error in admitting the evidence requires reversal. I do not believe it was harmless beyond a reasonable doubt. The defendant testified that he did not have sexual intercourse with the victim, the victim testified that she had sexual intercourse with defendant on two occasions that day. Other witnesses differed in their versions of the events surrounding the question of access, and when the victim first took the stand she was unable to identify the defendant. After the courtroom was cleared, she did identify him and said she recognized him by the color of his hair. I cannot say the error was probably not outcome-determinative, let alone certainly or absolutely not.

I would reverse.