Order Michigan Supreme Court
Lansing, Michigan
April 17, 2009 Marilyn Kelly,
Chief Justice
135158 Michael F. Cavanagh
Elizabeth A. Weaver
PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan
Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman
v SC: 135158 Diane M. Hathaway,
COA: 270213 Justices
Macomb CC: 2005-002939-FC
KOU XIONG,
Defendant-Appellant.
_________________________________________/
By order of April 23, 2008, the application for leave to appeal the September 25,
2007 judgment of the Court of Appeals was held in abeyance pending the decision in
People v Watkins (Docket No. 135787). On order of the Court, leave to appeal having
been denied in Watkins, 482 Mich 1114 (2008), the application is again considered, and it
is DENIED, because we are not persuaded that the questions presented should be
reviewed by this Court.
KELLY, C.J. (dissenting).
I would grant defendant’s application for leave to appeal. This appeal raises
jurisprudentially significant issues including a defendant’s right to a fair trial and the
proper separation of powers between the Legislature and the judiciary. A failure to rule
on this case will leave lower courts without guidance on these important issues, and some
accused of crimes will likely receive disparate treatment across the state.
At issue here is the interplay between MCL 768.27a and MRE 404(b). Both
govern the admissibility of so-called “other acts” evidence. MRE 404(b) does not allow
the admission of such evidence to show a defendant’s character or propensity to commit
such acts. Rather, it allows the admission of such evidence only for other purposes, such
as to show “proof of motive, opportunity, intent, preparation, scheme, plan, or system in
doing an act, knowledge, identity, or absence of mistake or accident . . . .” MRE
404(b)(1).
By contrast, MCL 768.27a allows such evidence to be admitted for “any matter to
which it is relevant,” but is limited to proceedings involving defendants charged with “a
listed offense against a minor.” Listed offenses are set forth in section 2 of the sex
offenders registration act, MCL 28.722.
2
A key question presented, therefore, is whether the statute or the rule of evidence
controls in prosecutions for the listed offenses referred to in MCL 768.27a. In People v
Pattison1 and People v Watkins,2 two cases examining MCL 768.27a, the Court of
Appeals held that MCL 768.27a is constitutional and that it predominates over MRE
404(b). The Court based those decisions primarily on this Court’s decision in McDougall
v Schanz.3 McDougall held that, where a court rule contravenes a legislative enactment
in an area of substantive law, the court rule must yield.
Relying on McDougall, the Court of Appeals in Pattison concluded that “MCL
768.27a is a substantive rule of evidence because it does not principally regulate the
operation or administration of the courts.”4 On remand to determine which provision
controls when the two conflict, the Watkins panel ruled that MCL 768.27a predominates
over MRE 404(b).5
This Court granted leave to appeal in Watkins.6 However, after considering the
parties’ briefs and hearing oral argument, a majority decided to vacate our grant order
and deny leave without further comment.7 Justice Cavanagh wrote a statement dissenting
from the denial of leave, which I joined.8 This case, which had been held in abeyance for
our disposition in Watkins, is before us once again.
The order granting leave in Watkins directed the parties to address each of the key
issues involved in this case. Included among those issues were whether MCL 768.27a
prevails over MRE 404(b) and whether MCL 768.27a interferes with the judicial power
to ensure that a criminal defendant receives a fair trial. Another significant question is
whether the decision to admit “other acts” evidence under section 27a must include a
1
People v Pattison, 276 Mich App 613 (2007).
2
People v Watkins, 277 Mich App 358 (2007).
3
McDougall v Schanz, 461 Mich 15 (1999).
4
Pattison, supra at 619.
5
Watkins, supra at 365.
6
People v Watkins, 480 Mich 1167 (2008).
7
People v Watkins, 482 Mich 1114 (2008).
8
Id. at 1114-1116 (Cavanagh, J., dissenting).
3
balancing analysis under MRE 403 to protect a defendant’s due process rights.9 Each of
these questions warrants examination by this Court.
First, the proper scope and application of McDougall remains an open question.
McDougall held that a court rule must yield to a statutory provision if the provision
concerns a matter of substance rather than procedure. The McDougall Court noted that,
although “the analytical exercise required will not always be an easy one, . . . it is
ultimately this Court that will determine in each instance where the substance/procedure
line must be drawn.”10 Yet the Court declines to do so here.
Second, when a prosecutor seeks to admit evidence under MCL 768.27a, the
question remains whether the trial court must balance the probative value with the
prejudicial effect of that evidence. The companion statute to section 27a, MCL 768.27b,
expressly requires the trial court to evaluate the admissibility of otherwise relevant
evidence under MRE 403.11 Section 27a has no such mandatory language.
In Pattison, the Court of Appeals held, with little explanation, that evidence
admitted under section 27a is subject to the balancing test of MRE 403.12 However,
Court of Appeals authority that holds to the contrary also exists.13 Moreover, some of
9
MRE 403 requires that, even when evidence is relevant and otherwise admissible, it may
be excluded if its prejudicial effect substantially outweighs its probative value. The full
rule reads: “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
10
McDougall, supra at 31, 37.
11
MCL 768.27b provides, in relevant part:
(1) Except as provided in subsection (4), in a criminal action in
which the defendant is accused of an offense involving domestic violence,
evidence of the defendant’s commission of other acts of domestic violence
is admissible for any purpose for which it is relevant, if it is not otherwise
excluded under Michigan rule of evidence 403.
12
The Pattison Court “caution[ed] trial courts to take seriously their responsibility to
weigh the probative value of the evidence against its undue prejudicial effect in each case
before admitting the evidence. See MRE 403.” Pattison, supra at 621.
13
See People v Bennett, peremptory order of the Court of Appeals, issued August 15,
2006 (Docket No. 272110) (“[A]ssuming the evidence relates to a ‘listed offense’ and
assuming the evidence satisfies the low threshold of relevancy, the statute implicitly
precludes exclusion of the evidence under an MRE 403 analysis.”) (Emphasis added.)
4
the briefing in Watkins argued that MRE 403 does not and should not apply when
determining the admissibility of propensity evidence under section 27a.14 Without an
answer from this Court, trial courts may very well come to different conclusions on the
issue. I believe it is possible, even likely, that similarly situated defendants in various
parts of the state may be treated differently by trial courts when this statute is applied.15
Finally, whether a trial court’s failure to conduct a balancing test under MRE 403
could violate a defendant’s constitutional rights is another weighty concern left
unresolved by the Court’s denial order.16
Whatever the merits of the Court of Appeals holdings in Pattison and Watkins, this
Court needs to provide guidance to the lower courts on the issues raised in this case. Yet
a majority of this Court has again chosen to deny leave to appeal rather than provide
helpful answers. I dissent and would grant the application for leave to appeal.
CAVANAGH, J., joins the statement of KELLY, C.J.
14
Amicus Curiae Brief for Attorney General Michael A. Cox, Livingston County
Prosecutor David L. Morse, and Oakland County Prosecutor David G. Gorcyca, pp 13-
33; Amicus Curiae Brief for the Prosecuting Attorneys Association of Michigan, pp 13-
14.
15
At a minimum, it appears that prosecutors in Livingston and Oakland Counties may
argue at the trial court level that MRE 403 does not apply to MCL 768.27a. See note 14
of this statement.
16
See United States v LeMay, 260 F3d 1018 (CA 9, 2001) (“As long as the protections of
[the analogous federal] Rule 403 remain in place to ensure that potentially devastating
evidence of little probative value will not reach the jury, the right to a fair trial remains
adequately safeguarded.”).
I, Corbin R. Davis, 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.
April 17, 2009 _________________________________________
p0414 Clerk