People v. Fisher

C. J. Byrns, J.

(dissenting). I respectfully dissent. I agree with my learned brothers’ conclusion that the admission, over defense objection, of evidence of defendant’s prior acts constituted an abuse of discretion. I cannot agree that its impact upon the minds of the jurors was harmless beyond a reasonable doubt, the other evidence of defendant’s guilt notwithstanding.

In People v Heiss, 30 Mich App 126, 129; 186 NW2d 63 (1971), precisely the same kind of evidence of prior sexual contacts between the complainant and defendant was admitted, without objection. This Court nevertheless reviewed the error, to avoid "clear injustice”, and concluded that reversal was warranted:

"The testimony was highly prejudicial and its effect upon the jury is incalculable, doubtless rendering it more probable in their minds that he committed the specific charge he is being tried for.” Heiss, supra, at 132. (Emphasis added.)

*16Careful reading of the opinion in Heiss will make plain my reason for dissenting: Once burned, twice shy.

I would reverse.