People v. Strieter

M. F. Cavanagh, J.

(dissenting). I respectfully dissent from the majority’s holding that evidence of the defendant’s prior homosexual conduct was admissible to impeach his testimony.

While prior admissions of homosexual conduct may have some, albeit slight, logical relevance to show that defendant Strieter was not afraid of the decedent’s sexual advances, the prejudicial impact of this evidence far outweighs its probative value. The prior statements referred to conduct with unrelated third parties, years before the defendant’s confrontation with the deceased. The circumstances of the prior admissions cast doubt on their truthfulness; moreover, had defense counsel been allowed an adjournment, the trial court would have had to admit a sideshow of testimony from defense witnesses to explain the defendant’s motivation in making these "material” statements. The prejudicial impact arises from two sources. The evidence may have convinced the jury that the defendant should be punished for admitted prior felonious conduct. It also introduced an undeniably inflammatory issue into the case.

. Judge Bronson persuasively analyzed this issue in People v Mitchell, 44 Mich App 679; 205 NW2d 876 (1973), lv granted, 395 Mich 752 (1975):

"Similar to rape cases involving the issue of consent, evidence of homosexual conduct with third persons is not sufficiently reliable to counterbalance its prejudicial effect. The same conclusion is reached by a comparison with homicide and assault cases excluding acts of violence upon third persons. Since the alleged conduct between defendant and his cellmate is an indictable offense, the admission of separate offenses for which defendant has not been tried, even though similar, causes me grave concern.” People v Mitchell, 44 Mich App 679, 692; 205 NW2d 876, 882 (1973) (dissenting opinion of Bronson, J.). (Footnotes omitted.)

In Mitchell, the testimony at least was direct and came from a third-person participant. Here, the degree of evidence allowed by the trial court was even a further step removed, it being a document containing statements allegedly made by defendant to third parties. Admission of this evidence was prejudicial error, and I would reverse.