Michigan Supreme Court 

# Order

Lansing, Michigan

April 21, 2006 Clifford W. Taylor,
Chief Justice

129800 Michael F. Cavanagh
Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, Robert P. Young, Jr. Stephen J. Markman,
Justices

v SC: 129800 COA: 256196 Genesee CC: 04-013707-FC MICHAEL RAY GUSTER, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application fo r leave to appeal the September 8, 2005 judgment of the Court of Appeals is cons idered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

K ELLY

, J., dissents and states as follows:

The complainant, defendant’s girlfriend, accused him of sexually assaulting her. Defendant contended that any sexual contact between them was consensual. The jury believed the complainant and convicted defenda nt of criminal sexual conduct in the third degree.

Defendant appealed to the Court of Appeals arguing, am ong other things, that the judge denied him a fair trial by consistently referring to the compla inant in the jury’s presence as “the victim.” The Court of Ap peals recognized that th e judge had repeatedly used the term “victim” in pl ace of “complainant.” But it concluded that the judge’s instruction to the jury to disregard any apparent bias by the court was sufficient to protect defendant’s rights. I cannot agree.

Conviction or exoneration in this case hi nged on the credibility of defendant and of the complainant. The ju ry’s verdict may have teetered on a small point. The trial judge’s repeated reference to the compla inant as “the victim” could have tipped the jury
in favor of conviction._______________________________________ __ 2

I am aware that MCL 750.520a(p) define s “the person alleging to have been subjected to criminal sexual conduct” as “the victim.” But, referri ng to the complainant as “the victim” where a factual question ex ists whether there even was a victim necessarily places the defendant at an unfair disadvantage. In such cases, I believe that the judge should not use the statutory term for the co mplaining witness dur ing a jury trial.

I disagree with the Court of Appeals conclusion that the curative instruction safeguarded defendant’s right to a fair trial. When a judge repeatedly suggests to jurors that there was a victim, it is improbable that a simple instruction suffices to remove the thought from the jurors’ minds.

In this case the judge’s references to the complainan t as the victim had the practical effect of undermining defendant’s defense that th ere had been no victim. For these reasons, I would reverse the decision of the Court of Appeals, vacate defendant’s conviction, and remand this case for a new trial.

The facts here illustrate the importance, when cases are tried before juries, of trial judges remaining constantly vigilant not to inappropriately influen ce jurors’ decisions. The right to a fair trial being a cornerstone of our jurisprudence, ju dges must make every effort to ensure that those accused of committing a crime receive a fair trial. It is crucial for trial judges to remember th e powerful influence they exert over ju ries. A judge’s suggestion to the jury that the accuser is truthful places the fairness of the proceedings in doubt, and the standard ju ry instruction should not be relied on to erase it.

p0418 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

April 21, 2006

Clerk