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Gagne v. Booker - 680 F.3d 493 (6th Cir. 2012)


A trial court must balance the state's interest against the defendant's interest on a case-by-case basis, and neither interest is superior per se. A trial court may even exclude competent, reliable evidence central to the defendant's claim of innocence, so long as there exists a valid state justification.


On the evening of July 3, 2000, Lewis Gagne, Donald Swathwood, and David Stout, were out for a good time. When their car ran out of gas, they walked to the house of Gagne’s former girlfriend, P.C., and found her there. P.C., who had been drinking for most of the day, agreed to get cash from the ATM to buy gas, beer and crack cocaine. Upon their return, and after smoking, drinking, and showering, P.C. began to have sex with Gagne, whereupon Swathwood joined in. P.C. engaged in fellatio, vaginal intercourse, and anal intercourse with both men. She also engaged in fellatio with Stout. At approximately 5:00 AM the next morning, the three men took P.C.’s ATM card, withdrew $300, bought crack cocaine, and smoked it all themselves. Later that afternoon, P.C. called the police and accused Gagne and Swathwood of rape. She claimed that, while she had originally begun a consensual sexual encounter with Gagne, she had protested Swathwood's uninvited participation and, rather than relenting when she objected, Swathwood and Gagne had held her down, forcibly raped and sodomized her, mocked her and laughed at her, and tried to force her to perform fellatio on Stout, who was drunk, stoned, and virtually incoherent.

The State charged Gagne and Swathwood with three counts each of first-degree criminal sexual misconduct in violation of Michigan Law, M.C.L. § 750.520b(1)(f) (sexual penetration through use of force, causing injury to the victim). Both defendants entered not-guilty pleas. At the conclusion of a seven-day trial, the jury convicted Swathwood on all counts and Gagne on two (the jury acquitted Gagne of one count of forced fellatio). The court sentenced Swathwood to a prison term of 15 to 30 years, and Gagne to a term of 22 1/2 to 45 years. The present appeal stemmed from a pre-trial ruling by a Michigan trial court on the admissibility of two particular pieces of evidence proffered by the two criminal defendants: an allegation that the alleged victim, P.C., and defendant Gagne had, on a certain prior occasion, engaged in group sex with another individual, one Ruben Bermudez; and a separate allegation that P.C. had, on a certain prior occasion, offered to engage in group sex with Gagne and his father. Defendants moved to admit this evidence pursuant to the Michigan Rape Shield Law, M.C.L. § 750.520j, but the trial court denied the motion and excluded the evidence (and any argument regarding it). After conviction, defendants appealed the decision to the Michigan Court of Appeals, arguing that the trial court's exclusion of the evidence violated the Michigan Rape Shield Law in a manner that also violated their Sixth Amendment rights to a fair trial, to confront their accuser, and to present a complete defense. The Michigan Court of Appeals rejected this claim and affirmed the convictions. After exhausting his state-court appeals, Gagne petitioned for habeas corpus relief in federal district court, claiming that the Michigan state courts had violated his Sixth Amendment rights to a fair trial by excluding the testimonial evidence about the group sex with Bermudez and the offer of group sex with his father. The district court granted the petition, and the State appealed.


Did the Michigan state courts violate Gagne’s Sixth Amendment rights to a fair trial by excluding the testimonial evidence that may have shown P.C.’s propensity to have group sex?




The Court held that a trial court could exclude certain evidence under the rape shield statute, while still balancing the state's interest and the defendant's constitutionally protected interest in admitting that evidence. The Court noted that Gagne’s Sixth Amendment rights were not absolute, and considering the circumstances that transpired, the decision to exclude the evidence was not beyond any possibility for fair-minded disagreement.

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