People v. Badour

• Decision Date: 19 April 1988
• Docket Number: Docket No. 94184
• Citation: 421 N.W.2d 624,167 Mich.App. 186
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carol Ann BADOUR, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 624

421 N.W.2d 624

167 Mich.App. 186

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carol Ann BADOUR, Defendant-Appellant.

Docket No. 94184.

Court of Appeals of Michigan.

Submitted Nov. 17, 1987.

Decided March 9, 1988.

Released for Publication April 19, 1988.

Frank J. Kelley, Att. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

State Appellate Defender by Richard B. Ginsberg, for defendant-appellant.

Before MacKENZIE, P.J., and DOCTOROFF and CLULO, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), under an aiding and abetting theory. Defendant's motion for new trial was subsequently denied. She was sentenced to a term of from thirty to sixty years imprisonment. Defendant appeals as of right. We affirm.

Defendant's conviction arises out of an incident involving her six-year-old daughter. According to the testimony of the daughter, defendant had held down her arms and legs so that Roy Erving, defendant's ex-boyfriend, could orally penetrate her.

I

Defendant's first claim of error is that the trial court abused its discretion by denying her request to dismiss a prospective juror for cause. Specifically, defendant asserts that venireman James Anderson should have been excused due to bias and the appearance of impropriety.

The trial court has an obligation to safeguard a defendant's right to a fair trial before an impartial jury. See People v. Gardner, 37 Mich.App. 520, 527-528, 195 N.W.2d 62 (1972), lv. den. 387 Mich. 771 (1972). Jurors are presumed to be competent and impartial and the burden of proving otherwise is on the party seeking disqualification. McNabb v. Green Real Estate Co., 62 Mich.App. 500, 505, 233 N.W.2d 811 (1975).

The dismissal of prospective jurors is governed by MCR 2.511(D). ¹

If a party shows that a prospective juror comes within one of this court rule's enumerated categories, the trial court is without discretion to retain the juror, who must be excused for cause. People v. Lamar, 153 Mich.App. 127, 134-135, 395 N.W.2d 262 (1986). Otherwise, the decision to excuse for cause is within the discretion of the trial court. People v. Walker, 162 Mich.App. 60, 64, 412 N.W.2d 244 (1987). In this case, venireman Anderson stated during voir dire that he was a personal friend of prosecution witness Gary Wiedyk and had known him for approximately fifteen years. He indicated that Wiedyk discussed many work-related cases with him when they socialized, but had never discussed the present case, whereupon defense counsel challenged him for cause.

The trial court then questioned Anderson, who indicated that he could give the same weight to Wiedyk's testimony as he did to that of other witnesses and did not know of any reason why he would not be a proper juror. The trial court then denied defendant's request to dismiss Anderson for cause. Subsequently, defense counsel dismissed Anderson through exercise of a peremptory challenge.

In Wilson v. Ex-Cell-O Corp., 12 Mich.App. 637, 163 N.W.2d 492 (1968), lv. den. 382 Mich. 760 (1969), the defendant challenged three veniremen for cause. After the trial court refused to excuse them, the defendant later excused them through peremptory challenges. This Court first noted:

" 'An impartial jury is all that a party is entitled to, and when he has obtained that he has no valid ground for complaint.' Pearce v Quincy Mining Co (1907), 149 Mich 112, 116, 117 ." Id., at pp. 641-642, 163 N.W.2d 492.

The Court then held that since the prospective jurors were, in fact, excused, defendant could not complain that it did not have an impartial jury.

In the present case, defendant does not argue that she was denied an impartial jury. Rather, she asserts that reversal of her conviction is required because she was forced to use her final peremptory challenge to excuse Anderson and was, thus, unable to challenge other prospective jurors during voir dire. We find that Wilson applies with equal force to a criminal proceeding. Our review of the record indicates no abuse of the trial court's discretion. Defendant did not overcome the presumption that Anderson was impartial and competent.

II

Defendant next claims that the trial court abused its discretion by ruling that if defense counsel impeached the victim with a statement she made at the preliminary examination, a statement in which she said that she did not know whether she was telling the truth, then the prosecutor could introduce the rest of her testimony from the transcript that was relevant to the question that elicited that response. The testimony relevant to defense counsel's question concerned questions regarding other alleged sexual acts involving defendant and other men which apparently confused the child such that she had trouble understanding what she had been asked. ² Defense counsel brought out neither the question nor the response during cross-examination. Defendant further asserts that the other acts evidence was more prejudicial than probative, that there was a less prejudicial way of rehabilitating the witness, and that she was prevented from confronting her accusers.

A trial court's determination that the entire context of a given pretrial statement is admissible to explain the statement is reviewable under the abuse of discretion standard. See Moody v. Pulte Homes, Inc., 423 Mich. 150, 162, 378 N.W.2d 319 (1985). Rulings on relevancy are reviewable under the same standard. See People v. Flanagan, 129 Mich.App. 786, 792-793, 342 N.W.2d 609 (1983).

MRE 106 provides:

"When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."

In this case, the trial court only allowed the preliminary examination transcript to be admitted in order to explain the victim's apparent confusion in light of the complexity of the questions posed to her and to prevent her statement from being taken out of context. This ruling was consistent with MRE 106.

Therefore, defendant's claim that there was a less prejudicial way of rehabilitating the witness fails. Further, the prejudicial effect to defendant would not outweigh the fairness to the witness of ensuring that the jury heard her statement as well as heard the context in which it was made.

Our review of the record shows defendant's claim that she was denied the opportunity to confront her accusers to be without merit. We find no abuse of the trial court's discretion in ruling on this evidentiary issue.

III

Defendant's next claim of error is that she was denied a fair trial because a prosecution expert witness implicitly vouched for the victim's credibility. She asserts that the testimony was presented in such a way as to act as proof that sexual abuse had occurred, which was violative of MRE 702.

The prosecutor contends that the trial court did not abuse its discretion by admitting the testimony because the expert never testified regarding rape trauma syndrome or other scientific theories and never indicated that she felt the victim was telling the truth. The prosecutor asserts, as was asserted at trial, that the testimony was used in order to show how information regarding the sexual abuse came to the attention of the authorities.

The admission of evidence is within the sound discretion of the trial court and will not be set aside absent an abuse of that discretion. People v. Leach, 114 Mich.App. 732, 736, 319 N.W.2d 652 (1982). The determination as to qualification and admissibility of the testimony of an expert is also within the trial court's discretion. People v. Hernandez, 84 Mich.App. 1, 18, 269 N.W.2d 322 (1978).

MRE 702 provides:

"If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

In support of her position, defendant relies principally on People v. Pullins, 145 Mich.App. 414, 378 N.W.2d 502 (1985), in which the victim's therapist testified concerning "rape trauma syndrome" and stated that the victim's symptoms were consistent with those of a person who had been raped. Id., at p. 419, 378 N.W.2d 502. The panel noted:

"Michigan adheres to the traditional test governing the admissibility of scientific evidence as originally set forth in Frye v. United States, 54 US App DC 46, 47; 293 F 1013 (1923):

" '[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.' " Id., at p. 420, 378 N.W.2d 502.

The Court then held that evidence of rape trauma syndrome is not admissible to prove that a rape occurred:

"However, we do not mean to imply that evidence of emotional and psychological trauma suffered by a complaining witness in a rape case is inadmissible. Such evidence is relevant and jurors are fully competent to consider such evidence in determining whether a rape occurred, but it should not be presented with an aura of scientific reliability unless the Frye test is met." Id., at pp. 421-422, 378 N.W.2d 502.

Several other panels of this Court have addressed the same issue regarding expert testimony in these matters. In People v. Matlock, 153 Mich.App. 171, 395 N.W.2d 274 (1986), the defendant's conviction was reversed on the ground that the victim's rape counselor vouched for the credibility of the victim. Specifically, the rape counselor testified that of the more...