People v. Beckley, Docket Nos. 81583

• Court: Supreme Court of Michigan
• Writing for the Court: BRICKLEY; BOYLE; RILEY; ARCHER; CAVANAGH
• Citation: 434 Mich. 691,456 N.W.2d 391
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee BECKLEY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Carol BADOUR, Defendant-Appellee. 434 Mich. 691, 456 N.W.2d 391, 59 U.S.L.W. 2026
• Docket Number: 82892,Docket Nos. 81583
• Decision Date: 05 June 1990

Page 391

456 N.W.2d 391 PEOPLE of the State of Michigan,
Plaintiff-Appellee,
v.
Robert Lee BECKLEY, Defendant-Appellant.
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Carol BADOUR, Defendant-Appellee. Docket Nos. 81583, 82892.
434 Mich. 691, 456 N.W.2d 391, 59 U.S.L.W. 2026 Supreme Court of Michigan. Argued June 8, 1989.
Decided June 5, 1990.

Page 393

[434 MICH 696] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Judith K. Simonson and Kevin Lynch, Asst. Pros. Attys., Muskegon, for the People in Beckley.

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

State Appellate Defenders by Richard B. Ginsberg and Jack Van Coevering, Detroit, for defendant Beckley.

State Appellate Defender by Richard B. Ginsberg, Detroit, for defendant-appellee Badour.

Carole M. Stanyar and Kenneth M. Mogill, Detroit, for amicus curiae Crim. Defense Attys. of Michigan, Nat. Legal Aid and Defender Ass'n, and Michigan Inter-Professional Ass'n.

[434 MICH 697] Robert Cares, Centreville, for Pros. Attys. Ass'n of Michigan.

OPINION

BRICKLEY, Justice.

In these two cases, consolidated on appeal, each defendant was convicted by a jury of first-degree criminal sexual conduct. ¹ During each trial, an expert testified regarding the characteristics and patterns of behavior typically exhibited by sexually abused children. We granted leave to appeal to determine whether the trial court properly admitted the disputed expert testimony. ²

I

A. People v. Beckley

Defendant, Robert Lee Beckley, was convicted of first-degree criminal sexual conduct for having sexual intercourse with his fifteen-year-old daughter. At the time of the incident, the victim had been living with her father; her parents were divorced.

She testified that on the evening of May 29, 1983, her father returned home, under the influence of alcohol, ³ and, while watching television, defendant began rubbing her back. Thereafter he gave her several "French kiss[es]." A short time later, defendant called his daughter into his bedroom and requested that she "lay down with him for a while." The victim was pulled onto the bed, at which time defendant removed her clothing while holding her arm and had vaginal intercourse with her. Following the incident, defendant made her promise not to tell anyone.

According to the victim, the incident lasted [434 MICH 698] about ten minutes after which she got out of bed, picked up her clothing and went to the bathroom where she washed and dressed. She made two phone calls to her mother relaying that her father had made passes at her, but withholding information as to the intercourse. During the first phone call, the victim refused her mother's request to pick her up. Yet, immediately thereafter she called her mother again and asked to be picked up. She was waiting outside when her mother arrived and they went to her paternal grandmother's home. The mother and grandmother discussed defendant's advances without mention of the intercourse. ⁴

A few days later, the victim, accompanied by her grandmother, made a trip to defendant's home so that she could pick up her belongings. On the trip, Wilda Beckley,

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testified that the victim said, " 'By the way, Grandma, that mess the other night, ... I made a mountain out of a molehill.... My dad didn't do anything to me.' " The victim denied making such a statement.

The act of intercourse was not revealed until approximately one year later when the victim wrote about the incident in a journal for a high school English assignment. According to the victim, during the interim year she had told some of her friends about the passes, but had continued to deny that any intercourse had taken place. Apparently, the only person she told about the entire incident was her boyfriend. Further during the one-year time period between the incident and disclosure, she continued to see her father on various occasions. However, the victim and her father were never alone together.

[434 MICH 699] Defendant affirmatively denies having sexual intercourse with his daughter. However, he admits that he "French" kissed her and that he called her to join him in bed. However, as he explained to his daughter, the incident was merely a game to see if his daughter was sexually active. Thus, defendant's version of the facts was substantially the same as the victim's up until the time of the journal entry which disclosed sexual intercourse.

The victim was the first witness called by the prosecution to testify. On cross-examination, the defense tried to discredit the victim's allegations by suggesting that the complainant's behavior was inconsistent with a person who had been victimized. Four specific items of behavior of the complainant were brought out on cross-examination: (1) the delayed disclosure, (2) the medium of disclosure, (3) the complainant's continued desire to see the alleged offender, and, (4) the victim's initial tendency to deny sexual intercourse.

Following testimony by the victim, the prosecution sought permission to call Robin Smietanka as an expert witness. ⁵ The trial court qualified Ms. Smietanka as an expert pursuant to People v. Stull, 127 Mich.App.14, 338 N.W.2d 403 (1983). ⁶ However, the court limited the testimony to the victim's behavior observed by the expert which would be consistent with the profile of an incest victim. The court specifically stated that it would disallow any testimony concerning the complainant's credibility and whether or not any sexual assault had actually taken place. Further the [434 MICH 700] court allowed the prosecution to present the expert testimony in its case in chief because "it ... appear[ed] that defendant would raise these issues by attack on the credibility of the complainant...."

Ms. Smietanka testified that the bulk of psychiatric literature suggests that victims of sexual abuse exhibit certain patterns of behavior that are indicators of the abuse. Specifically, she commented on the four instances of behavior observed in the complainant. ⁷ On direct examination, Ms. Smietanka testified that the delayed disclosure, disclosure to a third party outside the family, continual contact with the offender, and initial reporting of only "passes" are all typical behavioral characteristics of a victim of sexual abuse.

On cross-examination the defense also centered its questioning on the victim's lack of memory about conversations with persons concerning the incident. Ms. Smietanka testified that such inconsistencies were not necessarily indicative of a lie, but of an attempt on the part of the victim to minimize the event. Thus they were not inconsistent with behavioral patterns of sexually abused persons.

Defense counsel drew out the fact that the complainant's parents had gone

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through a bitter divorce, that the complainant's mother was very vindictive, and that within days preceding the journal entry defendant had hurt complainant's feelings. Ms. Smietanka testified that these factors would be significant; however, "[t]he additional factors that you have asked about would certainly need to be explored, but just based on what you said, it would not rule out a sexual abuse."

[434 MICH 701] On redirect examination, the prosecutor tried to draw out those indicators that the expert thought would support a finding of sexual abuse. The expert responded that the following behavioral patterns would also be indicators of abuse: (1) the child's ability to recount any pattern of activity which would demonstrate that the incident was not an isolated event; (2) a progression of actual sexual activity; (3) a tendency towards secrecy; (4) exertion of pressure or coercion, i.e., threats as a result of the victim disclosing or attempting to disclose the event; and (5) the child's ability to give explicit details of the sexual activity. Thus, the examination of this witness was no longer limited to the four specific behavioral characteristics originally attacked by defendant on cross-examination of the victim.

On recross-examination the defense again tried to emphasize that the symptoms exhibited could be from another source. For example, whether or not school trouble could be the result of some other problem in the child's life. Ms. Smietanka testified that it would be less likely to see school trouble as a symptom of sexual abuse. However, she did suggest that many of the same symptoms seen in a child of sexual abuse could be seen when the parents are divorcing.

Following the testimony, the defendant moved for a mistrial or to strike the testimony. The ground upon which the defense relied was that the witness' testimony enhanced the credibility of the witness to the extent that she supported what the complainant was relating about the ultimate question in the case. The trial judge denied defendant's motion on the ground that the scope of the witness' testimony was widened by defense counsel rather than by the prosecution.

B. People v. Badour

[434 MICH 702] Defendant's conviction arises out of an incident involving her six-year-old daughter. Defendant was convicted of first-degree criminal sexual conduct on an aiding and abetting theory and sentenced to thirty to sixty years.

The victim accused her mother of holding down her arms and legs and forcing her to perform fellatio on defendant's live-in boyfriend, Roy Erving. The incident came to the attention of the authorities when the victim was locked out of her home during January, 1985. It was at this time that she was placed in foster care. Initially, only Roy Erving was accused and it was not until June, 1985, that the victim raised allegations against her mother. This occurred when the victim began counseling at Lutheran Child and Family Services, during a group session called "Daughters United." ⁸ Thereafter, the psychologist to whom the victim made the allegations...