People v. Daniels, Docket No. 320499.

• Decision Date: 02 July 2015
• Docket Number: Docket No. 320499.
• Parties: PEOPLE v. DANIELS.
• Court: Court of Appeal of Michigan — District of US

311 Mich.App. 257

874 N.W.2d 732

PEOPLE

v.DANIELS.

Docket No. 320499.

Court of Appeals of Michigan.

Submitted June 2, 2015, at Detroit.

Decided July 2, 2015, at 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Eric J. Smith, Prosecuting Attorney, Joshua D. Abbott, Chief Appellate Attorney, and Emil Semaan, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Kristin E. Lavoy and Michael Mittlestat) for defendant.

Before: SAAD, P.J., and M.J. KELLY and SHAPIRO, JJ.

SAAD, P.J.

Defendant appeals his jury trial convictions of child molestation and abuse. Because defendant's arguments lack merit, we affirm.

I. FACTS AND PROCEDURAL HISTORY

This case stems from defendant's physical and sexual abuse of two of his daughters, AD and OD. After employees at Care House interviewed AD and OD in July 2012,¹ the prosecution charged defendant with (1) two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a) ; (2) three counts of second-degree child abuse, MCL 750.136b(3) ; and (3) one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a). The charges related exclusively to defendant's abuse of AD and OD.

A. DEFENDANT'S REQUEST FOR AN EXPERT WITNESS

Over a year before trial, defendant's initial trial attorney requested the appointment of an expert witness to testify on forensic interviewing techniques used to interview victims of child molestation. The trial court awarded $1,500 in public funds to defendant for this purpose in April 2013 and suggested that defendant's trial should be scheduled for June 2013. Defendant requested additional time to locate an expert, which the trial court permitted, and the court rescheduled trial for December 2013.

By October 2013, defendant chose to represent himself, albeit with advisory counsel. At this time, his advisory attorney told the court that defendant was in the process of finding an expert to testify on forensic interviewing techniques. Though defendant and advisory counsel promised to contact two prospective expert witnesses within the week, it is unclear whether they contacted one of the potential witnesses, and the other witness told them that he no longer testified in court. Defendant then attempted to secure Dr. Katherine Okla as his expert witness, and, on the day before trial, moved to adjourn the case until she was available to testify, which would not be until at least January 10, 2014. The prosecution objected to the motion and noted that defendant could cross-examine the forensic interviewer—who had actually interviewed AD and OD—on the subject of proper interviewing techniques.

The trial court concurred with the prosecution and denied defendant's motion. In so doing, the trial court stated that defendant (1) had delayed trial "for a very long time," (2) failed to explain how the lack of an expert witness would prejudice him, and (3) failed to provide sufficient information regarding Okla's testimony—which raised the possibility that Okla would actually "testify against the interest of the defendant."

During trial, defendant again raised the issue of procuring an expert witness to testify on forensic interviewing, and at defendant's request, the trial court increased the public allotment for an expert witness to $2,000. Despite the trial court's extensive accommodation of his demands, defendant failed to call Okla or any other expert in forensic interviewing.

B. TRIAL

At trial, which took place in December 2013, the jury heard testimony from five of defendant's children, including AD and OD, defendant's wife, a neighbor, police officers, the Care House employees who had interviewed AD and OD, and defendant himself. The testimony of these witnesses demonstrated that defendant committed multiple acts of child molestation and domestic violence over a period of years.

During the 2000s, defendant and his family lived in a two-bedroom home. Defendant is the father of six children, three daughters and three sons. After his younger son, ND, moved out of the house, defendant stopped sleeping in the marital bedroom and began to sleep on a twin bed in his daughters' room. Defendant also bathed naked with his children, was often alone with them in the bathroom, and instructed his wife to leave the bathroom if she entered it when he was with the children. In general, defendant's wife and children testified that defendant's demeanor was generally unpleasant and abusive—he frequently had outbursts of anger, regularly used explicatives to refer to the children in place of their names, and committed other acts of physical² and sexual abuse.

OD testified that defendant touched and digitally penetrated her vagina on multiple occasions. Specifically, defendant molested her in two contexts: (1) in her bed, when he would touch her vagina, and (2) while she bathed, when he would touch and digitally penetrate her vagina. Defendant's abuse of OD was not limited to molestation—he also physically abused her. In an apparent attempt to discipline OD for misbehaving at dinner, defendant grabbed her and threw her across the room. AD testified that defendant "flung [OD] and she landed sprawled out on the floor like maybe three or four feet away from her chair." When AD looked at defendant "in awe" after he abused OD, defendant told her "don't look at me like that. [OD] was ruining our dinner." Defendant's wife also stated that the girls relayed this incident to her, but defendant assured her that the children were "blowing [the incident] out of proportion."

Defendant's sexual abuse of AD was more extensive. According to AD, defendant bathed with her until she was in third grade and continued to "assist" with her baths for a year after. If AD attempted to sit away from defendant in the bathtub, defendant would lift her up and pull her toward his genitalia. In addition to this general abuse, AD told the jury of three specific episodes of molestation. Two of these took place in the bathroom: in one instance, defendant purported to instruct AD on how to properly wash her vagina, by rubbing his hand on her vagina; in the other, he punished her for "sassing back" by locking her in the bathroom and forcing her to put his penis in her mouth and lick it. After the latter molestation, defendant pushed AD out of the bathroom, which caused her to hit her head on the hallway wall.

AD also testified that defendant molested her in a fashion similar to the way in which he molested OD, by digitally penetrating her while she lay undressed in defendant's bed. AD stated that this penetration physically hurt her and that defendant also rubbed his penis on her unclothed thighs and stomach. When AD confronted defendant about his actions, he replied, "remember daddy loves you."

In his testimony, defendant stated that he occasionally called his children names, but denied physically or sexually abusing any of his children. Defendant's stand-by counsel cross-examined AD, OD, and KD³ because the trial court barred defendant from personally conducting the cross-examination of these three child witnesses. It initially prohibited defendant only from cross-examining AD and OD in an order issued after a motion hearing in July 2013. Considering the testimony of AD, OD, and defendant's wife, which had been given at defendant's preliminary examination, the trial court found that permitting defendant to cross-examine the girls would allow him to victimize them yet again. The court also observed that defendant had previously attempted to silence his daughters by badgering them about their interview with Care House in 2010 and making incendiary remarks to his family about Care House employees. The trial court expanded its order to include KD after witnessing AD and OD's testimony at trial, in which both girls expressed great fear of their father. During trial, defendant confronted the girls, but did not cross-examine them—instead, he wrote questions for the girls and gave the questions to his advisory attorney, who then cross-examined the girls using the questions provided by defendant.

After 10 days of proceedings, the jury convicted defendant as charged. On appeal, defendant argues that the trial court violated his constitutional rights to (1) present a defense, when the court denied his request to adjourn the trial so he could secure an expert witness, and (2) represent himself, when the court barred him from personally cross-examining AD, OD, and KD. Defendant also says that the trial court erred when it admitted evidence that he committed other acts of physical abuse separate from the charged crimes. The prosecution asks us to affirm the rulings of the trial court and defendant's convictions.

II. STANDARD OF REVIEW

The decision whether to allow a party to add an expert witness or grant a motion for an adjournment is reviewed for an abuse of discretion, Tisbury v. Armstrong, 194 Mich.App. 19, 20, 486 N.W.2d 51 (1992), as is the court's decision whether to admit or exclude evidence, People v. King, 297 Mich.App. 465, 472, 824 N.W.2d 258 (2012). An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes. People v. Duenaz, 306 Mich.App. 85, 90, 854 N.W.2d 531 (2014).

Constitutional questions are matters of law that we review de novo. People v. Trakhtenberg, 493 Mich. 38, 47, 826 N.W.2d 136 (2012). This Court reviews a trial court's ultimate decision regarding a limitation on cross-examination for an abuse of discretion. People v. Minor, 213 Mich.App. 682, 684, 541 N.W.2d 576 (1995). We also review a trial court's decision on a defendant's request to represent himself for an abuse of discretion. People v. Hicks, 259 Mich.App. 518, 521, 675 N.W.2d 599 (2003). Findings of fact are reviewed for clear error. People v. Gaines, 306 Mich.App. 289, 304, 856 N.W.2d 222 (2014).

III. ANALYSIS

A. PRESENTATION OF A DEFENSE

A criminal defendant has a state and federal constitutional right to present a defense, which includes the right to call...