People v. Dobek

• Decision Date: 30 January 2007
• Docket Number: Docket No. 264366.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew Neil DOBEK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

732 N.W.2d 546

274 Mich. App. 58

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew Neil DOBEK, Defendant-Appellant.

Docket No. 264366.

Court of Appeals of Michigan.

Submitted January 9, 2007, at Grand Rapids.

Decided January 30, 2007, at 9:00 a.m.

Released for Publication May 14, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David L. Morse, Prosecuting Attorney, and William J. Vailliencourt, Jr., Assistant Prosecuting Attorney, for the people.

Hertz, Schram & Saretsky, P.C. (by Walter J. Piszczatowski and Michael J. Rex), Bloomfield Hills, for the defendant.

Before: MURPHY, P.J., and SMOLENSKI and KELLY, JJ.

MURPHY, P.J.

Following a jury trial, defendant was convicted of five counts of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(a) (sexual penetration with person under 13 years of age); three counts of second-degree criminal sexual conduct (CSC II), MCL 750.520c(1)(a) (sexual contact with person under 13 years of age); and two counts of assault with intent to commit criminal sexual conduct involving sexual penetration, MCL 750.520g(1). Defendant appeals as of right, claiming numerous instances of prosecutorial misconduct, instructional error relative to the dates of the offenses, improper admission of other-acts evidence, evidentiary error in the exclusion of expert testimony opining that defendant did not fit the profile of a sex offender, sentencing error based on his protestations of innocence affecting the length of the sentences, and cumulative error. We affirm, holding that claims of prosecutorial misconduct were waived, not shown, or did not amount to a denial of defendant's right to a fair and impartial trial; that the trial court correctly instructed the jury that the prosecutor was not required to prove the dates of the offenses; that the other-acts evidence was admitted for proper purposes and in accord with MRE 401 to 404; that defendant's sentences were not affected by alleged claims of innocence; and that there was no cumulative error requiring reversal. We further hold that the proffered expert testimony regarding sex offender profiling was properly excluded because it has not reached a level of scientific reliability sufficient to permit admission, there was insufficient supporting data, and because the testimony would not have assisted the jury in understanding the evidence or in determining a fact in issue; rather, the proffered evidence would have confused the issues, misled the jury, and caused unfair prejudice to the prosecutor.

I. Factual Overview

All the convictions arise out of allegations by defendant's stepdaughter concerning improper and illegal sexual conduct by defendant that occurred in 1995 when the victim was 12 years old. She was 22 years old when trial took place in May of 2005. Although there were ten specific criminal counts charged against defendant, the complainant testified that defendant sexually molested her hundreds of times over the years between, roughly, the ages of 8 and 13. The charged offenses occurred in the Dobek family home during two separate incidents on different dates, the first in defendant's bedroom and the second in the kitchen. The sexual conduct involved attempted vaginal and anal intercourse, fellatio, cunnilingus, digital penetration of the victim's vagina, genital fondling, and, in general, inappropriate touching.

The prosecution presented the testimony of the victim, a police officer who initially took the victim's statement, and Detective Bruce Leach, who extensively interviewed the victim and handled the investigation of the case. Defendant presented the testimony of his wife,¹ his brother, two adult daughters, a physician who saw the victim in 2000, defendant's ex-wife, and defendant's sister-in-law, who was declared a hostile witness. Defendant himself also took the stand. He denied any sexual misconduct, and defendant's witnesses, in general, testified that they never observed any inappropriate behavior on defendant's part and testified to defendant's good character. On rebuttal, the prosecution presented the testimony of a former family babysitter. Defendant was convicted and sentenced to 25 to 40 years' imprisonment for the CSC I convictions, 10 to 15 years' imprisonment for the CSC II convictions, and 6 to 10 years' imprisonment for the sexual assault convictions, all sentences to be served concurrently.

II. Analysis

A. Prosecutorial Misconduct

Defendant cites numerous instances in which the prosecutor allegedly engaged in misconduct. Given that a prosecutor's role and responsibility is to seek justice and not merely convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial. People v. Jones, 468 Mich. 345, 354, 662 N.W.2d 376 (2003); People v. Watson, 245 Mich.App. 572, 586, 629 N.W.2d 411 (2001). A defendant's opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than the defendant's guilt or innocence. People v. Rice (On Remand), 235 Mich.App. 429, 438, 597 N.W.2d 843 (1999). Issues of prosecutorial misconduct are decided case by case, and this Court must examine the entire record and evaluate a prosecutor's remarks in context. People v. Thomas, 260 Mich.App. 450, 454, 678 N.W.2d 631 (2004). "The propriety of a prosecutor's remarks depends on all the facts of the case." People v. Rodriguez, 251 Mich.App. 10, 30, 650 N.W.2d 96 (2002). A prosecutor's comments are to be evaluated in light of defense arguments and the relationship the comments bear to the evidence admitted at trial. People v. Brown, 267 Mich. App. 141, 152, 703 N.W.2d 230 (2005). Otherwise improper prosecutorial conduct or remarks might not require reversal if they address issues raised by defense counsel. Jones, supra at 353, 662 N.W.2d 376.² With these guiding principles in mind, we shall now examine the specific arguments raised by defendant.

We first address the allegations of prosecutorial misconduct that defendant claims arose out of the prosecutor's closing argument. We conclude that, for the most part, defendant waived claims of misconduct relative to closing argument. After closing arguments were presented and jury instructions were given, the trial court requested the parties to place any objections to the instructions on the record, and defendant did so. Defendant then proceeded to move for a mistrial based on prosecutorial misconduct during closing arguments. Defendant first contended that the prosecutor improperly interjected defendant's possible loss of freedom, which issue was not raised on appeal. Defendant next maintained that the prosecutor had suggested to the jury that defendant had a burden of proof that needed to be established, which issue was also not raised on appeal. The motion for mistrial was denied. The trial court then asked if counsel had anything else, and defense counsel stated, "No, Your Honor." Given that alleged misconduct during closing arguments was specifically being addressed, there was a waiver of any other misconduct claims with respect to closing arguments, except for one argument that was preserved when defendant particularly objected to an offending comment during closing arguments themselves. In People v. Carter, 462 Mich. 206, 215, 219, 612 N.W.2d 144 (2000), our Supreme Court discussed the principle of waiver:

Waiver has been defined as "the `intentional relinquishment or abandonment of a known right.'" It differs from forfeiture, which has been explained as "the failure to make the timely assertion of a right." "One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error."

* * *

In the present case, counsel clearly expressed satisfaction with the trial court's decision to refuse the jury's request and its subsequent instruction. This action effected a waiver. Because defendant waived, as opposed to forfeited, his rights under the rule, there is no "error" to review. [Citations omitted.]

Here, defendant affirmatively and intentionally abandoned or relinquished, with one exception, any claims of prosecutorial misconduct arising out of the prosecutor's closing argument when defendant asserted "closing argument" misconduct in the mistrial motion, cited prosecutorial comments not at issue on appeal, and then expressly stated that there were no further claims.

Moreover, assuming proper preservation or application of the plain-error test used for forfeited claims, People v Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999), reversal would not be warranted because defendant was neither denied a fair trial nor prejudiced. Defendant's claims of improper vouching lack merit given that the challenged comments reflected arguments from the facts and testimony that the witnesses at issue were credible or worthy of belief. People v. Howard, 226 Mich.App. 528, 548, 575 N.W.2d 16 (1997). The prosecutor did not imply that she had some special knowledge that the witnesses were testifying truthfully. See People v. Bahoda, 448 Mich. 261, 276, 531 N.W.2d 659 (1995). A prosecutor may not make a factual statement to the jury that is not supported by the evidence, People v. Ackerman, 257 Mich.App. 434, 450, 669 N.W.2d 818 (2003), but he or she is free to argue the evidence and all reasonable inferences arising from it as they relate to his or her theory of the case, Bahoda, supra at 282, 531 N.W.2d 659. The prosecution has wide latitude in arguing the facts and reasonable inferences, and need not confine argument to the blandest possible terms. People v. Aldrich, 246 Mich.App. 101, 112, 631 N.W.2d 67 (2001). There was no prosecutorial misconduct here. Furthermore, there was certainly no plain error affecting defendant's substantial rights. Carines, supra at 763, 597 N.W.2d 130.³

With respect to the prosecutor's closing and rebuttal remarks regarding the status of the law and her...