People v. Douglas

• Decision Date: 12 April 2012
• Docket Number: Docket No. 301546.
• Citation: 296 Mich.App. 186,817 N.W.2d 640
• Parties: PEOPLE v. DOUGLAS.
• Court: Court of Appeal of Michigan — District of US

296 Mich.App. 186

817 N.W.2d 640

PEOPLE

v.DOUGLAS.

Docket No. 301546.

Court of Appeals of Michigan.

Submitted Jan. 5, 2012, at Detroit.

Decided April 12, 2012, at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, and Jonathan L. Poer, Prosecuting Attorney, for the people.

Joan Ellerbusch Morgan, for defendant.

Before: DONOFRIO, P.J., and STEPHENS and RONAYNE KRAUSE, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(a) (victim under 13 years of age), and second-degree CSC, MCL 750.520c(1)(a) (victim under 13). Because defendant was denied the effective assistance of counsel during both the pretrial and trial proceedings and the cumulative effect of the trial errors denied him a fair trial, we vacate his convictions and sentences and remand to the trial court for reinstatement of the prosecution's plea offer. If defendant refuses to accept the offer, he is entitled to a new trial.

I. TRIAL ERRORS

Defendant argues that the trial court erroneously admitted the testimony of several witnesses as well as a videotape of the child complainant's Care House interview. Some of defendant's claims of error are preserved for our review and some are not. “To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal.” People v. Aldrich, 246 Mich.App. 101, 113, 631 N.W.2d 67 (2001). We review for an abuse of discretion a preserved challenge to the admission of evidence. People v. Orr, 275 Mich.App. 587, 588, 739 N.W.2d 385 (2007). “A trial court abuses its discretion when it chooses an outcome that is outside the range of reasonable and principled outcomes.” Id. at 588–589, 739 N.W.2d 385. This Court reviews for plain error unpreserved challenges regarding the admission of evidence that affected the defendant's substantial rights. People v. Carines, 460 Mich. 750, 763–764, 597 N.W.2d 130 (1999). When considering an unpreserved error, a reviewing court will reverse “only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id. at 774, 597 N.W.2d 130.

Defendant contends that the trial court erred by admitting, under MRE 803A, Jennifer Wheeler's testimony regarding the statements that the child, KD, made to Wheeler during an interview at Care House. MRE 803A, the “tender years” hearsay exception, states in relevant part:

A statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided:

(1) the declarant was under the age of ten when the statement was made;

(2) the statement is shown to have been spontaneous and without indication of manufacture;

(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; and (4) the statement is introduced through the testimony of someone other than the declarant.

If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule.

Defendant contends that Wheeler's testimony was inadmissible under MRE 803A because (1) the statements were elicited during a forensic interview and were therefore not spontaneous, (2) the statements were made more than one year after the alleged incidents and there is no indication that fear or another equally effective circumstance caused the delay, and (3) the statements should not have been “broken up” into two segments regarding each of the alleged acts. Because defendant did not challenge the admissibility of the statements on this basis below, that argument is not preserved for our review. Having reviewed the record, we conclude that Wheeler's testimony regarding KD's statements was not properly admissible under MRE 803A.

Whether KD's statements to Wheeler were “spontaneous” within the meaning of MRE 803A is a close question. In People v. Gursky, 486 Mich. 596, 614, 786 N.W.2d 579 (2010), our Supreme Court held that questioning by an adult “is not incompatible with a ruling that the child produced a spontaneous statement.” The Court explained, however, that “for such statements to be admissible, the child must broach the subject of sexual abuse, and any questioning or prompts from adults must be nonleading or open-ended in order for the statement to be considered the creation of the child.” Id. KD broached the subject of sexual abuse after Wheeler told KD that children tell her things that have happened to them, including secrets and things that people tell the children not to say. Wheeler and KD engaged in the following discussion:

Ms. Wheeler: Well, you know what, [KD], I'm gonna tell you a little bit about me and this place here, okay? All right. My name's Jennifer just in case you forgot that. This place here is called Care House, and we call it Care House not because anyone lives here—

[ KD ]: Um-hum.

Ms. Wheeler:—just because everyone who works here really cares about kids. You know what my job is here at Care House?

[ KD ]: M-mm.

Ms. Wheeler: It's to listen and talk with kids. That's what I do every single day all day long. I talk to little kids. I talk to older kids like you. Sometimes even teenagers.

[ KD ]: Teenagers?

Ms. Wheeler: Yeah, teenagers. And when I talk to kids, they tell me everything. They tell me about their friends and their families. They tell me about their moms and their dads. They tell me about things that happen to them. Things that they saw. Things that they heard. They tell me about worries and problems. They tell me about secrets. They even tell me about things that people tell them not to tell, and that's okay because as long as you talk to me today, you get to tell me anything and everything that you want. Okay?

[ KD ]: Know what, my daddy makes me suck his peepee.

Considering Wheeler's prompting, the fact that KD had already talked to her therapist about the alleged sexual abuse, and the fact that KD's mother had told her during the 45– to 60–minute drive that she was going to be interviewed, KD's statements to Wheeler were arguably not spontaneous.

More certain for purposes of MRE 803A is that KD's statements to Wheeler were not made immediately after the incidents and there is no indication that the delay was caused by fear or another “equally effective circumstance.” In fact, KD did not make the statements until approximately one year after the alleged incidents. KD's mother testified that KD had told her about the sexual abuse “out-of-the-blue” while they were in the car. KD's Care House interview occurred soon thereafter. The prosecution suggests that the delay was excusable because of KD's “extreme youth,” but nothing in the record indicates that KD's age was a reason for the delay. We note that KD was approximately 3 1/2 years old at the time of the alleged incidents and did not disclose the abuse for approximately one year. KD's youth, without more, is not an equally effective circumstance that sufficiently explains why she did not disclose the abuse for such a long time. Without any explanation regarding the cause of the delay, let alone an indication that fear or a similar circumstance was the reason for the delay, KD's statements to Wheeler were inadmissible under MRE 803A(3). A trial court abuses its discretion when it admits evidence that is legally inadmissible as a matter of law. Gursky, 486 Mich. at 606, 786 N.W.2d 579.

KD's statement to Wheeler regarding sucking defendant's “peepee” was also inadmissible under MRE 803A because it was not KD's first corroborative statement about that incident. KD made the first corroborative statement about that incident to her mother rather than Wheeler. Thus, Wheeler's testimony that KD told her that defendant made her suck his “peepee” was inadmissible under MRE 803A.

Wheeler also testified that KD told her that she and her stepsister had touched defendant's penis on one occasion. This incident was separate from the incident during which the alleged oral sex occurred. While KD's statements regarding the touching incident were the first corroborative statements regarding that incident, Wheeler's testimony regarding the statements was nevertheless inadmissible because not all the requisites of MRE 803A were satisfied, as discussed earlier. Thus, KD's statements to Wheeler regarding both incidents were inadmissible under MRE 803A.

Defendant next argues that the trial court erred by admitting the videotape of KD's Care House interview. Over defense counsel's objection that the videotape was inadmissible under MRE 803A, the video was played before the jury. Because KD's statements to Wheeler, depicted in the video, were inadmissible under MRE 803A, the admission of the videotape was also erroneous.¹

Defendant next contends that KD's credibility was improperly bolstered when the trial court admitted the hearsay testimony of KD's mother, JB, who testified that while riding in the car one day, KD spontaneously said, “I sucked my daddy's peepee until the milk came out, and my daddy said, oh, yeah, that's how you do it.” Defense counsel did not object to the testimony, which constituted inadmissible hearsay. Although the prosecution argues that the testimony was admissible under MRE 803A, the statement was not made immediately after the incident and there is no indication that fear or another equally effective circumstance caused the delay. Thus, the testimony was inadmissible under MRE 803A.²

Defendant next argues that the trial court erred by admitting the hearsay testimony of Michigan State Police Detective Sergeant Gary Muir, which improperly vouched for KD's credibility. “It is generally improper for a...