People v. Douglas

CourtSupreme Court of Michigan
Citation852 N.W.2d 587,496 Mich. 557
Docket NumberCalendar No. 3,Docket No. 145646.
Decision Date11 July 2014

496 Mich. 557
852 N.W.2d 587


Docket No. 145646.
Calendar No. 3

Supreme Court of Michigan.

Argued Jan. 15, 2014.
Decided July 11, 2014.

[852 N.W.2d 589]

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, R. Burke Castleberry, Jr., Prosecuting Attorney, and Jonathan L. Poer, Assistant Prosecuting Attorney, for the people.

[852 N.W.2d 590]

State Appellate Defender (by Valerie R. Newman and Marilena David–Martin) for defendant.


The defendant, Jeffery Douglas, was convicted by a jury of first-degree and second-degree criminal sexual conduct in connection with the alleged sexual abuse of his then-three-year-old daughter, KD. Before us is whether the Court of Appeals erred in concluding that, as a result of evidentiary errors at trial and the ineffective assistance of counsel during both the pretrial and trial stages of the case, the defendant is entitled to a new trial and to the reinstatement of a plea offer he rejected. We agree with the Court of Appeals that a new trial is warranted in light of the errors by both the court and defense counsel at trial. We hold, however, that the Court of Appeals erred in concluding that the prosecution's prior plea offer must be reinstated, as we see no reversible error in the trial court's determination to the contrary. Accordingly, we affirm the Court of Appeals in part, reverse in part, and remand for proceedings consistent with this opinion.


KD is the biological daughter of the defendant and Jessica Brodie. The defendant and Brodie lived together for approximately seven years, during which time KD was born. The couple separated at the end of March 2008. Around that time, the defendant and Brodie each filed domestic violence charges against the other, which were ultimately dismissed. Upon the recommendation of Children's Protective Services (CPS), KD went to live with the defendant in May 2008; KD was 3 1/2 years old at the time. The defendant and KD lived with the defendant's mother for approximately one month, and then lived with his current wife (then his girlfriend) from June 2008 until January 2009. At that point, KD went to live with Brodie and spent alternating weekends with the defendant. In May 2009, the defendant married his current wife and the couple announced her pregnancy shortly thereafter.

In June 2009, the instant allegations of sexual abuse surfaced: namely, that the defendant had made KD perform fellatio on him while he and KD were living with his mother approximately a year earlier, and that the defendant had made KD touch his penis on a separate, prior occasion. According to Brodie, KD spontaneously disclosed the alleged fellatio to her while the two were in the car together. As a result, Brodie moved up KD's preexisting appointment with her therapist, who in turn contacted CPS after speaking with KD. CPS opened an investigation and, together with local police, arranged for a forensic interview of KD at Care House, a social services center committed to the prevention of child abuse. During that interview, KD discussed the alleged fellatio and touching.

The defendant was thereafter charged with one count of first-degree criminal sexual conduct (CSC–I), MCL 750.520b(1)(a), and one count of second-degree criminal sexual conduct (CSC–II), MCL 750.520c(1)(a); CPS also filed a petition to initiate child protective proceedings. KD and Brodie testified at a preliminary examination. Prior to that hearing, the prosecution discussed with defense counsel the possibility of a plea to one count of attempted CSC, which the defendant rejected. The case proceeded to trial in March 2010. Shortly beforehand, the prosecution extended a second plea offer to the defendant for one count of fourth-degree criminal sexual conduct (CSC–

[852 N.W.2d 591]

IV), MCL 750.520e, which the defendant also rejected.

At trial, the prosecution presented testimony from KD (by then five years old), Brodie, and certain individuals involved in the underlying investigation of the case: Detective Sergeant Gary Muir, who testified, in relevant part, to the content of a recorded telephone conversation between the defendant and Brodie; State Police Trooper Larry Rothman, who testified regarding two interviews he had conducted with the defendant in connection with the allegations; CPS worker Diana Fallone, who testified regarding her investigation of the allegations and decision to commence child protective proceedings; and forensic interviewer Jennifer Wheeler, who was qualified as an expert and, over the defendant's objection, testified to the content of her interview with KD. The jury was also shown a video recording of that interview, again over the defendant's objection.

The defendant testified in his own defense, denying any wrongdoing. The defendant also presented testimony from his mother, with whom he and KD were living at the time the fellatio was alleged to have occurred, and from his current wife. The defendant's theory at trial was that the allegations of abuse had been fabricated by Brodie out of spite toward the defendant and his new wife, and that Brodie had coached KD accordingly.

The jury convicted the defendant as charged. As he had throughout the pretrial and trial stages of the case, the defendant maintained his innocence at sentencing. The trial court initially sentenced the defendant to concurrent prison terms of 85 to 360 months and 38 to 180 months for the CSC–I and –II convictions, respectively. After the defendant's term of incarceration began, however, the Department of Corrections notified the court, and the court in turn notified the parties, that the defendant had not been sentenced in accordance with MCL 750.520b(2)(b), which requires a 25–year mandatory minimum sentence for his conviction of CSC–I. Neither the court, the prosecution, nor defense counsel appear to have been aware of this mandatory minimum before receiving this correspondence, and the defendant had not been informed of it at any point prior. The parties then filed competing motions: the prosecution, to modify the sentence in accordance with the mandatory minimum; the defendant, for reinstatement of the prosecution's second pretrial plea offer, for a new trial, and for a Ginther1 hearing, claiming evidentiary errors at trial and ineffective assistance of counsel at the pretrial and trial stages.

On September 9, 2010, the trial court held a hearing on the motions, at which the defendant and his trial counsel testified; the court thereafter granted the prosecution's motion to modify the sentence and denied the defendant's requests for relief. The testimony received at the hearing and the court's subsequent ruling on the motions focused predominantly on the pretrial advice the defendant had received from counsel regarding the prosecution's plea offer and the consequences of a conviction at trial, and to what extent any errors in that advice affected the defendant's decision to reject the offer.

The defendant appealed, and the Court of Appeals reversed, concluding that the defendant was entitled both to a new trial and to reinstatement of the prosecution's plea offer. People v. Douglas, 296 Mich.App. 186, 817 N.W.2d 640 (2012). The Court of Appeals found numerous evidentiary errors at trial, committed by both

[852 N.W.2d 592]

the court and defense counsel, that undermined the reliability of the jury's verdict and warranted a new trial. Namely, the Court of Appeals held that the trial court erred in admitting, through Wheeler's testimony and the video recording, KD's out-of-court statements during the forensic interview regarding the alleged abuse. It further held that defense counsel was ineffective both for failing to object to certain inadmissible testimony from Brodie, Muir, and Fallone that bolstered KD's credibility, and for failing to impeach KD at trial with her preliminary examination testimony. The Court of Appeals also concluded that the defendant was entitled to relief on his claim of ineffective assistance of counsel at the pretrial stage, in light of the incorrect advice counsel provided in connection with the prosecution's plea offer. Accordingly, the Court of Appeals ordered that, upon remand, the prosecution must reoffer that plea to the defendant. 2

The prosecution then sought leave to appeal in this Court, challenging both the award of a new trial to the defendant and the requirement that the prosecution's prior plea offer be reinstated. We granted leave to appeal in order to review these issues. People v. Douglas, 493 Mich. 876, 821 N.W.2d 574 (2012).


A trial court's decision to admit evidence will not be disturbed absent an abuse of discretion, which occurs when the court “chooses an outcome that falls outside the range of principled outcomes.” People v. Musser, 494 Mich. 337, 348, 835 N.W.2d 319 (2013). If the court's evidentiary error is nonconstitutional and preserved, then it “ ‘is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative’ ”—i.e., that “it undermined the reliability of the verdict.” Id., quoting People v. Krueger, 466 Mich. 50, 54, 643 N.W.2d 223 (2002).

Whether the defendant received the effective assistance of counsel guaranteed him under the United States and Michigan Constitutions is a mixed question of fact and law. People v. Trakhtenberg, 493 Mich. 38, 47, 826 N.W.2d 136 (2012), citing People v. Armstrong, 490 Mich. 281, 289, 806 N.W.2d 676 (2011). This Court reviews for clear error the trial court's findings of fact in this regard, and reviews de novo questions of constitutional law. Id.


We turn first to the Court of Appeals' determination that the defendant is entitled to a new trial. We agree that such relief is warranted. This conclusion stems from errors made by both the trial court and defense counsel in the handling of evidence...

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