People v. Elston
| Decision Date | 25 July 2000 |
| Docket Number | Docket No. 114906, Calendar No. 3. |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Chad Lewis ELSTON, Defendant-Appellee. |
| Court | Michigan Supreme Court |
Jennifer M. Granholm, Attorney General, Jeffrey L. Sauter, Prosecuting Attorney, and William M. Worden, Assistant Prosecuting Attorney, Charlotte, for the people.
State Appellate Defender (by Deborah Winfrey Keene), Lansing, for the defendant.
We granted the prosecution's application for leave to appeal to decide whether the trial court had a duty to grant a continuance on its own motion in response to newly discovered evidence. We conclude that it did not, and that defendant is not otherwise entitled to a new trial on the basis of the alleged discovery violations. Accordingly, we vacate the judgment of the Court of Appeals, which reversed defendant's jury trial conviction of first-degree criminal sexual conduct, M.C.L. § 750.520b; MSA 28.788(2), and remand for consideration of defendant's remaining appellate issues.
Defendant lived with his girlfriend and her two-year-old son. Defendant and the young child were taking a bath together, on defendant's suggestion, when the mother heard her son screaming. When she entered the bathroom, her son was crying and shaking. Neither defendant nor the child were dressed. Defendant explained that the boy fell and almost hit his head. When the mother noticed some blood between her son's buttocks, she asked defendant to drive her and the child to the hospital. Defendant refused and suggested that they wait until the next day to see if the boy's injuries improved.
The child's mother then enlisted the aid of her second cousin, who picked them up and drove them to the hospital. When the cousin first arrived at the house she observed that the child's bottom was swollen, bruised, and covered with dried blood. As they drove to the hospital, the child was saying "Chad butt." He said the same thing at the hospital when he saw his grandmother. In the emergency room, Scott Randall, D.O., examined the boy. Dr. Randall observed swelling, redness, bruising, and two fissures, or tears, around the anus. Concerned that the child may have been the victim of sexual abuse, Dr. Randall obtained a "criminal sexual conduct kit" and contacted the local police department.
When questioned by the police immediately after the incident, defendant denied any improper sexual conduct with the boy. Defendant speculated that the child's injuries may have been caused by falling onto the spout of the bathtub. In a written statement, defendant explained that the child slipped in the tub as he was standing up and attempting to put his toys away. A few months later, the police questioned defendant a second time. In his second police interview, defendant changed his story and explained that he had attempted to place his smallest finger into the child's anus. When the officer opined that a penetration by just the tip of defendant's finger was inconsistent with the boy's injuries, defendant explained that he placed his finger into the child's rectum up to his second knuckle and made a "C" motion.
Dr. Randall opined that the child's injuries were not consistent with a fall or with the insertion of a finger, but that they were consistent with penetration by an adult penis. In collecting evidence for the criminal sexual conduct kit, Dr. Randall performed two dry swabs of the boy's rectum. Tests of these dry swabs conducted at the Michigan State Police Laboratory revealed no evidence of semen. In addition to the dry swabs, Dr. Randall took two wet swabs. Dr. Randall explained that a wet swab, or "wet prep," would be more effective than a dry swab for obtaining sperm from dry areas such as the rectum. When Dr. Randall later looked at the results of the wet prep under a microscope, he observed two sperm fragments.
Defendant did not testify or present any proofs. The jury found defendant guilty of first-degree criminal sexual conduct and the trial court sentenced defendant to a term of fifty to seventy-five years imprisonment.
The issues before the Court involve Dr. Randall's observation of sperm fragments in the wet swab sample taken from the victim. Before trial, Dr. Randall had not told anyone involved in the criminal investigation that he had observed sperm fragments under a microscope. Nor did he tell anyone that he had obtained a laboratory test on the wet swab sample.
Defendant filed a discovery request in which he sought material available under MCR 6.201, including exculpatory evidence, documents, reports produced by or for expert witnesses, descriptions of physical evidence to be introduced at trial, and the opportunity to inspect physical evidence. In response to this request, the prosecution furnished defendant with a copy of the emergency room report signed by Dr. Randall. The emergency room report contained a notation by Dr. Randall explaining that he had discussed the case with another physician who "suggested wet prep/ GC/ Chlamydia Culture and attemt [sic] for motile sperm slide which were obtained." Also on the emergency room report, within a section entitled "present medications," appeared the words "Wet prep, GC, Chlamydia Culture, Motile Sperm." Although Dr. Randall had testified at defendant's preliminary examination, neither the prosecution nor the defense questioned him about the meaning of the notations on the emergency room report or about whether he had observed any evidence of semen or sperm on the victim. This fact suggests that neither party paid particular attention to the "wet prep" and "motile sperm" notations on the emergency room report.
On the morning of the first day of defendant's two-day trial, Dr. Randall informed the prosecutor, for the first time, that he had observed sperm fragments recovered from the victim.1 Dr. Randall and the prosecutor also reviewed the results of laboratory work that had been performed on the wet swab sample.2 Dr. Randall had seen the results of the wet swab laboratory report for the first time only three days earlier. As soon as the prosecutor learned of Dr. Randall's observations of sperm, he immediately informed defense counsel. Until Dr. Randall's disclosure, neither party had known of any evidence indicating the presence of sperm. Defense counsel conceded at trial and again at sentencing that the prosecutor had not been advised of the presence of sperm until the first day of trial.
At the beginning of the second day of trial, the parties informed the trial court of Dr. Randall's disclosure, at which time defendant moved to suppress Dr. Randall's proposed testimony regarding the sperm fragments. Defense counsel argued that it would be unfair to allow Dr. Randall to testify about the presence of sperm because defendant was not made aware of that evidence before trial. The trial court denied defendant's motion to suppress, reasoning that defendant was put "on notice" of the possibility that Dr. Randall had recovered sperm from the victim by the notations on the emergency room report referencing "wet prep" and "motile sperm." The trial court further explained that Dr. Randall had no duty to volunteer the information at the preliminary examination in the absence of a specific question, and that there was no evidence that Dr. Randall had answered any question falsely. Although neither party had actual notice before trial of the presence of sperm, neither requested a continuance on the record.
On appeal to the Court of Appeals, defendant argued that the trial court abused its discretion in denying his motion to suppress the evidence of sperm that neither party learned about until the first day of trial. Seeing the issue in a different light, the Court of Appeals reversed on the ground that the prosecutor committed specific discovery violations when it failed to make the wet swab laboratory report and the wet swab sample available to defendant immediately after Dr. Randall's surprise disclosure. In reaching this conclusion, the Court of Appeals first rejected the trial court's conclusion that the writing on the emergency room report put defendant "on notice" of the possible discovery of sperm. It explained that, when viewed in context, there was no reasonable way that the rather obscure words on the emergency report could have afforded defendant notice that evidence of sperm had been discovered. The Court of Appeals then concluded that the wet swab laboratory report was discoverable under MCR 6.201(A)(3), as a report prepared for an expert witness, and that the wet swab sample was discoverable under MCR 6.201(A)(6), as tangible physical evidence.
After finding the discovery violations, the Court of Appeals rejected the prosecutor's argument that, in the absence of a specific request for a continuance, the trial court was excused from remedying the potential prejudice. The panel explained that, although the trial court was not obligated to exclude the evidence, some remedy, "such as a continuance and the opportunity to examine the evidence regarding the presence of sperm," was required. The Court of Appeals next explained that defendant's case was prejudiced by the discovery errors because they left him without an opportunity to "scientifically evaluate" the wet swabs, examine the laboratory report for inconsistencies, or to "intelligently" cross-examine Dr. Randall. In particular, the panel opined that defendant could not be expected to be prepared to meet Dr. Randall's testimony on such short notice without access to the laboratory report or physical evidence itself. Finally, the Court of Appeals stated that the errors were not harmless.
The Court of Appeals found error in the prosecutor's failure to make the wet swab laboratory report and the wet swab sample itself available to def...
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