People v. Erickson
| Decision Date | 18 November 2021 |
| Docket Number | 355943 |
| Citation | 339 Mich.App. 309,983 N.W.2d 419 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Neal Haviland ERICKSON, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, LaDonna A. Schultz, Prosecuting Attorney, and Andrew J. Walker, Assistant Prosecuting Attorney, for the people.
Friedman Legal Solutions, PLLC (by Stuart G. Friedman, Southfield, and Suzanne C. Schuelke ) and Satawa Law, PLLC (by Mark Satawa, Southfield) for defendant.
Before: Murray, C.J., and Markey and Riordan, JJ.
In this interlocutory appeal, defendant, Neal Haviland Erickson, appeals by leave granted1 an order granting in part and denying in part his motion to exclude certain evidence from trial. We affirm and remand for further proceedings.
In 2013, the prosecutor charged defendant with three counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(b), and one count each of distributing sexually explicit material to a minor, MCL 722.675, possession of sexually abusive material, MCL 750.145c(4), and using a computer to commit a crime, MCL 752.796. Defendant, then a middle school teacher, allegedly exchanged photographs and had sex with a male student while the student was in the eighth grade and during the summer before the student entered the ninth grade. On May 8, 2013, defendant pleaded guilty to one count of CSC-I in exchange for the prosecution dropping the remaining counts. On July 10, 2013, the circuit court sentenced him to 15 to 30 years in prison.
After various appellate proceedings not relevant to this appeal, in January 2019, defendant filed a motion for relief from judgment, arguing, among other things, that he must be allowed to withdraw his guilty plea because the trial judge that took his plea had not informed defendant that he would be subject to lifetime electronic monitoring. The circuit court agreed with this argument, granted the motion, and set the case for trial.
By way of a motion in limine dated June 10, 2020, defendant argued that statements he made at sentencing and statements he made in connection with the presentence investigation report (PSIR) should be excluded from trial because of their link to the vacated guilty plea, which was itself inadmissible under MRE 410, as conceded by the prosecutor. Defense counsel argued at the motion hearing that sentencing "is part [and] parcel of the plea itself." Counsel argued that defendant's plea was withdrawn, meaning that he had not been convicted of anything, and contended that statements made in connection with sentencing should not be admitted because they would never have been made without a conviction.2 Defendant also argued that pursuant to MCL 791.229, statements set forth in a PSIR are privileged.
The prosecutor argued that People v. Cowhy , 330 Mich.App. 452, 948 N.W.2d 632 (2019), belied defendant's assertion that the evidence must be excluded from trial. The prosecutor stated, "[I]f you look at the plain, unambiguous language of [MRE] 410, there is no language that extends [the prohibition of introducing plea evidence] beyond the plea itself, and that's what the [ Cowhy Court] held here." The prosecutor also argued, with regard to the PSIR evidence, that the need for impeachment outweighed any confidentiality conferred by way of MCL 791.229.
The circuit court concluded that MRE 410 did not bar admission of the challenged statements, stating that Cowhy and a case cited in Cowhy — People v. Dunn , 446 Mich. 409, 521 N.W.2d 255 (1994) —were on point. It also held that statements made in connection with the PSIR were confidential but ultimately admitted all the evidence in question—but only for impeachment purposes.
We now turn to defendant's challenges to the trial court's decision.
We review for an abuse of discretion a trial court's ruling regarding a motion to exclude evidence. Cowhy , 330 Mich.App. at 461, 948 N.W.2d 632. "The trial court abuses its discretion when its decision falls outside the range of principled outcomes or when it erroneously interprets or applies the law." People v. Lane , 308 Mich.App. 38, 51, 862 N.W.2d 446 (2014) (citations omitted). "Whether a confidential communication is privileged is reviewed de novo." Cowhy , 330 Mich.App. at 461, 948 N.W.2d 632.
MRE 410 states:
Pursuant to the unambiguous language of MRE 410 as reinforced by Cowhy , the trial court's conclusions were correct. First, MRE 410 is limited to precluding admission of statements made to a prosecuting attorney in the course of plea proceedings. Here, the trial court did not admit for impeachment purposes any such statements, as the statements were all made after the plea agreement was finalized. Defendant's argument is foreclosed by the plain language of the rule of evidence.
Second, Cowhy reinforces this conclusion. The defendant in Cowhy pleaded guilty to multiple counts of second- and third-degree criminal sexual conduct and first-degree child abuse, as well as to one count of accosting a child for immoral purposes. Cowhy , 330 Mich.App. at 457, 948 N.W.2d 632. After his plea was entered, but before the sentence was imposed, the parties stipulated that the defendant "would submit to ‘a risk assessment/evaluation ... for the purposes of sentencing.’ " Id. at 458, 948 N.W.2d 632 (ellipses in original). The defendant met with a social worker in accordance with this stipulation and admitted to abusing the children named in the information. Id. After sentencing, the defendant filed a motion to withdraw his guilty plea.
Id. The defendant attached to that motion an affidavit in which he stated, in part, that all the sexual incidents to which he pleaded guilty " ‘occurred when he was between the ages of 13 and 15, or possibly right after he turned 16.’ " Id. at 458-459, 948 N.W.2d 632. The trial court initially denied the motion to withdraw the plea, but the defendant was allowed to withdraw it after various appellate proceedings. Id. at 459-460, 948 N.W.2d 632.
Before trial, the prosecutor filed a motion to admit the statements the defendant made in the affidavit attached to the motion to withdraw the plea. Id. at 460, 948 N.W.2d 632. In addition, the defendant filed motions to exclude testimony by his initial attorney and by the social worker who performed his risk assessment/evaluation. Id. The trial court concluded that all this evidence was precluded by MRE 410. Id.
This Court held that none of the evidence was precluded by MRE 410(1), (2), or (3), because "the prosecution is not attempting to introduce evidence of a guilty plea that was later withdrawn, a plea of nolo contendere , or a statement made in the course of a proceeding under MCR 6.302 or a comparable state of [sic] federal procedure." Id. at 463, 948 N.W.2d 632. As for whether the challenged statements were "made in the course of plea discussions for purposes of MRE 410(4)," the Cowhy Court explained that courts should apply the "two-pronged test adopted in" Dunn , 446 Mich. at 415, 521 N.W.2d 255. Cowhy , 330 Mich.App. at 463, 948 N.W.2d 632. "In Dunn , our Supreme Court held that MRE 410 applies when (1) the defendant has an actual subjective expectation to negotiate a plea at the time of the discussion and (2) that expectation is reasonable given the totality of the objective circumstances." People v. Smart , 304 Mich.App. 244, 249, 850 N.W.2d 579 (2014) (quotation marks and citation omitted).
Applying the test set forth by the Dunn Court, the Cowhy Court concluded that the circuit court erred by excluding statements made to the social worker under MRE 410. Cowhy , 330 Mich.App. at 465-466, 948 N.W.2d 632. The Court concluded that the defendant did not have an actual subjective expectation to negotiate a plea when he spoke to the social worker and that even if he did, "his expectation was not reasonable under the totality of the circumstances," id. at 465, 948 N.W.2d 632, as the plea had already been entered when the defendant spoke with the social worker, id. The Court mentioned the stipulation for the risk assessment/evaluation and stated:
[The social worker's] report was subsequently submitted to the court prior to sentencing, and it focused on sentencing issues, i.e., Cowhy's rehabilitative potential. Cowhy used the report at sentencing as part of his argument in favor of a more lenient sentence. Therefore, ... Cowhy's expectation at the time he made the statements was to receive a more lenient sentence, not to receive a better plea agreement with the prosecution. The trial court...
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