People v. Lemmon

Decision Date24 March 1998
Docket NumberNo. 2,Docket No. 105850,2
Citation576 N.W.2d 129,456 Mich. 625
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joseph Charles LEMMON, Defendant-Appellee. Calendar
CourtMichigan Supreme Court

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, for People.

State Appellate Defender by P.E. Bennett, Detroit, for Defendant-Appellee.


BOYLE, Justice.

We granted leave to appeal to address whether the trial court erred in granting defendant's motion for a new trial on the basis that the great weight of the evidence standard established in People v. Herbert, 444 Mich. 466, 476, 511 N.W.2d 654 (1993), permitted the trial judge to act as a "thirteenth juror." Insofar as it authorizes judges to grant new trial motions on the basis of a disagreement with juror assessment of credibility, Herbert is overruled. A trial judge does not sit as the thirteenth juror in ruling on motions for a new trial and may grant a new trial only if the evidence preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the verdict to stand.


Defendant Joseph Lemmon was convicted of five counts of criminal sexual conduct following a jury trial held before Judge Carole F. Youngblood. He was found guilty of one count of first-degree criminal sexual conduct 1 and two counts of second-degree criminal sexual conduct 2 against one daughter and two counts of CSC II against the other daughter of his former girlfriend, Deborah Buell. Ms. Buell met and then lived with Joseph Lemmon for a short time in 1988. During that time, Mr. Lemmon fathered a son, the youngest child of Ms. Buell; however, the relationship ended before James was born. The couple later resumed their relationship in 1992 and Joseph Lemmon moved in with Ms. Buell and her three other children, two daughters, ages eleven and eight, and a son, age six. He lived with them as a member of the family from November, 1992, until August, 1993.

The older daughter testified that, on four different occasions, when her mother was not in the home, the defendant sexually abused her. The separate incidents occurred on different days and involved defendant lifting her bra and playing with her breasts when putting cream on her pimples, putting his finger into her vagina, attempting penile penetration of her vagina, and sucking her breast. She testified that defendant was responsible for discipline during the time he lived in the house and that while he never physically disciplined her, he did ground her for bad report cards. She further testified that she did not tell anyone what had happened because defendant told her that it was just between the two of them and "not to tell no one" and that if she did, she "would get hurt."

The younger daughter testified that she had been the victim of the defendant's sexual abuse on two occasions. Both incidents, which were similar in nature, occurred when her mother was not present in the home and took place in the bedroom Mr. Lemmon shared with her mother. She stated that, on different days, defendant called her into the bedroom telling her he wanted to show her something. When she went into the room, defendant pulled down his pants, exposed himself, and told her to touch his penis. When she refused, he grabbed her hand, placed it on his penis, and forced her to rub it. She further testified that defendant disciplined her during the time he lived with her mother and would sometimes whip her or confine her to her room. She also testified that defendant told her not to tell anyone what had transpired and that if she did, he "would do something" and she would "be in big trouble."

Both girls testified that they did not tell their mother what had happened until after Mr. Lemmon and their mother had separated and both parties had moved out of the house they shared. Their mother confirmed this portion of the girls' testimony, stating that the girls had not indicated that any type of sexual abuse had occurred during the time she was living with Mr. Lemmon. Ms. Buell testified that it was her decision to break off the relationship with Mr. Lemmon, but that it was not until after the relationship had ended, and she and her children had moved into her parent's home that she was informed of the abuse.

Defense counsel for Mr. Lemmon cross-examined the girls in an attempt to impeach their testimony. He obtained admissions from the older daughter that there were times that she had not told the truth and later admitted to the lie by telling the truth. Specifically, defense counsel elicited from her falsehoods that included instances such as lying about stealing a candy bar, smoking in the woods, not giving notes from her teacher to her parents, taking food off her brothers' plates, going places with friends, riding her bike in the street, and saying she had finished homework when she had not, or cleaned her room when she had not. On cross-examination of the younger daughter, defense counsel obtained admissions that she had not told the truth only when she said she had cleaned her room, but had not, and told her mother she was going one place, but Defendant presented several witnesses and testified in his own defense. He stated that his relationship with Ms. Buell had its ups and downs, that she was very jealous, and wanted everything her own way. In contrast to the testimony of Ms. Buell, the defendant claimed that he initiated the breakup. He further indicated that when he moved out of the house he was still on speaking terms with Ms. Buell. Additionally, he denied ever sexually abusing either girl and stated that Ms. Buell was present the one time he had put cream on the older daughter's spots. He agreed that he was involved in disciplining the girls but that he had never hit either of them. He could give no reason for either of the girls to be angry with him, hold anything against him, or make up allegations against him.

went another. She denied other allegations that she had lied about homework or lied to get her sister in trouble.

At the close of the people's proofs, the prosecutor agreed to dismiss a third count of CSC II concerning the older daughter because she could only recall two specific instances of sexual contact, although there might have been three. There was no motion for a directed verdict regarding the other counts. After Mr. Lemmon presented his defense, the case was submitted to the jury who found the defendant guilty on all five remaining counts.

At sentencing, the defendant submitted a motion for a directed verdict or new trial, which was denied. The trial judge imposed a two- to fifteen-year term for one conviction of CSC I 3 and two- to ten-year terms for each conviction of CSC II, 4 to run concurrently. In July, 1995, defendant obtained new counsel and filed another motion for a directed verdict or a new trial. The motion was granted by Judge Youngblood on the basis of People v. Herbert, supra. The court noted that Herbert allowed a new trial when the verdict is against the great weight of the evidence or to prevent an injustice and stated that the new trial motion was granted after reviewing the whole body of proofs, particularly the contradictory testimony and demeanor of the girls.

The prosecutor filed a delayed application for leave to appeal the decision to grant a new trial. 5 The Court of Appeals stayed the new trial and remanded the case to Judge Youngblood "for a full statement of the court's reasons for granting the motion for new trial, including a specific explanation of why the court found the witnesses' testimony not credible and the verdict against the great weight of the evidence." Unpublished order of the Court of Appeals, entered November 20, 1995 (Docket No. 189329).

In the written opinion reviewed here, the trial court observed that both prosecution witnesses "lacked credibility." She cited their "poor memory of any details" as to time or events, the "illogic" of their description of the circumstances surrounding the sexual assaults, their "poor reputation for truthfulness," and the fact that the information regarding the assaults had not been disclosed until months after their occurrence and "after the defendant had rejected the family relationship." The judge also found the demeanor of the witnesses questionable in that the older daughter "giggled at times, but not at embarrassing moments when one might expect a child to giggle," that "[b]oth children appeared to look at the prosecutor and others in the courtroom for approval rather than candidly testifying as to their memory," and used sexually explicit words and phrases "without any hesitation or embarrassment." The judge indicated that "[t]he only evidence of the defendant's guilt was the testimony of [the girls]. There were no medical records, counseling records, or corroborating testimony." 6 Finally, the judge reaffirmed her opinion that the verdict had resulted in a "miscarriage of justice" stating that the "credibility of the orally-testifying witnesses and their demeanor leaves this court with a firm belief that the defendant should be tried by a different jury."

The Court of Appeals denied the prosecutor's application for leave to appeal. However, Judge Corrigan observed that she had consistently questioned the principle of People v. Herbert that a trial court may sit as a thirteenth juror. Judge Corrigan stated that, in her view, the credibility of the two witnesses had not been significantly impugned but could not say that the trial judge had abused her discretion in granting a new trial. Judge Markman agreed that, given the authority vested in the trial courts under People v. Herbert, there was no "abuse of discretion" on the part of the trial judge and joined Judge Corrigan in questioning the...

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