People v. McDonald

• Decision Date: 12 July 2011
• Docket Number: Docket No. 297889.
• Citation: 293 Mich.App. 292,811 N.W.2d 507
• Parties: PEOPLE v. McDONALD.
• Court: Court of Appeal of Michigan — District of US

293 Mich.App. 292

811 N.W.2d 507

PEOPLE

v.McDONALD.

Docket No. 297889.

Court of Appeals of Michigan.

Submitted June 7, 2011, at Detroit.Decided July 12, 2011, at 9:05 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jason W. Williams, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Christopher M. Smith) for defendant.

Before: FORT HOOD, P.J., and DONOFRIO and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J.

Defendant appeals by right his convictions by a jury of kidnapping, MCL 750.349, armed robbery, MCL 750.529, and first-degree criminal sexual conduct (CSC–I), MCL 750.520b(1)(c). Defendant was acquitted of felony-firearm, MCL 750.227b, and two counts of second-degree criminal sexual conduct, (CSC–II), MCL 750.520c(1)(c). Defendant also appeals his sentences of 225 months' to 60 years' imprisonment on each of his three convictions. The kidnapping and armed robbery sentences were to be served concurrently but, pursuant to MCL 750.520b(3), were to be served consecutively to his CSC–I sentence. The evidence supporting defendant's convictions was largely, although not exclusively, based on DNA evidence collected at a hospital. We affirm.

While walking home from work in Detroit, the victim was accosted, ordered into a car, robbed, and raped at gunpoint by a man. She got a good look at the man's face before he ordered her not to look at him. Among other things, the man took her cell phone. She almost immediately happened across an ambulance when he finally let her go and was taken to the hospital. A sexual-assault examination was performed after some delay; numerous swabs and samples were taken and packaged into a “rape kit,” a sealed container for sexual-assault evidence. Meanwhile, the police tracked the victim's cell phone to a barbershop, then to a person who was in a relationship with defendant's brother, and finally to defendant. DNA evidence was obtained from defendant. The victim was unable to select a photograph of defendant out of a photographic lineup, although the quality of the photographs was apparently very poor. Defendant refused to participate in a corporeal or voice lineup, but the victim was able to identify defendant as the rapist in court and from a photograph she found of him on the Internet through independent research. Two different forensic scientists in unrelated crime laboratories analyzed actual sperm cells found in the rape kit and matched them to defendant's DNA. It was established that at no time was a “sperm sample” obtained from defendant.

Defendant first argues that it was error to permit the emergency room attending physician, Dr. Patrick Loeckner, to testify about the sexual-assault examination because he did not administer it himself. The doctor who personally performed the examination, Dr. Saiyeda Abbas, did not testify at trial. Defendant argues that this constituted inadmissible hearsay and was a violation of his right to confront the witnesses against him. We find no basis for reversal.

Defendant did not object to Dr. Loeckner's testimony and affirmatively stated that he had no objection to the admission of Dr. Abbas's notes. The former failure to object constituted mere forfeiture of an error, while the latter affirmative approval constituted a waiver. People v. Carter, 462 Mich. 206, 215–216, 612 N.W.2d 144 (2000). Unpreserved claims of error that are not waived are reviewed for “plain error,” meaning that there must be obvious error that caused a defendant actual prejudice. Reversal is not warranted unless the defendant was actually innocent or the error fundamentally undermined the integrity of the proceedings. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999). This same standard of review applies to unpreserved claims of both nonconstitutional and constitutional error. Id. at 761–767, 597 N.W.2d 130.

Even if we were to presume that Dr. Loeckner's testimony constituted inadmissible hearsay, there was no prejudice. Dr. Loeckner's testimony helped defendant, if anything. Dr. Loeckner admitted that he did not know whether Dr. Abbas had really followed the proper protocols. Furthermore, Dr. Loeckner's testimony brought out the fact that no semen was observed during the examination, a fact that defendant made use of during closing argument.

Moreover, the gravamen of defendant's argument regarding Dr. Loeckner's testimony has less to do with who testified than with the implication that the sexual-assault examination was mishandled and the rape kit contaminated, thereby undermining the reliability of both. However, the rest of the evidence overwhelmingly shows that no such thing was possible. Even if Dr. Abbas hypothetically had not fully followed proper protocols, two separate forensic scientists in two different accredited crime laboratories matched defendant to the sperm cells found during the sexual-assault examination, and they did so without consulting each other. Because the victim's DNA was also found on the items in that particular rape kit, it had clearly not become intermingled with evidence from another investigation. Defendant implies that the rape kit at the hospital could have been mishandled in such a way that his sperm could have gotten into it, but there is absolutely no evidence in the record from which such an extraordinary conclusion could be drawn. Indeed, it is a patently ridiculous implication because the forensic scientists explicitly analyzed actual sperm cells that were found to contain defendant's DNA. The only way the rape kit could have been contaminated would be if the police or the doctors had somehow obtained a sperm sample from defendant, which they did not. The DNA samples they took from defendant came from his mouth. Finally, old-fashioned detective work led the police to defendant, and the victim identified defendant as the rapist in court and from a photograph she found.

Even if error occurred, reversal is not warranted because defendant is not actually innocent. Given defendant's partial reliance on Dr. Loeckner's testimony, to which he did not object, the error did not affect the fairness, integrity, or public reputation of the proceedings. Carines, 460 Mich. at 763, 597 N.W.2d 130.

Defendant next argues that the trial court deprived him of due process and violated MCR 6.414(J) because of the way in which it asked the jury to rely on its collective memory instead of granting its request to review transcripts of certain testimony. We disagree. It might have been better practice to have told the jury explicitly that if they continued to feel a need for a transcript in the future, they could make another request. However, the trial court emphasized that it was merely denying their request “at this time,” and given that it was only an hour into deliberations, defendant agreed that for the time being the request should be denied. The trial court did not tell the jury that transcripts would be unavailable for weeks or months or not available at all. See People v. Smith, 396 Mich. 109, 110–111, 240 N.W.2d 202 (1976). Because the trial court did not foreclose the possibility of the jury obtaining transcripts in the future it did not violate MCR 6.414(J).

Finally, defendant argues that the trial court misscored three offense variables when calculating his recommended minimum sentence range under the sentencing guidelines. We disagree and in addition conclude that the trial court in fact assessed too few points for one of his offense variables.

We review the interpretation and application of the sentencing guideline de novo. People v. Smith, 488 Mich. 193, 198, 793 N.W.2d 666 (2010)

Ten points should be assessed for offense variable (OV) 3 if “[b]odily injury requiring medical treatment occurred to a victim[.]” MCL 777.33(1)(d). The victim did not suffer any acute physical trauma or injury as a result of the rape and most of the medical treatment she received was precautionary. However, “bodily injury” encompasses anything that the victim would, under the circumstances, perceive as some unwanted physically damaging consequence. See People v. Cathey, 261 Mich.App. 506, 513–517, 681 N.W.2d 661 (2004). In ...