People v. Musser

• Decision Date: 12 July 2013
• Docket Number: Docket No. 145237.,Calendar No. 5.
• Citation: 835 N.W.2d 319,494 Mich. 337
• Parties: PEOPLE v. MUSSER.
• Court: Michigan Supreme Court

494 Mich. 337

835 N.W.2d 319

PEOPLE

v.MUSSER.

Docket No. 145237.

Calendar No. 5.

Supreme Court of Michigan.

Argued March 6, 2013.

Decided July 12, 2013.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.

Dickinson Wright PLLC, Grand Rapids, (by Dennis C. Kolenda) and Richard A. Glaser, PLLC, Grand Rapids (by Richard A. Glaser), for defendant.

David Gilbert and Heather Garretson for the State Bar of Michigan, Criminal Law Section.

MICHAEL F. CAVANAGH, J.

Defendant was convicted of two counts of second-degree criminal sexual conduct, MCL 750.520c(1)(a), and assault and battery, MCL 750.81, ¹ arising out of accusations made by an eleven-year-old girl. The Court of Appeals affirmed defendant's convictions. We granted leave to appeal to consider whether out-of-court statements made by police investigators during an interrogation of a defendant that vouch for the credibility of another must be redacted from a recording of the interview before it is played for the jury.

At this juncture, we find it unnecessary to adopt a bright-line rule requiring the automatic redaction of such statements. Instead, applying our rules of evidence, we hold that if such out-of-court statements are not offered for the truth of the matter asserted, the statements may be admissible to the extent that the proponent of the evidence establishes that they are relevant for their proffered purpose as defined by MRE 401. Further, even if relevant, the statements may be excluded under MRE 403. Finally, upon request, the statements must be restricted to their proper scope and the jury instructed accordingly. MRE 105.

Under the facts of this case, we hold that the trial court abused its discretion by allowing all the detectives' statements commenting on credibility to be presented to the jury on the basis that the statements provided “context” for defendant's statements, when most of the detectives' statements were irrelevant for that purpose. Because the error in this case undermined the reliability of the verdict, we reverse the judgment of the Court of Appeals, vacate defendant's convictions, and remand the case to the trial court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

The convictions in this case relate to events occurring in the Spring of 2009 while the complainant and her family were at defendant's home.

The complainant testified that she, her mother, father, and brother went to defendant's home to watch a hockey game with defendant and his family. According to the complainant, she became tired and slouched back on one of defendant's couches, attempting to fall asleep. One of defendant's children was asleep in the same room on another couch, while the adults and another child were downstairs in defendant's basement. Two other children were asleep somewhere else in defendant's home. The complainant testified that while she was feigning sleeping, defendant put his hands on her inner thighs and later touched her breasts while coveringher with a blanket. The complainant also stated that defendant put his thumb under the waistband of her pants, which was near her underwear line. According to the complainant, after defendant left, she went downstairs and asked her parents if they could leave. The complainant's mother, Jennifer, testified that everything seemed normal when they left and, although there was testimony that the two families continued to see each other after the incident, Jennifer testified that the complainant was not interested in going to defendant's home. The complainant did not tell anyone about the incident for nearly a year.

A friend of the complainant testified that in late April 2010, she and the complainant were talking about secrets when the complainant stated that someone had touched her while at a gathering, but she did not indicate where she had been touched. Although the friend told the complainant that she needed to tell someone, the complainant did not do so until approximately two weeks later after getting into an argument with her mother.

Jennifer testified that in May 2010, she had been teasing the complainant over her homework when the complainant ran out of the room, upset. Jennifer followed the complainant to her bedroom to find out what was wrong. When the complainant began to cry and indicated that she did not wish to speak, Jennifer asked her a series of questions, including whether she was fighting with a friend or whether someone in the neighborhood had hurt her. When the complainant answered negatively to Jennifer's questions, Jennifer asked the complainant if she was having a problem with a grownup, to which the complainant nodded “yes.” Jennifer eventually asked the complainant if the problem was with defendant, who, according to the complainant'sfather, was a good friend with whom his family had spent countless hours. In response, the complainant shook her head “yes” and started to cry, but she would not reveal any of the details. Soon thereafter, the complainant's parents took the complainant to the Kent County Sheriff's Department (KCSD), which referred them to the Children's Assessment Center of Grand Rapids—a center that assesses children following reports of suspected child abuse. On May 11, 2010, the complainant was interviewed by KCSD Detective Edward Kolakowski. During that interview, the complainant revealed the full extent of the incident for the first time.

That same day, Detective Kolakowski and Detective William Heffron interviewed defendant. Defendant was informed by Detective Kolakowski when he arrived at the Sheriff's Department that the complainant had accused him of inappropriate touching while their families were watching a game a year earlier at defendant's home. Throughout the interview, defendant denied any improper contact with the complainant, but remembered coming upstairs to get a drink while the complainant and her family were watching a hockey game. Defendant stated that he saw the complainant asleep, hugged her, and gave her a kiss on her cheek or forehead. Defendant acknowledged that he had been drinking that night, that the complainant seemed vulnerable because she appeared to be asleep, and that his hands accidentally touched the skin of the complainant's back when he put his arms around her. Defendant, however, explained that none of his actions were sexual, and he did not touch the complainant inappropriately or in the places that she claimed that she was touched. Defendant stated that he and the complainant had always been affectionate, and the complainant had often greeted defendant with a hug and a kiss when they saw each other.

During the interview, Detective Kolakowski and Detective Heffron made statements regarding the complainant and child-victims generally, including the following:

DETECTIVE KOLAKOWSKI: ... Kids have a hard time lying about this stuff because they don't even want to talk about it, let alone they don't even want to talk about it to a mere fucking stranger.

DETECTIVE HEFFRON: Especially a 12 year old girl.

DETECTIVE KOLAKOWSKI: And she tells me what happened? And she tells our counselors what happened? And these are—and—and with these interviews, too, it's not just a interview of, “tell me what happened,” ... they're ... done with ... Michigan adopted, basically, a forensic interview protocol that there's a special way that kids have to be interviewed. They're not interviewed like I can interview you, all right? ... [Y]ou know what? If you can't do it for yourself, do it for your own little girl .... Make sure she knows that men have to answer to the truth. And make sure that [the complainant] knows that, you know what? [Y]eah, someone fucked up.... She's having a devastating time. She loves you. She cares about you. She cares about your family. You want to know what her concern was? You want to know why she waited to tell? Do you want me to tell you?

[DEFENDANT]: Sure.

DETECTIVE KOLAKOWSKI: I'll tell you....

* * *

DETECTIVE HEFFRON: You know there's a big difference when we interview 4, 5, 6 year olds and when they get up around 10, 11, 12, 13. There's a big difference. Four, five, six year old kids, they're easy to manipulate by parents, aunts, uncles—they're easy to manipulate. They're terrible actors. They're terrible. When kids start getting a little bit older they're better actors. They're—they're older, they're seeing more. She's 12. The big issue here is if she wanted to get you in trouble—she's smart enough, and she's only—and she's 12—if, for whatever reason, she wanted to get you in trouble she would—she would—

[DEFENDANT]: That she would say that I fucked her?

DETECTIVE HEFFRON: Absolutely.

[DEFENDANT]: Yeah.

DETECTIVE HEFFRON: Absolutely. “He put his hand down my pants, his finger was in my vagina” all of this “his mouth was on my breast”—that's what they would do if they're gonna lie to get somebody in trouble, ... an older kid like that. Little kids, they never've [sic] been exposed to that stuff. They don't know. But it's pretty credible when she tells us, “Hey, he touched ... me here” and “he put his hand on my breasts” and ... “his hand started going down my pants but he couldn't.” That's pretty credible; that's pretty detailed. Again, if there's no reason for her to make this crap up, why would she say it? This is the last thing ... she wanted to do was talk to a total stranger about something like this. Why? Why is she gonna put herself through that if it didn't happen? We can't find anything. Kids don't lie about this stuff. They lie about their homework being done; they lie about, “yep, I did the dishes” when they didn't ... [T]hey lie about “yeah, we were in bed by 10:00.” They don't lie about this stuff if maybe she's in trouble for something. This is not the kind of stuff that kids make up to try to get out of some trouble that they're...