People v. Peterson

• Decision Date: 03 October 1995
• Docket Number: Nos. 12,13,Nos. 98941,99981,s. 98941,s. 12
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lewis PETERSON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Norman SMITH, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 857

537 N.W.2d 857

450 Mich. 349

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lewis PETERSON, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Norman SMITH, Defendant-Appellant.

Nos. 98941, 99981.

Calendar Nos. 12, 13.

Supreme Court of Michigan.

Argued April 5, 1995.

Decided Aug. 22, 1995.

Rehearing Denied Oct. 3, 1995.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Joseph P. Kwiatkowski, Prosecuting Attorney, J. Ronald Kaplansky, Assistant Attorney General, Lansing, for the people in Peterson.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Charles H. Koop, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, Lansing, for the people in Smith.

Jeanice Dagher-Margosian, Ann Arbor, for Peterson.

Earl R. Spuhler, Fenton, for Smith.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Donald Martin and John D. O'Hair, Prosecuting Attorneys, and Timothy A. Baughman, Lansing, Chief, Research, Training, and Appeals, for Amicus Curiae Prosecuting Attorneys Association of Michigan.

MALLETT, Justice.

In these consolidated cases, we are asked to revisit our decision in People v. Beckley, 434 Mich. 691, 456 N.W.2d 391 (1990), and determine the proper scope of expert testimony in childhood sexual abuse cases. The question that arises in such cases is how a trial court must limit the testimony of experts while crafting a fair and equitable solution to the credibility contests that inevitably arise. As a threshold matter, we reaffirm our holding in Beckley that (1) an expert may not testify that the sexual abuse occurred, (2) an expert may not vouch for the veracity of a victim, and (3) an expert may not testify whether the defendant is guilty. However, we clarify our decision in Beckley and now hold that (1) an expert may testify in the prosecution's case in chief regarding typical and relevant symptoms of child sexual abuse for the sole purpose of explaining a victim's specific behavior that might be incorrectly construed by the jury as inconsistent with that of an actual abuse victim, and (2) an expert may testify with regard to the consistencies between the behavior of the particular victim and other victims of child sexual abuse to rebut an attack on the victim's credibility.

Therefore, for the reasons set forth below, in Peterson, we find that the trial court erred in allowing certain aspects of the expert testimony to be presented to the jury. However, in light of the overwhelming evidence against Peterson, we find that any error was harmless. In Smith, we find no error and therefore affirm the decision of the Court of Appeals in both cases.

I People v. Peterson

The victim in this case was the defendant's daughter. She lived with the defendant and her mother and siblings in rural Cheboygan County. The victim testified about incidents of anal intercourse, cunnilingus, and fellatio perpetrated on her by the defendant in 1986 and 1987. She said the incidents took place "about five or six times." The jury found the defendant guilty of first-degree criminal sexual conduct. ¹

The victim was the first prosecution witness. She was eleven years old at the time. She drew on a chalkboard and described various incidents of how the defendant performed sexual acts on her and directed her to perform fellatio on him.

The victim also testified that at some point, she reported these incidents to her mother, who reportedly did not believe her. She testified that she eventually told her foster parent, Thomas O'Melia, about a month after she began living with his family.

The defendant testified on his own behalf and denied ever sexually abusing the victim. The picture he painted of his family life was a very unstable one. The defendant acknowledged having various fights with his wife that resulted in him leaving the area for weeks or months at a time. The defendant was arrested after someone made an anonymous call to the police indicating that there was a Cheboygan County warrant for the defendant's arrest for CSC I.

During the trial, five prosecution expert witnesses testified. For present purposes, the testimony of the last two witnesses is less important than that of the first three. The latter two were Drs. David Hickok and Anselma Ramilo. Dr. Ramilo physically examined the complainant about a year and a half after the alleged criminal sexual conduct. He found that she had a large vaginal opening for a child of her age and that, although there were no scars or gaping of her anal canal, there was some irregularity of the fold immediately surrounding her anal opening. Dr. Hickok opined that a tongue, finger, or penis could have caused findings consistent with the dimension of the child's genitals. He noted the obliteration of the hymen.

Dr. Ramilo testified that she examined the victim on the basis of a Department of Social Services referral that was made pursuant to allegations of sexual abuse. She did not find any physical evidence of sexual abuse, but said she strongly believed the victim had been sexually abused on the basis of the contents of the medical history in which she described in detail the anal intercourse and that the person "put his penis into her mouth and white junk came out."

The prosecution's other three experts were Kathy Jo Gillan, a social worker, Margaret Green, a social worker, and Thomas O'Melia, a clinical psychologist who was also the victim's foster parent. The experts' testimony was presented during the prosecution's case in chief.

Gillan testified regarding the profile of a sexual abuse victim. She also described the existence of a prototype for sexual assault perpetrators, and said that such individuals often display a symptomatology of denial. She was permitted to testify about several studies that indicate that children lie about sexual abuse at a rate of about two percent. Gillan described how she worked directly with the Peterson family to assess the extent of their dysfunction and to educate them about child abuse. Those contacts occurred between June and December 1987. Over defense objection, Gillan was permitted to testify that the victim showed behavior manifestations that were symptomatic of sexual abuse.

Green testified that she had provided psychotherapy for the victim. She said she had treated about a hundred children who were sexually abused, and that one of the ways that she verified their stories was to look for reenactments in play therapy, such as drawings, and that the victim in this case engaged in this activity. She testified that she came into contact with the victim after the victim was identified as a sexual abuse victim. The trial judge overruled the defendant's objection to Green's testimony regarding whether the victim's behavior was consistent with children who have been sexually abused.

O'Melia was called by the prosecution as an expert witness on child sexual abuse. He stated that the victim lived with him in foster care, along with her younger brother, for about seven months ending in July, 1988. He testified that she made disclosures to him about sexual abuse on four occasions, the first in May, 1988. O'Melia stated that there were prototypes for both sexual abuse victims and perpetrators. He stated that the symptomatology includes most of the same factors mentioned by the two previous experts. Over defense objection, O'Melia was permitted to testify that the victim's symptoms were consistent with those of a sexual abuse victim.

Again, over defense objection, O'Melia was also permitted to testify that, of the cases and studies he was familiar with, there is about an eighty-five percent rate of veracity among child abuse victims. He testified that of the last twenty cases he had worked on, "the sexual abuse has also been confirmed by the perpetrator" in about eighty percent of the cases, but he concluded his testimony by stating that perpetrators generally do not admit sexually abusive conduct, primarily because of fear of prosecution.

After the testimony of O'Melia, defense counsel requested that he be allowed to bring in evidence of sexual touchings of the victim. The defense's argument was that, in light of all the evidence of sexual abuse behaviors and symptomatology put forth by the prosecution, defendant was entitled to show that there may be other reasons for her to experience that behaviors similar to other abuse victims. Although the trial judge initially granted that motion, when defendant later attempted to call the victim to examine her concerning those incidents, he denied the request.

In her closing argument, the assistant prosecutor referred to the case as a "classic one on one credibility test." She emphasized that the victim exhibited the symptoms delineated by all expert witnesses as being indicative of sexual molestation. She argued that a child of this age could not have made up a story in such graphic detail. On rebuttal closing, the assistant prosecutor emphasized that there is a low rate of lying among children regarding allegations of sexual abuse. Defense objection was overruled. The defendant was subsequently convicted and sentenced to a twenty- to thirty-year term.

Defendant appealed to the Court of Appeals. In a two to one unpublished decision, the panel majority remanded the case for a determination whether the expert testimony "was admitted consistent with the requirements of Beckley, supra, and if not, whether any error was harmless." Dissenting Judge Neff thought a reversal and new trial were in order because the prosecution shifted the burden of proof to the defendant in dwelling impermissibly on the assertion that child sexual abusers deny their guilt. Issued February 11, 1993 (Docket No. 123450), slip op. at 2.

On remand, the trial judge concluded that Beckley was not violated.

The case was remanded to the Court of Appeals, and, in its second unpublished...