People v. Stricklin

• Decision Date: 15 October 1987
• Docket Number: Docket Nos. 82501,85165
• Citation: People v. Stricklin, 413 N.W.2d 457, 162 Mich.App. 623 (Mich. App. 1987)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Effie Orilla STRICKLIN and Richard David Stricklin, Sr., Defendants-Appellants.
• Court: Court of Appeal of Michigan

Page 457

413 N.W.2d 457

162 Mich.App. 623

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Effie Orilla STRICKLIN and Richard David Stricklin, Sr. Defendants-Appellants.

Docket Nos. 82501, 85165.

Court of Appeals of Michigan.

Submitted Oct. 7, 1986.

Decided Sept. 8, 1987.

Released for Publication Oct. 15, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Walter Martin, Jr., Sp. Prosecutor, for the People.

James Edward Jacobs, Frankenmuth, for Richard Stricklin.

Sammie L. Shank, Brighton, for Effie Stricklin.

Before MAHER, P.J., and HOLBROOK and STEMPIEN, ^* JJ.

STEMPIEN, Judge.

In July, 1984, a jury found Effie Orilla Stricklin guilty of three counts of criminal sexual conduct in the first degree, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), and Richard David Stricklin, Sr., guilty of two counts of criminal sexual conduct in the first degree and one count of attempted criminal sexual conduct in the first degree, M.C.L. Sec. 750.92; M.S.A. Sec. 28.287. Effie Stricklin was sentenced to three concurrent sentences of ten to twenty years imprisonment. Richard Stricklin was sentenced to two concurrent sentences of ten to twenty years imprisonment on the first-degree CSC convictions and three to five years imprisonment on the attempted first-degree CSC convictions. Defendants appeal as of right from their convictions. The defendants were tried jointly, but filed separate appeals. We consolidated their appeals for purposes of oral argument and submission.

Defendants were convicted for engaging in various sexual acts with two of their five children, a male child, age eight, and a female child, age nine. The acts were alleged to have occurred between May and July of 1983. Effie Stricklin is the natural mother of the children; Richard Stricklin is their stepfather.

I

The trial court permitted three witnesses, a babysitter, Terry Kutsch, a Department of Social Services caseworker, Timothy Shaner, and a police officer, Detective Ray Kauer, to testify regarding conversations each had with the children wherein the children described engaging in sexual acts with defendants. Richard Stricklin objected to the hearsay statements of Kutsch, Effie Stricklin objected to the hearsay statements of Shaner, and both defendants objected to the hearsay statements of Kauer. The trial judge recognized that the "tender years" exception was inapplicable. Nonetheless, he overruled the objections, stating that it was his practice to allow police officers and other investigators to recite for the jury what witnesses had told them at earlier stages of the investigation in order to allow the jury to fully evaluate the credibility of the witnesses. Both defendants claim that the trial court's ruling resulted in error.

Prior consistent statements of a witness are generally not admissible as substantive evidence. Brown v. Pointer, 390 Mich. 346, 351, 212 N.W.2d 201 (1973). There are three exceptions to this rule: (1) where a statement is used to rebut a charge of influence, (2) where there is a question whether a prior inconsistent statement was made, and (3) where a witness has been impeached with a charge of recent fabrication. People v. Davis, 106 Mich.App. 351, 355, 308 N.W.2d 206 (1981). We find that none of the exceptions apply in this case.

The first exception was explained in People v. Gardineer, 2 Mich.App. 337, 340, 139 N.W.2d 890 (1966):

" 'A consistent statement, at a time prior to the existence of a fact said to indicate bias, interest, or corruption, will effectively explain away the force of the impeaching evidence; because it is thus made to appear that the statement in the form now uttered was independent of the discrediting influence. The former statements are therefore admissible.' 4 Wigmore on Evidence (3d ed), Sec. 1128, p 203." (Emphasis in the original.)

There were numerous attempts made during cross-examination of the children to impeach the testimony with charges of influence. Both children were questioned concerning possible influence by Terry Kutsch, their baby-sitter. The male child was also challenged about possible influence from Shaner and Kauer. Finally, the female child was questioned concerning possible influence from Wally Richards, who prior to trial had claimed that he was her father and had instituted custody proceedings. However, the consistent statements admitted at trial were not made prior to the existence of the alleged influences on the children.

The second exception only applies where a witness is impeached with evidence of a prior inconsistent statement and the witness denies making the prior statement. People v. Hallaway, 389 Mich. 265, 277, 205 N.W.2d 451 (1973). Both children were also impeached with certain inconsistencies between their testimony at the preliminary examination and their trial testimony. The inconsistencies, however, involved areas other than their statements regarding sexual acts with the defendants.

The third exception has been explained as follows:

"The charge of recent contrivance is usually made, not so much by affirmative evidence, as by negative evidence that the witness did not speak of the matter before, at a time when it would have been natural to speak; his silence then is urged as inconsistent with his utterances now, i.e., as a self-contradiction (Sec. 1042 supra ). The effect of the evidence of consistent statements is that the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story...." 4 Wigmore, Evidence (Chadbourn rev), Sec. 1129, pp 270-272. (Emphasis in original.)

This exception is inapplicable as there was no claim that the children had opportunities to speak previously and failed to do so.

We also do not find that the error in admitting the corroborating testimony was harmless.

The male child testified to having engaged in a variety of sexual acts with his mother and his sister. He denied that his sister had taught him the sexual acts. The female child testified to having engaged in a variety of sexual acts with her stepfather. She admitted that she had been sexually molested by her grandmother's boyfriend. It was later revealed that criminal charges had been brought against the boyfriend in 1978. However, she too denied having taught her brother any sexual acts. Defendants claimed that the children had been sexually promiscuous following the female child's sexual molestation and had been caught engaging in sexual activities with each other and neighbor children. Both defendants further claimed that the children were sexually aggressive towards themselves and other adults. Given the conflicting testimony, the credibility of the witnesses was crucial to the jury's verdict. Under such circumstances, we find that it was error requiring reversal to bolster the testimony of the children by allowing three witnesses to corroborate their testimony. See People v. Gee, 406 Mich. 279, 283, 278 N.W.2d 304 (1979). Defendants' convictions are reversed and the case remanded for a new trial.

Even though disposition of this issue requires reversal of defendants' convictions, defendants' remaining claims of error will be addressed since they may arise on retrial.

II

Defendants also claim that the trial court erred in denying their motion for separate trials. We agree.

The decision whether codefendants will be tried separately or jointly is in the discretion of the trial judge. M.C.L Sec. 768.5; M.S.A. Sec. 28.1028, People v. Missouri, 100 Mich.App. 310, 348, 299 N.W.2d 346 (1980). Generally, codefendants facing separate charges arising out of separate transactions should be tried in separate trials. Cf. People v. Billingslea, 70 Mich.App. 371, 246 N.W.2d 4 (1976), lv. den. 398 Mich. 808 (1976). However, joinder of distinct criminal charges is permitted against two defendants where (1) there is a significant overlapping of issues and evidence, (2) the charges constitute a series of events, and (3) there is a substantial interconnection between the parties defendant, the trial proofs, and the factual and legal bases of the crimes charged. People v. Ritchie, 85 Mich.App. 463, 271 N.W.2d 276 (1978); People v. Slate, 73 Mich.App. 126, 132, 250 N.W.2d 572 (1977). Moreover, the improper joining of defendants for trial for separate offenses is not per se error requiring reversal. There must be an affirmative showing of prejudice to the substantial rights of the accused. Missouri, 100 Mich.App. 348-349, 299 N.W.2d 346.

There were no allegations of joint criminal activity in this case. The allegations against Effie Stricklin involve sexual activities with her son. The allegations against Richard Stricklin involve sexual activity with his stepdaughter. The factual and legal issues were similar. However, the testimony of one victim bolstered the testimony of the other. While the trial court instructed the jury that each defendant was entitled to separate consideration of his or her guilt, defendants were prejudiced by the joint trial.

III

Following their convictions, defendants filed separate motions for new trials. Defendants allege that the children's testimony was induced or influenced by the inappropriate counselling they received during their weekly visits to counsellors in the year prior to trial. In support of Richard Stricklin's motion for a new trial, a licensed clinical psychologist testified that the children's memories were altered as a result of their counselling. The trial court denied defendants' motions, finding that the evidence was not newly discovered and, in any event, would not have affected the jury's verdict because the children's testimony was corroborated by other witnesses.

The grant or denial of a motion for a new trial lies within the sound discretion of the trial court. To establish error, a clear abuse of discretion must be shown. People v. Newhouse, 104...