People v. Swain.

• Decision Date: 08 June 2010
• Docket Number: Docket No. 293350.
• Citation: 794 N.W.2d 92,288 Mich.App. 609
• Parties: PEOPLEv.SWAIN.
• Court: Court of Appeal of Michigan — District of US

288 Mich.App. 609

794 N.W.2d 92

PEOPLE

v.SWAIN.

Docket No. 293350.

Court of Appeals of Michigan.

Submitted April 14, 2010, at Lansing.Decided June 8, 2010 at 9:15 am.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Susan K. Mladenoff, Prosecuting Attorney, and Jennifer Kay Clark, Assistant Prosecuting Attorney, for the people.Michigan Innocence Clinic (by Bridget McCormack and David A. Moran, Detroit) for defendant.Before: SAAD, P.J., and HOEKSTRA and MURRAY, JJ.HOEKSTRA, J.

This matter is before us on remand from the Michigan Supreme Court for consideration, as on leave granted. People v. Swain, 485 Mich. 997, 775 N.W.2d 147 (2009). On appeal, the prosecution challenges the July 21, 2009, order granting defendant's successive motion for relief from judgment of her four convictions of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(a). In its remand order, the Supreme Court specified that we “should address among the issues presented: (1) whether [defendant's] successive motion for relief from judgment in this case was barred by MCR 6.502(G), and (2) if it was, whether defendant's constitutional rights are implicated given that the trial court found a significant possibility that defendant is innocent based on evidence defendant's attorney failed to present at trial.” Swain, 485 Mich. 997, 775 N.W.2d 147. Because we conclude that defendant's successive motion was barred by MCR 6.502(G) and that, despite the motion's being barred, defendant's constitutional rights are not implicated, we reverse.

I. FACTS AND PROCEDURAL HISTORY

Following a jury trial in August 2002 defendant was convicted of four counts of CSC I for engaging in fellatio with the victim, her adopted son. This Court affirmed defendant's convictions, and the trial court denied two motions for a new trial and a motion for relief from judgment. In 2009, represented by new appellate counsel, defendant filed a second motion for relief from judgment, which was based, in part, on two “newly discovered” witnesses. The trial court, after hearing the testimony of the new witnesses, concluded that there was a “significant possibility” that defendant was innocent of the CSC I crimes, and it granted the motion.

A. PERTINENT TRIAL TESTIMONY

The victim testified that when he was “[f]ive or six” years old, while in the “young five[ ]s” class, he lived in a trailer on Nine Mile Road with defendant and his younger brother. Every day before school while defendant helped the victim get dressed, defendant would place her mouth on his penis. According to the victim, his brother was not in the trailer when the sexual abuse occurred, because defendant had sent the brother outside to wait for the school bus. The brother would knock on the trailer door when he saw the school bus coming, and defendant would quickly finish dressing the victim. The brother testified that he and the victim usually watched for the school bus together. He remembered “[l]ike, three or four times” when he waited for the bus by himself. Those times, the brother yelled for the victim when he saw the school bus coming.

Sometime in 1995 or 1996, defendant, the victim, and the brother moved into defendant's parents' house on Oak Grove Road. The three of them slept in one bedroom. The brother slept in one bed, while defendant and the victim shared a second, larger bed. According to the victim, when he was asleep and defendant, who slept naked, was in bed with him, he would feel “[s]omething wet,” like spit, on his penis. This happened “[p]retty much all week.”

Both the victim and the brother testified that defendant treated the two boys differently. Defendant treated the victim like a “boyfriend” and the brother like a “slave.” She gave the victim more money than the brother, and she made the brother do most of the household chores. She kissed the victim on the lips, but kissed the brother on the cheek or forehead. The brother testified that he never saw defendant do anything bad to the victim.

The victim first disclosed the sexual abuse in June 2001 when his stepmother questioned him about inappropriate contact with a young cousin. The contact involved the victim's tongue, and when the victim's stepmother asked him where he got the idea, the victim responded that defendant had done it to him. The victim admitted that he was afraid of getting in trouble when he was questioned by his stepmother about his contact with the cousin. He explained that he did not tell anyone about the abuse until June 2001 because he did not want defendant to get in trouble. The victim also admitted that he subsequently told relatives on two occasions that defendant had not abused him.

Defendant testified that she did not sexually abuse the victim. She denied that she ever sent the brother outside to wait for the school bus by himself. According to defendant, the victim and the brother waited for the bus inside, and the two boys went outside together when they saw the bus at “Little Willy's” house, two trailers down. Defendant testified that the “neighbor and the bus stop—driver could verify it.”

B. PRIOR POSTCONVICTION MOTIONS

In March 2003, defendant, represented by her prior appellate counsel, Patrick O'Connell, moved for a new trial. The victim had recanted his trial testimony, and defendant asserted that the recantation constituted newly discovered evidence. Defendant also claimed that she was denied effective assistance of trial counsel. She argued that her trial counsel was ineffective for failing to list and call Dr. Stephen Miller as an expert regarding the sexual abuse of children to rebut the testimony of the prosecution's expert and for failing to object to numerous instances when inadmissible and prejudicial evidence was presented. The trial court denied the motion for a new trial based on newly discovered evidence and, after holding a Ginther¹ hearing, denied the motion for a new trial based on ineffective assistance of counsel.

This Court affirmed defendant's convictions. People v. Swain, unpublished opinion per curiam of the Court of Appeals, issued February 24, 2004 (Docket No. 244804, 2004 WL 345450). The Court rejected defendant's arguments that trial counsel was ineffective for failing to respond to the prosecution's demand for a witness list until seven days before trial; failing to call Dr. Miller as an expert regarding the sexual abuse of children; failing to object to, and even opening the door for, irrelevant and prejudicial testimony; questioning the prosecution's expert on the sexual abuse of children about his opinion regarding whether the victim was abused; failing to object to the expert's testimony that the victim's behavior was consistent with that of sexually abused children; and failing to introduce a videotape of the victim denying the abuse allegations. The Court also rejected defendant's arguments that the testimony of the prosecution's expert exceeded the parameters set forth by the Supreme Court and that the trial court abused its discretion by denying the motion for a new trial based on newly discovered evidence.²

In September 2004, defendant, still represented by O'Connell, moved for relief from judgment. The motion was based on several pieces of newly discovered evidence: (1) Deborah Charles, a prison inmate who testified at the trial that defendant confessed to her, had a history of rummaging through other inmates' files to gain knowledge of their cases and had been investigated by the Department of Corrections, (2) the victim and the brother had viewed pornographic photographs and videos, and this was how the victim learned about oral sex, (3) Julia Johnson, the victim's special education teacher from the second and third grades, could have testified that defendant treated the victim differently because of defendant's inadequate methods of disciplining him, and (4) two letters by the victim and the brother that were introduced into evidence at trial were actually written by the boys' stepmother. Defendant also argued that this newly discovered evidence established that her trial counsel was ineffective because counsel had failed to properly investigate and interview potential witnesses. The trial court denied the motion, holding that even if the “foundational elements” of granting a new trial on the basis of newly discovered evidence were met, the newly discovered evidence, if admitted at a new trial, would not cause a different result. Defendant did not appeal the trial court's order.

Defendant moved again for a new trial in February 2005. O'Connell continued to represent defendant. Defendant asserted that the motion presented the “profound question” of whether she would be condemned to prison for the rest of her life when the victim had recanted and admitted that he perjured himself at trial, she and the victim had taken polygraph examinations and each were deemed truthful when they denied the sexual abuse, no physical evidence or testimony corroborated the victim's trial testimony, and she had always maintained her innocence. The trial court denied the motion. It concluded that the motion presented no new evidence that would be admissible at trial and likely to cause a different result. It noted that the victim's credibility had been “fully before the jury,” explaining that the jury heard evidence that the victim was hesitant to testify and that he had, on at least one occasion, stated that the allegations against defendant were not true. This Court denied for lack of jurisdiction defendant's delayed application for leave to appeal the trial court's order. People v. Swain, unpublished order of the Court of Appeals, entered May 20, 2005 (Docket No. 261667).

C. The PRESENT POSTCONVICTION MOTION

In March 2009, now represented by her present counsel from the Michigan Innocence Clinic, defendant moved again for relief from her judgment of conviction and sentence. The motion was based on newly discovered evidence—the...