People v. Uribe

• Decision Date: 13 August 2021
• Docket Number: COA: 338586,SC: 159194
• Citation: 962 N.W.2d 644 (Mem)
• Court: Michigan Supreme Court
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernesto Evaristo URIBE, Defendant-Appellant.

962 N.W.2d 644 (Mem)

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Ernesto Evaristo URIBE, Defendant-Appellant.

SC: 159194

COA: 338586

Supreme Court of Michigan.

August 13, 2021

Order

On April 8, 2021, the Court heard oral argument on the application for leave to appeal the January 3, 2019 judgment of the Court of Appeals. On order of the Court, the application is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and REMAND this case to the Eaton Circuit Court for a new trial.

The Court of Appeals erroneously concluded that the Eaton Circuit Court did not reversibly err by denying the defendant's motion for a mistrial.¹ In People v. Thorpe , 504 Mich. 230, 934 N.W.2d 693 (2019), we considered the propriety and scope of expert testimony in cases alleging child sexual abuse.² We held that "examining physicians cannot testify that a complainant has been sexually assaulted or has been diagnosed with sexual abuse without physical evidence that corroborates the complainant's account of sexual assault or abuse because such testimony vouches for the complainant's veracity and improperly interferes with the role of the jury." Id. at 235, 934 N.W.2d 693.

But that is exactly what Dr. Guertin, the complainant's examining physician, did on cross-examination, redirect, and recross-examination. After Dr. Guertin was asked whether sexual abuse was diagnosed and why his report did not diagnose the complainant as having been sexually abused, he shared his opinion that the complainant was a victim of sexual abuse. Defense counsel questioned him as follows:

Q. Now, Doctor, Dr. Guertin, I believe in prior times we've had hearings, and I believe you mentioned that sexual abuse can be a diagnosis.

A. Sexual abuse, physical abuse, child abuse is a diagnosis, a medical diagnosis.

Q. Which causes my next question, is that, in your evaluation, under your [a]ssessment portion of your report you never diagnose [the complainant] as being a victim of sexual abuse.

A. Well, I feel that the report, pretty much, speaks for itself in that regard. But if you're asking me do I consider to—her to be a victim, I do.

Q. Well, you didn't put that in your report, Doctor.

A. Well, it says:

"She gives a very clear history of being sexually molested between the ages of five and nine. She indicates that the person who did this was a man ..."

Et cetera.^[3]

On redirect, Dr. Guertin affirmatively responded that it was his diagnosis that the complainant had been sexually abused, although his report had not included that diagnosis. And again on recross-examination, Dr. Guertin continued to expand on this, stating: "I think it should be clear that [my report] supports that [the complainant] was sexually abused. And based on her history to me, I believe that she was."

This testimony was not supported by physical evidence. Instead, Dr. Guertin testified that none of the potential physical evidence he found was necessarily associated with sexual trauma. Without physical corroboration, testimony by an examining physician that sexual abuse occurred impermissibly vouches for the complainant's credibility and veracity. See id. at 235, 934 N.W.2d 693 ; see also People v. Smith , 425 Mich. 98, 109, 387 N.W.2d 814 (1986). Expert testimony asserting that a child was sexually abused without any corroborating physical evidence not only vouches for the complainant's credibility but invades the province of the jury to determine the issue of the case. Thorpe , 504 Mich. at 265, 934 N.W.2d 693. There was no physical evidence of sexual abuse or any corroborating eyewitnesses of such abuse. As a result, the trial became a credibility contest where the complainant's credibility was chiefly important to the jury's determination.

Instead of granting the defendant's motion for a mistrial, the trial court attempted to correct the error using a curative instruction; however, such an instruction was an insufficient remedial measure. This kind of error is "far more pernicious than a mere evidentiary error." Id. at 264, 934 N.W.2d 693. In cases with no corroborating evidence, which boil down to credibility contests, a jury may credit an expert's opinion with enormous weight. See People v Beckley , 434 Mich. 691, 722, 456 N.W.2d 391 (1990). Once the jury heard Dr. Guertin affirmatively and repeatedly testify that it was his opinion that the complainant was sexually abused, the curative instruction was insufficient to erase the prejudice suffered by the defendant. See, e.g., People v. Terry , 489 Mich. 907, 796 N.W.2d 469 (2011).

In sum, Dr. Guertin repeatedly testified to the ultimate issue of the case—whether the complainant was sexually abused—and this testimony lacked physical corroboration. Such testimony is impermissible because it vouches for the complainant's credibility and veracity and invades the province of the jury to determine this issue. The curative instruction employed by the trial court could not erase the prejudice the defendant suffered by way of this testimony. Thus, the trial court abused its discretion by denying the defendant's motion for a mistrial. See People v. Dennis , 464 Mich. 567, 572, 628 N.W.2d 502 (2001). Accordingly, we REVERSE the judgment of the Court of Appeals and REMAND this case to the Eaton Circuit Court for a new trial.

Zahra, J. (dissenting).

I dissent from this Court's order reversing the decision of the Court of Appeals and granting defendant a new trial. Although I agree that Dr. Stephen Guertin's testimony improperly vouched for the complainant's veracity and credibility, I disagree with the Court's conclusion that the trial court's curative "instruction was an insufficient remedial measure ... to erase the prejudice suffered by defendant." For the reasons stated below, I conclude that the trial court's prompt, well-articulated curative instruction was ultimately sufficient to cure the prejudice caused by Dr. Guertin's improper opinion testimony and that the trial court did not abuse its discretion by denying defendant's motion for a mistrial. Accordingly, I would deny leave.

This case stems from allegations that defendant sexually abused his ex-girlfriend's daughter (the complainant) when she was between the ages of five and nine years old. After the complainant disclosed the abuse, she was referred to Dr. Guertin—an expert in the areas of child sexual abuse, child abuse, and pediatric clinical care—for a medical examination. The complainant recounted the abuse to Dr. Guertin, who then memorialized her statements and his findings of the examination into a report. Before trial, the trial court made clear to both parties that "Dr. Guertin will not be able to testify, in any manner, that he ... believed [the complainant]" and that "Dr. Guertin also is not going to testify that he has diagnosed her as being the victim of a sexual assault or sexual abuse." Notwithstanding these directions, defense counsel asked Dr. Guertin on cross-examination why his report did not diagnose the complainant as a victim of sexual abuse. Dr. Guertin responded that his report "speaks for itself in that regard" and then volunteered his opinion that the complainant was a victim of sexual abuse. Dr. Guertin then repeated his opinion on recross-examination. After Dr. Guertin was excused, the trial court, outside the presence of the jury, raised the issue of Dr. Guertin's testimony improperly vouching for the veracity of the complainant. The parties agreed to address the issue the next day, at which time defendant moved for a mistrial on the basis that Dr. Guertin had rendered an improper opinion that the complainant had been sexually abused. The trial court denied the motion and instead issued the following curative instruction regarding Dr. Guertin's report and his opinion testimony:

Ladies and Gentlemen, yesterday, you heard the testimony of Dr. Guertin. Dr. Guertin's report is not evidence because it is not admis—not admissible, not because of the prosecutor or the defense attorney, but because this Court has ruled that it is not admissible under the Rules of Evidence. You are not to consider the report or any statements made by Dr. Guertin regarding the report. You are the trier of fact and shall not consider evidence that has been admitted during these proceedings.

Yesterday, you heard the testimony of Dr. Guertin. At the end of his testimony, you may believe that he rendered an opinion whether sexual assault occurred in this case. That testimony is not allowed and is stricken from the record.

An expert is prohibited from rendering an opinion that sexual assault occurred. You are not to consider any opinion that you think Dr. Guertin had regarding whether sexual assault occurred in this case. That is your decision and only your decision to make.

The jury heard testimony from nine other witnesses, including the complainant, over the course of the four-day jury trial. Defendant was ultimately convicted of four counts of first-degree criminal sexual conduct.⁴ In a split decision, the Court of Appeals affirmed, concluding, in relevant part, that the trial court did not abuse its discretion by denying defendant's motion for a mistrial.

Dr. Guertin's opinion that the complainant was a victim of sexual abuse improperly vouched for the veracity and credibility of the complainant resulting in prejudice to defendant. But this conclusion standing alone is legally insufficient to grant defendant a new trial. The dispositive inquiry is whether the trial court's curative instruction cured the prejudice caused by that improper testimony such that the court did not abuse its discretion by denying defendant's motion for a mistrial. A preserved, nonconstitutional error such as this is reviewed for harmless error under MCL 769.26, which provides:

No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the

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