People v. White, Docket No. 75650
| Decision Date | 12 July 1985 |
| Docket Number | Docket No. 75650 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger WHITE, Defendant-Appellant. 142 Mich.App. 581, 370 N.W.2d 405 |
| Court | Court of Appeal of Michigan — District of US |
[142 MICHAPP 582] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Nathan T. Fairchild, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for People.
Thomas K. Ellis, Napoleon, for defendant-appellant on appeal.
Before MAHER, P.J., and R.B. BURNS and ROBINSON, * JJ.
Defendant was convicted, after a jury trial, of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), and was sentenced to serve 20 to 40 years imprisonment, with credit for time served. Defendant appeals as of right.
[142 MICHAPP 583] On appeal, defendant argues that he was denied his constitutional right to the effective assistance of counsel, alleging numerous errors on the part of counsel. He also argues that the trial court denied him due process by limiting his trial counsel's closing argument to twenty minutes. Of these claims, only one requires reversal.
Defendant was accused of sexually assaulting his girlfriend's five-year old daughter, Marsha. At trial, it was established that defendant lived with Marsha and Marsha's mother, and that all three slept in the same bedroom. Marsha testified that sometimes (she was unsure how often), during the night, defendant would put his "string" in her mouth and that "something came out of it" which she spat out. She also stated that defendant touched her "in [her] crotch" by putting his finger inside her. Marsha then testified that she stayed with a woman named Pat Sanborn for one day and that she was returned to her mother by a woman named Kathy Johns. 1 On the way home, Marsha told Johns about defendant's putting his finger inside her. Marsha also stated that, on another occasion when she was staying with Sanborn, a man named John Ford came and talked with her about defendant. On that occasion, Marsha was given dolls to play with. She took their clothes off and played house with them. She also demonstrated, using the dolls, what defendant had done to her. During her testimony, Marsha again used the dolls to show the jury what defendant had done. She also pointed to the "string" on the anatomically-correct male doll. Marsha then testified that she visited another man named Roger Henricks. During this visit, she drew a picture of her mother, herself, and defendant. The drawing [142 MICHAPP 584] included the detail of a "string" on defendant. This drawing was shown to the jury. Finally, Marsha stated that she no longer liked defendant and that she was frightened of him.
During cross-examination, Marsha stated that she could not remember if she had ever told Kathy Johns, Mr. Ford, or Roger Henricks anything different from her current testimony. She had talked to them when she was at Pat Sanborn's house. Marsha testified that she did not know whether she had ever told her mother about what defendant had done before she told Johns, Ford, or Henricks. She had never told her mother that she was frightened of defendant and, in fact, she had not been frightened of him when she lived with him. She had formerly liked defendant but did not anymore.
Patricia Sanborn testified that she had briefly had Marsha stay in her home as a foster placement (unrelated to the proceedings involved in this case). Marsha had smelled when she arrived and continued to smell after both she and her clothes had been washed. In Mrs. Sanborn's opinion, the odor resembled that of a vaginal discharge. Sanborn also noticed redness in Marsha's vaginal area. She therefore informed Kathy Johns of the possibility of sexual abuse when Johns appeared to take Marsha home.
Kathy Johns, a Protective Services worker, testified that, as a result of Sanborn's suggestion, she asked Marsha if her mother or father (referring to defendant) had ever hurt her. Marsha told her that defendant had hurt her. Johns then asked if he hurt Marsha on her legs and Marsha replied, "No, he hurts me here" and pointed to her crotch area. She also answered another question by telling Johns that defendant had used his finger. [142 MICHAPP 585] Marsha did not mention anything about defendant's placing his penis in her mouth.
Roger Henricks, Supervisor of Protective Services, testified that he interviewed Marsha at the Sanborn house. During this interview, Marsha drew a picture of her family at Henricks' suggestion. On her own, Marsha added genital details to the drawing of defendant. She identified the details first as "where he went to the bathroom" and then made up the name "string". Henricks also gave Marsha anatomically-correct dolls with which to play. Using the dolls, Marsha demonstrated what defendant had done to her.
Henricks also testified that he arranged a meeting with Marsha's mother so that Marsha could tell her mother that defendant had sexually molested her. The meeting was necessary because Marsha's mother did not believe that Marsha had actually made the accusation and wanted to hear it in Marsha's own words. At the meeting, Marsha had difficulty telling her mother but Henricks felt that the meeting was successful because Marsha told her mother "essentially" what had occurred between herself and defendant.
On cross-examination, Henricks testified that Marsha was examined by a doctor who found no vaginal discharge, that the hymen was intact, but that there was inflammation in the genital area. The exam showed a "normal female". He also stated that Marsha had mentioned having a boyfriend named Timmy and that she had mentioned being in bed with Timmy. Marsha had also said that Timmy had put his hands on her crotch.
The defense consisted of testimony by friends of defendant and Marsha's mother, to the effect that, on the numerous occasions when the "family" had been seen together, defendant and Marsha had appeared to get along quite well and that Marsha [142 MICHAPP 586] had never exhibited any fear of defendant. Marsha's mother also testified, stating that Marsha had never feared defendant and had always been affectionate toward him. She did not believe that defendant had molested Marsha; if she had believed the charge, she would have had him arrested as she had, herself, been molested by her father when she was young. Marsha had never told her about any molestation although she had told her about other times when she was hurt. Marsha's mother had never heard or seen anything during the night to suggest that molestation was occurring, although she admitted that she might have been suffering from alcoholic blackouts during that period. Finally, when she spoke to Marsha about the alleged molestation, Marsha had denied that it had occurred until Mr. Henricks had said, "No, no, Marsha, that's not the way it goes".
The final defense witness was defendant. He stated that he had lived with Marsha and her mother for two years and that he had always gotten along well with Marsha. He denied all the accusations of sexual abuse and stated that he loved Marsha very much.
On appeal, defendant argues that his trial counsel was ineffective because he failed to object even once to the numerous hearsay statements made by Marsha which were admitted during the testimony of Kathy Johns and Roger Henricks. It is clear from the record that defense counsel mistakenly believed that such statements were exempt from the hearsay rule, probably under a belief that they were permitted by the "tender years exception". However, as made clear by the Supreme Court's opinion in People v. Kreiner, 415 Mich. 372, 329 N.W.2d 716 (1982), reh. den. 417 Mich. 1104 (1983), this exception did not survive adoption of the [142 MICHAPP 587] Michigan Rules of Evidence. Kreiner was released approximately ten months before this trial. In addition, the testimony plainly reveals that Marsha's statements were deliberate and considered responses during several interviews that occurred a period of time after the alleged assaults. As such, the responses would not have qualified as "excited utterances" under MRE 803(2). See People v. Gee, 406 Mich. 279, 282, 278 N.W.2d 304 (1979). Had defense counsel objected to the testimony, therefore, he would have been entitled to have the testimony excluded. The issue before us is thus whether or not counsel's failure to object constituted ineffective assistance of counsel.
In this case, defendant has alleged that his counsel's performance at trial denied defendant both a fair trial and the effective assistance of counsel under both Const.1963, art. 1, Sec. 17 and the Sixth and Fourteenth Amendments of the United States Constitution. A determination of the...
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