Tomasik v. State

• Decision Date: 25 April 2019
• Docket Number: No. 343453,343453
• Citation: 327 Mich.App. 660,935 N.W.2d 369
• Parties: Dennis Lee TOMASIK, Plaintiff-Appellant, v. STATE of Michigan, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

327 Mich.App. 660

935 N.W.2d 369

Dennis Lee TOMASIK, Plaintiff-Appellant,

v.STATE of Michigan, Defendant-Appellee.

No. 343453

Court of Appeals of Michigan.

Submitted April 2, 2019, at Lansing.

Decided April 25, 2019, at 9:00 a.m.

Chartier & Nyamfukudza, PLC, East Lansing (by Mary Chartier and Takura Nyamfukudza) and Tieber Law Office, East Lansing (by F. Martin Tieber and Kristoffer W. Tieber ) for plaintiff.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Kathryn M. Dalzell, Assistant Solicitor General, for defendant.

Before: Swartzle, P.J., and Cavanagh and Cameron, JJ.

Swartzle, P.J.

A jury convicted plaintiff Dennis Lee Tomasik of sexual assault, but following reversal by our Supreme Court, plaintiff received a new trial and was acquitted. Plaintiff sued the state of Michigan under the Wrongful Imprisonment Compensation Act, but the Court of Claims determined that he was not eligible for compensation because the Supreme Court's reversal was not based on new evidence. He challenges this holding, and thus we are faced with the question of whether plaintiff has satisfied all of the conditions for relief under the act?

This seemingly straightforward question implicates principles of separation of powers, law of the case, expression of judicial holdings, and judicial immunity. As explained, we conclude that the Legislature and Supreme Court both meant what they plainly said, and this is fatal to plaintiff's claim for relief.

I. BACKGROUND

Plaintiff sued the state of Michigan for compensation under the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq . The underlying criminal case has a lengthy appellate history, including three decisions of this Court and three decisions of our Supreme Court. Because resolution of this appeal hinges in part on whether new evidence resulted in the Supreme Court's reversal of plaintiff's criminal conviction, we will discuss the criminal case in detail. For clarification, although plaintiff was a "defendant" in the underlying criminal case, we refer to him as "plaintiff" even when discussing the criminal case.

A. FIRST CRIMINAL TRIAL AND APPEAL

In 2007, plaintiff first stood trial for allegedly committing repeated acts of sexual assault against a minor, T.J. At trial, T.J. claimed that plaintiff sexually assaulted him approximately eight years earlier, when T.J. was six years old. The jury convicted plaintiff of two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a), and the trial court sentenced him to serve concurrent terms of 12 to 50 years in prison.

During pretrial, plaintiff had sought disclosure or in-camera review of "any and all" of T.J.'s counseling records. Plaintiff asserted that T.J. had been in counseling since the age of five and had seen approximately eight counselors over the years. Plaintiff also asserted that when T.J. was 11, the latter had acted out sexually against a cousin. The trial court granted the motion in part, but limited the discovery to a one-year period related to the alleged sexual activity with the cousin. People v. Tomasik , unpublished per curiam opinion of the Court of Appeals, issued January 26, 2010 ( Docket No. 279161), pp. 11-12.

After his convictions, plaintiff appealed to this Court and, as part of his appeal, moved for a remand to the trial court for a hearing under People v. Ginther , 390 Mich. 436, 212 N.W.2d 922 (1973). The Court granted his motion and ordered the trial court to conduct an evidentiary hearing "to determine whether trial counsel rendered ineffective assistance of counsel when he failed to produce expert evidence to rebut the prosecutor's experts and failed to call [plaintiff] as a witness on his own behalf." People v. Tomasik , unpublished order of the Court of Appeals, entered November 6, 2008 (Docket No. 279161).

While awaiting the Ginther hearing, plaintiff moved the trial court for a new trial and for disclosure of "any and all" of T.J.'s counseling records. The trial court denied the motion for a new trial, but it agreed to conduct an in-camera review of some of the counseling records. The trial court limited its review to those counseling records related to T.J.'s purported sexual activity with the cousin. After its review, the trial court denied disclosure of the records, and it further declined to review any other counseling records. The trial court held a Ginther hearing and concluded that trial counsel did not render ineffective assistance of counsel.

The case then returned to this Court for decision. Plaintiff made several claims on appeal, including: (1) the trial court erroneously admitted a recording of a police detective's statements that expressed an opinion of plaintiff's guilt and vouched for the victim's credibility; and (2) the trial court erroneously refused to conduct an in-camera review of all of T.J.'s counseling records. Tomasik , unpub. op. at 2 -15. On the question of counseling records, the Court reviewed the trial court's decision under the standard articulated in People v. Stanaway , 446 Mich. 643, 521 N.W.2d 557 (1994). The Court affirmed the trial court's decision with respect to the counseling records, reasoning: "Given that [plaintiff] wanted the trial court to review all of T.J.'s counseling records and to disclose any evidence which could possibly suggest a false allegation by T.J., the trial court's decision that [plaintiff] was on a ‘fishing expedition’ fell within the range of reasonable and principled outcomes." Id . at 15. The Court rejected the other arguments and affirmed plaintiff's convictions. Id .

On application for leave to appeal, our Supreme Court vacated the judgment of this Court and remanded the case to the trial court for further proceedings under Stanaway . The order of remand specifically stated that "the trial court shall disclose to the [plaintiff] the March 26, 2003, report authored by Timothy Zwart of Pine Rest Christian Mental Health Services and the March 1, 2003, form authored by Denise Joseph-Enders. After disclosing these documents to the [plaintiff], the trial court shall permit the [plaintiff] to argue that a new trial should be granted." People v. Tomasik , 488 Mich. 1053, 1053-1054, 794 N.W.2d 620 (2011).

B. REMAND AND SUBSEQUENT APPEALS

On remand, the trial court disclosed to plaintiff the documents identified in the Supreme Court's 2011 order. Plaintiff then filed a motion for new trial, the trial court denied the motion, and plaintiff appealed. This Court described the new evidence that formed the basis of the motion for new trial, as well as the trial court's rationale for denying it:

In this case, the records that were not disclosed to [plaintiff] during trial are a March 26, 2003 report authored by Zwart, and a March 1, 2003 form authored by Joseph-Enders. The report authored by Zwart indicated that T.J. lied consistently and relished doing so, was quick to blame adults when he got into trouble, and had difficulty with impulse control. It also indicated that T.J. appeared to believe some of his untruthful statements. The form completed by Joseph-Enders indicated that T.J. was deceitful and had had difficulties telling the truth for some time. It is not disputed that the documents not initially disclosed to [plaintiff] were favorable to his case. In this case, the trial court denied [plaintiff's] motion for a new trial because it determined that even if the documents were to have been disclosed to [plaintiff] during trial, the documents were not material because no reasonable probability existed that the result would have been different if the documents were disclosed to [plaintiff] during trial. We agree.

* * *

The evidence presented at trial demonstrated that T.J. was a troubled child who engaged in theft and deceit and had difficulty distinguishing fantasy from reality. [Plaintiff's] assertion that the information in the documents was different in kind than the evidence presented at trial is without merit. At trial, defense counsel pointed to evidence that showed that T.J. could not distinguish fantasy from reality, including reminding the jury that T.J. admitted during his testimony that he thought Batman was real, that T.J. lied, and that T.J. previously denied that he was sexually abused and disclosed the abuse only after he was charged with theft. [ People v. Tomasik (After Remand) , unpublished per curiam opinion of the Court of Appeals, issued November 29, 2011 ( Docket No. 279161), 2011 WL 5964610, pp. 4-5, vacated in part, lv den. in part 495 Mich. 887, 839 N.W.2d 194 (2013).]

This Court concluded that the new evidence was "cumulative to the evidence presented during the trial" and that the documents "were not material because there is not a reasonable probability of a different result if the documents would have been disclosed to [plaintiff] during trial." Id . at 5. On the remaining claims, the Court adopted the reasoning of its original opinion in Tomasik and affirmed plaintiff's convictions and sentence. Id . at 5-6.

Plaintiff again sought leave to appeal in our Supreme Court. Rather than granting leave, the Supreme Court vacated in part the judgment of this Court. In doing so, it further ordered:

We remand this case to the Court of Appeals for reconsideration, in light of People v. Musser , 494 Mich. 337, 835 N.W.2d 319 (2013), People v. Kowalski , 492 Mich. 106, 821 N.W.2d 14 (2012), and People v. Grissom , 492 Mich. 296, 821 N.W.2d 50 (2012), of the following issues: (1) whether the Kent Circuit Court erred by admitting the entire recording of the [plaintiff's] interrogation; (2) whether the circuit court erred in admitting Thomas Cottrell's expert testimony regarding Child Sexually Abusive Accommodation Syndrome under current MRE 702, and, if so, whether the error was harmless; (3) whether the circuit court erred in denying the [plaintiff's] motion for a new trial based on the newly disclosed impeachment evidence of the March 26, 2003 report authored by Timothy Zwart and the March 1,

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