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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DAVID LALL, Defendant-Appellant.

UNPUBLISHED June 19, 2008

No. 273165 Kent Circuit Court LC No. 04-07008-DO

Before: Donofrio, P.J., and Sawyer and Murphy, JJ. PER CURIAM. Defendant appeals as of right from his jury trial conviction of first-degree criminal sexual conduct (CSC I), MCL 750.520b. Because the trial court did not violate defendant's federal and state constitutional protections against double jeopardy, the doctrine of collateral estoppel did not bar the introduction of certain evidence in defendant's second trial, and juror communications and alleged misconduct did not constitute reversible error or warrant a mistrial, we affirm. I. Substantive Facts Defendant's conviction arises out of the sexual assault of the victim at Lakeland Hospital in Saint Joseph, Michigan. During the afternoon of August 21, 2004, the victim attended the Berrien County Youth Fair with her two daughters. The victim became ill at the fair and began to feel nauseous and started vomiting. As the condition worsened, the victim was transported by ambulance to the emergency room at Lakeland Hospital. Initially, the victim was placed on a bed in the hallway but was later transferred to a patient room. Defendant, a male nurse, was assigned to assist the victim. Defendant and a patient care assistant, Mandy McCrorey, came into the victim's room and assessed her condition. McCrorey helped her remove her shirt and bra and put on a hospital gown. The victim kept her jeans on under the hospital gown. A lab technician drew the victim's blood. Dr. Patrick Holbert examined the victim, including palpating her abdomen. Dr. Holbert advised the victim that her potassium was low, diagnosed her with dehydration and vomiting secondary to the fair rides, and prescribed her Phenergan to settle her nausea. The victim testified to the following events. Defendant entered the room, told her he was going to give her Phenergan, and then injected a syringe into her. The victim stated that the injection hurt, she grabbed her arm, and then fell asleep. The victim was in and out of consciousness but woke up briefly several times and has memories of the waking moments. The -1-


victim's memories include: defendant pulling her underwear down and the victim pulling them back up; defendant putting his tongue in her mouth and the victim trying to push him away; defendant pressing his penis against her mouth trying to open it and the victim backing her head away; the victim seeing defendant with his pants somewhat down and seeing defendant's pubic area; and, defendant administering a second shot and the victim complaining again that it hurt. Finally, the victim remembers defendant putting his hand between her legs and penetrating her vagina with his fingers. The victim removed defendant's hand and asked defendant what he was doing. The victim stated that defendant responded by saying, "you asked me to do this." The victim denied it and asked defendant where her pants were. The victim did not remember having her pants removed. Defendant reached under her gurney and retrieved the victim's pants. Defendant assisted the victim in getting her pants on and then she grabbed her bra and shirt. The victim asked for her phone and defendant retrieved it and gave it to the victim. The victim called a coworker, Marco Reyna, to come to the hospital and pick her up. The victim asked defendant for directions to exit the hospital and defendant showed her the way to the door. The victim did not tell anyone at the hospital about her experiences. As the victim waited outside for Reyna to pick her up, the victim's husband, James, who was at work, called. The victim was very upset but did not tell her husband because she wanted to tell him in person. When Reyna arrived, the victim was crying. The victim entered Reyna's vehicle and told him that she had been raped. Reyna proposed going to another hospital or the police but the victim declined. Reyna took the victim to her vehicle. The victim picked up her daughters, dropped them off at home, and then proceeded to her husband's workplace. The victim told her husband what happened and they decided to go to another hospital. The victim and her husband went to Saint Joseph's Regional Medical Center in South Bend, Indiana. The victim told a nurse examiner what she remembered about what happened at Lakeland Hospital. A doctor examined the victim and hospital staff took oral, vaginal, hair, urine, and blood samples. The victim told hospital staff that she medicated with Vicodin, Darvocet, and Fexeril for degenerative disc disease. She also stated that she had taken Valium about a month prior to these events. A nurse called the police while the victim was at the hospital. The victim spoke with a police officer over the phone. Tests revealed that only the victim's husband's seminal fluid was found. Tests also revealed that the victim's blood contained both Valium and Phenergan. II. Procedural History The prosecutor charged defendant with one count of first-degree criminal sexual conduct, MCL 750.520b (multiple variables), and one count of delivery of a controlled substance with the intent to commit criminal sexual conduct, MCL 333.7401a. The case proceeded to jury trial on both counts. The jury was unable to read a unanimous verdict on the charge of first-degree criminal sexual conduct and acquitted defendant of the charge of delivery of a controlled substance with the intent to commit criminal sexual conduct. Defendant moved for dismissal of the remaining count of first-degree criminal sexual conduct based on double jeopardy and the doctrine of collateral estoppel. The parties briefed the issue and the trial court issued an opinion and order concluding that the double jeopardy clause did not prohibit the prosecution from retrying defendant under two theories: force or coercion, MCL 750.520b(1)(f)(i), and mental or physical incapacitation, MCL 750.520b(1)(g). But the trial court also held that defendant's -2-


double jeopardy protections prohibited the prosecution from again trying defendant for firstdegree criminal sexual conduct based on the theory that sexual penetration occurred under circumstances involving the commission of any other felony, MCL 750.520b(1)(c), namely delivery of a controlled substance with the intent to commit a sexual act MCL 333.7401a. The trial court also held that the doctrine of collateral estoppel did not preclude the prosecutor from presenting evidence that defendant delivered Valium to the victim on retrial. A second jury trial was held on the charge of first-degree criminal sexual conduct. After the close of the proofs, during jury deliberation, two incidents occurred involving separate jurors. At separate times during deliberation both Juror 19 and Juror 48 sent notes to the trial court indicating that they wanted to speak with the court. Details surrounding both communications and interactions with the trial court are included below in Section V of the opinion. Ultimately both jurors remained on the jury and the jury convicted defendant. The trial court sentenced him to a term of 56 to 112 months' imprisonment. Defendant appeals as of right. III. Double Jeopardy Defendant first argues that the trial court violated his federal and state constitutional protections against double jeopardy when it permitted the prosecution to try defendant a second time on the theory that he administered a drug without consent. In response, the prosecutor contends that the trial court properly ruled that double jeopardy principles did not prohibit the prosecution from retrying defendant on the charge of first-degree criminal sexual conduct under the theories, force or coercion, MCL 750.520b(1)(f)(i), and mental or physical incapacitation, MCL 750.520b(1)(g). "A double jeopardy issue constitutes a question of law that is reviewed de novo on appeal." People v Lugo, 214 Mich App 699, 705; 542 NW2d 921 (1995). "A person may not be twice placed in jeopardy for a single offense." People v Mehall, 454 Mich 1, 4; 557 NW2d 110 (1997). This protection is afforded under both the United States and Michigan Constitutions. US Const, Am V; Const 1963, art 1,

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