Preview:

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROBIN T. WOOD, Defendant-Appellant.

UNPUBLISHED July 27, 2010

No. 289901 Ingham Circuit Court LC Nos. 07-000446-FC; 07-000541-FC

Before: FORT HOOD, P.J., and BORRELLO and STEPHENS, JJ. PER CURIAM. Following a joint jury trial involving separate felony informations, defendant was convicted of two counts of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(a) (victim under the age of 13), and two counts of second-degree criminal sexual conduct (CSC II) (victim under the age of 13), MCL 750.520c. Defendant filed separate appeals as of right, which were consolidated for this Court's review. We affirm. A. Joinder Defendant was charged with criminal sexual conduct involving three complainants in two separate felony informations. Prior to trial, plaintiff filed a motion to join the offenses contained in the two informations into one consolidated trial. Over defendant's objection, the trial court granted plaintiff's motion. In doing so, the trial court concluded that the offenses contained in the informations were "related," and that defendant would not be prejudiced by the consolidation of the trials. We hold that the trial court did not err. Whether joinder is permissible presents a mixed question of law and fact, which we review de novo and for clear error, respectively. People v Williams, 483 Mich 226, 231; 769 NW2d 605. However, we review for an abuse of discretion a trial court's ultimate decision to grant or deny a motion for joinder. MCR 6.120(B); People v Duranseau, 221 Mich App 204, 208; 561 NW2d 111 (1997). The interpretation of a court rule is reviewed de novo. Williams, 483 Mich at 231. MCR 6.120(B) provides in relevant part that: [O]n the motion of a party, . . . the court may join offenses charged in two or more informations or indictments against a single defendant . . . when -1-

appropriate to promote fairness to the parties and a fair determination of the defendant's guilt or innocence of each offense. (1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on (a) the same conduct or transaction, or (b) a series of connected acts, or (c) a series of acts constituting parts of a single scheme or plan. The plain language of MCR 6.210(B) permits joinder if the offenses charged in separate informations or indictments against a single defendant are "related." The rule provides three bases upon which a court can find that joinder is appropriate. We agree with the trial court's finding that the offenses contained in the felony informations were part of a series of acts constituting parts of a single scheme or plan. In both cases, the alleged sexual abuse occurred at defendant's home, which was also the location of his wife's daycare where he worked as an assistant. It is undisputed that defendant was either a caregiver or authority figure for each complainant. The complainants' testimony suggested that defendant used the status of his relationship with them as a means to perpetrate the sexual abuse. In light of these facts, we hold that the trial court did not err when it ruled that the offenses were "related" within the meaning of MCR 6.120(B). Accordingly, the trial court did not abuse its discretion when it consolidated the trials in these cases. B. Dr. Barclay's Expert Testimony Prior to trial, the trial court granted plaintiff's motion to exclude the testimony of Dr. Barclay, a psychologist licensed in Michigan, pursuant to MRE 702. Dr. Barclay proposed to testify at trial that, as a psychologist, he was familiar with and knowledgeable of literature and research in the field of psychology pertaining to a theory called false memory in the context of sexual assault cases. Dr. Barclay explained that the false memory theory suggests that the manner in which an interview is conducted, the status of the person conducting the interview, and the age of the person being interviewed, otherwise known as demand characteristics, can cause an alleged victim of a sexual assault to honestly believe that he or she had been sexually assaulted even when he or she had not been assaulted. According to Dr. Barclay, children, especially young children, are more susceptible to suggestion that they had been sexually assaulted because such situations create a kind of hysteria, whereby the parents are anxious to find out if their child had been assaulted and the children, in response to the created pressure, are more likely to make false allegations of sexual abuse. Dr. Barclay proposed to testify that false memory and demand characteristics might have influenced the complainants' allegations against defendant. The trial court excluded Dr. Barclay's testimony pursuant to MRE 702 on the ground that it was not based on reliable methodology and, therefore, was unreliable. On appeal, defendant argues that the trial court erroneously excluded Dr. Barclay's testimony. We disagree.

-2-

The gatekeeper function requires trial courts to determine whether an expert's opinions and conclusions are reliable. MRE 702; People v Dobek, 274 Mich App 58, 94; 732 NW2d 546 (2007). "Expert testimony may be excluded when it is based on assumptions that do not comport with the established facts or when it is derived from unreliable and untrustworthy scientific data." Dobek, 274 Mich App 94. In exercising the gatekeeper function, the courts must exclude "junk science." MRE 702 mandates a search inquiry, not just of the data underlying expert testimony, but also of the manner in which the expert interprets and extrapolates from those data. Thus, it is insufficient for the proponent of expert opinion merely to show that the opinion rests on data viewed as legitimate in the context of a particular area of expertise (such as medicine). The proponent must also show that any opinion based on those data expresses conclusions reached through reliable principles and methodology. [Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004).] Although Dr. Barclay's opinions rested on facts and data relied upon by psychologists in his field, he admitted on cross-examination that there was not an established methodology for the type of review he did in the instant case. Indeed, he admitted that any opinion that demand characteristics affected the complainants would have been conjecture. Moreover, Dr. Barclay testified that the police followed the established forensic protocol when they interviewed the complainants, and that he saw no evidence that the police directly coerced the complainants into making allegations that defendant sexually assaulted them. C. Crawford v Washington1 Violation Defendant argues that his Sixth Amendment Right to confront witnesses was violated when the trial court erroneously allowed Stephen R. Guertin, M.D., to testify about hearsay statements made by two of the complainants. We disagree. The admissibility of evidence is generally reviewed for an abuse of discretion. People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002). However, when the admission of evidence involves a preserved constitutional claim, the issue is reviewed de novo. People v Washington, 468 Mich 667, 670-671; 664 NW2d 203 (2003). But unpreserved issues are reviewed for plain error affecting the defendant's substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 13 (1999). The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees criminal defendants a right to confront witnesses who testify against them. US Const, Amend VI. Interpreting the meaning and scope of the Confrontation Clause, the United States Supreme Court has held that testimonial hearsay from a declarant who does not appear for crossexamination at trial is not admissible against a criminal defendant to prove the truth of the matter asserted unless the declarant is unavailable and the defendant had the opportunity to cross-

1

541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004).

-3-

examine the declarant. Crawford v Washington, 541 US 36, 59, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). However, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." Id. at 59 n 9. It is undisputed that the statements of the two complainants' statements, about which Dr. Guertin testified, constituted testimonial hearsay. Nevertheless, the trial court did not abuse its discretion when it allowed Dr. Guertin to testify about the statements. The lower court record reveals that both complainants testified at trial. Thus, defendant had the opportunity to, and did in fact, cross-examine the complainants. For that reason, there was no Crawford violation. In the alternative, defendant argues that because Dr. Guertin's testimony regarding the complainants' hearsay statements could only have been admitted under MRE 803A and were not admissible under that hearsay rule, the testimony was improperly admitted. Although we agree with defendant that Dr. Guertin's testimony regarding the complainants' hearsay statements was not admissible under MRE 803A, defendant is not entitled to relief on this issue because the testimony was admitted on different, proper grounds. Contrary to defendant's argument, the trial court admitted Dr. Guertin's testimony regarding the hearsay statements under MRE 803(4). Dr. Guertin is a licensed physician who is board certified in pediatrics and pediatric intensive care. He was admitted as an expert in the field of pediatrics and child sexual assault evaluations at trial. Due to his expertise in the area of child sexual assault evaluations, two of the complainants were referred to him for evaluation to determine whether they had been sexually assaulted. Dr. Guertin testified at trial regarding the methods he used to conduct a child sexual assault evaluation, which included a preexamination/medical interview whereby he asks the child open-ended, broad questions to ascertain whether the child understands why he or she is being interviewed. Dr. Guertin testified that when dealing with prepubescent children, like the complainants in this case, the interview is an important part of his examination because the sexual abuse suffered might not involve a physical injury. And, in those cases, the information obtained during the preexamination/medical interview is crucial to him being able to determine whether the child had been sexually assaulted. Dr. Guertin obtained the disputed testimony from the complainants during their pre-examination/medical interviews. Thus, we find that the hearsay statements were properly admitted under MRE 803(4). Defendant also argues that Dr. Guertin's testimony regarding the hearsay statements should have been excluded because any relevance of the testimony was substantially outweighed by the risk of undue prejudice. Defendant has failed to properly develop this argument for appeal. "`An party appellant may not merely announce his position and leave it to this Court to discover and rationalize the [bases] for his claims, nor may he give only cursory treatment (of an issue) with little or no citation of supporting authority.'" People v Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004), quoting People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001). In any event, even if defendant is correct, because the complainants testified at trial, he cannot show that, had Dr. Guertin's testimony been excluded, the outcome of trial would likely have been any different. D. Impeachment Testimony

-4-

Defendant argues that the trial court abused its discretion when it prevented him from introducing testimony to attack the character of one of the complainants for truthfulness pursuant to MRE 608. Defendant argues that because the proposed testimony was admissible as either reputation or opinion evidence, the trial court abused its discretion when it excluded the testimony. We disagree. MRE 608(a) provides that a party may introduce reputation or opinion evidence to impeach a witness's character for truthfulness. We agree with the trial court's finding that the proposed testimony was neither reputation nor opinion evidence, but rather testimony regarding specific instances in which the witnesses believed the complainant had lied to them. Because neither instance is evidence of a conviction of a crime subject to MRE 609, the testimony would have only been admissible during the cross-examination of the complainant. MRE 608(b); People v Brownridge, 459 Mich 456, 463; 591 NW2d 26 (1999). Defendant did not attempt to elicit the proposed testimony during cross-examination of the complainant. Therefore, the trial court properly excluded the testimony pursuant to MRE 608(b). Brownridge, 459 Mich at 463. E. Challenge to the Great Weight of the Evidence Defendant moved below for a new trial on the ground that the jury's verdict convicting him of two counts of CSC I was against the great weight of the evidence. On appeal, he claims the trial court abused its discretion when it denied the motion. We disagree. An appellate court reviews a trial court's decision to grant or deny a new trial for an abuse of discretion. People v McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001). A new trial is warranted "only if the evidence preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the verdict to stand." People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998). A grant of a new trial because the verdict was against the great weight of the evidence is disfavored, and the jury's verdict should not be set aside if there is competent evidence to support it. Id. at 639, 642. When the jury is presented with conflicting evidence, credibility questions should be left for the jury to decide. Id. at 642-643. In the instant case, there was competent evidence to support the jury's verdict. The offense of CSC I of a victim under age 13 requires proof that the defendant engaged in sexual penetration of a person less than 13 years of age. MCL 750.520b(1)(a). The complainant for whom defendant's CSC I convictions stem testified that a man named "Poppa Robin"2 who lived at the daycare put his finger in her "privacy" (vagina) and her bottom. The complainant testified that she was four-years-old at the time. This evidence was sufficient to convict defendant of the two counts of CSC I. Lemmon, 456 Mich at 627. That the complainant might have changed her story regarding the sexual abuse several times or that her parents allowed her to return to the daycare after they learned of the sexual abuse goes toward the weight and credibility to be accorded the complainant's testimony. Credibility issues are left for the trier of fact to resolve. Id. at 642-643. The jury was free to accept the complainant's version of events and reject defendant's.

2

It is undisputed that the children at the daycare called defendant "Poppa Robin."

-5-

F. Ineffective Assistance of Counsel Defendant argues that his trial counsel's failure to: (1) impeach the complainants' credibility on cross-examination; (2) develop testimony regarding defendant's good character; (3) object when plaintiff introduction testimony that defendant had washed a young child's bottom at the daycare; (4) present adequate character witnesses; and (5) object to the amendment of the felony information for docket number 07-000446-FC deprived him of the effective assistance of counsel. We disagree. Because defendant failed to raise this issue in a motion for a new trial or motion for a Ginther3 evidentiary hearing, we review the claims for mistakes apparent on the record. The right to counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1,

Download PEOPLE OF MI V ROBIN T WOOD.pdf

Michigan Law