People of Michigan v. Derrick Gregg Walden, 327560

Background

An eight-year-old victim alleged Defendant Derrick Walden digitally penetrated her twice while she stayed overnight at his home after July 4 fireworks; medical and limited DNA evidence were consistent with an assault but male DNA could not be matched to Walden.
Defendant admitted the victim was assaulted but blamed Voit (a guest who stayed at the home) as the perpetrator; credibility between Defendant, Voit, and the victim was central.
At trial, Defendant’s four-year-old daughter (Amy) testified for the defense and said she did not remember an interview with forensic interviewer Amelia Harper or describing inappropriate touching.
On rebuttal the prosecutor called Harper, who testified about Amy’s out-of-court statements that Defendant had touched Amy and that Amy described “being safe” as “when you touch kids and you don’t get caught.” Defense objected; the court admitted the testimony.
The court later denied a mistrial and refused to allow surrebuttal evidence that an investigator’s probe found no substantiation of abuse to Amy; no limiting instruction was given to the jury regarding Harper’s testimony.
The jury convicted Defendant of one count of first-degree criminal sexual conduct; the Court of Appeals reversed, holding Harper’s rebuttal testimony was inadmissible hearsay and improper impeachment and that the error was not harmless.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether rebuttal testimony recounting out-of-court statements by Defendant’s daughter was admissible under MCL 768.27a	The testimony was admissible as evidence of other sexual offenses under the statute	The testimony was hearsay and not admissible substantively under MCL 768.27a	Not admissible under MCL 768.27a because it was hearsay and other evidentiary rules still apply (Watkins relied on)
Whether the prosecutor properly used Harper’s testimony to impeach Amy’s claimed lack of memory	Impeachment was proper because Amy said she didn’t remember talking to Harper	Use of the statements was actually substantive and directly inculpatory, not proper impeachment	Improper impeachment: prosecutor improperly used a denial to introduce inculpatory substantive evidence (Kilbourn/Jenkins analysis)
Whether the admission of Harper’s rebuttal testimony was harmless error	The prosecutor argued it was harmless in light of other evidence	Defendant argued the testimony likely tipped credibility and was highly prejudicial	Not harmless: reasonable probability the improper testimony affected the verdict; reversal and new trial required (Lukity applied)
Whether trial court abused discretion by denying mistrial and refusing surrebuttal witness	Court suggested no abuse; prosecutor and court relied on statutory admissibility	Defendant sought mistrial and to call DHHS investigator to challenge rebuttal evidence	Abuse of discretion: admission of testimony and denial of surrebuttal/mistrial prejudiced Defendant and warranted new trial

Key Cases Cited

People v Watkins, 491 Mich 450 (supreme court holding that MCL 768.27a does not displace ordinary evidentiary rules including hearsay)
People v Jenkins, 450 Mich 249 (Mich. 1995) (extrinsic impeachment permitted for prior inconsistent statements and cautions on impeachment use)
People v Stanaway, 446 Mich 643 (Mich. 1994) (limits on using impeachment as a pretext for substantive inculpatory evidence)
People v Kilbourn, 454 Mich 677 (Mich. 1997) (prohibits using impeachment to introduce a statement that directly tends to inculpate the defendant when credibility is otherwise irrelevant)
People v Lukity, 460 Mich 484 (Mich. 1999) (harmless-error analysis for nonconstitutional and constitutional errors requiring reversal when error likely affected outcome)
People v Allen, 429 Mich 558 (Mich. 1988) (warning that character evidence can improperly lower the burden of proof and bias juries)