PEOPLE OF THE STATE OF MICHIGAN v. MATTHEW RYAN MCBEE
No. 330048
Oakland Circuit Court LC No. 2014-249679-FC
STATE OF MICHIGAN COURT OF APPEALS
May 9, 2017
UNPUBLISHED
PER CURIAM.
Matthew Ryan McBee was convicted by a jury of first-degree criminal sexual conduct (CSC-I)1 and sentenced to 25 to 60 years’ imprisonment. He appeals as of right. We affirm.
I. FACTS
On the morning of January 8, 2014, seven-year-old HM told her mother, Heather Smith, that McBee—Smith‘s boyfriend—made her “drink his milk.” HM also said something about magazines2 and pointed to a metal, clipboard-style container that was sitting on a nearby dog crate next to the stairs. Smith looked inside the container and discovered several pornographic magazines. Smith eventually learned that the encounter between HM and McBee occurred the day before.
At trial, HM testified that on January 7, 2014, she was sitting on the living room couch while McBee played video games. Smith and HM‘s sister were asleep in their bedrooms. McBee paused his game and showed her pornographic magazines he retrieved from the clipboard-style container. McBee then made her put his “jina” in her mouth and “made me suck it, then -- then the milk got in my mouth.” HM explained that a “jina” was a “boy part” used for going to the bathroom. Later, she clarified that she used the terms “jina” and “peter” because she
Smith called the police on January 8, 2014, after learning about HM‘s accusation. Several items were seized from the home, including a metal clipboard containing several pornographic magazines and the cushions from the two living room couches. HM was examined at Beaumont Hospital; there were no obvious signs of trauma and HM‘s hymen appeared normal. Of the items submitted for forensic analysis, only three tested positive for the presence of body fluids: the underwear HM said she wearing at the time of the incident, a vulvar swab obtained during HM‘s vaginal examination, and the center cushion taken from one of McBee‘s couches. The DNA discovered on the vulvar swab and HM‘s underwear were consistent with her own DNA profile. A partial DNA profile was recovered from sperm сells found on the couch cushion and it matched McBee‘s DNA profile at four of the 16 locations typically tested. McBee‘s DNA profile could not be excluded at five additional locations.
HM was interviewed by Yvonne Cameron at CARE House of Oakland County on January 8, 2014. Defense witness Dr. Katherine Okla, an expert in forensic interviewing techniques, memory, and suggestibility, noted certain elements of the CARE House interview which she did not feel complied with Michigan‘s Forensic Interviewing Protocol and expressed concern that several elements of HM‘s story were still unclear after the interview. Dr. Okla observed that Cameron failed to ask sufficient follow-up questions to clarify some of HM‘s ambiguous statements and did not seem to engage in clear and explicit alternative hypothesis testing. Dr. Okla also opined that HM‘s memory might have been impacted by other experiences, including her repeated conversations with Smith earlier in the day, Smith‘s negative reaction to the disclosure, earlier discussions with family members about sexual touching, unrelated child protective services investigations, and the understanding that McBee would be incarcerated.
The prosecution‘s rebuttal witness, Sarah Visger Killips, was qualified as an expert in forensic interviewing, the dynamics of sexual abuse, and characteristics of children who allege sexual abuse. Killips agrеed that one of the primary goals of forensic interviewing is to engage in “hypothesis testing,” rather than “hypothesis confirming.” Having reviewed HM‘s CARE House interview, Killips opined that several alternative hypotheses were, in fact, tested, though not always through direct questioning. Killips disagreed with Dr. Okla‘s suggestion that there was inadequate clarification with respect to source monitoring and whether HM was reporting things she had experienced, rather than things she had seen. Killips also disagreed with Dr. Okla‘s opinion regarding the likelihood that HM‘s memory was tainted by outside sources.
II. PROSECUTORIAL ERROR
For his first claim of error, McBee contends that the trial court erred by denying his motion for a mistrial, which was based on prosecutorial error. According to McBee, he was denied the right to a fair trial because the prosecution accused him of selling drugs. We disagree.
McBee‘s claim of prosecutorial error arises from the following question posed to defense witness Korey Eiermann on cross-examination: “Were you aware of text messages going back and forth between your wife and the Defendant and your wife is purchasing drugs from the Defendant?” Although the question went unanswered, McBee mаintains that the question itself was akin to an accusation that he was a drug dealer. The trial court acknowledged that Eiermann‘s anticipated testimony might be inadmissible under
As an initial matter, it must be noted that the trial court erred by denying McBee‘s motion on the basis of a retrospective аpplication of
“A defendant‘s opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than the defendant‘s guilt or innocence.”11 In reviewing a claim of prosecutorial error, the challenged conduct must be viewed in context.12 A good-faith attempt to introduce evidence does not constitute prosecutorial error, “as long as that attempt does not prejudice the defendant.”13 Reversal is unwarranted on the basis of seemingly improper prosecutorial conduct or remarks if they address an issue raised by the defense.14
We agree with McBee‘s argument that the prosecution‘s question sought to illicit irrelevant—and, therefore, inadmissible—evidence. Despite the prosecution‘s arguments to the contrary, McBee‘s purported history of selling drugs to Eiermann‘s wife was not relevant for the purpose of impeaching Eiermann‘s credibility or rebutting McBee‘s accusation that Smith stole items from his house, including prescription medication. However, while we agree that the prosecution erred by asking this question of Eiermann, we do not believe that the error was so prejudicial that it deprived McBee of a fair and impartial trial.
This Court previously considered the effect of similar prosecutorial error in People v Mesik (On Reconsideration).15 In that case, the defendant claimed that he was denied a fair trial when the prosecution repeatedly questioned him about inadmissible hearsay statements in which a witness reported that the defendant and a coconspirator had taken credit for killing the victim.16 This Court determined that the prosecution‘s questions were misleading and improper, as the preliminary examination transcript to which the prosecution was referring was not produced and did not include several of the statements the prosecution attributed to the witness.17 However, the Court explained that the prosecution did not actually introduce inadmissible hearsay against the defendant:
Had [the] defendant confirmed, as a witness from the stand, any of the assertions by the prosecutor, those confirmations would have constituted evidence. But [the] defendant only denied any recollection of the matters about which he was
asked. Although the prosecutor‘s questions were, as noted, misleading and improper, the prosеcutor‘s questions are not evidence . . . .18
Furthermore, the Court noted that the jury was properly instructed about what constitutes evidence and the fact that lawyers’ questions should not be treated as evidence.19 Thus, it reasoned that the trial court‘s instructions cured any prejudice arising from the improper questioning and “there is no evidence from which [it] can conclude that the jury was unable to follow its instructions . . . .”20
Like in Mesik (On Reconsideration), the prosecution‘s error did not result in the presentation of inadmissible evidence against McBee. Defense counsel objected to the prosecution‘s question before Eiermann answered, and the prosecution chose not to resume that line of inquiry whеn the jury proceedings resumed. Moreover, the prosecutorial error in this case was far less prejudicial than that at issue in Mesik (On Reconsideration). In Mesik (On Reconsideration), the prosecution‘s improper questions repeatedly referred to statements made by the defendant and his coconspirator admitting that they jointly committed the charged crime.21 By contrast, the prosecution in this case asked a single question about a completely collateral matter that did not weigh upon McBee‘s guilt or innocence of CSC-I.
McBee points to posttrial comments made by several jurors to demonstrate that he was unfairly prejudiced by the prosecution‘s question. However, McBee‘s assertion rеsts on the affidavit of his trial counsel, describing the jurors’ comments. The affidavit does not adequately support his claim of error as it attempts to set forth inadmissible hearsay.22 Moreover, even if this Court were to consider the affidavit, its language is fairly ambiguous and does not demonstrate with any level of certainty that the commenting juror‘s opinion regarding McBee‘s guilt was swayed by the prosecution‘s question or that the remaining jurors were similarly affected.23
Next, McBee argues that the trial court erred by denying his motion for a mistrial on the alternative basis of juror misconduct. We disagree.
As already stated, a trial court‘s ruling on a motion for mistrial is reviewed for an abuse of discretion.24 When the defendant‘s motion is based on juror misconduct, the trial court abuses its discretion by denying the motion “only where the misconduct was such that it affected the impartiality of the jury or disqualified its members from exercising the powers of reason and judgment.”25 A trial court‘s ruling on a party‘s request for an evidentiary hearing is also reviewed for an abuse of discretion, which occurs “when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.”26
“During their deliberations, jurors may only consider the evidence that is presented to them in open court.”27 When jurors consider extraneous facts not in evidence, several constitutiоnally protected rights are implicated, including the “rights of confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment,” such that a new trial may be required.28 A two-part test is applied to determine if a jury‘s exposure to extraneous information requires reversal of its verdict:
First, the defendant must prove that the jury was exposed to extraneous influences. Second, the defendant must establish that these extraneous influences created a real and substantial possibility that they could have affected the jury‘s verdict. Generally, in proving this second point, the defendant will demonstrate that the extraneous influence is substantially related to а material aspect of the case and that there is a direct connection between the extrinsic material and the adverse verdict.29
As he did in the trial court, McBee maintains that he is entitled to a new trial due to juror misconduct. McBee bases this assertion solely on an affidavit provided by defense witness Melissa Raderstorf. In pertinent part, Raderstorf states: “That while at work on September 26, 2014, I overheard two teachers discussing the trial; to wit, that one of the teachers had received a text message from one of the jurors with ties to the school and that the juror commented on the
McBee‘s argument lacks merit in any event. Even if Raderstorf‘s affidavit was admissible, it would not satisfy McBee‘s burden of establishing the factual predicate for his claim of juror misconduct. Assuming, arguendo, that a juror communicated with a third-party in the manner asserted by Raderstorf, thereby violating the trial court‘s instruction against discussing the case with friends or family, there is no proof that the jury was exposed to extraneous information by that juror‘s misconduct. Raderstorf claims that her coworker received a text message from a juror—not that the juror received outside information from the coworker. In the absence of evidence that the jury was exposed to extraneous information, there can be no basis for concluding that the jury‘s impartiality or verdict was somehow affected. Accordingly, the trial court did not abuse its discretion by denying McBee‘s motion for mistrial.
Nor does it appear that McBee is entitled to an evidentiary hearing at this juncture. McBee has failed to cite any authority for this proposition, and “an appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supрorting authority.”32 The trial court has twice denied McBee‘s request for an evidentiary hearing, and correctly observed that McBee failed to offer any evidence regarding the substance of the text message, which could have been an innocent exchange. The trial court explained that there was better evidence regarding the substance of the communication than the double hearsay contained in Raderstorf‘s affidavit, implicitly suggested that McBee subpoena the actual text message or messages exchanged or obtain other credible evidence from those involved, and denied the motion without prejudice. Nonetheless, McBee failed to take any action to obtain the text message or messages, ascertain the contents, or even confirm the identity of the individuals involved in the communication before filing a second motion requesting an evidentiary hearing over eight months later. It was not outside the range of principled outcomes for the trial court to deny McBee the opportunity for a further hearing when his request was premised on little more than unsubstantiated speculation.
IV. WITNESS VOUCHING
Next, McBee argues that the prosecution‘s expert witness, Killips, improperly vouched for HM‘s credibility, and that he was denied the effective assistance of counsel when his trial counsel failed to objеct to Killips‘s testimony on that ground. We disagree.
Determinations regarding witness credibility are within the sole province of the jury.40 Thus, as a general rule, “it is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial.”41 The prohibition against such testimony is particularly importаnt in the context of criminal sexual conduct prosecutions, which often balance on the credibility of the complainant and the defendant. As our Supreme Court has explained, “To a jury recognizing the awesome dilemma of whom to believe, an expert will often represent the only seemingly objective source, offering it a much sought-after hook on which to hang its hat.”42
McBee takes issue with three statements made by Killips. First, McBee contends that Killips implicitly vouched for HM‘s credibility when she explained that forensic interviewing techniques are designed to avoid inflicting “more damage than what‘s already happened.” This argument lacks merit. Killips statement referred to the general goals of forensic interviewing, not HM‘s credibility. Moreover, on cross-examination, defense counsel explored McBee‘s theory that Killips‘s statement implied a preconception that a damaging event already occurred.
Next, McBee contends that Killips conveyed her belief that HM was truthful by testifying that all alternative hypotheticals were explored and refuted. McBee‘s argument is unsupported by the record. The portion of the record McBee cites to in his brief on appeal involves Killips‘s opinion that two of the alternative hypotheticals discussed by Dr. Okla were inapplicable to HM‘s initial disclosure. That is, given the nature of HM‘s accusation, there was no reason to explore whether the alleged sexual contact arose from an accidental touching or innocent personal hygiene process. While Killips opined that several alternative hypothesis were, in fact, explored during HM‘s CARE House interview, the record is devoid of testimony indicating that all alternative hypotheticals were ruled out. Furthermore, Killips testimony regarding the alternative hypotheticals that were tested spoke more to the quality of the forensic interview than HM‘s credibility.
Lastly, McBee argues that Killips explicitly conveyed her belief that HM‘s disclosure was credible by way of the following exchange with the prosecution:
Q. And so in a section of the forensic interview where [HM] is asked to consider the couch and the forensic interviewer was (inaudible) the couch and [HM] corrects her and says “No, ours is a brown one“, is that helpful to you (inaudible) suggestibility or how suggestible [HM] is?
A. Yes. It indicated that in that situation [HM] was able to say to this adult, authority figure, you‘re wrong and I feel comfortable telling you what my experience is.
In People v Peterson,43 the Court considered the propriety of expert testimony concerning studies examining the frequency that childrеn lie about sexual abuse. The Court observed that none of the expert witnesses expressly opined that the minor complainant was telling the truth, but reasoned that the risks inherent in expert testimony regarding witness veracity extend beyond such direct references.44 For similar reasons, we agree that the quoted testimony improperly bolstered HM‘s credibility in an indirect manner. Unlike the other challenged testimony concerning the conduct of the forensic interview, the quoted statement pointed to an objective measure of HM‘s lack of suggestibility, thereby bolstering the credibility of her disclosure.
Nonetheless, although the admission of the improper testimony may have amounted tо plain error, it does not appear that the error affected McBee‘s substantial rights. Such a conclusion would require “a showing of prejudice, i.e., that the error affected the outcome of the
it appeared that [HM] wasn‘t quite certain, she was sort of thinking about it. That might be because she had to go back and think about it or it may be that she didn‘t really know the answer. And again, it‘s just -- we have to know, we can‘t guess or assume if there‘s any indication of uncertainty that, in fact, that is what she remembers.
By incorporating specific examples of HM‘s remarks that remained unclear after the interview, Dr. Okla‘s opinion regarding the conduct of the interview necessarily impacted the perceived veracity of HM‘s disclosures.
While we do not endorse the notion that “two wrongs make a right,” under the circumstancеs of this case, it appears that any prejudice that resulted from Killips‘s testimony was counteracted by Dr. Okla‘s contrary opinion. This is simply not a situation in which the jury was able to “hang its hat” on a single, improper, expert opinion regarding HM‘s credibility. Rather, the jury was presented with two conflicting opinions regarding the implications of HM‘s reaction to the techniques used by Cameron during the CARE House interview. There is no reason to believe that the outcome of the proceedings would have been different in the absence of Killips‘s improper testimony.
McBee‘s ineffective assistance of counsel claim must fail for similar reasons. To prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test established by the United States Supreme Court in Strickland v Washington.46 The defendant must demonstrate that “‘counsel‘s representation fell below an objective standard of reasonableness’ and that ‘there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.‘”47 This Court presumes that defense counsel rendered effective assistance and exercised reasonable professional judgment in all significant decisions.48
V. SEPARATION OF POWERS
Next, McBee argues that the 25-year minimum sentence mandated by
Questions of constitutional law are generally reviewed de novo.49 “Statutes are presumed to be constitutional, and the courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.”50 However, because McBee failed to preserve this issue by raising it in the trial court, this Court‘s review is limited to plain error affecting substantial rights.51 A defendant‘s substantial rights are affected when the plain error affected the outcome of the proceedings.52
The Michigan Constitution calls for separation of powers among the legislative, executive, and judicial branches of our state government, and provides that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this cоnstitution.”53 As it relates to criminal sentencing, “the ultimate authority to provide for penalties for criminal offenses is constitutionally vested in the Legislature,” while “[t]he authority to impose sentences and to administer the sentencing statutes enacted by the Legislature lies with the judiciary.”54 Because the court‘s sentencing power is not
VI. CRUEL OR UNUSUAL PUNISHMENT
Next, McBee contends that the 25-year statutory minimum sentence for CSC-I violates the prohibition against cruel or unusual punishment. We disagree.
To preserve a claim that a sentence violates the constitutional prohibition against cruel or unusual punishment, the defendant must challenge the sentence on that basis in the lower court.58 This issue is unpreserved, as McBee failed raising it before the trial court.59 Thus, our review is limited to plain error affecting substantial rights.60
As McBee acknowledges, this Court has already held, in a published opinion, that the 25-year statutory minimum sentence for CSC-I does not viоlate the constitutional prohibition against cruel or unusual punishment.61 Unless and until that decision is altered, this Court is bound to hold that McBee‘s sentence does not violate the prohibition against cruel and unusual punishment.62
VII. HEARSAY
In his Standard 4 brief, McBee argues that Chrystal Eichenlaub, a nurse who assisted in HM‘s medical examination, introduced inadmissible hearsay evidence by repeating a statement made by Smith during HM‘s examination. McBee contends that he was denied the effective assistance of counsel when his defense counsel failed to object to the inadmissible hearsay and
“Tо preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal.”63 To preserve an ineffective assistance of counsel claim, the defendant must bring a motion for a new trial or request a Ginther hearing to establish the basis for his claim.64 McBee did not object to Eichenlaub‘s testimony or raise this aspect of his ineffective assistance of counsel claim in his motion for a new trial. As such, it is unpreserved.
“A defendant pressing an unpreserved claim of error must show a plain error that affected substantial rights, and the reviewing court should reverse only when the defendant is actually innоcent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.”65 Ineffective assistance of counsel claims present a mixed question of fact and constitutional law.66 The lower court‘s findings of fact are reviewed for clear error, and its rulings on questions of constitutional law are reviewed de novo.67 Because this issue is unpreserved, this Court‘s review is limited to errors apparent from the record.68
A statement that falls within the definition of hearsay may not be introduced at trial unless it is deemed admissible under one of the exceptions to the general rule against hearsay.69 The Michigan Rules of Evidence defines heаrsay as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”70 In pertinent part, Eichenlaub testified about the description of the January 7, 2014 incident provided by HM at the hospital. The prosecution asked Eichenlaub to describe HM‘s demeanor at the time, and Eichenlaub answered: “She looked to her mother. Her mother looked at her and said, ‘It‘s your story, I can‘t tell it.’ And then she proceeded to tell me what I had written down.” McBee‘s argument lacks merit because it is clear that Smith‘s statement was not offered to prove its truth. Rather, Eichenlaub was describing the cоnditions of HM‘s in-hospital disclosure, and conveying HM‘s initial reluctance to repeat her accusation against McBee. Because the testimony was offered for a nonhearsay purpose, it did not violate the general rule against hearsay, and its admission did not constitute plain error.
Affirmed.
/s/ Michael J. Talbot
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello