Lead Opinion
Defendant appeals as of right his jury trial convictions of first-degree criminal sexual conduct (CSC), MCL 750.520b(l)(a) (victim under 13 years of age), and second-degree CSC, MCL 750.520c(l)(a) (victim under 13). Because defendant was denied the effective assistance of counsel during both the pretrial and trial proceedings and the cumulative effect of the trial errors denied him a fair trial, we vacate his convictions and sentences and remand to the trial court for reinstatement of the prosecution’s plea offer. If defendant refuses to accept the offer, he is entitled to a new trial.
I. TRIAL ERRORS
Defendant argues that the trial court erroneously admitted the testimony of several witnesses as well as a videotape of the child complainant’s Care House interview. Some of defendant’s claims of error are preserved for our review and some are not. “To 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.” People v Aldrich,
Defendant contends that the trial court erred by admitting, under MRE 803A, Jennifer Wheeler’s testimony regarding the statements that the child, KD, made to Wheeler during an interview at Care House. MRE 803A, the “tender years” hearsay exception, states in relevant part:
A statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided:
(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without indication of manufacture;
(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; and
(4) the statement is introduced through the testimony of someone other than the declarant.
If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule.
Defendant contends that Wheeler’s testimony was inadmissible under MRE 803A because (1) the statements were elicited during a forensic interview and were therefore not spontaneous, (2) the statements were made more than one year after the alleged incidents and there is no indication that fear or another equally effective circumstance caused the delay, and (3) the statements should not have been “broken up” into two segments regarding each of the alleged acts. Because defendant did not challenge the admissibility of the statements on this basis below, that argument is not preserved for our review. Having reviewed the record, we conclude that Wheeler’s testimony regarding KD’s statements was not properly admissible under MRE 803A.
"Whether KD’s statements to Wheeler were “spontaneous” within the meaning of MRE 803A is a close question. In People v Gursky,
Ms. Wheeler: Well, you know what, [KD], I’m gonna tell you a little bit about me and this place here, okay? All right. My name’s Jennifer just in case you forgot that. This place here is called Care House, and we call it Care House not because anyone lives here—
[KD]: Um-hum.
Ms. Wheeler: —just because everyone who works here really cares about kids. You know what my job is here at Care House?
[KD]: M-mm.
Ms. Wheeler: It’s to listen and talk with kids. That’s what I do every single day all day long. I talk to little kids. I talk to older kids like you. Sometimes even teenagers.
[KD]: Teenagers?
Ms. Wheeler: Yeah, teenagers. And when I talk to kids, they tell me everything. They tell me about their friends and their families. They tell me about their moms and their dads. They tell me about things that happen to them. Things that they saw. Things that they heard. They tell me about worries and problems. They tell me about secrets. They even tell me about things that people tell them not to tell, and that’s okay because as long as you talk to me today, you get to tell me anything and everything that you want. Okay?
[KD\: Know what, my daddy makes me suck his peepee.
Considering Wheeler’s prompting, the fact that KD had already talked to her therapist about the alleged sexual abuse, and the fact that KD’s mother had told her during the 45- to 60-minute drive that she was going to be interviewed, KD’s statements to Wheeler were arguably not spontaneous.
KD’s statement to Wheeler regarding sucking defendant’s “peepee” was also inadmissible under MRE 803A because it was not KD’s first corroborative statement about that incident. KD made the first corroborative statement about that incident to her mother rather than Wheeler. Thus, Wheeler’s testimony that KD told her that defendant made her suck his “peepee” was inadmissible under MRE 803A.
Wheeler also testified that KD told her that she and her stepsister had touched defendant’s penis on one occasion. This incident was separate from the incident during which the alleged oral sex occurred. While KD’s statements regarding the touching incident were the first corroborative statements regarding that incident, Wheeler’s testimony regarding the statements was nevertheless inadmissible because not all the requisites of MRE 803A were satisfied, as discussed earlier. Thus, KD’s statements to Wheeler regarding both incidents were inadmissible under MRE 803A.
Defendant next argues that the trial court erred by admitting the videotape of KD’s Care House interview. Over defense counsel’s objection that the videotape was inadmissible under MRE 803A, the video was played before the jury. Because KD’s statements to Wheeler, depicted in the video, were inadmissible under MRE 803A, the admission of the videotape was also
Defendant next contends that KD’s credibility was improperly bolstered when the trial court admitted the hearsay testimony of KD’s mother, JB, who testified that while riding in the car one day, KD spontaneously said, “I sucked my daddy’s peepee until the milk came out, and my daddy said, oh, yeah, that’s how you do it.” Defense counsel did not object to the testimony, which constituted inadmissible hearsay. Although the prosecution argues that the testimony was admissible under MRE 803A, the statement was not made immediately after the incident and there is no indication that fear or another equally effective circumstance caused the delay. Thus, the testimony was inadmissible under MRE 803A.
Defendant next argues that the trial court erred by admitting the hearsay testimony of Michigan State Police Detective Sergeant Gary Muir, which improperly vouched for KD’s credibility. “It is generally improper for a witness to comment or provide an opinion on the credibility of another witness, because credibility matters are to be determined by the jury.” People v Dobek,
At trial, Muir testified about a recorded telephone conversation that JB had with defendant at Muir’s request. When asked about the context of the conversation, Muir testified:
A. She [JB] was asking — she was telling him basically what [KD] had talked about, and based on that information, he was talking to her back about it, too.
Q. Okay, well, let’s cut right to it. Did she tell or do you recall did she tell the defendant the allegations that [KD] had made?
A. Yes, she did.
Q. Okay, what specifically do you recall her telling the defendant?
A. That [KD] had said that she had sucked on her dad’s peepee and stuff came out basically.
Q. Okay, and you recall her actually telling the defendant that on the telephone.
A. Yes.
Q. All right, and what was his response if you can recall?
A. He didn’t know, y’know, why she was saying that basically.
Q. Okay. Did she make any other inquiries of the defendant on the telephone?
A. Yeah. Without reviewing the tape, I recall there was other conversation, and she was just basically trying to get to the bottom of, y’know, I know my daughter don’t lie; why is she making these allegations then; was there anything that happened that, y’know, she might have seen or observed that would cause her to say this happened?
Q. Was there ever any discussion about an incident that may have occurred where it was acknowledged that [KD] touched the defendant?
A. There were actually — actually two incidents. One was touching, and one was when he was actually — another time, and I don’t know what the time sequence was. There was one where he had made a comment about [KD] touching him and he’s find — waking up or something to that effect, and he said that he told her [JB] about that, and she [JB] didn’t recall that.
Muir’s testimony, which was admitted without any objection by defense counsel, constituted inadmissible hearsay and tended to bolster KD’s credibility. As such, it was not properly admissible.
Defendant also argues that the testimony of Child Protective Services worker Diana Fallone was inadmissible because it improperly vouched for KD’s credibility. Again, defense counsel did not object to the testimony. Fallone testified that she filed a petition in a child protective proceeding based on KD’s allegations. She further testified as follows:
Q. If you thought the child was lying, and I don’t mean this particular case, but any case—
A. Right.
Q. —you thought the child was lying, would you still seek a petition?
A. No.
Q. In this case before us now regarding [KD]—
A. Um-hum.
Q. Is that a yes?
A. Yes.
Q. Okay.
A. Sorry.
Q. Did — did you — was this investigation that you’ve described to us, was it completed?
A. Yes.
Q. Okay, and you’re indicating that you sought the court’s assistance, you filed a petition in a child protection proceeding in Oakland County, correct?
A. Correct.
Q. All right. Does that — can that lead us to the conclusion that you found that the allegations had been substantiated?
A. Yes.
In addition, Fallone testified that “there was no indication that she [KD] was coached or being untruthful[.]” Fallone’s testimony directly commented on KD’s credibility and bolstered the allegations against defendant. Accordingly, the testimony was not properly admissible.
Defendant next argues that he was denied the effective assistance of counsel because defense counsel failed to object to the erroneous admission of the testimony previously discussed. He also contends that his counsel rendered ineffective assistance by failing to impeach KD with her preliminary examination testimony. “Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc,
Defense counsel testified at a Ginther
The first witness to testify at trial was KD herself, who testified that she “sucked [her] daddy’s peepee.” She claimed that she touched defendant’s penis with her hands on one occasion and with her mouth on another occasion. She further testified that “milk” came out of defendant’s “peepee,” which tasted “like peepee and regular milk.” KD denied telling JB that the “milk” tasted like cherry. Thereafter, JB testified without objection that KD had told her that she “sucked [her] daddy’s peepee until the milk came out, and [her] daddy said, oh, yeah, that’s how you do it.” This testimony was hearsay, as previously discussed, and was consistent with and bolstered KD’s testimony. Upon questioning by defense counsel, JB testified that KD had never told her that the “milk” tasted like cherry, but she recalled KD testifying to that effect “at the preliminary thing.” Defense counsel did not impeach KD with her preliminary examination testimony that the “milk” tasted like cherry.
Defense counsel also permitted Muir to testify without objection that JB had telephoned defendant and asked him about KD’s allegation that “she had sucked on her dad’s peepee and stuff came out[.]” As previously discussed, Muir repeated JB and defendant’s conversation, including JB’s inquiry of defendant regarding why KD was making the allegation because KD does not lie. Muir also testified that defendant admitted that he awoke on one occasion to discover KD touching his penis. Defendant told JB that he had previously told her about that incident, but JB did not recall defendant mentioning it. As discussed, this testimony constituted hearsay and improperly bolstered KD’s credibility.
In addition, defense counsel allowed Fallone to testify without objection that she found KD’s allegations credible and that there was no indication that KD had been coached. Also, as previously discussed, this testimony was improper, and counsel’s failure to object was not consistent with
Further, defense counsel failed to impeach KD with her preliminary examination testimony, during which she made several statements that supported counsel’s trial strategy. In particular, KD testified that her mouth never touched defendant’s penis, that her mother “wanted [her] to tell you people [she] sucked it” and that “milk” came out, and that her mother wanted her to “tell a lie that [she] didn’t know anything about[.]” Although KD also made inconsistent statements at the preliminary examination that tended to support her allegations, there was no logical reason for counsel not to impeach KD’s trial testimony with her preliminary examination testimony because it supported counsel’s theory that KD was not credible and that JB had coached her to make the allegations. Such impeachment would have supported counsel’s strategy, discussed at the Ginther hearing, to convince the jury that “the young lady was testifying as to what she thought happened, but. . . she really had no idea what had happened.”
After reviewing the record, we conclude that counsel’s ineffective assistance, in addition to the erroneous admission of the Care House interview and Wheeler’s testimony regarding KD’s statements, denied defendant a fair trial. “The cumulative effect of several errors can constitute sufficient prejudice to warrant reversal even when any one of the errors alone would not merit reversal. .. Dobek,
Defense counsel’s failure to object to the hearsay testimony that repeated and bolstered KD’s testimony in combination with Wheeler’s erroneously admitted testimony and the improper admission of KD’s Care House interview undermined the reliability of the verdict. Perhaps the most damning evidence was the video of KD’s Care House interview, which depicted then four-year-old KD saying, “[M]y daddy makes me suck his peepee,” “I just sucked it because I know how to suck peepee,” and “milk” came out. The video further depicted Wheeler and KD’s discussion as follows:
Q. And what did — what did it taste like?
A. Taste like peepee.
Q. Tastes like peepee. And where did the white stuff like milk go? Where did it go?
A. Like this. Like this. It goed like all the way up. And I — I like drinked it, and I said, pew, that’s yuk.
Q. You said you drank it, and you said, pew, that’s yuk?
A. [Nods head]
Q. Okay, and then where did it go?
A. Hm?
Q. Did it go — where did it go? Where did all the white stuff like milk go?
A In my mouth.
Q. In your mouth, okay. And — and where did it go once it went in your mouth?
A. It — [points to her throat]
The cumulative effect of the errors denied defendant a fair trial and undermined confidence in the reliability of the verdict. Id.
Q. Well, the point I’m getting to, detective, is I don’t want anybody to be under any misunderstanding that you looked at [defendant] and said, did you sexually assault your daughter, and him saying I can’t remember doing that. The issue is you asked him do you remember and then him saying I don’t remember.
A. Right, that’s correct.
On redirect, Rothman testified that defendant’s response that he did not remember was in response to both direct questioning about whether the incident occurred and questioning regarding whether defendant remembered the conduct occurring. In light of the extensive errors that permeated defendant’s trial, Rothman’s testimony is not sufficient to surmount our conclusion that defendant was denied a fair trial and that the errors undermined the reliability of the verdict. We therefore vacate defendant’s convictions and sentences.
II. PRETRIAL ERRORS
Defendant also argues that he was denied the effective assistance of counsel at the pretrial stage of the proceeding because counsel failed to inform him that he would he subject to a 25-year mandatory minimum sentence if he was convicted of first-degree CSC and because counsel erroneously advised him that he would not be able to live with his children if he was required to register as a sex offender pursuant to the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. Again, we conclude that counsel’s performance was constitutionally deficient. We further conclude that counsel’s deficient representation prejudiced defendant.
A defendant’s Sixth Amendment right to counsel extends to the plea-bargaining process. Lafler v Cooper,
Defense counsel’s failure to inform defendant in this case that he would receive a 25-year mandatory minimum sentence if convicted of first-degree CSC fell below an objective standard of reasonableness. Padilla,
In Lafler, the Court articulated the standard that a defendant must establish in order to demonstrate prejudice in cases in which counsel’s ineffective advice led the defendant to reject a plea offer and proceed to trial. The Court stated:
In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.[5 ]
Defense counsel’s erroneous advice here prejudiced defendant. On the morning of trial, the prosecution offered defendant the option of pleading guilty of fourth-degree CSC. Defense counsel advised defendant that if he accepted the offer, the worst sentence that he could receive was 10 months in jail with the requirement that he register as a sex offender. Counsel testified at the Ginther hearing that if he had known that first-degree CSC carried a mandatory 25-year minimum sentence, he “would have absolutely pressed [defendant] and insisted that he take the deal.” Moreover, defendant testified that, had his attorney advised him of the 25-year mandatory minimum sentence, he would have taken the plea offer because “[a] 25-year minimum is a lot different than the possibility of not going to prison.” Defendant maintained that he would have accepted the plea offer even if doing so meant that he would have been permitted very little or no contact with his children. According to defendant, counsel erroneously advised him that he would not be permitted to reside with his children for as long as he was required to register as a sex offender. Defendant testified that he did not learn until after trial that SORA would not have prohibited him from residing with his children and that counsel’s misinformation regarding SORA
Having concluded that defendant satisfied both prongs of the Strickland test, we must now determine the appropriate remedy. In doing so, we note that the circumstances of this case are very similar to those in Lafler, in which the respondent had rejected two plea offers on the basis of defense counsel’s erroneous advice and was convicted following trial. Id. at_;
The correct remedy in these circumstances ... is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed. See Mich. Ct. Rule 6.302(C)(3) (2011) (“If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may... reject the agreement”). Today’s decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case. [Lafler, 566 US at_;132 S Ct at 1391 .]
The instant case differs from Lafler in one material respect. In this case, defendant was denied the effective assistance of counsel at both the plea bargain and trial stages of the proceeding.
Defendant’s convictions and sentences are hereby-vacated, and this case is remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
We reject the prosecution’s argument that KD’s statements to Wheeler and the videotape were admissible under MRE 803(24), the “catchall exception” to the hearsay rule. Tobe admissible under that rule, a statement must have “circumstantial guarantees of trustworthiness equivalent to those of the categorical hearsay exceptions.” People v Katt,
As previously recognized, the record fails to indicate any reason for KD’s yearlong delay in disclosing the alleged abuse. Thus, on this record, KD’s statement to JB was inadmissible under MRE 803A. We note, however, that if this case is retried and the prosecution is able to establish that fear or another equally effective circumstance caused the delay, KD’s statement to JB may be properly admissible under MRE 803A. We emphasize that our determination regarding this issue is based on the record before us.
We note that it was permissible for Fallone to testify in the abstract regarding characteristics consistent or inconsistent with coached allegations. Her testimony that she conducted an investigation before seeking a petition was likewise permissible. The error occurred when Fallone was permitted to render an opinion specifically regarding KD’s credibility. That testimony improperly vouched for KD’s credibility and was inadmissible. Dobek,
People v Ginther,
Lafler,
If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence, lid. at_;132 S Ct at 1387 .]
In People v Fonville,
The respondent in Lafler was convicted following a fair trial, free of constitutional error. See Lafler,
We note that it does not appear from the record that the prosecution offered defendant a plea agreement, as was the case in Lafler. See Lafler,
Concurrence Opinion
(concurring). I agree and concur with the majority in all respects other than the majority’s conclusion that KD’s statement to her mother was not admissible pursuant to MRE 803A. Under the circumstances of this case, I would not reverse the admission of KD’s report of the abuse to her mother under MRE 803A(3). Because, for the other reasons discussed by the majority, this matter must be remanded for a new trial irrespective of the admissibility of that statement, I concur in the result. However, I write separately to address the concerns I have regarding what constitutes an excusable delay in reporting under MRE 803A(3).
The so-called “tender-years exception” to the hearsay evidence rule originated in People v Gage,
[a] child would ordinarily have no sense of outrage at such acts by her own father, and complaining of them would not occur to her. Her telling of the affair would more naturally arise as the relation of an unusual occurrence and might be delayed until something arose to suggest it. [Id.]
The Court opined that a mere admonition by the victim’s father to not tell anyone what happened was “as effective to promote delay as threats by a stranger would have been.” Id.
I understand MRE 803A to be nothing but a codification of the old common-law tender-years rule, which our Supreme Court held in 1982 did not survive the adoption of the then new Rules of Evidence. People v Kreiner,
The abuse in question occurred in mid-May to June 2008. At that time, KD was living with defendant, apparently because of some kind of involvement by Child Protective Services. KD did not return to living with her mother until the next January, approximately eight months later. KD was, moreover, approximately 3V2 years old at the time of the abuse. KD’s mother and the Care House interviewer both explained that four-year-olds do not understand “concepts of time.” Given that KD was living with defendant until January 2009, she may not have had a realistic opportunity to report the abuse for most of the year it took her to do so. The delay in disclosure would not likely have been subjectively apparent to her, and, as Baker suggests, KD would not necessarily have even understood at her age why the abuse was something she should report to anyone. Even if she had appreciated the nature of the acts, it is common and basic knowledge of how human beings operate that shame and confusion are powerful motivators of silence.
This is not to say that I do not find the record disappointing. It certainly would have been better had some kind of explicit record been made directly explaining why KD’s disclosure did not occur until approximately a year after the abuse took place. Had defendant objected to the admission of this testimony at trial, a record like this one might not be sufficient to permit the admission of KD’s disclosure to her mother to stand. However, had defendant objected, the prosecution would have had an opportunity to make that record. I do not decide that question, though. As the matter is before us, our review of this unpreserved evidentiary challenge is for plain error affecting defendant’s substantial rights. People v Carines,
Under the totality of the circumstances of this case, I would conclude that plain error affecting defendant’s substantial rights did not occur and, consequently, I would not reverse the admission of KD’s disclosure of the abuse to her mother. However, because this matter must be remanded for a new trial in any event, I concur with the majority.