People v. GenoPeople v. Geno
Defendant appeals as of right from his conviction, following a bench trial, of first-degree criminal sexual conduct,
Defendant‘s conviction arises out of the sexual assault of the two-year-old daughter of defendant‘s girlfriend. When the victim‘s father picked the victim up from the home of her mother and defendant, he noticed that she was uncomfortable and did not want her father to change her. Once he did, her father noticed irritation and bruising around the child‘s vaginal area as well as blood in the child‘s pull-up underpants. Her father contacted Children‘s Protective Services, which arranged to have an assessment and interview of the child by the Children‘s Assessment Center. At the interview, the victim asked the interviewer to accompany her to the bathroom. The interviewer noticed blood in the child‘s pull-up underpants and asked the child if she “had an owie?” The child answered, “yes, Dale [defendant] hurts me here,” pointing to her vaginal area.
Defendant was questioned by a city of Muskegon police detective and explained that, some weeks earlier, he had changed the child and may have hurt her. He denied, however, touching her in a sexual way. During subsequent police interviews, defendant admitted that he was molested as a child, that he was sexually attracted to children, and that he had sexually fantasized about the victim. He also explained that while wiping the victim in the course of changing her, he may have accidentally inserted his finger into the victim‘s vagina. Defendant later wrote and signed a statement in which he admitted that his finger
Before trial, defendant moved to suppress this statement, arguing that it was coerced by the detectives and that the detectives made promises of leniency and threats that they would prosecute defendant‘s girlfriend if he did not make the statement. An evidentiary hearing was held at which defendant testified that such promises and threats were made and the detectives testified that promises and threats were not made. The court found that, on the basis of the demeanor and credibility of the witnesses, it believed the detectives, and therefore concluded that threats and promises were not made and that the statement was voluntary. The court also granted the prosecution‘s pretrial motion to allow the admission of hearsay evidence under the residual exception,
On appeal, defendant first argues that trial court should have suppressed all testimony arising out of the custodial interrogations because the police failed to make audio or video recordings of the interrogations. We disagree.
Defendant did not raise this issue of alleged constitutional error below and therefore it is unpreserved on appeal. As such, we will only review for plain error. People v. Carines, 460 Mich. 750, 597 N.W.2d 130 (1999). Otherwise, we review claims of constitutional error de novo. People v. Rodriguez, 251 Mich.App. 10, 25, 650 N.W.2d 96 (2002).
The United States Supreme Court has refused to extend the Due Process Clause of the United States Constitution1 to require that electronic recordings be made of custodial interrogations. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). However, defendant points to an Alaska case in which the due process provision of the Alaska constitution was construed to require that electronic recordings be made. Stephan v. State, 711 P.2d 1156 (Alaska1985). Defendant argues that the Due Process Clause of the Michigan Constitution2 requires the same interpretation. This very question, however, has already been decided by a panel of this Court. In People v. Fike, 228 Mich.App. 178, 577 N.W.2d 903 (1998), we clearly and explicitly rejected the defendant‘s argument that testimony arising out of his custodial interrogation should be suppressed because it was not tape recorded. We relied heavily on the fact that this is not required by the United States Constitution, stating:” `the courts of this state should reject unprincipled creation of state constitutional rights that exceed their federal counterparts.‘” Id., 185, 577 N.W.2d 903, quoting Sitz v. Dep‘t of State Police, 443 Mich. 744, 763, 506 N.W.2d 209 (1993). The panel, after examining the Alaska decision that defendant cites here, also noted that most states have rejected the requirement as being constitutionally mandated.3Fike, supra at 185, 577 N.W.2d 903. Ultimately, we concluded that granting the defendant‘s request would constitute an unprincipled creation of state constitutional rights.
The Fike decision is controlling,
Next, defendant argues that the prosecution failed to show that defendant‘s statements were made voluntarily. We disagree.
Michigan‘s constitutional provision against self-incrimination,
Defendant argued before the trial court that his oral and written statements made to the police were coerced because the detectives made promises of leniency or otherwise threatened to prosecute defendant‘s girlfriend if he did not write out the statement. After an evidentiary hearing, however, the trial court found that the detectives’ story was more credible and made the factual finding that no such promises or threats were made. On appeal, defendant bases his coercion argument on his contention that threats and promises were made. In People v. Burrell, 417 Mich. 439, 448-449, 339 N.W.2d 403 (1983), our Supreme Court said:
This Court will not disturb a trial court‘s ruling at a suppression hearing unless that ruling is found to be clearly erroneous. Resolution of facts about which there is conflicting testimony is a decision to be made initially by the trial court. The trial judge‘s resolution of a factual issue is entitled to deference. This is particularly true where a factual issue involves the credibility of the witnesses whose testimony is in conflict. People v. White, 401 Mich. 482, 257 N.W.2d 912 (1977). See People v. Dinsmore, 103 Mich.App. 660, 303 N.W.2d 857 (1981).
Giving proper deference to the trial court‘s credibility determination, there were no promises or threats made, and thus the factual predicate for defendant‘s argument is unsupported. Therefore, defendant‘s argument here fails.
Next, defendant argues that the court erred in allowing the admission of the hearsay testimony of the executive director of the Children‘s Assessment Center under
On appeal, defendant claims that introduction of the child‘s statement through the testimony of the Children‘s Assessment Center‘s executive director violated his constitutional right to confront the declarant.
Although defendant argues on appeal that admission of the child‘s statement violated his right of confrontation, his argument is based on the assertion that the trial court incorrectly analyzed the admissibility factors of
Even were we to consider the Confrontation Clause portion of defendant‘s argument in light of Crawford (recognizing that defendant fails to establish that the Crawford decision would be retroactively applicable to him when he failed to preserve the confrontation issue at trial), we would find no plain, outcome-determinative error. We recognize that with respect to “testimonial evidence,” Crawford has overruled the holding of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), permitting introduction of an unavailable witness‘s statement — despite the defendant‘s inability to confront the declarant — if the statement bears adequate indicia of reliability, i.e., it falls within a “firmly rooted hearsay exception” or it bears “particularized guarantees of trustworthiness.” Id. at 66, 100 S.Ct. 2531. However, we conclude that the child‘s statement did not constitute testimonial evidence under Crawford, and therefore was not barred by the Confrontation Clause. The child‘s statement was made to the executive director of the Children‘s Assessment Center, not to a government employee, and the child‘s answer to the question whether she had an “owie” was not a statement in the nature of “`ex parte in-court testimony or its functional equivalent....‘” Crawford, supra, 541 U.S. at ___, 124 S.Ct. at 1364, 158 L.Ed.2d at 193 (quoting the petitioner‘s brief). In circumstances involving nontestimonial evidence, “it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Crawford, supra, 541 U.S. at ___, 124 S.Ct. at 1374, 158 L.Ed.2d at 203.
Therefore, we conclude, at least with respect to nontestimonial evidence such as the child‘s statement in this case, that the reliability factors of People v. Lee, 243 Mich.App. 163, 178, 622 N.W.2d 71 (2000), are an appropriate means of determining admissibility. We have applied that analysis in this opinion. We therefore conclude that defendant has failed to establish plain, outcome-determinative error with respect to his Confrontation Clause claim.
Regarding defendant‘s claim that the child‘s statement was improperly admitted under
(1) it must have circumstantial guarantees of trustworthiness equal to the categorical exceptions, (2) it must tend to establish a material fact, (3) it must be the most probative evidence on that fact that the offering party could produce through reasonable efforts, and (4) its admission must serve the interests of justice. Also, the offering party must give advance notice of intent to introduce the evidence. [Katt, supra at 279, 662 N.W.2d 12.]
The statement in this case does not fall within any other
Finally, the executive director was listed as a witness, the issue was raised before trial, a pretrial evidentiary hearing was held at which the director testified concerning the child‘s statement and the circumstances under which it was made, and the trial court ruled that the statement was admissible. Defendant therefore had notice, in advance of trial, of the prosecutor‘s “intention to offer the statement and the particulars of it, including the name and address of the declarant.”
In Lee, supra, a panel of this Court explained what factors should be reviewed in determining whether certain statements have “`particularized guarantees of trustworthiness‘” as demonstrated by consideration of “`the totality of the circumstances.‘”
(1) the spontaneity of the statements, (2) the consistency of the statements, (3) lack of motive to fabricate or lack of bias, (4) the reason the declarant cannot testify, (5) the voluntariness of the statements, i.e., whether they were made in response to leading questions or made under undue influence, (6) personal knowledge of the declarant about the matter on which he spoke, (7) to whom the statements were made ..., and (8) the time frame within which the statements were made. [Lee, supra at 178, 622 N.W.2d 71 (citations omitted).]
A review of the record confirms the trial court‘s findings regarding these factors. The executive director merely asked the victim, “Do you have an owie?” Without any further questioning, the victim replied, “Dale hurts me here.” There is no evidence that the victim made any statement inconsistent with her statement that defendant hurt her. The victim cannot testify because of her age; she does not qualify as a witness under
The only real concern that defendant points to on appeal is that the victim‘s father may have had a motive to influence the victim to make the statement, which would go to the factor concerned with a motive to fabricate or bias. However, there is simply no evidence on the record to support defendant‘s suggestion. Accordingly, we find that the trial court did not abuse its discretion in admitting the hearsay statements under
Finally, defendant argues that the trial court erred in imposing its sentence by improperly making an upward departure from the sentencing guidelines. We disagree.
“`[T]he existence or nonexistence of a particular [sentencing] factor is a factual determination for the sentencing court to determine, and should therefore be reviewed by an appellate court for clear error. The determination that a particular factor is objective and verifiable should be reviewed by the appellate court as a matter of law. A trial court‘s determination that the objective and verifiable factors present in a particular case constitute substantial and compelling reasons to depart from the statutory minimum sentence shall be reviewed for abuse of discretion.‘” People v. Babcock, 244 Mich.App. 64, 75-76, 624 N.W.2d 479 (2000)(Babcock I), quoting People v. Fields, 448 Mich. 58, 77-78, 528 N.W.2d 176 (1995) (citations omitted); see also People v. Babcock, 469 Mich. 247, 264-265, 666 N.W.2d 231 (2003) (Babcock II).
The ultimate authority to provide penalties for criminal offenses is constitutionally vested in the Legislature.
Defendant characterizes the trial court‘s reason for the departure as based on “future dangerousness” and argues that this reason is not objective and verifiable. Plaintiff argues that the trial court‘s reasoning was based on factors such as defendant‘s past record, defendant‘s failure to rehabilitate himself, and defendant‘s disturbing sexual attraction to young children.
Objective and verifiable factors are those that are external to the minds of the judge, defendant, and others involved in making the decision, and are capable of being confirmed. People v. Abramski, 257 Mich.App. 71, 74, 665 N.W.2d 501 (2003). Though the trial court‘s statements on the record mention the future risk that defendant poses to small children, we find that the actual underlying factors the court considered were defendant‘s past criminal history of sex crimes with children, his admitted sexual attraction to children, and his repeated failure to rehabilitate himself when given the opportunity. These underlying factors are clearly objective and verifiable and are substantial and compelling reasons to support his upward departure.
Moreover, we have, on a prior occasion, sustained an upward departure in sentencing based on the fact that the sentencing guidelines did not adequately consider the defendant‘s “sexual attraction toward little boys” and that the guidelines did not adequately consider “the need to protect other children....” People v. Armstrong, 247 Mich.App. 423, 425, 636 N.W.2d 785 (2001). Accordingly, the court did not err in imposing its sentence on defendant.
Affirmed.