PEOPLE v MUSSER
Docket No. 145237
Supreme Court of Michigan
Decided July 12, 2013
494 MICH 337
Docket No. 145237. Argued March 6, 2013 (Calendar No. 5). Decided July 12, 2013.
John M. Musser was convicted by a jury in the Kent Circuit Court of two counts of second-degree criminal sexual conduct,
In a unanimous opinion by Justice CAVANAGH, the Supreme Court held:
Out-of-court statements made by police investigators during the interrogation of a defendant that vouch for the credibility of another, that are not offered for the truth of the matter asserted but to provide context for the defendant‘s statements, are admissible if they are relevant for their proffered purpose in accordance with MRE 401; even if relevant, such statements may be excluded under MRE 403 if the probative value is substantially outweighed by the danger of unfair prejudice and a party may request, pursuant to MRE 105, that the scope of such testimony be properly limited and the jury instructed accordingly.
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 because it is within the jury‘s province to determine the truthfulness of witnesses. Pursuant to MRE 401, the party seeking to introduce a police interrogator‘s out-of-court statements through a recording or written transcript of the interview must explain how the statements are relevant to the proffered purpose of providing context for the defendant‘s responses. Even if the statements are relevant, they may be excluded under MRE 403 if the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence sought to be introduced; in child-sexual-abuse cases the danger of prejudice is high because such cases often hinge on credibility assessments. If such statements are admitted, a party under MRE 105 may request an instruction restricting the evidence to its proper scope. - In this case, the circuit court abused its discretion by failing to redact the majority of the detectives’ out-of-court statements from the interrogation recording in which they commented on credibility; most of the statements had no probative value and, even if there was some probative value to the statements that the trial court erroneously failed to redact, the prejudicial effect of the remaining statements outweighed any probative value because of the dangers inherent in child-sexual-abuse cases. Admission of the statements undermined the reliability of the verdict because the jury may have relied on the detectives’ repeated out-of-court statements regarding the complainant‘s credibility, there was a lack of physical evidence and the comments created an aura of expertise for the one police investigator. The belated limiting instruction did not cure the error.
Court of Appeals’ judgment reversed, defendant‘s convictions vacated, and the case remanded to the trial court for further proceedings.
WITNESSES — OUT-OF-COURT STATEMENTS — VOUCHING FOR CREDIBILITY — CONTEXT FOR STATEMENTS — STATEMENTS MADE DURING POLICE INTERROGATION.
Out-of-court statements made by police investigators during the interrogation of a defendant that vouch for the credibility of another, that are not offered for the truth of the matter asserted but to provide context for the defendant‘s statements, are admissible if they are relevant for their proffered purpose in accordance with MRE 401; even if relevant, such statements may be excluded under MRE 403 if the probative value is substantially outweighed
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.
Dickinson Wright PLLC (by Dennis C. Kolenda) and Richard A. Glaser, PLLC (by Richard A. Glaser), for defendant.
Amicus Curiae:
David Gilbert and Heather Garretson for the State Bar of Michigan, Criminal Law Section.
CAVANAGH, J. Defendant was convicted of two counts of second-degree criminal sexual conduct,
At this juncture, we find it unnecessary to adopt a bright-line rule requiring the automatic redaction of such statements. Instead, applying our rules of evidence, we hold that if such out-of-court statements are not offered for the truth of the matter asserted, the
Under the facts of this case, we hold that the trial court abused its discretion by allowing all the detectives’ statements commenting on credibility to be presented to the jury on the basis that the statements provided “context” for defendant‘s statements, when most of the detectives’ statements were irrelevant for that purpose. Because the error in this case undermined the reliability of the verdict, we reverse the judgment of the Court of Appeals, vacate defendant‘s convictions, and remand the case to the trial court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The convictions in this case relate to events occurring in the Spring of 2009 while the complainant and her family were at defendant‘s home.
The complainant testified that she, her mother, father, and brother went to defendant‘s home to watch a hockey game with defendant and his family. According to the complainant, she became tired and slouched back on one of defendant‘s couches, attempting to fall asleep. One of defendant‘s children was asleep in the same room on another couch, while the adults and another child were downstairs in defendant‘s basement. Two other children were asleep somewhere else in defendant‘s home. The complainant testified that while she was feigning sleeping, defendant put his hands on her inner thighs and later touched her breasts while cover-
A friend of the complainant testified that in late April 2010, she and the complainant were talking about secrets when the complainant stated that someone had touched her while at a gathering, but she did not indicate where she had been touched. Although the friend told the complainant that she needed to tell someone, the complainant did not do so until approximately two weeks later after getting into an argument with her mother.
Jennifer testified that in May 2010, she had been teasing the complainant over her homework when the complainant ran out of the room, upset. Jennifer followed the complainant to her bedroom to find out what was wrong. When the complainant began to cry and indicated that she did not wish to speak, Jennifer asked her a series of questions, including whether she was fighting with a friend or whether someone in the neighborhood had hurt her. When the complainant answered negatively to Jennifer‘s questions, Jennifer asked the complainant if she was having a problem with a grownup, to which the complainant nodded “yes.” Jennifer eventually asked the complainant if the problem was with defendant, who, according to the com-
That same day, Detective Kolakowski and Detective William Heffron interviewed defendant. Defendant was informed by Detective Kolakowski when he arrived at the Sheriff‘s Department that the complainant had accused him of inappropriate touching while their families were watching a game a year earlier at defendant‘s home. Throughout the interview, defendant denied any improper contact with the complainant, but remembered coming upstairs to get a drink while the complainant and her family were watching a hockey game. Defendant stated that he saw the complainant asleep, hugged her, and gave her a kiss on her cheek or forehead. Defendant acknowledged that he had been drinking that night, that the complainant seemed vulnerable because she appeared to be asleep, and that his hands accidentally touched the skin of the complainant‘s back when he put his arms around her. Defendant, however, explained that none of his actions were sexual, and he did not touch the complainant inappropriately or in the places that she claimed that she was touched. Defendant stated that he and the complainant had always been affectionate, and the complainant had often greeted defendant with a hug and a kiss when they saw each other.
DETECTIVE KOLAKOWSKI: . . . Kids have a hard time lying about this stuff because they don‘t even want to talk about it, let alone they don‘t even want to talk about it to a mere fucking stranger.
DETECTIVE HEFFRON: Especially a 12 year old girl.
DETECTIVE KOLAKOWSKI: And she tells me what happened? And she tells our counselors what happened? And these are — and — and with these interviews, too, it‘s not just a interview of, “tell me what happened,” . . . they‘re . . . done with . . . Michigan adopted, basically, a forensic interview protocol that there‘s a special way that kids have to be interviewed. They‘re not interviewed like I can interview you, all right? [Y]ou know what? If you can‘t do it for yourself, do it for your own little girl . . . . Make sure she knows that men have to answer to the truth. And make sure that [the complainant] knows that, you know what? [Y]eah, someone fucked up . . . . She‘s having a devastating time. She loves you. She cares about you. She cares about your family. You want to know what her concern was? You want to know why she waited to tell? Do you want me to tell you?
[DEFENDANT]: Sure.
DETECTIVE KOLAKOWSKI: I‘ll tell you . . . .
* * *
DETECTIVE HEFFRON: You know there‘s a big difference when we interview 4, 5, 6 year olds and when they get up around 10, 11, 12, 13. There‘s a big difference. Four, five, six year old kids, they‘re easy to manipulate by parents, aunts, uncles — they‘re easy to manipulate. They‘re terrible actors. They‘re terrible. When kids start getting a little bit older they‘re better actors. They‘re — they‘re older, they‘re seeing more. She‘s 12. The big issue here is if she wanted to
get you in trouble — she‘s smart enough, and she‘s only — and she‘s 12 — if, for whatever reason, she wanted to get you in trouble she would — she would —
[DEFENDANT]: That she would say that I fucked her?
DETECTIVE HEFFRON: Absolutely.
[DEFENDANT]: Yeah.
DETECTIVE HEFFRON: Absolutely. “He put his hand down my pants, his finger was in my vagina” all of this “his mouth was on my breast” — that‘s what they would do if they‘re gonna lie to get somebody in trouble, . . . an older kid like that. Little kids, they never‘ve [sic] been exposed to that stuff. They don‘t know. But it‘s pretty credible when she tells us, “Hey, he touched . . . me here” and “he put his hand on my breasts” and . . . “his hand started going down my pants but he couldn‘t.” That‘s pretty credible; that‘s pretty detailed. Again, if there‘s no reason for her to make this crap up, why would she say it? This is the last thing . . . she wanted to do was talk to a total stranger about something like this. Why? Why is she gonna put herself through that if it didn‘t happen? We can‘t find anything. Kids don‘t lie about this stuff. They lie about their homework being done; they lie about, “yep, I did the dishes” when they didn‘t . . . . [T]hey lie about “yeah, we were in bed by 10:00.” They don‘t lie about this stuff if maybe she‘s in trouble for something. This is not the kind of stuff that kids make up to try to get out of some trouble that they‘re in. That‘s why this is so disturbing. . . . And again, if she‘s talking about “his hand was on my breast,” she‘s not gonna make that crap up. She just isn‘t. And this is your opportunity for her to eventually see that you made a mistake, you‘re human, and you want to get this worked out so she has the least amount of stress/trauma, whatever, but that she gets the . . . feeling that “I love the man, the family. He made a mistake and someday as I‘m older[“] — because she‘s always gonna remember this — this didn‘t happen when she was 2 or 3 years old — they don‘t remember that stuff. She‘s always gonna remember this. At some point she will be able to accept, “Hey, this is what happened. We all make mistakes. He made a mistake.” But you‘re gonna have to start by being
upfront. And for you to sit here and say that “well, yep, she‘s telling the truth about this, but she‘s lying about that,” . . . she‘s gonna have this report. She‘s gonna know exactly what you said, and whatever . . . message you want to send her that‘s . . . up to you. We can‘t force you. But if she‘s saying you touched her breasts — I wasn‘t there for the interview [of the complainant] but [Kolakowski, who has] done a lot of interviewing, said, “Bill, there‘s no question this happened and the stuff that I‘m aware of he probably did” — we just need to know why. Was it alcohol? Was it — I don‘t know what your sex life has been at home, but all we want to know is why. Were you ever molested as a child?
[DEFENDANT]: No.
DETECTIVE HEFFRON: Help us out here.
[DEFENDANT]: You asked a lot of different questions right there. I don‘t know — I — I don‘t know what motivated me. I think I explained it, I was just trying to give her a peck. I don‘t know where this touching of the breast is coming from. [Emphasis added.]
In addition to other statements in the interview,2 defendant made a pre-trial motion to exclude these emphasized statements. The trial court overruled defendant‘s objections, reasoning that the emphasized statements either gave context to defendant‘s statements or were “in the nature of the interrogation of the accused,” and the questions and answers could be favorable to both parties.
At trial, a video recording of defendant‘s interview was played for the jury. Before the video was played,
You‘ve been handed . . . what‘s going to be marked for appellate purposes as Exhibit 2-A. Again, the transcript is not evidence. It‘s the recording that‘s going to be played for you that‘s the evidence. . . . What you have to make your decision on is based on what . . . evidence that‘s admitted in court.
After the video was played, defense counsel moved for a mistrial, stating that he was essentially making a renewed motion to strike Detective Heffron‘s comments because, irrespective of Detective Kolakowski‘s comments regarding the complainant‘s credibility, Detective Heffron‘s statements were too prejudicial. The trial court denied defendant‘s motion. However, after an hour-long lunch recess, the judge gave the jury the following instruction in light of defendant‘s previous motion:
[A]s relates to [the DVD], which before the lunch recess was played for you, there are many statements and questions by one or more law enforcement officers. These questions or statements, no matter how short or how long, are not evidence, and you must not consider them as such. Only the answers of [the defendant] are evidence. The questions or statements of the law enforcement officers are
only provided to you to put into context the answers of [the defendant]. It is only the answers of [the defendant] that are evidence in this case.
In addition to the above testimony, an expert testified for each party, with the prosecution‘s expert stating that it is common for complainants to delay reporting their allegations, and the defense expert stating that delayed reporting can lead to incorrect recollections and that children are susceptible to suggestion by others, including their parents.
Defendant and his wife were the final witnesses. Defendant continued to deny having touched the complainant‘s breasts, inner thighs, stomach, or belt-line. Defendant‘s wife also testified, asserting that the complainant‘s testimony was flawed on the basis of calendars that she maintained to keep track of her family‘s schedules. From her records, she believed that the night in question occurred on a night that the complainant had a track meet. As a result, the complainant and her family could not have arrived at defendant‘s home until after the hockey play-off games that occurred on that date were over.
The jury found defendant guilty of two counts of second-degree criminal sexual conduct and one count of assault and battery, as a lesser-included offense of assault with the intent to commit criminal sexual conduct in the second degree.
Defendant appealed, arguing, in relevant part, that the trial court abused its discretion by failing to redact numerous statements by the detectives that vouched for the complainant‘s credibility. The Court of Appeals affirmed. The Court reasoned that the officers’ statements regarding the complainant‘s credibility were properly admitted, explaining that any introductory statements by the detectives provided context for the
II. STANDARD OF REVIEW
A trial court‘s decision to admit evidence “will not be disturbed absent an abuse of . . . discretion.” People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). A trial court abuses its discretion when it chooses an outcome that falls outside the range of principled outcomes. People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008). However, if an evidentiary error is a nonconstitutional, preserved error, then it “is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative.” People v Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002). An error is “outcome determinative if it undermined the reliability of the verdict” and, in making this determination, a court should “focus on the nature of the error in light of the weight and strength of the untainted evidence.” Id. (quotation marks and citations omitted).
III. LEGAL BACKGROUND
It is “[t]he Anglo-Saxon tradition of criminal justice . . . [that] makes jurors the judges of the credibility
This case, however, involves a twist on the traditional rule. Specifically, at issue is whether the rule barring testimony regarding the credibility of another person excludes out-of-court statements to the same effect that are contained in the recordings or transcripts of an interrogation. In such a case, the contents of the
Under Michigan‘s evidentiary rules, “hearsay” is an unsworn, out-of-court statement that is “offered in evidence to prove the truth of the matter asserted.”
In this case, only the admissibility of the detectives’ statements is at issue. Specifically, the prosecution asserts that the detectives’ statements were properly admitted because they were not offered for the truth of the matter asserted in violation of the prohibition on vouching. Instead, the prosecution asserts that the detectives’ statements were offered solely to provide context for defendant‘s statements that the prosecution wished to admit as an admission by a party opponent under
Although this Court has yet to expressly opine on this issue, other jurisdictions have come to divergent conclusions. Specifically, some jurisdictions have held that there is “no meaningful difference” between allow-
Other jurisdictions, however, have held that “there is a difference between an investigating officer giving an opinion as testimony before a jury, and an investigating officer giving an opinion during the interrogation of a suspect.” North Carolina v Castaneda, 215 NC App 144, 148; 715 SE2d 290, 294 (2011), quoting Odeh v State, 82 So 3d 915, 920 (Fla Dist Ct App, 2011). Specifically, some courts hold that because the comments are an interrogation technique and are “not made for the purpose of expressing an opinion as to
IV. ANALYSIS
Considering the prohibition on vouching and the prevalence of requests to admit recorded interrogations into evidence to present a defendant‘s statements to the jury, courts have justifiably struggled with the issue presented in this case. See Cordova, 137 Idaho at 640 (noting that courts in other jurisdictions have struggled with this precise issue). Under the facts of this case, however, we find it unnecessary to adopt a bright-line rule for the automatic exclusion of out-of-court statements made in the context of an interrogation that comment on another person‘s credibility because the issue can be adequately addressed by our existing rules of evidence. Thus, at this juncture, we hold that where the proponent of the evidence offers an interrogator‘s out-of-court statements that comment on a person‘s credibility for the purpose of providing context to a defendant‘s statements, the interrogator‘s statements
A. OVERVIEW
This Court has long held that even if an out-of-court statement is not offered for the truth of the matter asserted, the statement is not automatically admissible because the “touchstone” of admissibility is “relevance.” Id. at 388; People v Wilkins, 408 Mich 69, 72-73; 288 NW2d 583 (1980);
Determining whether a statement is relevant requires a trial court to carefully scrutinize whether the statement is both material — i.e., “offered to help prove a proposition which is . . . a matter in issue” — and probative — i.e., “tends to make the existence of any fact that is of consequence to the determination of the action more probable . . . than it would be without the evidence.” Crawford, 458 Mich at 388, 390 (citations and quotation marks omitted). Under these inquiries, if an interrogator‘s out-of-court statement is offered to provide context to a defendant‘s statement that is not “in issue,” it follows that both the interrogator‘s and the defendant‘s statements are immaterial and, thus, not relevant. See id. at 389.13 Likewise, the interrogator‘s out-of-court statements or questions have no pro-
A finding that an interrogator‘s out-of-court statement has some relevance to its proffered purpose does not necessarily mean that the statement may be presented to the jury, however. See, e.g., People v Robinson, 417 Mich 661, 664; 340 NW2d 631 (1983) (“Determination of relevancy . . . does not alone determine admissibility.“);
In evaluating a statement‘s probative value against its prejudicial effect, a trial court should be particularly mindful that when a statement is not being offered for the truth of the matter asserted and would otherwise be inadmissible if a witness testified to the same at trial, there is a “danger that the jury might have difficulty limiting its consideration of the material to [its] proper purpose[].” Stachowiak, 411 Mich at 465. See also, People v Jenkins, 450 Mich 249, 260; 537 NW2d 828 (1995). Indeed, this Court has recognized that child-sexual-abuse cases present “special considerations” given “the reliability problems created by children‘s suggestibility.” Peterson, 450 Mich at 371. Further, although in the context of trial testimony, this Court has condemned opinions related to the truthfulness of alleged child-sexual-abuse complainants even when the opinions are not directed at a specific complainant. This is because in cases hinging on credibility assessments,
Finally, if an interrogator‘s out-of-court statement is determined to be admissible for the purpose of providing context for a defendant‘s statements, this determination “does not mean that the judicial duty in admitting [the interrogator‘s statement] is circumscribed by [that] conclusion.” Wilkins, 408 Mich at 73. Instead, under
Likewise, in the context of police interrogations, requiring the interrogating officer to testify at trial and paraphrase the statements he or she made that provoked a relevant statement by a defendant may be necessary in some instances to protect a defendant‘s right to a fair trial from the resulting prejudice of allowing the jury to hear the interrogator‘s comments verbatim.
B. APPLICATION
Applying these principles to this case, we hold that the trial court abused its discretion by admitting all the detectives’ statements to the jury. As it pertains to Detective Kolakowski‘s first statement — that “[k]ids have a hard time lying about this stuff . . . .”17 — the statement was irrelevant to providing context to defendant‘s statements because, quite simply, there was no
Regarding the second set of statements by Detective Heffron, we hold that the majority of the statements were not probative to actually provide context to defendant‘s statements because the majority of the detective‘s comments could be redacted without harming the probative value of defendant‘s responsive statement. Indeed, when viewed in context, only Detective Heffron‘s final statement to defendant was actually probative of the matter, and, thus, the previous statements should have been redacted as irrelevant.18 As to Detective Heffron‘s remaining statement, the statement‘s probative value was not substantially outweighed by the danger of unfair prejudice to defendant, given the relatively innocuous nature of the detective‘s statement.
As to the final exchange, we again hold that the trial court abused its discretion by admitting the entirety of
Finally, even if there was some probative value to the statements that the trial court erroneously failed to redact, the minimal probative value of those statements would be substantially outweighed by the danger of unfair prejudice to defendant under the facts of this case. See
Our conclusion that the trial court abused its discretion does not end the inquiry, however, because nonconstitutional, preserved evidentiary errors are not grounds for reversal unless they undermined the reliability of the verdict. Krueger, 466 Mich at 54. In this case, we conclude that they did.
The evidence offered against defendant was not overwhelming. Although the complainant‘s testimony did not need to be corroborated,
Further, the trial court‘s belated limiting instruction did not cure the error. In Jenkins, this Court recognized that ” ‘despite proper instructions to the jury, it is often difficult for them to distinguish between . . . substantive evidence’ ” and evidence that is offered for another purpose. Jenkins, 450 Mich at 261-262, quoting United States v Morlang, 531 F2d 183, 190 (CA 4, 1975). In Jenkins, the prosecution was allowed to improperly impeach a witness with a prior inconsistent statement by having an officer who took the statement read the entirety of the written memorandum of the witness‘s prior statement to the jury. Portions of the memorandum, however, contained prejudicial statements that were unnecessary for impeachment purposes. Id. at 260-262. Given the improper manner in which the prior statements were presented to the jury and the fact that the officer‘s testimony went beyond the proper scope of impeachment, Jenkins held that there was a risk that the jury accepted the contents of the memorandum as substantive evidence, and this risk was heightened by the trial court‘s failure to provide a limiting instruction at the time the improperly admitted statement was read to the jury. Id. at 260, 263.
V. CONCLUSION
We hold that under the facts of this case, the trial court abused its discretion by failing to redact the majority of the detectives’ out-of-court statements commenting on credibility from the recording that was played to the jury because they were irrelevant to their
Notes
(1) whether statements in a recording of a police interview of a criminal defendant that vouch for the credibility of a witness, which would be inadmissible if stated by a trial witness, must be redacted from the recording before the jury views it; or (2) if the jury is allowed to see such a recording without redacting the vouching statements, what circumstances must be present and what, if any, protective measures must be in place. [People v Musser, 493 Mich 860 (2012).]
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible.
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
DETECTIVE HEFFRON: You know there‘s a big difference when we interview 4, 5, 6 year olds and when they get up around 10, 11, 12, 13. There‘s a big difference. Four, five, six year old kids, they‘re easy to manipulate by parents, aunts, uncles — they‘re easy to manipulate. They‘re terrible actors. They‘re terrible. When kids start getting a little bit older they‘re better actors. They‘re — they‘re older, they‘re seeing more. She‘s 12. The big issue here is if she wanted to get you in trouble — she‘s smart enough, and she‘s only — and she‘s 12 — if, for whatever reason, she wanted to get you in trouble she would — she would —[DEFENDANT]: That she would say that I fucked her?
DETECTIVE HEFFRON: Absolutely. “He put his hand down my pants, his finger was in my vagina” all of this “his mouth was on my breast” — that‘s what they would do if they‘re gonna lie to get somebody in trouble, . . . an older kid like that. Little kids, they never‘ve [sic] been exposed to that stuff. They don‘t know. But it‘s pretty credible when she tells us, “Hey, he touched . . . me here” and “he put his hand on my breasts” and . . . “his hand started going down my pants but he couldn‘t.” That‘s pretty credible; that‘s pretty detailed. Again, if there‘s no reason for her to make this crap up, why would she say it? This is the last thing . . . she wanted to do was talk to a total stranger about something like this. Why? Why is she gonna put herself through that if it didn‘t happen? We can‘t find anything. Kids don‘t lie about this stuff. They lie about their homework being done; they lie about, “yep, I did the dishes” when they didn‘t . . . . [T]hey lie about “yeah, we were in bed by 10:00.” They don‘t lie about this stuff if maybe she‘s in trouble for something. This is not the kind of stuff that kids make up to try to get out of some trouble that they‘re in. That‘s why this is so disturbing. . . . And again, if she‘s talking about “his hand was on my breast,” she‘s not gonna make that crap up. She just isn‘t. And this is your opportunity for her to eventually see that you made a mistake, you‘re human, and you want to get this worked out so she has the least amount of stress/trauma, whatever, but that she gets the . . . feeling that “I love the man, the family. He made a mistake and someday as I‘m older[“] — because she‘s always gonna remember this — this didn‘t happen when she was 2 or 3 years old — they don‘t remember that stuff. She‘s always gonna remember this. At some point she will be able to accept, “Hey, this is what happened. We all make mistakes. He made a mistake.” But you‘re gonna have to start by being upfront. And for you to sit here and say that “well, yep, she‘s telling the truth about this, but she‘s lying about that,” . . . she‘s gonna have this report. She‘s gonna know exactly what you said, and whatever . . . message you want to send her that‘s . . . up to you. We can‘t force you. But if she‘s saying you touched her breasts — I wasn‘t there for the interview [of the complainant] but [Kolakowski, who has] done a lot of interviewing, said, “Bill, there‘s no question this happened and the stuff that I‘m aware of he probably did” — we just need to know why. Was it alcohol? Was it — I don‘t know what your sex life has been at home, but all we want to know is why. Were you ever molested as a child?
But if she‘s saying you touched her breasts — I wasn‘t there for the interview [of the complainant] but [Kolakowski, who has] done a lot of interviewing, said, “Bill, there‘s no question this happened and the stuff that I‘m aware of he probably did” — we just need to know why. Was it alcohol? Was it — I don‘t know what your sex life has been at home, but all we want to know is why. Were you ever molested as a child?See footnote 19.[DEFENDANT]: No.
DETECTIVE HEFFRON: Help us out here.
[DEFENDANT]: You asked a lot of different questions right there. I don‘t know — I — I don‘t know what motivated me. I think I explained it, I was just trying to give her a peck. I don‘t know where this touching of the breast is coming from. [Emphasis added.]