People of Michigan v. Kevin Robert Smith ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 19, 2020
Plaintiff-Appellee,
v No. 334692
Ingham Circuit Court
KEVIN ROBERT SMITH, LC No. 15-001023-FC
Defendant-Appellant.
ON REMAND
Before: CAMERON, P.J., and METER and BORRELLO, JJ.
BORRELLO, J. (dissenting).
I respectfully dissent from the majority’s approach to our Supreme Court’s order
remanding “this case to the Court of Appeals for reconsideration in light of People v Harbison,
504 Mich [230; 934 NW2d 693 (2019)].”1 As I stated in my previous dissent in this case, I am
convinced from my review of the record that the majority of both Detective Annie Harrison’s and
Dr. Stephen Guertin’s testimony was introduced for the improper purpose of vouching for the
credibility of the victims. See People v Smith, unpublished per curiam opinion of the Court of
Appeals, issued August 14, 2018 (Docket No. 334692) (BORRELLO, J., dissenting), p 1. In my
view, our Supreme Court’s directive to reconsider this matter on remand in light of Harbison
requires this Court to necessarily address Harrison’s testimony as well as Guertin’s testimony. I
still conclude that the “failure by trial counsel to object to the numerous hearsay statements of
Harrison and Guertin, coupled with counsel’s failure to object to the majority of their improper
vouching constituted ineffective assistance of counsel and denied defendant a fair trial.” Smith
(BORRELLO, J., dissenting), unpub op at 1. For the same reasons stated in my previous dissent in
this matter, which I believe are harmonious with Harbison, I would reverse defendant’s
convictions and grant him a new trial.
1
People v Smith, ___ Mich ___; 934 NW2d 213 (2019).
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I. HARBISON
In Harbison, which is the companion case in People v Thorpe, 504 Mich. 230; 934 NW2d
693 (2019), our Supreme Court held that “examining physicians cannot testify that a complainant
has been sexually assaulted or has been diagnosed with sexual abuse without physical evidence
that corroborates the complainant’s account of sexual assault or abuse because such testimony
vouches for the complainant’s veracity and improperly interferes with the role of the jury.”
Thorpe, 504 Mich. at 235 (emphasis added). The defendant in Harbison had been convicted of
various sex offenses against a child. Id. at 242-243, 249. At the defendant’s trial, the pediatrician
who had examined the complainant testified as an expert in child sexual abuse diagnostics that her
diagnosis was “Probable pediatric sexual abuse.” Id. at 243-245. The pediatrician explained that
her information came from “taking a history from [the complainant] prior to the physical
examination.” Id. at 244. The pediatrician further indicated that the physical exam “did not show
any acute or remote indications of trauma” and that she only found “a very small notch” on the
complainant’s hymen, which the pediatrician stated was “a non-specific finding.” Id. at 245. The
pediatrician explained:
“A non-specific finding is a finding that we can see for many different
reasons and is not specific to any type of trauma to the genital tissues. You can have
small notches that occur from events like time events such as the bicycle accident
or something of that nature. You can get small notches from children that use
tampons. You can get small notches that are actually developmental in nature. So
when you have a very shallow very small notch that is less than 50% of the width
of the hymenal rim, those are considered non-specific findings.” [Id.]
Our Supreme Court in Harbison concluded that the pediatrician’s testimony constituted
plain error requiring a new trial. Id. at 260-261, 264-266. The Court stated that the pediatrician’s
“expert opinion that [the complainant] suffered ‘probable pediatric sexual abuse’ is contrary to this
Court’s unanimous decision in [People v Smith, 425 Mich. 98; 387 NW2d 814 (1986)].” Thorpe,
504 Mich. at 260-261. The Court in Harbison reasoned that the pediatrician
candidly acknowledged that her examination of [the complainant] showed no
physical evidence of an assault. Her conclusion that [the complainant] suffered
“probable pediatric sexual abuse” was based solely on her own opinion that [the
complainant]’s account of the assaults was “clear, consistent, detailed and
descriptive.” This testimony clearly falls within Smith’s holding that an examining
physician cannot give an opinion on whether a complainant had been sexually
assaulted if the “conclusion [is] nothing more than the doctor’s opinion that the
victim had told the truth.” An examining physician’s opinion is objectionable when
it is solely based “on what the victim . . . told” the physician. Such testimony is not
permissible because a “jury [is] in just as good a position to evaluate the victim’s
testimony as” the doctor. [Id. at 261-262 (last alteration and ellipsis in original;
citations omitted).]
The Supreme Court further concluded that “the most prejudicial aspect of [the pediatrician’s]
testimony was that she clearly vouched for [the complainant’s] credibility.” Id. at 263.
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II. INEFFECTIVE ASSISTANCE OF COUNSEL TEST
As noted by the majority, this appeal involves defendant’s claim that he received
ineffective assistance of counsel. As I stated in my previous dissent:
There can be little doubt that it is difficult to show that a conviction must be
reversed based on a claim of ineffective assistance of counsel. In order to prevail
on appeal, a defendant must demonstrate (1) that counsel’s performance was
deficient and (2) that the defense was prejudiced by counsel’s deficient
performance. Strickland v Washington, 466 U.S. 668, 687; 104 S. Ct. 2052; 80 L. Ed.
2d (1984), reh den 467 U.S. 1267; 104 S. Ct. 3562; 82 L. Ed. 2d 864 (1984); [People v
]Riley, 468 Mich [135, 140; 659 NW2d 611 (2003)]. Satisfying the first prong
requires a defendant to show that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms. Strickland, 466
U.S. at 688; Riley, 468 Mich. at 140. Satisfying the second prong requires a defendant
to show that but for counsel’s unprofessional errors, there is a reasonable
probability that the result of the proceeding would have been different. Strickland,
466 U.S. at 694; see also People v Trakhtenberg, 493 Mich. 38, 55-56; 826 NW2d
136 (2012). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
A defendant making an ineffective assistance of counsel claim “must
overcome the strong presumption that counsel’s performance was born from a
sound trial strategy.” Trakhtenberg, 493 Mich. at 52. However, “a court cannot
insulate the review of counsel’s performance by calling it trial strategy.” Id. Trial
strategy “in fact must be sound, and counsel’s decisions as to it objectively
reasonable.” People v Douglas, 496 Mich. 557, 585; 852 NW2d 587 (2014). When
reviewing an ineffective assistance claim, “the ultimate focus of inquiry must be on
the fundamental fairness of the proceeding whose result is being challenged,” and
“[i]n every case the court should be concerned with whether, despite the strong
presumption of reliability, the result of the particular proceeding is unreliable
because of a breakdown in the adversarial process that our system counts on to
produce just results.” Strickland, 466 U.S. at 696. [Smith (BORRELLO, J., dissenting),
unpub op at 5.]
III. IMPROPER VOUCHING OF HARRISON
In this case, the holding in Harbison admittedly applies most directly to Guertin’s
testimony, being that he was a specialist in areas related to pediatrics and child abuse who
examined the victims and testified at trial as an expert in “child abuse.” See Smith (BORRELLO, J.,
dissenting), unpub op at 18. However, contrary to the majority’s findings, our Supreme Court did
not order us to consider only Guertin’s testimony. Instead, our Supreme Court’s order was an
instruction to address how Harbison would have affected this Court’s analysis of any issue that
was raised in the original appeal and on which Harbison has any bearing. The reason stated in
Harbison for prohibiting examining physicians from testifying “that a complainant has been
sexually assaulted or has been diagnosed with sexual abuse without physical evidence that
corroborates the complainant’s account of sexual assault or abuse” was that such evidence
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“vouches for the complainant’s veracity and improperly interferes with the role of the jury.”
Thorpe, 504 Mich. at 235. Our Supreme Court in Harbison expressly stated that the “most
prejudicial aspect” of this type of improper expert testimony was that the expert “clearly vouched
for [the complainant’s] credibility.” Thorpe, 504 Mich. at 263.
Because I have the same concerns about Harrison’s testimony in this case, I find my
previous analysis of this issue to again be implicated on remand by our Supreme Court’s directive.
In my prior dissent, I discussed caselaw from our Supreme Court and this Court stretching back to
1863, see Evans v People, 12 Mich. 27 (1863); People v Row, 135 Mich. 505; 98 N.W. 13 (1904);
People v Buckey, 424 Mich. 1; 378 NW2d 432 (1985); People v Peterson, 450 Mich. 349; 537
NW2d 857 (1995); People v Musser, 494 Mich. 337; 835 NW2d 319 (2013); Douglas, 496 Mich.
557; People v Walker, 40 Mich. App. 142; 198 NW2d 449 (1972); People v Parks, 57 Mich. App.
738; 226 NW2d 710 (1975); People v Shaw, 315 Mich. App. 668; 892 NW2d 15 (2016), and arrived
at the following conclusion:
Thus, the rule that can appropriately be derived is that [it] is improper
credibility vouching to allow a witness to testify about how he or she personally
confirmed various elements of another witness’s story or about why another
witness’s story is plausible or logical. Such testimony essentially connects the dots
for the jury from evidence to conclusion via one witness’s explanation of how
another witness’s testimony has been corroborated and, by extension, . . . the
witness’s veracity [is] confirmed. This kind of vouching testimony, rather than
simply asserting that another individual told the truth, instead functions as an
attempt to get the jury to substitute the witness’s reasoning or personal investigation
for the jury’s own evaluation of another witness’s credibility. [Smith (BORRELLO,
J., dissenting), unpub op at 10.]
With that legal background in mind, I reproduce below part III of my prior dissent, id. at
10-17,2 which analyzes Harrison’s testimony in a fashion that I also find consistent with our
Supreme Court’s holding in Harbison:
Applying the above legal principles to Harrison’s testimony, Harrison
improperly vouched for the credibility of DG and KG. As previously stated,
Harrison conducted forensic interviews of both DG and KG during the course of
investigating the allegations in this case, and she was called as a witness by the
prosecution. During her direct examination, Harrison testified extensively about
the nature of the forensic interview process and Michigan’s forensic interviewing
protocol, as well as her specialized training for investigating child sexual abuse
cases and conducting forensic interviews. More specifically, she testified that
Michigan’s forensic interviewing protocol was developed “to assist us in the best
techniques for interviewing children”; that she primarily investigates cases of child
sexual abuse; and that in these cases, her “job is to thoroughly investigate and
determine if it should or shouldn’t be forwarded to the Prosecutor’s office for
2
The alterations in the following quoted text appear in the original.
-4-
review.” The prosecutor also questioned Harrison on direct examination as
follows:
Q. I want to talk to you a little bit about forensic
interviewing. Could you please tell the jury what is forensic
interviewing? How does it differ from a normal interview?
A. The goal for a forensic interview is to obtain a statement
from a child in an unbiased developmentally appropriate neutral
way, to assist in criminal justice and child welfare systems. What
that really means, the word “forensic” is research-based or
scientific. The State of Michigan developed the protocol based on
research to help us as every day professionals on the do’s and don’ts
of how to interview a child, what the best practice is.
Harrison testified that she used the forensic interview protocol in her
interviews of DG and KG in this case, although they were 18 years old at the time.
Harrison also indicated that the initial phase of the forensic interview includes
obtaining “a promise to tell the truth” from the interviewee. Additionally, Harrison
explained that in a forensic interview, “we develop alternate hypotheses to look at
different possibilities,” that the alternate hypotheses are tested through questioning
in the interview, and that “[i]t’s a fact-gathering mission to look at all the
possibilities, minimize suggestibility.” Harrison stated, “There can’t be any
misunderstandings,” and “[w]e need to make sure that we are getting the allegations
correct, that we’re looking to see what other possibilities are.” According to
Harrison, two alternate hypotheses were developed: (1) that there was a
misunderstanding regarding whether there was actually a sexual touch and (2) that
one of the involved parties was lying or that only one of the twins was abused.
Harrison tested these hypotheses in her interviews of DG and KG. When the
prosecutor asked Harrison if she was “able to eliminate any of the hypotheses or
come to any conclusions,” defense counsel objected “to any conclusions” on the
ground that the prosecutor was “essentially asking her to determine what the truth
was of what their allegations are.” The prosecutor withdrew the question.
However, shortly thereafter, Harrison testified that during the interview, she
“look[s] for details of the act that would determine whether this is a sexual or non-
sexual touch or whether it was a misunderstanding. The prosecutor followed up by
questioning Harrison as follows without objection from defense counsel:
Q. At the end of your interview, is your investigation
complete if you eliminated certain alternate hypotheses, is that the
end of your investigation?
A. No.
Q. All right. So are you able to eliminate alternate
hypotheses, or any of the hypotheses during your actual interview
process? Were you able to, in this particular case?
-5-
A. Well, I mean, my job is to gather the facts. So I, during
the forensic interviews of both K[G] and D[G]—let’s see how to
answer that. There are times in which there is a misunderstanding.
So then the case ends at that point.
After the forensic interview, the allegation, itself, which had
been reported to me, was that [defendant] had sexually abused K[G]
and D[G] [ ], that was still standing at the end of the interview. So
I continued the investigation.
Q. You weren’t concluding at the end that they had been
abused, but rather that’s where your investigation is now targeted?
A. Correct.
Q. Were you able to address the alternate hypotheses [sic]
that it was a misunderstanding?
A. Yes.
Q. How did you do that?
A. Well, they were clear—so I asked questions and they
provided clear statements to me. So it’s not a misunderstanding at
that point.
Q. All right. And how about the allegation that one was
abused and not the other?
A. They both provided clear disclosures.
Q. At that point you were left with that it actually happened
or that it was a lie, correct?
A. Correct.
Q. You are not able at that point to eliminate the lie?
A. Well, a portion of it. So part of that could be, does the
reporting source[5] have a motivation, or is the reporting source
lying. And so I develop questions during the interview as who is the
first person that you told. So if they told somebody prior to the
reporting source, then that helps me with that.
Defense counsel did not object to the above testimony or otherwise renew his
previous objection. Harrison also testified that she needed to go the scene of the
incidents described in a forensic interview “to see if that is possible” and to see “the
viewpoint of witnesses” in order to “put [herself] in that situation to then get
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additional leads or information that [she] can follow up and gather those facts to
bring.” Harrison would take photographs while at a given location. Although not
specifically referenced by defendant in his appellate argument, Harrison also
offered the following testimony during her direct examination, to which there was
no objection and in which she essentially explained to the jury why she thought the
description given by DG and her mother of the incident where defendant allegedly
grabbed DG’s chest made sense:
Q. Again, we are using this photograph, just kind of a way
as an example. But this photograph, in and of itself, does it provide
for you and your investigation any corroboration of what you were
told?
A. Yes. I need to understand if what’s being reported to me
is possible. That’s why, even if a crime had occurred decades prior,
I always make it as a rule to go back to visit that scene, whether it’s
changed or evolved or not, whether the furniture is the same or
different, or the walls are even different. I still need to go to
document it to see what I find to see where the facts lead.
Q. In this particular photograph, did it help you to
understand ultimately how someone could be sitting on the couch
and having another person in the room?
A. Yes.
Q. How so?
A. The positioning of the furniture, of how, you know, the
one chair is a little bit more forward. And then also the description
of sitting close together. And when you see, you know, how couch
cushions are divided. And then also the opportunity for the
reflection. [The mother] had been reporting seeing a reflection. And
as an investigator I didn’t really understand that at that point.
Q. So looking at People’s 52, taking that photograph, did
that help you understand what she meant better?
A. I think what I see there is that reflections are possible.
Again, at that point, I didn’t know where the windows were in the
home, or if reflections were possible in the home. So I still wasn’t
certain did she see the reflection in that TV or a different one, or a
piece of glass or a different one. But I see that reflection is possible.
Q. Thank you. So we just kind of did that as an exercise. Is
that a good, a fair depiction of how you kind of run an investigation?
You take the facts as you understand them, and then look for
corroboration evidence, one way or the other?
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A. Correct.
During Harrison’s cross-examination, defense counsel questioned Harrison
as follows:
Q. Now, you have talked about there is instances where
there is a delayed disclosure. Does delayed disclosure equate in any
way with being a credible disclosure?
A. I can’t—
Q. I guess the question I’m asking, because the disclosure is
delayed, does that somehow make it, at least in your experience,
more credible?
A. I see cases—my job is to investigate and report the facts.
But I see cases in both delayed and immediate disclosure. In both
delayed and immediate disclosure, sometimes I screen them out.
And in both delayed and immediate disclosure, sometimes I’ve
turned them over to the Prosecutor’s office.
Defense counsel also attempted to elicit inconsistencies between DG’s and
KG’s forensic interview statements and their trial testimony by asking Harrison.
For example, defense counsel questioned Harrison as follows:
Q. How was it that K[G] made it clear to you how the pencil
was used in this case?[6]
A. When I said a clear statement, my alternate hypotheses
[sic] was that this could have been a misunderstanding or a non-
sexual touch. There was no doubt in my mind that she was
describing sexual touch at the end of the interview. So that was what
I meant by that.
And then every detail, there is not an expectation to make
every detail absolutely clear. That’s not always possible.
Q. But you would acknowledge that any—that there was no
clarity with regard to D[G]’s statement to you—I’m sorry—K[G]’s
statement to you about how, where, what, why, a pencil was used on
her, was there?
A. I disagree with what you’re saying. I mean, we had a
discussion. I asked questions about objects. She stated objects to
me. I do think that that’s clear.
-8-
On redirect, the prosecutor elicited further testimony, without objection
from defense counsel that allowed Harrison to explain how her investigation
corroborated DG’s allegations:
Q. [Defense counsel] asked you about who you interviewed
concerning the hot tub incident that we’re talking about. And I
believe your answer was, obviously, D[G], initially. And then you
interviewed the Grandma and Grandpa [ ], Johnny [ ], Senior and
D[G] correct?
A. Yes.
Q. What information did they provide that either—that
helped you out with understanding D[G] and what she told you that
had happened? And let me just, if I can, just jump to as the
swimsuits.
A. Yes.
Q. So what did D[G] tell you about swimsuits in the hot tub?
A. She said that most of the time there isn’t swimsuits in the
hot tub. I could be wrong on most of the time. She said that the kids
did not wear swimsuits in the hot tub. So I wanted to speak to an
adult about that or another source to see if that is what the other
source was telling me.
Q. What did you find out?
A. That they agreed with that statement.
Q. What about shirts, where to get shirts?
A. I asked the same question of Grandma [ ], where are shirts
kept. He [sic] showed me the closet which, when I was there, was
consistent with what information had been provided to me by
D[G].[7]
Q. What about the fact that there had been a waterbed?
What, if anything, about the waterbed in that room?
A. In Grandma and Grandpa G[ ]’s bedroom?
Q. Yep.
A. Yes. So when I was there, the furniture had changed. But
she was able to describe to me what furniture had been like prior,
you know, 13 years prior.
-9-
Q. And that was consistent, correct?
A. Yes.
Q. Why is that important in your investigation on sexual
abuse cases?
A. For more than one reason. Again, it’s to understand the
scene to help create a picture of was this possible. It also is to test
alternate hypotheses to see—look for consistency in witness
statements.
Q. All right. The thing about the pond incident, near the
dock, do you recall that incident with D[G]?
A. Yes.
Q. What did you do—these are ways to corroborate
statements, fair to say?
A. Yes.
Q. What did you do to corroborate the statement about the
pond incident, if anything?
A. It was mainly looking to see where the pond was, which
house was the pond at, how close was the pond or far to the house.
Where are seating areas. What does the dock look like. Basically
observing, based on she had talked about the proximities of the
dock, the heighth [sic] of the dock. I wanted to go there and
document what the dock looked like.
Q. Okay. What about people’s observations about the two
of them in the pond at other times?
A. Right. There was more than one witness statement about
hollering out to them or seeing them at a distance. And I wanted to
be able to put myself in that position of where those people would
be, and then how far is that to holler out, or how far is that to what
could they see, what would be their vantage point.
Harrison specifically explained how, in her view, a photograph of the scene
where defendant allegedly grabbed DG’s chest demonstrated that the reflection
reported by DG’s mother was “possible.” In essence, Harrison testified regarding
her interpretation of the evidence and advocated that a particular conclusion be
drawn by the jury—namely, that the story told by DG and her mother made sense
and was believable—even though the jury was just as capable of evaluating whether
the photograph supported the veracity of DG’s and her mother’s respective
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testimony. By asking the jury to allow her own reasoning to replace that of the
jury’s in this regard, Harrison was improperly vouching for the credibility of DG
and her mother. Musser, 494 Mich. at 348-349; Evans, 12 Mich. at 34; Walker, 40
Mich. App. at 144-145.
Furthermore, Harrison testified that the initial phase of a forensic interview
includes obtaining a “promise to tell the truth” from the interview and that the
interview was “a fact-gathering mission.” She explained that she tested the
alternate hypotheses (1) that the allegations involved a misunderstanding regarding
whether there was a sexual touch and (2) that the allegations involved a lie.
Harrison stated that she concluded that there was no misunderstanding because the
victims “provided clear statements,” and she also indicated that she was partially
able to eliminate the notion that lying was involved. Harrison also heavily
emphasized that the forensic interview process as “unbiased,” “research-based,”
“scientific,” and “neutral.” This testimony served as clear vouching for the veracity
of the victims’ statements through painting the forensic interview process as a
rigorous truth-testing tool on which the jury could rely to conclude that the victims’
statements were believable. Harrison also invited the jury to rely on the quality of
her investigation by testifying about how she corroborated the girls’ statements
through comparing them with the statements of other individuals she interviewed
and noting the consistencies; Harrison expressly explained that her job was to
“thoroughly investigate” cases to determine whether referral to the prosecutor’s
office was warranted. By so testifying, Harrison presented the forensic interview
process and her own investigation as substitutes for the necessity of the jury to
independently make its own credibility determinations, and she therefore
improperly vouched for the credibility of both victims. Musser, 494 Mich. at 348-
349; Evans, 12 Mich. at 34; Walker, 40 Mich. App. at 144-145. In short, under the
guise of ill-described “scientific methods” she held herself out to the jury as a
human lie-detector.
Moreover, although the prosecution argues that these statements were not
hearsay because they were offered to show their effect on Harrison’s investigation
rather than for the truth of the matter asserted, the statements were still inadmissible
because they were effectively part of Harrison’s improper vouching testimony and
were accordingly not offered for any relevant purpose. As our Supreme Court has
explained, “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.’ ” Musser, 494 Mich. at 354 (citations
omitted).
To the extent that defense counsel’s cross-examination of Harrison and
defense counsel’s trial strategy of generally attempting to undermine the credibility
of prosecution witnesses could be understood to have made the steps of Harrison’s
investigation somehow relevant (which is what the prosecution appears to argue on
appeal) the prosecutor at trial should have only elicited testimony from Harrison
that would show that she followed proper investigative procedures without eliciting
testimony that took the additional step of explaining how her investigative findings
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demonstrated that the stories of other witnesses were believable. It is that additional
step of essentially connecting the dots for the jury that constituted the improper
vouching by Harrison.
Returning to defendant’s ineffective assistance of counsel claim, defense
counsel in this case failed to object to Harrison’s improper vouching testimony set
forth above. “[C]redibility contests are not uncommon in criminal sexual conduct
cases,” People v Anderson, 446 Mich. 392, 407 n 37; 521 NW2d 538 (1994), cert
den sub nom Michigan v Anderson, 513 U.S. 1183; 115 S. Ct. 1175; 130 L. Ed. 2d 1128
(1995), and “the principle issue in cases involving criminal sexual conduct is the
credibility of the complainant,” People v Beckley, 434 Mich. 691, 717 n 39; 456
NW2d 391 (1990) (opinion by BRICKLEY, J.). And while the instant case did not
involve a credibility “contest” in the strict sense of the phrase because defendant
did not testify, the credibility of the alleged victims and other prosecution witnesses
was clearly of central importance in this case. Yet, despite the importance of
witnesses’ credibility and defense counsel’s apparent strategy of trying to
undermine the victim’s credibility, defense counsel still did not challenge the
clearly inadmissible vouching testimony by Harrison set forth above. Our Supreme
Court has long recognized “the undue weight that jurors may be inclined to place
on police officers’ statements.” Musser, 494 Mich. at 363. In this case, there was
no “sound” strategic reason for defense counsel’s failure to object to Harrison’s
pervasive vouching, and defense counsel’s performance thus fell below an
objective standard of reasonableness. Douglas, 496 Mich. at 585-586.8
__________________________________________________________________
5
In this case, it appears that DG’s mother would have been the “reporting source”:
Harrison testified that when she began working on this case, her “first contact had
been with [the mother]” who had contacted law enforcement and whose “twin
daughters had disclosed after their high school open house that they had been
sexually abused for several years by their cousin, [defendant].”
6
During KG’s cross-examination, defense counsel had asked KG about portions of
the description of the Allen wrench incident that KG gave during her forensic
interview in which KG had stated that defendant was “look[ing] for something else,
like pencils or just other things” but had not described defendant actually touching
her with a pencil.
7
It appears that the second reference to DG was intended to refer to the alleged
victim in this case. DG and her grandmother have the same name.
8
Defense counsel did object, on the ground of improper vouching, to the
prosecutor’s question asking Harrison whether it is typical for a victim to “disclose
everything that happened to them in that initial interview.” In making his objection,
defense counsel stated that this question was asking Harrison to “give an opinion
as to credibility.” The prosecutor argued that the question was actually “based on
her training and experience doing interviews,” and the trial court stated that “[i]n
essence, he is asking as she did this, what did you do.” Defense counsel responded
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to the trial court’s statement by saying, “I don’t have a problem with that. If he can
restrict that, I won’t have an objection.” The trial court then overruled defense
counsel’s objection. However, defense counsel permitted the other impermissible
vouching testimony described above to come in without any objection.
__________________________________________________________________
In my view, the holding in Harbison further supports the above analysis and conclusion.
IV. IMPROPER VOUCHING OF GUERTIN
Turning to Guertin’s testimony, I also reproduce below my prior analysis of defendant’s
ineffective assistance claim regarding his trial counsel’s handling of this testimony. I believe the
following analysis is entirely consistent with the holding in Harbison.
Dr. Guertin, a specialist in general pediatrics, pediatric critical care, and
child abuse, testified as an expert in “child abuse.”9 Guertin conducted
examinations of both victims. In response to the prosecutor’s question about why
it was still important to examine an individual when the alleged abuse did not occur
recently, Guertin responded that “[i]t’s what it always is, which is diagnosis and
treatment.” He explained that sexual assault or physical abuse can be diagnosed
“years afterwards”; that it is important “to make sure that the perpetrator still
doesn’t have access to the child, even if she was a teenager”; that it is important to
make sure that counseling is being provided,10 and that there were still potential
sexually transmitted infection issues.
__________________________________________________________________
9
The prosecutor moved to qualify Guertin as an expert “in the field of sexual abuse
against children,” and defense counsel indicated that he had no objection.” The
trial court then stated that it was qualifying Guertin as an expert “in child abuse.”
10
Notably, Guertin clarified that “we don’t provide the psychological counselling.”
__________________________________________________________________
Guertin examined DG first. He testified that he took a medical history from
her, during which she told him “that starting at an early age, sometime around five
years or so, up through about age 15 or 16, that she had been raped and molested
by a cousin,” who she identified as defendant. According to Guertin, DG told him
that the incidents occurred at her grandmother’s home, that her mother had
witnessed one incident of inappropriate touching, and that the other incidents were
not seen by anyone else. Guertin’s testimony also included recounting more
specific allegations made by DG during the course of the medical history, including
that defendant had done “a lot of rough fingering [and] touching” inside of DG’s
“private area,” that defendant had put “the plastic part of a wrench that had been
gnawed on or chewed on by a dog” inside her private area, that defendant had
engaged in “genital to genital contact” with DG when she was five years old, that
there was an incident in a pond at her grandparents’ home where DG “had to
manipulate [defendant’s] penis” under the water, that defendant used pornography
-13-
with DG “while he was molesting her,” and that defendant told DG that her family
would be ruined or destroyed if she told anybody. Guertin also testified that he
performed a physical examination of DG and that she had “two deep notches in her
hymen.” DG also informed Guertin that she was sexually active at the time of the
examination.
According to Guertin, the potential for injury to the hymen is “higher in the
pre-pubertal period” because the hymen is fragile and does not stretch at that stage
of a child’s development, and “the opening of the hymen in a pre-pubertal child, a
child up through about age 10 to 12,” is approximately 10.5 millimeters, which is
smaller than the size of the average finger, erect adult penis, or the presumed size
of a wrench handle. However, Guertin further explained that a sexually active
individual “can certainly have evidence of sexual trauma from normal or volitional
sexual activity[] [a]nd depending on how active they are, the incidence of that can
be pretty high.”
Guertin testified that in his opinion, DG:
gave a very clear history of being sexually molested over a period
of years, beginning at a very early age, age 5, by a person named
[defendant]. It included fondling, inserting the handle of a tool into
her vagina, which was both painful and caused bleeding. She also
integrated [sic] that there was at least some degree of penetration
with his penis. On one occasion she was very young, age five. And
she indicated that she was compelled to manipulate his penis as well.
She was warned that discovery of this would ruin her family. And,
also, he used pornography at least during some of these acts.
The physical examination showed two deep notches. One
almost a transection, which clearly could support—which clearly
supports an allegation of sexual abuse. As well, she was sexually
active. And that you cannot necessarily separate out the findings
that you see from abuse versus that volitional sexual activity. That’s
it.
Regarding KG’s medical history, Guertin testified as follows in response to
the prosecutor’s questions:
Q. What was the history of K[G]?
A. Oh. She knew that she had come to the office to get a
pelvic exam, because she had been molested. Actually she said a
pelvic exam for being molested as a child. So I asked her: Well,
were you or not. And her answer was: Yes. I asked if it happened
only once or more than once. She said more than one occasion. I
asked her how old was it when it started. She said five or six years
old. I asked her when the last sexual conduct was. She said
-14-
probably 13 years old. I asked if anybody saw what happened to
her. She said no. I asked her where these things took place. She
actually listed a number of locations where she had been molested.
She said her own home, in her bedroom, in her grandparents’ house,
the upper floor of her great-grandmother’s house, and the swimming
pool at [defendant’s] parents’ home.
Q. And what else did she tell you?
A. She indicated that nothing happened that involved his
mouth. She indicated that the person who did this was [defendant],
who was her cousin. She indicated that he did molest her with his
hands, his fingers.
Q. Now, did she tell you anything else?
A. She said that he forcibly put a finger inside of her, and
then it hurt her. But she didn’t describe or remember bleeding
related to those episodes. I asked if her [sic] if he did anything with
his penis. Her answer was no. I asked her if he used anything else
to touch her improperly. Her answer was the handle of a screw
driver, an Allen wrench. And by that she meant the same thing. And
with a pencil. I asked her if that hurt her. She said yes. I asked her
if there was any bleeding with that, and she said yes. So she
indicated that there was an event using a tool that had caused her
both pain and bleeding. She didn’t indicate that anything involved
her anus or her own mouth or her own hands. And she didn’t
indicate that pornography was used with her.
I also asked her if he said anything to her.
Q. Okay.
A. And her answer was: He would tell me, this is normal.
And you shouldn’t be telling people because it’s private.
Q. And K[G] was also sexually active, correct?
A. Yes.
Additionally, Guertin testified that his physical examination revealed that KG had
evidence of injury to her hymen in the form of “a deep notch.”
Guertin testified that in his opinion, KG:
also gave a strong history of being sexually molested by [defendant].
This included digital penetration and instruments being used to
penetrate her vaginal area, which caused pain and bleeding. This
-15-
included the handle of a screwdriver. [Defendant] would tell her
that the activity was normal, but that it needed to be kept private.
The physical examination showed deep notch at the 5:00 position of
the hymen, which confirms sexual trauma. Again, just as with her
sister, and a sexually active person, you can’t necessarily say it was
from one or the other.
The prosecutor questioned Guertin on direct examination to clarify his
opinion regarding whether the alleged victims’ injuries were caused by sexual
abuse or consensual sexual activity:
Q. Now, Doctor Guertin, you’ve testified and your
assessment clearly shows it’s difficult to pinpoint and say this is
either from sexual abuse or this is from consensual adult sexual
contact with these types of injuries, correct?
A. Correct.
Q. Is there—is one more likely than the other, can you even
say that?
A. What you can say is you’re more likely to suffer an injury
if there is penetration across the plane of the hymen during the pre-
pubertal period. But you still can get an injury. And especially if
there is really frequent intercourse from post-pubertal sex. But just
in terms of—in terms of the vulnerability of injury, if the sexual
contact in the pre-pubertal period includes penetration across the
plane of the hymen, then there is a higher probability from that in
the pre-pubertal period to cause injury than in the post-period.
Remember, the post-pubertal period, the opening of the
girl’s hymen is typically 12 to 25 millimeters. And they have a
distensible hymen. So penetration simply is better tolerated there,
and less likely to cause injury.
Q. All right. Thank you. So, finally, looking back on
D[G]’s medical history, and her examination, are there any
inconsistencies in her physical exam with the history that she gave
you?
A. No. No. Both kids actually have evidence of sexual
trauma. Both kids indicated not only painful, but bleeding sexual
encounters that were molestation, episodes of molestation. And
both kids also described being sexually active. So what we found is
consistent with either one.
Q. With both children, correct?
-16-
A. Sure.
During cross-examination, Guertin further clarified this point, stating that
you can clearly get these injuries with a painful sexual molestation
encounter that entailed bleeding, especially if it was in the pre-
pubertal period. You can also get these findings from consensual
sex, especially recurrent consensual sex.
Guertin testified that his conclusion that DG and KG had given “clear” and “strong”
histories, respectively, of sexual abuse were based only on what they reported and
the level of detail; he could not “tell you if they were telling [him] the truth.”
On redirect, the prosecutor questioned Guertin as follows:
Q. Now. Is it—when you have a history of sexual abuse in
this way, you indicated a clear history and a strong history, I think,
for each girl, then you find those particular injuries. And in K[G]’s
case she specifically says there is no accidental injury. What, if any,
conclusion do you draw from that?
A. The conclusion that you can—
Q. Or diagnosis, I should say.
A. There are a number of conclusions you can draw. And
they are in the assessment.[11] But the first one is a child gives a
history of recurrent forms of sexual molestation. She is describing
penetrated molestation on more than one occasion. She is not only
is describing discomfort, but describes bleeding associated with at
least one of these episodes.
______________________________________________________
11
Guertin explained that the “[a]ssessment mainly just means my
opinion.”
______________________________________________________
When you examine her, you find that she has two tears in her
hymen. Tears in the hymen are completely consistent with what she
has said about episodes of penetrative abuse. By the way, they are
also consistent with a history of recurrent volitional sexual
intercourse.
The second child gives you a history of penetrative events,
gives you a history of bleeding as well as pain. She has a single tear
on her hymen. That tear in her hymen is completely consistent with
what she has said.
-17-
She also admits to volitional sexual intercourse. So it could
be from that, too.
But in terms of making a diagnosis of sexual abuse, if you
have a clear or detailed history, I cannot tell you that it is the truth.
I’m telling you that it is clear or strong or detailed. And you have
physical findings that would be consistent with what is in that
history. I believe it is valid to conclude that the child was sexually
molested. In this case both of them.
Q. Again, that’s based on your—it’s consistent—with the
history is consistent with their findings?
A. Right. The diagnostic process is history. Sometimes
that’s all you have—
Q. Sure.
A. —physical exam and any laboratory studies that you
might do. And in this particular case the diagnostic process would
lead you to a conclusion, that led me to a conclusion, frankly, that
they have been molested.
Q. All right. And you weren’t there, you can’t know that
for sure. You’re just basing this on a procedure, correct?
A. Right. I can’t know that for sure. (emphasis added).
On recross-examination, defense counsel questioned Guertin further on this point
as follows:
Q. Part of the reason you don’t know it for sure is because
you don’t know whether what they told you was true?
A. You can never know if it’s the absolute truth, it’s only
partly true. So, yes, that’s the reason why you don’t absolutely
know.
Q. So part of your conclusion is based on an assumption that
what they’re telling you is accurate, then that would be sexual
molestation?
A. Right. When we talk to a patient we ask for history. We
try to find out about symptoms and signs. We take them at their
word. (Emphasis added).
Finally, Guertin also testified about memory-related issues for victims of
child sexual abuse. Guertin testified during his direct examination that if something
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happened to a person repeatedly over a prolonged period of time, it was difficult to
remember the specifics about a particular incident. Subsequently, in response to a
question from the jury regarding whether it was possible for memories to “blur
together or get mixed up” when molestation happens over time, Guertin testified
that:
the actual experiences are remembered, but not the details of each
individual event. I’m going to give you an example. Let’s say on
one event I get fondled in the pond, or I have to give somebody a
hand job in the pond. Other things might have happened that day,
but I remember that. Okay? Let’s say six times somebody put a
finger up my vagina. I can’t remember on what day they did that
and something else, necessarily. But I clearly remember having a
finger put up my vagina. I don’t know necessarily that it happened
10 times or five. But I clearly know that I got a finger put up my
vagina over this period of time.
So it’s the same with what kids remember if many things
have happened many times is broadly what happened to them. If
you were beaten as a child, you can clearly remember being beaten
and remember how horrible it was. But you can’t necessarily
remember which day or which beating was that horrible or which
beating is this is [sic], what ended up happening to you or that you
remember being beaten. It’s the same way with this.
So over time, let’s say many things happened to a person
many times. They remember what those physical things are that
happened to them. They may not be able to remember how many of
those things happened on any given day, how many of those things
were just isolated events.
That’s the answer to that question.
The Court: And Part 2 of [juror] number 8’s question is:
Given your response, is this blurring likely or common among
victims?
[Guertin]: It’s common among victims who have repeatedly
had things done to them, and/or more than one thing done to them.
They remember what the physical acts are that occurred that
happened to them. Some they may not tell you about because they
are ashamed of them. So kids commonly are ashamed to tell you
about being sodomized, and they think nothing about telling you
about vaginal penetration. Just all depends on the kid.
Even though there is blurring about each date, each of the
event’s cycle, if you will, there is not blurring overall about the
-19-
things that happened to them. Now what they choose to tell you or
not, that’s up to the kid.
On recross-examination, defense counsel questioned Guertin as follows:
Q. Just one more question with regard to a jury question.
Other than the information that D[G] supplied you with regard to a
lot of rough fingering, the other acts of being—claims of being
penetrated with a penis, having been subjected to having to perform
a hand job, and the incident where a tool was used, those were only
one incident per each of those categories that she described?
A. Right. She remembers those incidents.
Q. There is no claim that there are repeated instances of
those that would blur the details?
A. There is the claim by the child that forms of molestation
began at age five or six, and ended at age 15 or 16. I think that
provides a significant opportunity to blur the details. But it may not.
Q. Right. But with regard to the specific acts that I
described, the penetration with a penis, the allegation about a hand
job, the allegation about a tool, there was only one incident that was
claimed by that child of each of those?
A. Right. What she is describing, there are events that she
clearly remembers. (Emphasis added).
Defense counsel did not move to strike any of these answers given by Guertin,
despite the fact that neither was responsive to defense counsel’s questions.
As an initial matter in analyzing defense counsel’s performance with respect
to Guertin’s testimony, his testimony regarding the alleged victims’ statements was
inadmissible hearsay. “Hearsay evidence is not admissible at trial unless within an
established exception.” People v Meeboer, 439 Mich. 310, 322; 484 NW2d 621
(1992), reh den sub nom People v Conn, 439 Mich. 1242 (1992); see also MRE 802.
Under the hearsay exception in MRE 803(4), “[s]tatements made for the purpose
of medical treatment are admissible . . . if they were reasonably necessary for
diagnosis and treatment and if the declarant had a self-interested motivation to be
truthful in order to receive proper medical care.” People v Mahone, 294 Mich. App.
208, 214-215; 816 NW2d 436 (2011), lv den 491 Mich. 908 (2012). However, in
Shaw, Judge Shapiro, writing for the majority, concluded that MRE 803(4) is not
applicable when the examination “did not occur until seven years after the last
alleged instance of abuse, thereby minimizing the likelihood that the complainant
required treatment”; the complainant did not seek out the examining doctor but was
instead referred by the police “in conjunction with the police investigation into the
allegations of abuse by defendant”; and the complainant had seen a different
-20-
physician, who did not testify at trial, for gynecological care during the seven year
interval. 315 Mich. App. at 675. A situation with such a long period of time between
the alleged sexual assault and the examination differs markedly from a situation
where an examination is conducted within a relatively short time after the alleged
sexual assault occurred. See, e.g., People v Garland, 286 Mich. App. 1, 9; 777
NW2d 732 (2009) (concluding that the “victim’s statements to the nurse were
reasonably necessary for her treatment and diagnosis” where the victim went to the
hospital for medical care and was examined on the same day as the sexual assault).
In this case, there was also a period of approximately five years or more
between the last alleged incident of sexual abuse and Guertin’s examinations of DG
and KG. Moreover, Harrison testified that she referred DG and KG to Guertin after
their forensic interviews, and DG testified that she had previously seen
gynecologists and had disclosed the sexual abuse to someone at Planned
Parenthood at some point before her examination with Guertin occurred. Although
Guertin testified that he examined DG and KG for purposes of medical treatment
that does not mean that the examinations were actually for medical treatment for
purposes of MRE 803(4); an expert witness cannot testify to a legal conclusion.
People v Drossart, 99 Mich. App. 66, 75; 297 NW2d 863 (1980) (“[I]t is important
that the expert witness not be permitted to testify about the requirements of law
which apply to the particular facts in the case or to phrase his opinion in terms of a
legal conclusion.”). Guertin’s examination was not reasonably necessary for
medical treatment but was instead aimed at furthering the investigation. Therefore,
Guertin’s testimony regarding the alleged victims’ statements was inadmissible
hearsay because it did not fall within the hearsay exception of MRE 803(4). Shaw,
315 Mich. App. at 675.
Moreover, Guertin also impermissibly vouched for the credibility of DG
and KG through his testimony. In stating his expert opinion, Guertin testified that
DG “gave a very clear history of being sexually molested over a period of years,
beginning at a very early age, age 5, by a person named [defendant].” Guertin then
immediately continued by recounting several of DG’s specific allegations against
defendant. Guertin also testified that in his expert opinion, KG “gave a strong
history of being sexually molested by [defendant]” and then immediately continued
by recounting specific allegations made by KG against defendant. Furthermore,
although Guertin acknowledged that he could not actually tell if DG and KG were
telling the truth, he also testified that his conclusion that DG and KG had given
“clear” and “strong” histories, respectively, of sexual abuse were based only on
what they reported and the level of detail in their accounts. Guertin further opined
that when these histories were considered along with his findings of physical injury
that was equally consistent with penetrative abuse as well as consensual sexual
intercourse, he concluded that it was “valid” to conclude that DG and KG were
“sexually molested.” Guertin also explained memory-related issues and then
affirmatively stated that the incidents described by DG were what she remembered.
By repeating the alleged victims’ statements in the context of stating his
expert opinion, Guertin went beyond merely recounting their medical history and
-21-
instead imbued the allegations with the authoritative weight of a final conclusion
by an expert. Essentially, Guertin testified that he found the alleged victims’ stories
credible. When understood in this light, Guertin’s other testimony that he could
not be certain that DG and KG had told him the truth seems somewhat
disingenuous. As our Supreme Court has explained with respect to expert
testimony in child sexual abuse cases,
Given the nature of the offense and the terrible consequences of a
miscalculation-the consequences when an individual, on many
occasions a family member, is falsely accused of one of society’s
most heinous offenses, or, conversely, when one who commits such
a crime would go unpunished and a possible reoccurrence of the act
would go unprevented-appropriate safeguards are necessary. 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.
[Peterson, 450 Mich. at 374 (emphasis in original; quotation marks
and citation omitted).]
Furthermore, Guertin’s opinion that it was valid to conclude that DG and
KG had been sexually molested constituted impermissible vouching because that
conclusion was not supported by objective medical evidence. Our Supreme Court
has stated that even in the sexual assault context, it is “well-established that expert
opinion testimony will not be excluded simply because it concerns the ultimate
issue.” People v Smith, 425 Mich. 98, 101,106; 387 NW2d 814 (1986), citing MRE
704.12 However, the examining physician’s opinion must be based on objective
evidence “within the realm of his medical capabilities or expertise,” or else it is
merely an improper opinion on the complainant’s veracity. Id. at 112-115 (holding
that a doctor’s opinion that a complainant was sexually assaulted should not have
been admitted where it was based on the complainant’s emotional state and self-
reported history rather than on any “findings within the realm of his medical
capabilities or expertise as an obstetrician/gynecologist” because this expert
opinion had the effect of being an “assessment of the victim’s credibility”).
__________________________________________________________________
12
MRE 704 provides: “Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided
by the trier of fact.”
__________________________________________________________________
In People v McGillen #2, 392 Mich. 278, 284-285; 220 NW2d 689 (1974),
our Supreme Court held that a doctor’s opinion that penetration had occurred was
improperly admitted where “the prosecutrix admit[ed] that a second rape occurred
subsequent to the charged offense, any testimony the doctor may give is irrelevant
and immaterial especially in view of the length of time that intervened between the
alleged act and the physical examination.” That case involved defendant’s trial for
the first alleged incident of sexual assault, but the doctor had only conducted a
-22-
physical examination of prosecutrix approximately two weeks after that incident;
during that two-week interval, the prosecutrix was sexually assaulted a second time.
Id. at 281-282. In reaching its holding, our Supreme Court reasoned as follows:
By accepting as fact the prosecutrix’s factual history and
then testifying that in his expert opinion the medical examination
supported and was consistent with that history, he is lending his
medical opinion to support a claim made by the prosecutrix that is
beyond the realm of his medical capabilities and expertise. The
doctor is not a qualified expert on the question of whether or not the
prosecutrix was raped by the defendant on the alleged date. [Id. at
285.]
In this case, Guertin testified that his physical examination revealed injuries
to the hymens of DG and KG that he opined were equally consistent with being
caused by childhood sexual abuse or consensual sexual activity. The medical
histories of both DG and KG indicated that each girl was sexually active at the time
of the examinations and that each girl alleged instances of childhood sexual abuse.
To the extent that Guertin opined that the injuries could have been caused by either
the alleged abuse or consensual sexual activity that was part of DG’s and KG’s
medical histories, this opinion was supported by objective medical evidence in the
form of his physical findings and medical expertise. Guertin also adequately
explained the justification for his conclusion that sexual abuse during the pre-
pubertal stage was a “more likely” cause, based on his medical knowledge of
female anatomy and development. However, Guertin had no objective medical
basis from which to conclude that the “valid” conclusion was that DG and KG had
been “sexually molested.” By choosing one cause over the other without an
objective medical reason, Guertin went beyond the scope of what [] his medical
expertise actually allowed and ventured improperly into the realm of inadmissible
lay opinion about the credibility of the alleged victims allegations against
defendant. Id. This was also improper vouching. Musser, 494 Mich. at 349;
Peterson, 450 Mich. at 352; Buckey, 424 Mich. at 17. [Smith (BORRELLO, J.,
dissenting), unpub op at 18-27 (alterations in original).]
I would only add to the above analysis that Guertin’s testimony was improper under
Harbison for the same reasons stated above. See Thorpe, 504 Mich. at 235 (“[E]xamining
physicians cannot testify that a complainant has been sexually assaulted or has been diagnosed
with sexual abuse without physical evidence that corroborates the complainant’s account of sexual
assault or abuse because such testimony vouches for the complainant’s veracity and improperly
interferes with the role of the jury.”). The improprieties in Guertin’s testimony closely parallel
those of the pediatrician’s testimony that was found to be improper in Harbison. Id. at 244-245,
260-266.
Hence, because Guertin’s improper vouching testimony was contrary to the holding in
Harbison, and for “the same reasons that defense counsel’s performance was deficient with respect
to his failure to challenge Harrison’s vouching testimony, defense counsel’s performance was also
below an objective standard of reasonableness with respect to his failure to challenge Guertin’s
-23-
vouching testimony. Douglas, 496 Mich. at 585-586. Like police officers, expert witnesses are
prone to having their statements given a greater degree of weight by juries. Peterson, 450 Mich.
at 374.” Smith (BORRELLO, J., dissenting), unpub op at 27.
V. PREJUDICE
Turning next to the prejudice prong under Strickland, defendant must show
that there is a reasonable probability that but for counsel’s deficient performance,
the outcome of the trial would have been different. 466 U.S. at 694. A reasonable
probability is one that is “sufficient to undermine confidence in the outcome,” and
this standard does not require defendant to show that the outcome was “more likely
than not” altered. Id. at 693, 694. “The result of a proceeding can be rendered
unreliable, and hence the proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to have determined the
outcome.” Id. at 694.
The instant case admittedly presents a closer question of prejudice than
Douglas or Shaw. In both of those cases, there were no third-party witnesses to the
alleged abuse and little or no physical evidence. Douglas, 496 Mich. at 567; Shaw,
315 Mich. App. at 677. In this case, there were no eyewitnesses to any of the
incidents involving penetration of DG or KG, but there was testimony that
defendant had been seen on multiple occasions grabbing and poking DG and KG.
Her mother also witnessed the incident where defendant grabbed DG’s chest on the
couch.
However, even in the context of CSC-II, which is based on “sexual contact,”
the prosecution must still prove that the intentional touching could “reasonably be
construed as being for the purpose of sexual arousal or gratification, done for a
sexual purpose, or in a sexual manner for” revenge, inflicting humiliation, or out of
anger. MCL 750.520a(q); MCL 750.520c(1). The jurors in this case clearly did
not believe all of the allegations that were made: they acquitted defendant of one
charge and could reach a unanimous verdict on another charge. Considering the
heightened weight that juries tend to give police officers and expert witnesses,
Peterson, 450 Mich. at 374; Musser, 494 Mich. at 363, and the amount of vouching
and hearsay evidenced admitted without objection, it is reasonably likely that that
the improper vouching by Harrison and Guertin could have convinced the jury that
at least some of the allegations were credible and, with respect to the CSC-II
conviction, that defendant touched DG for a sexual purpose as opposed to some
other purpose.
Such a conclusion is not mere conjecture. See Strickland, 466 U.S. at 693
(“It is not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding.”). Both Harrison and Guertin were the
very witnesses our Supreme Court alluded to in Peterson when they held: “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.” Peterson, 450 Mich. at 374. While it is important not to
-24-
minimize the significance of improperly touching another person in a sexual
manner, it is also worth noting that the instant case also involved a substantial
amount of “other-acts” evidence related to incidents that defendant would have
allegedly committed when he was a minor as young as 12 years old. These other
acts were put into evidence in order to convince the jury to convict defendant of
criminal offenses that he allegedly committed as an adult. Presuming that there
was no error in admitting all of this other-acts evidence,13 it would still be
reasonable for jurors to potentially ascribe a different amount of weight or different
purposes to the acts of a 12 year old then they might to the acts of an adult, unless
there was evidence suggesting that they should do otherwise. Accordingly, the
wrongful admission of vouching testimony given by a police detective and a
medical expert, who opined that DG and KG had been “sexually molested,” could
have reasonably made a difference in how the jury perceived the alleged victims’
claims and the intent of any acts they believed defendant committed. See Peterson,
450 Mich. at 374; Musser, 494 Mich. at 363; see also Douglas, 496 Mich. at 580
(noting that “[w]hile credibility contests are not uncommon in criminal sexual
conduct cases, the wrongful admission of corroborating testimony on either side
could tip the scales and result in harmful error”) (quotation marks and citation
omitted).
__________________________________________________________________
13
See, e.g., In re Kerr, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket
No. 335000); slip op at 2-4 (holding that MCL 768.27a, which permits the
prosecution in a criminal case involving a listed offense against a minor to introduce
evidence that the defendant committed another listed offense against a minor, also
applies in juvenile-delinquency trials but is still subject to the specific application
of MRE 403 set forth in People v Watkins, 491 Mich. 450; 818 NW2d 296 (2012)).
“Listed offense” means “that term as defined in section 2 of the sex offenders
registration act . . . .” MCL 768.27a(2)(a).
__________________________________________________________________
* * *
. . . I find the decisions in Douglas and Shaw applicable. The instant case
involved a situation where the credibility of the alleged victims was of central
importance, and seemingly objective witnesses with the authoritative positions of
police detective and medical doctor testified in a manner that vouched for the
believability of the alleged victims’ stories. For the above reasons, there is a
reasonable probability that if defense counsel had objected to this vouching
testimony and prevented it from being admitted, the outcome of defendant’s trial
would have been different and the jury would not have convicted him as it did. The
failure by trial counsel to object to the hearsay statements provided by Harrison and
Guertin allowed those statements to be considered by the jury. The failure of trial
counsel to allow them to present their testimony, again without objection, in a
manner best described as human lie detectors, undermined the credibility of the
verdict and denied defendant a fair trial. See Peterson, 450 Mich. at 374; Douglas,
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496 Mich. at 586-588; Shaw, 315 Mich. App. at 677-678. [Smith (Borrello, J.,
dissenting), unpub op at 27-30 (alterations in original).]
Thus, as I stated previously, I would reverse defendant’s convictions and remand this
matter to the trial court for a new trial.
/s/ Stephen L. Borrello
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