Michigan Court Of Appeals Holds No Errors At CSC Trial

On July 2, 2015, the Michigan Court of Appeals held in a criminal case that the trial court did not err when it denied defendant's request for an adjournment to locate an expert witness, when it prevented defendant himself from cross-examining the victims - his own children - about sexual abuse he perpetrated on them, and when it permitted the prosecution to present evidence of defendant's previous domestic violence against the victims.

In People v Daniels, Docket No. 320499, the Michigan Court of Appeals addressed a number of issues raised by defendant following his convictions for a number of offenses involving criminal sexual conduct (CSC). Defendant claimed the trial court committed error by denying his request for an adjournment so that he could located an expert witness concerning forensic interviewing techniques for children, by preventing him from questioning the victims himself at trial, and by admitting evidence of his prior domestic violence offenses against the victims.

The Court first recited the facts of the case:

This case stems from defendant’s physical and sexual abuse of two of his daughters, A.D. and O.D. After employees at Care House interviewed A.D. and O.D. in July 2012,1 the prosecutor charged defendant with: (1) two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a); (2) three counts of second-degree child abuse, MCL 750.136b(3); and (3) one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a). The charges relate exclusively to defendant’s abuse of A.D. and O.D . . . .

Over a year before trial, defendant’s initial trial attorney requested the appointment of an expert witness to testify on forensic interviewing techniques used to interview victims of child molestation. The trial court awarded $1,500 in public funds to defendant for this purpose in April 2013, and suggested that defendant’s trial should be scheduled for June 2013. Defendant requested additional time to locate an expert, which the trial court permitted, and the court rescheduled trial for December 2013.

By October 2013, defendant chose to represent himself, albeit with advisory counsel. At this time, his advisory attorney told the court defendant was in the process of finding an expert to testify on forensic interviewing techniques. Though defendant and advisory counsel promised to contact two prospective expert witnesses within the week, it is unclear whether they did so as to one of the potential witnesses, and the other witness told them that he no longer testified in court. Defendant then attempted to secure Dr. Katherine Okla as his expert witness, and, on the day before trial, moved to adjourn the case until she was available to testify, which would not be until at least January 10, 2014. The prosecutor objected to the motion, and noted that defendant could cross-examine the forensic interviewer—who had actually interviewed A.D. and O.D.—on the subject of proper interviewing techniques.

The trial court concurred with the prosecution, and denied defendant’s motion. In so doing, the trial court stated that defendant: (1) had delayed trial “for a very long time”; (2) failed to explain how the lack of an expert witness would prejudice him; and (3) failed to provide sufficient information on the subject of Dr. Okla’s testimony—which raised the possibility that Dr. Okla would actually “testify against the interest of the defendant.”

During trial, defendant again raised the issue of procuring an expert witness to testify on forensic interviewing, and at defendant’s request, the trial court increased the public allotment for an expert witness to $2,000. Despite the trial court’s extensive accommodation of his demands, defendant failed to call Dr. Okla or any other expert in forensic interviewing . . . .

After 10 days of proceedings, the jury convicted defendant of: (1) two counts of first- degree criminal sexual conduct, MCL 750.520b(1)(a); (2) three counts of second-degree child abuse, MCL 750.136b(3); and (3) one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a).

On appeal, defendant argues that the trial court violated his constitutional rights to: (1) present a defense, when the court denied his request to adjourn the trial so he could secure an expert witness; and (2) represent himself, when the court barred him from personally cross- examining A.D., O.D., and K.D. Defendant also says that the trial court erred when it admitted evidence that he committed other acts of physical abuse separate from the charged crimes. The prosecution asks us to affirm the rulings of the trial court and defendant’s conviction . . . .

 

The Court's analysis on each of defendant's claims of error followed.

Here, defendant unconvincingly claims that the trial court deprived him of his right to present a defense when it denied his request for an adjournment to secure Dr. Okla’s testimony on forensic interviewing. Despite the fact that his first attorney raised the issue of hiring an expert witness to testify on forensic interviewing over a year before trial, defendant admits that he did not attempt to locate and secure two potential expert witnesses until soon before the trial began. And despite learning that these witnesses could not testify, he did not move for an adjournment until the day before trial. At that time, Dr. Okla had not yet reviewed the record, and defendant failed to offer any proof that: (1) she would testify on his behalf; or (2) her expertise would be relevant or helpful to the jury. See People v Bynum, 496 Mich 610, 623-624; 852 NW2d 570 (2014).

Moreover, defendant had already caused his trial to be delayed for several months—not only so that he could secure an expert witness, but also so that defendant could file and respond to motions, obtain discovery, and request an evaluation of his competency. The trial court accommodated defendant in each of these prior instances, yet defendant continued to persist in his attempts to delay trial. Therefore, he has failed to show “good cause and diligence” in pursuit of an expert witness—in fact, he was negligent, not diligent, in pursuit of an expert witness, and did not make use of the generous time and monetary allotments the trial court gave him so he could secure a witness. The trial court accordingly did not violate his right to present a defense when it denied his request for an adjournment. Yost, 278 Mich App at 379.

Were we nonetheless to assume that defendant had shown “good cause and diligence” in pursuit of an expert witness, the trial court’s refusal to adjourn the trial would not warrant reversal, because defendant fails to show that the absence of Dr. Okla prejudiced him in any significant way. Coy, 258 Mich App at 18-19. And though defendant describes, in his brief on appeal, the general subjects to which Okla would have testified, there is no indication that Okla’s testimony would have materially benefited defendant’s case. Id . . . .

Here, defendant’s assertions that the trial court violated his right to self-representation are particularly unconvincing. Again, the trial court prohibited defendant, who represented himself, from personally cross-examining A.D., O.D., and K.D. Instead, the court instructed defendant to formulate questions for his daughters, which his advisory attorney then used to cross examine them. In no way did this decision interfere with defendant’s right to represent himself. At all times in this case, defendant maintained autonomy in presenting his defense, and was able to control the direction of the cross-examination of his daughters by writing the relevant questions for his advisory attorney. The record also demonstrates that advisory counsel conferred with defendant and received assistance from him in coordinating the exhibits during those examinations. See People v Davis, 216 Mich App 47, 56; 549 NW2d 1 (1996).

To repeat: the trial court made its decision to prohibit defendant from personally cross- examining A.D. and O.D. (who were, respectively, 12 and 9 years old at the time) after a motion hearing at which it heard considerable evidence that defendant’s personal cross-examination would cause them significant trauma and emotional stress. At defendant’s preliminary examination, A.D. testified that defendant repeatedly attempted to frighten her. O.D. broke down in tears on multiple occasions, paused for great lengths, and fell asleep on the witness stand while testifying, indicating great emotional discomfort. Furthermore, as the prosecutor argued at the July 2013 motion hearing, defendant succeeded in silencing his daughters after the 2010 interview at Care House, by demanding to know what they had told the social workers, and telling his daughters that the Care House employees were “scary people.” The trial court properly inferred that his interrogation during trial could have a similar intimidating effect on his daughters. The trial court’s decision to prohibit defendant from personally cross-examining K.D. was equally sensible. It did so after it witnessed A.D. and O.D.’s testimony at trial, in which both girls expressed great fear of their father.

Therefore, it is clear that the trial court wisely and properly prevented defendant from personally cross-examining A.D., O.D., and K.D., to stop the children from suffering “harassment and undue embarrassment.” MRE 611(a); and Adamski, 198 Mich App at 138. In no way did this violate defendant’s right to self-representation, because a criminal defendant has “no constitutional right to personally cross-examine the victim of his crimes.” Applegate, 299 SW3d at 273. Defendant’s arguments to the contrary are unsupported and without merit . . . .

Here, defendant wrongly contends that the trial court abused its discretion when it permitted the admission of testimony from K.D., C.D., and N.D., pursuant to MCL 768.27b, that defendant committed other acts of physical violence against them. Again, K.D., C.D., and N.D. testified that defendant physically abused them when he: (1) pulled K.D. down the stairs, causing a rug burn, and spanked her hard on the buttocks; (2) spanked and threw C.D. into a wall, slapped and knocked over C.D. on a camping trip, and told personnel at a hospital that C.D. was suicidal when he actually had attempted to run away from home to escape defendant’s abuse; and (3) threw a garbage can and shovel at N.D. MCL 768.27b required the trial court to admit this testimony because: (1) it is relevant; (2) it describes acts of “domestic violence” under the statute; and (3) its probative value is not outweighed by the risk of unfair prejudice under MRE 403.

Each of the acts of physical violence to which the K.D., C.D., and N.D. testified are relevant, because they tend to make “a material fact at issue”—i.e., whether defendant physically and sexually abused A.D. and O.D—“more probable or less probable than [the material fact] would be” without the testimony. People v Crawford, 458 Mich 376, 387; 582 NW2d 785 (1998). The testimony also involves acts of “domestic violence” under MCL 768.27b, because the children described instances in which defendant either “caus[ed] or attempt[ed] to cause physical or mental harm to a family or household member” through actual physical abuse. MCL 768.27b(5)(a).

Nor is the probative value of the testimony outweighed by the risk of unfair prejudice to defendant under MRE 403. The testimony is highly probative, because it demonstrates defendant’s violent and aggressive tendencies, as well as his repeated history of committing physical abuse of all his children—not just A.D. and O.D. In other words, it gave the jury “ ‘a full and complete picture of a defendant’s history [and] tend[s] to shed light on the likelihood that a given crime was committed.’ ” Cameron, 291 Mich App at 610, quoting Pattison, 276 Mich App at 620. And none of the factors that would indicate this probative value is outweighed by a danger of “unfair prejudice”—delay of defendant’s trial, a cumulative nature, a potential to mislead or confuse the jury—are present. Blackston, 481 Mich at 462.

Accordingly, the trial court ruled properly under MCL 768.27b when it admitted the testimony of K.D., C.D., and N.D. regarding the physical violence he committed against them . . . .