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141672 - People v Duncan (Robert)

People of the State of Michigan,
Janet A. Napp
(Appeal from Ct of Appeals)
(Wayne – Allen, D.)
Robert William Duncan,
Mark M. Haidar


​Robert Duncan was charged with three counts of third-degree criminal sexual conduct for sexual encounters he allegedly had with a 14-year-old friend of his daughters. At trial, the girl testified that she and Duncan had had sexual relations, but Duncan denied any wrongdoing. After deliberating for several hours, the jury found Duncan guilty as charged.

Duncan filed a motion seeking judgment notwithstanding the verdict or a new trial. He argued, among other things, that there were numerous instances where hearsay evidence was placed before the jury and that his trial counsel was ineffective. While rejecting Duncan’s other arguments, the trial judge agreed that a number of hearsay statements – for example, the girl’s testimony that she told Duncan’s daughter that rumors of a sexual affair between herself and Duncan were true – should not have been admitted into evidence. The judge also held that testimony regarding Duncan’s prior felony conviction for drug possession was improperly admitted, and that defense counsel was ineffective for failing to object to the repeated admission of hearsay evidence. The defense attorney’s failure to object, combined with other mistakes at trial, served to deny Duncan a fair trial, the judge concluded, The judge rejected Duncan’s argument that he was entitled to a new trial on the basis of an affidavit from a recanting witness, but added that the witness’ statements “are legitimate areas of cross exam inquiry which may shed light on her credibility.”

The prosecutor filed a delayed application for leave to appeal in the Court of Appeals, contending that the trial court abused its discretion; the alleged hearsay testimony was properly admitted, defense counsel was not ineffective, and the “new evidence” offered by the recanting witness was ineffectual, the prosecutor maintained. Over the dissent of one panel member, the Court of Appeals majority affirmed the trial court in an unpublished per curiam opinion. The majority agreed that hearsay testimony had been “repeatedly and erroneously” admitted at trial, and that defense counsel was ineffective. The improperly admitted evidence “only served to bolster the victim’s credibility and her version of events, and to damage defendant’s credibility,” the majority said. The dissenting judge did not agree that any errors were outcome determinative, and would have reversed the trial court’s grant of a new trial. The prosecutor appeals.