Jeffrey Douglas, the defendant in this case, was charged with sexually abusing his 3 ½-year-old daughter, K.D., in mid-May to June 2008, while K.D. was living with him, but apart from her mother. K.D. did not return to living with her mother until January 2009. According to K.D.’s mother, the child told her about the incidents about a year after the alleged abuse took place.
A forensic interviewer testified at trial – over the objections of Douglas’ attorney – that K.D. told her, “Know what, my daddy makes me suck his peepee.” K.D. also testified at trial that she “sucked [her] daddy’s peepee.” A jury convicted Douglas of first-degree criminal sexual conduct, MCL 750.520b(1)(a) (victim under 13 years of age), and second-degree CSC, MCL 750.520c(1)(a) (victim under 13).
But on Douglas’ appeal, the Court of Appeals vacated his convictions and sentences and remanded the case to the trial court for either reinstatement of a pre-trial plea offer from the prosecutor or a new trial. Douglas “was denied the effective assistance of counsel during both the pretrial and trial proceedings and the cumulative effect of the trial errors denied him a fair trial,” the appellate court said in its published decision.
The forensic interviewer’s testimony about K.D.’s statements to her should not have been admitted into evidence, the Court of Appeals declared. Michigan Rule of Evidence 803A, the “tender years” hearsay exception, provides:
A statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided:
(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without indication of manufacture;
(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; and
(4) the statement is introduced through the testimony of someone other than the declarant.
If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule.
The forensic interviewer’s testimony about K.D.’s statements was not properly admissible under MRE 803A, the Court of Appeals concluded. “Whether KD’s statements to [the forensic interviewer] were ‘spontaneous’ within the meaning of MRE 803A is a close question,” the appellate panel acknowledged, but concluded that the interviewer had “prompted” KD: “KD broached the subject of sexual abuse after [the interviewer] told KD that children tell her things that have happened to them, including secrets and things that people tell the children not to say.” Moreover, K.D. had already talked to a therapist about the alleged abuse, and, during the 45- to 60-minute drive to see the forensic interviewer, K.D.’s mother told her that she was going to be interviewed, the panel noted.
“More certain for purposes of MRE 803A is that KD’s statements to Wheeler were not made immediately after the incidents and there is no indication that the delay was caused by fear or another ‘equally effective circumstance,’” the Court of Appeals said. The court rejected the prosecutor’s argument that the delay was due to K.D.’s “extreme youth”; “nothing in the record indicates that KD’s age was a reason for the delay.”
Moreover, the child’s statement to the interviewer was not K.D.’s first corroborative statement about the incident; K.D. first told her mother, the Court of Appeals said. “Thus, Wheeler’s testimony that KD told her that defendant made her suck his ‘peepee’ was inadmissible under MRE 803A.” K.D.’s statements about a different incident, in which Douglas allegedly had K.D. and her stepsister touch his genitals, were likewise inadmissible under MRE 803A, the court said.
In addition, the Court of Appeals said, the trial court erred by allowing hearsay testimony from a Michigan State Police detective and testimony from a Child Protective Services worker that improperly bolstered K.D.’s credibility. In particular, the CPS worker stated that she would not file a child protection petition, as she had for K.D., if she thought the child was lying. She also answered “Yes” when the prosecutor asked, “Does that—can that lead us to the conclusion that you found that the allegations had been substantiated?” The worker also testified that “there was no indication that she [KD] was coached or being untruthful[.]” The testimony was not properly admissible because it “directly commented on KD’s credibility and bolstered the allegations against defendant,” the Court of Appeals stated.
Douglas also argued that he was denied the effective assistance of counsel, in part because his attorney failed to object to the admission of the MSP detective and the CPS worker. The Court of Appeals agreed, adding that defense counsel had failed to impeach K.D. with statements she made during her preliminary examination testimony, including that her mother wanted her to “tell a lie that [she] didn’t know anything about.” The Court of Appeals observed, “Although KD also made inconsistent statements at the preliminary examination that tended to support her allegations, there was no logical reason for counsel not to impeach KD’s trial testimony with her preliminary examination testimony because it supported counsel’s theory that KD was not credible and that [her mother] had coached her to make the allegations.”
Defense counsel’s ineffective assistance and other factors had the “cumulative effect” of denying Douglas a fair trial, warranting a new trial, the Court of Appeals concluded. Moreover, Douglas was denied the effective assistance of counsel in the pre-trial phase of the case, the appellate court said.
“Defense counsel’s failure to inform defendant in this case that he would receive a 25-year mandatory minimum sentence if convicted of first-degree [criminal sexual conduct] fell below an objective standard of reasonableness,” the Court of Appeals stated. “MCL 750.520b(2)(b) clearly provides for a mandatory 25-year minimum sentence for a first-degree CSC violation that is ‘committed by an individual 17 years of age or older against an individual less than 13 years of age. . . . ’ Thus, counsel’s advice to defendant that he could face up to a 20-year sentence, but would most likely be sentenced to a minimum term between 5 and 8 years in accordance with the sentencing guidelines, was erroneous.”
Moreover, Douglas needed accurate information about the mandatory minimum sentence to make an informed decision about whether to accept a plea deal offered by the prosecutor or go to trial, the Court of Appeals noted. On the morning of the trial, the prosecutor had offered to let Douglas plead to fourth-degree criminal sexual conduct; Douglas’ attorney told him that, if Douglas accepted the offer, the worst sentence that he could receive was 10 months in jail with the requirement that he register as a sex offender. Douglas testified that, had his attorney advised him of the 25-year mandatory minimum sentence, he would have taken the plea offer because “[a] 25-year minimum is a lot different than the possibility of not going to prison.” Moreover, Douglas said, he had rejected the plea deal because his attorney told him that, as a registered sexual offender, he would not be allowed to live with his children.
“Counsel’s misinformation … contributed to his decision to reject the plea offer,” the Court of Appeals concluded. “Although the trial court determined that no error had occurred because defendant was aware of the possibility that he could be sentenced to a 20-year term, there is a significant difference between the possibility of a 20-year term with the likelihood of serving a much shorter sentence and the certainty of serving a 25-year minimum term. Defendant has thus shown that the offer was valid, that he would have accepted the offer, and that his convictions and sentences would have been much less severe than those that were imposed after trial. Therefore, defendant has established that counsel’s failure to inform him of the actual consequences of accepting or rejecting the plea offer prejudiced him.”
The correct remedy, the appellate panel said, was to allow Douglas the option of accepting the prosecution’s pre-trial offer. “If defendant refuses to accept the plea offer, he is entitled to a new trial.”
One of the three judges on the Court of Appeals panel concurred in the ruling, but said she would have held that K.D.’s statement to her mother about the alleged abuse was admissible under MRE 803A.
“[F]ear or some analogue thereof is not the only basis for excusing a delay under MRE 803A(3). Rather, MRE 803A(3) requires any circumstance that would be similar in its effect on a victim as fear in inducing a delay in reporting, not a circumstance that is necessarily similar in nature to fear.”
At the time of the alleged abuse, K.D. was living with Douglas and did not return to her mother until about eight months later, the judge noted. “KD was, moreover, approximately 3½ years old at the time of the abuse. KD’s mother and the [forensic] interviewer both explained that four year olds do not understand ‘concepts of time.’ Given that KD was living with defendant until January 2009, she may not have had a realistic opportunity to report the abuse for most of the year it took her to do so. The delay in disclosure would not likely have been subjectively apparent to her, and … KD would not necessarily have even understood at her age why the abuse was something she should report to anyone.”
The prosecution appealed, and in an October 24, 2012 order, the Supreme Court granted leave to appeal. The Court directed the parties to address “(1) whether the Court of Appeals erred in concluding that the defendant was prejudiced by his attorney’s failure to inform him of a mandatory minimum sentence if convicted of the charged offense where the trial court determined that the defendant refused plea offers because he claimed to be innocent; (2) whether the remedy for ineffective assistance of counsel may include re-offering a plea bargain to a lesser charge after the defendant has testified at a trial that he did not commit an offense; (3) under MRE 803A(3), what circumstances other than ‘fear’ may excuse the failure of a child to report sexual abuse immediately; (4) whether a second corroborative statement concerning sexual abuse is admissible under MRE 803A where the statement includes a different allegation of sexual abuse than was provided in the declarant’s first statement; and (5) whether a witness’s testimony that a child’s statement was ‘substantiated’ constitutes improper vouching.”