Opinion
No. 329605
12-19-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LOUIS CHARLES CHANDLER, Defendant-Appellant.
UNPUBLISHED Kent Circuit Court
LC No. 15-003589-FC AFTER REMAND Before: SAWYER, P.J., and HOEKSTRA and BECKERING, JJ. PER CURIAM.
Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(2)(b). Defendant appealed as of right. He also filed a motion to remand, requesting an evidentiary hearing and the opportunity to move the trial court for a new trial. We granted defendant's motion to remand. On remand, the trial court conducted an evidentiary hearing and denied defendant's motion for a new trial. The case is now before us following the remand proceedings. For the reasons explained in this opinion, we affirm.
People v Chandler, unpublished order of the Court of Appeals, entered July 7, 2017 (Docket No. 329605).
Defendant's CSC-I convictions relate to sexual abuse perpetrated by defendant on his foster daughter. The abuse occurred in 2010, when the victim was approximately 8 years old. She was removed from the home; but, no criminal charges were brought at that time. In 2014, defendant's 8-year-old step-granddaughter, ZB, disclosed that defendant had inappropriately touched her. Following ZB's disclosure, the victim in this case was forensically interviewed, and defendant was charged with CSC relating to the victim. The trial was held in 2015, when the victim was 12 years old.
At trial, the victim detailed the sexual abuse committed against her by defendant, and the prosecutor also presented other acts evidence from ZB, defendant's sister, and a family friend as well as evidence that defendant had pornographic stories involving child sexual abuse on his computer. There were inconsistencies in the victim's current description of events as compared to her initial report to authorities in 2010. The prosecutor called an expert on child sexual abuse disclosure, who testified regarding memory and child sexual abuse.
The defense theory of the case at trial was that the victim fabricated the allegations of sexual abuse after defendant and his wife filed papers to adopt the victim because she did not want to be adopted. Defense counsel asserted that the victim—who had Reactive Attachment Disorder (RAD)—had lied in the past to manipulate adults in order to be removed from other foster homes. The jury convicted defendant as noted above.
Defendant appealed as of right. In his initial appellate brief, defendant raised a variety of claims relating to the trial court's denial of defendant's requests for an adjournment, the trial court's exclusion of defense witnesses, ineffective assistance of counsel, and the admission of other-acts evidence. As noted, defendant also filed a motion to remand, and we granted defendant's motion to remand for an evidentiary hearing and to allow defendant to move for a new trial.
On remand, a factual record was developed with respect to three proposed defense witnesses who were precluded from testifying at trial. Two of these witnesses—Randy and Sandy Hamblin—were former foster parents for the victim and they had applied to adopt the victim. Their testimony related to purported lies that the victim told while in their care, specifically allegations by the victim that she had been abused by the Hamblins. The third defense witness was psychologist Jeffrey Kieliszewski, a proposed defense expert who would have offered testimony regarding forensic interviewing protocols and memory, including an explanation of memory confabulation and how memory degrades over time. At the evidentiary hearing, defendant's trial counsel also testified. Following the hearing, the trial court denied defendant's motion for a new trial. The case is now before us following the remand proceedings, and the parties have filed supplemental briefs.
I. REQUEST FOR AN ADJOURNMENT & EXCLUSION OF DEFENSE WITNESSES
On appeal, defendant argues that the trial court abused its discretion in denying defendant's requests to adjourn trial to allow defense counsel an opportunity to investigate reports that the victim had previously fabricated allegations of abuse by foster parents and to allow time for the defense expert, Kieliszewski, to review the case. According to defendant, the effect of denying defendant's request for an adjournment was to deprive defendant of due process, a fair trial, and the right to present a defense. Additionally, defendant maintains that the trial court abused its discretion by preventing the defense from calling Kieliszewski as an expert witness at trial based on a discovery violation and that the trial court abused its discretion by excluding the Hamblins' testimony. Although we are troubled by some of the trial court's decisions, in light of the record developed on remand, we conclude that defendant has not shown prejudice and he is not entitled to relief on appeal.
We review a trial court's decision on a motion for an adjournment for an abuse of discretion. People v Daniels, 311 Mich App 257, 264-265; 874 NW2d 732 (2015). "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes." Id. at 265. To the extent defendant's claims involve constitutional arguments, our review of constitutional issues is de novo. Id.
"A reasonable time for adequate preparation of the accused's defense is the first essential of trial fairness," United States v Garner, 507 F3d 399, 408 (CA 6 2007), and "the desire of the trial courts to expedite court dockets is not a sufficient reason to deny an otherwise proper request for a continuance," People v Jackson, 467 Mich 272, 279 n 7; 650 NW2d 665 (2002). However, "to invoke the trial court's discretion to grant a continuance or adjournment, a defendant must show both good cause and diligence." People v Coy, 258 Mich App 1, 18; 669 NW2d 831 (2003). "'Good cause factors include whether defendant (1) asserted a constitutional right, (2) had a legitimate reason for asserting the right, (3) had been negligent, and (4) had requested previous adjournments." Id. (citation and quotation marks omitted).
Procedurally, the current case followed a relatively accelerated timeline in the trial court, despite defense counsel's repeated requests for an adjournment. Defendant entered a not guilty plea in the circuit court on April 22, 2015, and trial began 75 days later on July 6, 2015. During this comparatively brief period for defense preparation, on May 11, the prosecutor informed defendant that the prosecution would be calling an expert witness regarding child sexual abuse and the prosecutor filed a notice of intent to use other acts evidence of sexual abuse committed by defendant. On June 11, defendant requested and received funds to hire Kieliszewski as an expert, and on June 16, defendant filed a motion to compel, seeking records relating to prior false accusations of abuse made by the victim. On June 26, 2015, at a hearing on defendant's motion to compel, defense counsel asked for an adjournment to investigate the victim's history of false accusations and to allow Kieliszewski an opportunity to review the case. The trial court denied the motion. On June 30, defense counsel filed a motion for reconsideration, asserting that an adjournment was necessary to investigate the victim's history of lying and making false allegations to manipulate her foster care placements. Defense counsel stated that he had not completed his investigation, that there were 31 possible witnesses identified in the Child Protective Services (CPS) documents relating to the victim, and that, if counsel did not have more time, he would be ineffective at trial. The trial court denied the motion. On July 6, 2015, the first day of trial, defense counsel again requested an adjournment, stating that he had recently received a report from D.A. Blodgett in which it was noted there were "serious doubts" about the truth of the victim's claims given her history of false accusations. Defense counsel sought time to investigate the factual basis for this opinion, and defense counsel noted that defendant's expert had not yet completed review of the case. The trial court again denied the motion.
On this record, we see no reasonable or principled basis for denying defendant's request for an adjournment, and we are persuaded that the trial court abused its discretion. In denying defendant's requests, the trial court failed to even consider the good cause factors. Considering the good cause factors, it is clear they weigh in favor of an adjournment. First of all, in seeking an adjournment, defendant asserted constitutional rights. Specifically, he argued that counsel would be ineffective unless given additional time to investigate and that a continuance was necessary to protect defendant's right to present a defense and to a fair trial. See People v Sekoian, 169 Mich App 609, 614; 426 NW2d 412 (1988). Second, defendant had a legitimate reason for asserting these rights. Defense counsel had obtained records indicating that the victim had a history of fabricating allegations against foster parents and counsel had retained an expert to review the case. In other words, counsel did not vaguely request additional time; rather, based on documentation and the recent retention of an expert, counsel had legitimate and specific areas that he wanted to investigate in order to provide defendant with a defense. Third, with respect to negligence, given the relatively short pretrial timeline in this case, we are not persuaded by the prosecutor's assertions that defendant was negligent in investigating the victim's history of lying or in retaining an expert. Fourth, defendant had not received any other adjournments. On this record, given the seriousness of the charges involved as well as the short litigation timeline, the lack of previous adjournments, and defense counsel's sound arguments for requesting an adjournment, it may not have been the most expedient course of action, but it would have promoted the cause of justice to grant an adjournment in this case. MCR 2.503(D)(1). See also People v Grace, 258 Mich App 274, 277; 671 NW2d 554 (2003).
In addition to denying defendant's requests for an adjournment, the trial court also excluded Kieliszewski's testimony at trial as a sanction for defendant's failure to identify Kieliszewski as an expert as required by MCR 6.201(A). Additionally, defense counsel named the Hamblins as witnesses. However, while defense counsel sought to admit evidence of the victim's past manipulations of her foster care placements under MRE 404(b) as evidence of her motive to lie or as evidence of a common plan, scheme, or system of doing an act, the trial court instead considered the evidence under MRE 608 and held that extrinsic evidence could not be used to attack the victim's credibility. "A trial court's decision to permit or deny the late endorsement of a witness is reviewed for an abuse of discretion," People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008), and we review evidentiary decisions for an abuse of discretion, Daniels, 311 Mich App at 271.
With regard to Kieliszewski's expert testimony, the prosecutor made a demand for discovery before trial; but, defense counsel did not list Kieliszewski as an expert witness until July 7, 2015, i.e., the second day of trial; and defendant did not provide the prosecutor with a summary of Kieliszewski's proposed testimony. Thus, defendant clearly violated MCR 6.201(A), which requires disclosure, upon request, of all expert witnesses the party intends to call at trial as well as a description of the substance of the expert's proposed testimony. See MCR 6.201(A)(1) and (A)(3). When there has been a discovery violation, the trial court has discretion to determine the appropriate remedy. MCR 6.201(J). "When determining the appropriate remedy for discovery violations, the trial court must balance the interests of the courts, the public, and the parties in light of all the relevant circumstances, including the reasons for noncompliance." People v Banks, 249 Mich App 247, 252; 642 NW2d 351 (2002). "[T]he exclusion of a witness is an extreme sanction that should not be employed if the trial court can fashion a different remedy that will limit the prejudice to the party injured by the violation while still permitting the witness to testify." People v Rose, 289 Mich App 499, 526; 808 NW2d 301 (2010).
In this case, the trial court excluded Kieliszewski's expert testimony based on defendant's failure to comply with MCR 6.201(A). Having concluded that the trial court abused its discretion by denying defendant's repeated requests for an adjournment, we also find that the trial court abused its discretion by imposing this extreme sanction. That is, after receiving notice that the prosecutor intended to call an expert, defendant sought and obtained funds for an expert from the trial court. This request was granted on June 11, when there were already fewer than 28 days before trial. Defense counsel then repeatedly requested an adjournment, citing as the reasons for the request the need for additional investigation and, in particular, the need to have Kieliszewski review the case. Indeed, on the first day of trial, defense counsel again requested an adjournment, noting that Kieliszewski had not completed review of the files. On this record, the reasons for defense counsel's noncompliance with the court rule included the accelerated timeline, the expert's delay in reviewing the case, and the trial court's unreasonable refusal to permit an adjournment. Moreover, given that defense counsel received court approval for funds to hire an expert and that there was talk of defendant's expert at earlier hearings, the prosecutor could not have been caught unaware by the fact that defendant intended to call an expert. On this record, imposing the extreme sanction of excluding Kieliszewski's testimony, rather than adjourning the case as repeatedly requested by defense counsel or fashioning some other remedy, was an abuse of discretion. See Rose, 289 Mich App at 526.
In terms of the Hamblins' testimony, we note that the trial court employed the wrong framework when considering the admissibility of extrinsic evidence regarding the victim's history of making false allegations. In the trial court, defense counsel specifically argued that this evidence of the victim's previous fabrications was admissible under MRE 404(b) to show the victim's motive for lying and to establish that the victim had a common scheme, plan or design in making false accusations in order to be removed from foster care placements. However, the trial court failed to consider whether the evidence was admissible under MRE 404(b) and instead repeatedly characterized the evidence as extrinsic evidence of specific instances of conduct, which is inadmissible under MRE 608(b) to attack a witness's credibility. While extrinsic evidence might not be admissible to impeach credibility under MRE 608(b), evidence that is inadmissible for one purpose may be admissible for another purpose, Yost, 278 Mich App at 355, and extrinsic evidence may be used for MRE 404(b) purposes, People v Jackson, 475 Mich 909, 910; 717 NW2d 871 (2006). By failing to operate within the correct framework and by failing to even consider whether the evidence was admissible under MRE 404(b), the trial court abused its discretion. See People v Hine, 467 Mich 242, 251; 650 NW2d 659 (2002); People v Kelly, 317 Mich App 637, 644-645; 895 NW2d 230 (2016).
On appeal, aside from the Hamblins' testimony, defendant objects more generally to the trial court's exclusion of evidence "derived from the CPS reports," but he does not explain what other evidence relating to the CPS reports was excluded. Thus, apart from the Hamblins' testimony, we deem the issue abandoned. See People v Henry, 315 Mich App 130, 148-149; 889 NW2d 1 (2016).
Although we have determined that the trial court abused its discretion in several of its rulings, we nevertheless conclude that any error did not affect the outcome of the trial and thus defendant is not entitled to relief on appeal. See Coy, 258 Mich App at 18-19 ("[T]he trial court's denial of a request for an adjournment or continuance is not grounds for reversal unless the defendant demonstrates prejudice as a result of the abuse of discretion."); People v King, 297 Mich App 465, 472; 824 NW2d 258 (2012) ("A preserved trial error . . . excluding evidence is not grounds for reversal unless, after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome determinative."). In particular, the only potential prejudice identified by defendant consists of the exclusion of testimony from the Hamblins and Kieliszewski. Defendant was able to develop their proposed testimony on remand, and considering their testimony at the evidentiary hearing, it is clear that exclusion of this evidence did not affect the outcome of trial.
On appeal, defendant attempts to frame his arguments as constitutional claims involving the denial of the right to present a defense and a violation of due process. Based on his assertion that his constitutional rights have been violated, defendant argues that the prosecutor bears the burden on appeal of showing beyond a reasonable doubt that there is no reasonable possibility that the denial of his request for an adjournment and the exclusion of his witnesses contributed to his conviction. See People v Anderson (After Remand), 446 Mich 392, 405; 521 NW2d 538 (1994); People v Smith, 249 Mich App 728, 730; 643 NW2d 607 (2002). However, contrary to defendant's arguments, the trial court's decisions in this case did not deprive defendant of due process or his constitutional right to present a defense. See Ungar v Sarafite, 376 US 575, 589; 84 S Ct 841, 849; 11 L Ed 2d 921 (1964) ("[I]t is not every denial of a request for more time that violates due process."). Defendant was represented by counsel at trial, cf. Chandler v Fretag, 348 US 3, 9-10; 75 S Ct 1; 99 L Ed 4 (1954); and, despite the adjournment and exclusion of witnesses, as discussed in more detail infra, defense counsel presented defendant's argument that the victim fabricated the allegations against defendant. In short, we reject defendant's argument that the prosecutor must prove any error harmless beyond a reasonable doubt. See People v Blackmon, 280 Mich App 253, 270-271; 761 NW2d 172 (2008).
At the evidentiary hearing, the Hamblins offered their opinions that the victim was not a truthful person, and such opinion testimony would generally be admissible under MRE 608(a). Their testimony also involved specific descriptions of the victim's past fabrications of mistreatment, which she made after the Hamblins told her they intended to adopt her. Assuming arguendo that this evidence was admissible under MRE 404(b) or another rule, its exclusion did not affect the outcome of the trial. Even without the Hamblins' testimony, defense counsel challenged the victim's credibility at trial by highlighting inconsistencies between her statements in 2010 and 2015, and questioning the victim about past lies. Additionally, defendant's wife testified that, when the victim first came to the house, workers told her and defendant that the victim made allegations against past foster parents and to "watch" her. Further, defendant's wife testified that the victim made the allegations against defendant after being told that defendant and his wife were going to adopt her. In other words, the exclusion of the Hamblins' testimony did not prevent defendant from presenting his arguments that the victim fabricated her claims and that she did so because she did not want to be adopted.
For instance, according to the Hamblins, the victim reported that Randy picked her up by her hair and swung her around in the air, that Sandy beat her with a wooden spoon, that the Hamblins dressed her in clothing that was too small, and that their dog attacked her. According to the Hamblins' testimony, these allegations were investigated and determined to be "unfounded."
In addition to defendant's arguments based on MRE 404(b), defendant asserts that some of the victim's statements, such as her statement that it is "fun" to lie, may have been admissible under MRE 613(b).
With regard to Kieliszewski, in defendant's initial appellate brief, defendant asserted that Kieliszewski would testify about RAD and its relationship to lying. But, on remand, Kieliszewski indicated that lying was not a "criteria" of RAD; and, more generally, Kieliszewski would not have been able to offer an expert opinion of the victim's credibility. People v Douglas, 496 Mich 557, 583; 852 NW2d 587 (2014). On remand, Kieliszewski also discussed forensic interviewing protocols. He explained that the protocols highly discourage having a support person in the room and that they recommend videotaping the interview (or at a minimum taking detailed notes). The interview with the victim was not videotaped and her adopted mother was present for the interview. On remand, Kieliszewski also discussed memory and child sexual abuse, including the fact that memory degrades over time and that memory confabulation, in which a person "fills in the blanks" with fake memories, can occur. However, while Kieliszewski likely could have offered expert testimony regarding forensic interview protocols and memory generally, see MRE 702, the exclusion of his testimony did not affect the outcome. Defense counsel was able to question the prosecutor's expert about memory, and the prosecutor's expert acknowledged that children sometimes lie and that those lies can become actual memories. Likewise, defense counsel questioned the forensic interviewer at trial, who conceded that having a support person was not recommended. Moreover, to some extent, Kieliszewski described "best practices;" and, while the interview was not taped, notes were taken. On this record, Kieliszewski's testimony would not have changed the outcome.
More generally, we note that the victim's testimony was not the only evidence at trial. The record also shows that defendant had committed acts of criminal sexual conduct against other young girls, including his step-granddaughter, his sister, and a family friend. This pattern of conduct by defendant spanning almost 50 years bolstered the victim's credibility and supported a propensity inference. See People v Watkins, 491 Mich 450, 491; 818 NW2d 296 (2012); People v Solloway, 316 Mich App 174, 193; 891 NW2d 255 (2016). Considering this other evidence, any error in the denial of defendant's requests for an adjournment as well as the exclusion of testimony from the Hamblins and Kieliszewski does not entitle defendant to relief.
On appeal, defendant also argues that his trial counsel provided ineffective assistance by failing to conduct pre-trial investigation in a timely manner and by failing to name Kieliszewski as an expert in the time required by the discovery rules. In our judgment, defense counsel performed an adequate pretrial investigation in the time allowed; indeed, ultimately, defense counsel was well-prepared at trial and presented thorough cross-examination and arguments. Cf. Solloway, 316 Mich App at 189. With regard to Kieliszewski, defense counsel's performance was restricted by the abbreviated timeline in this case, though perhaps counsel should have filed a more timely witness list naming Kieliszewski as expert. See People v Pickens, 446 Mich 298, 327; 521 NW2d 797 (1994). But, even if we concluded that counsel performed unreasonably, as discussed, defendant has not shown prejudice resulting from the exclusion of Kieliszewski or the Hamblins, and thus he is not entitled to relief on this basis. See People v Traver, 316 Mich App 588, 604; 894 NW2d 89 (2016).
II. OTHER-ACTS EVIDENCE
Finally, defendant argues that the trial court erred in admitting two of the prosecution's witnesses, NJK and JH, who testified regarding other-acts evidence. Defendant further argues that the admission of this evidence denied him due process.
This Court reviews a trial court's evidentiary decision for an abuse of discretion. People v Cameron, 291 Mich App 599, 608; 806 NW2d 371 (2011). However, defendant did not preserve his constitutional argument. Thus, to this extent, we review the issue for plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
In a criminal case in which the defendant is accused of committing CSC-I against a minor, based on MCL 768.27a, the prosecutor may "offer evidence of another sexual offense committed by the defendant against a minor without having to justify its admission under MRE 404(b)." Solloway, 316 Mich App at 192. "Under MCL 768.27a, evidence is relevant, and therefore admissible, when offered to show the defendant's propensity to commit the charged crime." Id. at 193. However, "[r]elevant evidence that is admissible under MCL 768.27a may still be excluded under MRE 403." Id. at 193. Although MCL 768.27a is subject to MRE 403, "when applying MRE 403 to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect." Watkins, 491 Mich at 487.
This does not mean, however, that other-acts evidence admissible under MCL 768.27a may never be excluded under MRE 403as overly prejudicial. There are several considerations that may lead a court to exclude such evidence. These considerations include (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant's and the defendant's testimony. [Id. at 487-488.]Moreover, "[i]n cases in which a trial court determines that MRE 403 does not prevent the admission of other-acts evidence under MCL 768.27a, [a standard jury] instruction is available to ensure that the jury properly employs that evidence." Id. at 490.
On appeal, defendant does not challenge the relevance of the other-acts evidence under MCL 768.27a; rather, he argues that certain other-acts evidence should have been excluded under MRE 403. Specifically, he contends that the acts involving NJK and JH lacked temporal proximity, that JH's testimony regarding a single instance of abuse was unreliable because she was friends with ZB's mother, and that the incestuous nature of defendant's conduct with NJK was overly prejudicial.
The charged conduct in this case involved digital-vaginal penetration perpetrated by defendant against the 8-year-old victim while she was living in his home as his foster daughter. In comparison, NJK, who was defendant's sister, testified that defendant touched her breasts and had her touch him when she was approximately 8 to 10 years old. Weighing the Watkins factors, NJK's testimony was not overly prejudicial. Although the temporal proximity of the other acts involving NJK was almost 50 years, this factor alone is not dispositive, People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011), and the other considerations weighed in favor of the testimony's probative value. NJK was approximately the same age as the victim when the abuse occurred, both incidents involved sexual touching by defendant, and both victims lived in the same household as defendant. NJK's testimony thus tends to establish defendant's propensity to sexually touch young female members in his household. As noted in Watkins, the propensity inference weighs "in favor of the evidence's probative value rather than its prejudicial effect." Watkins, 491 Mich at 487. In addition, the trial court provided a jury instruction regarding the evidence, and a limiting instruction lessens the potential for prejudice because "jurors are presumed to follow their instructions." People v Mann, 288 Mich App 114, 118; 792 NW2d 53 (2010). In sum, admitting NJK's testimony was within the range of principled outcomes. Daniels, 311 Mich App at 265. Defendant has not shown plain error. Carines, 460 Mich at 762-765.
With respect to JH, similar reasoning supports the admission of her testimony. JH testified that defendant touched the outside of her genital area, under her clothing, when she was approximately 10 years old. Although JH was not related to defendant or living in his home, JH's mother knew defendant, and the incident occurred inside defendant's home when JH was invited over for dinner. JH was a similar age as the victim, and the touching of her genital area was similar to the digital-vaginal penetration in the charged offense. Thus, JH's testimony showed defendant's propensity to commit sexual crimes against young girls, specifically within his own house. The incident occurred approximately 17 years before trial; however, the passage of time and JH's relationship with ZB's mother did not make her testimony overly prejudicial, particularly when the trial court also provided a jury instruction as noted above. Overall, admission of JH's testimony was within the range of principled outcomes, and the trial court did not abuse its discretion by admitting JH's testimony. Daniels, 311 Mich App at 265. Defendant has not shown plain error. Carines, 460 Mich at 762-765.
We note also that, on appeal, defendant does not challenge the admission of ZB's evidence, which like JH's and NJK's testimony demonstrated that defendant had a propensity to molest young girls. Given the admission of other evidence demonstrating this propensity, even assuming some error in the admission NJK's or JH's testimony, the admission of their testimony did not affect the outcome, and defendant is not entitled to relief. See King, 297 Mich App at 472. --------
Affirmed.
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Jane M. Beckering