Opinion
No. 352977
02-11-2021
In re CORRYE DEONNE MALONE, Minor. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellant, v. CORRYE DEONNE MALONE, Respondent-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2019-870429-DL Before: FORT HOOD, P.J., and GADOLA and LETICA, JJ. PER CURIAM.
In this juvenile-delinquency action, the prosecution appeals by leave granted the order of the trial court granting respondent a new trial. The prosecution contends on appeal that the trial court erred by refusing to adopt a referee's recommendation following a bench trial without adequate cause, and by ordering a new trial on the basis of a discovery violation without engaging in a harmless-error analysis. We agree and reverse.
In re Malone, unpublished order of the Court of Appeals, entered May 6, 2020 (Docket No. 352877).
I. FACTUAL BACKGROUND
This case centers on a discovery violation whereby the prosecution failed to provide a one-paragraph witness statement from the victim, AR, prior to trial. AR testified on the first day of trial that she was sexually assaulted by defendant in the library of their high school. Another minor, BD, corroborated AR's testimony, noting that BD was with AR in the library that day and witnessed the event. The school principal then testified that the event was reported to him by AR, and that he interviewed AR, BD, and respondent with two assistant principals. The principal noted that both AR and BD were asked to give the school administrators written statements, which they did.
At this juncture, it became evident that respondent's counsel had never been provided a copy of the statement AR wrote for the school administrators. The prosecutor noted that she herself was not aware of the document until the school principal testified to its existence, but that she could procure the document and provide it to respondent. The referee noted that he could either prohibit introduction of the statement, or that trial could be stopped until such time that respondent could be provided the statement and an opportunity to review it. The prosecution opted for the latter, and respondent's counsel noted that she did not object.
Trial continued two days later, and at the outset, respondent's counsel sought a mistrial on the basis of AR's written statement. Respondent's counsel noted that, because the document had not been provided until after the first day of trial, she was not able to adequately prepare for trial or to use the document to cross-examine AR. The referee noted that respondent could recall AR to cross-examine her, but respondent found this solution problematic because AR—on the basis of her status as the complainant—had not been sequestered up to that point and therefore might "fix" her testimony. In response, the referee elected against the objection of the prosecutor to sequester AR until she could be recalled, but otherwise declined to declare a mistrial.
AR had been present for BD's testimony, as well as a portion of the school principal's testimony.
AR's written statement provided as follows:
I was in my IRC I went down to the library with my friend [BD]. We were studying and [respondent] came over to me and sat down he started holding my hand and wouldn't let go and was squeezing my hand. I was reaching (standing) for my backpack and he put his handWhen AR was recalled as a witness, AR admitted that nothing in the statement described respondent grabbing AR's leg or butt, and that nothing in the statement said that respondent kissed AR. In addition to putting his hand underneath AR's shirt and touching her breast, these were things that AR had testified on the first day of trial that respondent had done. AR further noted that, although her written statement referred to AR as having yelled for respondent to stop, AR may have only spoken in a firm voice. AR testified that when she wrote that respondent put his "hand up [her] shirt," AR intended this to mean "inside" her shirt.downup my shirt I told him to stop multiple times and he kept doing it I started yelling. Them [sic] he grabbed me and wouldn't let go I finally got away from him and left [BD] was sitting across from me.
Ultimately, the principal and two assistant principals each testified that AR and BD had recited substantially similar stories to them, and that respondent had admitted in their presence to the inappropriate touching. The prosecution also provided an e-mail from respondent to one of the assistant principals which provided:
I'm sorry. It will never happen again. I won't look or touch her or talk to her ever again. Please tell her parents this and tell them to please not press charges. I am very sorry this happened.The investigating police officer also testified that AR and BD gave him substantially similar statements with respect to the inappropriate touching. Respondent, on the other hand, testified in his own defense. Respondent contended that AR and BD had made the story up, and that the school principals had aggressively coerced his confession out of him. In essence, respondent testified that nearly every witness other than himself was lying.
Following trial, the referee concluded that it found the prosecution's witnesses to be credible, and specifically noted:
I find beyond a reasonable doubt that [respondent] is guilty of criminal sexual conduct in the fourth degree contrary to MCL 750.520e. The statute at issue involves numerous variables comprising criminal sexual conduct fourth degree, and the petition alleges that [respondent] "did on or about October 24, 2018, in the City of Berkley, County of Oakland, State of Michigan, engage in sexual contact with another person, to-wit: [AR], using force or coercion to accomplish the sexual contact."Respondent moved for review of the referee's recommendation before the trial court, which the trial judge granted. Respondent argued to the circuit court that a new trial was warranted on the basis of the prosecution's failure to provide AR's written statement prior to trial. The prosecution retorted that respondent was not prejudiced by the delay, and that the statement was not exculpatory evidence. Without determining the evidentiary value of the statement, the trial court agreed with respondent, noting that the prosecution should have known of the statement's existence sooner and should have provided the statement to respondent before trial. On that basis, the court granted respondent a new trial. The prosecution moved for reconsideration, which the trial court denied. This appeal followed.
As detailed below, the timing of the filing of certain motions and orders in the trial court makes it difficult to discern the actual procedural posture of the case leading up to the trial court's grant of a new trial. It is equally difficult to discern whether respondent's motion to review the referee recommendation was actually treated as such, or whether it was treated as though it were a motion for a new trial made under a separate court rule. As noted below, however, these issues do not impact the outcome of this appeal.
II. ANALYSIS
The prosecution contends that the trial court failed to follow the proper procedure in both (1) declining to adopt the referee's recommendation, and (2) granting respondent a new trial. With respect to both decisions, the prosecution argues that the trial court was required to consider whether the evidentiary error was harmless. The prosecution further contends that the error was, in fact, harmless, and that a new trial was not warranted. We agree.
"We review for an abuse of discretion a trial court's decision to grant or deny a new trial." People v Russell, 297 Mich App 707, 715; 825 NW2d 623 (2012). "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes." Id. An abuse of discretion also occurs where the trial court "makes an error of law." People v Swain, 288 Mich App 609, 629; 794 NW2d 92 (2010). We review the interpretation and application of court rules de novo. Id. (quotation marks and citation omitted).
Disposition of a referee's recommendation is governed by MCR 3.991. The rule provides, in pertinent part:
(A) General.
(1) Before signing an order based on a referee's recommended findings and conclusions, a judge of the court shall review the recommendations if requested by a party in the manner provided by subrule (B).
(2) If no such request is filed within the time provided by subrule (B)(3), the court may enter an order in accordance with the referee's recommendations.
(3) Nothing in this rule prohibits a judge from reviewing a referee's recommendation before the expiration of the time for requesting review and entering an appropriate order.
(4) After entry of an order under subrule (A)(3), a request for review may not be filed. Reconsideration of the order is by motion for rehearing under MCR 3.992.
* * *
(E) Review Standard. The judge must enter an order adopting the referee's recommendation unless:
(1) the judge would have reached a different result had he or she heard the case; or
(2) the referee committed a clear error of law, which
With respect to granting a new trial on the basis of an evidentiary error, MCR 3.902(A) provides that "[l]imitations on corrections of error are governed by MCR 2.613." That rule in turn provides:(a) likely would have affected the outcome, or
(b) cannot otherwise be considered harmless. [MCR 3.991(A) and (E).]
(A) Harmless Error. An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error of defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order,
unless refusal to take this action appears to the court inconsistent with substantial justice.
At the outset, we note that this case is marred by some procedural confusion. Respondent filed a request for review of the referee recommendation on October 24, 2019, before the recommendation was ever actually filed. Thereafter, however, on November 15, 2019, the trial court entered an order of adjudication adopting the referee recommendation and adjudicating respondent. Then, three days later and without reference to the order of adjudication, the trial court signed an order "staying" the referee recommendation pending a hearing on the motion for review of the referee recommendation. It would appear from the record that the trial court never again acknowledged that it had already entered an order of adjudication on the basis of the referee recommendation.
On top of this, the parties appear to have at all times treated the request for review of the referee recommendation made under MCR 3.991(A)(1) as a motion for a new trial made under MCR 3.992. On the other hand, the language the court used in reaching its conclusion—that it would have "ruled differently"—suggests the court was referencing the standard for reviewing a referee recommendation under MCR 3.991(E)(1). The actual relief granted, however, suggests that the trial court either (1) believed the referee made a legal error in denying respondent a mistrial under MCR 3.991(E)(2), or (2) simply believed that a new trial was appropriate on the basis of MCR 3.992. Suffice it to say, the procedural posture leading to the disposition of this case, and the standard the trial court employed in reaching its conclusion, are less than clear.
All of that is to say, however, that despite the confusion, this case can be resolved on the basis of the relief granted by the trial court. Whether it relied on MCR 3.991(E)(2) or MCR 3.992 in reaching its conclusion, it failed to engage in the appropriate harmless-error analysis. See MCR 3.991(E)(2); MCR 3.992; MCR 3.902(A); MCR 2.613. MCR 3.902(A) incorporates the harmless-error standard into juvenile-delinquency proceedings. See In re Diehl, 329 Mich App 671, 695; 944 NW2d 180 (2019). The rule requires courts to engage in a harmless-error analysis prior to granting new trials. Id. See also MCR 3.902(A); MCR 2.613. The trial court failed to do so in this case. The crux of the trial court's decision was that it seemed to believe that the prosecution's failure to timely provide AR's statement was untenable, but the court only speculated as to any actual prejudice that error may have caused. The trial court failed to engage in any meaningful analysis regarding whether the discovery error warranted a new trial. Engaging in that analysis now, we conclude that it did not.
We have noted before in a juvenile-delinquency case that "nothing is grounds for a new trial unless refusal to [grant a new trial] appears to be inconsistent with substantial justice." In re Alton, 203 Mich App 405, 409; 513 NW2d 162 (1994), citing MCR 2.613(A). As we noted in Alton, "[i]t would be inconsistent with substantial justice for a juvenile court to exercise jurisdiction over a child who does not actually come within its jurisdiction." Id. In that same vein, it would be inconsistent with substantial justice to hamper a juvenile's defense by forcing him to defend himself without adequate information based on discovery violations. As detailed below, this is not such a case.
The court explicitly stated that it had "no idea" how the case would be impacted by an earlier delivery of the statement, but ordered a new trial nonetheless on the basis of the possibility that respondent might have prepared differently or asked different questions of witnesses. Respondent now repeats that argument on appeal. Respondent broadly suggests that he would have approached the questioning of AR and other witnesses differently, but never specifically explains how his strategy would have differed in any meaningful way.
First, respondent was given ample opportunity to utilize the written statement during the original trial, and fails to explain on appeal how he might use the statement differently if he were afforded a new trial. Despite the fact that respondent did not have the statement before trial, respondent did receive the one-paragraph statement during trial and was given ample time with which to review it. Respondent was then given the opportunity to impeach AR regarding the differences between her statement and her trial testimony, which respondent did. Respondent suggests that this was prejudicial nonetheless because he did not have the ability to cross-examine AR immediately following her initial testimony, but again, respondent does not specifically explain why this is or how it may have impacted the outcome of the proceedings. In fact, respondent utilized the written statement so heavily at trial that the referee felt the need to explicitly reference it in his written findings:
We note the suggestion that, even though respondent was afforded the opportunity to recall AR, respondent was not afforded the same opportunity to recall BD. First, respondent did not request to recall BD during trial, and the circumstances suggest that the referee likely would have honored that request. Second, the idea that respondent was prejudiced because BD was not recalled as a witness is pure conjecture. The sentiment that BD was not recalled was cited by the trial court as a basis for its granting of a mistrial, but the court did not explain—and respondent fails to explain now—how there would have been any value in cross-examining BD about the written statement of AR, nor what could have been asked of BD with respect to the statement that would have successfully impeached either BD's or AR's credibility.
This alleged prejudice appears to be based on the idea that AR was not sequestered for BD's testimony, and for a portion of the school principal's testimony. We note, however, that it is not clear whether sequestration of AR was ever appropriate in the first place. MCL 780.761 speaks to the right of a victim to be present at trial, and provides:
The victim has the right to be present throughout the entire trial of the defendant, unless the victim is going to be called as a witness. If the victim is going to be called as a witness, the court may, for good cause shown, order the victim to be sequestered until the victim first testifies. The victim shall not be sequestered after he or she first testifies.AR had already testified when she was sequestered, and even ignoring that fact, at no point does it appear that respondent established good cause for AR's sequestration. Respondent vaguely argued that AR could "fix" her testimony, but respondent did not concretely explain how AR might do so with reference to the written statement. Respondent makes the same mistake on appeal.
The defense argues that there are discrepancies between the oral statements of [AR] and [BD] and there are discrepancies in written statements as well. The discrepancies included such things as "his hand was underneath my shirt," "he put his hand up my shirt," and "he put his hand down my shirt." I find the discrepancies to be existent but inconsequential to my factual determinations.Here, the referee fairly well outlined respondent's strategy at trial as well as his use of AR's written statement, which leads to the second point: the statement is not exculpatory.
Respondent repeatedly pointed to discrepancies between trial testimony and the written statement throughout trial, such as the manner in which respondent either put his hand "up" or "down" AR's shirt, and the fact that AR's statement referred to her "yelling" at respondent, but trial testimony suggested that AR did not yell. It is these ideas that, according to respondent, make AR's written statement material, exculpatory evidence. We are more inclined to agree with the prosecution, however, that the statement is inculpatory. AR's written statement might not have reflected the exact details of respondent's assault according to AR's testimony, but it did track the essential details, including that: (1) AR and BD were in the library, (2) respondent came to their table, (3) when AR reached for her backpack, respondent put his hand inside AR's shirt, (4) AR told respondent to stop and he did not, and (5) respondent restrained AR before AR ultimately left the library. Considered as a whole, the written statement is not materially different from AR's testimony.
The idea that AR "yelled" in the library may be the single detail from the written statement that can be read to contradict AR's trial testimony. That detail, however, was referenced as impeachment evidence ad nauseum by respondent's counsel throughout the trial. Again, respondent does not explain how revisiting the issue in a new trial could have any impact on the outcome of the case.
To summarize, the written statement that was the basis of the trial court's grant of a new trial in this case is not, as respondent argues, exculpatory evidence that was withheld from respondent. The statement is inculpatory. Next, even assuming arguendo that the evidence was more exculpatory than it actually is, respondent had ample opportunity to review the statement and did actually rely on the statement during trial. The referee was completely aware of AR's written statement and the extent to which that statement differed from AR's testimony. The referee found AR to be a credible witness nonetheless. See In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011) (noting that we defer to the finder of fact regarding issues of credibility). Respondent fails on appeal—as he did below—to explain with any detail what a new trial could possibly accomplish for him with reference to AR's written statement, or how he would utilize the statement differently.
The referee noted that he found the prosecution's witnesses as a whole to be credible. Respondent admits on appeal that this case came down to the credibility of the witnesses, and seeks to overcome the referee's credibility determination by vaguely suggesting that the referee was "biased" against respondent without further explanation of that bias. Respondent's argument is essentially that the referee's credibility determination constituted a "miscarriage of justice" simply because the referee believed the prosecution's witnesses and did not believe respondent.
It should also be noted that any danger of prejudice was mitigated by the fact that this was a bench trial. See People v Parker, 319 Mich App 664, 672; 903 NW2d 405 (2017) (noting that a judge presiding over a bench trial is presumed to understand the rules of evidence and sift through reliable and unreliable evidence).
Reversed and remanded for reinstatement of the order of adjudication. We do not retain jurisdiction.
This opinion is to have immediate effect, MCR 7.215(F)(2).
/s/ Karen M. Fort Hood
/s/ Michael F. Gadola
/s/ Anica Letica