upholding admission of statement by nine-year-old victim to mother on morning following criminal sexual conductSummary of this case from State v. Lafrance
Docket No. 91263.
Decided November 2, 1987.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.
James R. Rinck, for defendant.
Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). Sentenced to concurrent prison terms of thirty-five to seventy years, defendant now appeals as of right. We affirm.
The prosecution's evidence at trial established that the victim of the offense was a nine-year-old girl. During the evening of the offense, defendant had been at the Happy Hour Bar with the girl's mother, with whom defendant had resided on a periodic basis. The girl was dropped off at a baby-sitter's house where she was to stay the evening. Her mother testified that, an hour and a half after they arrived at the bar, defendant left, indicating that he wanted to pick up personal belongings at an old girlfriend's house. The mother later went to another bar, where she stayed until closing.
The victim testified that at approximately 11:00 P.M. that evening, defendant picked her up from the baby-sitter's house. They drove back to the Happy Hour Bar, where defendant went inside to find the victim's mother. Defendant returned to the car, told the victim her mother was not there and then rubbed her between the legs.
At that point, defendant drove away. When he later stopped to get gas, the victim went to the back seat and fell asleep. She testified that, later, in a wooded area, defendant, now also in the back seat, shook her awake and told her he was going to make her a woman. He threatened her, telling her to cooperate or he would beat her and her mother. Defendant then forced her to take her clothes off, put one of his fingers in her vagina and forced her to have repeated oral and anal sex with him. At some point during this offense, the victim complained to defendant that he had hurt her. Defendant responded by hitting her face with his open hand.
Defendant eventually drove the victim back to her home in Grand Rapids. She was unsure of the time it took to drive from the wooded area to her home, but said it was "probably a few minutes or a half hour."
When they arrived at the victim's home, defendant left after letting her in. She went upstairs and went straight to sleep. In the morning, she woke her mother and a man who apparently slept with her mother that evening and told them about the offense. According to her mother, the victim was crying as she reported the incident. The three of them then went to a restaurant where the mother worked. There, the mother telephoned the Rape Crisis Center and the police.
The victim was later taken to Butterworth Hospital. She was examined at the emergency room by Dr. Bruce Nugent, to whom she reported the offense and appeared to be "very frightened." Dr. Nugent noted a fresh "reddish-blackish" bruise in the area of the victim's left jaw. Although he did not observe any evidence of trauma to the rectum, he indicated that the muscle tone of the anus was looser than he would have expected. This looseness was consistent with a finger or a penis having been put into the child's rectal area. Over the victim's external genitalia, he observed a "whitish-yellow secretion" which appeared to be semen. Dr. Nugent took swabs of the material and also collected other specimens from the rectum and the vagina. He put four of them into a kit. Later, Dr. Nugent examined a sample from a swab he had placed in sterile water under a microscope. He did not observe motile sperm on it.
Over renewed objection by defendant's attorney, Dr. Nugent testified that the morning of his testimony he reexamined the rape kit slides. According to Dr. Nugent, he examined the slide of the whitish-yellow material he had earlier testified about and, at that time, observed two sperm.
It is this last piece of testimony which is the subject of the first issue on appeal. Defendant maintains that the prosecution sought to admit this evidence without first disclosing it to defense counsel, in violation of the parties' discovery agreement. He asserts that, as the rape kit samples were not positively identified as sperm until after the trial had begun, he was prejudiced and denied a fair trial due to unfair surprise.
Until recently, this Court has equated prosecutorial failure to comply with discovery agreements and orders with a constitutional denial of due process and, accordingly, has held that admission of undisclosed evidence, even if not exculpatory, requires reversal unless the failure to divulge was harmless beyond a reasonable doubt. However, in People v Taylor, 159 Mich. App. 468, 471; 406 N.W.2d 859 (1987), this Court renounced the "view that this procedural problem should be elevated to constitutional rank and locked into an inflexible remedy." Instead, the Taylor Court concluded that questions of noncompliance with discovery orders or agreements and appropriate remedies are subject to the discretion of the trial court, which it must regularly exercise as part of its inherent power to control the admission of evidence so as to promote the interests of justice.
People v Florinchi, 84 Mich. App. 128; 269 N.W.2d 500 (1978), lv den 405 Mich. 828 (1979), People v Pace, 102 Mich. App. 522; 302 N.W.2d 216 (1980), and People v Turner, 120 Mich. App. 23; 328 N.W.2d 5 (1982).
We agree with Taylor that denial of discovery of inculpatory evidence subject to an order or agreement does not necessarily constitute a denial of due process and that trial courts have discretion to fashion appropriate remedies for such prosecutorial misconduct. In deciding how a court is to exercise its discretion, we again turn to Taylor, which suggests that, to remedy noncompliance with a discovery statute, rule, order or agreement, the court must "determine what legitimate interests of the courts and of the parties are involved and how they may be affected by the remedial choices available." 159 Mich. App. 484. Thus, the court must commonly consider a criminal defendant's interests in the optimal preparation of his own case and the ability to minimize prosecutorial opportunities to falsify evidence. Id., 485-486. As in Taylor, where the undisclosed evidence is unfavorable to the objecting party, it is the latter interest which primarily attracts our concern here. In balancing the defendant's interests with the undisputed interest of trial courts to "facilitate the search for truth to the end of producing a just result," id., 484, the court is compelled to utilize the remedy of suppression "only in the most egregious cases" where other remedies such as continuance would not serve to protect the foregoing interests. Id., 487. The Taylor Court concluded that the defendant there was not entitled to a remedy for the prosecutor's nondisclosure of a letter written by defendant himself, since defendant had obvious knowledge of it independent of discovery. Id., 487-488.
Compare the trial court's discretion to allow the late endorsement of witnesses, which it is encouraged to do following the grant of a continuance so as to obviate any protential prejudice. People v Suchy, 143 Mich. App. 136, 141; 371 N.W.2d 502 (1985); People v Cyr, 113 Mich. App. 213, 224; 317 N.W.2d 857 (1982).
Applying this analysis to the facts of this case, we initially agree that the prosecution violated the terms of the informal discovery agreement, in which it agreed to supply defense counsel with all medical documentation. Although it is true that the test results in question were not available to the prosecution until after the trial began, it had discovered just prior to trial that the rape kit existed but had inadvertently not been tested. At the time the prosecutor instructed the lab technician to examine the kit samples, he had an affirmative duty to advise defense counsel, who purportedly had been apprised that there would be no medical substantiation of the victim's testimony, that this evidence was being developed. His decision to notify defense counsel of the existence of the tests only after they were concluded, at the time he sought to admit their results at trial, constituted a breach of the agreement. 159 Mich. App. 476, n 10.
However, we are not persuaded that the actions the trial court undertook to remedy the breach were an abuse of discretion. When defense counsel initially objected to the introduction of the evidence concerning the sexual assault kit samples, the trial court reserved its ruling to allow counsel the opportunity to speak with the laboratory technician who had initially examined the kit samples. The court further instructed the prosecutor to have the technician available at a set time that afternoon for questioning. However, defense counsel did not avail herself of this opportunity. Later, after Dr. Nugent's testimony, the trial court asked defendant's attorney whether she desired a continuance in order to consult with an independent expert concerning the kit samples. Trial was adjourned to give defendant's attorney that opportunity. When trial reconvened the next morning, defense counsel stated that the defense had elected not to provide any medical expert testimony on defendant's behalf.
Since the defense was granted the opportunity to question the lab technician prior to the admission of the evidence, and since a continuance was given to allow it an opportunity to consult with an independent expert, we do not believe that defendant was deprived of his right to a fair trial by the introduction of the evidence.
Further, defendant's general allegations of surprise and prejudice do not alter our result. 159 Mich. App. 486, n 26. The only possible prejudice resulting from the failure to divulge this inculpatory evidence was inadequate preparation for cross-examination. This, of course, was remedied by the trial court. People v McConnell, 124 Mich. App. 672, 681; 335 N.W.2d 226 (1983). Although defense counsel advised the trial court that she would not have employed a strategy of denying sexual contact with the child had she been aware of the potential positive test results, she did not advise the court what alternative defense would have been asserted, and we are not aware of any where, as here, the defense of consent is not available. Reversal is not required here merely because the evidence was of an incriminating nature. 159 Mich. App. 481 n 19, 486.
Defendant's other claims of errors can be summarily rejected.
Defendant asserts that the trial court erred by allowing the victim's mother to testify, over defendant's objection of hearsay, about the description of the offense related to her by the victim the morning following the offense. We find no abuse of discretion in the trial court's admission of the hearsay statements as excited utterances. People v Foreman, 161 Mich. App. 14, 20-23; 410 N.W.2d 289 (1986); People v Draper, 150 Mich. App. 481, 486; 389 N.W.2d 89 (1986); People v Soles, 143 Mich. App. 433, 437-438; 372 N.W.2d 588 (1985), lv den 424 Mich. 863 (1985).
Next, defendant argues that the court erred in denying his motion for directed verdict which had been made on the basis that venue of the Kent Circuit Court had not been established. We disagree. The complainant's testimony that the offense occurred within a three to thirty minute drive to her house which was located within the county created a sufficient factual dispute to warrant submission of the issue to the jury. People v Belanger, 120 Mich. App. 752, 757; 327 N.W.2d 554 (1982); People v Ragland, 14 Mich. App. 425, 427; 165 N.W.2d 639 (1968).
Defendant was not denied his right to be informed of the nature of the accusations against him by the alleged vagueness of the amended information, which charged defendant with committing two acts of sexual penetration against the victim while she was under the age of thirteen and which likewise specified the date and location of the alleged offenses. Under these circumstances, the information was sufficiently specific to enable defendant to prepare his defense, and a conviction or acquittal on the charges would bar any subsequent charges against defendant for the same offense. People v Adams, 389 Mich. 222, 242-244; 205 N.W.2d 415 (1973).
Finally, while acknowledging that his sentences fall within the minimum sentence range recommended by the guidelines, defendant maintains that they should nonetheless be vacated as excessive and an abuse of trial court's discretion. After reviewing the record, our collective consciences are not shocked by the sentences. People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983).