People of Michigan v. Shavon Marie Bethea

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 22, 2018
Plaintiff-Appellee,
v No. 334004
Macomb Circuit Court
SHAVON MARIE BETHEA, LC No. 2015-003397-FH
Defendant-Appellant.
Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ.
PER CURIAM.
Defendant appeals by right her convictions, following a jury trial, of two counts of
second-degree child abuse, MCL 750.136b(3). The trial court sentenced defendant to concurrent
terms of 80 to 120 months’ imprisonment. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant is the mother of NB. On May 29, 2015, defendant’s boyfriend brought NB to
her father, Joseph Quinn’s, home for his court-ordered parenting time. NB, who was then 5
years old, was crying and her nose was bleeding. Quinn noticed what appeared to be scars from
cuts or burns on NB’s arms and neck. NB’s face was swollen, and she had what appeared to be
welts on her face. Quinn contacted the Clinton Township police, who photographed NB’s
injuries and took a statement from Quinn.
After defendant was arrested and charged with child abuse, the trial court appointed an
attorney to represent her. However, before her preliminary examination, defendant retained her
own counsel. In October 2015, defendant’s retained counsel moved to withdraw, noting that
defendant had expressed a desire to hire a new attorney. The trial court granted the motion, but
rather than retain a new attorney, defendant requested that she be appointed counsel. The trial
court appointed Michael B. Kilpatrick as defendant’s new attorney. The trial court granted
several adjournments to allow Kilpatrick to subpoena documents, explore potential expert
witnesses, and file motions in limine. On the first day of trial, April 26, 2016 (almost a year after
defendant was first arrested and charged), Kilpatrick informed the trial court that he was not
ready to proceed with trial because defendant had informed him that morning that she wished to
retain different counsel. The trial court denied Kilpatrick’s motion to withdraw, stating that the
matter had been pending for many months, and that defendant “had clearly all of that time to
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retain who[m]ever she wants.” The trial court stated its belief that defendant’s request was
“strictly for delay.”
At trial, NB testified that defendant had burned her with cigarettes and had cut her with a
knife. Dr. Marcus DeGraw, who was qualified as an expert in pediatrics and child abuse,
testified that NB’s injuries were consistent with cigarette burns and a cut from a knife.
Defendant was interviewed by Clinton Township Detective Jeffery Bishop and United States
Secret Service Agent Brian Proven, who both testified regarding statements that defendant had
made in several interviews. In her interviews, defendant acknowledged having committed
several acts of violence toward NB, including punching her in the stomach as punishment for
disobeying defendant’s command that NB not use defendant’s computer, striking NB with a belt
so many times that defendant could not count them, striking NB in the face with a spatula and a
kitchen spoon, and striking NB with her hands with such frequency or force that defendant’s
hands became blistered. Defendant denied burning NB with cigarettes or cutting her with a
knife. However, defendant admitted threatening NB with a knife by holding it an inch or two
from NB’s neck when NB had stood too close to the hot stove while defendant was cooking.
Defendant was convicted as described. This appeal followed.
II. DENIAL OF RIGHT TO COUNSEL OF CHOICE
Defendant first argues that the trial court abused its discretion when it denied Kilpatrick’s
motion to withdraw on the first day of trial so that defendant could retain new counsel. We
disagree. “We review for an abuse of discretion a trial court’s exercise of discretion affecting a
defendant’s right to counsel of choice.” People v Akins, 259 Mich. App. 545, 556-557; 675
NW2d 863 (2003) (quotation omitted). “An abuse of discretion occurs when a trial court’s
decision falls outside the range of reasonable and principled outcomes.” People v Franklin, 500
Mich. 92, 100; 894 NW2d 561 (2017) (quotation omitted).
“The Sixth Amendment guarantees an accused the right to retain counsel of choice.”
Akins, 259 Mich. App. at 557 (quotation omitted). But this right is not absolute; rather, the
defendant’s right to choose his or her own counsel must be balanced against “the public’s
interest in the prompt and efficient administration of justice . . . in order to determine whether an
accused’s right to choose counsel has been violated.” Id. (quotation marks and citations
omitted).
When reviewing a trial court’s decision to deny a defense attorney’s motion to
withdraw and a defendant’s motion for a continuance to obtain another attorney,
we consider the following factors: (1) whether the defendant is asserting a
constitutional right, (2) whether the defendant has a legitimate reason for asserting
the right, such as a bona fide dispute with his attorney, (3) whether the defendant
was negligent in asserting his right, (4) whether the defendant is merely
attempting to delay trial, and (5) whether the defendant demonstrated prejudice
resulting from the trial court’s decision. [People v Echavarria, 233 Mich. App.
356, 369; 592 NW2d 737 (1999).]
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The record does not reveal any error. Kilpatrick informed the trial court on the first day
of trial, and only minutes before jury selection was to begin, that he wished to withdraw as
defendant’s counsel. The trial court held an immediate hearing on Kilpatrick’s motion to
withdraw. At the hearing, Kilpatrick informed the court that just that morning defendant had
told him that she wished to retain new counsel rather than to proceed with Kilpatrick. No reason
was given; there was no indication that there was a breakdown in the attorney-client relationship,
and there was no suggestion that Kilpatrick could not effectively represent defendant at the trial
that was to begin momentarily. Further, Kilpatrick was defendant’s third attorney. He had
represented defendant for over six months and for the majority of the pretrial proceedings. He
had filed numerous motions on defendant’s behalf, and was well-versed in the facts and issues of
her case.
Under these circumstances, the trial court did not abuse its discretion. Defendant
presented no legitimate reason for seeking to obtain new counsel. Further, defendant waited
until literally the “last minute” before trial to bring the matter to the trial court’s attention. The
trial court was justified in believing that this was simply an attempt by defendant to further delay
trial. Defendant also has not presented evidence of prejudice from the trial court’s decision.
Echavarria, 233 Mich. App. at 369. Additionally, the attorney whom defendant wished to retain
had only been contacted that morning. Given that this new attorney would have required
additional time to become familiar with the matter in order to provide competent representation,
the trial court properly balanced the public’s interest in the prompt and efficient administration of
justice against defendant’s assertion of the right to counsel. Akins, 259 Mich. App. at 557.
III. EVIDENTIARY ERRORS
Defendant raises a number of claims of evidentiary error. We find no errors warranting
relief.
We first note that all of the claims of error raised by defendant are unpreserved. “To
preserve an evidentiary issue for review, a party opposing the admission of evidence must object
at trial and specify the same ground for objection that it asserts on appeal.” People v Aldrich,
246 Mich. App. 101, 113; 631 NW2d 67 (2001). Defendant raised no objections to the majority
of the evidentiary errors she now raises on appeal. Defendant did object in one instance, arguing
that a witness, Gail Lippert, should not have been permitted to read statements from a medical
report prepared by Brenda Wade, the sexual assault nurse examiner (SANE) who examined NB
on May 29, 2015,. However, that objection was not made on the presently-asserted ground of
hearsay. 1 Therefore, all of defendant’s claims of evidentiary error are unpreserved, id., and our
review is for plain error affecting substantial rights. People v Coy, 258 Mich. App. 1, 12; 669
NW2d 831 (2003). In order for plain error requiring reversal to occur, “[f]irst, there must be an
error; second, the error must be plain (i.e. clear or obvious); and third, the error must affect
substantial rights (i.e., there must be a showing that the error was outcome determinative).” Id.
1
Counsel appears to have objected to Wade’s testimony on relevancy grounds, arguing that
Wade was “rereading” the report and that the report “speaks for itself.”
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“Moreover, reversal is only warranted when plain error resulted in the conviction of an actually
innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial
proceedings, independent of guilt or innocence.” Id.
A. PURPORTED HEARSAY STATEMENTS
Defendant’s first argument is that various out-of-court statements made by NB to others,
in which she reported that she was burned and cut with a knife by defendant, were inadmissible
hearsay. The challenged statements were introduced through the testimony of three witnesses:
(1) DeGraw, who testified regarding statements made by NB during his examination of her; (2)
Nicole King, a forensic interviewer who interviewed NB about two weeks after Quinn
discovered her injuries; and (3) Lippert, who read statements from Wade’s report.
1. DEGRAW’S TESTIMONY
NB’s statements to DeGraw were not hearsay and were admissible as prior consistent
statements. MRE 801(d)(1)(B) provides that a statement is not hearsay if it is a prior consistent
statement of a testifying witness that is “offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive.” To be admissible under this
rule,
(1) the declarant must testify at trial and be subject to cross-examination; (2) there
must be an express or implied charge of recent fabrication or improper influence
or motive of the declarant’s testimony; (3) the proponent must offer a prior
consistent statement that is consistent with the declarant’s challenged in-court
testimony; and (4) the prior consistent statement must be made prior to the time
that the supposed motive to falsify arose. [People v Jones, 240 Mich. App. 704,
707; 613 NW2d 411 (2000) (quotation omitted).]
All four elements required to admit prior consistent statements under MRE 801(d)(1)(B)
are satisfied in this case. NB testified at trial and was subject to cross-examination. Her
statements to DeGraw were consistent with her trial testimony. There was a charge of recent
fabrication or improper influence. Indeed, defense counsel’s theory of the case was that Quinn
had improperly influenced or coached NB to provide trial testimony that implicated defendant.
Specifically, defense counsel implied that NB was subject to coaching or influence by Quinn
after the date of defendant’s preliminary examination and emphasized, during closing argument,
that the jury should discredit Quinn’s testimony that he had not discussed the incidents of abuse
with NB between the time of the preliminary examination and the trial.
Finally, the prior consistent statements were made before the time that the supposed
motive to falsify arose. In that regard, we note that the second and fourth elements refer to the
same motive, i.e., “the motive in the second element must be the same motive in the fourth
element of the four-pronged test to admit a prior consistent statement under MRE 801(d)(1)(B).”
Id. at 711. Therefore, while a statement must be made before a particular motive to fabricate
arose, the fact that there may have existed a motive to fabricate at the time of the statement does
not prohibit the use of prior consistent statements under MRE 801(d)(1)(B). Id. Rather, when
several charges of recent fabrication or improper influence are made, it is enough that a prior
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consistent statement was made before the most recent of these purported influences. See id. at
711-712.
Although some of defense counsel’s statements may arguably have implied that Quinn
influenced NB from the very outset of the case, the most recent, and most emphasized, charge of
improper influence, was that Quinn had influenced or coached NB during the time period
between the preliminary examination and the trial. Therefore, prior consistent statements made
by NB before the preliminary examination could be admitted under MRE 801(d)(1)(B). Jones,
240 Mich. App. at 707. We find no plain error in the admission of NB’s statements to DeGraw, as
they were made well before defendant’s preliminary examination. Coy, 258 Mich. App. at 12.
2. KING’S TESTIMONY
Defendant’s argument that King’s testimony was inadmissible on hearsay grounds is also
meritless, as no out-of-court statements were admitted. Hearsay is an out-of-court statement
offered at trial to prove the truth of the matter asserted. MRE 801(c). A “statement” is defined
as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the
person as an assertion.” MRE 801(a). King did not testify to a statement made by NB. Rather,
King only testified that the information provided to her by NB was consistent with the child
abuse allegations against defendant. Because no out-of-court statements were admitted, there
was no error grounded in hearsay. Id.
3. LIPPERT’S TESTIMONY
Defendant also challenges the admission of statements made by NB to Wade, and
statements made by NB to Quinn, who then reported them to Wade. These statements were
included in a medical report prepared by Wade after NB’s examination. Because Wade was
unavailable to testify at trial, Lippert, Wade’s supervisor, testified in her place. The parties
stipulated to the admission of Wade’s report. The prosecution then asked Lippert to read from
the report. Defendant objected (albeit not on hearsay grounds) to Lippert’s reading of certain
statements from the report; however, the trial court overruled the objection because defense
counsel had stipulated to the admission of the report.
We conclude that by stipulating to the admission of the report, defendant waived her
claim of error. Waiver is the intentional relinquishment of a known right. People v Carter, 462
Mich. 206, 215; 612 NW2d 144 (2000). By stipulating to the admission of Wade’s report,
without any qualifications (such as striking out portions that were purportedly hearsay),
defendant clearly waived any evidentiary issues related to the report. And once the report was
admitted into evidence by stipulation, permitting Lippert to read from it did not constitute error.
See People v Hoffmann, 142 Mich. 531, 553; 105 N.W. 838 (1905). Indeed, Lippert did no more
than what any juror could have done after the report was admitted by stipulation: she read its
contents.
We further conclude, however, that even if defendant had not waived a hearsay challenge
to portions of Wade’s report, no relief would be warranted. Because the challenged statements
were found within a written report, the evidentiary issue is one of hearsay within hearsay. Where
hearsay exists within hearsay, each “level” of hearsay must conform with an exception to the
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hearsay rule. MRE 805. Wade’s medical report is itself hearsay. See People v McDaniel, 469
Mich. 409, 412; 670 NW2d 659 (2003) (explaining that a laboratory report was, “without
question, hearsay.”). Additionally, the report contains statements made by Quinn—another level
of hearsay—concerning statements made by NB.2 For the reasons that follow, we conclude that
no error warranting reversal occurred in the trial court’s admission of Lippert’s testimony
regarding Wade’s report.
The report itself is subject to the hearsay exception found in MRE 803(6), which permits
the admission of:
A memorandum, report, record, or data complication, in any form, of acts,
transactions, occurrences, events, conditions, opinions, or diagnoses, made at or
near the time by, or from information transmitted by, a person with knowledge, if
kept in the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum, report, record,
or data compilation, all as shown by the testimony of the custodian or other
qualified witness, or by certification that complies with a rule promulgated by the
supreme court or a statute permitting certification, unless the source of the
information or the method or circumstances of preparation indicate lack of
trustworthiness. The term “business” as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every kind, whether
or not conducted for profit.
The medical report generated by Wade meets the requirements of this rule. Lippert
explained during her testimony that generating such a report was standard practice, and that
Wade had prepared the report in accordance with that practice. While our Supreme Court has
indicated that reports generated for litigation purposes generally fail to meet the
“trustworthiness” requirement of the rule, see McDaniel, 469 Mich. at 414, the examination was
conducted on the same day that NB’s injuries were discovered, and it is therefore clear that the
report was not generated for purposes of litigation. Rather, as Lippert explained, the purpose of
the examination was to provide treatment and to put a plan in place to ensure NB’s safety. In
fact, no party even suggests on appeal that the report itself was not admissible under this
exception to the hearsay rule.
Along with reporting Quinn’s own observations, Wade’s report reflects Quinn’s
recitation of statements made to him by NB on May 29, 2015, which statements were reproduced
in Wade’s report. We can discern no exception to the hearsay rule applicable to the admission of
these statements. However, we find that their admission was harmless and did not affect
defendant’s substantial rights. Coy, 258 Mich. App. at 12. The particular statements at issue are
2
The report also contains statements made by NB to Wade. Because these statements were
consistent with NB’s trial testimony and were made before defendant’s preliminary examination,
they were admissible as prior consistent statements and were not hearsay, as discussed in Part
III(A)(1) of this opinion. See MRE 801(d)(1)(B).
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Quinn’s statements that NB had told him that defendant had struck her in the face with a spatula
and had burned her with a cigarette, and (assuming that it constituted a “statement”) that NB had
“made a hissing sound” while touching her injured arm with a pen. NB testified at trial that
defendant had struck her with a spatula, and defendant admitted to this act in her conversations
with police. Quinn testified that he had told Wade that NB had been burned by defendant, and
that this information had come from NB. In other words, all of the challenged statements
contained in Wade’s report were duplicative of Quinn’s or NB’s trial testimony.
We conclude, under these circumstances, that any error in the admission of this limited
portion of Wade’s report was harmless and did not affect defendant’s substantial rights. Our
Supreme Court has explained:
[T]he admission of a hearsay statement that is cumulative to in-court
testimony by the declarant can be harmless error, particularly when corroborated
by other evidence. This Court has cautioned, though, that “the fact that the
statement [is] cumulative, standing alone, does not automatically result in a
finding of harmless error. . . . [Instead, the] inquiry into prejudice focuses on the
nature of the error and assesses its effect in light of the weight and strength of the
untainted evidence.” In a trial where the evidence essentially presents a one-on-
one credibility contest between the victim and the defendant, hearsay evidence
may tip the scales against the defendant, which means that the error is more
harmful. This may be even more likely when the hearsay statement was made by
a young child, as opposed to an older child or adult. However, if the declarant
himself testified at trial, “any likelihood of prejudice was greatly diminished”
because “the primary rationale for the exclusion of hearsay is the inability to test
the reliability of out-of-court statements[.]” Where the declarant himself testifies
and is subject to cross-examination, the hearsay testimony is of less importance
and less prejudicial. [People v Gursky, 486 Mich. 596, 620; 786 NW2d 579
(2010) (citations omitted).]
The instant case was not entirely a one-on-one credibility contest between defendant and
NB; the case also involved disputed physical evidence and expert testimony, relating to such
issues as whether NB’s injuries resulted from cigarette burns or bug bites. And statements
admitted through the report were cumulative of Quinn’s trial testimony and used to corroborate
NB’s trial testimony. NB testified at trial and was subject to cross-examination. The rationale of
Gursky thus supports our conclusion that any erroneous admission of hearsay in Wade’s report
was harmless.
Further, the untainted evidence against defendant was quite significant. Defendant
admitted to inflicting serious physical abuse against NB on several occasions, although she
would not admit to the charged acts of cutting and burning NB. Defendant told police that she
had held a knife within an inch of NB’s neck. Defendant initially lied to investigators regarding
certain acts of abuse, first denying them, but later admitting that they had occurred. And while
defendant attempted to offer an alternate explanation for the burns on NB’s body, this
explanation had little factual support. In addition, NB was in defendant’s primary physical
custody for several weeks until May 29, 2015. There was little evidence to suggest that anyone
else could have caused the injuries. DeGraw testified that NB’s injuries were consistent with the
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allegations against defendant. Even without the statements contained within Wade’s report, the
jury could properly have concluded that defendant had not only committed the acts to which she
admitted, but also had taken the additional steps of cutting and burning NB. Under the
circumstances, any error was harmless. Accordingly, the plain-error test is not satisfied and
defendant is not entitled to relief.
B. COMMENTARY ON CREDIBILITY
Defendant also argues that the trial court erred by allowing Bishop to comment on the
credibility of NB. We agree that Bishop’s commentary on NB’s credibility was improper;
however, reversal again is not warranted.
It has long been the rule of this state that it is “improper for a witness to comment or
provide an opinion on the credibility of another witness, because credibility matters are to be
determined by the jury.” People v Dobek, 274 Mich. App. 58, 71; 732 NW2d 546 (2007).
Defense counsel extensively cross-examined Bishop about his interview process and the
potential for a child witness to be influenced or coached before or during an interview to produce
a particular result. During the prosecution’s redirect examination of Bishop, the prosecution
asked Bishop whether he would ever begin an investigation of this sort by presuming that any
particular allegations were true. Bishop stated that he would not assume that any allegations of
abuse were true, and that he would not form any opinion regarding the truth of the allegations
until after the child was interviewed and a comparison between the child’s statements and other
known evidence could be made. Bishop further testified that after making such a comparison in
this case, he concluded that NB “was credible.” This led to the following exchange between
Bishop and the prosecution:
Q. Okay. And based on the totality of your investigation and going
through the various steps that we have explored during the course of trial, the
statements made by dad as far as what the disclosures were concerning [NB], the
SANE exam results and statements made to the SANE nurse, the Care House
interview. And your interview of the [d]efendant, did that lead you to the
conclusion as far as the allegation?
A. Yes.
Q. What was that?
A. Throughout the whole time [NB]’s statement[s] have been consistent.
They have been consistent throughout the whole time from her first interview at
Care House, to her testimony at court, her testimony here, and the exam. She has
been consistent, and what she stated to her father has been consistent.
And on the other end of the spectrum the events that [NB] described and
then I brought those incidents to [defendant]’s attention of the more detailed
information, she stated [in] the first interview that none of that ever happened.
And then the second interview that some of that did happen.
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So the only person that has changed their story in this whole thing has
been [defendant].
Bishop’s testimony could be read as improper commentary on NB’s credibility.
However, even assuming that error occurred, reversal is not required. See Dobek, 274 Mich. App.
at 70-71 (finding no plain error when a police officer, in response to cross-examination
concerning “ ‘deception’ issues,” testified that he had no concerns that the victim had lied). In
response to defense counsel’s cross-examination, Bishop testified regarding the manner of the
interview process, ultimately explaining how he had reached the conclusion that the allegations
were credible. And because Bishop was a police witness called by the prosecution, the jury
could hardly have been surprised to learn that Bishop believed that the victim was telling the
truth. See id. at 71. Defendant has not established plain error. Coy, 258 Mich. App. at 12.
IV. PRIOR ACTS OF DOMESTIC VIOLENCE
Defendant also argues that the trial court abused its discretion by admitting evidence of
other acts of domestic violence perpetrated by defendant against NB. We disagree. We review
for an abuse of discretion a preserved challenge to a trial court’s decision to admit or exclude
evidence. People v Fink, 456 Mich. 449, 458; 574 NW2d 28 (1998). “An abuse of discretion
occurs when a trial court’s decision falls outside the range of reasonable and principled
outcomes.” Franklin, 500 Mich. at 100 (quotation omitted).
At trial, police witnesses testified that defendant had admitted to punching NB in the face
and stomach, punching NB hard enough that blood blisters had formed on defendant’s hand,
striking NB in the face with a spatula, and hitting NB with a belt. MCL 768.27b(1) provides that
“in a criminal action in which the defendant is accused of an offense involving domestic
violence, evidence of the defendant’s commission of other acts of domestic violence is
admissible for any purpose for which it is relevant, if it is not otherwise excluded under
[MRE] 403.” MRE 403 allows the trial court to exclude otherwise relevant evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
Defendant argues that the challenged evidence does not satisfy MRE 403 and is therefore
not admissible under MCL 768.27b(1). We note that in the context of MRE 404(b), this Court
has stated that where the challenged evidence is a defendant’s own statement (i.e., the statements
of a party-opponent, which are admissible under MRE 801(d)(2)), “a prior statement does not
constitute a prior bad act coming in under MRE 404(b) because it is just that, a prior statement
and not a prior bad act.” People v Rushlow, 179 Mich. App. 172, 176; 445 NW2d 222 (1989),
aff’d 437 Mich. 149 (1991), citing People v Goddard, 429 Mich. 505, 518; 418 NW2d 881
(1988). We conclude that the same holds true here. What is at issue here is not evidence of a
prior act of domestic violence under MCL 768.27b, but rather, a prior statement that could be
admitted under MRE 801(d)(2). Therefore, the trial court only had to determine whether “the
statement was relevant, and second whether its probative value outweighed its possible
prejudicial effect.” Goddard, 429 Mich. at 515, citing MRE 401 and MRE 403.
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In any event, whether evidence is considered for admission under MCL 768.27b or
MRE 801(d)(2), it is still required to satisfy MRE 403. When applying MRE 403, this Court has
explained that “[a]ll relevant evidence is prejudicial; it is only unfairly prejudicial evidence that
should be excluded.” People v McGhee, 268 Mich. App. 600, 613-614; 709 NW2d 595 (2005).
“Unfair prejudice exists when there is a tendency that evidence with little probative value will be
given too much weight by the jury.” Id. at 614. Unfair prejudice “refers to the tendency of the
proposed evidence to adversely affect the objecting party’s position by injecting considerations
extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” Id.
(quotation marks and citations omitted).
The highly relevant nature of the other acts of violence committed by defendant toward
NB cannot be seriously disputed. During her interview with police, defendant admitted to
punching NB, striking her with a belt “more times than she could count[,]” striking her with a
spatula, and beating her with such frequency or force that blisters formed on defendant’s hand.
Defendant admitted to punching NB in the stomach, intending to inflict pain. She also admitted
to threatening NB with a knife, holding it within an inch or two of NB’s neck. All of these acts
were motivated by defendant’s anger at NB for normal childhood misbehavior and occurred
while NB was alone with defendant at defendant’s home. These other acts of abuse are similar
to the charged acts in this case, and demonstrate an ongoing pattern of abuse by defendant,
directed toward NB. The introduction of this evidence certainly had a “tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” MRE 401.
Defendant argues that the prosecution could not show when these other acts had
occurred, thus rendering them “completely unreliable.” However, because NB was 5 years old
when removed from defendant’s care, the acts described above obviously occurred, at a
minimum, within that five-year time period. Moreover, the conduct described represented an
ongoing pattern of abuse, not a single incident. The prosecution’s inability to pinpoint the
precise date of each act does not render the evidence irrelevant; rather, if anything, it
demonstrates that defendant’s abuse of NB was perhaps more the norm than the exception.
Defendant also argues that the evidence was unfairly prejudicial because it allowed the
jury to view her as a “perpetual child abuser . . . .” Defendant explains that even if the jury did
not believe that she had cut NB with a knife or burned her with cigarettes, the jury may
nonetheless have convicted her based on these other acts, which were not charged. In this
regard, the trial court instructed the jury as follows:
The prosecutor has introduced evidence of claimed acts of domestic
violence by the [d]efendant for which she is not on trial. Before you may
consider such alleged acts as evidence against the [d]efendant, you must find that
the [d]efendant actually committed such act [sic].
If you find that the [d]efendant did commit those acts, you may consider
them in deciding if [d]efendant committed the offense for which she is now on
trial.
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You must not convict the [d]efendant here solely because you think she is
guilty of other bad conduct. The evidence must convince you beyond a
reasonable doubt that the [d]efendant committed the alleged crime or you must
find her not guilty.
Jurors are presumed to follow their instructions. People v Mahone, 294 Mich. App. 208,
212; 816 NW2d 436 (2011). The trial court’s instructions alleviated defendant’s concerns.
Further, both the prosecution and defense counsel also reminded the jury that the charged acts
were the cutting and burning of NB, not the other acts of abuse.
In sum, and in light of the trial court’s instructions, the risk of unfair prejudice was
minimal when compared to the highly probative value of the evidence of other acts of child
abuse committed by defendant. The trial court did not abuse its discretion by allowing this
evidence to be admitted at trial. Franklin, 500 Mich. at 100 (quotation omitted).
V. PROSECUTORIAL MISCONDUCT
Defendant further raises several claims of prosecutorial misconduct. “In order to
preserve a claim of prosecutorial misconduct for appellate review, a defendant must have timely
and specifically objected below, unless objection could not have cured the error.” People v
Brown, 294 Mich. App. 377, 382; 811 NW2d 531 (2011). Defendant did not object below to any
of the alleged instances of prosecutorial misconduct. Accordingly, defendant’s claims are not
preserved.
“The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” Id. at 382. “Prosecutorial misconduct issues are decided on a case-by-case
basis, and the reviewing court must examine the record and evaluate a prosecutor’s remarks in
context.” Id. at 382-383. “Unpreserved claims of prosecutorial misconduct are reviewed for
plain error affecting substantial rights.” Id. at 382. When a defendant fails to object in the trial
court to a purported instance of prosecutorial misconduct, error requiring reversal cannot be
found on appeal if “a curative instruction could have alleviated any prejudicial effect.” People v
Bennett, 290 Mich. App. 465, 476; 802 NW2d 627 (2010) (quotation omitted).
Defendant first contends that the prosecution improperly vouched for NB’s credibility
during closing argument. The prosecution may not vouch for the credibility of a witness by
implying or asserting that it has some special knowledge regarding whether the witness has
testified truthfully. Id. at 476-477. “The danger is that the jury will be persuaded by the
implication that the prosecutor has knowledge that the jury does not and decide the case on this
basis rather than the evidence presented.” Id. at 477. But that is not what occurred here.
Throughout the trial, the prosecution elicited testimony demonstrating that NB had been
consistent when recounting, to all who asked, the abuse that she had suffered. In closing
arguments, the prosecution explained that, throughout the investigation, NB’s story had “never
changed,” and thus was credible. “[A] prosecutor may comment on his own witnesses’
credibility during closing argument, especially when there is conflicting evidence and the
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question of the defendant’s guilt depends on which witnesses the jury believes.” People v
Thomas, 260 Mich. App. 450, 455; 678 NW2d 631 (2004).3
Defendant also argues that it was improper for the prosecution to seek to bolster NB’s
credibility by introducing her prior consistent statements. Defendant acknowledges that such a
tactic is permitted in certain circumstances, such as those found in MRE 801(d)(1)(b). Despite
noting the existence of this rule, defendant fails to explain how the prosecution’s use of prior
consistent statements by NB did not conform to the rule. It is not this Court’s duty to craft an
argument on defendant’s behalf. Matuszak, 263 Mich. App. at 59. In any event, as explained
earlier in this opinion, the majority of the statements at issue were properly admitted under
MRE 801(d)(1)(B). The prosecution did not commit misconduct by seeking to introduce prior
consistent statements made by NB throughout the proceedings. See Dobek, 274 Mich. App. at 76
(“A finding of prosecutorial misconduct may not be based on a prosecutor’s good-faith effort to
admit evidence”); People v Watson, 245 Mich. App. 572, 588; 629 NW2d 411 (2001) (a
prosecution “may argue reasonable inferences from the evidence”).
Defendant next argues that the prosecution shifted the burden of proof to defendant by
asking her if she could produce documents or photographs supporting her claim that the small,
round wounds on NB’s body were from bed bug bites rather than cigarette burns. We disagree.
It is true that the prosecution must not imply “that the defendant must prove something or present
a reasonable explanation for damaging evidence because such an argument tends to shift the
burden of proof.” People v Fyda, 288 Mich. App. 446, 463-464; 793 NW2d 712 (2010). “Also, a
prosecutor may not comment on the defendant’s failure to present evidence because it is an
attempt to shift the burden of proof.” Id. at 464. Here, however, the prosecution did not attempt
to shift the burden of proof. On cross-examination, the prosecution questioned defendant
regarding the circular wounds on NB’s arms. Defendant asserted that these wounds were from
bed bug bites, and claimed to have documents and photographs supporting her claim. The
prosecution asked defendant to produce those records, and defendant could not. The prosecution
did not put the burden on defendant to present evidence; rather, the prosecution simply inquired
about the basis for defendant’s contention. “Attacking the credibility of the theory advanced by
[defendant] did not shift the burden of proof.” Id. at 464-465.
3
On a related topic, defendant argues that the prosecution argued facts not in evidence when it
stated that NB’s trial testimony was consistent with her preliminary examination testimony.
People v Watson, 245 Mich. App. 572, 588; 629 NW2d 411 (2001). While it is true that NB’s
preliminary examination testimony was not admitted at trial, Bishop did testify that NB had
given a consistent version of events “throughout the whole time from her first interview at Care
House, to her testimony at court, her testimony here, and the exam.” It is at least arguable that
Bishop was referring to the preliminary examination, although he could also have been referring
to a medical examination. In any event, and when examined in context, we find little if any
prejudicial effect resulting from the prosecution’s reference to the preliminary examination.
Brown, 294 Mich. App. at 382.
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Further, the trial court properly instructed the jury that defendant was presumed innocent,
that the burden of proof was on the prosecution, and that defendant was “not required to prove
her innocence or to do anything.” The trial court also instructed the jury that the prosecution’s
statements, arguments, and questions were not evidence. These instructions are presumed to
have alleviated any possible prejudice arising from the prosecution’s questioning of defendant.
See Fyda, 288 Mich. App. at 465.
Defendant also contends that the prosecution improperly denigrated defense counsel
during the exchange regarding whether defendant could produce records supporting her claim
that NB had suffered bed bug bites. Again, we disagree. The prosecution is generally given
great latitude in presenting and arguing a case. People v Unger, 278 Mich. App. 210, 236; 749
NW2d 272 (2008). However, this latitude does not extend to suggesting that a defense attorney
is intentionally misleading a jury or otherwise questioning the veracity of defense counsel. Id.
Such arguments undermine the presumption of innocence, and also shifts the focus from the
evidence presented at trial to the personality of the defendant’s attorney. Id.
The prosecution did not denigrate defense counsel. After defendant asserted that she had
given documents supporting her bed bug theory to her attorney, the prosecution asked defense
counsel whether he had the records, and also asked why the prosecution had not received these
records. While these questions might more appropriately have been asked and answered outside
of the jury’s presence, we cannot conclude that the brief exchange undermined the presumption
of innocence afforded to defendant, or that it shifted the focus to defense counsel’s personality
rather than the evidence presented. Rather, the prosecution’s questions continued to place the
focus on the lack of documentation supporting defendant’s assertions. Again, the prosecution
was entitled to attack the credibility of defendant’s theory. Fyda, 288 Mich. App. at 464-465.
The prosecution’s commentary did not deny defendant a fair trial, and therefore does not warrant
relief. 4
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that trial counsel was ineffective for stipulating to the admission of
Wade’s report, for failing to object to the testimony of King, DeGraw, and Bishop, and for
failing to object to the alleged prosecutorial misconduct. We disagree. To preserve a claim that
counsel was ineffective, a defendant must move for a new trial or a Ginther5 hearing in the trial
court. People v Rodriguez, 251 Mich. App. 10, 38; 650 NW2d 96 (2002). Defendant did not file
any such motion below; our review is therefore limited to errors apparent on the record. People
4
Defendant also argues that by asking defense counsel about the records, the prosecution
infringed on the attorney-client privilege. The attorney-client privilege applies to
communications between the attorney and client. People v Waclawski, 286 Mich. App. 634, 693;
780 NW2d 321 (2009). The prosecution did not inquire into any communications between
counsel and client; rather, the prosecution asked defense counsel if he possessed the documents
to which defendant had just testified in open court; the privilege was not implicated.
5
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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v Rodgers, 248 Mich. App. 702, 713-714; 645 NW2d 294 (2001). Claims of ineffective assistance
of counsel present mixed questions of fact and constitutional law. People v Shaw, 315 Mich. App.
668, 671; 892 NW2d 15 (2016). Any factual findings by the trial court are reviewed for clear
error, while the ultimate legal issue is reviewed de novo. Id. at 671-672. Clear error exists if
“this Court is definitely and firmly convinced that the trial court made a mistake.” Id. at 672.
Under the Sixth Amendment of the United States Constitution, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance
of Counsel for his defence.” The right to counsel plays a crucial role in the Sixth
Amendment’s guarantee of a fair trial by ensuring that the defendant has access to
the “skill and knowledge” necessary to respond to the charges against him or her.
Strickland v Washington, 466 U.S. 668, 685; 104 S. Ct. 2052; 80 L. Ed. 2d 674
(1984). “The right to counsel also encompasses the right to the effective
assistance of counsel.” People v Pubrat, 451 Mich. 589, 594; 548 NW2d 595
(1996). See also Strickland, 466 U.S. at 686.
Under Strickland, 466 U.S. at 687, reversal of a conviction is required when
“counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment” and the errors prejudiced the
defendant. Accordingly, a defendant requesting reversal of an otherwise valid
conviction bears the burden of proving that “(1) the performance of his counsel
was below an objective standard of reasonableness under prevailing professional
norms and (2) a reasonable probability exists that, in the absence of counsel’s
unprofessional errors, the outcome of the proceedings would have been different.”
[People v ]Sabin[ (On Second Remand)], 242 Mich App [656,] 659[; 620 NW2d
19 (2000)].
To prove the first prong, “[t]he defendant must overcome a strong
presumption that counsel’s assistance constituted sound trial strategy.” People v
Stanaway, 446 Mich. 643, 687; 521 NW2d 557 (1994). “This Court does not
second-guess counsel on matters of trial strategy, nor does it assess counsel’s
competence with the benefit of hindsight.” People v Russell, 297 Mich. App. 707,
716; 825 NW2d 623 (2012). Moreover, counsel is not ineffective for failing to
make a futile motion. Sabin, 242 Mich. App. at 660. [People v Foster, 319 Mich
App 365, 390-391; 901 NW2d 127 (2017) (footnote omitted).]
As stated, no hearsay error occurred with respect to the admission of testimony by King
and DeGraw. Therefore, counsel was not ineffective for failing to object. Foster, 319 Mich. at
391 (“[C]ounsel is not ineffective for failing to make a futile motion.”). With regard to Wade’s
report, we cannot say that counsel’s stipulation was objectively reasonable or the product of
sound trial strategy in light of the fact that counsel apparently did not want portions of that report
to be read to the jury. But even assuming that defense counsel’s stipulation fell below an
objective standard of reasonableness, defendant cannot demonstrate prejudice. Ultimately, NB’s
statements contained within the report were admissible, and the admission of statements by
Quinn found in the report, even if not properly admitted, caused no prejudice to defendant. Id.
Similarly, even if portions of Bishop’s redirect testimony were improperly admitted, and even if
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they might have been stricken had an objection been raised, the error was not prejudicial for the
reasons previously explained. Id.
Defendant also contends that defense counsel was ineffective for failing to object to each
of the purported instances of prosecutorial misconduct discussed above. But counsel is not
ineffective for failing to raise meritless or futile objections. Foster, 319 Mich. App. at 142.
Because no instances of misconduct occurred, defense counsel was not ineffective.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Mark T. Boonstra
/s/ Jonathan Tukel
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