People of Michigan v. Jerry Lee Katt Jr

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 23, 2015
Plaintiff-Appellee,
v No. 321698
Berrien Circuit Court
JERRY LEE KATT, JR., LC No. 2013-003588-FC
Defendant-Appellant.
Before: MARKEY, P.J., and MURPHY and STEPHENS, JJ.
PER CURIAM.
Defendant appeals by right his convictions after a jury trial of four counts of first-degree
criminal sexual conduct, MCL 750.520b(1)(a) (victim under age 13), and three counts of second-
degree criminal sexual conduct, MCL 750.520c(1)(a) (victim under age 13). We affirm.
Trial evidence established that defendant had oral and anal sex with the victims, who
were both under age 13, multiple times over the course of four years. During the trial, the
prosecution asked a nurse examiner witness when one of the victims said the sexual abuse began,
and the witness responded, “[a]fter [defendant] got out of prison, which is about 2009[.]” The
trial court denied defendant’s motion for a mistrial and instructed the jury to disregard the
statement. Defendant asserts that the trial court erred in denying his motion for a mistrial.
We review a trial court’s ruling on a motion for mistrial for an abuse of discretion.
People v Dennis, 464 Mich. 567, 572; 628 NW2d 502 (2001). A trial court abuses its discretion
when it chooses an outcome “outside the range of principled outcomes.” People v Schaw, 288
Mich. App. 231, 236; 791 NW2d 743 (2010). A trial court should exercise its power to grant a
mistrial with great caution and only do so where imperative to cure very plain and obvious error.
People v Barker, 161 Mich. App. 296, 305; 409 NW2d 813 (1987). A mistrial is proper “only for
an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair
trial.” Schaw, 288 Mich. App. at 236 (quotation omitted). Stated otherwise, a mistrial is
appropriate only where the error is so egregious that its prejudicial effect can be removed in no
other way. People v Gonzales, 193 Mich. App. 263, 266; 483 NW2d 458 (1992).
In general, an unresponsive, volunteered answer to a question not specifically designed to
elicit the answer is not grounds for a mistrial. People v Haywood, 209 Mich. App. 217, 228; 530
NW2d 497 (1995). In this case, the trial court determined that the prosecutor did not
intentionally elicit the witness’s inadmissible remark. The prosecutor asked an appropriate and
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relevant question regarding when the victim reported that the abuse began. The victim’s
statement on the matter was relevant for purposes of medical treatment under MRE 803(4). And,
after defendant’s objection, the prosecutor informed the trial court that the witness never referred
to defendant’s imprisonment in her reports, that she had no reason to believe the witness even
knew defendant had been in prison, and that she had admonished those witnesses she believed
might refer to defendant’s imprisonment not to do so. The trial court noted the prosecutor’s
“shocked” expression at the witness’s testimony and concluded that the prosecutor did not intend
to elicit the comment. Accordingly, the trial court did not clearly error by finding that the
witness’s comment was an unresponsive, volunteered answer to a proper question that was not
specifically designed to elicit that answer, and, therefore, not grounds for granting a mistrial. Id.
Additionally, the witness’s comment was not so prejudicial to defendant that it impaired
his ability to get a fair trial. Schaw, 288 Mich. App. at 236. Unlike cases where we have found an
unresponsive and inadmissible answer mandated a mistrial, this witness was not a police officer,
who might otherwise know that testimony concerning a defendant’s criminal history is generally
not permitted. See People v McCarver (On Remand), 87 Mich. App. 12, 15; 273 NW2d 570
(1978), and People v Page, 41 Mich. App. 99; 199 NW2d 669 (1972). Additionally, the evidence
against defendant in this case was strong. In a CSC case, a victim’s testimony alone can be
sufficient for a jury to convict a defendant. MCL 750.520h; People v Lemmon, 456 Mich. 625,
642 n 22; 576 NW2d 129 (1998). Each victim testified in graphic detail to defendant’s abuse.
Each victim’s testimony was consistent with that of the other victim and consistent with their
prior statements to forensic interviewers and nurse examiners. One victim’s anal scarring, to
which the nurse examiner testified, was consistent with anal penetration the victim described.
Considering the amount of evidence against defendant, we agree the witness’s brief
reference to defendant’s past imprisonment was not so egregious that its prejudicial effect could
not be cured by any other means than a mistrial. Gonzales, 193 Mich. App. at 266. The trial court
provided a curative instruction shortly after the witness’s remark, stating that the statement was
irrelevant and must be disregarded,” and it could not “play any part in your deliberations in the
matter whatsoever.” Jurors are presumed to follow the trial court’s instructions and it is also
presumed that instruction cure most errors. People v Mahone, 294 Mich. App. 208, 212; 816
NW2d 436 (2011). In light of the strong evidence against defendant, we conclude he has not
shown that the witness’s remark was so prejudicial that his right to a fair and impartial trial was
impaired. Schaw, 288 Mich. App. at 236. Accordingly, the trial court’s decision was not an abuse
of discretion because it was within the range of principled outcomes. Id.
We affirm.
/s/ Jane E. Markey
/s/ William B. Murphy
/s/ Cynthia Diane Stephens
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