People of Michigan v. Brian Joseph Backus

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 21, 2019
Plaintiff-Appellee,
v No. 339726
Shiawassee Circuit Court
BRIAN JOSEPH BACKUS, LC No. 16-008412-FC
Defendant-Appellant.
Before: SWARTZLE, P.J., and M. J. KELLY and TUKEL, JJ.
PER CURIAM.
Defendant was convicted by a jury of five counts of first-degree criminal sexual conduct,
MCL 750.520b(1)(b) (victim less than 13 years old), and was sentenced by the trial court to
serve concurrent terms of 50 to 75 years in prison. On remand from this Court, see People v
Backus, unpublished order of the Court of Appeals, entered February 28, 2018 (Docket No.
339726), the trial court denied defendant’s motion for new trial, which was based on claims of
ineffective assistance of counsel. Defendant appeals as of right. We affirm.
I. BACKGROUND
The complainant is defendant’s adopted child. In January 2016, the complainant, who
was 15 years old at the time of trial, gave his mother a letter he had written in which he stated
that defendant had been sexually assaulting him for the past five years. The complainant
testified at trial that defendant began forcing him to have anal and oral sex when he was about 8
years old, and that the assaults had continued until he was about 13 years old. The complainant’s
older brother likewise testified that when he was about 11 years old, defendant began touching
his genitals and forcing him to have oral sex, and that when he got older, defendant forced him to
have anal sex. The complainant’s brother testified that defendant’s assaults continued until the
year before trial.
II. ANALYSIS
Defendant initially raised several different arguments concerning the ineffective
assistance of counsel. Defendant argued that his trial attorneys were ineffective because they
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failed to file a motion to suppress his incriminating statements to police, failed to investigate
exculpatory evidence, failed to consult a handwriting expert, and failed to object to testimony
from the prosecutor’s expert witness. At oral argument before this Court, however, defendant
waived all of his ineffective-assistance arguments except two: the claim based on his trial
attorneys’ failure to file a motion to suppress incriminating statements, and the claim based on
his trial attorneys’ failure to object to testimony from the expert witness. We will not consider
the arguments that defendant raised and subsequently waived. “One who waives his rights under
a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver
has extinguished any error.” People v Carter, 462 Mich. 206, 215; 612 NW2d 144 (2000)
(cleaned up). As explained below, we conclude that defendant’s remaining ineffective-
assistance-of-counsel claims are without merit.
A. STANDARD OF REVIEW
To establish a claim of ineffective assistance of counsel, a defendant must prove that
defense counsel’s performance was objectively unreasonable in light of prevailing professional
norms and that, but for counsel’s error, it is reasonably probable that the outcome would have
been different. Strickland v Washington, 466 U.S. 668, 688, 694; 104 S. Ct. 2052; 80 L. Ed. 2d 674
(1984); People v Pickens, 446 Mich. 298, 302-303; 521 NW2d 797 (1994). Effective assistance
of counsel is presumed, People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288 (2012), and a
defendant bears a heavy burden of proving otherwise, People v Seals, 285 Mich. App. 1, 17; 776
NW2d 314 (2009). In doing so, a defendant must overcome a strong presumption that the
challenged conduct might be considered sound trial strategy. People v Knapp, 244 Mich. App.
361, 385-386, 386 n 7; 624 NW2d 227 (2001). A defendant can only overcome the presumption
by showing that counsel failed to perform an essential duty and that the failure was prejudicial to
defendant. People v Hampton, 176 Mich. App. 383, 385; 439 NW2d 365 (1989). Counsel’s
performance must be measured against an objective standard of reasonableness, People v Payne,
285 Mich. App. 181, 188, 190; 774 NW2d 714 (2009), and without benefit of hindsight, People v
LaVearn, 448 Mich. 207, 216; 528 NW2d 721 (1995). This Court “neither substitutes its
judgment for that of counsel regarding matters of trial strategy, nor makes an assessment of
counsel’s competence with the benefit of hindsight.” People v Mutuszak, 263 Mich. App. 42, 58;
687 NW2d 342 (2004).
Whether a defendant received ineffective assistance of trial counsel presents a mixed
question of fact and constitutional law. People v Grant, 470 Mich. 477, 484; 684 NW2d 686
(2004). “A judge must first find the facts, then must decide whether those facts establish a
violation of the defendant’s constitutional right to the effective assistance of counsel.” Id. This
Court reviews the trial court’s factual findings for clear error. Id. “Clear error exists if the
reviewing court is left with a definite and firm conviction that the trial court made a mistake.”
People v Armstrong, 490 Mich. 281, 289; 806 NW2d 676 (2011). We review questions of
constitutional law de novo. Grant, 470 Mich. at 485.
B. MOTION TO SUPPRESS DEFENDANT’S STATEMENTS
Defendant argued during the Ginther hearing that his trial attorneys were ineffective for
failing to request a Walker hearing to suppress the statements he made to police during his first
interview. Defendant contends that his statements were inadmissible and should have been
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suppressed because he did not receive Miranda warnings before he made the statements, even
though he was subject to a custodial interrogation. Because we conclude that a reasonable
person in defendant’s position would have felt he was at liberty to end or leave the interview,
defendant’s statements were not made during a custodial interrogation and Miranda warnings
were not required.
“It is well settled that Miranda warnings need be given only in situations involving a
custodial interrogation.” People v Zahn, 234 Mich. App. 438, 449; 594 NW2d 120 (1999). In
determining whether a defendant was subjected to a custodial interrogation, this Court considers
“the totality of the circumstances, with the key question being whether the accused reasonably
could have believed that he was not free to leave.” Id. Relevant factors to consider in making
this determination include “the location of the questioning, its duration, statements made during
the interview, the presence or absence of physical restraints during the questioning, and the
release of the interviewee at the end of the questioning.” Howes v Fields, 565 U.S. 499, 509; 132
S. Ct. 1181; 182 L. Ed. 2d 17 (2012) (citations omitted).
Defendant asserted that his statements were made during a custodial interrogation
because he was coerced into going to the police station and because he did not feel free to leave
once he arrived there. According to defendant, when police officers arrived at his home to
execute a search warrant, one of the officers “grabbed” him by the arm, pulled him to his patrol
vehicle, forced him into the vehicle, and locked the door before driving him to the police station.
Defendant also stated that he asked the officer whether he needed a lawyer several times, and
was told that he did not. At the police station, according to defendant, the officer shut the door to
the interview room and defendant believed that the door was locked.
The officer who conducted the initial interview with defendant testified that when he
made contact with defendant, he asked defendant whether he was willing to “freely and
voluntarily” come to the police station to have a conversation with him, and defendant agreed to
do so. The officer testified that he offered to drive defendant to the police station and bring him
home after the interview, but he also told defendant that he was free to drive his own vehicle.
The officer claimed that defendant decided to ride with the officer; the officer denied that he
locked the door to his patrol vehicle once defendant was inside. Additionally, the officer
claimed that the door to the interview room at the police station could not be locked. A
recording of the interview was admitted at trial. During the interview, the officer told defendant
that he was free to leave at any time, and defendant acknowledged that he had agreed to come to
the police station freely and voluntarily.
Although defendant claims that the police interview lasted for nearly two hours, the
recording of the interview played at trial indicates that the actual length of the interview was 86
minutes, excluding a break. Even if defendant’s assessment of the length of the interview is
accurate, we do not agree that a two-hour interview would have caused a reasonable person to
believe that he was unable to leave or unable to terminate the interview. Defendant
acknowledged that he was not handcuffed by the officers before going to the police station, and
there was no evidence that he was restrained in any way at the police station. The interviewing
officer reiterated several times that defendant was free to leave at any point during the
questioning, and that defendant would be going home at the end of the interview. In addition,
during the break in the interview, defendant did not request to leave or end the interview. Based
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on the totality of the circumstances, we conclude that a reasonable person in defendant’s position
would have felt he was at liberty to end or leave the interview. Therefore, defendant’s
statements were not made during a custodial interrogation and Miranda warnings were not
required. “Failing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.” People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120
(2010). The trial court did not clearly err by concluding that defendant’s trial attorneys were not
ineffective for failing to file motions to suppress his statements made during his interview with
police.
C. EXPERT-WITNESS TESTIMONY
Defendant next argues that trial counsel was ineffective for failing to object to testimony
from the prosecutor’s expert-medical witness that the complainant was sexually abused by
defendant. We agree that this testimony was improper, but conclude that any error did not affect
the outcome of the proceedings. Additionally, we do not agree with defendant’s contention that
trial counsel was ineffective for failing to object to the expert’s testimony regarding statements
made by the complainant during the medical examination.
The admission of expert testimony is governed by MRE 702, which provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
In child-sexual-abuse cases, “(1) an expert may not testify that the sexual abuse occurred, (2) an
expert may not vouch for the veracity of a victim, and (3) an expert may not testify whether the
defendant is guilty.” People v Peterson, 450 Mich. 349, 352; 537 NW2d 857 (1995). In this
case, the expert medical witness testified that in his opinion, the complainant was abused by
defendant. This testimony clearly violated the holding in Peterson that “an expert may not
testify that the sexual abuse occurred,” and we agree that trial counsel should have objected to
this testimony. In light of the overwhelming evidence of defendant’s guilt, however, he cannot
show that the outcome of the trial would have been different absent counsel’s error. See People
v McGraw, 484 Mich. 120, 142; 771 NW2d 655 (2009). The prosecutor presented ample
evidence that defendant committed the offenses, including defendant’s own admissions during
two police interviews, as well as the complainant’s testimony and the “other acts” testimony of
his brother. In light of this compelling evidence, it is not likely that the outcome of the
proceeding would have been different, but for trial counsel’s failure to object to the expert’s
testimony.
As for the expert’s testimony regarding the complainant’s description of the sexual
assaults during the medical-history portion of the examination, defendant asserts that the
testimony was not properly admitted under the medical-treatment hearsay exception, MRE
803(4), because the complainant’s statements were made too long after the last alleged incident
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had occurred to be considered trustworthy. Although statements made for purposes of medical
treatment may generally be admitted under MRE 803(4), this Court has held that “[i]n cases of
suspected child abuse, statements the child makes may be admitted under this exception when
the totality of circumstances surrounding the statements supports that they are trustworthy.”
People v Duenaz, 306 Mich. App. 85, 95; 854 NW2d 531 (2014). Factors to be considered on the
issue of trustworthiness include:
(1) the age and maturity of the declarant, (2) the manner in which the statements
are elicited (leading questions may undermine the trustworthiness of a statement),
(3) the manner in which the statements are phrased (childlike terminology may be
evidence of genuineness), (4) use of terminology unexpected of a child of similar
age, (5) who initiated the examination (prosecutorial initiation may indicate that
the examination was not intended for purposes of medical diagnosis and
treatment), (6) the timing of the examination in relation to the assault (the child is
still suffering pain and distress), (7) the timing of the examination in relation to
the trial (involving the purpose of the examination), (8) the type of examination
(statements made in the course of treatment for psychological disorders may not
be as reliable), (9) the relation of the declarant to the person identified (evidence
that the child did not mistake the identity), and (10) the existence of or lack of
motive to fabricate. [People v Meeboer (After Remand), 439 Mich. 310, 324-325;
484 NW2d 621(1992) (citations omitted).]
In this case, the complainant was examined by the expert when he was 13 or 14 years old,
and he testified that the last assault occurred when he was 13 years old. Therefore, there was
some delay between the last-reported incident and the examination. Yet, according to the
evidence presented, the complainant was mature enough at the time of the examination to
describe what happened to him with clarity and detail, and there was no evidence that the
statements were elicited through leading or improper questions. See id. The examination was
initiated by Child Protective Services, not by the prosecutor, although it seems clear that the
purpose of the examination was to investigate the allegations rather than strictly for medical
diagnosis and treatment. Id. at 325. Based on the totality of circumstances surrounding the
statements, a finding that the statements were trustworthy is supported by the record. Duenaz,
306 Mich. App. at 95. Moreover, in light of the overwhelming evidence presented against
defendant, any error based on the admission of these statements did not affect the outcome of the
proceedings. See McGraw, 484 Mich. at 142. Defendant is not entitled to relief.
Affirmed.
/s/ Brock A. Swartzle
/s/ Michael J. Kelly
/s/Jonathan Tukel
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