People of Michigan v. Kevin Robert Smith

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

March 19, 2020

Plaintiff-Appellee,

v No. 334692

Ingham Circuit Court

KEVIN ROBERT SMITH, LC No. 15-001023-FC

Defendant-Appellant.

ON REMAND

Before: CAMERON, P.J., and METER and BORRELLO, JJ.

BORRELLO, J. (dissenting).

I respectfully dissent from the majority’s approach to our Supreme Court’s order

remanding “this case to the Court of Appeals for reconsideration in light of People v Harbison,

504 Mich [230; 934 NW2d 693 (2019)].”1 As I stated in my previous dissent in this case, I am

convinced from my review of the record that the majority of both Detective Annie Harrison’s and

Dr. Stephen Guertin’s testimony was introduced for the improper purpose of vouching for the

credibility of the victims. See People v Smith, unpublished per curiam opinion of the Court of

Appeals, issued August 14, 2018 (Docket No. 334692) (BORRELLO, J., dissenting), p 1. In my

view, our Supreme Court’s directive to reconsider this matter on remand in light of Harbison

requires this Court to necessarily address Harrison’s testimony as well as Guertin’s testimony. I

still conclude that the “failure by trial counsel to object to the numerous hearsay statements of

Harrison and Guertin, coupled with counsel’s failure to object to the majority of their improper

vouching constituted ineffective assistance of counsel and denied defendant a fair trial.” Smith

(BORRELLO, J., dissenting), unpub op at 1. For the same reasons stated in my previous dissent in

this matter, which I believe are harmonious with Harbison, I would reverse defendant’s

convictions and grant him a new trial.

1

People v Smith, ___ Mich ___; 934 NW2d 213 (2019).

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I. HARBISON

In Harbison, which is the companion case in People v Thorpe, 504 Mich 230; 934 NW2d

693 (2019), our Supreme Court held that “examining physicians cannot testify that a complainant

has been sexually assaulted or has been diagnosed with sexual abuse without physical evidence

that corroborates the complainant’s account of sexual assault or abuse because such testimony

vouches for the complainant’s veracity and improperly interferes with the role of the jury.”

Thorpe, 504 Mich at 235 (emphasis added). The defendant in Harbison had been convicted of

various sex offenses against a child. Id. at 242-243, 249. At the defendant’s trial, the pediatrician

who had examined the complainant testified as an expert in child sexual abuse diagnostics that her

diagnosis was “Probable pediatric sexual abuse.” Id. at 243-245. The pediatrician explained that

her information came from “taking a history from [the complainant] prior to the physical

examination.” Id. at 244. The pediatrician further indicated that the physical exam “did not show

any acute or remote indications of trauma” and that she only found “a very small notch” on the

complainant’s hymen, which the pediatrician stated was “a non-specific finding.” Id. at 245. The

pediatrician explained:

“A non-specific finding is a finding that we can see for many different

reasons and is not specific to any type of trauma to the genital tissues. You can have

small notches that occur from events like time events such as the bicycle accident

or something of that nature. You can get small notches from children that use

tampons. You can get small notches that are actually developmental in nature. So

when you have a very shallow very small notch that is less than 50% of the width

of the hymenal rim, those are considered non-specific findings.” [Id.]

Our Supreme Court in Harbison concluded that the pediatrician’s testimony constituted

plain error requiring a new trial. Id. at 260-261, 264-266. The Court stated that the pediatrician’s

“expert opinion that [the complainant] suffered ‘probable pediatric sexual abuse’ is contrary to this

Court’s unanimous decision in [People v Smith, 425 Mich 98; 387 NW2d 814 (1986)].” Thorpe,

504 Mich at 260-261. The Court in Harbison reasoned that the pediatrician

candidly acknowledged that her examination of [the complainant] showed no

physical evidence of an assault. Her conclusion that [the complainant] suffered

“probable pediatric sexual abuse” was based solely on her own opinion that [the

complainant]’s account of the assaults was “clear, consistent, detailed and

descriptive.” This testimony clearly falls within Smith’s holding that an examining

physician cannot give an opinion on whether a complainant had been sexually

assaulted if the “conclusion [is] nothing more than the doctor’s opinion that the

victim had told the truth.” An examining physician’s opinion is objectionable when

it is solely based “on what the victim . . . told” the physician. Such testimony is not

permissible because a “jury [is] in just as good a position to evaluate the victim’s

testimony as” the doctor. [Id. at 261-262 (last alteration and ellipsis in original;

citations omitted).]

The Supreme Court further concluded that “the most prejudicial aspect of [the pediatrician’s]

testimony was that she clearly vouched for [the complainant’s] credibility.” Id. at 263.

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II. INEFFECTIVE ASSISTANCE OF COUNSEL TEST

As noted by the majority, this appeal involves defendant’s claim that he received

ineffective assistance of counsel. As I stated in my previous dissent:

There can be little doubt that it is difficult to show that a conviction must be

reversed based on a claim of ineffective assistance of counsel. In order to prevail

on appeal, a defendant must demonstrate (1) that counsel’s performance was

deficient and (2) that the defense was prejudiced by counsel’s deficient

performance. Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed

2d (1984), reh den 467 US 1267; 104 S Ct 3562; 82 L Ed 2d 864 (1984); [People v

]Riley, 468 Mich [135, 140; 659 NW2d 611 (2003)]. Satisfying the first prong

requires a defendant to show that counsel’s performance fell below an objective

standard of reasonableness under prevailing professional norms. Strickland, 466

US at 688; Riley, 468 Mich at 140. Satisfying the second prong requires a defendant

to show that but for counsel’s unprofessional errors, there is a reasonable

probability that the result of the proceeding would have been different. Strickland,

466 US at 694; see also People v Trakhtenberg, 493 Mich 38, 55-56; 826 NW2d

136 (2012). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 US at 694.

A defendant making an ineffective assistance of counsel claim “must

overcome the strong presumption that counsel’s performance was born from a

sound trial strategy.” Trakhtenberg, 493 Mich at 52. However, “a court cannot

insulate the review of counsel’s performance by calling it trial strategy.” Id. Trial

strategy “in fact must be sound, and counsel’s decisions as to it objectively

reasonable.” People v Douglas, 496 Mich 557, 585; 852 NW2d 587 (2014). When

reviewing an ineffective assistance claim, “the ultimate focus of inquiry must be on

the fundamental fairness of the proceeding whose result is being challenged,” and

“[i]n every case the court should be concerned with whether, despite the strong

presumption of reliability, the result of the particular proceeding is unreliable

because of a breakdown in the adversarial process that our system counts on to

produce just results.” Strickland, 466 US at 696. [Smith (BORRELLO, J., dissenting),

unpub op at 5.]

III. IMPROPER VOUCHING OF HARRISON

In this case, the holding in Harbison admittedly applies most directly to Guertin’s

testimony, being that he was a specialist in areas related to pediatrics and child abuse who

examined the victims and testified at trial as an expert in “child abuse.” See Smith (BORRELLO, J.,

dissenting), unpub op at 18. However, contrary to the majority’s findings, our Supreme Court did

not order us to consider only Guertin’s testimony. Instead, our Supreme Court’s order was an

instruction to address how Harbison would have affected this Court’s analysis of any issue that

was raised in the original appeal and on which Harbison has any bearing. The reason stated in

Harbison for prohibiting examining physicians from testifying “that a complainant has been

sexually assaulted or has been diagnosed with sexual abuse without physical evidence that

corroborates the complainant’s account of sexual assault or abuse” was that such evidence

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“vouches for the complainant’s veracity and improperly interferes with the role of the jury.”

Thorpe, 504 Mich at 235. Our Supreme Court in Harbison expressly stated that the “most

prejudicial aspect” of this type of improper expert testimony was that the expert “clearly vouched

for [the complainant’s] credibility.” Thorpe, 504 Mich at 263.

Because I have the same concerns about Harrison’s testimony in this case, I find my

previous analysis of this issue to again be implicated on remand by our Supreme Court’s directive.

In my prior dissent, I discussed caselaw from our Supreme Court and this Court stretching back to

1863, see Evans v People, 12 Mich 27 (1863); People v Row, 135 Mich 505; 98 NW 13 (1904);

People v Buckey, 424 Mich 1; 378 NW2d 432 (1985); People v Peterson, 450 Mich 349; 537

NW2d 857 (1995); People v Musser, 494 Mich 337; 835 NW2d 319 (2013); Douglas, 496 Mich

557; People v Walker, 40 Mich App 142; 198 NW2d 449 (1972); People v Parks, 57 Mich App

738; 226 NW2d 710 (1975); People v Shaw, 315 Mich App 668; 892 NW2d 15 (2016), and arrived

at the following conclusion:

Thus, the rule that can appropriately be derived is that [it] is improper

credibility vouching to allow a witness to testify about how he or she personally

confirmed various elements of another witness’s story or about why another

witness’s story is plausible or logical. Such testimony essentially connects the dots

for the jury from evidence to conclusion via one witness’s explanation of how

another witness’s testimony has been corroborated and, by extension, . . . the

witness’s veracity [is] confirmed. This kind of vouching testimony, rather than

simply asserting that another individual told the truth, instead functions as an

attempt to get the jury to substitute the witness’s reasoning or personal investigation

for the jury’s own evaluation of another witness’s credibility. [Smith (BORRELLO,

J., dissenting), unpub op at 10.]

With that legal background in mind, I reproduce below part III of my prior dissent, id. at

10-17,2 which analyzes Harrison’s testimony in a fashion that I also find consistent with our

Supreme Court’s holding in Harbison:

Applying the above legal principles to Harrison’s testimony, Harrison

improperly vouched for the credibility of DG and KG. As previously stated,

Harrison conducted forensic interviews of both DG and KG during the course of

investigating the allegations in this case, and she was called as a witness by the

prosecution. During her direct examination, Harrison testified extensively about

the nature of the forensic interview process and Michigan’s forensic interviewing

protocol, as well as her specialized training for investigating child sexual abuse

cases and conducting forensic interviews. More specifically, she testified that

Michigan’s forensic interviewing protocol was developed “to assist us in the best

techniques for interviewing children”; that she primarily investigates cases of child

sexual abuse; and that in these cases, her “job is to thoroughly investigate and

determine if it should or shouldn’t be forwarded to the Prosecutor’s office for

2

The alterations in the following quoted text appear in the original.

-4-

review.” The prosecutor also questioned Harrison on direct examination as

follows:

Q. I want to talk to you a little bit about forensic

interviewing. Could you please tell the jury what is forensic

interviewing? How does it differ from a normal interview?

A. The goal for a forensic interview is to obtain a statement

from a child in an unbiased developmentally appropriate neutral

way, to assist in criminal justice and child welfare systems. What

that really means, the word “forensic” is research-based or

scientific. The State of Michigan developed the protocol based on

research to help us as every day professionals on the do’s and don’ts

of how to interview a child, what the best practice is.

Harrison testified that she used the forensic interview protocol in her

interviews of DG and KG in this case, although they were 18 years old at the time.

Harrison also indicated that the initial phase of the forensic interview includes

obtaining “a promise to tell the truth” from the interviewee. Additionally, Harrison

explained that in a forensic interview, “we develop alternate hypotheses to look at

different possibilities,” that the alternate hypotheses are tested through questioning

in the interview, and that “[i]t’s a fact-gathering mission to look at all the

possibilities, minimize suggestibility.” Harrison stated, “There can’t be any

misunderstandings,” and “[w]e need to make sure that we are getting the allegations

correct, that we’re looking to see what other possibilities are.” According to

Harrison, two alternate hypotheses were developed: (1) that there was a

misunderstanding regarding whether there was actually a sexual touch and (2) that

one of the involved parties was lying or that only one of the twins was abused.

Harrison tested these hypotheses in her interviews of DG and KG. When the

prosecutor asked Harrison if she was “able to eliminate any of the hypotheses or

come to any conclusions,” defense counsel objected “to any conclusions” on the

ground that the prosecutor was “essentially asking her to determine what the truth

was of what their allegations are.” The prosecutor withdrew the question.

However, shortly thereafter, Harrison testified that during the interview, she

“look[s] for details of the act that would determine whether this is a sexual or non-

sexual touch or whether it was a misunderstanding. The prosecutor followed up by

questioning Harrison as follows without objection from defense counsel:

Q. At the end of your interview, is your investigation

complete if you eliminated certain alternate hypotheses, is that the

end of your investigation?

A. No.

Q. All right. So are you able to eliminate alternate

hypotheses, or any of the hypotheses during your actual interview

process? Were you able to, in this particular case?

-5-

A. Well, I mean, my job is to gather the facts. So I, during

the forensic interviews of both K[G] and D[G]—let’s see how to

answer that. There are times in which there is a misunderstanding.

So then the case ends at that point.

After the forensic interview, the allegation, itself, which had

been reported to me, was that [defendant] had sexually abused K[G]

and D[G] [ ], that was still standing at the end of the interview. So

I continued the investigation.

Q. You weren’t concluding at the end that they had been

abused, but rather that’s where your investigation is now targeted?

A. Correct.

Q. Were you able to address the alternate hypotheses [sic]

that it was a misunderstanding?

A. Yes.

Q. How did you do that?

A. Well, they were clear—so I asked questions and they

provided clear statements to me. So it’s not a misunderstanding at

that point.

Q. All right. And how about the allegation that one was

abused and not the other?

A. They both provided clear disclosures.

Q. At that point you were left with that it actually happened

or that it was a lie, correct?

A. Correct.

Q. You are not able at that point to eliminate the lie?

A. Well, a portion of it. So part of that could be, does the

reporting source[5] have a motivation, or is the reporting source

lying. And so I develop questions during the interview as who is the

first person that you told. So if they told somebody prior to the

reporting source, then that helps me with that.

Defense counsel did not object to the above testimony or otherwise renew his

previous objection. Harrison also testified that she needed to go the scene of the

incidents described in a forensic interview “to see if that is possible” and to see “the

viewpoint of witnesses” in order to “put [herself] in that situation to then get

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additional leads or information that [she] can follow up and gather those facts to

bring.” Harrison would take photographs while at a given location. Although not

specifically referenced by defendant in his appellate argument, Harrison also

offered the following testimony during her direct examination, to which there was

no objection and in which she essentially explained to the jury why she thought the

description given by DG and her mother of the incident where defendant allegedly

grabbed DG’s chest made sense:

Q. Again, we are using this photograph, just kind of a way

as an example. But this photograph, in and of itself, does it provide

for you and your investigation any corroboration of what you were

told?

A. Yes. I need to understand if what’s being reported to me

is possible. That’s why, even if a crime had occurred decades prior,

I always make it as a rule to go back to visit that scene, whether it’s

changed or evolved or not, whether the furniture is the same or

different, or the walls are even different. I still need to go to

document it to see what I find to see where the facts lead.

Q. In this particular photograph, did it help you to

understand ultimately how someone could be sitting on the couch

and having another person in the room?

A. Yes.

Q. How so?

A. The positioning of the furniture, of how, you know, the

one chair is a little bit more forward. And then also the description

of sitting close together. And when you see, you know, how couch

cushions are divided. And then also the opportunity for the

reflection. [The mother] had been reporting seeing a reflection. And

as an investigator I didn’t really understand that at that point.

Q. So looking at People’s 52, taking that photograph, did

that help you understand what she meant better?

A. I think what I see there is that reflections are possible.

Again, at that point, I didn’t know where the windows were in the

home, or if reflections were possible in the home. So I still wasn’t

certain did she see the reflection in that TV or a different one, or a

piece of glass or a different one. But I see that reflection is possible.

Q. Thank you. So we just kind of did that as an exercise. Is

that a good, a fair depiction of how you kind of run an investigation?

You take the facts as you understand them, and then look for

corroboration evidence, one way or the other?

-7-

A. Correct.

During Harrison’s cross-examination, defense counsel questioned Harrison

as follows:

Q. Now, you have talked about there is instances where

there is a delayed disclosure. Does delayed disclosure equate in any

way with being a credible disclosure?

A. I can’t—

Q. I guess the question I’m asking, because the disclosure is

delayed, does that somehow make it, at least in your experience,

more credible?

A. I see cases—my job is to investigate and report the facts.

But I see cases in both delayed and immediate disclosure. In both

delayed and immediate disclosure, sometimes I screen them out.

And in both delayed and immediate disclosure, sometimes I’ve

turned them over to the Prosecutor’s office.

Defense counsel also attempted to elicit inconsistencies between DG’s and

KG’s forensic interview statements and their trial testimony by asking Harrison.

For example, defense counsel questioned Harrison as follows:

Q. How was it that K[G] made it clear to you how the pencil

was used in this case?[6]

A. When I said a clear statement, my alternate hypotheses

[sic] was that this could have been a misunderstanding or a non-

sexual touch. There was no doubt in my mind that she was

describing sexual touch at the end of the interview. So that was what

I meant by that.

And then every detail, there is not an expectation to make

every detail absolutely clear. That’s not always possible.

Q. But you would acknowledge that any—that there was no

clarity with regard to D[G]’s statement to you—I’m sorry—K[G]’s

statement to you about how, where, what, why, a pencil was used on

her, was there?

A. I disagree with what you’re saying. I mean, we had a

discussion. I asked questions about objects. She stated objects to

me. I do think that that’s clear.

-8-

On redirect, the prosecutor elicited further testimony, without objection

from defense counsel that allowed Harrison to explain how her investigation

corroborated DG’s allegations:

Q. [Defense counsel] asked you about who you interviewed

concerning the hot tub incident that we’re talking about. And I

believe your answer was, obviously, D[G], initially. And then you

interviewed the Grandma and Grandpa [ ], Johnny [ ], Senior and

D[G] correct?

A. Yes.

Q. What information did they provide that either—that

helped you out with understanding D[G] and what she told you that

had happened? And let me just, if I can, just jump to as the

swimsuits.

A. Yes.

Q. So what did D[G] tell you about swimsuits in the hot tub?

A. She said that most of the time there isn’t swimsuits in the

hot tub. I could be wrong on most of the time. She said that the kids

did not wear swimsuits in the hot tub. So I wanted to speak to an

adult about that or another source to see if that is what the other

source was telling me.

Q. What did you find out?

A. That they agreed with that statement.

Q. What about shirts, where to get shirts?

A. I asked the same question of Grandma [ ], where are shirts

kept. He [sic] showed me the closet which, when I was there, was

consistent with what information had been provided to me by

D[G].[7]

Q. What about the fact that there had been a waterbed?

What, if anything, about the waterbed in that room?

A. In Grandma and Grandpa G[ ]’s bedroom?

Q. Yep.

A. Yes. So when I was there, the furniture had changed. But

she was able to describe to me what furniture had been like prior,

you know, 13 years prior.

-9-

Q. And that was consistent, correct?

A. Yes.

Q. Why is that important in your investigation on sexual

abuse cases?

A. For more than one reason. Again, it’s to understand the

scene to help create a picture of was this possible. It also is to test

alternate hypotheses to see—look for consistency in witness

statements.

Q. All right. The thing about the pond incident, near the

dock, do you recall that incident with D[G]?

A. Yes.

Q. What did you do—these are ways to corroborate

statements, fair to say?

A. Yes.

Q. What did you do to corroborate the statement about the

pond incident, if anything?

A. It was mainly looking to see where the pond was, which

house was the pond at, how close was the pond or far to the house.

Where are seating areas. What does the dock look like. Basically

observing, based on she had talked about the proximities of the

dock, the heighth [sic] of the dock. I wanted to go there and

document what the dock looked like.

Q. Okay. What about people’s observations about the two

of them in the pond at other times?

A. Right. There was more than one witness statement about

hollering out to them or seeing them at a distance. And I wanted to

be able to put myself in that position of where those people would

be, and then how far is that to holler out, or how far is that to what

could they see, what would be their vantage point.

Harrison specifically explained how, in her view, a photograph of the scene

where defendant allegedly grabbed DG’s chest demonstrated that the reflection

reported by DG’s mother was “possible.” In essence, Harrison testified regarding

her interpretation of the evidence and advocated that a particular conclusion be

drawn by the jury—namely, that the story told by DG and her mother made sense

and was believable—even though the jury was just as capable of evaluating whether

the photograph supported the veracity of DG’s and her mother’s respective

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testimony. By asking the jury to allow her own reasoning to replace that of the

jury’s in this regard, Harrison was improperly vouching for the credibility of DG

and her mother. Musser, 494 Mich at 348-349; Evans, 12 Mich at 34; Walker, 40

Mich App at 144-145.

Furthermore, Harrison testified that the initial phase of a forensic interview

includes obtaining a “promise to tell the truth” from the interview and that the

interview was “a fact-gathering mission.” She explained that she tested the

alternate hypotheses (1) that the allegations involved a misunderstanding regarding

whether there was a sexual touch and (2) that the allegations involved a lie.

Harrison stated that she concluded that there was no misunderstanding because the

victims “provided clear statements,” and she also indicated that she was partially

able to eliminate the notion that lying was involved. Harrison also heavily

emphasized that the forensic interview process as “unbiased,” “research-based,”

“scientific,” and “neutral.” This testimony served as clear vouching for the veracity

of the victims’ statements through painting the forensic interview process as a

rigorous truth-testing tool on which the jury could rely to conclude that the victims’

statements were believable. Harrison also invited the jury to rely on the quality of

her investigation by testifying about how she corroborated the girls’ statements

through comparing them with the statements of other individuals she interviewed

and noting the consistencies; Harrison expressly explained that her job was to

“thoroughly investigate” cases to determine whether referral to the prosecutor’s

office was warranted. By so testifying, Harrison presented the forensic interview

process and her own investigation as substitutes for the necessity of the jury to

independently make its own credibility determinations, and she therefore

improperly vouched for the credibility of both victims. Musser, 494 Mich at 348-

349; Evans, 12 Mich at 34; Walker, 40 Mich App at 144-145. In short, under the

guise of ill-described “scientific methods” she held herself out to the jury as a

human lie-detector.

Moreover, although the prosecution argues that these statements were not

hearsay because they were offered to show their effect on Harrison’s investigation

rather than for the truth of the matter asserted, the statements were still inadmissible

because they were effectively part of Harrison’s improper vouching testimony and

were accordingly not offered for any relevant purpose. As our Supreme Court has

explained, “even if an out-of-court statement is not offered for the truth of the

matter asserted, the statement is not automatically admissible because the

‘touchstone’ of admissibility is ‘relevance.’ ” Musser, 494 Mich at 354 (citations

omitted).

To the extent that defense counsel’s cross-examination of Harrison and

defense counsel’s trial strategy of generally attempting to undermine the credibility

of prosecution witnesses could be understood to have made the steps of Harrison’s

investigation somehow relevant (which is what the prosecution appears to argue on

appeal) the prosecutor at trial should have only elicited testimony from Harrison

that would show that she followed proper investigative procedures without eliciting

testimony that took the additional step of explaining how her investigative findings

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demonstrated that the stories of other witnesses were believable. It is that additional

step of essentially connecting the dots for the jury that constituted the improper

vouching by Harrison.

Returning to defendant’s ineffective assistance of counsel claim, defense

counsel in this case failed to object to Harrison’s improper vouching testimony set

forth above. “[C]redibility contests are not uncommon in criminal sexual conduct

cases,” People v Anderson, 446 Mich 392, 407 n 37; 521 NW2d 538 (1994), cert

den sub nom Michigan v Anderson, 513 US 1183; 115 S Ct 1175; 130 L Ed 2d 1128

(1995), and “the principle issue in cases involving criminal sexual conduct is the

credibility of the complainant,” People v Beckley, 434 Mich 691, 717 n 39; 456

NW2d 391 (1990) (opinion by BRICKLEY, J.). And while the instant case did not

involve a credibility “contest” in the strict sense of the phrase because defendant

did not testify, the credibility of the alleged victims and other prosecution witnesses

was clearly of central importance in this case. Yet, despite the importance of

witnesses’ credibility and defense counsel’s apparent strategy of trying to

undermine the victim’s credibility, defense counsel still did not challenge the

clearly inadmissible vouching testimony by Harrison set forth above. Our Supreme

Court has long recognized “the undue weight that jurors may be inclined to place

on police officers’ statements.” Musser, 494 Mich at 363. In this case, there was

no “sound” strategic reason for defense counsel’s failure to object to Harrison’s

pervasive vouching, and defense counsel’s performance thus fell below an

objective standard of reasonableness. Douglas, 496 Mich at 585-586.8

__________________________________________________________________

5

In this case, it appears that DG’s mother would have been the “reporting source”:

Harrison testified that when she began working on this case, her “first contact had

been with [the mother]” who had contacted law enforcement and whose “twin

daughters had disclosed after their high school open house that they had been

sexually abused for several years by their cousin, [defendant].”

6

During KG’s cross-examination, defense counsel had asked KG about portions of

the description of the Allen wrench incident that KG gave during her forensic

interview in which KG had stated that defendant was “look[ing] for something else,

like pencils or just other things” but had not described defendant actually touching

her with a pencil.

7

It appears that the second reference to DG was intended to refer to the alleged

victim in this case. DG and her grandmother have the same name.

8

Defense counsel did object, on the ground of improper vouching, to the

prosecutor’s question asking Harrison whether it is typical for a victim to “disclose

everything that happened to them in that initial interview.” In making his objection,

defense counsel stated that this question was asking Harrison to “give an opinion

as to credibility.” The prosecutor argued that the question was actually “based on

her training and experience doing interviews,” and the trial court stated that “[i]n

essence, he is asking as she did this, what did you do.” Defense counsel responded

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to the trial court’s statement by saying, “I don’t have a problem with that. If he can

restrict that, I won’t have an objection.” The trial court then overruled defense

counsel’s objection. However, defense counsel permitted the other impermissible

vouching testimony described above to come in without any objection.

__________________________________________________________________

In my view, the holding in Harbison further supports the above analysis and conclusion.

IV. IMPROPER VOUCHING OF GUERTIN

Turning to Guertin’s testimony, I also reproduce below my prior analysis of defendant’s

ineffective assistance claim regarding his trial counsel’s handling of this testimony. I believe the

following analysis is entirely consistent with the holding in Harbison.

Dr. Guertin, a specialist in general pediatrics, pediatric critical care, and

child abuse, testified as an expert in “child abuse.”9 Guertin conducted

examinations of both victims. In response to the prosecutor’s question about why

it was still important to examine an individual when the alleged abuse did not occur

recently, Guertin responded that “[i]t’s what it always is, which is diagnosis and

treatment.” He explained that sexual assault or physical abuse can be diagnosed

“years afterwards”; that it is important “to make sure that the perpetrator still

doesn’t have access to the child, even if she was a teenager”; that it is important to

make sure that counseling is being provided,10 and that there were still potential

sexually transmitted infection issues.

__________________________________________________________________

9

The prosecutor moved to qualify Guertin as an expert “in the field of sexual abuse

against children,” and defense counsel indicated that he had no objection.” The

trial court then stated that it was qualifying Guertin as an expert “in child abuse.”

10

Notably, Guertin clarified that “we don’t provide the psychological counselling.”

__________________________________________________________________

Guertin examined DG first. He testified that he took a medical history from

her, during which she told him “that starting at an early age, sometime around five

years or so, up through about age 15 or 16, that she had been raped and molested

by a cousin,” who she identified as defendant. According to Guertin, DG told him

that the incidents occurred at her grandmother’s home, that her mother had

witnessed one incident of inappropriate touching, and that the other incidents were

not seen by anyone else. Guertin’s testimony also included recounting more

specific allegations made by DG during the course of the medical history, including

that defendant had done “a lot of rough fingering [and] touching” inside of DG’s

“private area,” that defendant had put “the plastic part of a wrench that had been

gnawed on or chewed on by a dog” inside her private area, that defendant had

engaged in “genital to genital contact” with DG when she was five years old, that

there was an incident in a pond at her grandparents’ home where DG “had to

manipulate [defendant’s] penis” under the water, that defendant used pornography

-13-

with DG “while he was molesting her,” and that defendant told DG that her family

would be ruined or destroyed if she told anybody. Guertin also testified that he

performed a physical examination of DG and that she had “two deep notches in her

hymen.” DG also informed Guertin that she was sexually active at the time of the

examination.

According to Guertin, the potential for injury to the hymen is “higher in the

pre-pubertal period” because the hymen is fragile and does not stretch at that stage

of a child’s development, and “the opening of the hymen in a pre-pubertal child, a

child up through about age 10 to 12,” is approximately 10.5 millimeters, which is

smaller than the size of the average finger, erect adult penis, or the presumed size

of a wrench handle. However, Guertin further explained that a sexually active

individual “can certainly have evidence of sexual trauma from normal or volitional

sexual activity[] [a]nd depending on how active they are, the incidence of that can

be pretty high.”

Guertin testified that in his opinion, DG:

gave a very clear history of being sexually molested over a period

of years, beginning at a very early age, age 5, by a person named

[defendant]. It included fondling, inserting the handle of a tool into

her vagina, which was both painful and caused bleeding. She also

integrated [sic] that there was at least some degree of penetration

with his penis. On one occasion she was very young, age five. And

she indicated that she was compelled to manipulate his penis as well.

She was warned that discovery of this would ruin her family. And,

also, he used pornography at least during some of these acts.

The physical examination showed two deep notches. One

almost a transection, which clearly could support—which clearly

supports an allegation of sexual abuse. As well, she was sexually

active. And that you cannot necessarily separate out the findings

that you see from abuse versus that volitional sexual activity. That’s

it.

Regarding KG’s medical history, Guertin testified as follows in response to

the prosecutor’s questions:

Q. What was the history of K[G]?

A. Oh. She knew that she had come to the office to get a

pelvic exam, because she had been molested. Actually she said a

pelvic exam for being molested as a child. So I asked her: Well,

were you or not. And her answer was: Yes. I asked if it happened

only once or more than once. She said more than one occasion. I

asked her how old was it when it started. She said five or six years

old. I asked her when the last sexual conduct was. She said

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probably 13 years old. I asked if anybody saw what happened to

her. She said no. I asked her where these things took place. She

actually listed a number of locations where she had been molested.

She said her own home, in her bedroom, in her grandparents’ house,

the upper floor of her great-grandmother’s house, and the swimming

pool at [defendant’s] parents’ home.

Q. And what else did she tell you?

A. She indicated that nothing happened that involved his

mouth. She indicated that the person who did this was [defendant],

who was her cousin. She indicated that he did molest her with his

hands, his fingers.

Q. Now, did she tell you anything else?

A. She said that he forcibly put a finger inside of her, and

then it hurt her. But she didn’t describe or remember bleeding

related to those episodes. I asked if her [sic] if he did anything with

his penis. Her answer was no. I asked her if he used anything else

to touch her improperly. Her answer was the handle of a screw

driver, an Allen wrench. And by that she meant the same thing. And

with a pencil. I asked her if that hurt her. She said yes. I asked her

if there was any bleeding with that, and she said yes. So she

indicated that there was an event using a tool that had caused her

both pain and bleeding. She didn’t indicate that anything involved

her anus or her own mouth or her own hands. And she didn’t

indicate that pornography was used with her.

I also asked her if he said anything to her.

Q. Okay.

A. And her answer was: He would tell me, this is normal.

And you shouldn’t be telling people because it’s private.

Q. And K[G] was also sexually active, correct?

A. Yes.

Additionally, Guertin testified that his physical examination revealed that KG had

evidence of injury to her hymen in the form of “a deep notch.”

Guertin testified that in his opinion, KG:

also gave a strong history of being sexually molested by [defendant].

This included digital penetration and instruments being used to

penetrate her vaginal area, which caused pain and bleeding. This

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included the handle of a screwdriver. [Defendant] would tell her

that the activity was normal, but that it needed to be kept private.

The physical examination showed deep notch at the 5:00 position of

the hymen, which confirms sexual trauma. Again, just as with her

sister, and a sexually active person, you can’t necessarily say it was

from one or the other.

The prosecutor questioned Guertin on direct examination to clarify his

opinion regarding whether the alleged victims’ injuries were caused by sexual

abuse or consensual sexual activity:

Q. Now, Doctor Guertin, you’ve testified and your

assessment clearly shows it’s difficult to pinpoint and say this is

either from sexual abuse or this is from consensual adult sexual

contact with these types of injuries, correct?

A. Correct.

Q. Is there—is one more likely than the other, can you even

say that?

A. What you can say is you’re more likely to suffer an injury

if there is penetration across the plane of the hymen during the pre-

pubertal period. But you still can get an injury. And especially if

there is really frequent intercourse from post-pubertal sex. But just

in terms of—in terms of the vulnerability of injury, if the sexual

contact in the pre-pubertal period includes penetration across the

plane of the hymen, then there is a higher probability from that in

the pre-pubertal period to cause injury than in the post-period.

Remember, the post-pubertal period, the opening of the

girl’s hymen is typically 12 to 25 millimeters. And they have a

distensible hymen. So penetration simply is better tolerated there,

and less likely to cause injury.

Q. All right. Thank you. So, finally, looking back on

D[G]’s medical history, and her examination, are there any

inconsistencies in her physical exam with the history that she gave

you?

A. No. No. Both kids actually have evidence of sexual

trauma. Both kids indicated not only painful, but bleeding sexual

encounters that were molestation, episodes of molestation. And

both kids also described being sexually active. So what we found is

consistent with either one.

Q. With both children, correct?

-16-

A. Sure.

During cross-examination, Guertin further clarified this point, stating that

you can clearly get these injuries with a painful sexual molestation

encounter that entailed bleeding, especially if it was in the pre-

pubertal period. You can also get these findings from consensual

sex, especially recurrent consensual sex.

Guertin testified that his conclusion that DG and KG had given “clear” and “strong”

histories, respectively, of sexual abuse were based only on what they reported and

the level of detail; he could not “tell you if they were telling [him] the truth.”

On redirect, the prosecutor questioned Guertin as follows:

Q. Now. Is it—when you have a history of sexual abuse in

this way, you indicated a clear history and a strong history, I think,

for each girl, then you find those particular injuries. And in K[G]’s

case she specifically says there is no accidental injury. What, if any,

conclusion do you draw from that?

A. The conclusion that you can—

Q. Or diagnosis, I should say.

A. There are a number of conclusions you can draw. And

they are in the assessment.[11] But the first one is a child gives a

history of recurrent forms of sexual molestation. She is describing

penetrated molestation on more than one occasion. She is not only

is describing discomfort, but describes bleeding associated with at

least one of these episodes.

______________________________________________________

11

Guertin explained that the “[a]ssessment mainly just means my

opinion.”

______________________________________________________

When you examine her, you find that she has two tears in her

hymen. Tears in the hymen are completely consistent with what she

has said about episodes of penetrative abuse. By the way, they are

also consistent with a history of recurrent volitional sexual

intercourse.

The second child gives you a history of penetrative events,

gives you a history of bleeding as well as pain. She has a single tear

on her hymen. That tear in her hymen is completely consistent with

what she has said.

-17-

She also admits to volitional sexual intercourse. So it could

be from that, too.

But in terms of making a diagnosis of sexual abuse, if you

have a clear or detailed history, I cannot tell you that it is the truth.

I’m telling you that it is clear or strong or detailed. And you have

physical findings that would be consistent with what is in that

history. I believe it is valid to conclude that the child was sexually

molested. In this case both of them.

Q. Again, that’s based on your—it’s consistent—with the

history is consistent with their findings?

A. Right. The diagnostic process is history. Sometimes

that’s all you have—

Q. Sure.

A. —physical exam and any laboratory studies that you

might do. And in this particular case the diagnostic process would

lead you to a conclusion, that led me to a conclusion, frankly, that

they have been molested.

Q. All right. And you weren’t there, you can’t know that

for sure. You’re just basing this on a procedure, correct?

A. Right. I can’t know that for sure. (emphasis added).

On recross-examination, defense counsel questioned Guertin further on this point

as follows:

Q. Part of the reason you don’t know it for sure is because

you don’t know whether what they told you was true?

A. You can never know if it’s the absolute truth, it’s only

partly true. So, yes, that’s the reason why you don’t absolutely

know.

Q. So part of your conclusion is based on an assumption that

what they’re telling you is accurate, then that would be sexual

molestation?

A. Right. When we talk to a patient we ask for history. We

try to find out about symptoms and signs. We take them at their

word. (Emphasis added).

Finally, Guertin also testified about memory-related issues for victims of

child sexual abuse. Guertin testified during his direct examination that if something

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happened to a person repeatedly over a prolonged period of time, it was difficult to

remember the specifics about a particular incident. Subsequently, in response to a

question from the jury regarding whether it was possible for memories to “blur

together or get mixed up” when molestation happens over time, Guertin testified

that:

the actual experiences are remembered, but not the details of each

individual event. I’m going to give you an example. Let’s say on

one event I get fondled in the pond, or I have to give somebody a

hand job in the pond. Other things might have happened that day,

but I remember that. Okay? Let’s say six times somebody put a

finger up my vagina. I can’t remember on what day they did that

and something else, necessarily. But I clearly remember having a

finger put up my vagina. I don’t know necessarily that it happened

10 times or five. But I clearly know that I got a finger put up my

vagina over this period of time.

So it’s the same with what kids remember if many things

have happened many times is broadly what happened to them. If

you were beaten as a child, you can clearly remember being beaten

and remember how horrible it was. But you can’t necessarily

remember which day or which beating was that horrible or which

beating is this is [sic], what ended up happening to you or that you

remember being beaten. It’s the same way with this.

So over time, let’s say many things happened to a person

many times. They remember what those physical things are that

happened to them. They may not be able to remember how many of

those things happened on any given day, how many of those things

were just isolated events.

That’s the answer to that question.

The Court: And Part 2 of [juror] number 8’s question is:

Given your response, is this blurring likely or common among

victims?

[Guertin]: It’s common among victims who have repeatedly

had things done to them, and/or more than one thing done to them.

They remember what the physical acts are that occurred that

happened to them. Some they may not tell you about because they

are ashamed of them. So kids commonly are ashamed to tell you

about being sodomized, and they think nothing about telling you

about vaginal penetration. Just all depends on the kid.

Even though there is blurring about each date, each of the

event’s cycle, if you will, there is not blurring overall about the

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things that happened to them. Now what they choose to tell you or

not, that’s up to the kid.

On recross-examination, defense counsel questioned Guertin as follows:

Q. Just one more question with regard to a jury question.

Other than the information that D[G] supplied you with regard to a

lot of rough fingering, the other acts of being—claims of being

penetrated with a penis, having been subjected to having to perform

a hand job, and the incident where a tool was used, those were only

one incident per each of those categories that she described?

A. Right. She remembers those incidents.

Q. There is no claim that there are repeated instances of

those that would blur the details?

A. There is the claim by the child that forms of molestation

began at age five or six, and ended at age 15 or 16. I think that

provides a significant opportunity to blur the details. But it may not.

Q. Right. But with regard to the specific acts that I

described, the penetration with a penis, the allegation about a hand

job, the allegation about a tool, there was only one incident that was

claimed by that child of each of those?

A. Right. What she is describing, there are events that she

clearly remembers. (Emphasis added).

Defense counsel did not move to strike any of these answers given by Guertin,

despite the fact that neither was responsive to defense counsel’s questions.

As an initial matter in analyzing defense counsel’s performance with respect

to Guertin’s testimony, his testimony regarding the alleged victims’ statements was

inadmissible hearsay. “Hearsay evidence is not admissible at trial unless within an

established exception.” People v Meeboer, 439 Mich 310, 322; 484 NW2d 621

(1992), reh den sub nom People v Conn, 439 Mich 1242 (1992); see also MRE 802.

Under the hearsay exception in MRE 803(4), “[s]tatements made for the purpose

of medical treatment are admissible . . . if they were reasonably necessary for

diagnosis and treatment and if the declarant had a self-interested motivation to be

truthful in order to receive proper medical care.” People v Mahone, 294 Mich App

208, 214-215; 816 NW2d 436 (2011), lv den 491 Mich 908 (2012). However, in

Shaw, Judge Shapiro, writing for the majority, concluded that MRE 803(4) is not

applicable when the examination “did not occur until seven years after the last

alleged instance of abuse, thereby minimizing the likelihood that the complainant

required treatment”; the complainant did not seek out the examining doctor but was

instead referred by the police “in conjunction with the police investigation into the

allegations of abuse by defendant”; and the complainant had seen a different

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physician, who did not testify at trial, for gynecological care during the seven year

interval. 315 Mich App at 675. A situation with such a long period of time between

the alleged sexual assault and the examination differs markedly from a situation

where an examination is conducted within a relatively short time after the alleged

sexual assault occurred. See, e.g., People v Garland, 286 Mich App 1, 9; 777

NW2d 732 (2009) (concluding that the “victim’s statements to the nurse were

reasonably necessary for her treatment and diagnosis” where the victim went to the

hospital for medical care and was examined on the same day as the sexual assault).

In this case, there was also a period of approximately five years or more

between the last alleged incident of sexual abuse and Guertin’s examinations of DG

and KG. Moreover, Harrison testified that she referred DG and KG to Guertin after

their forensic interviews, and DG testified that she had previously seen

gynecologists and had disclosed the sexual abuse to someone at Planned

Parenthood at some point before her examination with Guertin occurred. Although

Guertin testified that he examined DG and KG for purposes of medical treatment

that does not mean that the examinations were actually for medical treatment for

purposes of MRE 803(4); an expert witness cannot testify to a legal conclusion.

People v Drossart, 99 Mich App 66, 75; 297 NW2d 863 (1980) (“[I]t is important

that the expert witness not be permitted to testify about the requirements of law

which apply to the particular facts in the case or to phrase his opinion in terms of a

legal conclusion.”). Guertin’s examination was not reasonably necessary for

medical treatment but was instead aimed at furthering the investigation. Therefore,

Guertin’s testimony regarding the alleged victims’ statements was inadmissible

hearsay because it did not fall within the hearsay exception of MRE 803(4). Shaw,

315 Mich App at 675.

Moreover, Guertin also impermissibly vouched for the credibility of DG

and KG through his testimony. In stating his expert opinion, Guertin testified that

DG “gave a very clear history of being sexually molested over a period of years,

beginning at a very early age, age 5, by a person named [defendant].” Guertin then

immediately continued by recounting several of DG’s specific allegations against

defendant. Guertin also testified that in his expert opinion, KG “gave a strong

history of being sexually molested by [defendant]” and then immediately continued

by recounting specific allegations made by KG against defendant. Furthermore,

although Guertin acknowledged that he could not actually tell if DG and KG were

telling the truth, he also testified that his conclusion that DG and KG had given

“clear” and “strong” histories, respectively, of sexual abuse were based only on

what they reported and the level of detail in their accounts. Guertin further opined

that when these histories were considered along with his findings of physical injury

that was equally consistent with penetrative abuse as well as consensual sexual

intercourse, he concluded that it was “valid” to conclude that DG and KG were

“sexually molested.” Guertin also explained memory-related issues and then

affirmatively stated that the incidents described by DG were what she remembered.

By repeating the alleged victims’ statements in the context of stating his

expert opinion, Guertin went beyond merely recounting their medical history and

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instead imbued the allegations with the authoritative weight of a final conclusion

by an expert. Essentially, Guertin testified that he found the alleged victims’ stories

credible. When understood in this light, Guertin’s other testimony that he could

not be certain that DG and KG had told him the truth seems somewhat

disingenuous. As our Supreme Court has explained with respect to expert

testimony in child sexual abuse cases,

Given the nature of the offense and the terrible consequences of a

miscalculation-the consequences when an individual, on many

occasions a family member, is falsely accused of one of society’s

most heinous offenses, or, conversely, when one who commits such

a crime would go unpunished and a possible reoccurrence of the act

would go unprevented-appropriate safeguards are necessary. To a

jury recognizing the awesome dilemma of whom to believe, an

expert will often represent the only seemingly objective source,

offering it a much sought-after hook on which to hang its hat.

[Peterson, 450 Mich at 374 (emphasis in original; quotation marks

and citation omitted).]

Furthermore, Guertin’s opinion that it was valid to conclude that DG and

KG had been sexually molested constituted impermissible vouching because that

conclusion was not supported by objective medical evidence. Our Supreme Court

has stated that even in the sexual assault context, it is “well-established that expert

opinion testimony will not be excluded simply because it concerns the ultimate

issue.” People v Smith, 425 Mich 98, 101,106; 387 NW2d 814 (1986), citing MRE

704.12 However, the examining physician’s opinion must be based on objective

evidence “within the realm of his medical capabilities or expertise,” or else it is

merely an improper opinion on the complainant’s veracity. Id. at 112-115 (holding

that a doctor’s opinion that a complainant was sexually assaulted should not have

been admitted where it was based on the complainant’s emotional state and self-

reported history rather than on any “findings within the realm of his medical

capabilities or expertise as an obstetrician/gynecologist” because this expert

opinion had the effect of being an “assessment of the victim’s credibility”).

__________________________________________________________________

12

MRE 704 provides: “Testimony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an ultimate issue to be decided

by the trier of fact.”

__________________________________________________________________

In People v McGillen #2, 392 Mich 278, 284-285; 220 NW2d 689 (1974),

our Supreme Court held that a doctor’s opinion that penetration had occurred was

improperly admitted where “the prosecutrix admit[ed] that a second rape occurred

subsequent to the charged offense, any testimony the doctor may give is irrelevant

and immaterial especially in view of the length of time that intervened between the

alleged act and the physical examination.” That case involved defendant’s trial for

the first alleged incident of sexual assault, but the doctor had only conducted a

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physical examination of prosecutrix approximately two weeks after that incident;

during that two-week interval, the prosecutrix was sexually assaulted a second time.

Id. at 281-282. In reaching its holding, our Supreme Court reasoned as follows:

By accepting as fact the prosecutrix’s factual history and

then testifying that in his expert opinion the medical examination

supported and was consistent with that history, he is lending his

medical opinion to support a claim made by the prosecutrix that is

beyond the realm of his medical capabilities and expertise. The

doctor is not a qualified expert on the question of whether or not the

prosecutrix was raped by the defendant on the alleged date. [Id. at

285.]

In this case, Guertin testified that his physical examination revealed injuries

to the hymens of DG and KG that he opined were equally consistent with being

caused by childhood sexual abuse or consensual sexual activity. The medical

histories of both DG and KG indicated that each girl was sexually active at the time

of the examinations and that each girl alleged instances of childhood sexual abuse.

To the extent that Guertin opined that the injuries could have been caused by either

the alleged abuse or consensual sexual activity that was part of DG’s and KG’s

medical histories, this opinion was supported by objective medical evidence in the

form of his physical findings and medical expertise. Guertin also adequately

explained the justification for his conclusion that sexual abuse during the pre-

pubertal stage was a “more likely” cause, based on his medical knowledge of

female anatomy and development. However, Guertin had no objective medical

basis from which to conclude that the “valid” conclusion was that DG and KG had

been “sexually molested.” By choosing one cause over the other without an

objective medical reason, Guertin went beyond the scope of what [] his medical

expertise actually allowed and ventured improperly into the realm of inadmissible

lay opinion about the credibility of the alleged victims allegations against

defendant. Id. This was also improper vouching. Musser, 494 Mich at 349;

Peterson, 450 Mich at 352; Buckey, 424 Mich at 17. [Smith (BORRELLO, J.,

dissenting), unpub op at 18-27 (alterations in original).]

I would only add to the above analysis that Guertin’s testimony was improper under

Harbison for the same reasons stated above. See Thorpe, 504 Mich at 235 (“[E]xamining

physicians cannot testify that a complainant has been sexually assaulted or has been diagnosed

with sexual abuse without physical evidence that corroborates the complainant’s account of sexual

assault or abuse because such testimony vouches for the complainant’s veracity and improperly

interferes with the role of the jury.”). The improprieties in Guertin’s testimony closely parallel

those of the pediatrician’s testimony that was found to be improper in Harbison. Id. at 244-245,

260-266.

Hence, because Guertin’s improper vouching testimony was contrary to the holding in

Harbison, and for “the same reasons that defense counsel’s performance was deficient with respect

to his failure to challenge Harrison’s vouching testimony, defense counsel’s performance was also

below an objective standard of reasonableness with respect to his failure to challenge Guertin’s

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vouching testimony. Douglas, 496 Mich at 585-586. Like police officers, expert witnesses are

prone to having their statements given a greater degree of weight by juries. Peterson, 450 Mich

at 374.” Smith (BORRELLO, J., dissenting), unpub op at 27.

V. PREJUDICE

Turning next to the prejudice prong under Strickland, defendant must show

that there is a reasonable probability that but for counsel’s deficient performance,

the outcome of the trial would have been different. 466 US at 694. A reasonable

probability is one that is “sufficient to undermine confidence in the outcome,” and

this standard does not require defendant to show that the outcome was “more likely

than not” altered. Id. at 693, 694. “The result of a proceeding can be rendered

unreliable, and hence the proceeding itself unfair, even if the errors of counsel

cannot be shown by a preponderance of the evidence to have determined the

outcome.” Id. at 694.

The instant case admittedly presents a closer question of prejudice than

Douglas or Shaw. In both of those cases, there were no third-party witnesses to the

alleged abuse and little or no physical evidence. Douglas, 496 Mich at 567; Shaw,

315 Mich App at 677. In this case, there were no eyewitnesses to any of the

incidents involving penetration of DG or KG, but there was testimony that

defendant had been seen on multiple occasions grabbing and poking DG and KG.

Her mother also witnessed the incident where defendant grabbed DG’s chest on the

couch.

However, even in the context of CSC-II, which is based on “sexual contact,”

the prosecution must still prove that the intentional touching could “reasonably be

construed as being for the purpose of sexual arousal or gratification, done for a

sexual purpose, or in a sexual manner for” revenge, inflicting humiliation, or out of

anger. MCL 750.520a(q); MCL 750.520c(1). The jurors in this case clearly did

not believe all of the allegations that were made: they acquitted defendant of one

charge and could reach a unanimous verdict on another charge. Considering the

heightened weight that juries tend to give police officers and expert witnesses,

Peterson, 450 Mich at 374; Musser, 494 Mich at 363, and the amount of vouching

and hearsay evidenced admitted without objection, it is reasonably likely that that

the improper vouching by Harrison and Guertin could have convinced the jury that

at least some of the allegations were credible and, with respect to the CSC-II

conviction, that defendant touched DG for a sexual purpose as opposed to some

other purpose.

Such a conclusion is not mere conjecture. See Strickland, 466 US at 693

(“It is not enough for the defendant to show that the errors had some conceivable

effect on the outcome of the proceeding.”). Both Harrison and Guertin were the

very witnesses our Supreme Court alluded to in Peterson when they held: “To a

jury recognizing the awesome dilemma of whom to believe, an expert will often

represent the only seemingly objective source, offering it a much sought-after hook

on which to hang its hat.” Peterson, 450 Mich at 374. While it is important not to

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minimize the significance of improperly touching another person in a sexual

manner, it is also worth noting that the instant case also involved a substantial

amount of “other-acts” evidence related to incidents that defendant would have

allegedly committed when he was a minor as young as 12 years old. These other

acts were put into evidence in order to convince the jury to convict defendant of

criminal offenses that he allegedly committed as an adult. Presuming that there

was no error in admitting all of this other-acts evidence,13 it would still be

reasonable for jurors to potentially ascribe a different amount of weight or different

purposes to the acts of a 12 year old then they might to the acts of an adult, unless

there was evidence suggesting that they should do otherwise. Accordingly, the

wrongful admission of vouching testimony given by a police detective and a

medical expert, who opined that DG and KG had been “sexually molested,” could

have reasonably made a difference in how the jury perceived the alleged victims’

claims and the intent of any acts they believed defendant committed. See Peterson,

450 Mich at 374; Musser, 494 Mich at 363; see also Douglas, 496 Mich at 580

(noting that “[w]hile credibility contests are not uncommon in criminal sexual

conduct cases, the wrongful admission of corroborating testimony on either side

could tip the scales and result in harmful error”) (quotation marks and citation

omitted).

__________________________________________________________________

13

See, e.g., In re Kerr, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket

No. 335000); slip op at 2-4 (holding that MCL 768.27a, which permits the

prosecution in a criminal case involving a listed offense against a minor to introduce

evidence that the defendant committed another listed offense against a minor, also

applies in juvenile-delinquency trials but is still subject to the specific application

of MRE 403 set forth in People v Watkins, 491 Mich 450; 818 NW2d 296 (2012)).

“Listed offense” means “that term as defined in section 2 of the sex offenders

registration act . . . .” MCL 768.27a(2)(a).

__________________________________________________________________

* * *

. . . I find the decisions in Douglas and Shaw applicable. The instant case

involved a situation where the credibility of the alleged victims was of central

importance, and seemingly objective witnesses with the authoritative positions of

police detective and medical doctor testified in a manner that vouched for the

believability of the alleged victims’ stories. For the above reasons, there is a

reasonable probability that if defense counsel had objected to this vouching

testimony and prevented it from being admitted, the outcome of defendant’s trial

would have been different and the jury would not have convicted him as it did. The

failure by trial counsel to object to the hearsay statements provided by Harrison and

Guertin allowed those statements to be considered by the jury. The failure of trial

counsel to allow them to present their testimony, again without objection, in a

manner best described as human lie detectors, undermined the credibility of the

verdict and denied defendant a fair trial. See Peterson, 450 Mich at 374; Douglas,

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496 Mich at 586-588; Shaw, 315 Mich App at 677-678. [Smith (Borrello, J.,

dissenting), unpub op at 27-30 (alterations in original).]

Thus, as I stated previously, I would reverse defendant’s convictions and remand this

matter to the trial court for a new trial.

/s/ Stephen L. Borrello

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