Opinion
354092
01-13-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. PAUL RICHARD MATTILA, Defendant-Appellant.
UNPUBLISHED
Marquette Circuit Court LC No. 18-057512-FC
Before: Boonstra, P.J., and Cavanagh and Riordan, JJ.
Per Curiam.
Defendant appeals as of right his jury trial convictions of six counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), four counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a), and four counts of accosting a child for immoral purposes, MCL 750.145a. The trial court sentenced defendant to concurrent terms of 25 to 50 years in prison for each CSC-I conviction, 71 months to 15 years in prison for each CSC-II conviction, and 567 days to 4 years in prison for each conviction of accosting a child for immoral purposes conviction. We affirm.
I. BACKGROUND
This case involves defendant's sexual abuse of the victim beginning when she was four years old. Defendant is the victim's great uncle, and he and his wife were the victim's guardians from the time she was four years old until she was 11 years old. The victim testified at trial regarding numerous incidents of sexual abuse by defendant. She testified that defendant touched her vagina and breasts, and he also made her touch and kiss his penis. Additionally, he took pictures of her vagina, put his fingers in her vagina, and put his penis in her mouth. The victim first disclosed the abuse in 2018, when she was 13 years old. At that time, she was living with her other great aunt and uncle (Mona and Calvin) who had become her guardians. Mona and Calvin called and confronted defendant about the allegations, and defendant made several admissions during that phone call. Thereafter, Mona and Calvin reported the abuse to the police, and the police set up a recorded call between Calvin and defendant. During the recorded call, defendant again made numerous admissions. Defendant was arrested in Florida and interviewed by a detective there. During that interview, defendant made admissions for a third time. The recordings of both Calvin's call and the police interview were played for the jury at trial. The defense attempted to establish that defendant's confessions were false, but the jury convicted defendant as charged.
II. OPINION TESTIMONY
Defendant first argues that the trial court erred by permitting Detective Anthony Blachowski to offer an opinion regarding the veracity of defendant's confession. We disagree.
"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 N.W.2d 67 (2001). Defendant objected to the prosecutor's question whether alleged red flags caused "concern at all for the culpability that the Defendant is admitting to?" on the ground that it was a question for the jury to decide. The trial court overruled the objection. Therefore, this issue is preserved. However, defendant did not object to the prosecutor's earlier question regarding whether anything about the way defendant reacted would cause Detective Blachowski to believe that he was trying to falsely confess. Therefore, with regard to this question, the issue is unpreserved.
"A trial court's decision to admit evidence will not be disturbed absent an abuse of discretion." People v Denson, 500 Mich. 385, 396; 902 N.W.2d 306 (2017). "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes." People v Bailey, 330 Mich.App. 41, 50; 944 N.W.2d 370 (2019) (quotation marks and citation omitted). "[W]hether a rule or statute precludes admission of evidence is a preliminary question of law that this Court reviews de novo." Denson, 500 Mich. at 396. "A trial court necessarily abuses its discretion when it makes an error of law." People v Duncan, 494 Mich. 713, 723; 835 N.W.2d 399 (2013). "A decision on a close evidentiary question ordinarily cannot be an abuse of discretion." People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019).
"If the court's evidentiary error is nonconstitutional and preserved, then it is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative—i.e., that it undermined the reliability of the verdict." People v Douglas, 496 Mich. 557, 565-566; 852 N.W.2d 587 (2014) (quotation marks and citation omitted). In making this determination, it is necessary to consider "the nature of the error in light of the weight and strength of the untainted evidence." Id. at 579 (quotation marks and citation omitted).
"Unpreserved claims of evidentiary error are reviewed for plain error affecting the defendant's substantial rights." People v Brown, 326 Mich.App. 185, 195; 926 N.W.2d 879 (2018), amended 328 Mich.App. 801 (2019) (quotation marks and citation omitted). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). The defendant bears the burden of showing prejudice, "i.e., that the error affected the outcome of the lower court proceedings." Id. "Reversal is warranted only when the plain, unpreserved error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence." People v Jones, 468 Mich. 345, 355; 662 N.W.2d 376 (2003).
This opinion was originally issued on October 23, 2018, but was amended to reflect an issuance date of June 18, 2019.
During cross-examination, defense counsel asked Detective Blachowski about his training and experience. Defense counsel specifically asked Detective Blachowski about the Reid technique for interrogations and specific interviewing techniques, including the holding back of facts to see whether a suspect is telling the truth. Defense counsel asked, "Essentially what you're trying to do is you're trying to test the suspect's -- their statement's reliability; right?" Detective Blachowski answered, "Right, to determine if they're telling the truth . . . or they're not telling the truth." Defense counsel introduced the concept of "red flags," which arise when a suspect may not be being truthful during an interview. Defense counsel also questioned Detective Blachowski regarding "contamination," which occurs when a suspect learns information from a source other than their own personal knowledge. Defense counsel then went through defendant's interview and put red flags next to each time defendant said "I don't know," "I guess," "maybe," or "probably." He also identified "signs of contamination," in which defendant referred to an outside source, such as what the victim had said. Defense counsel additionally questioned Detective Blachowski regarding whether the Reid technique of interviewing caused false confessions.
On redirect examination, the prosecutor asked Detective Blachowski if he used the Reid technique on defendant and he said no. The prosecutor also asked whether, in all the interviews Detective Blachowski had conducted, suspects had ever immediately denied the allegations, and Detective Blachowski said yes. The prosecutor asked if suspects had ever reacted how defendant reacted, and Detective Blachowski again said yes. The prosecutor then asked, "Is there anything unusual about the way this Defendant reacted that would cause you, in your training and experience, to think, 'You know what, I--I think he's just trying to falsely confess.'" Detective Blachowski said no. The prosecutor asked whether the red flags identified by defense counsel caused him "concern at all for the culpability that the Defendant is admitting to?" Defense counsel objected that this was "a question for the jury to decide." The trial court overruled the objection. Detective Blachowski responded, "No, it didn't cause any concern to me." He explained that people might say "maybe" or "I don't know" because the incidents occurred many years ago and they do not remember the exact number of times the incidents occurred, and suspects may also minimize their actions.
"[I]t is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial." People v Musser, 494 Mich. 337, 349; 835 N.W.2d 319 (2013). In People v Dobek, 274 Mich.App. 58; 732 N.W.2d 546 (2007), the defendant argued that the prosecutor improperly elicited testimony from a detective to bolster the victim's testimony. Id. at 70. This Court concluded that the issue was both an evidentiary issue and an issue of prosecutorial misconduct. Id. This Court then explained that, only after defense counsel had delved into issues of "deception" during cross-examination, did the detective testify on redirect that he had no concerns about lying in that case. Id. at 71. This Court ultimately stated that it "cannot conclude that the prosecutor proceeded with the questioning and elicited the testimony in bad faith, especially considering that defendant opened the door on the matter." Id. See also People v Allen, 201 Mich.App. 98, 103; 505 N.W.2d 869 (1993) (noting that when a defendant raises an issue, he opens the door to a full development of that issue).
In this case, while the prosecutor's questions may have been improper on their face, they were not improper in light of defense counsel's cross-examination of Detective Blachowski. On cross-examination, defense counsel asked numerous questions that suggested that defendant's confession was false. The prosecutor's questions were responsive to that issue and explained why Detective Blachowski was not in fact concerned by the alleged "red flags" identified by defense counsel. Therefore, defendant opened the door on this issue and it cannot be said that the prosecutor elicited the testimony in bad faith.
Even if improper, neither statement requires reversal. With regard to the preserved issue, it is not more probable than not that the testimony was outcome-determinative. Similarly, with regard to the unpreserved issue, defendant has not established that the alleged error affected the outcome of the lower court proceedings. The jury observed defendant's interview at trial and could determine for itself whether defendant's confession was or was not false. Further, Detective Blachowski only offered an opinion whether he believed defendant's confession during his police interview was false. This, however, was defendant's third confession. Defendant had admitted many of the allegations and details in two earlier confessions. Detective Blachowski provided no opinion regarding defendant's first two confessions in which defendant made similar admissions that were consistent with the victim's detailed testimony regarding the abuse. Therefore, reversal is not warranted.
III. EXPERT TESTIMONY
Defendant next argues that the trial court erred by allowing Detective Blachowski to provide inadmissible expert opinion testimony. We disagree.
Defendant did not object to Detective Blachowski's testimony on the ground that it was an inadmissible expert opinion. Therefore, this issue is unpreserved. See Aldrich, 246 Mich.App. at 113. As stated above, the plain-error standard of review applies to unpreserved claims of evidentiary error. Brown, 326 Mich.App. at 195.
MRE 702 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.
Our Supreme Court has held that expert testimony regarding false confessions "is admissible under MRE 702 when it meets the other requirements of MRE 702." People v Kowalski, 492 Mich. 106, 129; 821 N.W.2d 14 (2012). The Court cautioned,
however, that like other expert testimony explaining counterintuitive behavior, the admissibility of expert testimony pertaining to false confessions is not without limitations. An expert explaining the situational or psychological factors that might lead to a false confession may not comment on the . . . truthfulness of a defendant's confession, vouch for the veracity of a defendant recanting a confession, or give an opinion as to whether defendant was telling the truth when he made the statements to the police. [Id. (quotation marks and citations omitted).]
Under Kowalski, even if Detective Blachowski had been qualified to provide expert testimony regarding false confessions, the admission of his opinion regarding the veracity of defendant's confession was improper. Nonetheless, as discussed earlier, defendant raised the issue regarding false confessions and, thus, opened the door on this subject. See Allen, 201 Mich.App. at 103. Defense counsel first questioned Detective Blachowski regarding false confessions. Defense counsel also raised the issue whether defendant's confession was credible by asking Detective Blachowski about alleged "red flags" and "contamination." In light of this, the admission of Detective Blachowski's opinion plainly was not erroneous. Even if plain error occurred, the admission of the testimony did not affect defendant's substantial rights. It did not affect the outcome of the trial given the victim's detailed testimony about the abuse and defendant's multiple confessions, which largely corroborated the victim's testimony.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that his counsel was ineffective by failing to object to Detective Blachowski's expert opinion testimony. We disagree.
Because defendant failed to raise this issue in a motion for a new trial or request for an evidentiary hearing, we review this issue for errors apparent on the record. People v Hoang, 328 Mich.App. 45, 63; 935 N.W.2d 396 (2019); People v Heft, 299 Mich.App. 69, 80; 829 N.W.2d 266 (2012). "To demonstrate ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient, and that there is a reasonable probability that but for that deficient performance, the result of the trial would have been different." Hoang, 328 Mich.App. at 64 (quotation marks and citation omitted). "Counsel's performance is strongly presumed to have been born from a sound trial strategy. This Court should not substitute our judgment for that of counsel or use the benefit of hindsight when assessing counsel's competence." People v White, 331 Mich.App. 144, 149; 951 N.W.2d 106 (2020) (quotation marks and citations omitted). "Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Savage, 327 Mich.App. 604, 617; 935 N.W.2d 69 (2019) (quotation marks and citation omitted).
In this case, because defendant opened the door regarding false confessions, his counsel was not ineffective by failing to object to Detective Blachowski's testimony on the ground that it was improper expert opinion testimony. Such an objection would have been futile given that the testimony was admissible in light of defense counsel's questioning during cross-examination. Furthermore, defense counsel's decision not to object on this ground is presumed to be sound trial strategy. Given that defense counsel questioned Detective Blachowski regarding his training and experience and false confessions, he may have reasonably believed that it would be damaging in the eyes of the jury to then object to the prosecutor's follow-up questions on the ground that Detective Blachowski was not qualified to give an expert opinion or could not provide any opinion on the confession. As discussed earlier, defense counsel objected to the testimony as improper opinion testimony, without including any objection that suggested either that Detective Blachowski was not qualified as an expert or that he was an expert, but could not give his opinion. Defendant has not overcome the presumption of sound trial strategy.
There also is no reasonable probability that the admission of the testimony affected the outcome of the trial. Again, Detective Blachowski's testimony only pertained to defendant's third confession. Defendant also confessed during the two phone calls, one of which was recorded, and his statements corroborated many of the details provided by the victim. Given the victim's detailed testimony regarding the abuse and defendant's multiple confessions, there is no reasonable probability that defense counsel's failure to object to Detective Blachowski's testimony on this ground affected the outcome of the trial.
V. FAILURE TO DISCLOSE EVIDENCE
Next, defendant argues that the trial court erred by excluding evidence that the victim previously had the opportunity to disclose the abuse. While the exclusion of the evidence was erroneous, the error was harmless.
Again, this Court reviews preserved evidentiary issues for an abuse of discretion, while preliminary questions of law are reviewed de novo. Denson, 500 Mich. at 396.
On cross-examination of the victim, defense counsel asked if the victim had told defendant's wife about the abuse and the victim said yes, but she had not told anyone else. Defense counsel then asked, "during this time you--you're seeing somebody, right, when you're--2010,' 11,' 12,' 13. Do you know a lady by the name of--Do you remember a lady by the name of Fran Waters?" The prosecutor objected on the ground of relevancy. Defense counsel argued that the evidence was relevant because Waters was the victim's therapist and the victim did not report the abuse to the therapist. The trial court sustained the prosecutor's objection. Defense counsel then asked if the victim reported the abuse to anyone else, such as her teachers or the lawyer in the guardianship case, and she said no. Subsequently, defense counsel asked Detective Jason Hart whether the victim was seeing a therapist. The prosecutor objected that it was not relevant and defense counsel argued that it was relevant because therapists are mandatory reporters. The prosecutor argued that the therapist would not be able to speak about confidential communications and that whether the victim was seeing a therapist was irrelevant; defense counsel agreed to move on.
Under MRE 402, "[a]ll relevant evidence is admissible," while "[e]vidence which is not relevant is not admissible." Evidence is relevant if it has "any 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. "Evidence is admissible if it is helpful in throwing light on any material point. [T]he relationship of the elements of the charge, the theories of admissibility, and the defenses asserted governs what is relevant and material." People v Powell, 303 Mich.App. 271, 277; 842 N.W.2d 538 (2013) (quotation marks and citations omitted).
We agree with defendant that whether the victim disclosed the abuse to her therapist was relevant to a material issue at trial. The truth of the victim's allegations was at issue. The victim's failure to tell someone else, particularly her therapist, that the abuse occurred had a tendency to make it less probable that her allegations were true because, if the abuse had occurred, she could have told her therapist. To the extent that the trial court ruled that the evidence was not relevant, this was error.
The trial court did not address the prosecutor's argument that the victim's communications with her therapist were confidential. Defendant, however, was not seeking to introduce any specific communications between the victim and her therapist; he merely sought to elicit testimony that the victim had not disclosed the abuse.
Nonetheless, it does not affirmatively appear that, more probably than not, the error was outcome-determinative, particularly in light of the other evidence presented at trial. Douglas, 496 Mich. at 565-566, 579. First, the error did not affect the outcome because the excluded evidence was cumulative. The victim testified that she never told anyone, except defendant's wife and later defendant's daughter, about the abuse. She specifically testified that she did not tell her teachers or the lawyer involved in the guardianship case. Defendant argues that the excluded testimony regarding the victim's failure to tell her therapist would have been "more damaging" to her credibility. However, by eliciting testimony that the victim did not tell her teachers or lawyer, the defense was able to present evidence that the victim failed to tell trusted adult figures in her life about the abuse. Second, the exclusion of this evidence did not affect the outcome of the trial in light of the victim's detailed testimony and defendant's confessions, which largely corroborated the victim's allegations.
VI. PROSECUTORIAL ERROR
Defendant argues that the prosecutor committed error by arguing that defense counsel was trying to mislead the jury. We disagree.
Although many of our previous decisions referred to "prosecutorial misconduct," "a more accurate label for most claims of prosecutorial misconduct is 'prosecutorial error,' while only the most extreme cases rise to the level of 'prosecutorial misconduct.'" People v Caddell, 332 Mich.App. 27, 71 n 10; 955 N.W.2d 488 (2020).
"A defendant must contemporaneously object and request a curative instruction to preserve an issue of misconduct for appellate review." People v Solloway, 316 Mich.App. 174, 201; 891 N.W.2d 255 (2016) (quotation marks and citation omitted). Defense counsel failed to object during the prosecutor's closing rebuttal arguments. Therefore, this issue is unpreserved. "Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting substantial rights." Brown, 294 Mich.App. at 382.
"[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial." Dobek, 274 Mich.App. at 63. "Issues of prosecutorial misconduct are decided case by case, and this Court must examine the entire record and evaluate a prosecutor's remarks in context." Id. at 64. "A prosecutor's comments are to be evaluated in light of defense arguments and the relationship the comments bear to the evidence admitted at trial. Otherwise improper prosecutorial conduct or remarks might not require reversal if they address issues raised by defense counsel." Id. at 64 (citations omitted). This Court "cannot find error requiring reversal where a curative instruction could have alleviated any prejudicial effect. Curative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements, and jurors are presumed to follow their instructions." People v Unger, 278 Mich.App. 210, 235; 749 N.W.2d 272 (2008) (quotation marks and citations omitted). "Prosecutors have discretion on how to argue the facts and reasonable inferences arising therefrom, and are not limited to presenting their arguments in the blandest terms possible." People v Meissner, 294 Mich.App. 438, 456; 812 N.W.2d 37 (2011).
It is improper for a prosecutor to make arguments suggesting that defense counsel is distracting the jury from the truth or deterring the jury from seeing the real issues. People v Schrauben, 314 Mich.App. 181, 192-193; 886 N.W.2d 173 (2016). This Court has concluded that statements may not be improper, however, if they are made in the prosecutor's rebuttal and in direct response to defense counsel's arguments. See Unger, 278 Mich.App. at 238. Moreover, in both Schrauben and Unger, this Court concluded that any prejudicial effect created by such statements could have been alleviated by a timely objection and curative instruction. Schrauben, 314 Mich.App. at 193; Unger, 278 Mich.App. at 238.
Defendant argues that the prosecutor committed error by (1) telling the jury not to "fall for the snake oil salesman at the other table"; (2) accusing defense counsel of intentionally tying to mislead the jury by using words like "trick," "shovel," and "bite"; and (3) improperly accusing defense counsel of trying to "hide" defendant's confessions and telling the jury not to "fall for it." While improper on their face, these statements were made in the prosecutor's rebuttal argument, and were in direct response to defense counsel's arguments.
The prosecutor's "snake oil salesman" comment was made specifically in addressing defense counsel's argument that if the abuse had occurred, why would the victim willingly go to see defendant. The prosecutor argued that while that argument could be made regarding an adult victim, it did not apply to a child. The comment also came directly after the prosecutor's argument that defense counsel was making baseless accusations against him personally. In particular, defense counsel stated that Mona and the prosecutor were Facebook friends, which was not brought up during her direct examination, and defense counsel argued, "Maybe it is just Facebook friends. Maybe it isn't." Defense counsel further argued that the victim only said that the last incident had occurred in the hot tub after she met with the prosecutor, and defense counsel argued that victim admitted that the prosecutor was telling her what to say. Thus, while use of the term "snake oil salesman" was no doubt facially improper, it was used in the prosecutor's rebuttal argument and in direct response to defense counsel's arguments, which also included personal attacks on the prosecutor.
With regard to defendant's argument that the prosecutor accused defense counsel of trying to trick the jury, the prosecutor's arguments were in direct response to defense counsel's reasonable-doubt arguments. In particular, defense counsel argued that if the jury believed that the victim was wrong about where the incident occurred, then that was a small reasonable doubt that entitled defendant to a not guilty verdict. The prosecutor specifically told the jury not to fall for the argument about reasonable doubt and that the location of the abuse was not an element of the offense. He argued, "[Defense counsel] is shoveling reasonable doubt at you and hoping that you'll bite." Again, given that the prosecutor's argument was made in rebuttal and in direct response to defense counsel's argument, it was reasonable and not improper.
Finally, defendant challenges the prosecutor's argument that defense counsel had discussed the red flags, but the only flag that mattered was defendant's flag of surrender. The prosecutor argued that defendant admitted the allegations until defense counsel came along and said," 'Let's hide that one.' Don't fall for it." On its face, the prosecutor's argument did suggest that defense counsel was being deceptive and trying to trick the jury. However, the argument was directly responsive to defense counsel's "red flag" argument and attempts to minimize defendant's confessions. Given that the prosecutor's arguments were made during rebuttal and in direct response to defense counsel's arguments, the prosecutor's arguments were not improper.
In any event, even if the challenged arguments were improper, the trial court instructed the jury that the lawyer's arguments are not evidence and jurors are presumed to follow their instructions. Schrauben, 314 Mich.App. at 193. Further, because a timely objection and curative instruction could have alleviated any prejudicial effect of the prosecutor's comments, reversal is not warranted. Id.; Unger, 278 Mich.App. at 238.
VII. CUMULATIVE ERROR
Finally, defendant contends that the cumulative effect of the errors in this case warrants a new trial. We disagree.
Defendant did not raise a cumulative-error objection below; therefore, this issue is unpreserved. See People v Danto, 294 Mich.App. 596, 605; 822 N.W.2d 600 (2011). This Court reviews "this issue to determine if the combination of alleged errors denied defendant a fair trial." Dobek, 274 Mich.App. at 106. Unpreserved issues are reviewed for plain error affecting a defendant's substantial rights. Brown, 326 Mich.App. at 192.
"The cumulative effect of several errors can constitute sufficient prejudice to warrant reversal even when any one of the errors alone would not merit reversal, but the cumulative effect of the errors must undermine the confidence in the reliability of the verdict before a new trial is granted." Dobek, 274 Mich.App. at 106. However, "[a]bsent the establishment of errors, there can be no cumulative effect of errors meriting reversal." Id. "Reversal is warranted only if the effect of the errors was so seriously prejudicial that the defendant was denied a fair trial." People v McLaughlin, 258 Mich.App. 635, 649; 672 N.W.2d 860 (2003).
In this case, there were no errors that prejudiced defendant in any measurable respect. Therefore, there can be no cumulative effect of errors warranting reversal. Defendant fails to establish plain error affecting his substantial rights.
VIII. CONCLUSION
There were no errors warranting relief. We affirm.