PEOPLE V CHRIS ANTHONY LUKITY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 3, 1997
Plaintiff-Appellee,
v
No. 179955
Macomb Circuit Court
LC No. 94-000414-FC
CHRIS ANTHONY LUKITY,
Defendant-Appellant.
Before: Wahls, P.J., and Hood and Jansen, JJ.
PER CURIAM.
Following a jury trial in the Macomb Circuit Court, defendant was convicted of first-degree
criminal sexual conduct, MCL 750.520b(1)(b); MSA 28.788(2)(1)(b). He was thereafter sentenced to
twenty-five to fifty years’ imprisonment. He appeals as of right and we reverse and remand for a new
trial.
This case arises out of defendant’s alleged criminal sexual conduct involving his daughter. On
appeal, defendant argues that the trial court abused its discretion in permitting witnesses to testify
regarding the character of the complainant before she testified, that the trial court abused its discretion in
permitting the prosecutor to introduce other “bad acts” evidence, that the prosecutor’s conduct denied
defendant a fair trial, that the trial court abused its discretion in permitting improper expert witness
testimony, that defendant was denied the effective assistance of counsel, that the cumulative effect of the
errors denied defendant a fair trial, and that defendant’s sentence violates the principle of
proportionality. We find several errors in this case and conclude that defendant was denied his right to
a fair trial.
I
Defendant first contends that the trial court abused its discretion when it permitted prosecution
witnesses to testify regarding the character reputation of the complainant for her truthfulness and honesty
and to bolster her credibility before she testified. Defendant objected to allowing the first prosecution
witness, William Adams (the complainant’s high school teacher and counselor), to testify regarding the
complainant’s character reputation. The trial court overruled the objection and permitted the prosecutor
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to question Adams regarding the complainant’s reputation for truthfulness. Other prosecution witnesses
later testified in the same regard without objection, presumably because of the trial court’s initial ruling.
We find that the trial court abused its discretion in allowing the prosecutor to present evidence
of the complainant’s reputation for truthfulness and honesty before the complainant testified and before
her reputation had been attacked by defendant. MRE 608(a) controls this issue:
(a) Opinion and reputation evidence of character. The credibility of a witness may
be attacked or supported by evidence in the form of opinion or reputation, but subject
to these limitations: (1) the evidence may refer only to character for truthfulness or
untruthfulness, and (2) evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise.
Specifically, under subsection two, evidence of the truthfulness of the character of the witness
may be admitted only after such has been attacked by opinion or reputation evidence or otherwise.
Although we agree with the prosecutor that the “or otherwise” clause would include a situation where
the witness’ credibility was attacked by defense counsel during opening statement, United States v
Cruz, 805 F2d 1464, 1480 (CA 11, 1986); United States v Jones, 763 F2d 518, 522 (CA 2, 1985);
United States v Maniego, 710 F2d 24, 27 (CA 2, 1983), a review of the opening statement given by
defense counsel in this case reveals that defense counsel did not attack the complainant’s credibility.
Accordingly, we must conclude that the trial court abused its discretion in permitting prosecution
witnesses to testify regarding the complainant’s credibility before her credibility was attacked by
defendant.
II
Next, defendant argues that the trial court abused its discretion when it permitted the prosecutor
to introduce bad acts evidence concerning other instances of molestation and defendant’s use of
marijuana. Specifically, defendant argues that the trial court improperly permitted the complainant to
testify that defendant had engaged in sexual misconduct with her on forty different occasions and that the
trial court improperly permitted the prosecutor to cross-examine him regarding his use of marijuana with
his son.
Evidence of other crimes or wrongs is controlled by MRE 404(b). First, we note that
defendant is correct that the prosecutor failed to give notice of the general nature of the other acts
evidence that it intended to produce at trial, in violation of MRE 404(b)(2). Under MRE 404(b)(1),
relevant other acts evidence does not violate the rule unless it is offered solely to show the criminal
propensity of an individual to establish that the individual acted in conformity therewith. People v
VanderVliet, 444 Mich 52, 65; 508 NW2d 114 (1993).
We fail to see any relevance with respect to the evidence of defendant’s use of marijuana with
his son. This case concerned whether defendant engaged in criminal sexual conduct with the
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complainant. Further, contrary to the prosecutor’s argument, the issue is preserved. The following
colloquy occurred at trial:
Q. [THE PROSECUTOR] How about providing marijuana to your son? Do you
consider that instilling morals and values?
[DEFENSE COUNSEL]: Objection. There is no evidence in place that that
ever happened and –
THE COURT: He is asking, he is asking his opinion. He is not saying it
happened. Overruled. He may ask the question.
The trial court abused its discretion in permitting this line of questioning. It was not in any way relevant
to the case, MRE 401, and was clearly prejudicial.
With respect to the allegations of prior sexual misconduct with the complainant, we find no
abuse of discretion in permitting this testimony. The complainant’s testimony regarding other acts of
sexual misconduct was admissible under People v DerMartex, 390 Mich 410; 213 NW2d 97 (1973).
See also, People v Sabin, 223 Mich App 530, 533; 566 NW2d 677 (1997).
III
Next, defendant argues that he was denied a fair trial due to prosecutorial misconduct.
Defendant did not object to the alleged instances of prosecutorial misconduct, therefore, this issue has
not been preserved for appellate review. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557
(1994). Upon review of the record, we find no exception to this rule because an objection by defense
counsel and a curative instruction by the trial court could have cured any possible prejudice to
defendant. Id. Further, failure to consider this issue would not result in manifest injustice. Id.
Moreover, we note that the trial court instructed the jury that the statements and arguments of the
lawyers are not evidence.
However, we note that the prosecutor did engage in one instance of impropriety when he stated
the following at closing argument:
May 1, 1992. We chose that date because we have to choose a date. We
have to indicate on or about, Judge Schwartz said, on or about a certain date that the
crime occurred. In that case, we have forty or so sexual molestations. You pick one.
We picked May 1, 1992 because you heard [the complainant] say that that was the
time of Regina High School Parade or some event. That is how she knew the date of
May 1, 1992.
The prosecutor should not have told the jury to “pick one” because the burden of proof is on the
prosecutor to prove, beyond a reasonable doubt, each and every element of the crime. If the
prosecutor decided to prosecute defendant using the date of May 1, 1992, then the prosecutor had to
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prove that the crime occurred. The prosecutor improperly told the jury to pick a date, and should
refrain from doing so on retrial.
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IV
Defendant next argues that the trial court abused its discretion in allowing testimony of
unqualified expert witnesses who impermissibly vouched for the complainant’s credibility.
First, there was no error in permitting Richard Gnesda, Judith Schiap, and Susan Coats to
testify as expert witnesses at trial. Defendant did not object that these witnesses were not qualified to
testify as experts. Therefore, the issue has been forfeited for appellate review. Moreover, in
considering the backgrounds of these witnesses, we would find that the experts were properly qualified
to testify in this case. See People v Beckley, 434 Mich 691, 711-713; 456 NW2d 391 (1990).
Defendant also contends, however, that the expert witnesses’ testimony violates the principles
set forth in Beckley. Our Supreme Court has recently clarified the proper scope of expert testimony in
childhood criminal sexual abuse cases. The expert may not testify that the sexual abuse occurred, the
expert may not vouch for the veracity of the victim, and the expert may not testify whether the defendant
is guilty. People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995). However, an expert may
testify in the prosecution’s case in chief regarding typical and relevant symptoms of child sexual abuse
for the sole purpose of explaining a victim’s specific behavior that might be incorrectly construed by the
jury as inconsistent with that of an actual abuse victim. Id. Also, an expert may testify with regard to
the consistencies between the behavior of the particular victim and other victims of child sexual abuse to
rebut an attack on the victim’s credibility. Id., p 353.
A review of Gnesda’s testimony reveals nothing improper under Beckley or Peterson. Gnesda
merely testified that child sexual abuse cases are crimes of control rather than crimes of passion. Schiap
testified, however, that the complainant’s psychiatric behaviors were consistent with a sexual assault
victim.1 Schiap also testified that she considered the complainant’s conduct to be consistent with that of
a rape victim. Coats testified that it is uncommon for teenage sexual abuse victims to report such
crimes, especially if the perpetrator is a family member; it is not uncommon for a victim to attempt to
commit suicide after revealing the sexual abuse; a range of behavior exists for sexual abuse victims; and
rape is a crime of control rather than a crime of passion.
We find that Gnesda’s and Coats’ testimony were properly admissible, but find that Schiap’s
testimony was improper in light of Peterson. In Peterson, our Supreme Court held that unless a
defendant raises the issue of the particular child victim’s postincident behavior or attacks the child’s
credibility, an expert may not testify that the particular child victim’s behavior is consistent with that of a
sexually abused child. Id., pp 373-374. The Court explained that the credibility of the victim is
attacked when the defendant highlights behaviors exhibited by the victim that are also behaviors within
child sexual abuse accommodation syndrome and alludes that the victim is incredible because of these
behaviors. Id., p 374, n 13.
In this case, Schiap’s testimony that the complainant’s psychiatric behaviors were consistent
with those of a sexual assault victim and that the complainant’s conduct was consistent with that of a
rape victim was in error and should not have been admitted. Defendant did not attack the
complainant’s credibility in this regard. Specifically, defendant did not highlight behaviors within child
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sexual abuse accommodation syndrome and allude that the complainant was incredible because of those
behaviors. Moreover, the trial court compounded the error when it instructed the jury in the following
manner:
You have heard Judy Schiap and Susan Coats’ opinions about the behavior of
sexually abused children. You must consider that evidence only from the limited
purpose of deciding whether [the complainant’s] acts and words were after the
alleged crime were consistent with those of sexually abused children. The
evidence cannot be used to show that the crime charged here was committed or that
the defendant committed it. Nor can it be considered opinions by Judy Schiap or Sue
Coats that [the complainant] is telling the truth.
Accordingly, we must conclude that Schiap’s testimony was improper in light of Peterson. The
trial court abused its discretion in permitting Schiap to testify that the complainant’s psychiatric
behaviors were consistent with those of a sexual assault victim and that the complainant’s conduct was
consistent with that of a rape victim.
V
Defendant next argues that he was denied the effective assistance of counsel. Because there
was no evidentiary hearing on this claim, our review of the allegations of ineffective assistance of
conduct are limited to the record before us. People v Williams, 223 Mich App 409, 414; 566 NW2d
649 (1997). In order to prove that counsel’s conduct constituted ineffective assistance, defendant must
first show that counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms. Second, defendant must show that there is a reasonable probability that
but for counsel’s error, the result of the proceeding would have been different. Stanaway, supra, p
687.
Defendant first argues that trial counsel was ineffective for failing to adequately prepare and
investigate this case. Because this allegation of ineffective assistance is not apparent from the record,
defendant has failed to meet his burden that counsel’s performance fell below an objective standard of
reasonableness and that he was prejudiced by the performance in this regard.
Defendant also claims that counsel was ineffective for failing to object to the admission of
prosecution witnesses’ testimony as to the complainant’s character for truthfulness; failing to request a
cautionary instruction with regard to the testimony bolstering the complainant’s credibility; failing to
object to Coats and Schiap testifying as expert witnesses; failing to properly object to Coats’ and
Schiap’s opinion testimony; failing to properly object to the admission of other bad acts evidence; failing
to object to the prosecutor’s misconduct; failing to object to the admission of evidence regarding the
complainant’s suicide attempts; and failing to object to the sentencing guidelines.
To the extent that defense counsel did not object to the witnesses who testified after Adams
concerning the complainant’s reputation for truthfulness, we find no error because counsel did initially
object to Adams’ testimony in this regard and the objection was overruled. Further, we see no need for
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counsel to have requested a cautionary instruction regarding the testimony as to the complainant’s
reputation for truthfulness because that testimony was improperly admitted. Further, we have explained
that Gnesda, Schiap, and Coats were all qualified to testify as experts, thus, counsel was not ineffective
for failing to object to them testifying as expert witnesses. Also, counsel did object to Schiap’s
improper testimony (see issue IV, supra), and the remaining testimony of Gnesda and Coats was
proper. With respect to the other bad acts evidence, the evidence of other acts of molestation was
properly admitted, and we have already concluded that counsel objected to the evidence of marijuana
use and that such evidence was improperly admitted. Further, although counsel did not object to the
alleged instances of prosecutorial misconduct, we do not find any instance to require reversal. The
failure to object to the admission of evidence regarding the complainant’s suicide attempts was not
ineffective because the evidence was not improperly admitted. Regarding the failure to object to scoring
of the sentencing guidelines, we need not review this allegation because we are reversing for a new trial.
Accordingly, we cannot conclude, based on the record before us, that defendant was denied
the effective assistance of counsel.
VI
Having found three separate instances of error (prosecution witnesses improperly testified
regarding the complainant’s reputation for truthfulness, the evidence of defendant’s use of marijuana was
improperly admitted, and Schiap’s testimony was improper pursuant to Peterson), we must now decide
whether those errors can be deemed harmless. We conclude that the cumulative effect of the errors
cannot be deemed harmless in this case.
The errors in this case constitute preserved, nonconstitutional error. While such error is not to
be reviewed under the harmless beyond a reasonable doubt standard, a conviction should not be
reversed unless the error was prejudicial. People v Mateo, 453 Mich 203, 206, 215; 551 NW2d 891
(1996). In other words, reversal is required only if the error was prejudicial. This inquiry focuses on
the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.
Id., p 215.
At trial, there was really no physical evidence corroborating the complainant’s testimony.
Defendant denied all sexual conduct. Thus, this case turned on the character and credibility of the
witnesses, especially the complainant and defendant. The instances of error concern these pivotal
issues. Whether defendant ever smoked marijuana, with or without his son, was completely irrelevant
to the issues in this case. It was clearly prejudicial because it could have influenced the jury to find the
defendant to be a “bad person.” Further, allowing certain witnesses to testify as to the complainant’s
truthfulness before such had even been attacked, and before she testified, was improper under MRE
608(a). Additionally, in allowing the complainant’s credibility to be bolstered before she testified, it
could have allowed the jury to give her testimony more weight than otherwise. As we have noted,
credibility was a key issue for the jury to decide in this case. Finally, the testimony of Schiap was
clearly improper in light of Peterson. Once again, because Schiap’s testimony bolstered the
complainant’s credibility, we cannot dismiss it as being merely harmless error.
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In light of these errors as assessed against the weight and strength of the untainted evidence, we
cannot conclude that the errors were harmless. The errors all involved witness credibility and character
of the two critical witnesses as trial. Therefore, we conclude that there is a reasonable probability that
the erroneously admitted evidence affected the outcome of the trial. Sabin, supra, p 540. The errors
were not harmless and defendant is entitled to a new trial.
VII
Because of our resolution of the previous issues, we need not address the sentencing issues
raised by defendant.
Reversed and remanded for a new trial. Jurisdiction is not retained.
/s/ Myron H. Wahls
/s/ Harold Hood
/s/ Kathleen Jansen
1
Defense counsel objected to this testimony, but the trial court overruled it.
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