PEOPLE OF MI V DAVID GADDIS STUCKEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 14, 2002
Plaintiff-Appellee,
v
No. 224722
Shiawassee Circuit Court
LC No. 99-003399-FH
DAVID GADDIS STUCKEY,
Defendant-Appellant.
Before: Bandstra, P.J., and Hoekstra and O’Connell, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of second-degree criminal sexual
conduct, MCL 750.520c(1)(a). He was sentenced to probation for forty-eight months, the first
twelve to be served in jail. He appeals as of right. We affirm.
The prosecutor presented evidence that defendant engaged in tickling and other physical
playfulness with his daughter and her friend, the complaining witness. Next, the complainant
testified that while defendant’s daughter was distracted, he tried to kiss the complainant and
twice grabbed her breasts under her shirt. The complaining witness and another young girl who
complained of similar conduct at defendant’s hands under similar circumstances eventually
expressed their concerns to a school teacher, who reported the matter to authorities.
On appeal, defendant first argues that the trial court abused its discretion by denying his
motion for a new trial because the prosecution withheld from discovery prior inconsistent
statements of certain witnesses. We agree with the trial court that what defendant was seeking, if
it existed at all, was the prosecutor’s undiscoverable work product. Defendant’s argument is that
the prosecutor’s office took over the criminal investigation from the police, and that the defense
was therefore entitled to the prosecuting attorney’s notes of interviews with witnesses that would
normally be considered privileged work product. The defense conceded to the trial court that
there was no allegation of deliberate misconduct in the matter, but suggested that the
prosecutor’s investigation before issuance of a warrant was a discoverable part of the
investigatory process and not privileged work product. However, defendant agreed with the trial
court that the defense had an opportunity to discover any violation of discovery rules during
earlier litigation of an evidentiary motion, but protested that the issue did not occur to him until a
police witness testified at trial that he interviewed the witnesses but briefly.
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“A new trial may be granted only for certain legally cognizable reasons. Although MCL
770.1 . . . authorizes a trial court to grant a new trial when it shall appear to the court that justice
has not been done, the statute has been construed as limited to those circumstances where the
defendant has been denied a fair trial.” People v Yono, 103 Mich App 304, 308; 303 NW2d 4
(1981) (citations and quotations omitted).
Defendant cites no authority for the proposition that if the prosecutor acts as one of the
principal investigators the prosecutor’s work product must then be discoverable for that reason.
Well established, however, is that the prosecutor’s privilege against disclosing work product—
deliberative or otherwise—is a very broad one. See generally Messenger v Ingham Co
Prosecutor, 232 Mich App 633; 591 NW2d 393 (1998) (establishing the prosecutor’s work
product as absolutely privileged from disclosure under MFOIA). More specifically, in People v
Holtzman, 234 Mich App 166; 593 NW2d 617 (1999), this Court held that a prosecutor’s notes
of interviews with witnesses are not subject to the general disclosure requirements of MCR
2.601(A)(2), citing both the attorney work-product rule, and the ethical problem that would arise
if the people’s advocate at trial were obliged to take the stand and explain his or her notes.
Holtzman, supra at 168-169.
Further, the prosecuting attorney stated in argument that she did not think that she had
made any notes of the sort defendant was seeking. Defendant in any case fails to point to any
reason beyond his own speculation to suppose that any notes of the prosecutor fairly constituting
a witness’ statement ever existed.
For these reasons, we agree with the trial court that defendant suffered no miscarriage of
justice for the lack of disclosure of any of the prosecutor’s interview notes.
Defendant next argues that he is entitled to a new trial because the trial court seated a jury
that included a relative of the judge.1 We disagree. Defense counsel personally commented on
the relationship between the judge and the juror while questioning the latter, and elicited that the
juror had no bias in the matter. Counsel never challenged the juror, and ultimately expressed
satisfaction with the jury as seated. The defense thus affirmatively waived this issue,
extinguishing it as a basis for appellate relief. People v Carter, 462 Mich 206, 214-216; 612
NW2d 144 (2000).
Further, because a judge plays the role of a neutral and detached magistrate, see Cain v
Dep’t of Corrections, 451 Mich 470, 509; 548 NW2d 210 (1996), any inclination that a juror
may have to share in a relative’s biases should not be a factor where the relative is the judge.
See also MCR 2.003(B) (grounds for judicial disqualification do not include relative on the jury).
Thus, the presumption of juror competence and impartiality is not disturbed under these
circumstances. See People v Johnson, 245 Mich App 243, 256; 631 NW2d 1 (2001) (O’Connell,
J., with M.J. Kelly, J., concurring in the result only), citing People v Collins, 166 Mich 4, 8-9;
131 NW 78 (1911), and People v Walker, 162 Mich App 60, 63; 412 NW2d 244 (1987).
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Evidently the juror in question was the judge’s sister-in-law.
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Defendant next argues that the trial court abused its discretion by allowing another young
friend of both defendant’s daughter and the complainant to testify that that defendant had tickled
and otherwise touched her, including in ways that made her feel uncomfortable. We disagree.
MRE 404(b)(1) establishes that evidence of other bad acts is not admissible to prove a
person’s character, or behavior consistent with those other wrongs, but provides that such
uncharged conduct may be admissible for other purposes, “such as proof of motive, opportunity,
intent, preparation, scheme, plan or system in doing an act, knowledge, identity, or absence of
mistake or accident when the same is material . . . .”
The potential for unfairness to the defendant in the presentation of evidence of prior bad
acts is “not that it is irrelevant, but, to the contrary, that using bad acts evidence can ‘weigh too
much with the jury and . . . so overpersuade them as to prejudge one with a bad general record
and deny him a fair opportunity to defend against a particular charge.’” People v Crawford, 458
Mich 376, 384; 582 NW2d 785 (1998), quoting Old Chief v United States, 519 US 172, 181; 117
S Ct 644, 651-652; 136 L Ed 2d 574 (1997), and Michelson v United States, 335 US 469, 476; 69
S Ct 213; 93 L Ed 168 (1948). Evidence of prior bad acts is admissible if it is offered for a
proper purpose, if it is relevant, and if its probative value is not substantially outweighed by
unfair prejudice. Further, the trial court may, upon request, provide a limiting instruction to the
jury. Crawford, supra at 385, citing People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114
(1993), modified 445 Mich 1205 (1994).
In this case, the witness in question was a friend who joined the complainant in coming to
their teacher with their concerns about what they had experienced at defendant’s house. This
witness testified at trial that she went to defendant’s daughter’s house once or twice a week
between January and February, 1999. Asked if anything happened that she felt uncomfortable
about, the witness replied, “Her father would tickle me in spots that I felt uncomfortable with,”
elaborating, “[a]round the bottom of my legs,” “[l]ike on my bottom,” and “[a]round my stomach
area.” The witness stated that, at first, she thought defendant was merely playing, and that this
happened almost every time she visited. On appeal, defendant makes issue of the following
excerpt from direct examination:
Q. Was there anything else that ever happened at the Stuckeys that made you feel
uncomfortable besides the tickling and tickling on your leg and bottom that
you told us about?
A. No.
Q. You can recall anything else?
A. No.
Q. Did you tell anything else to Detective/Sergeant Ash when you made that
statement to him?
A. No.
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Defendant’s argument is that no testimony suggested that he engaged in, or attempted,
any sexual conduct with this witness; thus, the latter’s testimony was not sufficiently probative
of defendant’s plan or scheme in engaging in CSC as to justify its introduction. We disagree.
The witness testified that defendant tickled both her and his daughter, and that this and
similar supposed playfulness extended to where the witness felt that defendant was touching her
in inappropriate ways, causing her to feel uncomfortable. This testimony went directly to
defendant’s “opportunity, . . . scheme, plan or system in doing an act,” MRE 404(b)(1), in that it
suggested that defendant attempted to cover his inappropriate advances, or secure plausible
deniability for himself in the matter, by operating within a context ostensibly of innocent
playfulness, which even included his daughter. The testimony was also relevant to “absence of
mistake or accident,” contradicting defendant’s argument that he merely crossed that indefinite
line from acceptable physical playfulness into making his daughter’s other young friend feel
uncomfortable. This evidence suggests it was no one-time excess or misunderstanding.
Further, despite defendant’s implications to the contrary, the trial court carefully
instructed the jury on the limited use of the MRE 404(b) evidence. At the close of proofs, the
court’s instructions included the following:
You heard evidence that was introduced to show that the Defendant . . .
committed improper acts for which he is not on trial. If you believe this evidence
you must be very careful only to consider it for certain purposes. You may only
think about whether this evidence tends to show that the Defendant acted
purposefully, that is not by accident or mistake, or because he misjudged the
situation, or you may only think about whether the evidence tends to show that
the Defendant used a characteristic scheme that he used before. You must not
consider this evidence for any other purpose. For example, you must not decide
that it shows that the Defendant is a bad person, or that he is likely to commit
crimes. You must not convict the Defendant here because you think he is guilty
of other bad conduct. All the evidence must convince you beyond a reasonable
doubt that the Defendant committed the alleged crime for which he’s on trial, or
you must find him not guilty.
This instruction should well have steered the jury away from considering the other-badacts evidence improperly. Crawford, supra at 385; VanderVliet, supra at 55. For these reasons,
we reject this claim of error.
Finally, defendant argues that he is entitled to a new trial because the complaining
witness referred to her dreams when asked how she remembered what defendant had done to her.
We disagree. The testimony in question came by way of cross-examination:
Q. Was your memory better last summer or is it better now?
A. Now.
Q. It’s better now?
A. Yes, because I’ve had dreams about it.
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Q. You’ve had what?
A. Dreams.
Q. You’ve had dreams about it. So your testimony’s built on dreams? Is that
what you’re telling this Court?
A. No. I know what happened, but when I have the dreams I know exactly what
happened.
Q. The dreams are exactly what happened?
A. Yes.
Q. Are they exactly what happened when you told Sergeant Ash, or are they what
happened when you talked today, or are they what happened when you talked
last summer?
A. Today.
Q. Today?
A. Yes.
Q. So we can discount anything you told Sergeant Ash or you testified to last
summer because today is right and anything you said before, yes or not, is
wrong. Would that be what you’re telling us today?
A. No.
Q. But your memory is better today?
A. From when I talked to Sergeant Ash, yes.
Not only was this issue not preserved, but in fact it was the defense that elicited the
testimony at issue. Thus, the onus was on the defense to clarify the complainant’s testimony to
the extent needed, or to raise doubts, before the court or the jury or both, about the reliability of
testimony potentially influenced by dreams. Indeed, to the extent defense counsel was able to
get the possible influence of dreams before the jury, this was a sound strategic attempt to instill
doubts about the complaining witness’ credibility, and a bit of ambiguity in this regard may have
helped defendant more than it hurt him. In any event, a criminal defendant may not assign error
on appeal to something the defendant’s own lawyer deemed proper at trial. People v Barclay,
208 Mich App 670, 673; 528 NW2d 842 (1995).
Defendant further argues that the evidence suggests that defendant’s daughter was
present when the alleged improper conduct took place, but did not observe anything of the sort.
Although the daughter did indeed testify that she saw no improprieties between defendant and
the complainant, this evidence was not uncontroverted. The complainant reported that when
defendant touched her breasts for the second time with the daughter nearby, the latter “said, like
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‘Dad,’ in a way of scolding him.” Further, of course, the jury was not obliged to believe any of
the daughter’s testimony, favorable to her father or otherwise. “It is the province of the jury to
. . . assess the credibility of witnesses.” People v Lemmon, 456 Mich 625, 637; 576 NW2d 129
(1998). For these reasons, we reject this claim of error.
Affirmed.
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
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