PEOPLE OF MI V DEAN WILLIAM JUNKER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 18, 2007
Plaintiff-Appellee,
v
No. 271851
Grand Traverse Circuit Court
LC No. 06-010011-FH
DEAN WILLIAM JUNKER,
Defendant-Appellant.
Before: Donofrio, P.J., and Sawyer and Cavanagh, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of two counts of second-degree
criminal sexual conduct (CSC II), MCL 750.520c(1)(a) (victim under thirteen years old). The
trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to serve a
prison term of 20 to 30 years. Because the court did not abuse its discretion when it rejected
defendant’s no contest plea, defendant was not denied the effective assistance of counsel at trial,
and, the trial court did not deny defendant his due process rights by allowing the prosecutor’s
rebuttal witness to testify to similar acts evidence, we affirm.
Defendant first argues that the trial court abused its discretion by refusing to accept his
plea of no contest prior to trial. At the plea hearing, defense counsel informed the court that
defendant claimed not to remember assaulting complainant because he had been involved in a
number of similar incidents involving young boys, and the circumstances in the instant case
transpired over 15 years ago. In response to the court’s questioning, defense counsel explained
that perhaps defendant did not remember the incident because “the nature of the allegation in this
case is relatively minimum” and that it occurred during a “relatively short” time period. The
court rejected the plea, stating in part that defendant was “highly motivated” to not remember the
events at issue based on the possibility of the facts from this case being admitted in a sexual
assault case pending against him in Wisconsin.
MCR 6.301(B) states that “[a] defendant may enter a plea of nolo contendere only with
the consent of the court.” MCR 6.302(D)(2) provides as follows:
If the defendant pleads nolo contendere, the court may not question the
defendant about participation in the crime. The court must:
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(a) state why a plea of nolo contendere is appropriate; an
(b) hold a hearing . . . that establishes support for finding that the
defendant is guilty of the offense charged or the offense to which the defendant is
pleading.
In the present case, defendant did not admit guilt outright, but stated that he would admit guilt
for purposes of the plea agreement even though he did not remember committing the charged
offense. MCR 6.302(D)(2)(b) requires the court to find support for defendant’s claim that he is
guilty of the charged offense. Defendant did not offer support for a finding that he was guilty,
and so pursuant to the court rule the trial court could not properly accept the plea.
Defendant alleges that the court abused its discretion by refusing to accept his plea based
on its own “frustration” at having previously been forced to accept plea agreements from other
defendants that it did not favor. An abuse of discretion occurs when a trial court chooses an
outcome falling outside the range of reasonable and principled outcomes. People v Babcock, 469
Mich 247, 269; 666 NW2d 231 (2003). When defense counsel renewed his objection to the
court’s ruling on the plea agreement outside the presence of the jury on the first day of trial, the
court reiterated its ruling, stating as follows:
I ruled, it was the right ruling. The Supreme Court gives darn little sway
anymore to trial judges on the acceptance or rejection of pleas. . . . I don’t know
what the prosecutors ever did for the Supreme Court, but they lived [sic] a
charmed life for the Supreme Court and they are special people who . . . can make
any plea bargain they want no matter how good, bad or indifferent it may be and
my job is to eat it. But, if they don’t give a factual basis and they want to do a no
contest plea, I have discretion, and I exercised it for all the reasons I stated at the
time.
Defendant relies on the court’s statement as evidence that the court improperly based its ruling
on its frustration with the system.
Under Babcock, defendant must show that the court’s result is outside the range of
reasonable and principled outcomes. Babcock, supra at 269. The court’s statement at trial does
not show that its decision to refuse defendant’s plea was a result of its frustration with the
prosecutor’s office, previous defendants, or the court rules promulgated by the Michigan
Supreme Court. While the trial court expressed frustration with any curtailment of its authority,
the court’s statement does not suggest that the court’s decision in the instant case was based on
such an apparent frustration. The record reveals that the court gave reasons for its decision at the
plea hearing, including defendant’s failure to admit guilt or to offer support for a finding that he
was guilty, which is required under MCR 6.302. Nonetheless, in venting as it did, the court
recognized that its authority was circumscribed by the applicable court rules.
With respect to the Wisconsin case, the court noted at the plea hearing that defendant
might have a “404 B [sic] notice problem” in Wisconsin that he would avoid by pleading no
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contest in Michigan. At trial, the court stated “if you look under, I can’t remember the rule
number, but there is a rule under the no contest plea that specifically states it cannot be used in a
civil or criminal proceeding as evidence. So that’s another reason why I thought it was unfair,
particularly when the defendant gave no reason why he couldn’t remember this.”
The trial court was obviously making presumptions about how a no contest plea in
Michigan might be used in the Wisconsin case. Wisconsin’s other acts rule of evidence states as
follows:
(a) Except as provided in par. (b), evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show that the
person acted in conformity therewith. This subsection does not exclude the
evidence when offered for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(b) In a criminal proceeding alleging a violation of s. 940.225(1) or
948.02(1), sub. (1) and par. (a) do not prohibit admitting evidence that a person
was convicted of a violation of s. 940.225(1) or 948.02(1) or a comparable
offense in another jurisdiction, that is similar to the alleged violation, as evidence
of the person’s character in order to show that the person acted in conformity
therewith. [Wis Stat Ann 904.04(2).1]
The “problem” defendant would be facing is the admission of the circumstances of the present
case under the “other proper purposes” section of the Wisconsin rule. It seems reasonable to
assume that defendant would be facing the possibility that such evidence could be admitted to
show the existence of a “plan” in carrying out the Wisconsin assault.
The trial court in the case at hand also referenced MRE 410, which forbids evidence of a
plea of nolo contendere in any civil or criminal proceeding “except that, to the extent that
evidence of a guilty plea would be admissible, evidence of a plea of nolo contendere to a
criminal charge may be admitted in a civil proceeding to support a defense against a claim
asserted by the person who entered the plea.” (Emphasis added.) Wis Stat Ann 904.10 provides
as follows:
Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of
an offer to the court or prosecuting attorney to plead guilty or no contest to the
crime charged or any other crime, or in civil forfeiture actions, is not admissible
in any civil or criminal proceeding against the person who made the plea or offer
or one liable for the person’s conduct. Evidence of statements made in court or to
the prosecuting attorney in connection with any of the foregoing pleas or offers is
not admissible.
1
The statutes referenced in subsection (2)(b) are Wisconsin’s first degree sexual assault statutes.
Thus, evidence of a conviction of CSC II in Michigan would not be permitted under this
statutory exception in Wisconsin.
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The Wisconsin rule is broader than the Michigan rule because it excludes evidence of a no
contest plea even in civil proceedings. Thus, regardless of the type of action in Wisconsin,
defendant would have been able to exclude evidence of the case at hand had the court accepted
his plea of nolo contendere, thus relieving him of his other acts evidence “problem.”2 Hence, the
court was correct in its assumption that its ruling could impact the evidence available in the
Wisconsin case.
Next, defendant claims that his counsel was ineffective for failing to present evidence
that he denied having any memory of the underlying incident in this case both to the police and
to a therapist prior to being offered a plea deal. Defendant contends that he could have had no
idea that six months after he told the investigating officer and his psychologist that he did not
remember molesting complainant, he would be offered a reduced plea. According to defendant,
evidence of his previous denials directly rebutted the court’s conclusion that his claim of lack of
memory was a lie that was formed when the plea offer was made to protect him from another
pending case.
In order “to find that a defendant’s right to effective assistance of counsel was so
undermined that it justified reversal of an otherwise valid conviction, a defendant must show that
counsel’s performance fell below an objective standard of reasonableness, and that the
representation so prejudiced the defendant as to deprive him of a fair trial.” People v Pickens,
446 Mich 298, 302-303; 521 NW2d 797 (1994). Defendant must further demonstrate a
reasonable probability that, but for counsel’s error, the result of the proceedings would have been
different and that the attendant proceedings were fundamentally unfair or unreliable. People v
Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). Furthermore, effective assistance of
counsel is presumed, and defendant bears a “heavy burden” of proving otherwise. Id. Defendant
also must overcome the presumption that his defense attorney’s actions were based on
reasonable trial strategy. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).
“Decisions regarding what evidence to present . . . are presumed to be matters of trial strategy,
and this Court will not substitute its judgment for that of counsel regarding matters of trial
strategy.” Id.
Essentially, defendant claims on appeal that because he did not know that the prosecutor
was going to offer him a plea deal later, he had no reason to feign a lack of memory of the event.
This argument is a non sequitur. It does not logically and necessarily follow that the lack of
knowledge about what was going to happen in the future about a potential prosecution means
that defendant had no reason to lie to the police and his therapist. Defendant understood he was
2
Incidentally, Wisconsin’s hearsay exceptions provide that evidence of a conviction resulting
from a plea of nolo contendere is not admissible:
Evidence of a final judgment, entered after a trial or upon a plea of guilty,
but not upon a plea of no contest, adjudging a person guilty of a felony . . . to
prove any fact essential to sustain the judgment, but not including, when offered
by the state in a criminal prosecution for purposes other than impeachment,
judgments against persons other than the accused. [Wis Stat Ann 908.03(22).]
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being investigated and could reasonably have concluded that he faced possible prosecution with
regard to the incident involving complainant. Despite the fact that defendant acknowledged to
the investigating officer that he had committed similar crimes in the past and did not deny the
incident in Wisconsin, defendant still had motivation to claim that he did not remember an event
that had not yet been, or was not then, being prosecuted.
Also, counsel may have reasonably concluded that defendant would be best served by not
presenting the videotape and session notes to the jury. Counsel did get into evidence that
defendant told the investigating officer during the October 18, 2005 police interview that he did
not recall the incident involving complainant. On the videotape, defendant admits that he is
lying to his wife about his travel to Wisconsin and that he failed to disclose another specified
incident in a previous conversation with the officer. Then, after defendant recounts a version of
the other incident in which he does not mention having the minor victim touch defendant’s penis,
the officer shows him a police report stating that defendant had the minor put his hand on
defendant’s penis. At this point, defendant mentions having blackouts and notes that his
therapist tells him that there are long stretches of inactivity between incidents. With respect to
the incident involving complainant, defendant states that he has “no memory of it at all. That’s
the thing that scares me.” Defense counsel could have looked at these statements on the
videotape and made the reasonable conclusion that they undermined defendant’s credibility.
Moreover, the last statement—that defendant is scared by not remembering the incident
charged—could be viewed as almost an admission that something might very well have
happened.
Regarding the therapist’s session notes, they report that defendant did not remember the
incident. A self report to a therapist that defendant does not recall an incident does not mean that
defendant must not have remembered it, and that the court would have then credited defendant’s
story and accepted the plea. Moreover, the January 19, 2006 session notes indicate that as of that
time defendant was aware that he was facing 30 years in prison on the present prosecution.
Thus, weeks before the plea offer was made, defendant had an understanding of the sentencing
consequences facing him if convicted of CSC II, which provides a strong motivation to continue
to insist that he does not remember the incident.3 Thus, defendant has failed to establish his
claim of ineffective assistance of counsel.
Defendant also claims that the trial court violated his due process rights when it
improperly allowed the prosecution to present the father of the Wisconsin victim to testify on
rebuttal. Our review of the record reveals that the essence of the rebuttal testimony was that the
witness’s family had met defendant in Traverse City years prior to the alleged Wisconsin assault
in 2005. In People v Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996), our Supreme Court
held that “[r]ebuttal evidence is admissible to contradict, repel, explain or disprove evidence
produced by the other party and tending directly to weaken or impeach the same.” (Citations and
quotation marks omitted.) Further, “whether rebuttal evidence was properly admitted depends
3
Additionally, a plea of guilty that is not withdrawn is not subject to the protections offered by
Wis Stat Ann 904.10, a fact that may have been made known to defendant by Wisconsin counsel
as of the plea hearing.
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on what proofs the defendant introduced and whether the rebuttal evidence is properly
responsive to evidence introduced or a theory developed by the defendant.” Id. The Court also
stated that “[t]he question whether rebuttal is proper depends on what proofs the defendant
introduced and not on merely what the defendant testified about on cross-examination,” but “[a]s
long as evidence is responsive to material presented by the defense, it is properly classified as
rebuttal, even if it overlaps evidence admitted in the prosecutor’s case in chief.” Id.
In the instant case, defendant testified that while he did not know the Wisconsin victim
“at all for quite a number of years, I knew his dad.” When asked how he knew the father,
defendant responded that he knew him from dinners spent at steam engine shows in Wisconsin.
Defendant then testified to going to the Wisconsin steam engine show in 2005, when the incident
involving the Wisconsin victim occurred. The juxtaposition of the events testified to leaves the
impression that defendant did not meet the Wisconsin victim until 2005. The Wisconsin victim
had claimed during his earlier testimony that he had in fact previously met defendant in Traverse
City. Thus, the prosecutor’s questioning on cross-examination did not introduce the matter into
evidence. Rather, it simply clarified the implicit point made during defendant’s direct
examination. In Figgures, the Court wrote that “it is the trial court that must, of necessity,
evaluate the overall impression that might have been created by the defense proofs.” Figgures,
supra at 398. Under this standard, we conclude that the trial court did not abuse its discretion in
allowing the rebuttal testimony.
Finally, we reject defendant’s final claim of error that the trial court improperly admitted
other acts evidence. At the hearing on defendant’s motion to exclude other acts evidence,
defense counsel sought to exclude evidence of defendant’s sexual encounters with three other
boys, arguing that there was “no real similarity between these occurrences.” Referring to the
incidents, defense counsel argued as follows:
[O]ne incident . . . occurred at his home with a young boy. And according to their
statement he was humping the boy. It was an overnight situation. The second
one was apparently a single contact in a public restaurant down in Howl [sic]
where there was some touching that occurred. But again, I’m not sure what
common scheme or plan that would be, or how common or how similar it would
be. This one . . . occurred in a church. And according to the testimony my client
had a number of contacts with this boy where he had talked to [him], but there
was a single incident where there was some allegation of touching. The one in
Wisconsin, . . . there’s absolutely no similarity at all, there’s not an allegation of
touching that occurred.
After analyzing it under MRE 404(b) and People v Sabin, 463 Mich 43; 614 NW2d 888 (2000),
the court found the evidence admissible. As the court noted, “[a]ll of the incidents involve . . .
sexual contact with young boys. All of them involve arranging or taking advantage of a situation
in which the boy is isolated from other people. And that seems to be the way that—assuming it’s
true, the way the Defendant plans and carries out acts of this kind.”
Defendant’s conduct in the situations described by the other acts evidence shows a proof
of intent, as well as a scheme, plan, and system in isolating young boys to molest. While each
alleged instance of abuse was not identical, there are enough similarities to support the court’s
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decision. As the Sabin Court noted, a “trial court’s decision on a close evidentiary question such
as this one ordinarily cannot be an abuse of discretion.” Sabin, supra at 67. Accordingly, we
conclude that the trial court did not abuse its discretion in admitting the other acts evidence.
Affirmed.
/s/ Pat M. Donofrio
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
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