PEOPLE OF MI V WILLIAM CHARLES DOERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 29, 2010
Plaintiff-Appellee,
v
No. 288514
Dickinson Circuit Court
LC No. 07-003807-FC
WILLIAM CHARLES DOERS,
Defendant-Appellant.
Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial conviction of two counts of first-degree criminal
sexual conduct (CSC I), MCL 750.520b(1)(a) (victim under 13), and three counts of CSC I,
MCL 750.520b(1)(b) (multiple variables). The victim is defendant’s adoptive daughter.
Defendant was sentenced to concurrent prison terms of 15 to 30 years for each conviction. We
affirm.
Defendant argues that the trial court erred by denying his motion for new trial based on
the argument that an interview conducted by a Department of Human Services (DHS) worker
with the victim was coercive and produced unreliable evidence, and that his trial counsel was
ineffective for not challenging the coercive nature of the interview. A criminal defendant may be
granted a new trial on grounds that would support reversal on appeal or because the verdict
resulted in a miscarriage of justice. MCR 6.431(B); People v Brown, 279 Mich App 116, 144;
755 NW2d 664 (2008).1 A trial court’s denial of a motion for a new trial is reviewed for an
abuse of discretion. People v Lemmon, 456 Mich 625, 648 n 27; 576 NW2d 129 (1998). An
abuse of discretion occurs in this circumstance when the court chooses an outcome falling
outside the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269;
666 NW2d 231 (2003). The constitutional question of whether an attorney’s ineffective
assistance deprived a defendant of his Sixth Amendment2 right to counsel is reviewed de novo.
1
Additionally, MCL 770.1 provides that “[t]he judge of a court in which the trial of an offense is
held may grant a new trial to the defendant, for any cause for which by law a new trial may be
granted, or when it appears to the court that justice has not been done, and on the terms or
conditions as the court directs.”
2
US Const, Am VI.
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People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). Because an evidentiary hearing
was not conducted, our review of counsel’s effectiveness is limited to mistakes apparent on the
record. People v Nantelle, 215 Mich App 77, 87; 544 NW2d 667 (1996).
Defendant asserts that his trial counsel erred below by focusing on the suggestibility of
the victim instead of the coerciveness of the forensic interview. The stark distinction defendant
is drawing between suggestibility and coerciveness does not accurately reflect trial counsel’s
approach. Counsel elicited a statement from the husband of defendant’s natural daughter that the
victim told him she was pressured by DHS into saying bad things about defendant when nothing
happened. Counsel then argued to the jury that the evidence showed the victim was pressured
into making her statement. However, counsel also examined the suggestiveness of the DHS
caseworker’s forensic interview procedure.
Significantly, the details of the victim’s abuse came into evidence through her own trial
testimony. The contents of the victim’s statement to the DHS caseworker were not admitted and
the jury did not have an opportunity to consider whether the statements were reliable. There
were no allegations that the victim was coerced into testifying at trial, and the jury was able to
perform its proper role to determine the credibility of her testimony after cross-examination.
People v Passage, 277 Mich App 175, 177; 743 NW2d 746 (2007).
Defendant argues that Jackson v Denno, 378 US 368; 84 S Ct 1774; 12 L Ed 2d 908
(1964), stands for the broad proposition that all evidence submitted to the jury must be
“reliable.” The United States Supreme Court in Jackson, 378 US at 376-378, considered a New
York trial procedure that allowed juries to determine whether a defendant’s confession was
voluntary. The Supreme Court noted that it was firmly established that the Fourteenth
Amendment3 prohibited the use of involuntary confessions because of the probable unreliability
of confessions that were obtained in a coercive manner. Id. at 386, 393-394. Accordingly, “[a]
defendant objecting to the admission of a confession is entitled to a fair hearing in which both
the underlying factual issues and the voluntariness of his confession are actually and reliably
determined.” Id. at 380. The Jackson Court concluded that the procedure used there, whereby
the issue of voluntariness was presented to the jury, “inevitably injects irrelevant and
impermissible considerations of truthfulness of the confession into the assessment of
voluntariness.” Id. at 388. However, the instant case does not consider the reliability of
information contained in any confession. Indeed, defendant denied the charges against him, and
the statement he contested was the victim’s. The constitutional protections applicable to the
introduction of a defendant’s confession do not apply to a victim’s story of the crime. In sum,
the record does not support a finding of a miscarriage of justice warranting reversal for a new
trial.
Alternatively, defendant argues that he was denied his right to effective assistance of trial
counsel. Defense counsel’s duty is to prepare, investigate, and present all possible defenses.
People v Shahideh, 277 Mich App 111, 118; 743 NW2d 233 (2007), rev’d on other grounds 482
Mich 1156 (2008). Counsel’s failure to call witnesses can constitute ineffective assistance when
3
US Const, Am XIV.
-2-
it deprives the defendant of a substantial defense. People v Hyland, 212 Mich App 701, 710; 538
NW2d 465 (1995), vacated in part on other grounds 453 Mich 902 (1996). A substantial defense
is one that might have made a difference in the outcome of the trial. Id. The effective assistance
of counsel is presumed, and the defendant bears the heavy burden of proving otherwise.
LeBlanc, 465 Mich at 578.
Again, it is significant that the details of the abuse were offered through the victim’s trial
testimony. There are no allegations that she was coerced into testifying at trial or perjured
herself. Defendant cites People v Grant, 470 Mich 477, 491; 684 NW2d 686 (2004), wherein
our Supreme Court found that trial counsel’s assistance was ineffective because counsel failed to
prepare himself, and failed to appreciate his client’s predicament. In Grant, defense counsel
presented a credibility defense, but failed to present the jury with evidence of an alternative
hypothesis about one of the victim’s injuries because of counsel’s failure to conduct a more
thorough investigation. Id. at 486, 491-492. In the current case defendant alleges that trial
counsel’s failure to raise the issue of coercion similarly deprived him of the ability to present an
alternative explanation that would have best refuted the charges brought. However, unlike
counsel in Grant, trial counsel in the instant case did not did fail to pursue an alternative
explanation, i.e., that the allegations were false. Rather, counsel chose a manner of approaching
this explanation that defendant now argues was misguided. That the chosen manner in
approaching this alternative explanation “ultimately failed does not constitute ineffective
assistance of counsel,” People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001),
nor does it mean that defendant was denied a substantial defense, Hyland, 212 Mich App at 710.
Defendant has thus failed to show that counsel’s performance was deficient, that counsel’s
deficient performance prejudiced the defense, or that the resultant proceedings were
fundamentally unfair or unreliable. People v Odom, 276 Mich App 407, 415; 740 NW2d 557
(2007).
We do agree with defendant that the court erred by admitting testimony by the doctor that
performed a successful sterilization vasectomy on defendant in 1981. The purpose of the
patient-physician privilege is to protect the doctor-patient relationship and ensure that
communications between the two are confidential. Baker v Oakwood Hosp Corp, 239 Mich App
461, 470; 608 NW2d 823 (2000). Because privilege statutes may inhibit the search for truth by
shielding potentially reliable evidence in effort to protect relationships, privileges are not easily
found or endorsed by the courts. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557
(1994). Nonetheless, the statutory physician-patient privilege is to be narrowly construed, and its
exceptions are to be applied broadly. In re Brock, 442 Mich 101, 119; 499 NW2d 752 (1993).
The privilege in issue is found in MCL 600.2157, which provides in relevant part:
Except as otherwise provided by law, a person duly authorized to practice
medicine or surgery shall not disclose any information that the person has
acquired in attending a patient in a professional character, if the information was
necessary to enable the person to prescribe for the patient as a physician, or to do
any act for the patient as a surgeon. . . .
The statute broadly and clearly forbids physicians from disclosing “any information” acquired
under the described circumstances. Baker, 239 Mich App at 475. The statute controls the scope
of the privilege, and only the patient can waive it. Id. at 470.
-3-
The prosecution sought to admit evidence of defendant’s vasectomy, arguing that it was
necessary in order to understand the DNA evidence4 and to explain to the jury how the victim
did not get pregnant. The prosecution argued that People v Johnson, 111 Mich App 383; 314
NW2d 631 (1981), was controlling. In Johnson, the trial court permitted testimony by a doctor
who treated the defendant “for a cough and headaches.” Id. at 385. The defendant had asked the
doctor to prescribe a controlled substance, and the doctor provided a prescription for 15 tablets.
Id. at 385-386. When presented at a pharmacy, the prescription read 45 tablets. Id. at 386. This
Court found admissible the testimony of the doctor to show that a prescription was altered
because the physician who issued it was the only one who could verify the prescription. Id. 388389. The Johnson Court reasoned that the privilege should give way in that case because
“defendant’s request . . . was made in furtherance of a criminal purpose.” Id. at 391. The Court
emphasized the “demonstrably relevant” nature of the testimony:
[W]here the evidence sought is “demonstrably relevant” to the case at
issue, a generalized claim of privilege must yield to the specific need for
evidence. As mentioned above, crimes of this nature are difficult to prove at best,
and, in the case at bar, [the doctor’s] testimony regarding the . . . prescription is
“demonstrably relevant” to the case at issue. [Id. at 389 (internal citation
omitted).]
In the instant case, the trial court concluded that the purposes for which the prosecution wished
to use the evidence were “a demonstrably relevant purpose for which the privilege should yield
on those issues.”
In People v Childs, 243 Mich App 360, 363; 622 NW2d 90 (2000), this Court considered
the prosecutor’s request to admit evidence of the defendant’s blood alcohol level to prove
defendant was intoxicated while not attending to the stove that caused a fatal fire, despite
defendant’s assertion of the physician-patient privilege. The prosecutor argued, based on
Johnson, that the privilege should not apply because the prosecutor’s need for specific evidence
in a criminal proceeding should defeat the privilege. Id. at 368. The Childs Court distinguished
Johnson:
First, we believe that Johnson is distinguishable from the present case. In
Johnson, the physician’s testimony regarding the number of tablets initially
prescribed was absolutely essential to the prosecution. As this Court stated, “[t]he
prescription could only be verified by the physician who issued it. Without the
doctor’s testimony, convictions for forgeries of prescriptions would be well-nigh
impossible.” In the present case, the prosecutor argues that the blood test results
are similarly essential to the case against defendant. We disagree. Blood test
results are not the sole means of proving intoxication, and manslaughter
convictions are not precluded by the exclusion of such evidence. Presumably, the
prosecutor could introduce the testimony of various witnesses who observed
4
Two state police forensic scientists testified that seminal fluid found on the victim’s bed sheets
was consistent with that of a male who had a vasectomy.
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defendant consume alcohol on the night in question, if in fact that occurred.
Because the need for this specific evidence is not as compelling as the need for
specific evidence found in the Johnson case, we believe that holding is
distinguishable. [Id. at 371-372 (citation omitted).]
The Childs Court declared that it would clearly be inconsistent with the Legislature’s intent, as
expressed in the statutes, for the Court to create a broad exception to the statutory privilege that
was applicable in all criminal cases. Id. at 373-374.
Here, like Childs, it was possible for the prosecution to demonstrate that defendant had a
vasectomy without the doctor’s testimony. Indeed, there were two other witnesses that did
testify that defendant told them he had a vasectomy, and the victim herself testified that
defendant told her she could not get pregnant because he had had a surgery. Accordingly, the
trial court erred by relying on Johnson, and abused its discretion by admitting the evidence.
However, this error does not require reversal because it was harmless beyond a
reasonable doubt. “No judgment or verdict shall be set aside or reversed or a new trial be
granted by any court of this state in any criminal case, on the ground of . . . the improper
admission or rejection of evidence . . . unless in the opinion of the court, after an examination of
the entire cause, it shall affirmatively appear that the error complained of has resulted in a
miscarriage of justice.” MCL 769.26; see also People v Young, 472 Mich 130, 141; 693 NW2d
801 (2005). A defendant on appeal must demonstrate that an error was not harmless by
persuading the reviewing court that it is more probable than not that the error affected the
outcome of the proceedings and undermined the reliability of the verdict. Young, 472 Mich at
141-142.
Here, the jury was presented with the testimony of the victim, her family members, and
professionals involved with the victim, as well as serology and DNA evidence. Understanding
the import of this evidence was not dependant on knowledge that defendant had a vasectomy.
Further, the vasectomy evidence was properly admitted through other testimony. Thus, this error
does not require reversal.
Defendant also argues that the prosecution issued an illegal discovery subpoena to obtain
his doctor’s medical records. MCR 6.201(C)(1) states, “Notwithstanding any other provision of
this rule, there is no right to discover information or evidence that is protected from disclosure by
constitution, statute, or privilege, including information or evidence protected by a defendant’s
right against self-incrimination, except as provided in subrule (2).” Subrule (2) provides a
procedure by which a defendant may seek to have a court conduct an in camera review of
protected records in order to determine if they contain evidence “necessary to the defense.”
MCR 6.201(C)(2). That circumstance does not apply in the case at hand. For the reasons set
forth above, the privileged evidence was protected from disclosure. Again, however, this error
was not outcome-determinative and does not require reversal.
Defendant next argues that the court erred by allowing the prosecution to amend the
felony information to comport with the evidence adduced. We disagree. People v Higuera, 244
Mich App 429, 444; 625 NW2d 444 (2001), provides:
-5-
An information may be amended at any time before, during, or after trial
to cure any defect, imperfection, or omission in form or substance, including a
variance between the information and the proofs, as long as a defendant is not
prejudiced by the amendment and the amendment does not charge a new crime.
[Accord People v Stacey Jones, 252 Mich App 1, 4-5; 650 NW2d 717 (2002).]
The defendant’s right to receive a preliminary examination is possibly violated if the amendment
charged a new crime. Id. at 5.
The prosecution initially filed a complaint alleging seven counts of CSC I: two of the
counts charged, one digital and one penile penetration, occurring when the victim was under 13,
and five counts of penile penetration, occurring when the victim was between the ages of 13 and
16. The district court bound over defendant on five counts: digital penetration in the bedroom
when the victim was under 13 (Count I), penile penetration in the bedroom when the victim was
under 13 (Count II), penile penetration in the bedroom when the victim was between 14 and 16
(Count III), penile penetration in defendant’s truck when the victim was between 14 and 16
(Count IV), and penile penetration in the basement when the victim was between 14 and 16
(Count V). Defendant was not bound over on alleged assaults occurring in the garage and living
room because the court could not identify a specific time from the victim’s testimony. The
information did not specify where the offenses occurred.
After jury selection defendant argued that due to the non-specific nature of the
information and the notice of intent to introduce other acts evidence, he did not have notice of
which specific instances of alleged sexual abuse were being charged and which were being
testified to as other acts evidence. The court noted that while the information had been filed for
quite awhile and that it had denied a previous motion to quash the information, it would require
the prosecution to specify the particular charges as the trial proceeded.
Late in the trial, the prosecution specified the charges against defendant in a proposed
verdict form describing Count I as digital penetration in Cynthia’s bedroom while she was under
13, Count II as penile penetration in the basement while she was under 13, Count III as penile
penetration in the living room while she was between 13 and 16, Count IV as penile penetration
in Cynthia’s bedroom while she was between 13 and 16, and Count V as penile penetration in the
garage while she was between 13 and 16. In defendant’s motion for a directed verdict, he
pointed out that the district court had refused to bind over counts charging penetration in the
garage and living room, and that Count II had changed from the bedroom to the basement. The
trial court concluded that the prosecution was “permitted to make the allegations as to each count
as they have been made in the proposed verdict form.”
Defendant cites People v Raymond Jones, 483 Mich 899; 761 NW2d 97 (2009), where
our Supreme Court remanded the case to the Court of Appeals for consideration of whether a
midtrial amendment of the information entitled defendant to a new trial. However, on remand,
the Court of Appeals concluded that the defendant had not demonstrated he was unfairly
surprised or prejudiced by the amendment.
The prosecution urges that the instant case is similar to People v Stricklin, 162 Mich App
623, 632-634; 413 NW2d 457 (1987), where the Court found that defendant was not prejudiced
by the trial court’s amendment of the information to change a CSC I count from attempted
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vaginal and anal penetration to oral sex. The Court reasoned that defendant was not prejudiced
because he was not convicted of a new crime, but just a different form of CSC I than the one
with which he was charged, and that the amendment would not have changed the way the
charges were defended. Id. at 633-634. Similarly, here defendant was aware of the locations and
manner of the victim’s allegations against him from her previous testimony in a companion trial,
a motion to admit other acts evidence in defendant’s trial, and from preliminary examination
testimony. See People v Russell, 266 Mich App 307, 317; 703 NW2d 107 (2005). That the
victim clarified the time frames and locations where and when the abuse occurred during her trial
testimony was not a surprise to defendant, and defendant was able to attack this testimony by
highlighting inconsistencies in the victim’s recollections and by questioning her motive for
reporting the abuse after years of not reporting it. Additionally, as the trial court noted in
denying defendant’s motion for a new trial, there was no evidence presented to demonstrate that
this defense would have been different had the information been amended before trial.
Finally, we reject defendant’s argument that evidence of uncharged sexual acts was
erroneously admitted in violation to his due process right to a fair trial. MCL 768.27a(1)
provides that “[n]otwithstanding [MCL 768.27], in a criminal case in which the defendant is
accused of committing a listed offense against a minor, evidence that the defendant committed
another listed offense against a minor is admissible and may be considered for its bearing on any
matter to which it is relevant.” The evidence to which defendant objected related to the
commission of other sexual offenses against a minor. When a defendant is accused of a sexual
offense against a minor such evidence is admissible. MCL 768.27a(1); People v Dobek, 274
Mich App 58, 88 n 16; 732 NW2d 546 (2007). The purpose of the statute is to broaden the range
of evidence admissible in such cases. People v Smith, 282 Mich App 191, 204; 772 NW2d 448
(2009).
Affirmed.
/s/ Douglas B. Shapiro
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
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