PEOPLE OF MI V ROBERT WILLIAM DUNCAN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 6, 2010
Plaintiff-Appellant,
v
No. 292602
Wayne Circuit Court
LC No. 08-003062
ROBERT WILLIAM DUNCAN,
Defendant-Appellee.
Before: METER, P.J., and MURRAY and BECKERING, JJ.
MURRAY, J. (dissenting).
Delayed leave to appeal was granted in this case for us to decide whether the trial court
abused its discretion in granting defendant a new trial. Although we are dealing with both
preserved and unpreserved non-constitutional evidentiary error, the ultimate issue is whether any
errors were outcome determinative. See People v Cress, 468 Mich 678, 692; 664 NW2d 174
(2003) and People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). After review of the trial
record I cannot conclude that any error (if any) in the admission of the hearsay evidence and
references to defendant’s criminal past was more probably than not outcome determinative. I
would therefore reverse.
The critical issue is whether the improper hearsay admissions and references to
defendant’s “felony” record1 warranted the granting of a new trial. A trial court may order a new
trial “on any ground that would support appellate reversal of the conviction or because it believes
that the verdict has resulted in a miscarriage of justice.” MCR 6.431(B). In order for defendant
to prevail under either the appellate reversal prong or the “miscarriage of justice” prong, he must
show that it is more probable than not that the evidentiary error (whether it was preserved or
unpreserved) was outcome determinative. People v Coy, 258 Mich App 1, 12; 669 NW2d 831
(2003); Lukity, 460 Mich at 495-496. However, the Legislature has also commanded that no
verdict shall be overturned on the basis of the improper admission of evidence unless, after
1
As seen in all three opinions issued in this case, there was no error in the admission of
testimony regarding defendant’s prior felonies.
-1-
examining the entire case, it affirmatively appears that the errors resulted in a miscarriage of
justice. MCL 769.26. The Lukity Court explained how this is to be determined:
The object of this inquiry is to determine if it affirmatively appears that the error
asserted “undermine[s] the reliability of the verdict.” [People v Mateo, 453 Mich
203, 211; 551 NW2d 891 (1996).] In other words, the effect of the error is
evaluated by assessing it in the context of the untainted evidence to determine
whether it is more probable than not that a different outcome would have resulted
without the error. Therefore, the bottom line is that § 26 presumes that a
preserved, nonconstitutional error is not a ground for reversal unless “after an
examination of the entire cause, it shall affirmatively appear” that it is more
probable than not that the error was outcome determinative. [Lukity, 460 Mich at
495-496 (footnote omitted).]
In granting a new trial the trial court relied upon two errors that it found constituted
ineffective assistance of counsel, and then concluded that the cumulative effect of those errors
warranted a new trial.2 Specifically, the court found that defense counsel was constitutionally
ineffective in failing to object to several general references that defendant had prior felonies.
The court concluded that the evidence was inadmissible and damaged defendant in this
credibility contest. The court also found that defense counsel should have objected to several
instances of hearsay evidence. Those failures in combination, the trial court concluded, resulted
in a trial that “call[ed] into question the integrity and public reputation of this Court’s judicial
proceedings.”
In People v Petri, 279 Mich App 407, 410-411; 760 NW2d 882 (2008), we set forth the
stringent standard3 for deciding ineffective assistance of counsel arguments:
Effective assistance of counsel is presumed and defendant bears the
burden of proving otherwise. [People v LeBlanc, 465 Mich 575, 578; 640 NW2d
246 (2002).] To succeed on a claim of ineffective assistance of counsel, the
defendant must show that, but for an error by counsel, the result of the
2
The majority asserts that the trial court also based its decision on the “discovery of new
evidence,” but both it and the trial court held that the information in the Sobo affidavit was not
newly discovered. Additionally, the trial court made no findings about Sobo’s credibility during
trial, and only concluded that her affidavit made her testimony “potentially questionable.”
3
In deciding this issue, the trial court cited to People v Garcia, 398 Mich 250; 247 NW2d 547
(1976), People v Breakfield, 63 Mich App 692; 234 NW2d 758 (1975), and People v Lotter, 103
Mich App 386; 302 NW2d 879 (1981). However, the Garcia test was rendered obsolete back in
1994, see People v Carbin, 463 Mich 590, 597 n 6; 623 NW2d 884 (2001), and since both Lotter
and Breakfield relied on either Garcia or the now-outdated cases that Garcia relied upon, the
tests they utilized are likewise obsolete. People v Kevorkian, 248 Mich App 373, 427 n 129,
427-428; 639 NW2d 291 (2001).
-2-
proceedings would have been different, and that the proceedings were
fundamentally unfair or unreliable. People v Odom, 276 Mich App 407, 415; 740
NW2d 557 (2007). The defendant bears a “heavy burden” on these points.
People v Carbin, 463 Mich 590, 599; 623 NW2d 884 (2001). Defendant must
overcome a strong presumption that counsel’s performance constituted sound trial
strategy. People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611
(2003). “This Court will not substitute its judgment for that of counsel regarding
matters of trial strategy, nor will it assess counsel’s competence with the benefit
of hindsight.” People v Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001).
And, because no evidentiary hearing was held on this issue, we are limited to mistakes apparent
on the record. People v Rockey, 237 Mich App 74, 77; 601 NW2d 887 (1999).
Although there is certainly no per se rule that an attorney engages in constitutionally
deficient performance by failing to object to non-responsive hearsay, I will assume that trial
counsel did not live up to the required standard in failing to object to the challenged hearsay
testimony or the references to defendant’s “prior felonies.” Nonetheless, the otherwise properly
admitted evidence establishes that the errors of counsel did not result in the conviction of an
actually innocent defendant, nor did it otherwise impugn the fairness and integrity of the
proceedings.
Here, in carving out the improper evidence that should have been excluded, the jury still
would have heard detailed testimony from the victim that she and defendant had sex on two
occasions. The victim’s testimony regarding the details of the sexual encounters was clear and
consistent, and as the trial court recognized, was sufficient for a jury to convict defendant of the
charged offenses.4
It is important to remember that a jury may convict based only on the uncorroborated
evidence of a CSC victim, People v Lemmon, 456 Mich 625, 643 n 22; 576 NW2d 129 (1998);
MCL 750.520h, and the jury was so instructed in this case.5 Although defendant denied any
4
The elements of third-degree CSC that defendant was charged with violating are that the
individual engages in sexual penetration with another person who is at least 13 years of age and
under 16 years of age. MCL 750.520d(1)(a). “‘Sexual penetration’ means sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a
person’s body or of any object into the genital or anal openings of another person’s body . . . .”
MCL 750.520a(r).
5
The majority makes several references to the fact that the trial court did not instruct the jury on
what it means to “sustain” an objection. However, there are no Michigan criminal jury
instructions covering this issue, nor is there any case law requiring such an instruction. In light
of this, defense counsel could not be faulted, nor could the trial be tainted, by not providing an
instruction that does not exist and which is not required. However, during the testimony of the
victim’s sister, Courtney, and in response to one of ten hearsay objections made during her
testimony alone, the trial court indicated to the witness (and the jury) that there can be no
(continued…)
-3-
sexual contact with the victim, determinations of credibility rest with the trier of fact, not this
Court. People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). Not only was there
sufficient evidence about the actual crime, but evidence from other witnesses existed to support
the victim’s testimony about what occurred before, during and after the crimes. Additionally,
there was evidence (to which no objection was lodged in the trial court nor in our Court)
showing defendant expressing a sexual interest in the victim. In other words, without the tainted
evidence the jury was still presented with a complete story, with an opposite version (at least as
to whether the crimes occurred) from defendant.
There is no doubt that some of the inadmissible evidence supported the victim’s
credibility in that it buttressed what she said happened, or conversely could have damaged
defendant. However, because of the nature and circumstances of its admission, the evidence did
not reach a level such that a new trial is should be granted. For example, several hearsay
statements made by the victim6 were simply a repetition of what she had already testified to in
open court. People v Meeboer, 181 Mich App 365; 373-374; 449 NW2d 124 (1989) aff’d 439
Mich 310 (1992); People v Anderson, 79 Mich App 174, 176; 261 NW2d 55 (1977).
Additionally, Courtney’s testimony that the victim informed her at the gift exchange party that
she had just returned from defendant’s house was duplicative of the victim’s admissible
testimony that she told her friends at that party that she was leaving and going to defendant’s
house, MRE 803(3), as well as that of Courtney who also attended the party and saw the victim
leave and come back, Anderson, 79 Mich App at 176. Finally, although Courtney testified that
defendant’s mother initially stated to defendant at a meeting, “you really messed up this time”,
Courtney almost immediately testified that defendant’s mother “did not know what was going
on” and appeared “calm” before they sat down to discuss the issue. More importantly, an
objection to this testimony was sustained.7 See n 3, supra.
As noted by the majority, the general references to defendant’s “prior felonies” were not
admitted in error. See People v Schaw, __ Mich App __; __ NW2d __ (Docket No. 286410,
issued April 20, 2010). However, even if those references did erroneously get before the jury,
they were minimized by defense counsel’s questioning of defendant, where he indicated that the
(…continued)
testimony about what other people said unless the court specifically allowed it.
6
Specifically, the victim testified that (1) she told Melissa Duncan (defendant’s daughter) that
the rumors of an affair between the victim and defendant were true and (2) that she called
defendant and told him she told Melissa that the rumor was true. A third statement at issue was
Melissa’s testimony that the victim informed her that the rumor was true. Thus, three of the
eight hearsay statements found to be inadmissible related to the same conversation topic, i.e., the
victim confirming to Melissa that the rumored affair was true.
7
The majority states that defense counsel only objected twice, but really he only objected to two
of the contested hearsay statements. It is important to recognize that this is not a case where
defense counsel sat by silently as the trial progressed. Indeed, as an example of defense
counsel’s performance, he objected ten times on hearsay grounds during Courtney’s testimony
alone, nine of which were sustained.
-4-
convictions were for drug offenses. Thus, even if the jurors were improperly aware that
defendant had prior convictions, defense counsel made sure they knew that the prior convictions
were not related to any sexually criminal behavior.
In the final analysis, the overall impact of this evidence did not, in my view, render this
case unfair8 or result in outcome determinative error. People v Toma, 462 Mich 281, 302; 613
NW2d 694 (2000). The contested evidence that was admitted without objection simply did not
impugn the entire trial such that it would call into question the integrity of the judicial process.
There was more than ample untainted evidence supporting defendant’s convictions. In reaching
this conclusion, I recognize the difficulty faced by an appellate court in deciding whether
evidentiary errors actually constitute outcome determinative error, as we are reviewing a “cold”
record. Nevertheless, it is our appellate function to make this determination. And, with all due
respect to my colleagues, I am convinced that the trial court abused its discretion in granting a
new trial.9
/s/ Christopher M. Murray
8
As the trial court correctly noted, a defendant is entitled to a fair trial, not a perfect one. People
v Miller, 482 Mich 540, 559-560; 759 NW2d 850 (2008). Of course, drawing the line as to what
is a “fair” trial can be a difficult task.
9
I agree with the trial court and majority that the Sobo affidavit did not constitute new evidence,
as it did not recant her prior testimony and the basis of the affidavit was certainly discoverable
before trial. Cress, 468 Mich at 692.
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.