PEOPLE OF MI V JASON ALLEN BOISMIER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 28, 2010
Plaintiff-Appellant,
v
No. 291642
Wayne Circuit Court
LC No. 08-012562-01
JASON ALLEN BOISMIER,
Defendant-Appellee.
Before: SHAPIRO, P.J., and SAAD and SERVITTO, JJ.
SHAPIRO, P.J., (dissenting).
Contrary to the lead opinion, I would not, based on this record, conclude that the trial
court erred in finding prosecutorial misconduct. Further, contrary to the concurrence, I would
not find the misconduct to be harmless. Finally, I would not find that the trial court abused its
discretion in granting a new trial.
The claimed misconduct concerned a question posed by the prosecutor in crossexamination of defendant. Defendant was charged with sexual penetration of a girl between 13
and 16 years of age. Defendant denied that any such sexual encounter occurred. When crossexamining defendant, the prosecutor suggested to the jury that defendant had told his neighbor,
David Gasidlo, that he had sex with the girl, but that she had consented. The prosecutor asked,
“Isn’t it true that you told Mr. Gasidlo that you had consensual sex with [the victim]?” When
defendant responded, “No,” the prosecutor reiterated the inquiry, “Did you tell anybody that you
had consensual sex with [the victim]?” On defense counsel’s request, the attorneys then
approached the bench and a sidebar conference was conducted off the record. Immediately
following the sidebar, the prosecutor again asked, “Did you tell anyone that you had consensual
sex with [the victim]?” When defendant again answered, “No,” the prosecutor indicated that she
had concluded her cross-examination.
Later on the same day, defense counsel indicated that he wanted to put “something on the
record regarding the side-bar conversation” and claimed that the assistant prosecutor had asked a
question that she knew was misleading and false. The trial court recommended that defense
counsel raise the issue with the attorney grievance commission; but despite repeated requests
from defense counsel, the court declined to rule on counsel’s request for a curative instruction
specifically addressing the prosecutor’s final questions. Moreover, the trial court did not give the
standard instruction that the attorney’s questions are not evidence.
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After the defendant was found guilty, the defense filed a motion for new trial asserting,
among other things, that the prosecutor’s repeated asking of the question regarding statements to
the neighbor constituted misconduct. The trial court, despite having missed the opportunity to
give the jury a curative instruction, granted the motion and stated:
“I think that there, as a result of direct disobeying of a Court order, not order as
such, but a conference that was had between all the lawyers and the Court
instructing the lawyers on how to proceed with the questioning of the defendant
as it relates to accusation and information, I think that this rises to prosecutorial
misconduct. I think that in this particular case there was a strict direction that was
given to the prosecution on how to approach the cross-examination. It was, in my
mind, intentionally violated. And, as such, I think tainted the entire trial.”
The prosecution sought leave to appeal. We remanded to the trial court with direction to
conduct a hearing “to resolve whether the prosecution had a good-faith basis for asking the
questions, and if not, to address whether defendant was prejudiced and denied a fair trial as a
result.” We further directed that the trial court should “explain on the record the substance of the
conversation between the court and the attorneys during their side-bar conference.”
The trial court did not conduct an evidentiary hearing, but did make a record as to its own
recollections of off-the-record conversations. The court explained that the prosecutor had sought
to endorse David Gasidlo on the date of trial as a late witness asserting that he would testify that
defendant told him that defendant had had consensual sex with the victim. The court indicated it
would rule on the motion after the defense had been allowed to interview Gasidlo, after which
the court would rule. The court went on to explain that at a sidebar that occurred while “the
prosecution as winding up its case,”1 he was told that “[the prosecution] had interviewed or reinterviewed Mr. Gasidlo and that during his interrogation, [Gasidlo] revealed that [defendant],
had never told him that he had had consensual sex with [the complainant] and now [the
prosecution] was moving to withdraw their motion to endorse [him].” Per the court’s
recollection, “defense counsel then asked me to instruct the prosecution to not ask [defendant]
any questions regarding any admissions to consensual sex with [the complainant] because it had
never happened and there was no good-faith reason to ask a question that they knew the answer
to because it wouldn’t do anything but plant a seed that perhaps [defendant] had told Ms. [sic]
Gasidlo something and was just denying it on the witness stand . . . . I granted the motion to
withdraw the witness and ordered the prosecution not to ask any questions regarding an
admission that was never made. After being ordered not to ask any questions, the prosecutor,
during the cross-examination of [defendant] asked [the prohibited question].” The court went on
to note that the prosecutor asked the question a third time even after being “warned again” during
the sidebar that occurred during the cross-examination of defendant.
The court concluded that “the prosecution violated a direct order of the Court . . . [a]nd
by violating this order given, because the plaintiff’s own investigation revealed no admission of
1
This therefore was a different sidebar than the one that occurred during the defendant’s
testimony later in the trial.
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consensual sex . . . there existed absolutely no good-faith basis for asking these questions. As a
result of the prosecutor’s deliberate and premeditated actions, this Court finds that, indeed,
because they had no good-faith basis for asking the question, it can only be deemed as bad faith
to try to implant a doubt as to the credibility of [defendant]. The deliberate actions of the
prosecution then denied [defendant] his right to a fair trial. . . . And because there was not one
iota of evidence other than the credibility issue of the complainant in this case, to inject that
question was only for the purpose of crashing into the credibility of the witness in an area where
there certainly was nothing to base that question on. . . . [T]he People just chose not to listen to
what the Court had directed them to do, not as a suggestion, but as an order, violated the order
and had absolutely no good faith for it.”
Following the remand, the prosecution filed a motion in this Court to expand the record
in order to include an affidavit from the trial prosecutor. We granted that motion. The defense
then filed a similar motion in order to include affidavits from David Gasidlo, the witness at issue,
and his daughter, Starr Gasidlo, to whom the prosecutor’s affidavit referred. We granted that
motion as well.
The prosecutor’s affidavit stated that on the first morning of trial she interviewed Starr
Gasidlo in the presence of a police officer and the prosecutor’s office victim advocate.
According to the prosecutor’s affidavit: (1) Starr and her parents had previously refused to
provide a written statement or to speak with the police about the case; (2) during the interview on
the morning of trial, Starr told the prosecutor that her father (David Gasidlo) had told her (Starr)
that defendant told him that defendant had had consensual sex with the victim; (3) the prosecutor
informed defense counsel of these statements and made Starr available to defense counsel for
questioning; (4) the police department located David Gasidlo and he denied making the
statement attributed to him by his daughter; (5) the prosecutor then advised defense counsel and
the court that David Gasidlo had denied making the statement attributed to him; and advised
defense counsel and the court that the prosecution would not be calling David Gasidlo as a
witness; and that (6) the prosecutor had no further out-of-court contact with Starr Gasidlo.
The prosecutor’s affidavit also spoke to events in the courtroom and sharply contradicted
the trial court’s findings on remand. She attested that, “Before the beginning of the crossexamination of Defendant, I was not ordered by the Court not to ask any questions regarding
admissions of consensual sex,” and maintained, “After I asked two questions regarding
consensual sex, a sidebar was held. The Court immediately asked me whether I intended to ask
the defendant whether he admitted to President Obama that he had consensual sex with the
victim. I replied no, of course not and the sidebar ended.”
The prosecutor’s affidavit also stated that after this Court remanded the case, she
requested a hearing and was advised by the court’s clerk that no hearing was going to be
scheduled and that the court would make its findings on the record on an undisclosed date
without the parties present.
The affidavit signed by Starr Gasidlo and submitted by the defense after remand
recounted the pre-trial events quite differently. She attested that she did have a conversation
with the prosecuting attorney and a police officer on the morning of trial, but that,“Regardless of
what they have said, I never informed them that my father had told me that Mr. Boismier had
admitted to having consensual sex with [the victim].” She went on to state, “I told them that I
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overheard my father talking to Mr. Boismier, but I did not tell them anything specific about what
my father indicated Mr. Boismer said to him during that conversation.”
In the affidavit signed by David Gasidlo and submitted by defense counsel, Mr. Gasidlo
avers that: (1) he does not believe that the prosecutor’s affidavit is accurate; (2) he never stated
to anyone, including his daughter, Starr, that he had had conversations with Jason Boismier
about the sexual assault charge or the events giving rise to it; (3) he never told anyone, including
his daughter that defendant told him that defendant had had consensual sex with the victim; and
(4) during the trial, police officers came to his home and he told them these facts.
With this record2, we are now asked to determine whether the trial court abused its
discretion in granting the motion for new trial. A new trial may be granted “for any cause for
which by law a new trial may be granted or when it appears to the court that justice has been
done.” MCL 770.1.
The lead opinion would hold that the prosecutor’s questions concerning whether
defendant made the incriminating statements to David Gasidlo did not constitute misconduct.
The lead opinion suggests that the general rule that cross-examination “may be piercing and
aggressive” is sufficient to permit the questioning. I disagree for two reasons.
First, according to the trial court, the prosecutor asked these questions despite being
specifically directed by the court not to do so in an off-the-record sidebar. The lead opinion
seems to adopt the view that the trial court’s statements, made on the record, about the sidebar
events are not credible. While one may reasonably question the trial court’s recollection,
particularly in light of the prosecutor’s affidavit, I do not see how we can simply ignore or
overrule on-the-record statements of a trial judge concerning what occurred in his or her
presence in the courtroom. Had the lead opinion held that a further hearing was required to
determine the actual events, I would likely have concurred. However, for our Court to overrule a
trial court simply by implying that the trial judge intentionally misstated the truth would make
many rulings of this court difficult to justify since we routinely rely upon the veracity of the trial
court. Moreover, as I read the record, the trial court’s description of the events is not
unreasonable on its face and is, with the exception of precisely what was said at the side-bar(s),
largely consistent with the prosecutor’s version of events.
Second, in my view, the lead opinion picks and chooses among the affidavits and acts as
a fact-finder. The opinion states that the concurrence “unfairly imputes to the prosecutor an
intent to inject an improper suggestion that the prosecutor had evidence of such an admission.”
Putting aside the central fact that such an intent was found by the trial court to whose findings we
must defer, the lead opinion fails to address the affidavits of Starr and David Gasidlo and simply
assumes the truth of the prosecutor’s affidavit. The lead opinion states that to accept David
Gasidlo’s affidavit is to deny what Starr told the prosecutor and two witnesses. However, that
2
The prosecution did not submit affidavits from the two other persons it asserts heard Starr’s
statement on the morning of trial nor did the defense submit an affidavit from defense counsel as
to his recollections of the relevant events.
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assumes that Starr made the statements attributed to her by the prosecutor. In fact, Starr’s
affidavit states that she never made those statements and implies that the prosecutor’s statements
are false. Hence, the discrepancy is not between what Starr told the prosecutor and David’s
affidavit, but rather between what the prosecutor says Starr told her, and the affidavits of both
Starr and David, which indicate that Starr never said what the prosecutor said she did. The lead
opinion also states that Starr “did not revoke this statement” about defendant’s alleged
inculpatory remarks to her father. However, Starr is not under any obligation to “revoke” a
statement that she never made, and she asserted in her affidavit that she never made it.
We can avoid all of this debate, however, because the prosecutor concedes that the only
thing providing a “good faith” basis for the question was that Starr had told the prosecutor of a
hearsay statement by her father – a statement that the prosecutor knew had been denied by her
father, the alleged declarant, before the prosecutor ever asked the subject questions of the
defendant. Thus, even if the prosecutor’s statements concerning her conversation with Starr are
presumed to be true, I do not believe that the prosecutor’s hope that the hearsay statement
reported to her by Starr was accurate could serve as a good faith basis to ask the subject question
once she was advised by the police that the alleged declarant denied making the statement. It
might be different had she obtained this information from the declarant rather than as a report of
hearsay by his 14-year-old daughter who is a friend of the victim.
The concurrence concludes that while the prosecutor’s question constituted misconduct, a
new trial is not required. However, I believe the concurrence is mistaken in its conclusion that
“[n]o one dwelled on the single question and both the trial court and defense counsel addressed
the issue, thus eliminating any potential prejudice to defendant.” In fact, the prosecutor did
dwell on the question by asking it three times in a row and then emphasized its importance by
ending her cross-examination on that note. As I noted above, the trial court failed to give a
curative instruction despite the urging of defense counsel, and its reading of the standard
instructions on questions by counsel was incomplete on a critical point. Rather than giving the
standard instruction on evidence, CJI2d 3.5, the trial court gave its own evidence instruction.
Notably this instruction did not include the directive in the standard instruction that, “The
lawyers’ questions to witnesses are also not evidence. You should consider these questions only
as they give meaning to the witnesses’ answers.” Instead, the trial court simply told the jury,
“The arguments of the . . . prosecution and the defense attorney is [sic] not evidence. Again,
their opening statements were to tell you what they thought the evidence was and how it was
consistent with the theory they wish you to accept, and that’s what their closings were.” The
court made no reference to statements of the attorneys outside of opening and closing statements,
let alone a specific reference to the evidentiary import of questions.
I agree that there was significant evidence of guilt in the testimony of the victim and the
circumstantial evidence testified to by her friends, particularly concerning the 26-year-old
defendant’s presence with the victim behind a locked bedroom door and the defendant’s
provision of alcohol to underage girls with whom he then shared a hot tub. Indeed, defendant’s
CSC conviction could properly have been based solely upon the testimony of the victim despite
the fact that she testified that much of her memory of the night in question was hazy due to
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extreme intoxication.3 However, we must also consider that there was no physical evidence of
sexual contact and no witness testified that they observed sex acts or even significant physical
contact between the defendant and the victim.4 The case was in large measure a question of
whether the jury believed the victim’s testimony or the defendant’s testimony. Therefore,
questions suggesting that defendant had made inculpatory statements to a good friend – indeed
had confessed to the crime – cannot be dismissed as simply window dressing. Indeed, it is
unlikely they would have been asked if the prosecutor viewed them as such.
While one may question some of the trial court’s conclusions, it is difficult to argue with
its conclusion that the prosecutor asked the questions for the purpose of causing the jury to think
that defendant had confessed to the crime or at least that his testimony at trial should not be
considered credible. These questions effectively constituted the last evidence the jury heard
before the close of proofs and appear to have been timed for maximum impact. It is certainly
reasonable to conclude that the prosecutor’s questions led the jury to believe that the prosecutor
was privy to some information supporting the contention that defendant had confessed the crime
to his neighbor.
Finally, I agree with the lead opinion that the trial court did not comply with the spirit, if
not the letter, of our remand order. The order was intended to require the trial court to take
testimony and determine whether in fact the prosecutor had a good faith belief for her questions.
The trial court did not do so and according to the prosecutor, intentionally refused to take
evidence or even to conduct the hearing in the presence of the parties. This is disturbing, as is
the trial court’s refusal to rule on defense counsel’s repeated request for a curative instruction.
Had the trial court given that instruction, which was so plainly appropriate, my disagreements
with the lead opinion and concurrence would never have arisen. Nevertheless, the fact remains
that it was the trial court that sat through the trial and observed the proceedings, the demeanor of
the witnesses and the conduct of counsel. Despite the trial court’s failings in this case, I do not
believe that we should substitute our judgment as to whether or not the improper questions were
harmless, particularly in the context of a trial court’s grant of a new trial which we review on an
abuse of discretion standard. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008)
Accordingly, I would affirm.
/s/ Douglas B. Shapiro
3
The complainant testified that defendant committed two separate acts of penetration upon her,
separated by a significant period of time and defendant was charged with two counts. Curiously,
the jury convicted defendant of one count and acquitted him of the other. While a jury may
properly reach inconsistent verdicts, the acquittal on one of the counts makes it more difficult, in
my view, to reach the conclusion that the improper questioning was harmless.
4
The only testimony as to witnessed physical contact was two witnesses’ testimony that they
thought the victim was sitting close to or leaning on the defendant in the hot tub.
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