PEOPLE OF MI V DANIEL SANFORD TESEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
June 26, 2007
9:10 a.m.
Plaintiff-Appellant,
v
No. 275401
Livingston Circuit Court
LC No. 06-015972-FC
DANIEL SANFORD TESEN,
Defendant-Appellee.
Official Reported Version
Before: Markey, P.J., and Sawyer and Bandstra, JJ.
PER CURIAM.
On remand from the Supreme Court for consideration as on leave granted,1 the
Livingston County Prosecuting Attorney appeals from an order of the trial court that disqualified
an assistant prosecutor from trying this criminal case. We conclude that, because that prosecutor
had assumed a lead role in investigating the case and, therefore, was likely to be a necessary
witness at trial, the disqualification order was not clearly erroneous, and we affirm.
Background Facts
On May 24, 2006, a criminal and child protective services investigation was initiated on
the basis of a complaint that defendant had sexually assaulted his 12-year-old son. In accordance
with the Livingston County Protocol for Investigation of Child Abuse (Protocol), the
investigating officer did not extensively interview the child. Instead, he reported the matter to
the Livingston Area Council Against Spouse Abuse (LACASA), a nonprofit organization that
works with victims of domestic violence, sexual assault, and child abuse, for a forensic interview
by team members of the CARE (Child Abuse Response Effort) Project. A CARE interview is a
coordinated, multi-disciplinary, team-based interview used in investigations of child abuse or
neglect. The goal of this forensic interview is to obtain a statement from a child in a
developmentally sensitive, unbiased, and truth-seeking manner, that will support accurate and
fair decision-making in the criminal justice and child welfare systems.
1
See People v Tesen, 477 Mich 980 (2007).
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On May 25, 2006, defendant's son was interviewed by one of the CARE team members,
Assistant Prosecuting Attorney Daniel Rose, with five other team members observing all or a
portion of the interview. The next day, Rose authorized the warrant charging defendant with 14
counts of first-degree criminal sexual conduct, two counts of disseminating obscene material to a
minor, one count of third-degree child abuse, and one count of truancy for failing to send his son
to school. Rose was assigned to prosecute the case.
Before the preliminary examination, defendant moved in the district court to disqualify
Rose from the case, asserting that as a result of his lead role in interviewing the victim, Rose is a
"material witness" who the defense "reasonably intends to call . . . as a witness at the preliminary
examination, and possibly at trial." Defendant argued that Rose's testimony would relate "to
highly contested facts that form the basis of the criminal charges" and that the prosecution would
suffer no hardship by assigning a different prosecutor to the case. The prosecution filed a
response asserting that Rose was not a necessary witness.
Testimony at an evidentiary hearing on the matter established that Rose conducted the
interview at LACASA's offices and that it was observed in its entirety or in part by five other
persons. Only Rose and the victim were in the interview room; the observers viewed the
interview through a one-way mirror from an adjacent room. The witnesses' testimonies
regarding the length of the interview varied from one hour to less than two hours.
Michalyea Subjeck, an employee of the Department of Human Services, testified that she
observed the entire interview. Her role was to take notes so that a report could be prepared, and
to that end she generated 12 pages of handwritten notes. Her notes focused on the child's
responses to questions; she did not write down a list of the questions asked by Rose. Elizabeth
Stahl, program director for LACASA, testified that her duties are to coordinate and attend all
CARE Project interviews. Stahl was present for all but about 10 minutes of the interview and
also took notes. Chris Roselle, a LACASA legal advocate, observed the last half of the
interview, but she did not take notes.
Livingston County Sheriff 's Department Detective Gary Childers testified that the CARE
Project team members, including himself and Detective James McGinty, held a preinterview
meeting during which "it was agreed that Mr. Rose would conduct the interview" and that he
(Detective Childers) would take notes and prepare a police report. Detective Childers testified
that he observed the entire interview. After preparing his police report, he shredded his
interview notes, as is his normal practice. Similarly, Detective James McGinty testified that he
was the lead officer in the case but assigned Detective Childers to cover the interview. Detective
McGinty observed the entire interview except for about one minute when he left to take a phone
call. He did not take notes and did not prepare a police report.2
2
According to the Protocol, a CARE Project interview of a suspected child abuse victim must be
videotaped. Videotaping is also required under state protocols applicable to this type of forensic
investigation. The interview was not recorded on audio or videotape.
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At the conclusion of the hearing, the district court denied the motion to disqualify Rose,
reasoning that there was no caselaw distinguishing between a prosecutor as an investigator and
as an interviewer and that, while it was "dangerous" to "confuse the roles," it was important for a
prosecutor to be present when a child abuse victim is interviewed. The court expressed its
concerns as follows:
I think this is very dangerous. I think it's like going—a prosecutor doing
its [sic] own investigation. I find it difficult to believe that if a prosecutor was the
only witness to an incident that, that he could continue as a prosecutor, because
he, of course, would become the key witness to a case. You can't confuse the
roles. On the other hand, I also understand that a prosecutor must determine what
charges to issue; and that's the purpose of the CARE Project. But it was always
my understanding from the CARE Project that that's what the people from
LACASA were trained to do. And that's to question these witnesses, and that the
prosecutor could be there if they [sic] wanted to offer any legal advice, which is
part of the protocol; or ask any questions. For some reason, that method was not
used. However, I don't think that it creates such an issue that Mr. Rose has to be
disqualified. I do believe that he was dangerously close to being disqualified
because there wasn't any person who was there, and he could say—or people
testify, "Oh, I was gone for one minute". But that's one minute. Who knows if it
was one minute, three minutes, five minutes? Again, there're no witnesses to that.
Not even the officer in charge can remember everybody who was there, except
that officer in charge and Detective Childers. So there are questions about that,
but I submit that if Detective Gary Childers was not there for the entire interview
and could not be reached as a witness, then Mr. Dan Rose has placed himself in a
witness position. But based upon all the facts and the case law, I'm going to deny
the defense motion at that [sic] time.
A preliminary examination was held and defendant was bound over on all the charges.
Thereafter, defendant filed a motion in the circuit court to disqualify Rose, arguing grounds
similar to those he argued in the district court, but not indicating that the district court had ruled
on the issue. The prosecutor opposed the motion, arguing that the issue was res judicata and, if
not res judicata, that defendant had failed to demonstrate that Rose was a necessary witness in
the case.
At a hearing, the circuit court inquired of defense counsel whether formal charges had
been filed at the time of the victim's interview. Counsel responded that charges had not been
filed and that Rose's lead role in the investigation—as opposed to preparation for trial by
interviewing a complainant—led him to "cross[] the line and bec[o]me essentially a law
enforcement officer at that time, a fact gatherer, and it will hamstring the defense if he is allowed
to continue in the prosecution of this case." Defense counsel specifically argued that he would
not be able to cross-examine the interviewer regarding his qualifications or whether the Protocol
was followed, and that the jury's knowledge that Rose conducted the interview would place the
defense at an "unfair disadvantage."
After listening to the arguments of counsel, the court ruled as follows:
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The Court: This is a capital case, and there's certainly a balancing of
interest that I have to do. From my review, I believe that given the lack of the
videotaping, the initial contact being made by the Prosecutor in this case, that it is
appropriate to grant the—the motion. And on that basis, I'm going to disqualify
Mr. Rose from prosecuting the case.
Mr. Spickard [defense counsel]: (inaudible), Your Honor.
Mr. Rose: Implied in the Court's decision are you ruling that this matter is
not res judicata or collateral estoppel?
The Court: I've made my ruling, Mr. Rose.
The court entered an order granting the disqualification motion, from which the prosecutor
appeals.
Analysis
As a preliminary matter, the prosecution argues that the circuit court erred by reviewing
de novo the district court's decision to deny defendant's disqualification motion because
defendant was barred by res judicata from relitigating this issue.3 Alternatively, the prosecution
contends that the circuit court erred in reviewing the issue because defendant did not appeal the
district court's decision to the circuit court. We need not consider whether the principles of res
judicata or appellate jurisdiction upon which the prosecution relies could ever apply in a case
like this because, under the facts presented, the circuit court did not reconsider the question
addressed by the district court.
Defendant moved in the district court to disqualify Rose from representing the people in
the preliminary examination, noting that he reasonably intended to call Rose to testify at the
preliminary examination. The district court never entered a written order that would definitively
show that its decision to deny defendant's motion was limited to Rose's participation in the
preliminary examination. However, the district court stated on the record that an evidentiary
hearing would be scheduled "so that Mr. Rose knows whether or not he becomes a witness or
continues as a Prosecutor in this matter for the preliminary exam." On the basis of defendant's
motion and the district court's statement, we conclude that the district court did not intend to
decide whether Rose could participate in proceedings outside the jurisdiction of the district court.
See MCL 600.8311(d) (district courts are courts of limited jurisdiction, which includes
jurisdiction over preliminary examinations in felony cases). Thus, the issue of Rose's
participation in the criminal trial had not been decided before the circuit court ruled that Rose
was disqualified from that participation.
Turning to the substantive question presented, the prosecution argues that the circuit
court erred by concluding that Rose is a necessary witness and by disqualifying him. The
3
All aspects of the issues the prosecution raises are preserved for appeal.
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prosecution contends that there are other witnesses who can testify regarding the same matters
about which Rose would be called to testify; Rose interviewed the victim in the full view of five
other people, all of whom are available to testify. Thus, the prosecution argues that defendant
did not show a compelling and legitimate need to call Rose as a necessary witness at trial.
Again, we disagree.
The trial court's findings of fact in regard to a motion for disqualification of counsel are
reviewed for clear error. Buchanan v Flint City Council, 231 Mich App 536, 547; 586 NW2d
573 (1998). However, this Court reviews de novo the trial court's application of the relevant law
to the facts. Brandon Charter Twp v Tippett, 241 Mich App 417, 421 n 1; 616 NW2d 243
(2000). Further, the application of "ethical norms" to a decision whether to disqualify counsel is
also reviewed de novo. Rymal v Baergen, 262 Mich App 274, 317; 686 NW2d 241 (2004)
We first note that the question raised is one of first impression. No reported Michigan
court decision (or unpublished appellate decision) has determined whether a prosecutor should
be disqualified from trying a felony child sexual abuse case because he or she took a lead role in
the criminal investigation by conducting the forensic interview of the victim.
We begin our analysis by noting the difference between the role of a prosecutor, who is
an advocate, and that of the police and other investigators, who gather evidence. Generally, it is
recognized that the prosecutor's job is to evaluate the evidence provided by investigators and
determine whether to prosecute a crime. See, e.g., Buckley v Fitzsimmons, 509 US 259, 273; 113
S Ct 2606; 125 L Ed 2d 209 (1993).
A prosecutor is both an administrator of justice and an advocate whose duty is to seek
justice, not merely to convict. ABA Standards for Criminal Justice, Prosecution Function
Standards (3rd ed), 3-1.2. See also MRPC 3.8, outlining the special responsibilities of a
prosecutor. Certainly, a prosecutor may properly conduct interviews of prospective witnesses,
including a victim, but such interviews generally occur after the police have completed an initial
investigation and a criminal prosecution has been initiated. Even in those latter situations, the
ABA Standards for Criminal Justice provide that a prosecutor should conduct interviews of a
prospective witness in the presence of a third person unless the prosecutor "is prepared to forgo
impeachment of a witness by the prosecutor's own testimony as to what the witness stated in an
interview or to seek leave to withdraw from the case in order to present the impeaching
testimony . . . ." ABA Standards for Criminal Justice, supra, 3-3.1(g), including commentary.
Similarly, the Michigan Rules of Professional Conduct prohibit attorneys from acting as
advocates at trials where they are likely to be necessary witnesses. MRPC 3.7 provides, in
relevant part:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered
in the case; or
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(3) disqualification of the lawyer would work substantial hardship on the
client.
Michigan courts have observed that the purpose of the rule is to prevent any problems that would
arise from a lawyer's having to argue the credibility and the effect of his or her own testimony, to
prevent prejudice to the opposing party that might arise therefrom, and to prevent prejudice to
the client if the lawyer is called as an adverse witness, not to permit the opposing party to seek
disqualification as a tactical device to gain an advantage. Smith v Arc-Mation, Inc, 402 Mich
115, 119; 261 NW2d 713 (1978); Kubiak v Hurr, 143 Mich App 465, 471, 475; 372 NW2d 341
(1985).
More recently, this Court in People v Holtzman, 234 Mich App 166, 186; 593 NW2d 617
(1999), observed that the rule is "especially salient in criminal cases" and acknowledged United
States v Birdman, 602 F2d 547, 553-554 (CA 3, 1979), in which the court offered four reasons
why our justice system would be undermined if prosecutors could serve the dual roles of trial
advocate and witness: (1) the risk that a prosecutor would not be a fully objective witness, (2) the
prosecutor's position may artificially enhance his or her credibility, (3) jurors might fail to
differentiate between the prosecutor's testimony and his or her arguments, and treat the latter as
evidence, and (4) public confidence in the administration of justice could be undermined. Also,
the comment to MRPC 3.7 provides, in relevant part:
The opposing party may properly object where the combination of roles
may prejudice that party's rights in the litigation. A witness is required to testify
on the basis of personal knowledge, while an advocate is expected to explain and
comment on evidence given by others. It may not be clear whether a statement by
an advocate-witness should be taken as proof or as an analysis of the proof.
The party seeking disqualification in such a situation bears the burden of showing that the
attorney is a necessary witness. In re Susser Estate, 254 Mich App 232, 237-238; 657 NW2d
147 (2002). While there is no Michigan case explicitly defining the term "necessary witness,"
both the Michigan Supreme Court and this Court have found that attorneys are not necessary
witnesses if the substance of their testimony can be elicited from other witnesses and the party
seeking disqualification did not previously state an intent to call the attorney as a witness. Smith,
supra at 119; In re Susser Estate, supra at 237-238. The prosecution argues that Rose is not a
necessary witness because his testimony can be elicited from the five other people who observed
the interview.
However, as defendant notes, the observers cannot testify regarding Rose's qualifications
to conduct the interview, whether he has received training in the forensic interview Protocol,
how many forensic interviews he has conducted, and how and why he developed the questions
and hypotheses that he used during the interview. These questions are important because the
Protocol for interviewing child victims is very specific and detailed to address the difficulties
that may be encountered when interviewing children. The questions would clearly be of some
value to a fact-finder trying to determine the weight and credibility of the victim's account of the
charged offenses. Rose may well have other personal knowledge of information relevant to
contested issues, and, again, much of that personal knowledge cannot be discovered through the
observers' testimony.
Also, defendant clearly stated in his circuit court motion for
disqualification an intent to call Rose as a witness, and the prosecution does not claim any
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hardship if Rose's disqualification requires that another prosecutor be assigned to handle the trial.
Finally, we note that the circuit court was probably, cautiously and appropriately, trying to stave
off a mistrial in the event that, in the middle of trial, it became more obvious that Rose was a
necessary witness.
We do not conclude that the circuit court's disqualification of Rose was clear error. We
affirm.
/s/ Jane E. Markey
/s/ David H. Sawyer
/s/ Richard A. Bandstra
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