PEOPLE OF MI V PHILLIP EDWARD COLEMAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 14, 2006
Plaintiff-Appellee,
v
No. 260309
Muskegon Circuit Court
LC No. 03-048830-FC
PHILLIP EDWARD COLEMAN,
Defendant-Appellant.
Before: Sawyer, P.J., and Fitzgerald and O’Connell, JJ.
PER CURIAM.
A jury convicted defendant of first-degree criminal sexual conduct, MCL
750.520b(1)(a),1 and the trial court sentenced him to a prison term of 56 months to 20 years. He
appeals as of right. We affirm.
The victim is a friend of defendant’s stepdaughter, Elissa. According to the victim, one
night in December 2001 defendant granted permission for her to spend the night with Elissa, but
remarked to her on the telephone that, “whatever goes on between me and you will stay between
me and you, right?” That night, she and Elissa fell asleep on the living room couch while
watching television. The victim was subsequently awakened by defendant and ended up in his
bedroom. While she was lying on defendant’s bed, defendant removed her pants and underwear
and attempted to insert his penis in her vagina. The victim felt disgusted and scared. She did not
call out for help because she was frightened and was not “really thinking” clearly. After a few
minutes, defendant stopped and walked to his dresser. The victim jumped off the bed, dressed
herself, and ran to the bathroom.
The victim testified that she ultimately returned to the living room couch. Shortly
thereafter, defendant’s wife, Carletta, and another of defendant’s stepdaughters, Danyell, arrived
at the home. The following morning, the victim was upset, scared, and crying. Carletta inquired
as to the reason for the victim’s demeanor. The victim told Carletta that defendant had tried to
have sexual intercourse with her the previous night. Some time later, Elissa asked the victim to
1
The victim was under 13 years of age.
-1-
come over to her home and the victim declined, explaining what transpired with defendant and
indicating that she did not wish to be present when defendant was at home.
Other witnesses corroborated portions of the victim’s testimony. Elissa testified that the
victim was crying one morning after sleeping at her home. The victim would not explain why
she was crying, but she spoke privately to Carletta. Elissa remembered sleeping on the couch the
previous night. Elissa also testified that she and the victim were coming home from school
together sometime after December 2001 when the victim told her that defendant tried to touch
her inappropriately, but then said that defendant did not touch her. Another of defendant’s
stepdaughters, Brianna, acknowledged that the victim was crying the morning after the incident
and spoke to Carletta privately. Carletta acknowledged speaking to the victim the morning after
the assault. Carletta also indicated that the victim continued to visit Elissa but would stay only
until 6:00 p.m. and no longer stayed overnight.
The victim was separately interviewed by Shawn Baker from the Michigan State Police
and by Melissa Peterson, an expert in the behavior of, and interviewing and counseling of,
abused children. Child Protective Services investigator Sue Johnson was present when Baker
interviewed the victim. Baker, Peterson, and Johnson are trained in the forensic protocol for
interviewing children, which requires observation of the child’s demeanor and evaluation of the
child’s statements to look for “red flags” that the child may be fabricating allegations or may
have been coached, brainwashed, or influenced in making her allegations. In both of her
interviews, the victim provided a narrative description of events.2 No “red flags” were observed
at either interview.
Johnson testified that it is typical for a child not to tell her parents about abuse and to
have continued contact with the offender. It is also typical for children not to cry out while being
assaulted. Peterson testified that she did not find any indication that the victim lied or fabricated
the allegations of abuse.
During an interview with Michigan State Police Detective Gary Miles defendant denied
more than thirty times that he had any sexual contact with the victim, repeatedly indicating that
the victim was “just a kid.” Defendant also explained that his daughter, Brianna, was “wide
awake right there” during the time the incident allegedly occurred. Defendant acknowledged
that Carletta spoke to him about the incident the next morning and that she was very angry and
upset.
Several witnesses testified for the defense. George Hubbard was defendant’s coworker at
the Muskegon Heights Police Department in September 2002 when defendant informed him
about the allegations that the victim was making. Hubbard then spoke to the victim and her
mother, and the victim confirmed the allegations. Defendant made no attempt to interfere with a
referral to the State Police for investigation.
2
The victim actually told Baker, when providing a narrative of events, that defendant raped her.
-2-
Defendant’s stepdaughter Danyell testified that, on the night in question, she and Carletta
went to the store between 11:00 and 11:30 p.m. to purchase a furnace filter after the furnace
stopped working. When they left, Elissa and the victim were asleep on the couch, and Brianna
was watching television in a bedroom. Danyell and Carletta were gone for approximately 15 to
20 minutes. When they returned, the victim was in the bedroom with Brianna, asleep in the bed.
Defendant was in the basement, attempting to repair the furnace. Brianna testified that Danyell
told her that the incident allegedly occurred on the night the furnace was not working. Brianna
remembered that night. When she and defendant arrived home, Elissa and the victim were
already asleep on the couch. Brianna watched television in the living room, while defendant
went to the basement to repair the furnace. When Carletta and Danyell went to the store,
Brianna went into the front bedroom to watch television. The victim was asleep in that same
bedroom. Defendant never came upstairs, and neither Brianna nor the victim left the bedroom
during the time that Carletta and Danyell were away. Later, when Brianna asked the victim
about the incident during a telephone conversation, the victim hung up. During a subsequent
conversation, the victim said that defendant tried to touch her, that he tried to rape her, that he
did rape her and then, later, that it did not happen.
I
Defendant argues that the court committed plain error necessitating reversal when it
allowed the testimony of Peterson and Baker that, during their respective interviews of the
victim, they observed no “red flags” indicating that the victim was fabricating the allegations or
that she was influenced or coached in making the allegations.3 Because defendant failed to
object to this testimony at trial, this issue is unpreserved. People v Aldrich, 246 Mich App 101,
113; 631 NW2d 67 (2001). We review unpreserved claims of error for plain error affecting
defendant's substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).
It is well settled that an expert witness may not vouch for the veracity of a victim. People
v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995), amended 450 Mich 1212 (1995); People
v Beckley, 434 Mich 691, 727, 734; 456 NW2d 391 (1990). In Peterson, supra at 352, citing
Beckley, supra, the Court confirmed that an expert may not testify that the sexual abuse occurred,
may not vouch for the victim’s veracity, and may not testify that a defendant is guilty. An expert
may testify, however, regarding typical and relevant symptoms of child sexual abuse for the
purpose of explaining behavior that may be construed by the jury as being inconsistent with that
of an actual abuse victim. Id. An expert may also testify regarding consistencies between the
victim and other victims to rebut an attack on the victim’s credibility. Id. at 352-353. The
purpose of expert testimony “is to provide the jury with background information that it could not
3
In making his argument, defendant notes that the victim’s mother also testified that she did not
see any indication that the victim was lying about the instant events. She tried to see if there
were “red flags” that the victim was not telling the truth, but she was not sure all of the time.
Defendant asserts that this constituted improper opinion evidence, pursuant to MRE 701, but he
concedes that this testimony was not “nearly as damaging” as that of Baker and Peterson because
the victim’s mother disavowed being an expert and did not testify to the substance of the
statements the victim made to her.
-3-
otherwise bring to its evaluation of the child’s credibility.” Id. at 365, citing Beckley, supra at
728 (Brickley, J.).
Defendant asserts that the effect of Peterson’s and Baker’s testimony that they observed
no “red flags” indicating that the victim was fabricating the allegations or was influenced in
making them constituted improper vouching by an expert witness. Initially, we note that Baker
was not offered, nor qualified by the trial court, as an expert. Rather, Baker testified as a lay
witness regarding her investigation of the allegations against defendant. Defendant provides this
Court with no authority for subjecting Baker’s testimony to the criteria set forth in Peterson and
Beckley. Therefore, defendant’s assertion that Baker’s testimony constitutes impermissible
expert testimony is abandoned. People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480
(1998). Even if that testimony was considered as expert testimony for purposes of this issue,
defendant’s argument lacks merit.
The testimony of Baker and Peterson regarding “red flags” was proper. The testimony
revealed that, during forensic interviews, there are certain signs or flags common to alleged
victims that signify that fabrication may be occurring or that the child was coached by or
influenced by another in making the allegations. Neither Baker nor Peterson observed evidence
of these signs or flags during their interview with the victim. The purpose of the challenged
testimony was clearly to provide the jury with background information that it could not
otherwise bring to its evaluation of the victim’s credibility. Peterson, supra at 365. Moreover,
neither Baker nor Peterson testified that the victim was credible, that defendant was guilty, or
that sexual abuse occurred. Id. at 352.
Defendant relies on this Courts’ decision in People v Matlock, 153 Mich App 171; 395
NW2d 274 (1986). In Matlock, this Court reversed defendant’s conviction because the alleged
victim’s rape counselor testified that studies indicated that ninety-five percent of sexually abused
children tell the truth about the abuse and further, that she had treated over one hundred patients
(including the alleged victim) in a four-year period and had never encountered a child that lied to
her about sexual abuse. This Court determined that such testimony “directly vouched for the
[alleged victim’s] credibility” that the acts of sexual abuse took place. Id. at 178. The testimony
placed an “impermissible stamp of scientific legitimacy to the truth of [the alleged victim’s]
story,” and its admission required reversal. Id. at 179.
Unlike the expert in Matlock, however, neither Peterson nor Baker vouched for the
victim’s credibility. Rather, they testified as to their own direct observations of the victim during
the course of their respective interviews of her. The jury could find the entirety of both
Peterson’s and Baker’s testimony to be credible, while at the same time concluding that no
sexual assault took place. The jury was free to conclude that, while Peterson and Baker did not
observe any “red flags” indicating that the victim was fabricating the allegations against the
defendant, she did indeed fabricate those allegations.
On the record before us, we conclude that the trial court did not commit plain error in
allowing witnesses to testify that they observed no behavior during their respective interviews of
the victim that suggested that she fabricated her allegations of sexual assault. Consequently,
there was no plain error requiring reversal. Carines, supra.
-4-
II
Defendant next argues that he was deprived of the effective assistance of trial counsel
because his counsel failed to object to the testimony of Peterson and Baker as discussed above.
To establish a claim of ineffective assistance of counsel, a defendant must show that his
attorney’s representation fell below an objective standard of reasonableness under prevailing
professional norms; that, but for his counsel’s errors there is a reasonable probability that the
results of his trial would have been different; and that the proceedings were fundamentally unfair
or unreliable. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000); People v
Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). To establish that his counsel’s
performance was deficient, “defendant must overcome the strong presumption that his counsel’s
action constituted sound trial strategy under the circumstances.” Toma, supra at 302. Given our
conclusion that that the testimony of Peterson and Baker was permissible, we reject defendant’s
claim that his trial counsel was ineffective for failing to object to that testimony. Counsel is not
ineffective for failing to advocate a meritless position or to make a futile objection. People v
Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005); People v Fike, 228 Mich App 178, 182;
577 NW2d 903 (1998).
Affirmed.
/s/ David H. Sawyer
/s/ E. Thomas Fitzgerald
/s/ Peter D. O’Connell
-5-
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