Police Interrogation Wrongly Admitted: Defendant Entitled To New Trial

A defendant convicted of criminal sexual conduct was entitled to a new trial because an unredacted recording of the defendant’s police interrogation was improperly admitted into evidence, the Michigan Supreme Court ruled in People v Tomasik.

The defendant was convicted in Kent County Circuit Court of two counts of first-degree criminal sexual conduct. The defendant appealed his convictions, challenging the prosecutor’s presentation of an unredacted recording of his police interrogation, as well as expert testimony on child sexual abuse accommodation syndrome. The defendant also argued that he was entitled to a new trial based on newly discovered evidence and ineffective assistance of counsel.

The defendant’s appeal wound its way through the Michigan appellate courts for several years.

In 2014, the Michigan Court of Appeals affirmed the defendant’s convictions in an unpublished per curiam opinion (Docket No. 279161, on second remand).

Court of Appeals Decision

In its opinion, the Court of Appeals explained that People v Musser, 494 Mich 337 (2013), did not compel a conclusion that the admission of the police interrogation constituted plain error.

According to the Court of Appeals, the defendant’s case differed from Musser in several respects. “Here, defendant was not told why he was being interviewed, whereas in Musser the detectives told the defendant at the outset the purpose of the interview. Here, Detective Martin testified that her statement to defendant that she ‘investigated the heck’ out of the case was a ‘figure of speech’ that she used as an interviewing technique. Unlike the detective in Musser, Martin did not testify that she had received special training in interviewing techniques or that children of the age of the complainant knew the difference between telling the truth and telling a lie.”

While the Court of Appeals acknowledged that the issue presented a “close question,” it held the trial court did not abuse its discretion by admitting the unredacted interrogation. “The statements to which defendant objects were made prior to Martin informing defendant why he had been called in for an interview. The objected-to statements provided context for defendant’s strong and repeated denials that he had engaged in any improper conduct with T.J. The statements were necessary for context, and thus were not unduly prejudicial.”

In conclusion, the Court of Appeals said: “Nothing in Musser required the trial court to sua sponte give a limiting instruction regarding the use of the unredacted interview. Defendant did not request a limiting instruction. Nevertheless, the jury was instructed that it was to consider how and when defendant’s statements were made when determining how much weight to give to those statements. Thus, the jury could take Martin’s interviewing tactics into consideration when weighing defendant’s statement. We hold that Musser does not compel a conclusion that the admission of defendant’s unredacted interview at trial constituted plain error.”

The Court of Appeals also said the expert testimony regarding certain behavior exhibited by the child was admissible under People v Peterson, 450 Mich 349 (1995). “Cottrell testified that certain behavior that T.J. exhibited after the abuse allegedly occurred was consistent with behavior engaged in by victims of child sexual abuse. Such testimony is admissible under Peterson …. Defendant points to no prohibited testimony by Cottrell that sexual abuse occurred, that T.J. was telling the truth, or that defendant was guilty. We find no plain error with respect to Cottrell’s testimony.”

Next, the Court of Appeals said the trial court did not abuse its discretion in denying the defendant’s motion for a new trial in light of People v Grissom, 492 Mich 296 (2012). “We … conclude that the newly discovered evidence did not support a new trial. Grissom establishes that a new trial may be granted on the basis of impeachment evidence. However, in this case, ‘a material, exculpatory connection [does not] exist between the newly discovered evidence and significantly important evidence presented at trial.’ … This case came down to a credibility contest between defendant and T.J. The reports at issue present additional evidence that T.J. was a habitual liar, but the jury received ample evidence to that effect and still chose to find T.J.’s allegations against defendant credible. We hold that the newly discovered evidence did not entitle defendant to a new trial.”

High Court Reversal

The Michigan Supreme Court, in March 2015, granted leave to appeal in Tomasik. The justices agreed to review whether the trial court:

• erred by admitting the entire recording of the defendant’s interrogation in light of Musser.

• erred in admitting the expert’s testimony regarding child sexual abuse accommodation syndrome under MRE 702 and People v Kowalski, 492 Mich 106 (2012).

• erred in denying the defendant’s motion for a new trial based on newly discovered evidence in light of Grissom.

In a December 2015 order, the Michigan Supreme Court reversed in part the Court of Appeals ruling and remanded the case for a new trial, finding trial court abused its discretion in allowing the recording of the police interrogation. The justices wrote:

“On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we REVERSE in part the April 22, 2014 judgment of the Court of Appeals and we REMAND this case to the Kent Circuit Court for a new trial. The trial court abused its discretion by admitting the recording of the defendant’s interrogation. See People v Musser, 494 Mich 337 (2013). Because nothing of any relevance was said during the interrogation, it was simply not relevant evidence, and thus was not admissible evidence. See MRE 401. The admission of this evidence amounted to plain error that affected the defendant’s substantial rights and seriously affected the fairness, integrity or public reputation of judicial proceedings. See People v Carines, 460 Mich 750, 763 (1999). In a trial in which the evidence essentially presents a ‘one-on-one’ credibility contest between the complainant and the defendant, the prosecutor cannot improperly introduce statements from the investigating detective that vouch for the veracity of the complainant and indicate that the detective believes the defendant to be guilty. On retrial, if the parties seek to admit expert testimony, the trial court shall conduct a Daubert hearing to ensure that the proposed testimony is both relevant and reliable as is required under MRE 702. See Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993). In light of this disposition, we decline to address the other issues presented in our order granting leave to appeal.”

After a retrial, the defendant was acquitted of all charges. He had spent nearly nine years in prison.

To hear from the attorneys at Chartier & Nyamfukudza, PLC who worked on Mr. Tomasik's retrial and his wife, check out the criminal defense law segment in Episode 2 of In the Name of the Law on WLAJ ABC 53.