Restitution requires a connection to the course of conduct that gives rise to the conviction.

In People v McKinley, __ Mich __ (#147391, 6/26/2014) the Supreme Court held that restitution in a criminal case requires a connection to the course of conduct that gives rise to the conviction. 

The plain language of the statute authorizes the  assessment of full restitution only for “any victim of the defendant’s course of conduct that gives rise to the conviction . . . .” The statute does not define “gives rise to,” but a lay dictionary defines the term as “to produce or cause.” Random House Webster’s College Dictionary (2000), p 1139. Only crimes for which a defendant is charged “cause” or “give rise to” the conviction. Thus, the statute ties “the defendant’s course of conduct” to the convicted offenses and requires a causal link between them. It follows directly from this premise that any course of conduct that does not give rise to a conviction may not be relied on as a basis for assessing restitution against a defendant. Stated differently, while conduct for which a defendant is criminally charged and convicted is necessarily part of the “course of conduct that gives rise to the conviction,” the opposite is also true; conduct for which a defendant is not criminally charged and convicted is necessarily not part of a course of conduct that gives rise to the conviction.  Similarly, the statute requires that “any victim” be a victim “of” the defendant’s course of conduct giving rise to the conviction, indicating that a victim for whom restitution is assessed need also have a connection to the course of conduct that gives rise to the conviction. Allowing restitution to be assessed for uncharged conduct reads the phrase “that gives rise to the conviction” out of the statute by permitting restitution awards for “any victim of the defendant’s course of conduct” without any qualification.  

Tort claims in a divorce action

In Fernandez v Fernandez, Unpub Per Curiam Opinion of the Court of Appeals, (#315584, 6/24/2014) the trial court entered a judgment effectuating the parties’ divorce, which reserved for future adjudication plaintiff’s tort claims and the division of some property and marital debt. After a trial, the court entered an opinion and order finding for plaintiff on her claims of assault and battery and intentional infliction of emotional distress, awarding plaintiff $10,000 in damages for pain and suffering, awarding defendant $3,000 in damages for his loss of personal property, requiring defendant to pay two-thirds of the parties’ marital debt totaling $29,678.62, and equally dividing among the parties $72,739 in proceeds from the sale of marital real estate.  Affirmed.  Defendant’s conduct went beyond “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” and also went “beyond all possible bound of decency” such that it is “regarded as atrocious and utterly intolerable in a civilized community.” Lewis v LeGrow, 258 Mich App 175 (2003) (quotations and citations omitted).

 

To prove a claim of intentional infliction of emotional distress, a plaintiff must show (1) extreme and outrageous conduct by the defendant, (2) intent or recklessness by the defendant, (3) causation, and (4) the plaintiff’s experience of severe emotional distress. Walsh v Taylor, 263 Mich App 618, 634 (2004). For conduct to qualify as sufficiently extreme and outrageous, it must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. A defendant is not liable for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Lewis, supra, 258 Mich App at 196.

 

Sufficient trial evidence also demonstrated that defendant’s actions caused plaintiff severe emotional distress. Plaintiff testified that she suffered emotional distress and sleeplessness because of defendant’s threats to take the parties’ son and hurt her. Even after she obtained the PPO, she worried that defendant would try to enter her house. The record also contained evidence that plaintiff suffered significant physical trauma during the brutal attack by defendant, which caused lingering pain in her neck. Plaintiff testified that the trauma from the June 30, 2009 incident required her to treat with a mental health therapist. She further testified that at the time of trial she still suffered nightmares, felt easily startled and afraid, and could not perform her job as effectively as she could before the incident.  The evidence thus gave rise to a reasonable inference that defendant’s course of conduct caused plaintiff to experience severe emotional distress, a question for the trial court. Lewis, supra, 258 Mich App at 196; Mull, 196 Mich App at 421.

MRE 803A, Opinion testimony on the credibility of another person

In People v Douglas, __ Mich __ (#145646, 7/11/2014) the defendant objected during the trial to the admission of statements made by the child victim during a forensic interview. The statements came into evidence through a video recording of that interview and the testimony of the person who conducted the interview.
 

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.  Under MRE 803A, a statement describing an incident that included a sexual act performed with or on the declarant by the defendant is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding if certain criteria are met. However, if the declarant made more than one corroborative statement about the incident, only the first is admissible under MRE 803A.  Accordingly, MRE 803A did not permit the admission of this ‘second’ disclosure of the alleged fellatio during the forensic interview.
 

Although MRE 803(24) permits the admission of a hearsay statement not covered by any other exception if the statement demonstrates circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, is relevant to a material fact, is the most probative evidence of that fact reasonably available, and serves the interests of justice by its admission, the child’s statement during the forensic interview was not the most probative evidence of the alleged fellatio reasonably available. Rather, the best evidence of the child’s out-of-court disclosure of the alleged fellatio was the statement made to her mother before the forensic interview. To conclude otherwise would contravene the express preference in MRE 803A for first corroborative statements. In addition, the disclosure during the forensic interview lacked alternative indicia of trustworthiness. The trial court, therefore, abused its discretion by admitting the child’s statements made during the forensic interview regarding the alleged fellatio. In a trial in which the evidence essentially presents a one-on-one credibility contest between the victim and the defendant, hearsay evidence may tip the scales against the defendant and result in harmful error. This might be even more likely when the hearsay statement was made by a young child. This case involved a pure credibility contest, and the forensic interviewer’s testimony and the video recording of the forensic interview were not harmlessly cumulative. Instead, this hearsay evidence added clarity, detail, and legitimacy to the child’s in-court testimony and more probably than not tipped the scales against defendant such that the reliability of the verdict against him was undermined and a new trial was warranted.

 

 

Defendant was also entitled to a new trial on the basis of counsel’s ineffective assistance at trial.  It is improper for a witness to comment or provide an opinion on the credibility of another person while testifying at trial. Several witnesses in this case, including the forensic interviewer, violated this well-established principle, but defense counsel failed to object. To be constitutionally effective, counsel’s performance must meet an objective standard of reasonableness. There was no sound strategy in counsel’s failure to object to the vouching testimony. Given the centrality of the child’s credibility to the prosecution’s case, the lack of evidence beyond her allegations, and the nature of the testimony offered by the witnesses in question, it is reasonably probable that but for the deficiencies in counsel’s performance, the outcome of the trial would have been different.