People v. Cowhy

330 Mich.App. 452

948 N.W.2d 632

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Andrew Thomas COWHY, Defendant-Appellee.

No. 348542

Court of Appeals of Michigan.

Submitted November 5, 2019

Decided November 19, 2019, 9:10 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Michael D. Wendling, Prosecuting Attorney, and Hilary B. Georgia, Assistant Prosecuting Attorney, for the people.

Lawrence S. Katz, Milwaukee, for defendant.

Before: M.J. Kelly, P.J., and Fort Hood and Swartzle, JJ.

M.J. Kelly, P.J.

In this interlocutory appeal, the prosecution appeals by leave granted¹ the trial court order (1) denying the prosecution's motion to admit into evidence a redacted affidavit from defendant, Andrew Cowhy, and (2) granting Cowhy's motion in limine to exclude certain testimony and documents from Cowhy's former defense lawyer, William P. Hackett, and from Leo Niffeler, a licensed social worker who evaluated Cowhy at Hackett's request and authored a report for use at sentencing. We conclude that the trial court abused its discretion by excluding the testimony from Niffeler, the testimony from Hackett, and Cowhy's affidavit under MRE 410. However, the statements made by Cowhy to Hackett are protected by attorney-client privilege and are therefore inadmissible. Similarly, statements made by Cowhy to Niffeler are protected by the psychologist-patient privilege—which applies to social workers—and are also inadmissible. Accordingly, we affirm the trial court's order excluding testimony and documentary evidence from Hackett and Niffeler. But because Cowhy's redacted affidavit is relevant and is not inadmissible under MRE 410, we reverse the court's order to the extent that it excluded the affidavit from evidence.

I. BASIC FACTS

In August 2015, Cowhy was charged with three counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(2)(b) ; six counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) ; and one count of accosting a child for immoral purposes, MCL 750.145a. The charges against Cowhy were based upon allegations that, between 2002 and 2011, Cowhy had sexually abused his niece, nephew, and three of his cousins. In October 2015, pursuant to a plea agreement in which the prosecution dismissed the CSC-I charges, Cowhy pleaded guilty to six counts of CSC-II; three counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d ; three counts of first-degree child abuse, MCL 750.136b(2) ; and one count of accosting a child for immoral purposes.

Before sentencing, the prosecution and the defense stipulated that at the defense's request Cowhy would submit to "a risk assessment/evaluation ... for the purposes of sentencing."² Thereafter, Cowhy met with Niffeler and admitted to sexually abusing each of the children named in the information. A copy of Niffeler's report was submitted to the court before sentencing, along with numerous support letters from Cowhy's friends and family. In his statement to the court, Cowhy accepted responsibility for his crimes and the pain that they caused, and he stated that he intended to seek treatment. The trial court sentenced him to 10 to 15 years' imprisonment for the CSC-III convictions, 225 to 360 months' imprisonment for the first-degree child abuse convictions, and two to four years' imprisonment for the accosting a child for immoral purposes conviction.

Hackett represented Cowhy from August 2015 through sentencing in November 2015.

In February 2016, Cowhy moved to withdraw his guilty plea, arguing that his plea was defective because (1) he was a juvenile when he sexually abused the children, (2) there was no factual basis for his plea to the CSC-II and first-degree child abuse charges, and (3) he was misinformed of the maximum possible sentence for his first-degree child abuse convictions, which resulted in a violation of the Ex Post Facto Clauses of the federal and state Constitutions. In connection with the motion to withdraw his plea, Cowhy submitted a signed and notarized affidavit that included the following statements:

1. That all of the sexual incidents he pled guilty [to] occurred when he was between the ages of 13 and 15, or possibly right after he turned 16.

2. That one reason why he remembers his age at the time of the offenses he [sic] because he is sure that they all occurred before he had his driver's license which he got at age 16.

The court denied the motion to withdraw the plea.

Cowhy filed a delayed application for leave to appeal in this Court, which was denied.³ Thereafter, he appealed the denial of his delayed application for leave to appeal in the Michigan Supreme Court, which remanded to this Court for consideration as on leave granted. People v. Cowhy , 500 Mich. 1008, 896 N.W.2d 7 (2017).

Relevant to this appeal, while his case was pending before this Court, Cowhy filed a legal-malpractice suit against Hackett. In his answer to the malpractice complaint, Hackett asserted that Cowhy "admitted the truth of the allegations made against him" to Hackett and that Cowhy admitted he "had sexually molested all five of the children consistent with the victims' versions of the incidents." Additionally, Hackett stated that Cowhy admitted to him "that the molestation of [Cowhy's] minor family members continued until shortly after [Cowhy's] twentieth birthday." Hackett also stated that Cowhy had purposefully waived his preliminary examination because he "was very adamant that he did not want to hear the children testify about the sexual assaults that he committed against them and he did not want his father to testify against him concerning the admissions [he] made to his father." In February 2018, the malpractice action was stayed until the conclusion of Cowhy's criminal appeal.

Subsequently, this Court determined that Cowhy's plea was defective because his sentence for first-degree child abuse violated the Ex Post Facto Clauses of the federal and state Constitutions and Cowhy had not waived the violation. People v. Cowhy , unpublished per curiam opinion of the Court of Appeals, issued July 31, 2018 (Docket No. 334140), p at 7, 2018 WL 3635807. Accordingly, this Court vacated the order denying Cowhy's motion to withdraw his plea and remanded to allow him an opportunity to withdraw his plea. Id.

In November 2018, the legal-malpractice action against Hackett was dismissed by stipulation.

In the meantime, on remand from this Court, Cowhy withdrew his plea. Following a preliminary examination, the case was bound over to the circuit court. Before trial, the prosecution filed a motion to admit statements from a redacted version of an affidavit that Cowhy had submitted to the trial court in support of his motion to withdraw his guilty plea.⁴ Additionally, Cowhy filed a motion to exclude testimony from Hackett and a motion to exclude testimony from Niffeler. He argued that pursuant to MRE 410, any testimony and evidence from Hackett and Niffeler would be inadmissible. Additionally, he contended that his statements to Hackett were protected by attorney-client privilege and his statements to Niffeler were protected by psychologist-patient privilege. The trial court held that MRE 410 precluded the admission of all the evidence at issue and entered an order excluding Cowhy's affidavit, Hackett's testimony, and Niffeler's testimony.

This interlocutory appeal follows.

II. ADMISSIBILITY OF EVIDENCE

A. STANDARD OF REVIEW

The prosecution argues that the trial court abused its discretion by excluding Cowhy's affidavit, Hackett's testimony, and Niffeler's testimony. This Court reviews a trial court's decision to admit or exclude evidence for an abuse of discretion. People v. Benton , 294 Mich. App. 191, 195; 817 N.W.2d 599 (2011). "A trial court abuses its discretion when it chooses an outcome that is outside the range of reasonable and principled outcomes." People v. Orr , 275 Mich. App. 587, 588-589; 739 N.W.2d 385 (2007). Whether a confidential communication is privileged is reviewed de novo. Krug v. Ingham Co. Sheriff's Office , 264 Mich. App. 475, 484; 691 N.W.2d 50 (2004).

B. ANALYSIS

1. MRE 410

The trial court held that the challenged statements were barred by MRE 410, reasoning that the purpose of this Court's remand permitting Cowhy to withdraw his plea was "meant to put him back in the position he was before he entered the plea." The court noted that the challenged evidence came out after Cowhy's plea, that each of the statements flowed "from the plea that he has been allowed to withdraw," and that "none of these things would have happened but for the plea being withdrawn." In doing so, the court failed to properly apply MRE 410.

As with statutory interpretation, this Court applies the plain and unambiguous language of a court rule. People v. Hawkins , 468 Mich. 488, 500, 668 N.W.2d 602 (2003). "[J]ust as we cannot read into an unambiguous statute a provision not written by the Legislature, we likewise cannot read into a court rule a provision not written by the Supreme Court." Orr , 275 Mich. App. at 595, 739 N.W.2d 385 (citation omitted). MRE 410 provides:

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) A plea of guilty which was later withdrawn;

(2) A plea of nolo contendere, except that, to the extent that evidence of a guilty plea would be admissible, evidence of a plea of nolo contendere to a criminal charge may be admitted in a civil proceeding to support a defense against a claim asserted by the person who entered the plea;

(3) Any statement made in the course of any proceedings under MCR 6.302 or comparable state or federal procedure regarding either of the foregoing pleas; or

(4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later

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