People v. Perrigo

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KADE KRISTON PERRIGO, Defendant-Appellant.

No. 360567

Court of Appeals of Michigan

January 18, 2024

UNPUBLISHED

Kent Circuit Court LC No. 19-006265-FH

Before: GLEICHER, P.J., and BORRELLO and SHAPIRO, JJ.

PER CURIAM

A jury convicted Kade Kriston Perrigo of one count of first-degree criminal sexual conduct (CSC-I) in violation of MCL 750.520b(2)(b) (sexual penetration of a victim under the age of 13 by person over the age of 17) for digitally penetrating the then-nine-year-old daughter of his live-in girlfriend. The jury acquitted Perrigo of a second-degree criminal sexual conduct charge (CSC-II). Perrigo's trial was riddled with error, the cumulative effect of which denied Perrigo a fair trial. We vacate Perrigo's conviction and sentence and remand for further proceedings.

I. BACKGROUND

In 2019, 15-year-old ARW disclosed to a school counselor that six years earlier, when she was nine, she fell asleep on the living-room couch and awoke to find Perrigo's "hands . . . in her pants." ARW described that she then got up and went to her bedroom. Perrigo, ARW's mother's boyfriend, still lived in the home when ARW made the 2019 report. At trial, ARW testified she was not certain whether Perrigo digitally penetrated her vagina or just touched the outside of her vaginal area. She testified "it hurt a little," but given her young age and the trauma she experienced, she could not "say for sure" whether penetration occurred.

After making her report to the school counselor, ARW participated in a forensic interview. A portion of that interview was played during ARW's testimony at the 2021 trial for "identification purposes." After asking a few more questions, the prosecutor sought to admit another portion of the recorded interview. Defense counsel objected because ARW had not "testified to anything that she doesn't remember," making the prosecutor's purpose for admission "improper." The court rephrased the objection as "one of relevance or duplicity" and asked for the prosecutor's response.

The prosecutor explained: "Part of it is a consistent statement, but also part of it is to show her demeanor at the time, . . . also to corroborate, you know, what she's saying today with what she said back then." The prosecutor referred to defense counsel's claim in opening statement that ARW could not remember everything and the need to corroborate ARW's testimony with her earlier statements as a result. The prosecutor did not want to use the video to refresh ARW's memory, but as substantive evidence.

Defense counsel expanded her objection, citing MCL 600.2163a(8)(b). The court did not ultimately rely on this statute and we will not discuss the parties' arguments in this regard. The prosecutor changed tack and proposed to use the evidence for impeachment purposes. Specifically, the prosecutor asserted "there could be some impeachment because I believe that when she was interviewed and on this recording she does talk about more detail about the penetration part of things." The prosecutor wanted to show that portion of the recorded interview while ARW was on the stand to "impeach her." The court confirmed that the prosecutor wanted to impeach her own witness with a prior inconsistent statement. Ultimately, over defense counsel's strenuous objections the trial court admitted the interview for the "limited purposes" of impeachment and to refresh ARW's recollection.

When ARW retook the stand, the prosecutor asked her to recall her statements during her forensic interview that Perrigo's "fingers entered your vagina." ARW remembered making that statement. The prosecutor then asked ARW to recall her earlier testimony that Perrigo may have touched only outside of her vagina. Defense counsel interrupted ARW's answer with a hearsay objection. The court indicated it would consider giving a limiting instruction at the end of the trial, but at that time would permit the testimony and the video "either as a means of impeachment or refreshment of the witness's recollection." Four minutes of video were shown before defense counsel objected again, contending, "None of this impeaches her testimony to this point[.]" The prosecutor retorted that the very next sentence in the recording reached the issue. The court overruled the objection and allowed another minute to play. During this portion of the video, ARW expressed that "I felt like he was trying to finger me."

On further questioning by the prosecutor, ARW continued to assert she could not remember if Perrigo's finger entered her vagina. And on cross-examination, ARW continued to admit she could not remember "because it was a traumatic experience for me." But she was "sure that it hurt." Defense counsel played another portion of the recorded forensic interview, after which ARW maintained that the abuse was painful.

After both sides finished questioning ARW, the court asked questions posed by the jurors, again over defense counsel's objection. The court inquired: "do you sometimes say 'I don't know' as a filler or because you don't want to say much . . . or does 'I don't know' when you say it, mean you really don't know anything about the question being asked?" This led to defense counsel playing another section of the forensic interview in which ARW used the phrase "I don't know." ARW asserted she stated "I don't know" as a filler phrase because she was nervous during the forensic interview, despite knowing the answer to the interviewer's questions. She testified that the statement "I don't know" was not equivalent to "I don't really remember," after the prosecution played yet another two-minute section of the video.

Before reporting the abuse to a school counselor, ARW had disclosed the event to several middle school friends. One of those friends-SDV-testified at trial that ARW told her that when she was nine years old, she was laying on either a bed or couch with Perrigo "and he touched her . . . in the private area." SDV understood this to mean "by her vagina." On cross-examination, SDV testified she knew ARW said Perrigo touched her "private area" but could not remember if ARW used the word "vagina" and did "remember it was underneath the clothes." SDV encouraged ARW to report the abuse. Upon questioning by the prosecutor, SDV testified ARW also disclosed her brother had sexually abused her around the same time. And on cross-examination, SDV claimed she witnessed Perrigo emotionally abuse ARW by calling her "stupid," throwing a towel at her, and "stuff like that."

Kent County Sheriff's Deputy Gary Vickery testified that he was present during ARW's forensic interview. After the interview, Deputy Vickery contacted Perrigo and he voluntarily appeared for an interview. Deputy Vickery testified that Perrigo did not emphatically deny the allegations, but rather stated: "I know in my heart I did not do this."

At the close of the prosecution's case-in-chief, Perrigo sought a directed verdict on the CSC-I charge because ARW testified Perrigo touched only the outside of her vaginal area and her statements about penetration at the forensic interview could only be used for impeachment purposes. Perrigo also sought a directed verdict on the CSC-II charge, claiming ARW testified she believed Perrigo was asleep as they lay on the couch. If Perrigo was asleep, he could not have intent, the defense argued. The court took the motions under advisement.

The next day, the parties reconvened for a final argument on the admissibility of ARW's recorded forensic interview. The court ultimately ruled the recording was admissible as substantive evidence (1) under MRE 613(b) as extrinsic evidence of a prior inconsistent statement because ARW was provided an opportunity to explain her statements, and defense counsel was able to cross-examine her, and (2) pursuant to MRE 803(5) as a recorded recollection because ARW recalled participating in the forensic interview and admitted that her present memory of the underlying incident was inferior when compared to the forensic interview.

The defense presented no witnesses and the parties proceeded to discuss the jury instructions. The written jury instructions delineated the elements of the charged offenses and both attorneys asserted the instructions appeared correct and complete. However, the court did not read the offense-element instructions to the jury. Instead, the court provided the written instructions for the jury to review in the jury room. Neither attorney objected and they both asserted they had no "concerns" with the instructions as given.

The jury convicted Perrigo of CSC-I, but acquitted him of CSC-II. The court then revisited Perrigo's directed verdict motions. Reiterating that ARW's recorded forensic interview was admissible for substantive purposes, the court found adequate evidence to support the CSC-I conviction and denied the motion.

Perrigo then filed a motion for a new trial or evidentiary hearing contending he was denied his right to a fair trial when the court neglected to orally delineate the elements of CSC-I and CSC-II in the final jury instructions, and this failure amounted to a structural constitutional error that required reversal. Perrigo also asserted his counsel's failure to object constituted ineffective assistance of counsel. The prosecutor retorted that the trial court's provision of written instructions regarding the offense elements sufficed to protect Perrigo's rights. The trial court admitted it had erred, but found the error nonstructural. It reasoned relief was not warranted because the jury clearly read the offense elements as it asked questions during deliberations about the legal definitions of words in the instructions. The court further noted Perrigo had waived...