People v. Rogers

335 Mich.App. 172

966 N.W.2d 181

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Tyrone ROGERS, Defendant-Appellant.

No. 336000

Court of Appeals of Michigan.

Submitted November 4, 2020, at Grand Rapids.

Decided December 17, 2020, 9:20 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, D. J. Hilson, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.

Laurel K. Young, Grand Rapids, for defendant.

Before: Sawyer, P.J., and M. J. Kelly and Swartzle, JJ.

Swartzle, J.

A criminal defendant bears a heavy burden when seeking a new trial based on newly discovered evidence. This is especially the case when the newly discovered evidence consists of recanting statements that are largely hearsay, and even more so when the recanting statements are themselves recanted. But, a heavy burden does not mean an impossible one.

A jury convicted defendant of one count of sexual assault against the complainant, his teenage biological daughter. The trial came down to a "he said/she said" credibility contest. The complainant subsequently recanted her testimony on multiple occasions, including in a video, but she later testified that her recanting statements were lies. The complainant did, however, admit under oath that she made similar allegations of sexual assault against her adoptive father and brother and that those allegations were false. We conclude that a reasonable juror could find the new evidence credible and that when all of the available record evidence is considered, a different outcome on retrial is probable. We therefore reverse the trial court's denial of defendant's motion for new trial and remand for further proceedings, as more fully explained below.

I. BACKGROUND

A. INITIAL TRIAL AND APPELLATE PROCEEDINGS

Defendant was tried by jury on two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(b), involving TC. Defendant is TC's biological father, but his parental rights to her were terminated when she was an infant. Stanley Cunningham, Sr., and Christine Cunningham adopted TC when she was 18 months old. TC has an older half-sister, DR, who also testified at trial (they have the same biological mother). Given the number of witnesses in this case who share the same last names, we will often use a first name when referring to a particular adult witness.

TC testified that she reached out to defendant in 2014 to establish a relationship, and Christine permitted her to visit defendant on occasion. In May 2015, when TC was 15 years old, she spent time with defendant while Christine was at a church conference. TC did not recall what she was wearing, but she did remember that during this visit, defendant removed her "bottom clothing"; defendant removed his "bottom clothing"; and both defendant and TC were naked from the waist down. Defendant then held her by the neck, threw her to the ground, and inserted his penis into her vagina. Defendant purportedly said something to TC about having his children, which would be TC's biological siblings. TC could not recall whether the assault lasted "a few seconds" or "a matter of minutes," and she did not remember whether she screamed during the assault or where it occurred in the house. TC testified that she did not visit defendant again after this May 2015 assault.

TC subsequently clarified that this was actually the second time that defendant had sexually assaulted her. As to the alleged earlier assault, TC did not recall when it took place or whether defendant took her clothes off. TC initially testified that she did not recall whether defendant's girlfriend, Tara Rainwater, was present, but then TC clarified that Tara was there and that defendant told Tara to go into another room before he assaulted TC. TC testified that she did not call for help because Tara "knew it was going on," but as to other details, TC could "barely remember" anything about the assault. When asked again about what defendant told her regarding siblings, she could not recall whether he said this during the first or second assault.

TC claimed at trial that she first disclosed the May 2015 assault to DR. Although she did not recall precisely when she told DR, she knew that it was before she told Christine in August 2015. TC explained that she did not disclose the assault immediately because she was afraid of defendant. He purportedly threatened her and was "[t]alking about doing something to [her] family." She could not recall, however, whether defendant made these threats after the first or second assault.

DR also testified at trial. She claimed that her biological mother dated defendant in the mid-1990s when DR was six or seven years old. In August 2015, TC disclosed something to her about defendant that made her upset. DR explained, "I been through the same thing and I never wanted her to go through any of that." Specifically, DR testified that, when she was younger, defendant sexually assaulted her. She could not recall how many times defendant did this, though at least "[o]nce for sure." She testified that she reported the abuse to the Child Abuse Council. (Although not brought out at trial, a family court judge had found the allegations of sexual abuse not credible.)

The prosecutor called Christine to the stand. She confirmed that TC told her that defendant had sexually assaulted her, and she told the police the next day. According to Christine, TC suffered from reactive attachment disorder (RAD) from the time she was an infant. TC took medication for RAD, but when she missed her medication, TC engaged in "wild behavior" and was loud and uncontrollable. When she testified at trial, TC admitted that she had not taken her medication for several days.

Two experts also testified for the prosecution. Dr. Yvonne Mallon, a child-abuse pediatrician at the Ottawa County Children's Advocacy Center, testified as an expert in child-abuse pediatrics. Dr. Mallon obtained TC's medical history and performed a medical examination on her. TC described penile-vaginal penetration, though she did not mention bleeding or pain. The medical examination was normal; there was a "small notch" or "divot" on TC's hymen, but this was "nonspecific"—it could have been from a sexual injury or just normal development. Based on the history provided by TC, Dr. Mallon testified that she suspected pediatric sexual abuse. In addition, Dianne Adams, a psychotherapist, testified as an expert in child-sexual abuse. She explained to the jury the theory of delayed disclosure and testified that she did not notice any "red flags" during her forensic interview of TC.

Defendant called Tara to testify in his defense. The two were no longer dating, but she recalled that when they were together, TC would call defendant every few weeks and she visited him several times. Tara denied knowing anything about a sexual assault of TC or that defendant told her to leave the room when he was with TC.

After the close of proofs, the jury convicted defendant of one count of CSC-I, though it acquitted him of the other. The trial court sentenced defendant as a fourth-offense habitual offender to a term of 29 to 48 years in prison. Soon after, defendant moved for a new trial or an evidentiary hearing, arguing that he received ineffective assistance of trial counsel. The trial court held a hearing and allowed defendant's trial counsel to testify. The trial court subsequently denied the motion.

Defendant appealed as of right. While on appeal, defendant moved for a remand so that he could seek a new trial based on newly discovered evidence. He supported his motion with, among other things, an affidavit by TC in which she recanted her allegations of sexual assault. In September 2018, this Court granted the motion and remanded the matter so that defendant could seek a new trial or other relief from judgment. People v. Rogers , unpublished order of the Court of Appeals, entered September 18, 2018 (Docket No. 336000).

B. TRIAL-COURT PROCEEDINGS ON REMAND

On remand, defendant moved for a new trial or other relief from judgment. The prosecutor opposed the motion, noting that there were inconsistencies in TC's affidavit and suggesting that the affidavit was the result of undue influence. The trial court held a hearing on the motion in November 2018 and determined that it would need to take additional evidence. The trial court's proceedings lasted until July 2020. It appears from the record that TC's refusal to cooperate caused most, if not all, of the delay. In fact, the trial court procured TC's testimony only after it had her arrested on a material-witness warrant.

1. FIRST EVIDENTIARY HEARING

The first day of hearings took place in March 2019. Both Stanley and Christine testified. Christine explained to the trial court that, shortly after defendant's criminal trial, TC accused Stanley and their son, Kawan, of having sexually assaulted her. TC claimed that Christine stood by the door and listened while Stanley raped TC. When she made these allegations, TC was in jail for domestic violence against the Cunninghams. The allegations were investigated, and no further action was taken. Sometime after this, the Cunninghams told TC that she could not live with them any longer.

James Rogers, pastor of a local church, testified that defendant was his older brother. He stated that his nephew, Robert Lee Howell, called him sometime after the trial and asked him to come over to his home. (In a subsequent hearing, Robert testified that his name is "Robert Rogers.") When Pastor James arrived, Robert was on the phone, and he indicated that he was speaking with TC. Robert said that TC had to leave the home where she was staying and asked whether they could pick her up. Pastor James agreed but asked Robert to go with him because he did not want to be alone with TC.

Pastor James testified that, as TC got into the backseat of his SUV, she apologized to him for " ‘lying on my dad.’ " Pastor James said that he asked for permission to...