Opinion
No. 334777
11-21-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TERRY RAY STINEBACK, Defendant-Appellant.
UNPUBLISHED Cass Circuit Court
LC No. 15-010127-FC Before: SWARTZLE, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
Defendant, Terry Ray Stineback, appeals by right his convictions following a jury trial for second-degree murder, MCL 750.317, in the killing of his wife, Laura Stineback, assault with intent to commit murder, MCL 750.83, and felony firearm, MCL 750.227b(1). Defendant was sentenced to two years' imprisonment for his felony firearm conviction and concurrent terms of 20 years to 40 years for second-degree murder and 5 to 20 years for assault with intent to commit murder. We affirm.
Before trial, the prosecution moved for permission to allow JL, a nine-year-old girl whom Laura had raised since she was a baby, to testify outside the presence of defendant. It was alleged that her mental and emotional status were fragile from the severe trauma she suffered from experiencing the shooting death of her mother by her father. Defendant opposed the motion on the grounds that defendant would be unduly prejudiced and the procedure would violate his constitutional right to confront the witness testifying against him. The trial court held an evidentiary hearing on the motion.
At the hearing, Dr. James Henry, an expert in social work and developmental psychology who had extensive experience dealing with children suffering from trauma, testified that JL was referred to him for an assessment by the Department of Human Services. He evaluated JL during July 2015, when she was still 9 years old. JL told Dr. Henry that her father killed her mother and was drunk when he did it. He determined that she was depressed and suffering from post-traumatic stress disorder. He explained that even though the traumatic experience was over, she mentally disassociated to protect herself from harm. Further, he testified that JL's current caregiver indicated that she had explosive aggressive episodes.
Dr. Henry explained that although defendant and Laura were not JL's biological parents, she considered them her parents. He explained that he wrote a letter to JL's lawyer-guardian ad litem that gave his professional opinion that JL should not testify in the criminal proceedings against defendant because of potential mental and emotional harm to her. He testified that JL faced further traumatization from testifying that could lead to hospitalization or long-term residency in a care facility because it would trigger her memories of the incident. He opined that JL would be overwhelmed if she had any visual contact with defendant and ran the significant risk of deterioration. She was not stable and testifying in defendant's presence would harm her. On cross-examination, Dr. Henry admitted that although he stated that JL was afraid of defendant, she actually had not openly expressed that she feared him. Nevertheless, in his opinion, to ensure her well-being, he believed that JL should not testify.
After hearing the parties' arguments, the trial court issued its opinion and ruling from the bench. The trial court observed that defendant had a constitutional right to confront the witnesses against him, but stated that it recognized that defendant's right was not absolute. The trial court reflected upon the principles articulated by the United States Supreme Court in Maryland v Craig, 497 US 836; 110 S Ct 3157; 111 L Ed 2d 666 (1990). The trial court considered whether allowing JL to testify via one-way, closed-circuit television would further an important public policy and still assure the reliability of the witness's testimony. The trial court noted that Craig clarified that the confrontation right required that the witness testify under oath, that the defendant have an opportunity to cross-examine the witness, and that the jury must be able to observe the witness's testimony. The trial court noted that it had broad discretion in controlling the mode and method of presentation of witnesses.
The trial court looked first at whether the prosecution's proposed procedure would further an important state interest and whether that procedure would protect the witness. The trial court found that protecting JL from further trauma in this case served an important state interest. The trial court relied upon Dr. Henry's testimony and professional opinion and found that if JL testified face-to-face against defendant at trial, she faced a significant risk of severe psychological harm. The trial court then considered whether defendant would suffer actual prejudice if she testified via one-way, closed-circuit television. The trial court held that the proposed process would not result in actual prejudice to the defendant. The trial court held that allowing JL to testify remotely via closed-circuit television minimized the risk of significant harm to her and ensured the reliability of her testimony. Therefore, the trial court granted the prosecution's motion. At trial, JL testified under oath via one-way closed-circuit television with all trial participants observing her, and defense counsel cross-examined her.
After receiving their instructions from the trial court, the jurors deliberated and returned a guilty verdict on all three counts. The trial court sentenced defendant as stated above. This appeal followed.
Defendant first argues that he is entitled to reversal of his convictions because the trial court denied him his constitutional right to confront a key prosecution witness at trial when it permitted JL to testify by one-way, closed-circuit television. We disagree.
We review de novo questions of constitutional law such as the right to confront witnesses. People v Fackelman, 489 Mich 515, 524; 802 NW2d 552 (2011). But we review for clear error the trial court's findings of fact underlying the application of constitutional law. Id. at 571. A finding is clearly erroneous if we are left with a definite and firm conviction that a mistake has been made. People v Mullen, 282 Mich App 14, 22; 762 NW2d 170 (2008).
The Confrontation Clauses of the Michigan and federal constitutions provide that in all criminal prosecutions, the accused has the right to be confronted with the witnesses against him. US Const, Am VI; Const 1963, art 1, § 20. The right to confront and cross-examine witnesses is intended to seek the truth and promote the reliability of criminal trials. People v Nunley, 491 Mich 686, 697; 821 NW2d 642 (2012). "[T]he Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v Iowa, 487 US 1012, 1016; 108 S Ct 2798; 101 L Ed 2d 857 (1988). But the Court foresaw that exceptions to the face-to-face confrontation may be necessary to further an important public policy. Id. at 1021. Later, the Court held that "the face-to-face confrontation requirement is not absolute." Craig, 497 US at 850.
In Craig, the Supreme Court decided whether the Confrontation Clause categorically prohibited a child witness in a child abuse case from testifying against a defendant at trial via one-way, closed-circuit television. Id. at 840. The Court concluded that face-to-face confrontation was not required if two conditions were met: (1) the denial of such confrontation was "necessary to further an important public policy" or state interest, and (2) "the reliability of the testimony is otherwise assured." Id. at 850, 852. Generally, to ensure reliability the witness must (1) testify under oath, (2) submit to cross-examination, and (3) permit the jury deciding the defendant's fate to observe the witness's demeanor and assess her credibility. Id. at 845-846, 851.
The Supreme Court held that the state's interest in "protecting the physical and emotional well-being of youth" was compelling and sufficed to meet the first prong of the test. Id. at 852-853. The Supreme Court stated that it was "confident that use of the one-way closed circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause." Id. at 852. The Supreme Court instructed that the "requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify[,]" "find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant[,]" and "that the emotional distress suffered by the child witness in the presence of the defendant is more than deminimis, i.e., more than mere nervousness or excitement or some reluctance to testify." Id. at 855-856 (citations and quotation marks omitted).
The Supreme Court stated:
In sum, we conclude that where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child
witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause. [Id. at 857.]
We adopted the test articulated in Craig and have applied it in several cases. See People v Rose, 289 Mich App 499, 515-516; 808 NW2d 301 (2010). In Rose, we held that the use of a one-way witness screen that prevented the child witness from seeing the defendant "preserved the other elements of the confrontation right and, therefore, adequately ensured the reliability of the truth-seeking process" and therefore, affirmed the trial court's decision to permit the child witness to testify under that procedure. Id. at 517, citing Craig, 497 US at 851-852.
In this case, our review of the trial court record establishes that JL's physical and psychological well-being were vulnerable and in need of protection from the presence of defendant while testifying. At the evidentiary hearing on the prosecution's motion, Dr. Henry testified that she was extremely vulnerable and significantly likely to suffer further traumatization if she testified face-to-face in defendant's presence. He further testified that JL's emotional state remained particularly fragile, and in his professional opinion she faced suffering severe emotional distress resulting in hospitalization or long-term residency in a care facility if required to testify in defendant's presence.
Defendant proffered no rebuttal testimony to Dr. Henry's testimony and expert opinion. We believe that the evidence presented to the trial court, therefore, established unequivocally that JL required protection. The trial court's finding that JL was a vulnerable child witness requiring protection rested upon solid evidence; consequently, defendant has failed to establish any error in the trial court's fact-finding.
The trial court followed the strictures set forth in Craig and correctly held that because JL was a vulnerable child witness, a significant public policy and state interest would be served by protecting her through allowing her to testify via one-way, closed-circuit television. Under Craig, as a matter of law, protection of a vulnerable child witness like JL served a compelling state interest. Therefore, the trial court did not err in by holding that public policy and the state's interest would be served by protecting JL in the manner proposed by the prosecution.
To ensure the reliability of JL's testimony as required by Craig, the trial required JL to (1) testify under oath, (2) submit to cross-examination, and (3) be observed during her testimony by the jurors so that they could determine her demeanor and assess her credibility. Therefore, the trial court correctly satisfied all of the requirements articulated in Craig to ensure the reliability of JL's testimony. Consequently, defendant's constitutional confrontation right was not violated. Accordingly, we affirm the trial court's ruling that allowed JL to testify at trial via one-way, closed-circuit television.
Defendant also contends that the trial court violated MCR 6.006(C) by permitting JL to testify via one-way, closed-circuit television without his consent. He contends that doing so further infringed his confrontation right. We disagree.
Defendant never raised this issue before the trial court. "An objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground." People v Stimage, 202 Mich App 28, 30; 507 NW2d 778 (1993). Further, a defendant must "raise objections at a time when the trial court has an opportunity to correct the error." People v Grant, 445 Mich 535, 551, 520 NW2d 123 (1994). A defendant cannot "harbor error as an appellate parachute." People v Carter, 462 Mich 206, 214, 612 NW2d 144 (2000).
We review unpreserved constitutional claims for plain error affecting defendant's substantial rights. People v Shafier, 483 Mich 205, 219-220; 768 NW2d 305 (2009). Defendant must show that the plain error affected the outcome of the proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Reversal is warranted only if the error resulted in the conviction of an innocent defendant or seriously affected the fairness, integrity, or public reputation of the judicial proceedings, regardless of the guilt or innocence of the accused. Id.
Here, as explained above, defendant's constitutional confrontation right was not violated. Consequently, his substantial rights were not affected by the trial court's decision to permit JL to testify via one-way, closed-circuit television. Review of the trial court record does not indicate that allowing JL to testify via one-way, closed-circuit television was outcome determinative, resulted in the conviction of an innocent defendant, or seriously affected the fairness, integrity, or public reputation of the judicial proceedings regardless of defendant's guilt or innocence. Although JL's testimony informed the jury regarding details of the incident, the other witnesses' testimony, the forensic evidence, and even defendant's own testimony provided the jurors ample evidence to convict defendant of second-degree murder. Accordingly, the trial court did not commit plain error affecting defendant's substantial rights to a fair trial. Therefore, reversal is not warranted on this ground.
Defendant next argues that he is entitled to reversal of his second-degree murder conviction because the prosecution failed to prove with sufficient evidence that defendant committed the crime when the evidence established that he acted in self-defense. We disagree.
A challenge to the sufficiency of evidence in support of a criminal conviction is a question of law reviewed de novo. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). "We view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime to have been proved beyond a reasonable doubt." Id. Circumstantial evidence and reasonable inferences drawn from such evidence can constitute satisfactory proof of the elements of a crime. Carines, 460 Mich at 757. Triers of fact, not the appellate court, determine what inferences may be fairly drawn from the evidence and the weight to be accorded them. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). Therefore, we must resolve all evidentiary conflicts in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
The elements of second-degree murder are "(1) a death, (2) the death was caused by an act of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have lawful justification or excuse for causing the death." People v Smith, 478 Mich 64, 70; 731 NW2d 411 (2007). "Malice is defined as the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm." People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998). "The prosecution is not required to prove that the defendant actually intended to harm or kill. Instead, the prosecution must prove the intent to do an act that is in obvious disregard of life-endangering consequences." People v Werner, 254 Mich App 528, 531; 659 NW2d 688 (2002)(quotation marks and citations omitted).
In this case, the trial court record establishes that the prosecution presented sufficient evidence that defendant intentionally shot and killed Laura while she was unarmed and posed no threat to him. Defendant admitted that he aimed at Laura in the dimly-lit bedroom and shot her three times even though he did not see Laura with a weapon in her hand before he fired his handgun in her direction. Several investigating police officers testified regarding what they found at the crime scene and numerous photographs of the scene were admitted as evidence and provided to the jurors for their consideration and determination of what happened.
The testimony of forensic pathologist Dr. Stephen Cohle established the downward angle and distance from which defendant shot Laura. Further, Dr. Cohle's testimony established that Laura was in a defensive posture at the time she was shot three times. The circumstantial evidence and reasonable inferences drawn from that evidence constituted reliable and satisfactory proof of the elements of second-degree murder. Viewing the evidence in a light most favorable to the prosecution, rational jurors could easily find that the essential elements of second-degree murder were proved beyond a reasonable doubt.
Defendant argues that his conviction cannot stand because he proved he acted in self-defense. "Once a defendant raises the issue of self-defense and satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist, the prosecution must exclude the possibility of self-defense beyond a reasonable doubt." People v Stevens, 306 Mich App 620, 630; 858 NW2d 98 (2014) (citations and quotation marks omitted). Michigan's Self-Defense Act permits a person to use deadly force under narrow circumstances and provides in relevant part:
An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual. [MCL 780.972(1)]
In this case, defendant testified that he thought Laura was going for a gun, so he responded by reaching into the dresser drawer behind him, took out the nine-millimeter, racked it, took aim at Laura's center mass, shot twice, and then shot her again. To rebut defendant's claim of self-defense, the prosecution directed the juror's attention to the evidence that discounted defendant's story. Witnesses testified that defendant was angry at Laura during the day and in the evening. The police officers who attended the scene recounted what they found at the scene including the position of Laura's body and the orientation of the master bedroom in relation to Laura's body, the bed, and the doorway. The prosecution emphasized the forensic evidence that established the angle from which Laura was shot and the defensive posture she was in when shot. Further, defendant admitted that the television illuminated the room sufficiently for him to ascertain Laura's position and movements on the bed. Based on the evidence presented, a rational jury could have found beyond a reasonable doubt that the prosecution had disproved defendant's claim of lawful self-defense.
The fact that Laura turned her back on defendant was the only evidence that supported defendant's claim that he had some reason to fear. The bulk of the evidence supported the prosecution's case and cast reasonable doubt on defendant's self-defense claim. Nothing in the trial court record supports interfering with the jury's determination of the weight of evidence, the credibility of the witnesses, and the jury's decision that defendant was guilty of second-degree murder. Hardiman, 466 Mich at 428. Therefore, sufficient evidence was presented for the jury to convict defendant of second-degree murder. Meissner, 294 Mich App at 452.
Defendant also argues that the prosecution failed to prove with sufficient evidence that he committed the crime of assault with intent to commit murder because the jurors asked a question during their deliberations as to whether they were to consider the incident in the kitchen or bedroom for their determination of the charge. We disagree.
The crime of assault with the intent to commit murder, MCL 750.83, requires proof of three separate elements: "(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder." People v Ericksen, 288 Mich App 192, 195-196; 793 NW2d 120 (2010) (citation omitted). "Because of the difficulty in proving an actor's intent, only minimal circumstantial evidence is necessary to show that a defendant had the requisite intent." Stevens, 306 Mich App at 629. "Intent to kill may be inferred from all the facts in evidence, including the use of a deadly weapon." People v Henderson, 306 Mich App 1, 11; 854 NW2d 234 (2014).
In this case, the trial court record establishes that the prosecution presented substantial evidence that defendant assaulted Laura with the intent to murder her. JL testified that she found defendant in the kitchen on top of Laura choking her. He refused to stop even though Laura tried to escape. JL testified that she had to jump on defendant more than once to get him to stop. Although Dr. Cohle found no physical evidence of strangulation on Laura's body, the jurors had ample evidence to conclude that the incident in the kitchen satisfied the elements of the charged offense. The credibility of JL's testimony was a question for a jury. Hardiman, 466 Mich at 428. Further, if conflicts existed in the evidence presented, those conflicts were for the jury to resolve. Id.; Kanaan, 278 Mich App at 619. We will not reassess the jury's credibility determinations on appeal. Id. A rational jury could reasonably conclude from JL's testimony and reasonable inferences from other evidence that defendant assaulted Laura with the intent to kill her, and had he been successful in choking her to death, the killing would have been murder. Ericksen, 288 Mich App at 195-196. Therefore, sufficient evidence proved all the elements of the charged offense related to the incident in the kitchen.
Lastly, defendant contends that he was denied a fair trial because the prosecution committed prosecutorial misconduct when she said in closing argument that defendant remained silent for 13 months. He argues that the prosecutor's comments shifted the burden of proof upon him to prove his innocence. We disagree.
This issue is not preserved for appeal because defendant did not contemporaneously object to the prosecutor's statements in closing argument, never requested a curative instruction, and did not move for a mistrial. See People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994): People v Kelly, 231 Mich App 627, 638; 588 NW2d 480 (1998).
"Issues of prosecutorial misconduct are decided case by case, with the reviewing court examining the pertinent portion of the record and evaluating the prosecutor's remarks in context." People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). Unpreserved instances of prosecutorial misconduct are reviewed for plain error. People v Unger (On Remand), 278 Mich App 210, 235; 749 NW2d 272 (2008). Error requiring reversal cannot be found where a curative instruction would have "alleviated any prejudicial effect." People v Callon, 256 Mich App 312, 329-330; 662 NW2d 501 (2003). "Curative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements, and jurors are presumed to follow their instructions." Unger, 278 Mich App at 235 (citation omitted).
"No person . . . shall be compelled in any criminal case to be a witness against himself." US Const, Am V. "As a general rule, if a person remains silent after being arrested and given Miranda warnings, that silence may not be used as evidence against that person." Shafier, 483 Mich at 212. Moreover, a defendant's postarrest, post-Miranda silence may not be used to impeach his exculpatory testimony. People v Borgne, 483 Mich 178, 187; 768 NW2d 290 (2009). Thus, prosecutorial references to a defendant's postarrest, post-Miranda silence violate the defendant's right to remain silent and due process rights. Shafier, 483 Mich at 212-213. But "[a] defendant's constitutional right to remain silent is not violated by the prosecutor's comment on his silence before custodial interrogation and before Miranda warnings have been given." People v McGhee, 268 Mich App 600, 634; 709 NW2d 595 (2005).
A prosecutor's remarks are not considered in a "vacuum" and "must be read in context." People v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996). "A prosecutor may argue from the facts that a witness, including the defendant, is not worthy of belief . . . and is not required to state inferences and conclusions in the blandest possible terms." People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). Prosecutors are generally "afforded great latitude regarding their arguments . . . ." Unger, 278 Mich App at 236.
In this case, the prosecutor referred to defendant's 13-month silence during closing argument twice in the context of arguing defendant's self-defense claim was not supported by the evidence. If the prosecutor's remarks only commented on defendant's prearrest and pre-Miranda warning silence regarding self-defense, such remarks would not be improper. But in the first instance, the prosecutor clearly remarked on defendant's silence during the 13-month period from the incident until trial. Because that included the postarrest and post-Miranda time period, the prosecutor plainly erred. Borgne, 483 Mich at 187.
Even though the prosecutor erred, we conclude that defendant has failed to establish that the error affected his substantial rights. The trial court record indicates that the jury was specifically instructed that the lawyers' statements and arguments were not evidence and that the prosecution bore the burden of proving beyond a reasonable doubt the elements of the crimes alleged against defendant. Jurors are presumed to follow such instructions. Unger, 278 Mich App at 235. Nothing in the record establishes that the jurors neglected to follow these instructions. Further, close examination of the prosecutor's remarks in the context of a very lengthy closing argument reveals that the references to defendant's silence during the postarrest and post-Miranda time period were brief and not the focus of the prosecutor's challenge to defendant's credibility and arguments for his guilt.
In Shafier, 483 Mich at 222-223, the Michigan Supreme Court explained that we must consider "the overall strength of the case against the defendant and the degree to which the jury's assessment of the evidence might have been affected by the prosecutor's references to a defendant's silence" for determination whether the plain error prejudiced defendant by affecting the outcome of the lower court proceedings. Here, the strength of the prosecutor's overall case did not hinge entirely on their assessment of defendant's credibility. During its case-in-chief, the prosecutor presented compelling evidence without references to defendant's postarrest, post-Miranda silence to support defendant's convictions for the charged offenses. Defendant's coworkers and people with whom defendant spoke at the Eagles Club testified that defendant was irritated with Laura on the day and evening of the incident. JL testified about what she saw and heard in the house before and during the incident. Several investigating police officers testified about what they observed at the scene of the crime. Photographs of the scene were admitted into evidence. Dr. Cohle testified about the substantial forensic evidence that established that Laura was in a defensive posture each time she was shot. Accordingly, we hold that the prosecutor's nonextensive references to defendant's postarrest, post-Miranda silence, although improper, were not outcome determinative. Further, reversal is not warranted because a curative instruction could have alleviated the prejudicial effect if any resulted from the prosecutor's limited comments. Unger, 278 Mich App at 235.
We affirm.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Jane E. Markey
Miranda v. Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).