                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    August 29, 2017
               Plaintiff-Appellee,

v                                                                   No. 328157
                                                                    Kalamazoo Circuit Court
MICHAEL DWAYNE CARVER,                                              LC No. 2014-000448-FC

               Defendant-Appellant.


Before: GADOLA, P.J., TALBOT, C.J., and GLEICHER, J.

TALBOT, C.J. (concurring in part and dissenting in part)

        I concur with the majority’s opinion that the closely analogous circumstances presented
in People v Ackley, 497 Mich 381; 870 NW2d 858 (2015), and People v Trakhtenberg, 493 Mich
38; 826 NW2d 136 (2012), compel the conclusion that Jones’s decision to forego further
investigation into the issues of child suggestibility and related concerns fell below an objective
standard of reasonableness. However, I respectfully dissent from the majority’s opinion that
defendant is entitled to a new trial as a result of Jones’s failure to do so. In my view, it is not
reasonably probable that the outcome of defendant’s trial would have been different had Jones
conducted a more thorough investigation. According to the majority, Jones “would have realized
the need for expert testimony on the unique issues involving accusations by very young
children,” had he conducted a more thorough investigation into the scientific fields discussed by
Swerdlow-Freed at the evidentiary hearing. With this conclusion, I cannot agree. Under the
circumstances presented by this case, it would have been reasonable for Jones to forego expert
testimony in favor of what he termed a more “straight line” defense, had that decision been the
product of a complete investigation. Accordingly, I would reverse the trial court’s order granting
defendant’s motion for a new trial.

        As an initial matter, I do not agree that the credibility contest between defendant and the
victim was as mismatched as the majority has presented it. Although the majority has
characterized the victim’s disclosure as having been spontaneously made, and without apparent
motive, it is undisputed that the disclosure arose after the victim’s mother, Samona Allen,
specifically asked, “[H]as anybody touched you[?]” Moreover, the victim initially responded by
claiming that her three-year-old brother touched her. It was only after Allen rejected this
response that the victim made allegations against defendant. This first confrontation regarding
the victim’s allegations may also have provided a motive for the victim to change her story.
There was evidence that after the victim implicated her brother, Allen warned her that she would

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be in trouble if she was untruthful, and the victim confirmed at trial that she is physically
disciplined when she is “bad.” In light of Allen’s clear dissatisfaction with her first response, it
is not difficult to infer that the victim may have been driven to provide an alternative answer to
avoid physical discipline.

         Additionally, this was not the only improper questioning that the victim endured. Rather,
she was questioned repeatedly within hours of first accusing defendant of sexual assault. As
already noted, Allen first questioned the victim in the bathroom. Shortly thereafter, Allen took
the victim to the hospital, where she was questioned a second time by the physician who
examined her. Finally, she was questioned, yet again, during a confrontation that took place later
that day and involved several adult relatives, including defendant. Importantly, none of the
people making inquiries of the victim were trained in forensic interviewing protocol. It was not
until approximately one week later, when the victim spoke with a forensic interviewer, that she
discussed the incident with a person who had training in appropriate interviewing techniques.
The victim was also questioned in the course of the court proceedings, at the preliminary
examination and trial in this matter. Unsurprisingly, each time she was forced to discuss the
topic, the victim’s description of the incident varied slightly. Although many of the variations
were minor or insignificant, others were more central to the assault. For example, she told the
emergency room physician that defendant told her to take her pants and underwear off, but when
she described the encounter later, the victim indicated that defendant did not speak and stated
that they were both clothed. Similarly, it was initially believed that the assault occurred at night,
after defendant retuned to the house intoxicated, and the victim testified at trial that it happened
when she went to defendant’s bedroom during the night. However, during the forensic
interview, the victim reported that it occurred during the day. And, most importantly, the victim
may have waivered in her accusations against defendant—defendant and his mother both
testified that the victim recanted at some point on March 1, 2014.

        Given the underlying circumstances, I am not of the opinion that expert testimony was
necessary in this case. Expert testimony is only admissible if it is helpful to the trier of fact.
People v Bynum, 496 Mich 610, 624; 852 NW2d 570 (2014). “If the average juror does not need
the aid of expert testimony to understand the evidence or determine a fact in issue, then the
proffered testimony is inadmissible because it merely deals with a proposition that is not beyond
the ken of common knowledge.” Id. (citation and quotation marks omitted). While it is true that
an expert in forensic psychology may have been able to provide a more scientific explanation of
child suggestibility and its associated risk factors, I do not believe the underlying principles, as
applied to this case, are outside the realm of common knowledge. Rather, the average juror is
equipped with sufficient knowledge to recognize that young children are susceptible to outside
influences and are not always accurate informants for any number of reasons. As such, it would
have been reasonable for Jones to make an informed and strategic decision to refrain from
calling an expert witness, particularly when doing so would invite the prosecution to elicit
potentially damaging testimony on cross-examination or call its own expert to rebut any opinion
that was favorable to the defense.

       Moreover, despite Jones’s limited knowledge regarding the science behind child
suggestibility, many of the risk factors described by Swerdlow-Freed at the evidentiary hearing
were, indeed, presented to the jury by way of other witnesses and Jones’s arguments. For
example, Swerdlow-Freed explained that children between the ages of 3 and 5 years old are the

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most suggestible and the risk of suggestibility may be increased by a biased interviewer,
improper questioning, or other pressures. This information was already before the jury, as
several witnesses described the general principles of forensic interviewing and the importance of
avoiding leading questions, as well as approaching a child with an unbiased mindset. Likewise,
the concerning impact that repeated questioning might have on a young child was explored by
both the prosecution and defense in their closing arguments.

       For these reasons, I do not believe that defendant was prejudiced as a result of Jones’s
performance. Jones ultimately presented a reasonable defense by highlighting the discrepancies
in the victim’s statements, while also drawing the jury’s attention to other weaknesses in the
prosecution’s case, i.e., the lack of physical evidence that an assault occurred, the victim’s fear of
physical punishment as a possible motivating factor to falsely accuse defendant, and the police
department’s failure to investigate several leads that may have exculpated defendant. From his
testimony at the evidentiary hearing, Jones continued to believe that the best approach for
defendant’s case was a direct, factually based challenge of the prosecution’s proofs. Thus, it is
unlikely that Jones would have called an expert witness to testify at defendant’s trial even if he
had properly educated himself regarding child suggestibility before making that choice.
Accordingly, I do not believe it is reasonably probable that Jones’s performance affected the
outcome of the proceedings and I would, therefore, reverse the trial court’s order granting
defendant a new trial.

                                                              /s/ Michael J. Talbot




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