Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

December 2, 2009

138233

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v SC: 138233 COA: 278901 Wayne CC: 03-007369-01 JOHN DAVID STOCKMAN, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application for leave to appeal the December 18, 2008 judgment of the Court of Appeals is consid ered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Wa yne Circuit Court for an evidentiary hearing to de termine whether trial counsel was ineffective for failing to investigate and present medical testimony th at the child complain ant’s allegations are medically implausible or impossible, as desc ribed in the affidavits of Drs. Lee and

Richter. We DIRECT that cour t to commence the hearing within 35 days of the date of

this order. We further ORDER that court to submit a transcript of the hearing along with its findings of fact and conclusions of law to th e Clerk of this Court within 28 days of the conclusion of the hearing. Within 21 days after the transcript is filed, the parties may file supplemental briefs with the Clerk of the S upreme Court. With respect to defendant’s claims regarding forensic testing of the “t urkey baster,” leave to appeal is DENIED,

because the defendant has failed to meet th e burden of establishi ng entitlement to relief under MCR 6.508(D).

We retain jurisdiction.

C ORRIGAN , J. ( concurring ).

I concur in the order remanding to the trial court for an ev identiary hearing and retaining jurisdiction. I write separately to present my view of the trial court’s task on

remand.2

The victim, JB, who was six years old at the time of trial, accused defendant of, among other things, penetrating her genitals with a turkey ba ster (or “gravy thing”). At

trial JB testified as follows:

Q . What did he do with this gravy thing?

A . He put that up here.

Q . He put it where?

A . Up in here.

[ Prosecuting Attorney ] Hall . Okay. For the record, she has just pointed to her genital area.

Ms. Hall (continuing)

Q . Do you have a name for that?

A . No.

Q . What do you use it for?

A . Using it.

Q . I’m sorry?

A . Using the bathroom.

Q . To use the bathroom. And tell me about what he did with this, with this gravy thing.

A . (No response)

Q . You don’t know?

A . No.

Q . Now, did it go into where you—where pee comes out?

A . Um-hum.

[ Defense Counsel ] Taratuta . Objection. That’s leading.3

The Court . Overruled. Go ahead, counsel.

Ms. Hall. Thank you.

Ms. Hall. (continuing)

Q . [JB], did—[JB], look at me. Did th is gravy thing go into where pee

comes out?

A . Yes.

Q . Okay. Which portion, which side of it did? Do you remember? Could you point? [The prosecu tor held a turkey baster.]

A . Um-hum.

Q . Okay.

A . This one.

Q . Okay. Which portion of it, which side of it went into where pee comes out? Could you point? Do you know? Is that a no?

A . No.

Q . Okay. How do you know that he us ed this and put this in where pee

comes out?

A . Because he told me.

Q . Okay. Did you feel anything?

A . Yes.

Q . What did it feel like?

A . It feel [sic] like it was in my stomach.

Q . It felt like what?

A . It felt like in my stomach.4

Q . Okay. Did it hurt?

A . (Nodding yes)

Q . Is that a yes?

A . Yes.

Dr. Hon Lee, who examined JB for se xual abuse some time after the alleged incident occurred, also testified at trial. Lee testified that he did not “find any trauma” to JB’s genital area. Lee confirmed that he wa s aware that JB alleged that “an object . . . was inserted into [her] gen ital area.” But he stated that “[y]ou may or you may not” discover an injury as a result of insertion. Rather, his “conclusion was the general examination was normal, but sexual abuse cannot be ruled out because the time [sic] has passed since the alleged abuse.”

The jury convicted defendant, among othe r offenses, of first-degree criminal sexual conduct under MCL 750.520(b)(1)(a) (s exual penetration of a person under 13 years of age) based on his insertion of the tu rkey baster into JB’s genitals. For purposes of such a conviction, “sexual penetratio n” means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however sli ght, of any part of a person’s body or of any object into the genital or a nal openings of a nother person’s body , but emission of semen is not required.” MCL 750.520a(r) (emphasis added). Defendant appealed and the Court of Appeals affirmed. People v Stockman, unpublished opinion per curiam of the Court of Appeals, i ssued March 22, 2005 (Docket No. 251711).

Defendant subsequently f iled a motion for relief from judgment, which the trial court denied. The Court of Appeals initia lly denied leave for lack of merit. People v Stockman, unpublished order of the Court of App eals, entered October 11, 2006 (Docket No. 269343) ( Stockman I ). Defendant then filed an applic ation for leave with this Court and we remanded to the Court of Appeals for consideration as on leave granted. People v
Stockman, 478 Mich 923 (2007). 1 On remand, the Court of Appeals again affirmed

1 We directed the Court of Appeals to consider:

(1) whether the defendant has rais ed a “significant possibility” that he is innocent of the alleged crim es under MCR 6.508(D)(3); (2) whether the affidavits accompanying the de fendant’s motion for relief from judgment entitle him to an evidentiary hearing on any of the issues his application has raised regarding that proposed evidence; and (3) whether

the defendant is entitled to an evid entiary hearing on the ineffective

assistance of trial counsel for the alleged failures to investigate and procure5

defendant’s convictions. People v Stockman, unpublished opinion per curiam of the Court of Appeals, issued Decembe r 18, 2008 (Docket No. 278901) ( Stockman II ). Defendant again applied to this Court for leave to appeal.

At issue are two affidavits that defendant claims establish that JB’s testimony at trial was medically impossible. First, Lee stated in an affidavit that, when he testified at trial, he “was not told what [defendant ] was being accused of , and was not shown a ‘turkey baster’ in relation to the allegation an d my medical examinati on of the child.” He

stated that he “also was not told of the testimony of the child.” He continued:

After observing an identical plastic turkey baster , and reviewing the testimony of the child, and my own dict ation of the medical report, I have come to the following conclusions:

a. vaginal insertion with an inst rument of the size and composition of a plastic “turkey baster” in a way described by the vi ctim would have caused severe damage of the delicate stru ctures of the vagina in a six year old child with an average hymenal or ifice diameter of only 4 to 6 mm.

b. such damage would include te ar of the hymen, fossa navicularis and posterior fourchette. As well, such tear if at all had existed, would cause permanent scarring of tissues easily recognizable by the trained eyes. I did not appreciate any of those findings.

I conclude that the testimony of th e child is medically impossible.

A second doctor, Dr. Mark Ri chter, offered a similar affida vit. Richter stated that he had reviewed JB’s testimony, Lee’s testimony, and “the medi cal reports of the clinical

examination of the child afte r an allegation of sexual assault was made.” Richter dubiously added, with no citation to the co urt record or supporting documentation, that “[t]he child reported to auth orities and testified that she was sexually assaulted by [defendant] by insertion of a ‘ turkey baster ’ deep into her vaginal ca nal, internally to the point of her abdomen, causing extreme pain.” He thus concluded that, because Lee did not discover any injuries, “[t]he medical examination and testim ony of Dr. Lee are medically inconsistent with the allegation an d testimony of the child .” He continued:

Given the scenario presented, that a “ turkey baster ” was inserted deep into the 6-year-old child’s vagi na, from a medical standpoint, it is difficult to imagine any seri es of events involving a vaginal insertion of an

instrument the circumference of a “ turkey baster ” (approx. 7/16 of 1 inch

the favorable medical testimony referenc ed in the affidavits. [478 Mich 923 (2007).]6

increasing to a 1” diameter) into the small vaginal canal of a 6 year old child (maximum approx. 1⁄2” ) without application of oil based lubrication, and accomplish an absence of scarring, te aring, or damage or rupture of the child’s Hymen, that would present a comp lete absence of ev idence of injury upon clinical examination.

As a practicing physician, I concl ude that there is such a major disconnect from a medical standpoint between the report/testimony of the child reporting a deep, vaginal insertion with a “ turkey baster ” of increasing diameter and the medical report and testimony of the examining physician, Dr. Lee, providing a comple te absence of symptoms of sequalae [sic] of a vaginal insertion (Hymen da mage or rupture [especially where it commented that the Hymen border is “t hin”], tearing, scarring, discharge, etc.) that, presuming the medical re port and testimony are accurate, the version provided by the child is medically impossible. [Brackets in original.]

In Stockman II, the Court of Appeals concluded th at neither affidavit created an issue of fact warranting an evidentiary hearing regarding the ineffective assistance of counsel or the possibility of defendant’s i nnocence. Most significantly, the Court of Appeals observed that the affidavits

are based on the factual premise that th e baster penetrated deep into JB’s vagina to the point of the abdomen, a premise not supported by the record.

JB never testified how much of the bast er entered her genital area and never testified that it actually entered her vagi na. She testified only that it “felt

like” it was in her stomach. A child of six is not likely familiar with the sensation of an object in her genital ar ea or with the anatomical structures that lie between the labia majora and the stomach, and thus JB’s testimony was more likely a figurative description of the sensation rather than a literal description of the extent of penetrati on. Her testimony es tablished only that some part of the baster entered some part of her genital area, not that the full length of the baster was inserted in to the vagina and beyond. . . . [E]ven

the former is sufficient to sustain a conviction, People v Bristol , 115 Mich App 236, 238; 320 NW2d 229 (1981) . . . . [ Stockman II

, supra at 3.]

The Court of Appeals offers a very plausible—arguably the most plausible— interpretation of JB’s testimony. Indeed, th e affiants’ presumptive descriptions of her testimony, particularly that of Richter, border on spurious; Richter’s exaggerated

assertion that JB testified that defendant inse rted the turkey baster “deep into her vaginal canal, internally to the point of her abdomen, causing extreme pain” is by no means a more accurate description of the testimony than that offered by the Court of Appeals.I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk December 2, 2009

d1124 7

To my mind, the only e rror committed by the Court of Appeals was its failure to acknowledge that, at most, JB’s testimony coul d be interpreted as am biguous with regard to how deep defendant inserted th e turkey baster. Because a jury could have concluded that her testimony described deep in sertion, the trial court on remand could find that trial

counsel was ineffective for fa iling to present medical testim ony such as that offered in

Lee’s and Richter’s affidavits . But the trial court on remand by no means must accept at

face value the affiants’ characterizations of JB’s testimony. Rather, the court simply must determine, as stated in our order, “whether trial coun sel was ineffective for failing to investigate and present medi cal testimony that the child co mplainant’s allegations were medically implausible or impossible, as described in the affidavits.”