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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

August 29, 2017

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