Michigan Court of Appeals Finds Ineffective Asisstance of Counsel In CSC CAse

Imagine facing criminal sexual conduct charges and then having the trial court fail to demand new jury deliberations when an alternate juror takes the place of a holdout, deadlocking juror who, by the way, waited to the last minute to tell others he once was the alleged perpetrator in a sexual misconduct investigation. Atta boy to attorney Mitch Foster, who, while representing David Paul Morikawa, legally persuaded a conservative Michigan Court of Appeals panel to reverse and remand the defendant-appellant’s jury conviction of two second—degree CSC counts. Mr. Morikawa will get a new trial thanks to this exceedingly rare finding of ineffective trial counsel assistance.
In an unpublished Aug. 27, 2013, opinion, the conservative court led by presiding Judge Michael Talbot, branded the original Iron Circuit Court's failure to demand new deliberations as “plain error.” The appellate court, in its non-binding opinion, cites MCR 6.411: “[i]f an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.” Errors in jury instructions, the appellate court emphasizes, are of a constitutional magnitude. People v. Tate, 244 Mich App 553, 567; 624 NW2d 524 (2001). There actually were two deadlocked jurors in this case. Juror K was the one who, upon questioning, revealed that he was at a Christmas party several years before when he touched a young girl during a group picture. He further revealed that he was cleared of any wrongdoing and said he did not mention the incident during voir dire for two reasons: He didn’t think the past would affect his judgment and he did not want to bring attention to himself. The court removed him from the case after further learning that “he had received a lot of peer pressure in the jury room.” Once an alternate was chosen, the court ordered the jury resume deliberations instead of starting anew, and the defense counsel politely declined the judge’s invitation for comments. “Given the existence of the original two ‘holdouts,’ this was obviously a close case,” the court wrote in its opinion, “and, when viewed in light of the error discussed infra, we find that it could indeed have had an effect in the outcome of the trial if the jury had begun deliberations anew with a new member and the fresh perspective that member would bring.”
The infra error was when the court gave sway to the prosecution in its line of questioning. The appellate court cited MRE 404(a), which says the only way prosecutors can introduce evidence of a non-testifying defendant’s character is if the defendant “first opens the door” by offering evidence of that character trait. The prosecutor was questioning a female witness about Mr. Morikawa and how she came to know him. After some routine questions, the prosecutor then asked the following: “And based upon your familiarity with him and with other troopers can you come to a conclusion or an opinion as to his credibility and veracity being truthfulness? Do you have an opinion?”
A: Yes, I do.
Q: What is it?
A: He is not credible.
The prosecutor had the witness clarify that she meant “truthful” when she said “credible.” There was no objection from defense counsel.
People v Morikawa, Court of Appeals No. 308016.