Claims of judicial misconduct; Alleged denial of a motion for nolle prosequi; Grant of a recess; Presumption of judicial impartiality; People v Willis; Other acts evidence; MCL 768.27a(1); MRE 403; People v Watkins; MRE 404(b); Relevance; Ineffective assistance of counsel for failure to object; Prejudice; Harmless error; Hearsay exception for statements made for purposes of medical diagnosis or treatment; MRE 803(4); People v Duenaz

The court rejected defendant-Martin’s claims of judicial misconduct, and while it found one witness’s other acts testimony was erroneously admitted, it held that this error was harmless. Finally, as to testimony from a behavioral health therapist (K) about statements made by the victim (KE) during therapy, the court concluded MRE 803(4) applied, although the statements were “arguably less reliable than if [they] had been made to a medical doctor.” Defendant was convicted of CSC I and II. He argued “the trial court abused its discretion in denying the prosecution’s motion for nolle prosequi and pierced the veil of judicial impartiality by allowing a recess to rehabilitate KE’s testimony.” The court noted the prosecution “explored the idea of entering a nolle prosequi, but did not follow through and actually request it.” As a result, there “was nothing to grant.” As to the recess, if “the judge’s tone and demeanor exhibited bias, it certainly could not be discerned from the record. There simply was no bias exhibited before the jury that could have impacted the outcome of” the trial. The court concluded the trial court erred in admitting other acts witness-JM’s testimony about “Martin’s sexual abuse. Her allegations were fundamentally dissimilar to the allegations made by KE.” JM further testified that Martin physically abused his son. The prosecution did not provide notice JM would offer testimony “about Martin’s physical abuse of another child. Evidence of the physical abuse of a male child bears no relevance to the charges at issue—the sexual abuse of a granddaughter. It also” was not relevant to the testimony of the rest of the other acts witnesses, which concerned “sexual abuse of young female relatives. This evidence was inadmissible and defense counsel should have objected.” But the court held that the error did not warrant a new trial. Two other acts witnesses described “abuse similar to KE’s,” and KE described the events giving rise to the charges. K “testified that KE suffered from PTSD as a result of sexual abuse.” A licensed clinical social worker “testified that KE was exhibiting behavioral problems and disclosed sexual abuse at Martin’s hands.” And the forensic interviewer “testified that KE made disclosures related to ‘sexual trauma.’” The court concluded the “strength of the prosecution’s other evidence makes it unlikely that the admission of JM’s testimony was outcome determinative.” Affirmed.