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No. 126477
| People of the State of Michigan , |
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Valerie M. Steer |
Plaintiff-Appellee, |
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vs (Wayne - U. Boykin) |
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| Anthony Westcarr, |
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Robin M. Lerg |
Defendant-Appellant. |
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| ______________________________________ |
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Plaintiff-Appellee's Brief in Opposition to Application for Leave to Appeal>>
Defendant-Appellant's Application for Leave to Appeal>>
Defendant-Appellant's Supplemental Brief>>
Background
Anthony Westcarr, the defendant in this case, was charged with four counts of first-degree criminal sexual conduct for engaging in sexual penetration with his stepdaughter when she was five and six years old. Westcarr denied the allegations, and his attorney argued that the child's mother encouraged her to make false allegations of sexual abuse in order to punish Westcarr for their marital problems. The jury found Westcarr guilty of three counts of first-degree criminal sexual conduct; the trial court sentenced him to three concurrent terms of 15 to 30 years. The Court of Appeals affirmed in an unpublished per curiam opinion. Westcarr appeals, alleging that numerous errors occurred at trial. One of his arguments concerns the prosecutor's revelation on the first day of trial that he planned to call a new expert medical witness. The parties knew all along that one physician who examined Westcarr's stepdaughter, Dr. Sudershan Grover, found a yellow discharge, bruises, and abrasions on the child's external genitalia, injuries that might have been, but were not necessarily, caused by sexual abuse. Notably, Dr. Grover found that the child's hymen was intact. On the first day of trial, the prosecutor provided defense counsel with medical records showing that a second physician, Dr. Leland Babitch, found that the hymen was not intact. The prosecutor expressed his intent to call Dr. Babitch to testify about this finding. Defense counsel objected to the new witness. Defense said that he had decided not to retain an independent medical expert because Dr. Grover's opinion -- that the hymen was intact -- would give rise to reasonable doubt that any sexual abuse had occurred. Defense counsel asked that the court not allow Dr. Babitch to testify; in the alternative, he asked that the trial court grant a continuance of the trial and allow him additional time to find an expert. The trial court refused this request, and the Court of Appeals later affirmed its ruling in an unpublished opinion. The appellate court found that Westcarr was not prejudiced by the prosecutor's last-minute decision to call Dr. Babitch to testify at trial. In his appeal, Westcarr also argues that his trial counsel provided ineffective representation, that the trial court erred in allowing a witness to offer rebuttal testimony, that he was denied discovery, and that his minimum sentence was not calculated properly.
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