By NIKKI YOUNK
IRON MOUNTAIN - The Michigan Court of Appeals has granted a new trial to a former Michigan State Police trooper who was convicted by jury in Iron County Trial Court in 2011 of two felony counts of criminal sexual conduct-second degree.
Nikki Younk/Daily News Photo
David Morikawa, left, and his attorney Grant Carlson are pictured awaiting the verdict in Morikawa’s criminal sexual conduct trial in July 2011.
David Morikawa, 39, won the appeal on grounds that he had ineffective assistance of counsel.
Grant Carlson of Iron Mountain served as Morikawa's defense attorney during the 2011 trial. Due to a conflict of interest for the Iron County Prosecutor's Office, Special Assistant Attorney General Michael Stein of Traverse City, Mich. prosecuted the case.
Appeals Judges Michael Talbot, Kathleen Jansen, and Patrick Meter cited two specific incidents that occurred during Morikawa's trial in their written opinion.
The first incident was the jury's deadlock and eventual juror substitution.
Although jurors deliberated for almost 11 hours over a period of two days, they were unable to come to a unanimous verdict.
Later on the second day, court officials learned that one of the jurors refused to convict Morikawa based on his own experience of being accused of sexual misconduct.
The juror was excused and held in contempt of court for not disclosing the matter at jury selection.
Court officials recalled the alternate juror to take his place, and the new jury quickly reached a unanimous guilty verdict.
Appeals judges believed that the court did not properly instruct the new jury to begin their deliberations anew. Furthermore, they noted that Carlson did not make any objection to the court's improper instruction.
"Given the existence of the original two "holdouts," this was obviously a close case, and, when viewed in light of the error discussed infra, we find that it could indeed have had an effect on 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 appeals judges' opinion read.
The second incident was the Court of Appeals' belief that Carlson failed to "object properly to improper character testimony" from Morikawa's former co-worker F/Lt. Christine Grabowski of the Michigan State Police.
F/Lt. Grabowski had testified to Morikawa's character, saying "he is not credible."
Appeals judges explained that character evidence is highly prejudicial and strictly limited at trial.
"Counsel's failure to object in this instance and in the jury-instruction instance constituted ineffective assistance of counsel," the appeals judges concluded.
As a result, they ordered that the case be reversed and remanded for a new trial.
The case would have to be re-tried in Iron County Trial Court. Trial court officials had no additional information as of this morning about when the case would be heard.
Carlson made the following statement to The Daily News:
"The decision from the Michigan Court of Appeals to grant Mr. Morikawa a new trial was the correct decision. After the jury had deliberated for 11 hours, twice being told by the jury that they were hopelessly deadlocked, and then being advised that juror's credibility was compromised, I made a motion for a mistrial to preserve the integrity of Mr. Morikawa's right to a fair trial.
"That motion was denied. The Court of Appeals also properly found that the judge who oversaw the jury deliberations failed to properly instruct the jury, upon the seating of the substitute juror, that the jury panel as a whole needed to begin their deliberations anew.
"I made numerous objections during the course of trial to a number of objectionable issues. The Court of Appeals rightfully agreed that the assistant attorney general assigned to the case solicited improper character testimony from a witness that I had objected to testifying in the first place and also made numerous objections to during the course of her testimony."
Following Morikawa's conviction in July 2011, he was sentenced to serve a minimum of one year and eight months in prison.
According to the Michigan Offender Tracking Information System (OTIS), Morikawa was paroled in March of this year and will continue to be on parole until March 2015. OTIS lists his parole location as South Dakota.
The charges against Morikawa stem from a July 2009 incident in Crystal Falls, in which he was accused of inappropriately touching a 12-year-old girl.
At the time of the incident, Morikawa was working as a trooper at the Michigan State Police post in Iron River. He later resigned.
Nikki Younk's e-mail address is email@example.com.