People of Michigan v. Richard Glen Smith Jr, 352327

Background

Defendant Richard Smith was convicted by a jury of assault by strangulation and sentenced as a fourth-offense habitual offender to 4½ to 40 years. He was acquitted of first-degree criminal sexual conduct.
The victim testified that Smith slapped, punched, dragged her by her hair, pushed her face into pillows, strangled her, waved a firearm, and forced sexual intercourse; medical and nursing examinations documented injuries and petechiae consistent with strangulation and photographs were admitted.
A forensic DNA analyst tied a DNA sample from the victim’s abdomen to the victim, defendant, and an unknown person; DNA from a vaginal swab excluded defendant.
Detective testimony relayed defendant’s admissions that he hit the victim, that it was "very possible" he strangled her but he could not remember due to rage, and that he might have had consensual sex but was unclear on timing.
Defense tried to call CA (defendant’s daughter) to elicit testimony that the victim demonstrated being choked in a way inconsistent with the victim’s trial testimony; the trial court excluded that extrinsic impeachment as hearsay because the record did not establish CA learned the inconsistent statement from the victim.
The trial court allowed impeachment by the victim’s recent felony retail-fraud conviction but excluded an earlier misdemeanor larceny conviction; it also excluded CA’s testimony regarding the victim’s reputation for untruthfulness (MRE 608), which the Court of Appeals later found to be erroneously excluded but harmless.

Issues

Issue	People’s Argument	Smith’s Argument	Held
Whether trial counsel was ineffective for failing to lay foundation to admit CA’s testimony as extrinsic prior inconsistent statement	Counsel’s failure to elicit CA’s alleged testimony is not shown on the record; defendant bears burden to establish factual basis	Counsel failed to elicit testimony that would have impeached the victim on strangulation and there is a reasonable probability of a different outcome	Denied — claim fails because the record does not establish CA learned the inconsistent statement from the victim, so defendant failed to show deficient performance with a factual basis (no relief)
Whether the trial court erred in excluding the victim’s 2008 misdemeanor conviction for impeachment under MRE 609	Exclusion proper because the misdemeanor larceny did not involve dishonesty and was not punishable by >1 year; MRE 609(c) timeliness issue also raised	The misdemeanor could be used for impeachment; confinement/probation activity kept it within 10-year rule	Affirmed — exclusion proper: simple larceny lacks false-statement element and was not a >1-year imprisonable offense
Whether the trial court erred in excluding CA’s testimony about the victim’s reputation for untruthfulness (MRE 608)	Exclusion was within discretion given prosecutor’s objection to defense counsel’s phrasing	CA should have been permitted to testify to the victim’s reputation for untruthfulness to attack credibility	Error — trial court abused discretion in excluding MRE 608 reputation evidence, but the error was harmless (not outcome determinative)
Whether cumulative errors require reversal	Any individual errors harmless; no unfair prejudice to aggregate	Cumulative effect of errors deprived Smith of a fair trial	Denied — only one harmless error occurred, so no cumulative-prejudice reversal

Key Cases Cited

Hoang v. People, 328 Mich. App. 45 (sets ineffective-assistance standard and requirement to establish factual basis)
Payne v. People, 285 Mich. App. 181 (review limited to record when no evidentiary hearing)
Jackson v. People, 313 Mich. App. 409 (presumption that counsel’s performance was effective; strategic decisions afforded deference)
Parker v. People, 230 Mich. App. 677 (extrinsic prior inconsistent statement admissible if witness given opportunity to explain at some point in trial)
Rodriguez v. People, 251 Mich. App. 10 (foundation required when impeaching with prior inconsistent statements)
Allen v. People, 429 Mich. App. 558 (MRE 609: convictions involving dishonesty are automatically admissible for impeachment)
Parcha v. People, 227 Mich. App. 236 (simple larceny does not involve false-statement element for MRE 609)
Brownridge v. People (On Remand), 237 Mich. App. 210 (affirming correct result even if trial court gave a different reason)
King v. People, 297 Mich. App. 465 (standard for abuse of discretion in excluding evidence)
Spaulding v. People, 332 Mich. App. 638 (credibility is almost always at issue; evidence bearing on credibility is relevant)