People v. Grant

477 PEOPLE v GRANT (Calendar 2). 14, Argued Decided No. No. October Docket 119500. 15, July 2004. Livingston by jury Circuit in the C. convicted a Grant was William Burress, J., Court, sexual three counts of criminal Daniel A. on girl young involving girls One two who were sisters. conduct by injuries family were caused told her and her doctor that accident, by family allegedly mem- witnessed which injuries bers, caused but she testified that the were at trial Before defense counsel sexual abuse the defendant. including eyewitnesses, of the there were two unaware that cousins, regarding injured girl’s young testified could have who C.J., Appeals, alleged bicycle The accident. Court of Bandstra, curiam, JJ., opinion unpublished per Cavanagh in an and Zahra, to the for a determination whether remanded the case circuit court 214941). (Docket On had been No. defense counsel ineffective might remand, court that the evidence the circuit determined through interviewing produced of witnesses have been further The defense. would not have been of substantial benefit unpublished panel Appeals, in an memoran- same of the Court remand, opinion the convictions. The defen- dum after affirmed appealed. dant separate opinions, Supreme In Court held.-. the effective assistance of counsel defendant denied trial, requiring for a a reversal of the convictions and a remand new trial. joined by that defense Justice Justice stated Cavanagh, Kelly, complete fundamentally duty to conduct a

counsel abdicated investigation by failing adequately members of the interview alleged bicycle family present day on accident who were had occurred. That abdication to determine whether deprived of a a fair trial. the defendant substantial probability the trial There result of reasonable not have different the defendant would would have been and that charged presented. evidence been been convicted as had the Mich 477 joined by concurring, Justice Justice stated Taylor, Markman, (csc-i) degree that the case of criminal sexual in the conduct first relating injured girl just you to the was more than a “who do injured believe” contest between an little and the defendant prosecution savage vaginal because also had the evidence of a injury many that lead would to believe that the CSC-l had occurred they explanation injury. Failing unless heard another for the pursue investigation an into the accident as a cause of the injury reasonable, does professional investigation. not constitute a (1984). Washington, Strickland v 466 US 668 Reversed and remanded to the circuit court for a new trial. joined by Chief Justice Justices Weaver and Corrigan, Young, dissenting, that stated in this case the defendant has not demon- any all, that strated the defense counsel committed error at let alone error an that would undermine confidencein the outcome of case, so the defendant’s Sixth Amendment of claim ineffective rejected. assistance of counsel should be majority by viewing The erred the defense counsel’s chosen strategy representing trial and defendant’s conviction as ineffective assistance. The defense counsel testified that the de- strategy fense towas demonstrate that the defendant did not injured commit criminal sexual conduct and that the had changed story enough her lying. times to demonstrate a of habit defendant, majority The and hindsight, with benefit of prefer strategy. would now a different trial That is not the test for proper the ineffective assistance of counsel. The is test delineated Washington, in (1984), Strickland v adopted 466 US 668 as in (1994). Michigan People Pickens, in v 445 Mich 298 The test is that attorney’s performance defendant must show that his fell objective that, below an standard of reasonableness and but for errors, is, counsel’s there probability, is a reasonable probability outcome, sufficient to undermine confidence in the proceeding that the result of the would have been different. strong presumption There is a that counsel’s actions were strategy, reasonable trial so there ais deferential standard of strategy. for majority review the defense counsel’s trial ignores strategy, this standard. Given trial defense counsel’s decision to not interview contested witnesses because their testi- mony or was irrelevant cumulative was reasonable. joined by Corrigan Justice Chief and Justice Justice Weaver, Young, dissenting, majority by concluding stated erred constitutionally that defense counsel was ineffective because he injured girl assumed that the would continue to admit that the People Opinion of the Court by bicycle by concluding that injuries accident and were caused known, knew, trial that she before counsel or should have injuries. inconsistently of cause There described the knew the nothing defense counsel in the record to show that trial. Counsel’s injured before child’s inconsistent statements hearing, posttrial People v repeated at the Ginther Ginther, (1973), supported his belief that undisputed. of the accident was occurrence showing that his The defendant has not met his burden of objective attorney’s performance fell standard reason- below errors, that, is a but for there reasonable ableness counsel’s proceeding have been probability that the result of the would (1994). Pickens, Mich 298 v different. Appeals the Court should be affirmed. The decision of joined Justice Justice Justice Chief CORRIGAN Young, dissenting, court stated because the trial had first- Weaver, knowledge of the it hand of the witnesses and conduct position defense counsel’s trial best assess whether deficiency and, so, any performance deficient if whether such might highly of the fact-sensitive trial. have altered the outcome on the did not err in its determinations claim of The trial court counsel, be ineffective assistance of and the convictions should affirmed. Cox, General, L. Attorney Casey, A. Thomas

Michael General, Morse, Prosecuting Solicitor David L. Attor- Vailliencourt, ney, Jr., and William J. Assistant Pros- Attorney, the people. for ecuting Appellate (by Meinberg) State Defender Susan M. for the defendant.

KELLY, J. a claim of of This is ineffective .assistance jury on three counsel. Defendant was convicted a involving of two sisters. counts criminal sexual conduct on of the largely His convictions were based in- girl severely older who stated defendant of sexual misconduct. jured during incident maintained that he was innocent and that Defendant 470 MICH 477 of Court injury this sustained was caused accident, as she had originally related. counsel failed to

Defendant’s interview adequately of family day members were on present who of the incident. He did not alleged determine if in fact the girl’s accident had injury. caused older On law, of well-established basis we hold that counsel’s investigate to failure and pri- substantiate defendant’s decision, not a mary strategic erroneous only hindsight. It awas fundamental abdication of duty to a complete investigation, conduct it and ability restricted his to professional make reasonable and judgments put forth his case. a consequence, As deprived defendant was of a substantial defense the effective assistance of counsel. We reverse the convictions and remand case for a new trial.

i The facts in this case developed were trial through posttrial hearings several before the trial court.1 A understanding detailed they them and when presented necessary fully were evaluate the appeal. incident, At the time of alleged living defendant was girlfriend with his at her parents’ home. The are sisters his girlfriend’s They nieces. alleged defendant sexually abused them on two occasions. The time first was at birthday party grandfather, for their when eight them about years alleged old. She that defendant forced her have intercourse him. with allegation The second sexually defendant touched both in a girls closet about a year later. Corrigan “reifying] Chief Justice accuses us on factual inaccura cies.” Post at 499. Yet, identify any she fails to of them. We believe that accurately the record relied on here has been stated.

Opinion of the Court incident, girl the older alleged of the first day On the from rear tear the injured. She suffered a severely family her her anus. told to She vaginal opening of her injured that she had herself treating her doctor described the examining doctor bicycle accident. The a a straddle tear, consistent with a “clean” injury as with abuse. than a tear consistent injury, ragged rather of his examina- report an initial prepared This doctor pre- He girl’s statements. tion that included the that, alterna- a that concluded subsequent report pared have been caused sexual tively, injury could her abuse. incident, which occurred alleged

After second later, a friend that girl the older told year about a The friend told had intercourse with her. defendant had In services. mother, protective who called child her resulting investigation, girls’ with connection During the older to doctor. father them a second took doctor, that defen- by this she said examination girl’s her, that demanding then threatened raped, dant had her injury. bicycle explain accident to she fabricate of her examination prepared report This also doctor the police provided which she complainants, abuse. alleged investigating officer who proceeded theory The to trial on prosecutor The older accident was a fabrication. of sexual abuse injury result testified never that there had been by defendant. She testified evidence also prosecutor’s all. and the testimony examining doctors included both prosecu- closing In argument, officer. investigating eye- no presented tor defendant emphasized of a bicycle the occurrence support witness accident.

482 Opinion of Court

Before defense counsel had available to him at least three of the charges sources information about (1) against He had defendant.2 a copy first report, doctor’s first and knew about or had a copy of (2) report. his second He knew about and had a possibly (3) copy of the second report. doctor’s He had a list given him defendant people least twelve asso- girls ciated with the or defendant to interview for or information as witnesses. investigators

Defense only counsel’s interviewed two or people. three of these None of them had seen the alleged bicycle accident. Counsel did direct not investigators to inquire whether the people interviewed anyone could name who seen it had or more knew about it. he Consequently, failed learn there were eyewitnesses. Two of the sisters’ could have cousins that, testified on the day incident, of the alleged they girl saw the injure genital region bicycle accident.

Defense counsel proceeded to trial on a three- (1) pronged theory: defendant did commit not (2) crimes, they occurred; if even the injury to the older (3) girl was the result of the accident; and this girl habitually made up things. that, He argued despite eyewitness absence of testimony, several witnesses they said heard accident, about the not from the older girl, but from her jury brother. The convicted charged. defendant as

Defense counsel learned of the potential eyewit- nesses sentencing. at the time of aunt girls’ ap- proached him sons, counsel and told that her their cousins, had witnessed the accident. Defense counsel’s rely premise We on trial to evaluate this case. We do our analysis assumption document, only on an about the contents of one as implies. Justice Weaver Post at 519. Court of the newly to present presumably proofs, reopen motion to denied. evidence, was discovered counsel who different retained then Defendant discovered newly on the basis a new trial sought court, in the trial hearing lengthy During evidence. the older they witnessed testified the cousins However, trial accident. in the herself injure would evidence exculpatory that the court determined merely cumulative. have been that found Appeals the Court appeal, direct On the evi- produced discovered could have counsel Hence, defen- diligence. using reasonable dence at trial newly trial on the basis to a new not entitled dant was find that did But, the Court evidence. discovered It remanded and not cumulative. was material evidence whether regarding hearing case for Ginther4 or failing for to discover ineffective had been counsel curiam, opinion per Unpublished the evidence. present 214941). (Docket 16, No. May 2000 issued held before hearing was By the time Ginther recalled court, only vaguely the two cousins trial considering surprising is not incident. This years than five more accident had occurred alleged years and six old. about ten they earlier when were sufficiently not was ruled that evidence trial court 3 newly granted discovered on the basis of to be For a new trial evidence, to show that defendant had newly (1) materiality, itself, merely its not the evidence (2) cumulative;

discovered; newly was not discovered evidence (3) probably upon cause including retrial would the new evidence (4) not, using result; party reasonable could a different produced at trial. the evidence diligence, discovered and have (1996).] 6; 115, Johnson, [People 118 n 545 NW2d 451 Mich v (1973). Ginther, 436; 4 People 212 NW2d 922 390 Mich v [July- Opinion op the Court probative support determination that counsel was ineffective failing for to ascertain and introduce it. It appears the trial court’s decision was based on the fact that the witnesses were unable to remember clearly incident at the time of the Ginther hearing. Defendant again appealed. The Court of Appeals, apparently analyzing only the Ginther hearing testi- mony, agreed with the trial court the evidence “would not have been of substantial benefit to the Unpublished defense.” memorandum opinion of the (Docket Court of Appeals, 1, issued May No. 214941).

Defendant sought leave to appeal Court, this requesting a new trial on alternate theories: either the eyewitness testimony of the bicycle accident was newly evidence, discovered or defendant had been denied the effective assistance of counsel by counsel’s failure to produce eyewitnesses at trial. At oral argument before Court, this defense counsel conceded that this evidence would have been discoverable with reasonable diligence and, therefore, “newly discovered.” We consider only whether defendant deprived of the effective assistance of counsel.

ii Whether a person has been denied the effective assistance of counsel is a mixed question of fact and constitutional A judge law. must first facts, find the then must decide whether those facts establish a viola- tion of the defendant’s constitutional right to the effec- tive assistance of counsel. v People 468 Riley, 135, Mich (2003). 139; 659 NW2d 611 We review a trial court’s findings of fact for clear error. People LeBlanc, v 465 People 485 Opinion of the Court (2002).5 Questions 575, 579; 640 NW2d 246 Mich v are reviewed de novo. constitutional law Tolksdorf (2001). 1, 5; 626 NW2d 163 464 Mich Griffith, hi the ineffec- adopted v this Court People In Pickens,6 the United counsel standard tive assistance of v established Strickland Supreme States Court 668; 2052; L Ed 2d 674 104 S Ct 80 466 US Washington, (1984). to demonstrate ineffective assis- Accordingly, tance, attorney’s per- a defendant show that his must objective fell standard of reasonable- formance below presumption overcome the ness. The defendant must trial action could have been sound challenged that the Carrick, 220 Mich 689, at see also v strategy. Id. (1996). 17, 22; reviewing 242 A court 558 NW2d App with the benefit must not evaluate counsel’s decisions Strickland, On the other hindsight. supra 689. actions hand, the court must ensure that counsel’s represen- the defendant with the modicum of provided in a criminal right tation that is his constitutional prosecution. complete made after than

“[Strategic choices less precisely are reasonable to the extent that investigation the limita- professional judgments support reasonable duty .. to make investigation.. [C]ounsel tions on has deci- investigations or to make a reasonable reasonable investigations unnecessary.” particular sion that makes Strickland, supra at 690-691. 5 Although findings made at the must defer to the trial court’s we 436;

hearing pursuant People v Ginther Mich 922 held NW2d (1973), applies the do blind deference when the trial court we not afford wrong legal standard. (1994). 298; 446 Mich 521 NW2d 797

Opinion op the Court performance defendant must show also that this prejudiced so him he deprived of a fair trial. Pickens, at 338. To establish he supra prejudice, must probability show a that the reasonable outcome would Strickland, have been different but for counsel’s errors. A supra at 694. reasonable need probability not rise to it making likely level more than not that outcome would have been different. Id. at 693. “The result of a proceeding unreliable, can be rendered hence the proceeding unfair, itself even if the errors of counsel cannot be shown a preponderance of the evidence to have determined the outcome.” Id. at 694.

A case, In this performance counsel’s objec- tively reasonable. Defendant was facing three counts of sexual misconduct. Two of them wholly were founded on the sisters’ implicating statements defendant. The third and most serious of them was founded on the older girl’s statements and an underlying physical in- jury. The best refutation of all the charges would have been strong substantive evidence that girl’s injury was caused something or someone other than defendant. Had that charge defeated, been then the other weakened, two would have been greatly given the questionable credibility girls of the two as witnesses. The development of defense counsel’s trial strategy had to consider these facts. His failure to conduct a more thorough investigation to uncover evidence to support theory alternate causation objectively unreason- able.

A sound trial strategy is one that developed concert with an investigation that is adequately sup- ported by professional reasonable judgments. Counsel must make “an independent facts, examination of the Opinion of the Court circumstances, pleadings laws involved ... Von Gillies, 708, 721; 316; v L Moltke US 68 S Ct 92 Ed (1948). This “all pursuing includes leads relevant to Foltz, the merits of the v case.” Blackburn 828 F2d (CA 1987). 6, 1177, 1183 evaluate performance

We defense counsel’s from perspective alleged counsel’s at the time of the error Strickland, and in light of the circumstances. at supra Thus, 689. counsel’s words and actions and before at trial are the most accurate evidence of what his strate- gies theories were at trial.

At the hearing Ginther before the trial court on defendant’s claim of counsel, ineffective assistance of responded defense counsel to questioning. He said that theory his had been that the older in girl was the habit telling lies and could not be trusted. His “main thrust was that girl this was a liar” and he “welcomed” her testimony that bicycle she had lied about the accident. been, theorized, She had he either injured bicycle a by assault, but, or a sexual regardless, was falsely accusing defendant.

Yet, counsel did not think it necessary to be prepared prove bicycle occurrence of the accident in order theory substantiate his that it had injury. caused the He felt that additional witnesses would not be vital. He failed to contact most of the persons whose names provided defendant had for his own defense. He failed to inquire anyone whether in the family had seen and could testify about the fact of the alleged bicycle acci- causing dent and its role in injury. He failed to act on statements from the witnesses that he did interview that the girls’ may brother have seen the accident.

Justice disagrees that defense counsel WEAVER thought the occurrence of the accident was disputed Opinion op the Court hearing

because he testified at the Ginther on his own “ disputed. effectiveness that ‘The accident was not ” However, it.’ girl disputed never Post 520. subjective belief was unreasonable. readily

Counsel had available to him information that should have further For ex- prompted inquiries. ample, counsel admitted at the hearing Ginther report injury that the first doctor’s initial said that the caused sexual abuse.7 When that doctor testified at he older girl stated had told riding him slipped “[t]hat she was and had injury straddle .. . .” The told the second doctor that she had not in a injured been accident. This doctor testified that the older girl said person

she had been told this who abused her not to tell anyone because ... he would hurt her and he threatened her . [the doctor] .. and so she told first that this was bike story give accident and this was the she was told to him this abuser.

It is to infer that testimony reasonable the doctors’ was patient based on their histories and the reports they had prepared. That evidence shows that the girl had made conflicting statements about the cause of her injury. addition, In regarding defense counsel also contacted other doctors possible complainant’s injury. However, causes of those doctors conclusively injury.

were unable to determine the cause of the Even if they had, they testify they would have been able to at trial because girl. Thus, definitively had not examined the because no doctor deter injury independent girl’s statements, mined the cause of the of the girl injure counsel needed a witness who saw the herself in a Corrigan’s accident. Chief Justice distinction between counsel’s failure to “any” meaningless. find “a” witness versus witness is Post at 507-508. “A” “any” synonyms. College Dictionary are Random House Webster’s (1995). Opinion of the Court had abuse investigating alleged

The officer of the results of a letter be dictated” “asked that On cross- examination, the doctor did. which witness, referred to defense counsel of this examination this copy made in his doctor’s he had a notation trial. he had seen it before indicating that report, reports both before Hence, had seen defense counsel trial. clearly the two testimony demonstrates8

This conflicting injury causes reports doctors’ showed Hence, girl. the older conflicting statements have before trial or should known counsel knew defense question. injury of the that the cause 2, and CORRIGAN, post at 506 n Justice Chief Justice on 519, majority relying at for criticize post WEAVER, find that it was unrea- report. doctor’s We second rely girl’s counsel to on the older sonable for defense allegation at trial to refute the testimony anticipated It physical injury. caused her would that defendant had if the second doctor’s have been unreasonable even girl changing that the had not indicated report report. if had lacked the story and even defense counsel A element of his defense central for falsely It was not reasonable accused defendant. rely on of her establish part counsel to a liar fact while to show her as to important hoping rest. assertions, contrary to Chief Justice

Also Corrigan’s 509, acknowledged counsel it was post accident oc- bicycle important establish in realization the course of the He came to this curred. hearing. Defense counsel was asked: Ginther reports, “speculative]” of these as Chief We about the contents do not argues, post at 507 n 2. Corrigan Justice Opinion of the Court

Q. important jury it have Would heen for the to hear testimony, your opinion, Grant, on behalf of Mr. they vaginal bleeding observed from this or...

A. Yeah. If...

Q. bleeding ... in that area? Right. your question A. But was about witnesses to You’re,you’re asking accident. not about witnesses to the bleeding. witnesses, accident, no, So the answer to the important. that was not

Later in hearing, defense counsel was asked:

Q. issue, you say, Counsel? The as the acci- bleeding. dent. The issue the cause of the A. Correct.

Q. you eyewitness If only who was able to not say, accident,” you “I say elementary saw the which it’s, say, because it’s he irrelevant. But can “I saw the accident,” and, and “I bleeding” saw cause of the occurred from the accident. type Would that eyewitness important been have to the defense? That the injury was sustained the accident and not criminal sexual conduct? A, a, eyewitness say

A. a civilian can that that’s what bleeding? any thing caused I think don’t such existed. Q. Well, you, sir, me you put let ask if a witness on the says, girl stand and that “I riding witness saw the little her bicycle.” get “AndI saw her into an accident and I saw bleeding afterwards.” Would that have been relevant to this defense? existed, guess yeah[9] If so,

A. such a witness I later Despite his characterization of his decision- disagree Corrigan’s eyewit We with Chief Justice statement that the nesses’ could have “undermined” defendant’s defense. Post at imagine testimony proving 499. We cannot in what sense that the lying injuries when she said that defendant caused her could have done anything other than benefit defendant. 491 Grant v Opinion of the Court that coun- “informed,” conclude we cannot making as bicycle alleged investigate to failure sel’s in only strategy, of erroneous in a trial pursuit 115, 122-123; Johnson, 451 Mich v hindsight. People (1996). 545 NW2d himself, he failed to failed to prepare

Because counsel evi- direct predicament: his client’s without appreciate older sister’s that caused the of the accident dence credibility contest merely a defense was injury, his rapist. an accused Witnesses girl little between a fall, a hill on a bicycle, older sister descend saw the who pro- could have pants with and return blood-soaked abuse did not cause evidence that vided substantive only pre- the prosecutor evidence injury.10 testimony to these three counts was prove sented girls two and the fact and statements physical injury. girl’s considering is critical forethought

Counsel’s lack of this, like that, opined, as himself cases he to be proven has to be innocent practically defendant 512-518, eyewit suggests post at that the Chief Justice Corrigan, testimony much to defendant would not have been of assistance nesses’ hearing the Ginther were inconsistent. The their testimonies at because wearing difficulty remembering boys the older blue had whether accident, jeans pants which had occurred or sweat at the time of the years there does not foreclose the conclusion that several earlier. This probability if that the would have been different a reasonable outcome only they have substantive This would been testified. presented explained at of the accident. As trial of occurrence evidence 493-497, present prejudiced beginning pp to it defendant. failure Moreover, not have trial determined this evidence would court merely cumulative as well to because it was of assistance defendant been Appeals recognized, there it inconsistent. As the Court as because was probability have different that the would been is a reasonable outcome expected testimony. P Some inconsistencies are 496. internal with past. long recall an incident when children [July- Opinion of the Court acquitted. circumstances, Given these a defense solely credibility founded on sorely vulnerable defeat.

We also note that this is instance in which counsel failed to discover after facts a reasonable in- quiry that would have caused an attorney effective inquire stated,11 further. As at no time did counsel direct his investigators anyone to ask whether had seen the Smith, accident. Cf. Wiggins v 510; US 123 539 (2003) (failure 2527; Ct L S 156 Ed 2d 471 to investi- gate). His failure to conduct an investigation to deter- if mine known witnesses had direct evidence to substan- tiate his defense objectively unreasonable. See (CA 2003). Frazier v Huffman, 780, 343 F3d 795 6, It even more so where his witnesses testified that they had heard about from girls’ brother. He should recognized have that his witnesses could give substantive evidence of the accident based on another’s out-of-court MRE statements. 802.

Moreover, this a is not case disregarding of counsel possible, one theory alternate of defense in favor aof one, finding better after “contradictory, first con- Pickens, fusing, incredible, or simply poor.” supra at above, 325. As stated theory counsel’s awas liar and had falsely accused defendant. This was a sound strategy.12 it Had been fortified adequate investigation, it would have shown weak- in case, ness the prosecutor’s it could have made difference in the verdict. See my beginning discussion at pp 493-497. 11 pSee 482. 12Thus, acknowledge we do the merit in defense counsel’s trial strategy, contrary to post the assertions of Chief Justice CORRIGAN, However, recognize shortcomings.

510-511. we also its fatal People 493

Opinion of the Court has there been one which This differs from case testimony potential whose call witnesses failure to Johnson, v knows. Cf. already defense counsel Corbin, v (1996); People 115; 545 451 Mich NW2d (2001). Here, counsel did 590; 623 Mich NW2d iden- defendant half of whom people not interview He did information.13 having helpful tified potentially as give. would these witnesses not know what they or what they where had been He did not know seen. no counsel obtained substan- that defense fact injury of the sister’s of the cause

tive evidence relied incomplete. He investigation shows that His own, explanation. recanted already the girl’s on individuals identi- to call decision not as witnesses on “reason- objectively not based fied defendant was trial Consequently, his professional judgments.” able under these circumstances. was unreasonable strategy

B investigation adequate to failure make an if confi- of counsel it undermines ineffective assistance trial’s Corbin at 590. Counsel’s dence in the outcome. investigate prejudiced defense primary failure to outcome, depriving affected the adversely defendant. It In the light a fair trial. evidence defendant of trial, probability at is a reasonable presented there different. the outcome would have been theory to to show that the It critical defendant’s in At a accident. injured older had been sister in trial, belatedly jury’s to establish the counsel tried Corrigan forgives because defense counsel’s failure Chief Justice However, uncooperative. at counsel Post 505-506. some witnesses were many attempt of the known witnesses. did not contact even Opinion of the Court mind the idea that the accident was real rather But, a story by frightened girl. jury than mere told the girl’s injury heard no direct evidence that the could by bicycle have been occasioned accident. Most of the attempted evidence counsel to elicit substan- the the tiate occurrence of accident was inadmissible as hearsay. The evidence that defense did present counsel girl’s only concerned the bleeding, serving to under- Later, the severity injuries. prosecutor’s score of her closing argument emphasized defense’s lack of evidence.

On from the trial court’s denial appeal of defendant’s trial, motion for a new Court of Appeals correctly testimony held the cousins’ was not It cumulative. was the best evidence available support defen- Eyewitness dant’s theory. descriptions of given independent support would have to defendant’s theory that injury accident, was caused a bicycle sexual misconduct.

As the explained, Court of Appeals girls’ cousins’ testimony theory “could have transformed a defense without any substantiation to a theory supported by eyewitnesses.” observation of Unpublished opinion per (Docket curiam, May 16, issued 214941), 2. No. p Hence, it probative girl’s was more than own earlier statements or the statements of the other wit- presented nesses only which were admissible impeachment. for As the Court of Appeals recognized, testimony not corroborative; “[t]his it would have materially changed quality, opposed quan- as to the tity, supporting theory.” evidence Id. defendant’s Had jury heard the cousins’ about the alleged accident, the nature of the defense would have changed from argument unsubstantiated to the jury. 495 Opinion of the Court attack on the factual have become direct It would grounded in primary charge prosecution’s basis of testimony. credible testimony eyewitnesses the two would have physical injury the older girl’s that

demonstrated It accident, not abuse. of a sexual the result girl’s credibil- greatly have undermined would fabricating she strongly suggested ity about defendant. horrific stories testified, only eyewitnesses prosecutor’s Had would have evidence of these three counts remaining girl.14 hearing After younger of the testimony been the fanciful,15the claims, which were the older sister’s other reasonably younger disbelieved jury would have testified.16 allegations. She not have might sister’s hearsay evidence that The trial court considered presented at trial about the accident concluded would have that additional evidence the same nature trial merely cumulative. It failed consider the been it determined of defendant when evidence favor probability there whether reasonable Strickland at 694. outcome would have been different. instance, crying” when girl For the older “was not not examined the first doctor and she was she was “less than most kids that “afraid.” She was nervous Corrigan prosecution’s other cites the Chief Justice against a mountain of evidence to assert there was witnesses However, testimony about the cause all their defendant. Post 500-503. girl’s injury the older statements. Once accusa of the derived from injured her, evidence that tion was undermined with substantially prosecutor’s case have been weakened. would rather than that the sexual attack “felt weird” The older said baby painful. first took her out. also said that the doctor She analyze paragraphs of this fact on counsel’s effect These Corrigan it, They “ignore” claims. Post do as Chief Justice decisions. at 500. 470 Mich 477 496 Opinion of the Court and not age” “particularly was under stress or ner- The doctor later vous.” was asked: Q. you And the observations that were made consis- girl’s] report [the tent with an from of a fall bicycle. aon Isn’t that correct?

A. Correct. concluded, The doctor on the girl’s basis of the calm physical emotional state and the characteristics of the injury, that sexual abuse was not involved.

The younger girl testified that she and her sister voluntarily “sat on lap” [defendant’s] after one of the alleged CSC-II They incidents. also failed to tell their father or uncle just what had al- allegedly occurred, though were they there with defendant and the girls. girlfriend Defendant’s testified that he had “never done anything” girls. to the “always The older was hanging around with and sitting lap” [defendant] on his never acted afraid of The girls’ grandfather him. also testified that attitude the girls towards defendant changed. never

At the hearing, Ginther the trial court to failed recognize the question was whether the cous- ins’ testimony probative. question not, as Chief Justice implies dissent, in her post CORRIGAN 501-502, whether the evidence was sufficient to allow juror guilt reasonable to find “beyond a reasonable Gonzalez, 636, doubt.” v Mich People 640; 468 (2003). If NW2d that standard at a obtained Ginther hearing, an ineffective assistance of counsel claim fail in every would almost instance. The question whether there was a probability reasonable outcome the trial would have been different had defense adequately investigated counsel the facts before developing strategy. his op Court denying defendant’s hearing, when

After the Ginther relied improperly court trial motion for new cases to past performance expertise on counsel’s It in this case. noted performance evaluate de- in criminal experienced counsel was defendant’s to the same mistake. dissent succumbs fense work. The normal twice his “expended It that counsel is irrelevant . . .” 505. case . Post at When resources on this defendant, he committed represent agreed counsel investigation conducting adequate himself to to other cases are resources he devoted case. The of his duties in assessing the performance irrelevant this case. testified, had the older sister’s eyewitnesses

If the injured abuse would that she was sexual testimony seriously im- been refuted. This would have have of testimony regarding the other incidents peached her later. It year occurred more than a allegedly abuse that corroborated the that defendant would have relationship girls. a positive with Considering against admitted for and the evidence defendant, defen- probability there is a reasonable that charged. dant would not have been convicted as failed to that counsel’s failure appreciate trial court investigate primary and substantiate defendant’s duty a abdication of counsel’s defense was fundamental deprived his complete investigation. a It conduct find we Consequently, client of a substantial defense. deprived that of the effective assistance defendant are not founded on a of counsel. Because his convictions trial, they fair cannot stand.17 enough to an result is not demonstrate We concede that unfavorable However, may be of counsel. an unfavorable result ineffective assistance probability enough that a defendant can demonstrate a reasonable where a result would have been reached. more favorable Concurring J. Taylor,

IV conclusion, In defense counsel failed to investigate primary and substantiate defendant’s defense. There a probability reasonable the result of this trial been would have different had the question evidence in presented. been This failure a strategic was not deci- sion, in only hindsight. erroneous

We hold counsel’s failure to conduct a complete investigation was a fundamental abdication duty defendant, prejudiced depriving him of a fair trial. Accordingly, the are convictions reversed the case for a remanded new trial because of the ineffective assistance defendant’s counsel.

CAVANAGH,J., KELLY, concurred with J. TAYLOR,J. I (concurring). concur the result of Justice KELLY’sopinion. I not, reach this conclusion as the dissents suggest, on the basis of hindsight, but on fact that defense counsel faced with a first- (CSCI) degree criminal sexual conduct charge in which it simply was not you “who do believe” contest between injured girl and the defendant where she it says happened says and he it Rather, did not. it was a “who you do believe” contest plus the prosecution had the additional savage vaginal evidence injury that surely a would make people lot of think that criminal sexual conduct happened unless there was another explanation for the injury.

While it is not to say injured ineffective a girl is and always liar had been (especially given the other two charges), only defense will cover the usual case on turns credibility and for which there is no physical evidence. Where there is incriminating such evidence and injured girl is now asserting that Corrigan, C. J. accident, injury, caused

defendant, not a and to to find witnesses investigation reasonable, profes- do so To fail to is required. 668, 466 US Washington, v Strickland judgment. sional (1984). 2052; 690-691; 80 L Ed 2d 674 104 S Ct J. J., concurred with TAYLOR, MARKMAN, Although this fact- (dissenting). C.J. CORRIGAN, therefore lacks majority and opinion has no specific case I in the join cannot significance, any jurisprudential or TAYLOR because their Justice Justice opinion KELLY regarding inef- settled analyses depart principles from Therefore, I respectfully counsel. fective assistance of Justice KELLY opinions Justice dissent. constitutionally counsel is conclude that defense TAYLOR produce does not strategy if counsel’s chosen ineffective Justice outcome for the defendant. favorable Kelly’s inaccuracies, omissions, and on relies factual opinion to case law from both this and fails observe speculation Supreme Applying Court. and the United States Court has not facts, I conclude that defendant that law to the that defense coun- presumption the strong overcome certain witnesses was decision to not interview sel’s Rather, that defense coun- the evidence shows strategic. the contested witnesses chose not interview sel necessary to his chosen testimony was not because their fact, it. could, have undermined strategy trial of the Court of I would affirm the decision Accordingly, Appeals. POSTURE

I. HISTORY AND PROCEDURAL FACTUAL necessary of the trial is understanding detailed A counsel was ineffective. evaluate whether defense fully 500 470 MICH Dissenting Opinion by Corrigan, C.J.

Defendant charged with one count of first-degree conduct, criminal sexual 750.520b(l)(a), MCL and two of second-degree counts criminal sexual conduct for involving conduct girlfriend’s nieces. Justice KELLY appears ignore opinion: this crucial fact in her facing defendant was three counts of criminal sexual conduct, only the one involving count the severe injury to the older sister. All the presented evidence and decisions made defense counsel must therefore be evaluated in of the light three counts.

The prosecution proved that defendant had sexually penetrated sister, the older causing a severe injury to wall,1 her vaginal and that defendant had also touched both sisters on a later Regarding occasion. charge first-degree criminal conduct, sexual the older sister originally testified she everyone, including told emergency her, room doctor who treated that she had been injured in a bicycle accident. She admitted that she lied about the Instead, accident. defen- injured dant had her when penetrated he her. She stated that defendant say told her to injured she was a bicycle accident. sisters’ father’s regarding the first-

degree criminal charge sexual conduct was particularly noteworthy. The father was present at the home when the older sister appeared with her injuries. He testified that, before anyone knew the extent or cause older injuries, sister’s defendant spontaneously insisted he had not hurt her: Okay, you got ready and when to leave for the Q.

hospital, you—you [the girlfriend, defendant’s who was the right? aunt] [the sisters’ took sister]. Is that surgery general The older sister underwent under anesthesia that required twenty repair episiotomy-like rip. stitches to C.J. by Corrigan, young there come over there man over

A Well that this, saying do I girlfriend] I didn’t crying [defendant’s right that, they that I was do off bat didn’t know way. my going to take care of it own testified: father further The sisters’ [defen- I came back we came back—when Then when saying running that goes—he goes girlfriend] [his to dant] going think the father’s] to he older sister’s didn’t—[the expect [sic, you going I’m wrong thing] me. do about What sister], to I’m something’s happened [the If older to think? happened. he I what Then going to think it unless know girlfriend] [his goes crying girlfriend] [his and over there to you. got something to Bill says I tell over and comes [the Bill didn’t touch older [defendant] didn’t touch. .. psy—psychology sister] had sister]. [the Then I and—

Q. talk— What are brought talking bike accident. You about the A. We’re ya’. subject just telling up I’m the so charges second-degree Regarding criminal the had conduct, testified that defendant both sisters sexual inappropriately in their in a bedroom touched them testimony apartment. corroborated Their father’s alone that went father, who testified defendant their girls part apartment were the where the to the playing gone five from the kitchen for about and was minutes. ten repeatedly opinion, insists In Justice KELLY “only of criminal of the three counts

the evidence” and testi- the sisters’ statements conduct was sexual presented mony. prosecution patently This false. during two-day eight trial, the than witnesses no fewer including physicians, sisters, a friend of two (who testi- the older sister’s corroborated older sister (who mony), also sister’s friend the mother of the older testimony), the sisters’ the older sister’s corroborated Mich Corrigan, C.J. (whose above), father was outlined initially investigated officer who complaints. When discussing presented prosecu- evidence at tion every supportive should be afforded inference can be drawn from this evidence. Justice KELLY, how- ever, simply denies that evidence existed at all. This selective recitation of the is misleading. facts (1)

The defense theory at trial was twofold: defendant did not commit the offenses and no (2) knowledge them, that the older sister habitu- lied ally and could not be trusted. The pre- sented three witnesses.

The first grandfather sisters’ and defen- girlfriend’s dant’s father. He lived house where first-degree criminal sexual conduct occurred. He testified that defendant was never alone with the older sister and that in question was like a unicycle, with the front off. broken He testified he that saw the older playing bicycle sister with the previous on occasions, he although was not home the time of the accident. The brother, however, older sister’s told him about the grandfather accident. The testified that the older sister had never told him any about sexual and that abuse she never though acted as she was afraid of or defendant did not like him.

The second defense witness was the older sister’s uncle girlfriend’s and defendant’s brother. He also testified that defendant was never alone in the house that, and to his knowledge, defendant never watched Moreover, the older sister alone. the older sister never frightened acted or uncomfortable around defendant and she never any mentioned or inappropriate abuse behavior to him. he Although had not seen the bicycle accident, the older sister’s brother also told him about Corrigan, C.J. and injured after she was older sister

it. He saw the He also hospital. to the being transported knew she hospital sister went to after the older defendant saw on any blood having defendant not remember and did his shirt. aunt and older sister’s was the

The last witness offense. She time of the at the girlfriend defendant’s defen- together, for whom had a child and defendant defendant testified that She support. child paid dant it was “abso- and alone in the house was never ever been defendant to have lutely for impossible” Further, although had she the older sister. alone with accident, accompany she did the bicycle not witnessed hospital. older sister’s the older sister Fur- accident. also told her about brother and ther, had not been disturbed defendant’s clothes Finally, she any clothing. on of his she did not see blood to her had never come the older sister testified and that behavior any inappropriate about abuse or to be always wanted liked defendant him. around argued closing statement,

In defense counsel and that did not commit the offenses that defendant sister, reasons, had lied. He for whatever girl’s out inconsistencies pointed numerous been that she had testimony, including insistence baby had the taken out of eight pregnant months made defense counsel also hospital. Finally, her at the the defense fact that none of strategic use bicycle accident. He noted witnesses witnessed the accident witnesses had all heard about brother, rather than from the from older sister’s on jury convicted defendant herself. sister all counts.

504 470 MICH 477 Corrigan, C. J.

II.DISCUSSION A. THE LAW REGARDING INEFFECTIVE OF ASSISTANCE COUNSEL I agree Pickens, with Justice KELLY that in v People 298; (1994), Mich 521 NW2d 797 this Court adopted the standard of ineffective assistance of counsel set forth 668; in Strickland v Washington, 466 US 104 S Ct (1984). 2052; 80 L Ed 2d 674 prove To ineffective assistance, a defendant must show that his attorney’s performance objective fell below an standard of reason- that, errors, ableness but for counsel’s there is a probability reasonable that the result of the proceeding would have been different. probability” “Reasonable defined as “a probability sufficient to undermine confi- (em- Strickland, dence in the outcome.” supra at 694 added). phasis

Unfortunately, gives Justice KELLY only lip service to strong presumption that counsel’s actions were sound trial strategy, “every effort be [must] made to distorting eliminate the effects of hind sight . ...” Id. at See Toma, 689. also v People 462 Mich (2000) (“[A] 281, 302; 613 NW2d defendant must overcome strong presumption that his counsel’s action constituted strategy sound trial under the cir cumstances.”); 6; v 1, 460 Mich Hoag, 594 NW2d (1999) (the strong law affords a presumption that counsel’s actions constituted trial strategy). In evaluat ing assistance, claim of “[j]udicial ineffective scrutiny of counsel’s performance must be highly deferential” and should refrain from second-guessing counsel’s cho strategy. Strickland, sen trial supra at 689 (emphasis added). Counsel’s performance be must evaluated from counsel’s perspective at the time the alleged error and light the circumstances. Id. This deferential stan- People y 505 Grant by Corrigan, C.J. easy all too for because “it is of review exists

dard it has proved defense after court, examining counsel’s act or omis- unsuccessful, particular that a to conclude Id. of counsel was unreasonable.” sion STRATEGY AND B. INVESTIGATION re- deferential standard apply than this Rather Kelly place to the law view, has twisted Justice his chosen counsel to defend on the defense burden holds further and fact, goes In KELLY strategy. Justice was not ulti- that, strategy counsel’s because defense reason- successful, it cannot even be considered mately com- holding, In Justice KELLY Ante at 486. so able. hearing in the held ignores counsel’s pletely Ginther, 436; 212 v Mich NW2d to pursuant (1973). here that “[counsel Justice KELLYconcludes theory of disregarding alternate possible, one not] This one . ..” Ante at 492. in favor of a better . defense by the record evidence. supported conclusion is not counsel, Goldstein, I. testi- David Defendant’s trial twice hearing. expended at Goldstein fied the Ginther he although custom- normal resources on this case: his case, he as- investigator for each arily only one used defendant’s case because investigators two to signed Justice KELLY’sasser- were uncooperative. witnesses so “readily available” had information tions that counsel whose persons to contact most of the to him and “failed defense,” ante for his own provided defense had names 487, testi- misleading are and unfounded. Goldstein at any difficulty finding length regarding his fied fact, as In cooperate. would defense witnesses who documentary below, evidence provided Goldstein stated potential contact repeated attempts ways attempts those were many and the witnesses investigators ignored. or He stated rebuffed Dissenting Opinion by Corrigan, C.J. finally uncle, grandfather, interviewed the older sister’s girlfriend, only and defendant’s but after considerable witnesses, particularly girl- effort. The defendant’s friend, keep would not return or ap- calls scheduled pointments. physical exhibits, including He offered in- records, terviews notes and office to support this testimony. The defense witnesses defense counsel was ignored able contact even trial subpoena, forcing him to obtain a material witness warrant to ensure presence their at trial. Defense could not force counsel the possible cooperate; defense witnesses to he was by limited the witnesses’ marked refusal to cooperate. theory The defense was that defendant did not com- mit the the crime. At time of the Goldstein did not believe that establishing the accident was be a going to problem because the older sister had acknowledged the bicycle accident. Until the trial began, was Goldstein not aware that the older denying bicycle sister was accident:

A. prove I didn’t think we needed to that the accident I occurred because didn’t think the occurrence of the dispute. accident was in

Q. you, did, injury Did dispute, nature of the inwas however? Wasn’t it? injury,

A. The nature of the but not the accident itself.[2] police report prove on Kelly Justice relies to that Goldstein knew regarding the older sister had made inconsistent statements injuries. police report of nature This is not in the record before us. regarding missing report baffling. Justice assertions Kelly’s this are repeatedly Justice Kelly also insists that defense to counsel’s access two reports prompted inquiry. reports doctor’s should have further These are missing police report also not the record before us. If the and the other missing reports identified Justice are so crucial to Justice Weaver case, proper determination of this to

Kelly’s course is not “infer” the missing reports, contents of the but to remand to the trial court to J.C. Corrigan, it impor- he did not consider testified

Goldstein to the acci- eyewitnesses defense to obtain to the tant and because admission of older sister’s because dent to testify can’t as observing an accident layperson “a had already He stated that he of injuries.” the extent the amount of blood: testify to about witnesses not [P]roving of accident was the existence the... the, had we had the significant. [the uncle]. We We Nobody the blood. girl. [The uncle] of the saw statement bleeding. proving that not... So disputing the, to to relating that The critical issue was critical issue. charge... . do lay. can’t that. And a .. witness testi- that, anticipated explained given Goldstein abuse, he mony report Dr. Bond of a credible sexual call necessary eyewit- or not feel it was interview did nesses to the accident: testify going If are the doctors point injury, what’s the did not cause that proving accident? that there decision to explained that he made tactical He find he could not experts contest the medical because testify for the defense who would any experts medical at the time of having examined the older sister without 488 n that implies, ante at injury. Justice 7, KELLY any to find unable the fact that defense counsel was have some prompted should somehow testify doctors to sister’s inquiry regarding further cause testimony at This injuries. mischaracterizes Goldstein’s testify he did not hearing. the Ginther Goldstein conclusively deter- could not find a doctor who could Kelly to reports. refuses to remand reconstruct those Justice reconstruct analysis nothing instead, reports; simply on more she bases her these speculation. than mere 470 MICH 477 Corrigan, C. J. mine injuries; rather, the cause of the older sister’s he testified that he could not find any doctor who could any opinion form because the doctors had not had an opportunity personally to examine the older I sister. fail to understand the fact that testify how no doctor would examining without personally the older sister should prompted have inquiry further in the cause the part Rather, on of defense counsel. because he could not find any medical experts testify, Gold- stein was unable to choose trial any strategy that involved contradicting prosecution’s medical ex- perts.

Further, Goldstein testified that one of the defense strategies argue was to that the older sister “had a habit making things up.” Thus, when the prosecutor opened with statement that the older sister was now denying accident, there anwas he felt it strengthened the defense: you know,. position But .. girl since our was the was a liar, prosecutor] I getting up [the welcomed saying girl had lied.

He testified: Our,

A. the tactical decision was made that our main was, thrust this a liar. That if she if she sexually was in fact assaulted it wasn’t Bill Grant. Q. trying And would have to attack the conclusions of fight or bicycle accident, doctor about would that have from detracted the defense that the victim liar? was a of, A. It could it obviously could I have. mean I can’t jury’s read a mind. But it could have.

Q. mind, your But in it would have been a tactical pick decision one and keep hitting that rather shotgun? than a Well, along was, A. our defense all don’t if we know she sexually was, assaulted or But if not. she it wasn’t Bill Grant v by Corrigan, C.J. know, we, she didn’t know whether that we Grant. You had, tendency to a she she had or she wasn’t because case, any Bill Grant. But in it wasn’t he. the effect of the older

Thus, he considered specifically chose, as a matter testimony contradictory sister’s it and use to inconsistencies strategy, highlight advantage. the defense’s he knew of the existence also testified that

Goldstein allegedly witnessed the boys the mother of the who and knew that she had before trial bicycle accident however, stated, He injury. older witnessed the sister’s boys they claimed had he not aware that the a bicycle accident until he received letter witnessed a that he explained after the trial. He from their mother because, boys’ call mother as did not interview or it, testimony he was that she saw far as understood had who already and he two witnesses bleeding, Further, bleeding. saw the Goldstein they testified that even theory because the defense stressed that sexually assaulted, if older had been it was not sister defendant, so of a establishing existence not accident was crucial. (1) that: he short, explained

In defense counsel focus themes—that what- strategically chose to on two sister, defendant was older happened ever (2) liar; involved, and that the sister was he not to strategic pursue the further decision made presenting have evidence theory required that would accident, on the existence of the regarding the strengthened the grounds conflicting stories possibly a liar and could theory that the older sister was (3) strategy; from his chosen trial jury distract the be- not interview the contested witnesses he chose to to his de- their was either irrelevant cause Dissenting Opinion Corrigan, C.J. (whether fense actually accident had hap- (the or pened) cumulative extent of the older sister’s injuries). Defense counsel further testified that he chose his after strategy considering that he could present any not medical testimony to rebut the prosecution’s medical testimony that the older sister’s injuries were consistent with sexual assault.

It is clear that defense counsel not did interview because, contested witnesses at the time he prepar- ing for he had no reason to think those witnesses would enhance strategies. Further, his chosen trial it is clear that did defense counsel interview wit- nesses during the trial because he believed that sister’s that she had lied about only strengthened his defense.

Justice failure to acknowledge such trial Kelly’s strategy puzzling. Justice KELLY also fails to acknowl edge apply or the deferential standard required by Strickland. Rather than shunning hindsight re viewing counsel’s actions from counsel’s perspective at alleged the time of the of light error all the circum stances, Justice KELLY summarily concludes de fense counsel was ineffective strategy because his did not prove holding successful. This cannot squared be with our Sixth jurisprudence. Amendment Sixth “[T]he Amendment guarantees range reasonably of compe tent advice and a reliable result. It does not guarantee infallible Mitchell, counsel.” v People 145, 171; Mich (1997). 560 NW2d 600

Further, Justice KELLY gives only lip service fact that defense counsel was not preparing for a trial in which the sole count was the first-degree criminal charge. Rather, sexual conduct defense counsel had to prepare a defense that all addressed charges three against defendant. He repeatedly frustrated in his Corrigan, J.C. from cooperation lack investigatory efforts He did not have benefit witnesses. ostensible time and he have unlimited hindsight, nor did perfect Rather, to make own “reasonable he had resources. on “the limitations judgments” regarding professional decision that the “reasonable investigation,” including unnecessary.” Strick- investigations particular makes land, at 690-691. supra

C. PROBABILITY REASONABLE standard of ignoring In addition deferential multiple judicial strategy involving review trial defendant, ignores Justice KELLY also against charges of “Reasonable probability.” the definition “reasonable a of this Court majority does not mean that probability” compel- of the contested witnesses testimony finds Rather, above, as ling. probabil- “reasonable explained a ity” probability means sufficient to undermine confi- presented in the Defendant simply dence outcome.3 has strategy; he could have been an alternate trial has what prob- a demonstrating not met his burden of sufficient his counsel ability strategy actual chosen of the outcome his actually undermined confidence trial.

Further, any probabil- determination “reasonable record, including take the entire ity” must into account produced regarding all the evidence the three counts devastat- defendant. the sisters’ father’s against Given testimony spontaneously protested that defendant ing innocence cause before knew the extent or anyone injuries, given the older sister’s the corroborated second-degree testimony regarding of both sisters Kelly “beyond attempts as Justice to recharacterize this standard however, argue, doubt.” do I that the standard is reasonable Nowhere “beyond reasonable doubt.” Corrigan, C.J. criminal sexual conduct one charges, cannot conclude decision to pursue defense counsel’s the bicycle detail exhausting issue with undermines con- in the outcome. fidence record, reviewing

After the full I cannot conclude anything defense counsel’s actions constituted less strategy. than sound trial Applying the correct stan- dards of review and placing the burden on defendant reveals that defendant has not demonstrated that de- fense any all, counsel committed error at let alone an error that would undermine confidence in the outcome.

HI. RETRIAL I that, also note if retrial, there is a the evidence regarding accident that Justice KELLY finds compelling subject so will be scrutiny, to intense given any the lack of testimony coherent regarding the al- leged bicycle accident.

In the testimony characterizations of the regarding the alleged bicycle accident, willfully Justice KELLY omits many inconsistencies that arose during the testi- A mony. full review of the testimony, below, as outlined demonstrates that the testimony conflicting, confus- ing, actually undermined the testimony the de- fense witnesses at trial. presented Had defense counsel such the jury would have been pre- witnesses, sented five with two of whom contra- dicted the the testimony of other three. I fail see how the present coherent, decision theory unified defense jury to the constitutes ineffective assistance.

A. THE INITIAL TESTIMONY REGARDING THE BICYCLE ACCIDENT rendered, After the verdict was but before sentenc- ing, new defense counsel for a moved new trial on the J.C. Corrigan, evidence evidence. The new newly of discovered basis was that appeal the to this at motion relevant presented that bicycle the the cousins witnessed sisters’ injuries. the older sister’s alleged defendant had caused however, confusing was and testimony, The cousins’ contradictory. criminal con- first-degree the time of the sexual

At offense, eight. and Their mother boys duct the were six bicycle had not acci- testified that she witnessed that children had. She she dent, but that her testified girlfriend help- with defendant’s was in the bathroom injured after and acknowl- ing the older sister she known girlfriend would have of edged that defendant’s made the her and same observations. presence family cousins’ mother also stated that rest of day the house the accident knew she was at on there. She and also knew that her children were testi- and that fied that she aware the trial stated she presence told mother defendant’s about at the accident presence bathroom her children’s on the the trial. day second

The older that he the older cousin testified saw bicycle injured. her get sister’s accident and saw He that, did accident, testified after older sister cry house, and walked herself to the up or scream her into the girlfriend where defendant’s took bath- wearing room. He testified the older sister was light jeans, jeans that the turned dark after the blue but all the He that the accident because of blood. testified specified He got older sister hurt on handles. hill at of the he was the bottom when of the hill. top hurt and that no one was got sister girlfriend would have He testified that defendant’s he was that he at the house also known accident occurred. He playing with the when the Dissenting Opinion by Corrigan, C.J. that repeatedly

also stated he told his mother or never anyone else about the accident and if insisted that otherwise, mother said she would be wrong.

The he younger cousin testified that knew he was at hearing testify bicycle accident, the about the al- he though insisted no one told him that. He stated that bicycle the front wheel off, on was broken but the handlebars were intact. He testified that he saw the running sister down the hill with bicycle and that she fell on metal go some when she let and got it private hurt in her part. younger The cousin testified hurt, got after she the older just got up sister and walked to the After repeated questioning, house. he specifically testified he remembered that the older wearing sister had been blue pants, jeans, sweat and not and that the sweat pants were torn the front. The cousin younger that, also testified contrary to the older testimony sister’s uncle’s at the uncle was not at the home on the day happened that, accident if he differently, Thus, said the uncle be wrong. would boy’s testimony contradicted that of key one of the younger witnesses at trial. The cousin testified that defendant’s girlfriend and the older grand- sister’s father would have known he atwas on house day of the accident and that they all knew he with the older sister happened. when He also testified both that he had told someone about couple accident a minutes after it happened and that he never told anyone about the accident at all.

After the hearing, judge denied the motion for new trial and sentenced defendant to forty fifteen years for the first-degree criminal sexual conduct count and ten to fifteen for years the two counts of second- degree criminal sexual conduct. y Grant Opinion by Corrigan, C.J. B. TESTIMONY SUBSEQUENT THE ACCIDENT BICYCLE

REGARDING again hearing, at the Ginther testified cousins hearing contradicted their Ginther hearing at the testimony given previously of the much motion for new trial.4 regarding the like a the The older cousin testified that Instead, to ride it. unicycle possible and that it was the bicycle holding ran handlebars. people behind testimony at for Contrary to his the motion a new testified, see hurt “But I didn’t her get the older cousin added.) hike, further He though.” (Emphasis on the her, I testified, “I the bike hit but knew part didn’t see hurt at.” He testified that the older where she was also did the hill as he had up previously sister not walk testified, that her mother and an aunt went but instead hill her. older cousin testified got down the and The feet that he at the fifty long the hill was and over accident, of the hill the time of the not at top at He he previously bottom of the hill as testified. to the accident that he talked his mother about testified later said he didn’t shortly happened, after it but not. he Finally, he to her or remember whether talked he was morning hearing testified that on the also how talking grandmother with mother and “about He jury up.” stated: screwed somebody morning Okay. You chatted with this Q. about this? Kelly’s court’s at the Justice characterization of the trial decision gave very hearing misleading. trial court detailed Ginther is also The clearly decision, boys finding not that the were unable remember hearing, did of the but that the court “not believe the time Ginther interview, witnesses, alleged have failed to would Mr. Goldstein directly and would have have been of assistance to Defendant exculpated the Defendant on CSC-i offense.” Dissenting Opinion by Corrigan, C. J. about—well, rumor—well,

A. Just what I heard about jury they messed and was about how it this morning.

Q. you told Your mom what this all about? A. Yeah.

Q. Okay. you why you She told here? were A. Um hm.

Q. Yes?

A. Yes.

Q. Okay. you say? she told And what to A. No.

Q. Okay. you? What did she tell A. going She that we’re help told us here to see we can if [Emphasis Bill. added.] younger contrary testified, cousin to his broth- testimony, actually er’s he that both and defendant rode day of the accident. This placed injury directly defendant at the scene of the contradicted with all of of the defense witnesses trial, at who had testified that defendant was injured. not at the scene when older sister was He pedals, testified that the had both a seat and again contrary testimony. to his brother’s He testified contrary previous testimony, that, to his the older sister riding running was and not behind it. He top stated that he at the was of the hill with his brother accident, at the time of the and that the older sister was injured by bicycle, pile the handlebars on the previously of metal at the bottom the hill he had as testified:

Q. Okay. [the So older run pile sister] didn’t into a metal at the of the hill? bottom

A. No.

Q. happen? That didn’t Right. A. happen. That did not Dissenting Opinion Corrigan, C.J. questioned younger cousin Finally, when exchange clothes, following the older sister’s about place: took wearing

Q. clothes? sister] older [The A. Yes. long pants or short

Q. if had on you remember she Do pants? long pants. had on

A. She Q. Okay. they blue. I don’t know only I were

A. And know jeans. I no idea. they pants or have if were sweat pants or you say sweat Q. that about What made jeans? pair pants and she had had a of sweat

A. Because she they both blue. pair jeans and I know were younger a new that, the motion for Recall wearing sister was the older cousin had insisted he knew the and that jeans, and not pants sweat to only person He the two. difference between His wearing jeans. was not that the older sister testify knew if the longer that he no statement spontaneous prompted or pants jeans sweat wearing sister was exchange: following your family Q. your anybody in talk Okay. mom or Did testify today? you going to you were about what Only my A. mom. your you

Q. Okay. mom talk to about? What did get testifying to see I could said I was A. She if Grant-Bill Grant out. Q. Bill Grant off? Get [Emphasis added.] hm.

A. Um explana- testimony gave no coherent Thus, boys’ or remembered actually saw they of whether tion occurred, alleged accident accident, how alleged 470 Mich Corrigan, C.J. alleged occurred, where the or who was present alleged when accident occurred. Given numerous boys’ testimony inconsistencies re- garding boys’ accident and the they were trying “help” defendant or “get out,” boys’ [defendant] testimony on retrial will be subject to impeachment. Given the inherent problems in using testimony, this it will be difficult on retrial to any establish with certainty any details surrounding the alleged bicycle accident.

IV CONCLUSION In opinion, Justice KELLY ignores both the facts and the law. placing Rather than the burden on defen- dant to demonstrate the ineffective assistance of his counsel and claim reviewing defendant’s with the strong presumption that counsel’s actions constituted sound trial strategy, opinions of both Justice KELLY conclude, and Justice TAYLOR that, in hindsight, because justices those would presented have a different strategy, counsel was ineffective. This is an unprecedented unwarranted departure from our Sixth Amendment jurisprudence. Application of the law to the facts of this compels case the conclusion that counsel thoughtfully chose a trial strategy and pursued that strategy. Coun- sel’s contested actions were all deliberately chosen to execute counsel’s strategy. chosen Defendant has failed to demonstrate any counsel, error let alone one that undermined confidence in Rather, the outcome. all defendant has shown is an unfavorable result. Until today, an unfavorable result was not enough demon- strate ineffective assistance of counsel. With all respect due the opinions of Justice KELLY and Justice I TAYLOR, it believe still is not. I Accordingly, would affirm the decision of the Court of Appeals. People v Grant by Dissenting Opinion Weaver, J. Young, JJ., Corrigan, concurred with

Weaver C.J.

WEAVER, I from (dissenting). respectfully J. dissent majority’s holding the defense counsel was constitutionally ineffective. everyone, including

The older told her initially sister treating injured that she had been in a physician, bicycle accident. At the older sister testified that bicycle injury there had been no accident and that her had resulted from defendant’s sexual assault. The lead opinion’s finding that defense counsel was constitution- ally pretrial ineffective is based on defense counsel’s investigate failure to to determine if the had in fact occurred.

The lead opinion’s premise unsupported basic is there in the record to nothing because is show that defense counsel knew of the older sister’s inconsistent opinion statements before trial. The lead relies on one source of information—a report second support theory doctor—to its that defense counsel knew or should have known before trial that the older sister had given inconsistent statements about the cause injury before trial. report by

This the second doctor not in the is record before us. No one testified about contents of report, report referenced nor was the admitted into The opinion’s evidence. lead assertion that the second report may doctor’s have indicated that the older sister inconsistently had the cause her injuries described speculation, mere the record. unsupported Rather, properly the evidence before us indicates that defense to know that the older counsel no reason would there had been no testify sister Dissenting Opinion by Weaver, J. 7, 2000, In accident. the June hearing Ginther1 repeatedly counsel testified that the accident was not disputed:

Q. assis-, Wouldit have been of of assistance to have an eyewitness to the accident? Only disputed. if

A. it was The accident disputed. disputed never it. [The uncle] sisters’ he, willing testify testified what or was to what he it, of, things observed. And and one one of the that he girl saying, observed was the “I had an accident.” Q. Alright. Maybe might to the extent that it have position injuries in any assisted the defense of the that that girl sustained, bicycle she sustained as a result of the accident? Maybe the,

A. No. to extent if if the accident was disputed, helping jury decide whether the accident actually dispute occurred or not. But there was no that the uncle], presence [her [her uncle’s] said to in and in the sister, presence of his that she fell. She had an accident. So dispute. that issue was not in No, te-,my my A. morning statement all this has been prove that I didn’t think we needed to that the accident occurred because I didn’t think the occurrence of the dispute. accident was in excerpts

The from the hearing Ginther that the lead opinion quotes, 490, ante at support to the proposition that “defense acknowledged counsel that it impor- was tant to establish that accident occurred” actually prior demonstrate that to trial defense counsel did not know that important it would be to establish that accident had occurred. Ginther, (1973). 436; People v 390 Mich NW2d 922 J. Weaver, filed a

Further, 24, 2001, defendant January on court. facts” the circuit statement of with “proposed two of facts included statement proposed Defendant’s did not the trial counsel indicated points which disputed: accident was trial that the know before eye to did call an witness [trial counsel] 31. Goldstein eye think that an at the and did not bike accident trial he any to him since been of assistance would have witness disputed by the the bike was not believed that accident alleged victim. eyewitness to the did not that an

32. Goldstein believe linking the important purposes of for bike accident was injury since he felt that alleged to the bike accident victim’s eyewitness only important to the have been an would such dispute, if itself in the bike accident was Defendant’s 40, only thing eyewitness bike and that to the TR testify TR accident occurred. accident could however, Goldstein, did not believe that bike 91. 40; 89; dispute “relevant.” TR or the same was TR 110. that “Defendant filing plea concluded with adopt Court requests that this Honorable

hereby facts applicable facts the relevant above reference as attorney or not Defendant’s trial the issue whether effective, Appeals.” the Court as limited 24, 2001, statement of facts. January proposed Justice I Chief Justice CORRIGAN and agree with that did not meet burden of defendant YOUNG fell below an showing attorney’s performance that his that, of and but for objective standard reasonableness errors, probability that there is reasonable counsel’s different. of would have been proceeding the result (1994) 298; Pickens, 446 NW2d 797 v Mich 521 668; US Washington, v 466 the Strickland (adopting [1984], L 2052; Ed 2d standard of Ct 80 674 104 S counsel). There is no evidence ineffective assistance Mich 477 Opinion by Young, J. in the record before us to show defense counsel knew of the older sister’s inconsistent statements be- trial; rather, fore the evidence properly before us indi- cates that defense counsel had no reason to know that the older testify sister would there had been no bicycle accident. I would affirm decision of the of Appeals. Court C.J., YOUNG, J., concurred with

CORRIGAN, J. Weaver,

YOUNG, J. I (dissenting). respectfully I dissent. believe wisdom of deferring to the trial court’s deter- mination whether ineffective assistance of counsel has been demonstrated policy. is sound v See People Remand), (After 746, 752; Sexton 461 Mich 609 NW2d (2000). court, The trial which has first-hand knowl- edge the witnesses and the conduct of the inis the best position only assess not whether defense counsel’s trial performance been deficient, has but any might whether such deficiency have altered the outcome of the trial.

As is aptly demonstrated variety number and opinions generated, this case has this case is one that highly and productive fact-sensitive of no clear pre- cedent that can provide guidance for future cases. Because I do believe that the trial court erred in its determinations on the claim of ineffective assistance of counsel in the several it hearings conducted on this question, I would affirm the convictions. C.J., J.,

Corrigan, Weaver, concurred with Young, J.

Case Details

Case Name: People v. Grant

Court Name: Michigan Supreme Court

Date Published: Jul 15, 2004

Citation: 684 N.W.2d 686

Docket Number: Docket 119500

Court Abbreviation: Mich.