Lead Opinion
This case requires us to determine whether collateral estoppel may be applied to preclude review of a criminal defendant’s claim of ineffective assistance of counsel when a prior civil judgment held that defense counsel’s performance did not amount to malpractice. We hold that collateral estoppel may not be applied in these circumstances because defendant did not have a full and fair opportunity to litigate his ineffective-assistance-of-counsel claim, contrary to the requirements of the doctrine itself.
Given our conclusion that collateral estoppel is inapplicable, we must also determine whether defendant
I. FACTS AND PROCEEDINGS
Defendant was charged with five counts of second-degree criminal sexual conduct (CSC-II) for allegedly touching the genitals of his eight-year-old daughter and forcing her to touch his genitals. During the bench trial, the complainant testified that defendant touched her three or four times (once or twice while she was in defendant’s bed at night) and would lower her hand to his genitals. Lilya Tetarly, the complainant’s mother and defendant’s ex-wife, testified that in 2004 the complainant developed yeast infections. On direct examination, Tetarly denied asking defendant to treat the yeast infections with ointment and stated that the complainant became upset when she had to go to defendant’s home. Defense counsel did not cross-examine Tetarly. As the only defense witness, defendant testified that he never forced the complainant to touch his genitals and that he touched the complainant’s genitals six times to apply medication at Tetarly’s insistence after a heated argument over whether it was appropriate for him to apply the ointment. Defendant
On direct appeal, defendant argued that defense counsel was ineffective for failing to impeach Tetarly with evidence of bias pertaining to their divorce four years earlier. Defendant argued that Tetarly had attempted to hit him with her car, which was supported by a police report, and assaulted him while he was driving, which resulted in Tetarly’s arrest on domestic violence charges. The Court of Appeals denied defendant’s motion for an evidentiary hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973),
Defendant subsequently filed a legal malpractice claim against defense counsel, which the trial court dismissed upon defense counsel’s motion for summary disposition. The Court of Appeals affirmed, holding that defense counsel’s performance fell within the “attorney
During the course of the Ginther hearing, voluminous testimony was taken. Tetarly admitted that she was dissatisfied with the divorce judgment and had made negative comments about defendant in front of the complainant. And, for the first time, Tetarly disclosed that before reporting the complainant’s allegations of abuse to the authorities, she brought the complainant to a youth pastor. Tetarly stated that she then brought the complainant to CARE House, which provides intervention and treatment services for child victims of abuse, where Amy Allen, a CARE House
Allen, who was unaware that the complainant had spoken to others about the abuse, testified that it is important to know whether the child has spoken to anyone else in order to conduct a proper forensic interview because, as a result of repeated interviewing, a child might start to mistakenly believe that something happened to him or her. Additionally, Dr. Katherine Okla, a clinical psychologist specializing in sexual abuse, noted her concern regarding the complainant’s knowledge of her mother’s hatred of defendant and explained that Tetarly’s leading and suggestive questions and the repeated questioning of the complainant (especially in a therapeutic rather than forensic setting) could have tainted the child’s recollection of the events surrounding the alleged abuse. Defendant testified that he had requested that defense counsel consult with numerous witnesses including Allen and HT, who was defendant’s son.
Defense counsel testified that her defense theory was two-fold: she would (1) impeach the complainant’s trial testimony with an inconsistent statement regarding the number of times defendant made her touch him and (2) show that defendant lacked the requisite intent of sexual gratification to be convicted of CSC-II.
Following the hearing, the trial court ruled that defense counsel was ineffective and defendant was entitled to a new trial. The Court of Appeals reversed, reasoning, in part, that collateral estoppel precluded the Court from reviewing the performance of defense counsel because in defendant’s legal malpractice case, the Court had held that defense counsel’s performance fell within the “attorney judgment rule.” The Court further held that counsel was not ineffective on the basis of the claims of error left for its review. People v Trakhtenberg, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2011 (Docket No. 290336). Defendant sought leave to appeal in this Court, which we granted. People v Trakhtenberg, 490 Mich 927 (2011).
II. STANDARD OF REVIEW
This Court reviews de novo the application of a legal doctrine, including collateral estoppel. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). The question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court’s findings of fact and reviews de novo questions of constitutional law. People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).
A. COLLATERAL ESTOPPEL
Generally, the proponent of the application of collateral estoppel must show “that (1) a question of fact essential to the judgment was actually litigated and determined by a valid and final judgment, (2) the same parties had a full and fair opportunity to litigate the issue, and (3) there was mutuality of estoppel.” Estes, 481 Mich at 585.
The prosecution argues that this Court approved the application of collateral estoppel in the civil-to-criminal context in People v Gates, 434 Mich 146; 452 NW2d 627 (1990). Gates stated that “[c]ases involving ‘cross-over estoppel,’ where an issue adjudicated in a civil proceed
In the present case, we must consider the goal of the doctrine of collateral estoppel along with the elements of the doctrine to determine whether the Court of Appeals erred when it precluded review of many of defendant’s allegations concerning the ways in which defense counsel erred. The doctrine of collateral estop-pel has compelling underpinnings because it “relieve [s]
choice of forum and incentive to litigate .... [A]s so often is the case, no one set of facts, no one collection of words or phrases, will provide an automatic formula for proper rulings on estoppel pleas. In the end, decision will necessarily rest on the trial courts’ sense of justice and equity. [Blonder-Tongue Laboratories, Inc v Univ of Illinois Foundation, 402 US 313, 333-334; 91 S Ct 1434; 28 L Ed 2d 788 (1971).]
See, also, Storey, 431 Mich at 373 (stating that “[t]he extent to which the doctrine is applied is also dependent upon the nature of the forum in which the initial determination was rendered”).
We hold that the Court of Appeals erred when it applied collateral estoppel to preclude its review of defendant’s ineffective-assistance-of-counsel claim be
Because we conclude that the Court of Appeals erred when it applied collateral estoppel, which precluded a full review of defense counsel’s alleged errors, we must now decide the merits of defendant’s ineffective-assistance-of-counsel claim on the basis of a full review of the evidence revealed at the evidentiary hearing.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Both the Michigan and the United States Constitutions require that a criminal defendant enjoy the assistance of counsel for his or her defense. Const 1963, art 1, § 20; US Const, Am VI. In order to obtain a new trial, a defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different. Armstrong, 490 Mich at 290; see, also, People v Pickens, 446 Mich 298; 521 NW2d 797 (1994)
X. DEFENSE COUNSEL’S PERFORMANCE
In examining whether defense counsel’s performance fell below an objective standard of reasonableness, a defendant must overcome the strong presumption that counsel’s performance was born from a sound trial strategy. Strickland, 466 US at 689. Yet a court cannot insulate the review of counsel’s performance by calling it trial strategy. Initially, a court must determine whether the “strategic choices [were] made after less than complete investigation,” and any choice is “reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-691. Counsel always retains the “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. In this case, the trial court and the Court of Appeals erred by failing to recognize that defense counsel’s error was the failure to exercise reasonable professional judgment when deciding not to conduct any investigation of the case in the first instance.
First, defense counsel failed to identify the factual predicate of each of the five charged counts of CSC-II. Although the charging documents lacked specific factual allegations, defense counsel advised defendant to waive his preliminary examination and she failed to file a motion for a bill of particulars. As a result, in this case defense counsel was left without a competent understanding of the prosecution’s theories of guilt. In fact, Jerome Sabbota, an expert in criminal trial practice and defending cases involving allegations of criminal sexual conduct, testified at defendant’s evidentiary hearing that without either a preliminary examination or a bill of particulars, there was no way to develop a defense in this case.
Second, defense counsel failed to consult with key witnesses who would have revealed weaknesses of the prosecution’s case. Particularly, counsel failed to interview Allen, despite the fact that the prosecution in-
Lastly, defense counsel’s unreasonably inadequate investigation contributed to her failure to sufficiently develop the defense that was actually presented at trial. This case turned solely on credibility — the ultimate question at trial was whether the complainant’s allegations of sexual abuse were truthful or, conversely, if her allegations were the result of improper motivations and interviewing techniques. Counsel’s failure to cross-examine Tetarly and adequately impeach the complainant was a result of counsel’s unreasonable decision to forgo any investigation in the case. In fact, counsel admitted that had she discovered the pertinent information, she would have (1) impeached the complainant with her additional inconsistent statements regarding the number of times defendant allegedly forced her to
Therefore, we hold that defense counsel’s performance was constitutionally deficient because a sound defense strategy cannot follow an incomplete investigation of the case when the decision to forgo further investigation was not supported by reasonable professional judgment. We must now turn to the question whether defendant was prejudiced by the deficiency.
2. PREJUDICE
In addition to proving that defense counsel’s representation was constitutionally deficient, defendant
In the present case, the key evidence that the prosecution asserted against defendant was the complainant’s testimony; therefore, the reliability of defendant’s convictions was undermined by defense counsel’s failure to introduce impeachment evidence and evidence that corroborated defendant’s testimony. The defense strategy not to present the trier of fact with vital evidence was the result of counsel’s failure to employ
Regarding the impeachment evidence, while it is true that defense counsel cross-examined the complainant, the omissions in that cross-examination, coupled with defense counsel’s failure to cross-examine Tetarly, deprived the trier of fact of the necessary and available evidence that discredited the complainant’s allegations. Similarly, in Armstrong, 490 Mich at 292, this Court held that, although the complainant was cross-examined by defense counsel, “a reasonable probability exists that this additional attack on the complainant’s credibility [the introduction of cell phone records] would have tipped the scales in favor of finding a reasonable doubt about defendant’s guilt.”
Likewise, defense counsel’s failure to corroborate the defense that defendant did not have the intent of sexual gratification compounded the prejudicial effect of defense counsel’s failure to impeach the complainant’s testimony. She did not ask the complainant if defendant had previously applied ointment to her for medical purposes. If she had, presumably, the complainant would have answered in the affirmative, given that she testified accordingly in a later civil proceeding. Likewise, defense counsel did not consult with HT, who likely would have offered testimony that corroborated defendant’s testimony.
Therefore, if defense counsel had exercised reasonable professional judgment, she would have discovered and presented impeachment evidence and evidence that corroborated defendant’s testimony, and there is a reasonable probability that the result of the trial would have been different. Thus, defendant has shown that he was unfairly prejudiced by defense counsel’s errors.
IV CONCLUSION
We conclude that collateral estoppel cannot be applied to preclude the review of a criminal defendant’s claim of ineffective assistance of counsel simply because a previous civil proceeding determined that defense counsel had not committed malpractice. Application of collateral estoppel on that basis fails to satisfy the element of the doctrine
Furthermore, defense counsel’s performance in this case was constitutionally inadequate and rendered defendant’s trial unfair and unreliable. Therefore, we reverse the judgment of the Court of Appeals and remand this case to the trial court for a new trial.
The Court also denied defendant’s subsequent motion to hold the appeal in abeyance to give defendant more time to verify additional grounds for bias — namely, that Tetarly had previously made false allegations that defendant’s prior wife sexually abused defendant’s son from that marriage in order for defendant to gain an advantage in the then pending custody dispute over defendant’s son, HT.
Defendant sought leave to appeal in this Court. We ordered that the application be held in abeyance pending a decision in this criminal case. Trakhtenberg v McKelvy, 780 NW2d 828 (Mich, 2010).
MCL 750.520a(q) defines “sexual contact,” in relevant part, as the “intentional touching of the victim’s or actor’s intimate parts ... if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, [or] done for a sexual purpose ....”
While the dissent is critical of the majority’s analysis, we believe that our analysis is analytically sound and well supported.
See Brenner, “Crossing-over:” The issue-preclusive effects of a civil/criminal adjudication upon a proceeding of the opposite character, 7 N Ill U L Rev 141 (1987).
Similarly, the Court of Appeals erred when it characterized the application of collateral estoppel as “defensive.” In determining whether defendant’s constitutional right to the effective assistance of counsel was denied, there cannot he an “offense” and a “defense,” as the traditional application of collateral estoppel presumes. The prosecution is not in a position where it must somehow “defend” itself; rather, if we must fit this case into the traditional framework of collateral estoppel, it is clear that defendant is put on the defensive. It is true that, ultimately, defendant is challenging his conviction and asking for a new trial, yet he does not do so by attacking the prosecution. He is merely protecting his constitutional right to an effective attorney.
Instead, the trial court framed defense counsel’s error as a decision to pursue the “ ‘no sex gratification/denial’ defense and not the “ ‘sinister or bad mom defense’ ” (referring to defense counsel’s failure to impeach Tetarly). The Court of Appeals reversed the trial court’s ruling that counsel was ineffective for failing to pursue the impeachment defense in part because this decision was part of a reasonable trial strategy. The trial court’s erroneous focus on whether these “defenses” were properly pursued led the Court of Appeals to justify defense counsel’s decision to pursue only one defense as a matter of trial tactics, which are not reviewable in hindsight.
Contrary to the dissent’s view, our conclusion in this case that defense counsel’s performance was constitutionally deficient does not equate with judging counsel’s strategy in hindsight. The dissent is correct that Strickland counsels against a hindsight review of defense counsel’s choices and that reviewing courts should “evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 US at 689. However, the dissent misinterprets our characterization of defense counsel’s errors in this case. We do not hold that counsel’s performance was objectively unreasonable because her chosen strategy was unsuccessful or that another strategy would have been more successful. Rather, we hold that defense counsel may not use trial strategy to insulate trial decisions if counsel cannot provide a reasonable basis for the chosen strategy, particularly where, as here, the strategy is chosen before conducting any reasonable investigation.
As the United States Court of Appeals for the Second Circuit has explained, a defense attorney may be deemed ineffective, in part, for failing to consult an expert when “counsel had neither the education nor the experience necessary to evaluate the evidence and ‘make for himself a reasonable, informed determination as to whether an expert should be consulted or called to the stand Eze v Senkowski, 321 F3d 110, 128 (CA 2, 2003), quoting Pavel v Hollins, 261 F3d 210, 225-226 (CA 2, 2001) (emphasis added).
Additionally, to the extent that defendant cannot show that he was entitled to a new trial in light of newly discovered evidence under People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003), because he or defense counsel could, “using reasonable diligence, have discovered and produced the evidence at trial,” defense counsel was further ineffective for not having employed such reasonable diligence. (Citation and quotation marks omitted.)
Although the trial court did not expressly find that defendant was prejudiced by defense counsel’s errors and the Court of Appeals failed to reach this issue, in the interests of judicial economy, we find it necessary to consider this issue in the present appeal. See Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994), and MCR 7.316(A).
The dissent admits in its discussion concerning whether collateral estoppel was properly applied in this case that defendant’s burden to show that he was prejudiced by defense counsel’s errors is less than the preponderance-of-the-evidence standard. However, the dissent nonetheless appears to hold defendant to a higher burden by concluding that, despite the fact that this case was decided solely on the credibility of defendant and the complainant and the trier of fact was deprived of a substantial amount of relevant information, there was not at least a reasonable likelihood that the outcome of the trial would have been different but for counsel’s deficient performance. Indeed, defendant’s trial concluded in less than one hour, whereas it took the trial court more than five days to collect testimony during defendant’s Ginther hearing. Additionally, we note that our holding today does not resolve the question of guilt or innocence. Rather, we hold only that defendant is entitled to a new trial so that his guilt or innocence may be properly determined, as required by the Michigan and United States Constitutions.
It is true that the additional impeachment evidence available to the defense counsel in Armstrong was documentary evidence and, in this case, the additional evidence was testimonial. But here, defense counsel’s cross-examination of the complainant was, without justification, substantially less discrediting than the defense counsel’s cross-examination of the complainant in Armstrong. This increased the need for the introduction of any available impeachment evidence, even if it was testimonial.
During the course of Tetarly’s corresponding civil case against defendant, HT was asked if defendant “ever act[ed] in a sexual manner to [the complainant].” HT responded, “No.”
Dissenting Opinion
(dissenting). I respectfully dissent from the Court’s decision to grant defendant a new trial on his motion for relief from judgment. While I agree with the majority that collateral estoppel does not bar defendant’s claims of error, I cannot adopt the majority’s amorphous analysis on that issue and instead would simply hold that the prosecution has not satisfied the elements required to apply collateral estoppel against defendant. Moreover, in applying Strickland v Washington to the facts of this case, I do not believe defendant is entitled to relief because he has not shown that counsel’s performance was “outside the wide range of professionally competent assistance” leading to “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
I. COLLATERAL ESTOPPEL
The Court of Appeals determined that the collateral estoppel doctrine barred substantive consideration of
In Monat v State Farm Insurance Co, this Court articulated the elements of collateral estoppel:
Generally, for collateral estoppel to apply three elements must be satisfied: (1) “a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment”; (2) “the same parties must have had a full [and fair] opportunity to litigate the issue”; and (3) “there must be mutuality of estoppel. ”[3 ]
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Nevertheless, when examining defendant’s substantive claims, I do not believe defendant is entitled to a
The majority claims that counsel was ineffective because she did not conduct a preliminary examination or file for a bill of particulars to determine the nature of the charges against defendant. Counsel testified that she did not conduct a preliminary examination because she did not want to preserve the testimony of certain unfavorable witnesses. Further, while the charging documents lacked specific factual allegations beyond the offenses charged, counsel testified at defendant’s Ginther
That in hindsight a strategy was not completely successful does not render it unreasonable and does not render counsel’s assistance ineffective. Strickland itself implores reviewing courts to undertake “every effort... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct
Both the circuit court and the Court of Appeals determined that this trial strategy was objectively reasonable, and they did not err by doing so. Nevertheless, the circuit court held that counsel was ineffective for failing to present the alternative defense that the complainant’s mother, Liliya Tetarly, fabricated the allegations. While this defense is not necessarily inconsistent with counsel’s chosen defense, counsel provided a reasonable explanation at the Ginther hearing regarding why she did not choose to present it: she was afraid that basing a defense on Tetarly’s relationship with defendant would open the door to information that would reflect badly on defendant, including details about the
Furthermore, the circuit court abused its discretion when it granted defendant a new trial without inquiring into the potential prejudice resulting from counsel’s actions because Strickland requires a defendant to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Moreover, while the majority argues that counsel did not adequately impeach the complainant, counsel’s cross-examination of the complainant at trial highlighted inconsistencies regarding the number of times that the complainant claimed that defendant touched her hand to his genitals. Indeed, at one point, the circuit court cut counsel off and acknowledged that the complainant could not explain the inconsistencies between her testimony and a police report.
The circuit court also found defendant’s testimony about administering the medication not to be credible, “mainly because of the major inconsistency in regard to the rebuttal witness’s testimony that he was never asked to apply the ointment” and because the complainant’s “yeast infections did not occur around the time in
Defendant also claims that testimony by his son, HT, would have corroborated defendant’s claim that Tetarly insisted that defendant apply the ointment to the complainant’s genital area and that, after several minutes of heated argument, he yielded to her request. Nevertheless, defendant offers no proof on this claim beyond his bald assertion that HT was actually present for the conversation that defendant described. In fact, HT was deposed during the civil litigation against
III. CONCLUSION
For all these reasons, I would affirm the Court of Appeals’ ruling that defendant is not entitled to a new trial, although I would vacate its conclusion that collateral estoppel bars substantive consideration of defendant’s ineffective assistance of counsel claims. Defendant is not entitled to a new trial pursuant to his
Strickland v Washington, 466 US 668, 690, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
The Court of Appeals first concluded that the circuit court erred by granting defendant a new trial because the circuit court’s analysis was complete as a matter of law once it concluded that his counsel’s trial strategy was reasonable. Nevertheless, it went on to examine potential alternative bases for affirming the circuit court’s decision, and it ended up rejecting many of defendant’s ineffective assistance of counsel claims on the basis of collateral estoppel. Because it was sufficient to resolve defendant’s appeal on the basis of its conclusion that trial counsel’s strategy was reasonable, the Court of Appeals’ decision to apply collateral estoppel was not essential to its holding.
Monat v State Farm Ins Co, 469 Mich 679, 682-684; 677 NW2d 843 (2004), quoting Storey v Meijer, Inc, 431 Mich 368, 373 n 3; 429 NW2d 169 (1988) (alteration in original). Monat also held that the third element, mutuality of estoppel, is unnecessary when the party asserting estoppel claims that the opposing party is bound by a previous adverse ruling: “There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity
Radtke v Miller, Canfield, Paddock & Stone, 453 Mich 413, 424; 551 NW2d 698 (1996).
Strickland, 466 US at 694.
Because defendant is seeking relief pursuant to subchapter 6.500 of the Michigan Court Rules, we review for an abuse of discretion the circuit court’s decision to grant this relief. See People v Osaghae (On Reconsideration), 460 Mich 529, 534; 596 NW2d 911 (1999). However, we review de novo any underlying questions of constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932).
US Const, Am VI. The Michigan Constitution also provides a right to the effective assistance of counsel, see Const 1963, art 1, § 20, although it “does not afford greater protection than federal precedent with regard to a defendant’s right to counsel when it involves a claim of ineffective assistance of counsel,” People v Pickens, 446 Mich 298, 302; 521 NW2d 797 (1994).
Strickland, 466 US at 690.
Id. at 689.
Id., quoting Michel v Louisiana, 350 US 91, 101; 76 S Ct 158; 100 L Ed 83 (1955).
Strickland, 466 US at 694.
Id. at 691.
See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
Strickland, 466 US at 689; see also People v LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995), quoting Strickland, 466 US at 689.
The majority explains that counsel failed to investigate allegations of sexual abuse that Tetarly made in the past against defendant’s other ex-wife. However, the record below only indicates that she reported what defendant’s son (a toddler at the time) said and did. While the ex-wife was not convicted of abuse, it is not apparent from the record that these allegations are false — or intentionally false — claims of abuse that would implicate Tetarly’s general character for truthfulness.
Strickland, 466 US at 694.
While the majority puts much stock in potential expert testimony to impeach the complainant’s testimony, the same experts might also have bolstered her credibility by helping to explain the inconsistencies that defense counsel sought to highlight. For instance, CARE House employee Amy Allen testified at defendant’s civil trial that it is not unusual for a sexual abuse victim to give conflicting reports about the abuse.
Although the majority observes that the complainant testified otherwise at the civil proceeding, the complainant quickly retracted that statement and reiterated that only her mother would apply the ointment.
People v Armstrong, 490 Mich 281; 806 NW2d 676 (2011).
In addition, to his ineffective assistance of counsel claims, defendant also claimed that newly discovered evidence requires a new trial. The lower courts correctly rejected defendant’s argument. In particular, the Court of Appeals explained that most of defendant’s claimed newly discovered evidence could have been discovered at the time of trial. In analyzing the evidence that actually constituted newly discovered evidence — the results of defendant’s polygraph examination and the complainant’s subsequent writings — the Court of Appeals correctly determined that a different result is not probable upon retrial. See People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003).
Strickland, 466 US at 690, 694.