Kalamazoo CC: 2014-000448-FC
Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M.
McCormack David F. Viviano Richard H. Bernstein Kurtis T.
Wilder Elizabeth T. Clement, Justices
order of the Court, the application for leave to appeal the
August 29, 2017 judgment of the Court of Appeals is
considered, and it is DENIED, because we are not persuaded
that the question presented should be reviewed by this Court.
The motion for decision on Standard 4 brief is DENIED as
Wilder, J. (dissenting).
dissent from the order denying leave to appeal. Rather, I
would reverse the judgment of the Court of Appeals, and
reinstate defendant's conviction and sentence of
first-degree criminal sexual conduct, MCL 750.520b(1)(a) and
(2)(b). The lower courts erred in concluding that trial
counsel rendered ineffective assistance of counsel. Defendant
failed to establish his burden that trial counsel's
performance fell below an objective standard of
reasonableness, and that there was a reasonable probability
that, absent the alleged error, the result of the proceeding
would have been different. See People v Vaughn, 491
Mich. 642, 669 (2012).
the issue of trial counsel's performance, the Court of
Appeals majority found that, had trial counsel consulted with
an expert on child suggestibility, "it is virtually
certain" that such an expert could have provided him
with the tools he needed to rebut testimony by an expert or
an investigator suggesting that it is a rare case in which a
child makes a false report. Further, the Court of Appeals
found that had trial counsel consulted with an expert, he
would have educated himself on the issues at play and would
have been in a better position to evaluate the evidence and
determine whether the sexual assault occurred or occurred in
the manner described by the victim.
view, both lower courts overlooked the crucial facts as
testified to at the Ginther hearing, and compounded the
error by analogizing this case to the factually
distinguishable cases of People v Ackley, 497 Mich.
381 (2015), and People v Trakhtenberg, 493 Mich. 38
(2012). "Strickland [v Washington, 466
U.S. 668 (1984)] itself rejected the notion that the same
investigation will be required in every case."
Cullen v Pinholster, 563 U.S. 170, 195 (2011). In
fact, "[i]t is '[r]are' that constitutionally
competent representation will require 'any one technique
or approach.' " Id. (citation omitted;
second alteration in original). "Under
Strickland, strategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation."
Hinton v Alabama, 571 U.S. 263, ___; 134 S.Ct. at
1088 (2014) (quotation marks and citation omitted).
trial counsel testified that he met with his superiors at
length about the upcoming trial and sought their advice on
whether to utilize an expert. Counsel reviewed at least one
study and weighed the advantages and disadvantages of putting
an expert on the stand. It was only after he
conducted an investigation and sought counsel from his
superiors that trial counsel made the informed decision not
to consult with and call an expert on child suggestibility.
This is precisely the type of case that is virtually
unchallengeable under Strickland. See id.
In my opinion, the lower courts ignored well-rooted
Strickland principles, and improperly reviewed the
case with the benefit of hindsight. See People v
Unger, 278 Mich.App. 210, 242-243 (2008) ("We will
not substitute our judgment for that of counsel on matters of
trial strategy, nor will we use the benefit of hindsight when
assessing counsel's competence.").
the issue of prejudice, I largely agree with the dissent and
merely write to make an additional point. I think it is
important to remind attorneys and the lower courts that
"[a] reasonable probability is a probability sufficient
to undermine confidence in the outcome."
Strickland, 466 U.S. at 694. "That requires a
'substantial, ' not just 'conceivable, '
likelihood of a different result." Cullen, 563
U.S. at 189 (citation omitted).
the Court of Appeals majority found that an expert
"could have" explained how a child of the
victim's age is susceptible to suggestion, and that trial
counsel "could have plausibly argued" the victim
made a false report even though the victim may have honestly
believed her recollection was true. In my opinion, the
majority was merely conjecturing on what might have happened
had trial counsel employed the strategy that it found best
suited, and not whether, in the face of the whole record, a
substantial likelihood of a different result existed.
I would conclude that defendant failed to establish his
burden in demonstrating trial counsel rendered ineffective
assistance of counsel entitling him to a new trial, reverse
the judgment of the Court of Appeals, and reinstate
defendant's conviction and sentence.
J., joins the statement of Wilder, J.