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People v. Jurewicz

Court of Appeals of Michigan

August 6, 2019

SCOTT RICHARD JUREWICZ, Defendant-Appellant.

         Jackson Circuit Court. LC No. 15-004930-FC.


          For PEOPLE OF MI, Plaintiff-Appellee: JERROLD SCHROTENBOER.

          For SCOTT RICHARD JUREWICZ, Defendant-Appellant: WENDY BARNWELL.

          Before: O'BRIEN, P.J., and FORT HOOD and CAMERON, JJ.


         [329 Mich.App. 379] Fort Hood, J.

          Defendant appeals as of right his jury convictions for felony murder, MCL 750.316(1)(b), and first-degree child abuse, MCL 750.136b(2). Defendant was sentenced to life without the possibility of parole for his felony murder conviction, and 50 to 75 years' for the child abuse conviction. Defendant contends on appeal that he is entitled to a new trial because (1) his trial counsel was ineffective for failing to call expert witnesses, and (2) his constitutional right to confront the witnesses against him was violated by the admission of hearsay statements made by two, approximately three-year-old children. We affirm.


          This case arises out of defendant's murder of an 18-month-old child. On March 14, 2015, defendant and his son, together with defendant's then-girlfriend and her three children, EH, LH, and BH, ate a spaghetti dinner. After dinner, defendant put BH to bed. BH became fussy and defendant became frustrated, so defendant " shook [BH] a little bit" and " put him back down hard[]" in his crib. BH abruptly stopped crying, and defendant went downstairs. After a few minutes, defendant returned upstairs to check on BH. According to defendant, when he returned upstairs he discovered noodles spilling out of BH's mouth, and BH was lifeless and purple. First responders were able to restart BH's heart, but he was immediately placed on life support and died three days later. A CAT scan showed that an " overall loss of oxygen for a period of [329 Mich.App. 380] time caused brain damage and the cells of the brain to die." BH had retinal hemorrhages in both eyes, and an MRI showed swelling in his spine.

          After BH's death, BH's mother left defendant and defendant began dating again. Two months later, defendant was present when his new girlfriend's young son, JP, was found smothered to death in his crib. During the same time that BH's death was being investigated, Child Protective Services (CPS) was investigating EH and LH's home to ensure their safety. Following JP's death, CPS also began investigating the home of JP's brother, SC, to ensure SC's safety. During separate forensic interviews with CPS, SC and EH each made statements that they had been choked by defendant. Defendant was eventually charged and convicted with BH's murder on a theory that the cause of BH's death was homicide from blunt force trauma. He now appeals his convictions. We affirm.


          Defendant first argues that his trial counsel was ineffective for failing to call any witnesses to testify on defendant's behalf. Specifically, defendant contends that his trial attorney failed to call Dr. Leslie Hamilton and Dr. Michael Pollanen as expert witnesses. We disagree.

          Generally, " [t]he 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 Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012). Because no Ginther [1] hearing was held, this Court's review is limited to [329 Mich.App. 381] mistakes apparent on the record. People v Payne, 285 Mich.App. 181, 188; 774 N.W.2d 714 (2009).

          Both the United States Constitution and the 1963 Michigan Constitution guarantee defendants the right to effective assistance of counsel. US Const, Am VI ; Const 1963, art 1, § 20. To obtain a new trial on the basis of ineffective assistance, a defendant must show that (1) trial counsels' 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 be different. Strickland v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984); People v Pickens, 446 Mich. 298; 521 N.W.2d 797 (1994). Defendant must overcome a strong presumption that counsel's performance was sound trial strategy. Strickland, 466 U.S. at 689. Defendant must also show that defense counsel's performance so prejudiced him that he was deprived of a fair trial. Pickens, 446 Mich. at 338 . To establish prejudice, defendant must show a reasonable probability that the outcome would have been different but for counsel's errors. Strickland, 466 U.S. at 694. A reasonable probability need not be a preponderance of the evidence; rather, a " reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

          Defense attorneys retain the " duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," but have wide discretion as to matters of trial strategy. Id. at 691 ; People v Heft, 299 Mich.App. 69, 83; 829 N.W.2d 266 (2012). This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel's competence with the benefit of hindsight. Strickland, 466 U.S. at 689; Payne, 285 Mich.App. at 190 .[329 Mich.App. 382]The fact that defense counsel's strategy ultimately failed does not render it ineffective assistance of counsel. People v Stewart, 219 Mich.App. 38, 42; 555 N.W.2d 715 (1996). Defense counsel's decisions regarding whether to call a witness are presumptively matters of trial strategy. People v Russell, 297 Mich.App. 707, 716; 825 N.W.2d 623 (2012). " The failure to call witnesses only constitutes ineffective assistance of counsel if it deprives a defendant of a substantial defense. Similarly, the failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome." Id. (quotation marks, citations, and alteration omitted).

          We first address defendant's argument that his trial counsel was ineffective because he failed to call Dr. Hamilton as an expert witness. Dr. Hamilton reviewed BH's medical records and authored a report opining that there was no evidence of trauma in BH's spine; rather, in Dr. Hamilton's opinion, the damage to BH's spine was caused by whatever unidentified event caused his brain to swell, which was not necessarily a " shaking-type trauma." Dr. Hamilton ultimately concluded that " it [was] not possible to make the neuropathologic diagnoses of 'shaking' or 'whiplash,'" which largely contradicted the prosecution's theory of the case. Defendant argues ...

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