Jackson Circuit Court LC No. 15-004930-FC
Before: O'Brien, P.J., and Fort Hood and Cameron, JJ.
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.
I.
FACTUAL BACKGROUND
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 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.
II.
INEFFECTIVE ASSISTANCE OF COUNSEL
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 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. U.S. 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. 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 that defense counsel erred when he failed to
call Dr. Hamilton as a witness to present these conclusions
to the jury, and that this failure prejudiced him. We
disagree.
Defendant
has not shown that Dr. Hamilton's testimony would have
provided him a "substantial defense" not otherwise
available. See id. This is because the conclusions
contained in Dr. Hamilton's report were, in
fact, presented to the jury. First, defendant's counsel
presented Dr. Hamilton's report during the testimony of
Dr. Carl Schmidt, and Dr. Schmidt confirmed more than once
that Dr. Hamilton did not believe BH's injuries could
have been "caused by shaking." Dr. Hamilton's
report was then presented a second time during the testimony
of Dr. Evan Matshes. Dr. Matshes confirmed that Dr. Hamilton
had concluded there was no evidence of whiplash, shaking, or
jerking. With two separate experts testifying to the
conclusions derived from Dr. Hamilton's report, we fail
to see how calling Dr. Hamilton as a witness would have
provided any new information for the jury to consider.
Indeed, trial counsel's tactic of not calling Dr.
Hamilton as a witness enabled the defense to use her expert
opinion to undermine the prosecution's expert
witnesses' conclusions without exposing Dr. Hamilton to
the prosecution's cross examination. Accordingly, we
cannot conclude that defense counsel's decision not to
call Dr. Hamilton deprived defendant of a substantial
defense.
Defendant
also argues that his counsel was ineffective for failing to
call Dr. Pollanen. Dr. Pollanen also authored a report and
concluded that the cause and manner of BH's death could
not be determined. Again, defendant has not shown that Dr.
Pollanen's testimony would have provided him a
substantial defense not otherwise available. Dr.
Pollanen's conclusions were also presented to the jury
via the testimony Dr. Matshes, as well as the testimony of
Dr. Jeffrey Jentzen. Dr. Matshes testified as to Dr.
Pollanen's conclusion that the cause and manner of
BH's death were undeterminable, even noting that he
initially agreed with that conclusion. The following day, Dr.
Jentzen testified that he had reviewed Dr. Pollanen's
report and explained that Dr. Pollanen "couldn't
call [BH's death] a homicide." As with Dr. Hamilton,
two expert witnesses testified as to Dr. Pollanen's
conclusions, and defendant has failed to establish that Dr.
Pollanen would have provided any new information that would
amount to a substantial defense not otherwise provided.
Because
it has not been shown that failure to call Dr. Hamilton and
Dr. Pollanen deprived defendant of a substantial defense, we
cannot conclude that defense counsel's actions fell below
an objectively reasonable standard. Without needing to reach
the issue of prejudice, we conclude ...