Circuit Court. LC No. 15-004930-FC.
PEOPLE OF MI, Plaintiff-Appellee: JERROLD SCHROTENBOER.
SCOTT RICHARD JUREWICZ, Defendant-Appellant: WENDY BARNWELL.
Before: O'BRIEN, P.J., and FORT HOOD and CAMERON, JJ.
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.
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.
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.
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  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).
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).
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 ...