PEOPLE OF MI V KENNETH JEROME AYERS JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 29, 2008
Plaintiff-Appellee,
v
No. 267766
Isabella Circuit Court
LC No. 05-000875-FC
KENNETH JEROME AYERS, JR.,
Defendant-Appellant.
Before: Beckering, P.J., and Sawyer and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction of first-degree criminal sexual conduct,
MCL 750.520b(1)(f) (actor causes personal injury to the victim and force or coercion used to
accomplish penetration). Defendant was sentenced to 7 to 15 years. We affirm. This case is
being decided without oral argument under MCR 7.214(E).
Defendant and the complainant were both at a party. The complaint alleges that
defendant motioned her to follow him into a downstairs bathroom. The complainant says she
assumed defendant wanted to talk, so she followed him in. According to the complaint, after the
two had talked for a while, defendant started kissing her until she pushed him away. Defendant
continued to force himself upon her. The complainant testified that defendant then turned her
around, grabbed her by the hair, forced her to the floor, and penetrated her with his penis. The
complainant alleges that she repeatedly told defendant to stop, getting progressively louder and
louder. Defendant stopped and left, and the complainant immediately left the bathroom. Visibly
upset, she told friends at the party that defendant had just raped her. Defendant admits he had
intercourse with the complainant in the bathroom but claims it was consensual.
Defendant asserts he was denied the effective assistance of counsel by his trial counsel’s
failure to investigate two potential and known witnesses who would have bolstered defendant’s
version of what happened. Specifically, defendant indicates that the two were near the bathroom
door when defendant and the complainant were inside but did not hear loud noises, such as
screaming, coming from the bathroom. Defendant asserts that the two would have testified that
the complainant’s demeanor after the alleged assault was normal.
The right to counsel is guaranteed by the United States and Michigan Constitutions. US
Const, Am VI; Const 1963, art 1, § 20. Where the issue is counsel’s performance, a defendant
must satisfy a two-pronged test. The defendant must show that (1) counsel’s performance was
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below an objective standard of reasonableness under professional norms, and (2) there is a
reasonable probability that, if not for counsel’s errors, the result would have been different and
the result that did occur was fundamentally unfair or unreliable. Strickland v Washington, 466
US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 302-303;
521 NW2d 797 (1994). Counsel’s effectiveness is presumed, and there is a very high burden of
proof to show otherwise. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002).
Defense counsel is given wide discretion in matters of trial strategy because many calculated
risks may be necessary in order to win difficult cases. Pickens, supra at 325. There is therefore
a strong presumption of effective counsel when it comes to issues of trial strategy. People v
Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997). An appellate court will not second-guess
matters of strategy or use the benefit of hindsight when assessing counsel’s competence. See
People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
Not calling a witness to testify whose testimony is supportive of defendant’s case because
of concerns that the jury will react badly to that witness or because that witness is not credible is
a valid trial strategy choice. However, the conclusion underlying this decision should be based
on a proper investigation of that witness. Defendant’s trial attorney admitted that he had not
directly interviewed either witness, relying instead on an investigation done by a private
investigator. We believe that counsel cannot be faulted for relying on the judgment of that
investigator, given testimony that the relationship between the attorney and the investigator was
sufficiently established for the former to rely on the latter’s judgment. We acknowledge that the
record is sparse on how the investigation was carried out, but we do not believe this shows that
trial counsel’s reliance was objectively unreasonable. Indeed, where a working relationship has
been established and a level of trust developed, it is understandable that an attorney would not
need to be privy to the details of how an investigation was carried out in order for the attorney to
have faith in the reported results. In any event, defendant has the burden to establish the factual
predicate for a claim of ineffective assistance of counsel, which includes establishing that the
investigation was unsound. See Strickland, supra at 687-688.
With respect to calling either witness, the court concluded that trial counsel believed that
one of these two witnesses was likely to commit perjury. Although expressing some concern
about the attorney’s testimony that defendant told him this, the court nonetheless credited the
testimony concerning what the investigator reported about credibility and fabrication. The
acceptance of some but not all of the testimony of a witness is a matter of witness credibility, and
this Court defers to the trial court’s superior ability to assess witness credibility. MCR 2.613(C).
Accordingly, the court’s conclusion is not clearly erroneous. Defense counsel cannot be deemed
ineffective for failing to call a witness likely to commit perjury. See MCL 750.424.
Further, even if defendant could establish the first prong of the Strickland test, his claim
fails under the second prong. Neither of the witnesses saw what happened in the bathroom. And
given the noise level of the party, even if the jury believed both of them when they said they
were near the door and did not hear anything, that does not necessarily contradict the
complainant’s testimony that she verbally objected to defendant’s actions. She may simply not
have been audible above the party noise. Finally, given that the complainant almost immediately
told others that she was raped by defendant, and that multiple witnesses saw her very upset and
distraught over it that same night, it seems extremely unlikely that defendant’s potential
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witnesses would have altered the jury’s verdict.
assistance of counsel fails.
Thus, defendant’s claim of ineffective
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Karen M. Fort Hood
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