PEOPLE OF MI V ROBERT K BRANNON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 23, 2010
Plaintiff-Appellant,
v
No. 292617
Monroe Circuit Court
LC No. 2006-035769-FC
ROBERT K. BRANNON,
Defendant-Appellee.
Before: Davis, P.J., and Fort Hood and Servitto, JJ.
PER CURIAM.
The prosecution appeals, by leave granted, the trial court’s order granting defendant a
new trial on the basis of ineffective assistance of counsel. Because defendant was, in fact,
denied the effective assistance of counsel, we affirm.
In 2008, defendant was convicted by a jury of first-degree criminal sexual conduct, MCL
750.520b, stemming from a sexual assault he allegedly perpetrated in 1995 upon his six-year-old
niece. After conviction, defendant moved for a new trial and for a Ginther1 hearing, asserting,
among other things, that his trial counsel was ineffective. The trial court granted defendant a
new trial, finding that defense counsel failed to adequately investigate the benefit of expert
witnesses. The trial court found that this failure deprived defendant of a substantial defense
because the complaining witness’s reliability or credibility was not challenged in a significant
way. The trial court also faulted defense counsel’s failure to contact an expert witness consulted
by the prosecution, Dr. Kathleen Okla, a forensic psychologist. While Dr. Okla did not review
any records concerning the case and did not testify at trial, the trial court noted that she or any
other expert witness could have been of immense assistance to the trier of fact in sorting out the
evidence. The trial court concluded that defendant was denied the effective assistance of
counsel.
We review a trial court’s decision concerning a motion for a new trial for an abuse of
discretion. See People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008). A trial court abuses
its discretion when its decision falls outside the range of reasonable and principled outcomes.
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). Conversely, when the trial
court selects one of these reasonable and principled outcomes, the trial court has not abused its
discretion and it is proper for the reviewing court to defer to the trial court's judgment. People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). Importantly, an abuse of discretion
involves more than a difference in judicial opinion. Williams v Hofley Mfg Co, 430 Mich 603,
619; 424 NW2d 278 (1988).
In this matter, defendant based his request for a new trial upon allegations of ineffective
assistance of counsel. In evaluating a claim for ineffective assistance of counsel, we review a
trial court’s findings of fact for clear error. People v LeBlanc, 465 Mich 575, 579; 640 NW2d
246 (2002). However, we review de novo whether the defendant was deprived of the effective
assistance of counsel as a question of constitutional law. Id.
Under the United States and Michigan Constitutions, US Const, Am VI; Const 1963, art
1, § 20, the guaranteed right to counsel encompasses the right to the effective assistance of
counsel. People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). “Effective assistance
of counsel is presumed, and defendant bears a heavy burden to prove otherwise.” People v
Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004). To establish the ineffective assistance
of counsel, a defendant must show: “(1) counsel’s performance fell below an objective standard
of reasonableness under prevailing professional norms; (2) there is a reasonable probability that,
but for counsel’s error, the result of the proceedings would have been different; and (3) the
resultant proceedings were fundamentally unfair or unreliable.” People v Mesik (On
Reconsideration), 285 Mich App 535, 543; 775 NW2d 857 (2009).
Defense counsel has wide discretion regarding matters of trial strategy. People v Odom,
276 Mich App 407, 415; 740 NW2d 557 (2007). We will not substitute our judgment for that of
counsel regarding matters of trial strategy, nor will we assess counsel’s competence with the
benefit of hindsight. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).
However, while deference is afforded to counsel’s strategic judgments, strategic choices made
after an incomplete investigation are reasonable only to the extent that reasonable professional
judgments support the limitation on investigation. Wiggins v Smith, 539 US 510, 521-522, 528;
123 S Ct 2527; 156 L Ed 2d 471 (2003). Further, “[t]he failure to make an adequate
investigation is ineffective assistance of counsel if it undermines confidence in the trial’s
outcome.” People v Grant, 470 Mich 477, 493; 684 NW2d 686 (2004).
The failure to call witnesses or to present other evidence can constitute ineffective
assistance of counsel only when it deprives the defendant of a substantial defense, Payne, 285
Mich App at 190. A substantial defense is one that might have made a difference in the outcome
of the trial. In re Ayres, 239 Mich App 8, 22; 608 NW2d 132 (1999). That a strategy does not
work does not render its use ineffective assistance of counsel. People v Petri, 279 Mich App
407, 412; 760 NW2d 882 (2008).
On appeal, the prosecution argues that the trial court abused its discretion in granting
defendant a new trial. It contends that defense counsel’s decision not to call an expert regarding
the reliability of the complaining witness’s testimony constituted sound trial strategy that did not
deny defendant a substantial defense, and that this decision was made after an adequate
investigation. We disagree.
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On defendant’s motion, the trial court conducted a thorough Ginther hearing, at which
significant evidence was presented concerning the necessity of expert testimony and what that
testimony would have involved. Specifically, Dr. Campbell (listed on defendant’s witness list)
and Dr. Okla (listed on the prosecution’s witness list) testified at the Ginther hearing that they
would have testified at trial to the social influences on memory, which was important in this case
because family members discussed with the complaining witness other sexual assault allegations
against defendant prior to the complaining witness’s disclosure. In addition, Dr. Campbell and
Dr. Okla would have addressed the effects on memory caused by the ten-year delay between the
date of the alleged incident and when the complaining witness reported it. Also, they would
have addressed the problems with the forensic interview of the complaining witness conducted
by Detective David Berg at the Kane County Child Advocacy Center in Illinois. Furthermore,
they would have addressed the memory creation capacities of a six year old and how the
complaining witness’s failure to fully disclose all of the details on the first telling, and adding
details on each telling of the incident, was contrary to how children generally provide all of the
details once they tell someone about sexual abuse for the first time. Two out of four known
potential expert witnesses essentially testified that they would have been able to provide
testimony favorable to defendant on the issue of the complaining witness’s credibility. Defense
counsel failed to fully investigate these witnesses’ potential testimony for his defense or for
cross-examination purposes, and, in fact, failed to call any expert witnesses despite the fact that
this case turned almost entirely on the credibility of the complaining witness.
While defense counsel testified at the hearing that he did not call Dr. Campbell as a
witness because, after speaking with him several times, he believed Dr. Campbell’s testimony
might have been more helpful to the prosecution, counsel’s reasoning only demonstrates his
inadequate investigation. There was no indication that he was aware of the multitude of other
ways described by Dr. Campbell and Dr. Okla in which expert testimony could have challenged
the reliability of the complaining witness’s testimony beyond merely the lengthy delay in
reporting (which Dr. Okla acknowledged was common). Without acquring this knowledge about
how to challenge the complaining witness’s reliability, through a more in-depth investigation
into expert witnesses, defense counsel could not have made a sound strategic decision on this
issue. As the trial court concluded, under the specific facts of this case, defense counsel failed to
adequately investigate the benefit of expert witnesses, denying defendant the effective assistance
of counsel.
In addition, we conclude that the trial court did not err in determining that there was a
reasonable probability that, but for defense counsel’s error, the result of the proceedings would
have been different. Without expert testimony on the issues discussed above, there was nothing
defense counsel did to challenge the reliability of the complaining witness’s memory about the
alleged incident. Merely pointing to inconsistent statements did not put forth a defense regarding
how the facts surrounding the complaining witness’s disclosure suggested that the reliability of
her memory was questionable. Further, the complaining witness’s testimony was crucial to the
entire case because there was no corroborating evidence of a sexual assault. Rather, the
prosecution relied on other incidents of sexual assault involving defendant to bolster the
complaining witness’s testimony. Therefore, if defense counsel had presented a reliability
defense supported by expert testimony, there is a reasonable probability that the result of the
proceedings would have been different.
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Again, we would note that an abuse of discretion standard is relatively high and involves
more than a mere difference in judicial opinion. Williams v Hofley Mfg Co, 430 Mich at 619.
Whether we personally agree with the trial court’s ultimate ruling is of no consequence. The
trial court was in the best position to evaluate the testimony at each proceeding. The trial court
fairly and accurately reviewed the evidence presented at the Ginther hearing to reach its
decision, and its decision was within the reasonable and principled range of outcomes, based
upon the evidence presented at the hearing and the issues presented at trial.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Deborah A. Servitto
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