PEOPLE OF MI V WILLIAM COLE GRANT
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice
Justices
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 15, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 119500
WILLIAM COLE GRANT,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
This is a claim of ineffective assistance of counsel.
Defendant
was
convicted
criminal
sexual
conduct
by
a
jury
involving
on
three
two
counts
sisters.
of
His
convictions were based largely on testimony of the older
girl who stated that defendant had severely injured her
during
an
incident
of
sexual
misconduct.
Defendant
maintained that he was innocent and that the injury this
girl sustained was caused by a bicycle accident, as she had
originally related.
Defendant’s
counsel
failed
to
adequately
interview
members of the family who were present on the day of the
incident.
He did not determine if in fact the alleged
bicycle accident had caused the older girl’s injury.
On
the basis of well-established law, we hold that counsel’s
failure to investigate and substantiate defendant’s primary
defense was not a strategic decision, erroneous only in
hindsight.
conduct
It was a fundamental abdication of his duty to
a
complete
investigation,
and
it
restricted
his
ability to make reasonable professional judgments and put
forth his case.
As a consequence, defendant was deprived
of a substantial defense and of the effective assistance of
counsel.
We reverse the convictions and remand the case
for a new trial.
I
The facts in this case were developed at trial and
through several posttrial hearings before the trial court.1
A
detailed
understanding
of
them
and
when
they
presented is necessary to fully evaluate the appeal.
were
At
the time of the alleged incident, defendant was living with
his girlfriend at her parents’ home.
girlfriend’s nieces.
The sisters are his
They alleged that defendant sexually
1
Chief Justice Corrigan accuses us of “rel[ying] on
factual inaccuracies.”
Post at 1. Yet, she fails to
identify any of them. We believe that the record relied on
here has been accurately stated.
2
abused them on two occasions.
The first time was at a
birthday party for their grandfather, when the older of
them was about eight years old.
forced
her
to
have
She alleged that defendant
intercourse
with
him.
The
second
allegation was that defendant sexually touched both girls
in a closet about a year later.
On the day of the first alleged incident, the older
girl was severely injured.
She suffered a tear from the
rear of her vaginal opening to her anus.
She told her
family and her treating doctor that she had injured herself
in a bicycle accident.
injury
as
a
The examining doctor described the
“clean”
tear,
consistent
with
a
straddle
injury, rather than a ragged tear consistent with abuse.
This doctor prepared an initial report of his examination
that included the older girl’s statements.
He prepared a
subsequent report that concluded that, alternatively, her
injury could have been caused by sexual abuse.
After
about
a
the
year
second
later,
alleged
the
older
incident,
girl
told
defendant had had intercourse with her.
her
mother,
connection
who
with
called
the
child
resulting
which
a
friend
that
The friend told
protective
services.
investigation,
father took them to a second doctor.
occurred
the
In
girls’
During the older
girl’s examination by this doctor, she said that defendant
3
had
raped,
then
threatened
her,
demanding
that
fabricate the bicycle accident to explain her injury.
she
This
doctor also prepared a report of her examination of the
complainants, which she provided to the police officer who
was investigating the alleged abuse.
The prosecutor proceeded to trial on the theory that
the bicycle accident was a fabrication.
The older girl
testified that her injury was the result of sexual abuse by
defendant.
She
testified
bicycle accident at all.
included
testimony
by
that
there
had
never
been
a
The prosecutor’s evidence also
both
investigating officer.
emphasized
that
examining
doctors
and
the
In closing argument, the prosecutor
defendant
had
presented
no
eyewitness
testimony to support the occurrence of a bicycle accident.
Before trial, defense counsel had available to him at
least
three
sources
against defendant.2
of
information
about
the
charges
(1) He had a copy of the first doctor’s
first report, and knew about or had a copy of his second
report.
(2) He knew about and possibly had a copy of the
second doctor’s report.
(3) He had a list given him by
2
We rely on trial testimony to evaluate this case. We
do not premise our analysis on an assumption about the
contents of only one document, as Justice Weaver implies.
Post at 2.
4
defendant of at least twelve people associated with the
girls
or
defendant
to
interview
for
information
or
as
witnesses.
Defense counsel’s investigators interviewed only two
or
three
of
alleged
these
bicycle
investigators
people.
accident.
to
inquire
None
of
Counsel
whether
them
did
the
had
not
people
seen
the
direct
his
interviewed
could name anyone who had seen it or knew more about it.
Consequently,
he
eyewitnesses.
failed
Two
of
to
the
learn
sisters’
that
cousins
there
could
were
have
testified that, on the day of the alleged incident, they
saw the older girl injure her genital region in a bicycle
accident.
Defense counsel proceeded to trial on a three-pronged
theory: (1) defendant did not commit the crimes, if they
even occurred; (2) the injury to the older girl was the
result
of
the
bicycle
accident;
habitually made up things.
absence
of
eyewitness
and
(3)
this
girl
He argued that, despite the
testimony,
several
witnesses
said
they had heard about the accident, not from the older girl,
but from her brother.
The jury convicted defendant as
charged.
Defense counsel learned of the potential eyewitnesses
at the time of sentencing.
The girls’ aunt approached
5
counsel and told him that her sons, their cousins, had
witnessed the accident.
Defense counsel’s motion to reopen
proofs, presumably to present newly discovered evidence,
was denied.
Defendant then retained different counsel who sought a
new
trial
on
the
basis
of
newly
discovered
evidence.3
During a lengthy hearing in the trial court, the cousins
testified that they witnessed the older girl injure herself
in
the
bicycle
accident.
However,
the
trial
court
determined that the exculpatory evidence would have been
merely cumulative.
On
direct
appeal,
the
Court
of
Appeals
found
that
counsel could have discovered and produced the evidence at
trial using reasonable diligence.
Hence, defendant was not
entitled to a new trial on the basis of newly discovered
evidence.
But, the Court did find that the evidence was
3
For a new trial to be granted on the basis of newly
discovered evidence, defendant had to show that
(1)
the
evidence
itself,
not
merely
its
materiality, was newly discovered; (2) the newly
discovered evidence was not cumulative; (3)
including the new evidence upon retrial would
probably cause a different result; and (4) the
party could not, using reasonable diligence, have
discovered and produced the evidence at trial.
[People v Johnson, 451 Mich 115, 118 n 6; 545
NW2d 637 (1996).]
6
material and not cumulative.
Ginther4
hearing
ineffective
evidence.
It remanded the case for a
regarding
for
failing
whether
to
counsel
discover
or
had
present
been
the
Unpublished opinion per curiam, issued May 16,
2000 (Docket No. 214941).
By the time the Ginther hearing was held before the
trial
court,
incident.
the
This
two
is
cousins
not
only
vaguely
surprising
recalled
considering
that
the
the
alleged accident had occurred more than five years earlier
when they were about ten and six years old.
court
ruled
probative
that
to
the
support
evidence
a
was
not
determination
that
The trial
sufficiently
counsel
was
ineffective for failing to ascertain and introduce it.
It
appears that the trial court’s decision was based on the
fact
that
the
witnesses
were
unable
to
remember
the
incident clearly at the time of the Ginther hearing.
Defendant
again
appealed.
apparently analyzing only the
The
Ginther
Court
of
Appeals,
hearing testimony,
agreed with the trial court that the evidence “would not
have
been
Unpublished
of
substantial
memorandum
benefit
opinion
of
the
to
the
Court
of
defense.”
Appeals,
issued May 1, 2001 (Docket No. 214941).
4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
7
Defendant
sought
leave
to
appeal
in
this
Court,
requesting a new trial on alternate theories: either the
eyewitness
testimony
of
the
discovered
evidence,
or
defendant
effective
assistance
of
bicycle
counsel
produce eyewitnesses at trial.
this
Court,
defense
counsel
by
accident
had
been
was
newly
denied
counsel’s
failure
the
to
At oral argument before
conceded
that
this
evidence
would have been discoverable with reasonable diligence and,
therefore, was not “newly discovered.”
We consider only
whether defendant was deprived of the effective assistance
of counsel.
II
Whether
assistance
of
a
person
counsel
constitutional law.
has
is
a
been
denied
mixed
question
the
of
effective
fact
and
A judge must first find the facts,
then must decide whether those facts establish a violation
of the defendant’s constitutional right to the effective
assistance of counsel.
People v Riley, 468 Mich 135, 139;
659 NW2d 611 (2003).
We review a trial court’s findings of
fact for clear error.
People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002).5
Questions of constitutional law are
5
Although we must defer to the trial court’s findings
made at the hearing held pursuant to People v Ginther 390
(continued…)
8
reviewed de novo.
Tolksdorf v Griffith, 464 Mich 1, 5; 626
NW2d 163 (2001).
III
In
People
Pickens,6
v
this
Court
adopted
the
ineffective assistance of counsel standard that the United
States
Supreme
Court
established
in
v
Strickland
Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674
(1984).
Accordingly,
assistance,
a
performance
defendant
fell
sound
trial
must
below
reasonableness.
presumption
to
The
that
the
demonstrate
show
an
that
challenged
Id.
his
objective
defendant
strategy.
ineffective
at
standard
must
action
689,
attorney’s
of
overcome
could
see
the
have
also
been
People
Carrick, 220 Mich App 17, 22; 558 NW2d 242 (1996).
v
A
reviewing court must not evaluate counsel’s decisions with
the benefit of hindsight.
the
other
actions
hand,
provided
representation
the
court
the
that
Strickland, supra at 689.
is
must
defendant
his
ensure
with
that
the
constitutional
On
counsel’s
modicum
right
in
of
a
criminal prosecution.
(continued…)
Mich 436; 212 NW2d 922 (1973), we do not afford
deference when the trial court applies the wrong
standard.
6
446 Mich 298; 521 NW2d 797 (1994).
9
blind
legal
“[S]trategic
choices
made
after
less
than
complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations
on
investigation.
.
.
.
[C]ounsel
has
a
duty
to
make
reasonable investigations or to make a reasonable decision
that
makes
particular
investigations
unnecessary.”
Strickland, supra at 690-691.
The defendant must show also that this performance so
prejudiced
him
that
he
was
Pickens, supra at 338.
deprived
of
a
fair
trial.
To establish prejudice, he must
show a reasonable probability that the outcome would have
been different but for counsel’s errors.
at 694.
Strickland, supra
A reasonable probability need not rise to the
level of making it more likely than not that the outcome
would have been different.
proceeding
can
be
Id. at 693.
rendered
unreliable,
“The result of a
and
hence
the
proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to have
determined the outcome.”
Id. at 694.
A
In
this
case,
objectively reasonable.
of sexual misconduct.
counsel’s
performance
was
not
Defendant was facing three counts
Two of them were founded wholly on
the sisters’ statements implicating defendant.
10
The third
and most serious of them was founded on the older girl’s
statements and an underlying physical injury.
refutation
of
substantive
all
the
evidence
charges
that
the
would
older
have
girl’s
The best
been
strong
injury
caused by something or someone other than defendant.
was
Had
that charge been defeated, then the other two would have
been greatly weakened, given the questionable credibility
of the two girls as witnesses.
The development of defense
counsel’s trial strategy had to consider these facts.
His
failure to conduct a more thorough investigation to uncover
evidence
to
support
an
alternate
causation
theory
was
objectively unreasonable.
A sound trial strategy is one that is developed in
concert with an investigation that is adequately supported
by reasonable professional judgments.
Counsel must make
“an independent examination of the facts, circumstances,
pleadings and laws involved . . . .”
Von Moltke v Gillies,
332 US 708, 721; 68 S Ct 316; 92 L Ed 309 (1948).
This
includes pursuing “all leads relevant to the merits of the
case.”
We
Blackburn v Foltz, 828 F2d 1177, 1183 (CA 6, 1987).
evaluate
defense
counsel’s
performance
from
counsel’s perspective at the time of the alleged error and
in light of the circumstances.
Strickland, supra at 689.
Thus, counsel’s words and actions before and at trial are
11
the
most
accurate
evidence
of
what
his
strategies
and
theories were at trial.
At
the
defendant’s
Ginther
claim
hearing
of
before
ineffective
the
trial
assistance
defense counsel responded to questioning.
of
court
on
counsel,
He said that his
theory had been that the older girl was in the habit of
telling lies and could not be trusted.
was
that
this
girl
was
a
liar”
and
His “main thrust
he
“welcomed”
her
testimony that she had lied about the bicycle accident.
She had been, he theorized, either injured in a bicycle
accident
or
by
a
sexual
assault,
but,
regardless,
was
falsely accusing defendant.
Yet, counsel did not think it necessary to be prepared
to prove the occurrence of the bicycle accident in order to
substantiate his theory that it had caused the injury.
He
felt that additional witnesses would not be vital.
He
failed to contact most of the persons whose names defendant
had provided for his own defense.
He failed to inquire
whether anyone in the family had seen and could testify
about the fact of the alleged bicycle accident and its role
in causing the injury.
He failed to act on statements from
the witnesses that he did interview that the girls’ brother
may have seen the accident.
12
Justice Weaver disagrees that defense counsel thought
the
occurrence
of
the
accident
was
disputed
because
he
testified at the Ginther hearing on his own effectiveness
that
“'The
accident
disputed it.'”
was
Post at 2.
not
disputed.
The
girl
never
However, his subjective belief
was unreasonable.
Counsel had readily available to him information that
should
have
prompted
further
inquiries.
For
example,
defense counsel admitted at the Ginther hearing that the
first doctor’s initial report said that the injury was not
caused by sexual abuse.7
When that doctor testified at
trial, he stated that the older girl had told him “[t]hat
she was riding a bicycle and slipped and had a straddle
injury . . . .”
The girl told the second doctor that she
had not been injured in a bicycle accident.
This doctor
testified that the older girl said that
7
In addition, defense counsel also contacted other
doctors
regarding
possible
causes
of
the
older
complainant’s injury.
However, those doctors were unable
to conclusively determine the cause of the injury. Even if
they had, they would not have been able to testify at trial
because they had not examined the girl.
Thus, because no
doctor definitively determined the cause of the injury
independent of the girl’s statements, counsel needed a
witness who saw the girl injure herself in a bicycle
accident.
Chief Justice Corrigan’s distinction between
counsel’s failure to find “a” witness versus “any” witness
is meaningless.
Post at 13.
“A” and “any” are synonyms.
Random House Webster’s College Dictionary (1995).
13
she had been told by this person who abused her
not to tell anyone because . . . he would hurt
her and he threatened her . . . and so she told
[the first doctor] that this was a bike accident
and this was the story she was told to give him
by this abuser.
It is reasonable to infer that the doctors' testimony was
based on their patient histories and the reports they had
prepared.
That
evidence
shows
that
the
girl
had
made
conflicting statements about the cause of her injury.
The officer investigating the alleged abuse had “asked
that
a
letter
be
dictated”
of
examination, which the doctor did.
the
results
of
the
On cross-examination of
this witness, defense counsel referred to a notation he had
made in his copy of this doctor’s report, indicating that
he had seen it before trial.
Hence, defense counsel had
seen both reports before trial.
This
testimony
clearly
demonstrates8
that
the
two
doctors’ reports showed conflicting causes of the injury
and
conflicting
statements
by
the
older
girl.
Hence,
defense counsel knew or should have known before trial that
the cause of the injury was in question.
Chief Justice Corrigan, post at 12 n 2, and Justice
Weaver, post at 2, criticize the majority for relying on
8
We do not “speculat[e]” about the contents of these
reports, as Justice Corrigan argues post at 12 n 2.
14
the
second
unreasonable
girl’s
doctor’s
for
report.
defense
anticipated
We
counsel
testimony
to
at
find
that
rely
on
trial
to
it
the
was
older
refute
the
allegation that defendant had caused her physical injury.
It would have been unreasonable even if the second doctor’s
report had not indicated that the girl was changing her
story and even if defense counsel had lacked the report.
central
element
of
his
defense
falsely
accused
defendant.
It
was
that
was
not
the
A
girl
had
reasonable
for
counsel to rely on part of her testimony to establish an
important fact while hoping to show her a liar as to the
rest.
Also contrary to Chief Justice Corrigan’s assertions,
post
at
14,
defense
counsel
acknowledged
that
it
was
important to establish that the bicycle accident occurred.
He came to this realization in the course of the Ginther
hearing.
Defense counsel was asked:
Q.
Would it have been important for the
jury to hear testimony, in your opinion, on
behalf of Mr. Grant, that they observed vaginal
bleeding from this bicycle accident or . . .
A.
Yeah.
If . . .
Q.
. . . bleeding in that area?
A.
Right.
But your question was about
witnesses to the accident.
You’re, you’re not
asking about witnesses to the bleeding.
So the
15
answer to the witnesses, the accident, no, that
was not important.
Later in the hearing, defense counsel was asked:
Q. Counsel? The issue, as you say, was not
the accident.
The issue was the cause of the
bleeding.
A.
Correct.
Q. If you had an eyewitness who was able to
not only say, “I saw the accident,” which you say
is elementary because it’s, it’s irrelevant. But
he can say, “I saw the accident,” and, and “I saw
the cause of the bleeding” that occurred from the
bicycle accident.
Would that type of eyewitness
have been important to the defense?
That the
injury was sustained by the accident and not by
criminal sexual conduct?
A. A, a, a civilian eyewitness can say that
that’s what caused the bleeding?
I don’t think
any such thing existed.
Q. Well, let me ask you, sir, if you put a
witness on the stand and that witness says, “I
saw the little girl riding her bicycle.” “And I
saw her get into an accident and I saw her
bleeding afterwards.”
Would that have been
relevant to this defense?
A.
yeah.[9]
If such a witness existed, I guess so,
Despite his later characterization of his decisionmaking
as
“informed,”
we
cannot
9
conclude
that
counsel’s
We disagree with Chief Justice Corrigan’s statement
that the eyewitnesses’ testimony could have “undermined”
defendant’s defense. Post at 2. We cannot imagine in what
sense testimony proving that the girl was lying when she
said that defendant caused her injuries could have done
anything other than benefit defendant.
16
failure to investigate the alleged bicycle accident was in
pursuit of a trial strategy, erroneous only in hindsight.
People
v
Johnson,
451
Mich
115,
122-123;
545
NW2d
637
(1996).
Because counsel failed to prepare himself, he failed
to
appreciate
his
client’s
predicament:
without
direct
evidence of the accident that caused the older sister’s
injury,
his
defense
was
merely
a
credibility
between a little girl and an accused rapist.
contest
Witnesses who
saw the older sister descend a hill on a bicycle, fall, and
return
with
blood-soaked
pants
could
have
provided
substantive evidence that abuse did not cause her injury.10
10
Chief Justice Corrigan, post at 19-27, suggests that
the eyewitnesses’ testimony would not have been of much
assistance to defendant because their testimonies at the
Ginther hearing were inconsistent. The boys had difficulty
remembering whether the older girl was wearing blue jeans
or sweat pants at the time of the accident, which had
occurred several years earlier.
This does not foreclose
the conclusion that there is a reasonable probability that
the outcome would have been different if they had
testified.
This testimony would have been the only
substantive evidence presented at trial of the occurrence
of the accident.
As explained beginning at p 21, the
failure to present it prejudiced defendant.
Moreover, the trial court determined this evidence
would not have been of assistance to defendant because it
was
merely
cumulative
as
well
as
because
it
was
inconsistent. As the Court of Appeals recognized, there is
a reasonable probability that the outcome would have been
different with the testimony.
P 24.
Some internal
(continued…)
17
The only evidence that the prosecutor presented to prove
these three counts was the testimony and statements of the
two girls and the fact of the older girl’s physical injury.
Counsel’s lack of forethought is critical considering
that,
as
defendant
acquitted.
he
himself
practically
opined,
in
cases
has
be
proven
to
like
this,
innocent
to
the
be
Given these circumstances, a defense founded
solely on credibility was sorely vulnerable to defeat.
We also note that this is not an instance in which
counsel failed to discover facts after a reasonable inquiry
that would have caused an effective attorney to inquire
further.
As stated,11 at no time did counsel direct his
investigators to ask whether anyone had seen the bicycle
accident.
Cf. Wiggins v Smith, 539 US 510; 123 S Ct 2527;
156
2d
L
Ed
471
(2003)(failure
to
investigate).
His
failure to conduct an investigation to determine if known
witnesses had direct evidence to substantiate his defense
was objectively unreasonable.
F3d 780, 795 (CA 6, 2003).
See Frazier v Huffman, 343
It is even more so where his
witnesses testified that they had heard about the accident
(continued…)
inconsistencies are
incident long past.
11
expected
See p 5.
18
when
children
recall
an
from the girls’ brother.
He should have recognized that
his witnesses could not give substantive evidence of the
accident based on another’s out-of-court statements.
MRE
802.
Moreover, this is not a case of counsel disregarding
one possible, alternate theory of defense in favor of a
better
one,
after
finding
the
first
confusing, incredible, or simply poor.”
325.
“contradictory,
Pickens, supra at
As stated above, counsel’s theory was that the girl
was a liar and had falsely accused defendant.
This was a
sound defense strategy.12
Had it been fortified by adequate
investigation,
have
it
would
shown
the
weakness
in
the
prosecutor’s case, and it could have made a difference in
the verdict.
See my discussion beginning at p 21.
This case differs from one in which there has been a
failure to call witnesses whose potential testimony defense
counsel already knows.
Cf. People v Johnson, 451 Mich 115;
545 NW2d 637 (1996); People v Carbin, 463 Mich 590; 623
NW2d 884 (2001).
Here, counsel did not interview half of
the people whom defendant identified as potentially having
12
Thus, we do acknowledge the
counsel’s trial strategy, contrary to
Chief Justice Corrigan, post at 17.
recognize its fatal shortcomings.
19
merit in defense
the assertions of
However, we also
helpful information.13
He did not know what testimony these
witnesses would give.
He did not know where they had been
or what they had seen.
The fact that defense counsel obtained no substantive
evidence of the cause of the older sister’s injury shows
that his investigation was incomplete.
He relied on the
girl’s own, already recanted explanation.
to
call
as
defendant
witnesses
was
not
the
based
professional judgments.”
His decision not
individuals
on
identified
objectively
by
“reasonable
Consequently, his trial strategy
was unreasonable under these circumstances.
B
The
failure
ineffective
confidence
Counsel’s
to
make
assistance
in
the
failure
an
of
trial’s
to
prejudiced defendant.
adequate
counsel
if
outcome.
investigate
investigation
his
it
is
undermines
Carbin
at
primary
590.
defense
It adversely affected the outcome,
depriving
defendant
of
evidence
presented
at
a
fair
trial.
trial,
there
In
is
light
a
of
the
reasonable
probability that the outcome would have been different.
13
Chief Justice Corrigan forgives defense counsel’s
failure because some witnesses were uncooperative. Post at
10-11.
However, counsel did not even attempt to contact
many of the known witnesses.
20
It was critical to defendant’s theory to show that the
older sister had been injured in a bicycle accident.
At
trial, counsel tried belatedly to establish in the jury’s
mind the idea that the bicycle accident was real rather
than a mere story told by a frightened girl.
But, the jury
heard no direct evidence that the girl's injury could have
been
occasioned
evidence
by
defense
substantiate
the
a
bicycle
counsel
accident.
attempted
occurrence
inadmissible as hearsay.
of
Most
the
the
elicit
to
of
to
accident
was
The evidence that defense counsel
did present concerned the girl’s bleeding, serving only to
underscore
the
severity
of
her
injuries.
Later,
the
prosecutor’s closing argument emphasized the defense’s lack
of evidence.
On appeal from the trial court’s denial of defendant’s
motion for a new trial, the Court of Appeals correctly held
that the cousins’ testimony was not cumulative.
It was the
best evidence available in support of defendant’s theory.
Eyewitness descriptions of the accident would have given
independent support to defendant’s theory that the injury
was caused by a bicycle accident, not by sexual misconduct.
As the Court of Appeals explained, the girls’ cousins’
testimony ”could have transformed a defense theory without
any substantiation to a theory supported by observation of
21
eyewitnesses.”
Unpublished opinion per curiam, issued May
16, 2000 (Docket No. 214941), p 2.
Hence, it was more
probative than the older girl’s own earlier statements or
the statements of the other witnesses presented at trial,
which were admissible only for impeachment.
of
Appeals
corroborative;
quality,
as
recognized,
it
would
opposed
to
“[t]his
have
the
testimony
of
was
not
changed
materially
quantity,
supporting defendant’s theory.”
As the Court
the
the
evidence
Id.
Had the jury heard the cousins’ testimony about the
alleged
accident,
the
nature
of
the
defense
would
changed from an unsubstantiated argument to the jury.
have
It
would have become a direct attack on the factual basis of
the
prosecution’s
primary
charge
grounded
in
credible
testimony.
The
testimony
of
the
two
eyewitnesses
would
have
demonstrated that the older girl’s physical injury was the
result of a bicycle accident, not sexual abuse.
It would
have greatly undermined the older girl’s credibility and
strongly
suggested
that
she
was
fabricating
horrific
stories about defendant.
Had the eyewitnesses testified, the prosecutor’s only
remaining evidence of these three counts would have been
22
the testimony of the younger girl.14
After hearing the
older sister’s other claims, which were fanciful,15 the jury
reasonably
allegations.
would
have
disbelieved
the
younger
sister’s
She might not have testified.16
The trial court considered the hearsay evidence that
was presented at trial about the accident and concluded
that additional evidence of the same nature would have been
merely
cumulative.
It
failed
to
consider
the
trial
evidence in favor of defendant when it determined whether
there is a reasonable probability that the outcome would
have been different.
Strickland at 694.
For instance, the older girl “was not crying” when she
was examined by the first doctor and she was not “afraid.”
She was “less nervous than most kids that age” and was not
14
Chief Justice Corrigan cites the testimony of the
prosecution’s other witnesses to assert that there was a
mountain of evidence against defendant.
Post at 3-7.
However, all their testimony about the cause of the injury
derived from the older girl’s statements.
Once her
accusation was undermined with evidence that an accident
injured her, the prosecutor’s case would have been
substantially weakened.
15
The older girl said that the sexual attack “felt
weird” rather than painful.
She also said that the first
doctor took her baby out.
16
These paragraphs analyze the effect of this fact on
defense counsel’s decisions.
They do not “ignore” it, as
Chief Justice Corrigan claims. Post at 2.
23
“particularly under stress or nervous.”
The doctor was
later asked:
Q.
And the observations that you made were
consistent with [the older girl’s] report of an
accident from a fall on a bicycle.
Isn’t that
correct?
A.
The
doctor
emotional
Correct.
concluded,
state
and
on
the
the
basis
physical
of
the
girl's
characteristics
calm
of
the
injury, that sexual abuse was not involved.
The younger girl testified that she and her sister
voluntarily “sat on [defendant’s] lap” after one of the
alleged CSC-II incidents.
They also failed to tell their
father or uncle what had allegedly just occurred, although
they were there with defendant and the girls.
Defendant’s
girlfriend testified that he had “never done anything” to
the girls.
The older girl was “always hanging around with
[defendant] and sitting on his lap” and never acted afraid
of him.
The girls’ grandfather also testified that the
attitude of the girls towards defendant never changed.
At
the
Ginther
hearing,
the
trial
court
failed
to
recognize that the question was not whether the cousins’
testimony was probative.
The question was not, as Chief
Justice
in
Corrigan
implies
her
dissent,
post
at
4-5,
whether the evidence was sufficient to allow a reasonable
24
juror to find guilt "beyond a reasonable doubt."
People v
Gonzalez, 468 Mich 636, 640; 614 NW2d 78 (2003).
If that
standard
obtained
at
a
counsel
Ginther
claim
hearing,
would
fail
an
in
ineffective
assistance
of
almost
every
instance.
The question was whether there was a reasonable
probability that the outcome of the trial would have been
different had defense counsel adequately investigated the
facts before developing his strategy.
After the
Ginther
hearing, when denying defendant’s
motion for a new trial, the trial court improperly relied
on counsel’s expertise and performance in past cases to
evaluate
his
defendant’s
work.
performance
case.
experienced
noted
that
The dissent succumbs to the same mistake.
It is
counsel
in
It
defense
that
was
this
criminal
irrelevant
counsel
in
“expended
resources on this case . . . .”
twice
his
Post at 10.
normal
When defense
counsel agreed to represent defendant, he committed himself
to conducting an adequate investigation of the case.
resources
he
devoted
to
other
cases
are
The
irrelevant
to
assessing the performance of his duties in this case.
If the eyewitnesses had testified, the older sister’s
testimony that she was injured by sexual abuse would have
been
refuted.
testimony
This
regarding
would
the
have
other
25
seriously
incidents
impeached
of
abuse
her
that
allegedly occurred more than a year later.
It would have
corroborated the testimony that defendant had a positive
relationship with the girls.
Considering
the
evidence
admitted
for
and
against
defendant, there is a reasonable probability that defendant
would not have been convicted as charged.
The trial court
failed to appreciate that counsel’s failure to investigate
and
substantiate
fundamental
complete
the
abdication
of
investigation.
substantial defense.
was
defendant’s
deprived
of
the
primary
counsel’s
It
defense
duty
deprived
his
a
conduct
to
was
a
client
of
a
Consequently, we find that defendant
effective
assistance
of
counsel.
Because his convictions are not founded on a fair trial,
they cannot stand.17
IV
In conclusion, defense counsel failed to investigate
and substantiate defendant’s primary defense.
There is a
reasonable probability that the result of this trial would
have
been
different
had
the
17
evidence
in
question
been
We concede that an unfavorable result is not enough
to demonstrate ineffective assistance of counsel. However,
an unfavorable result may be enough where a defendant can
demonstrate a reasonable probability that a more favorable
result would have been reached.
26
presented.
This
failure
was
not
a
strategic
decision,
erroneous only in hindsight.
We hold that counsel’s failure to conduct a complete
investigation
prejudiced
a
fundamental
defendant,
Accordingly,
remanded
was
for
the
a
depriving
convictions
new
trial
are
abdication
him
of
a
reversed
because
of
of
duty
fair
and
the
trial.
the
case
ineffective
assistance of defendant’s counsel.
Marilyn Kelly
Michael F. Cavanagh
27
that
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 119500
WILLIAM COLE GRANT,
Defendant-Appellant.
_______________________________
TAYLOR, J. (concurring).
I concur in the result of Justice Kelly’s opinion.
I
reach this conclusion not, as the dissents suggest, on the
basis of hindsight, but on the fact that defense counsel
was faced with a first-degree criminal sexual conduct (CSC
I) charge in which it was not simply a “who do you believe”
contest between an injured girl and the defendant where she
says it happened and he says it did not.
Rather, it was a
“who do you believe” contest plus the prosecution had the
additional evidence of a savage vaginal injury that surely
would
make
a
lot
of
people
think
that
criminal
sexual
conduct happened unless there was another explanation for
the injury.
While it is not ineffective to say the injured girl is
a liar and always had been (especially given the other two
charges), that defense will only cover the usual case that
turns on credibility and for which there is no physical
evidence.
Where there is such incriminating evidence and
the injured girl is now asserting that defendant, and not a
bicycle accident, caused her injury, an investigation to
find witnesses to the bicycle accident is required.
To
fail to do so is not a reasonable, professional judgment.
Strickland v Washington, 466 US 668, 690-691; 104 S Ct
2052; 80 L Ed 2d 674 (1984).
Clifford W. Taylor
Stephen J. Markman
2
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 119500
WILLIAM COLE GRANT,
Defendant-Appellant.
_______________________________
CORRIGAN, C.J. (dissenting).
Although
opinion
and
this
fact-specific
therefore
case
lacks
has
any
no
majority
jurisprudential
significance, I cannot join in the opinion of Justice KELLY
or Justice TAYLOR because their analyses depart from settled
principles
regarding
ineffective
assistance
Therefore, I respectfully dissent.
of
counsel.
The opinions of Justice
KELLY and Justice TAYLOR conclude that defense counsel is
constitutionally ineffective if counsel’s chosen strategy
does not produce a favorable outcome for the defendant.
Justice
KELLY’s
opinion
relies
on
factual
inaccuracies,
omissions, and speculation and fails to observe case law
from both this Court and the United States Supreme Court.
Applying that law to the facts, I conclude that defendant
has
not
overcome
the
strong
presumption
that
defense
counsel’s decision to not interview certain witnesses was
strategic.
Rather, the evidence shows that defense counsel
chose
not
to
their
testimony
strategy
and
interview
was
could,
the
not
contested
necessary
to
fact,
witnesses
have
in
his
because
chosen
undermined
trial
it.
Accordingly, I would affirm the decision of the Court of
Appeals.
I. FACTUAL HISTORY
AND
PROCEDURAL POSTURE
A detailed understanding of the trial is necessary to
fully evaluate whether defense counsel was ineffective.
Defendant was charged with one count of first-degree
criminal sexual conduct, MCL 750.520b(1)(a), and two counts
of
second-degree
criminal
sexual
involving his girlfriend’s nieces.
conduct
for
conduct
Justice KELLY appears to
ignore this crucial fact in her opinion:
defendant was
facing three counts of criminal sexual conduct, not only
the one count involving the severe injury to the older
sister.
All the evidence presented and decisions made by
defense counsel must therefore be evaluated in light of the
three counts.
The
prosecution
proved
that
defendant
had
sexually
penetrated the older sister, causing a severe injury to her
2
vaginal wall,1
sisters
on
a
first-degree
and that defendant had also touched both
later
occasion.
criminal
sexual
Regarding
conduct,
the
the
charge
older
of
sister
testified that she originally told everyone, including the
emergency room doctor who treated her, that she had been
injured in a bicycle accident.
She admitted that she had
lied about the bicycle accident.
injured
her
when
he
penetrated
Instead, defendant had
her.
She
stated
that
defendant told her to say she was injured in a bicycle
accident.
The sisters’ father’s testimony regarding the firstdegree
criminal
noteworthy.
older
sister
sexual
conduct
charge
was
particularly
The father was present at the home when the
appeared
with
her
injuries.
He
testified
that, before anyone knew the extent or cause of the older
sister’s injuries, defendant spontaneously insisted he had
not hurt her:
Q.
Okay, and when you got ready to leave
for the hospital, you—you and [the defendant’s
girlfriend, who was the sisters’ aunt] took [the
older sister]. Is that right?
A. Well that young man over there come over
there crying to [defendant’s girlfriend] saying I
1
The older sister underwent surgery under general
anesthesia that required twenty stitches to repair an
episiotomy-like rip.
3
didn’t do this, I didn’t do that, and they know
right off the bat that I was going to take care
of it my own way.
The sisters’ father further testified:
Then when we came back—when I came back
[defendant]
goes—he
goes
running
to
[his
girlfriend] saying that he didn’t—[the older
sister’s father’s] going to think the wrong [sic,
thing] about me. What do you expect I’m going to
think?
If something’s happened to [the older
sister], I’m going to think it unless I know what
happened. Then he goes crying over there to [his
girlfriend] and [his girlfriend] comes over and
says I got something to tell you.
Bill
[defendant] didn’t touch. . .Bill didn’t touch
[the older sister].
Then I had [the older
sister] to psy—psychology and—
Q.
What are talk—
A.
We’re talking about the bike accident.
You brought up the subject so I’m just telling
ya’.
Regarding the charges of second-degree criminal sexual
conduct, both sisters testified that defendant had touched
them
inappropriately
apartment.
Their
in
a
bedroom
testimony
was
in
their
corroborated
father’s
by
their
father, who testified that defendant went alone to the part
of the apartment where the girls were playing and was gone
from the kitchen for about five to ten minutes.
In her opinion, Justice KELLY repeatedly insists that
the “only evidence” of the three counts of criminal sexual
conduct was the sisters’ statements and testimony.
patently false.
This is
The prosecution presented no fewer than
4
eight
witnesses
during
the
two-day
trial,
including
two
physicians, the sisters, a friend of the older sister (who
corroborated the older sister’s testimony), the mother of
the older sister’s friend (who also corroborated the older
sister’s testimony), the sisters’ father (whose testimony
was
outlined
above),
and
the
investigated the complaints.
presented
every
at
trial,
supportive
evidence.
the
that
KELLY,
evidence existed at all.
who
initially
When discussing the evidence
prosecution
inference
Justice
officer
can
should
be
however,
be
drawn
simply
afforded
from
this
denies
that
This selective recitation of the
facts is misleading.
The
defense
theory
at
trial
was
twofold:
(1)
that
defendant did not commit the offenses and had no knowledge
of them, and (2) that the older sister habitually lied and
could
not
be
trusted.
The
defense
presented
three
witnesses.
The first was the sisters’ grandfather and defendant’s
girlfriend’s
first-degree
father.
criminal
He
lived
sexual
at
the
conduct
house
where
occurred.
the
He
testified that defendant was never alone with the older
sister
and
that
the
bicycle
in
unicycle, with the front broken off.
question
was
like
a
He testified that he
saw the older sister playing with the bicycle on previous
5
occasions, although he was not home at the time of the
accident.
The older sister’s brother, however, told him
about the bicycle accident.
The grandfather testified that
the older sister had never told him about any sexual abuse
and
that
she
never
acted
as
though
she
was
afraid
the
older
of
defendant or did not like him.
The
uncle
second
and
defense
defendant’s
witness
was
girlfriend’s
sister’s
brother.
He
also
testified that defendant was never alone in the house and
that, to his knowledge, defendant never watched the older
sister
alone.
Moreover,
the
older
sister
never
acted
frightened or uncomfortable around defendant and she never
mentioned
any
abuse
or
inappropriate
behavior
to
him.
Although he had not seen the bicycle accident, the older
sister’s brother also told him about it.
sister
after
she
was
injured
transported to the hospital.
and
He saw the older
knew
she
was
being
He also saw defendant after
the older sister went to the hospital and did not remember
defendant having any blood on his shirt.
The
last
witness
was
the
older
sister’s
aunt
defendant=s girlfriend at the time of the offense.
and
She and
defendant had a child together, for whom defendant paid
child
support.
She
testified
that
defendant
was
never
alone in the house and that it was “absolutely impossible”
6
for
defendant
sister.
to
have
Further,
ever
although
been
she
alone
had
not
with
the
witnessed
older
the
bicycle accident, she did accompany the older sister to the
hospital.
The older sister’s brother also told her about
the bicycle accident.
Further, defendant=s clothes had not
been disturbed and she did not see blood on any of his
clothing.
Finally, she testified that the older sister had
never come to her about any abuse or inappropriate behavior
and that the girl liked defendant and always wanted to be
around him.
In his closing statement, defense counsel argued that
defendant did not commit the offenses and that the older
sister, for whatever reasons, had lied.
He pointed out
numerous inconsistencies in the girl’s testimony, including
her insistence that she had been eight months pregnant and
had the baby taken out of her at the hospital.
Finally,
defense counsel also made strategic use of the fact that
none of the defense witnesses had witnessed the bicycle
accident.
He noted that the witnesses had all heard about
the accident from the older sister’s brother, rather than
from
the
older
sister
herself.
defendant on all counts.
7
The
jury
convicted
II.
A.
DISCUSSION
THE LAW REGARDING INEFFECTIVE ASSISTANCE
OF
COUNSEL
I agree with Justice KELLY that in People v Pickens,
446 Mich 298; 521 NW2d 797 (1994), this Court adopted the
standard of ineffective assistance of counsel set forth in
Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed
2d
674
(1984).
To
prove
ineffective
assistance,
a
defendant must show that his attorney’s performance fell
below an objective standard of reasonableness and that, but
for
that
counsel’s
the
errors,
result
different.
of
there
the
“Reasonable
probability
outcome.”
sufficient
is
a
reasonable
proceeding
probability”
to
undermine
would
is
probability
have
defined
confidence
been
as
in
“a
the
Strickland, supra at 694 (emphasis added).
Unfortunately, Justice KELLY gives only lip service to
the strong presumption that counsel’s actions were sound
trial strategy, and that “every effort [must] be made to
eliminate the distorting effects of hindsight . . . .”
at 689.
Id.
See also People v Toma, 462 Mich 281, 302; 613
NW2d 694 (2000), (“[A] defendant must overcome the strong
presumption
that
his
counsel’s
action
constituted
trial strategy under the circumstances.”);
sound
People v Hoag;
460 Mich 1, 6; 594 NW2d 57 (1999) (the law affords a strong
presumption
that
counsel’s
actions
8
constituted
trial
strategy).
In
evaluating
a
claim
of
ineffective
assistance, “[j]udicial scrutiny of counsel’s performance
must be highly deferential” and should refrain from secondguessing
counsel’s
chosen
trial
supra at 689 (emphasis added).
strategy.
Strickland,
Counsel’s performance must
be evaluated from counsel’s perspective at the time of the
alleged error and in light of the circumstances.
Id.
This
deferential standard of review exists because “it is all
too easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable.”
B. INVESTIGATION
AND
Id.
STRATEGY
Rather than apply this deferential standard of review,
Justice KELLY has twisted the law to place the burden on the
defense counsel to defend his chosen strategy.
In fact,
Justice KELLY goes further and holds that, because defense
counsel’s strategy was not ultimately successful, it cannot
even be considered reasonable.
Ante at 11.
In so holding,
Justice KELLY completely ignores counsel’s testimony in the
hearing held pursuant to People v Ginther, 390 Mich 436;
212
NW2d
922
(1973).
Justice
“[counsel
here
was
not]
alternate
theory
of
defense
KELLY
disregarding
9
in
favor
of
concludes
one
a
that
possible,
better
one
. . . .”
Ante at 19.
This conclusion is not supported by
the record evidence.
Defendant’s
trial
counsel,
David
I.
Goldstein,
testified at the Ginther hearing.
Goldstein expended twice
his normal resources on this case:
although he customarily
used only one investigator for each case, he assigned two
investigators
were
so
counsel
to
defendant’s
uncooperative.
had
case
Justice
information
because
KELLY’s
“readily
the
witnesses
assertions
available”
to
him
that
and
“failed to contact most of the persons whose names defense
had
provided
for
his
own
misleading and unfounded.
defense,”
ante
at
12,
are
Goldstein testified at length
regarding his difficulty in finding any defense witnesses
who would cooperate.
In fact, as stated below, Goldstein
provided documentary evidence of his repeated attempts to
contact potential defense witnesses and the many ways those
attempts were rebuffed or ignored.
investigators
finally
interviewed
He stated that the
the
older
sister’s
grandfather, uncle, and defendant’s girlfriend, but only
after
considerable
defendant’s
scheduled
effort.
girlfriend,
appointments.
The
would
He
not
witnesses,
return
offered
particularly
calls
physical
or
keep
exhibits,
including interviews notes and office records, to support
this testimony.
The defense witnesses defense counsel was
10
able to contact even ignored a trial subpoena, forcing him
to
obtain
a
material
presence at trial.
witness
warrant
to
ensure
their
Defense counsel could not force the
possible defense witnesses to cooperate; he was limited by
the witnesses’ marked refusal to cooperate.
The defense theory was that defendant did not commit
the crime.
At the time of the trial, Goldstein did not
believe that establishing the accident was going to be a
problem
because
bicycle accident.
aware
that
the
the
older
sister
had
acknowledged
the
Until the trial began, Goldstein was not
older
sister
was
denying
the
bicycle
accident:
A.
I didn’t think we needed to prove that
the accident occurred because I didn’t think the
occurrence of the accident was in dispute.
Q.
Did you, did, the nature of the injury
was in dispute, however? Wasn’t it?
A.
The nature of the injury, but not the
accident itself.[2]
2
Justice KELLY relies on a police report to prove that
Goldstein knew that the older sister had made inconsistent
statements regarding the nature of her injuries.
This
police report is not in the record before us.
Justice
KELLY’s assertions regarding this missing report are
baffling.
Justice KELLY also repeatedly insists that
defense counsel’s access to two doctor’s reports should
have prompted further inquiry. These reports are also not
in the record before us. If the missing police report and
the other missing reports identified by Justice WEAVER are so
crucial to Justice KELLY’s determination of this case, the
(continued…)
11
Goldstein
important
accident
to
testified
the
because
that
he
to
obtain
defense
of
the
older
did
not
consider
eyewitnesses
sister’s
it
to
the
admission
and
because “a layperson observing an accident can’t testify as
to the extent of injuries.”
He stated that he already had
witnesses to testify about the amount of blood:
[P]roving the existence of the . . .
accident was not significant.
We had [the
uncle]. We had the, we had the statement of the
girl.
[The uncle] saw the blood.
Nobody was
disputing the bleeding. So proving that was not
. . . a critical issue.
The critical issue was
relating that to the, to the charge. . . .
And a . . . lay witness can’t do that.
Goldstein explained that, given the anticipated testimony
of Dr. Bond of a credible report of sexual abuse, he did
not feel it was necessary to interview or call eyewitnesses
to the bicycle accident:
If the doctors are going to testify that the
bicycle accident did not cause that injury,
what’s the point of proving that there was an
accident?
He explained that he made the tactical decision to not
contest the medical experts because he could not find any
(continued…)
proper course is not to “infer” the contents of the missing
reports, but to remand to the trial court to reconstruct
those reports.
Justice KELLY refuses to remand to
reconstruct these reports; instead, she simply bases her
analysis on nothing more than mere speculation.
12
medical experts who would testify for the defense without
having examined the older sister at the time of the injury.
Justice KELLY implies, ante at 13 n 7, that the fact that
defense counsel was unable to find any doctors to testify
should somehow have prompted some further inquiry regarding
the
cause
of
the
mischaracterizes
hearing.
older
sister’s
Goldstein’s
injuries.
testimony
at
the
This
Ginther
Goldstein did not testify that he could not find
a doctor who could conclusively determine the cause of the
older sister’s injuries; rather, he testified that he could
not find any doctor who could form any opinion because the
doctors had not had an opportunity to personally examine
the older sister.
I fail to understand how the fact that
no doctor would testify without personally examining the
older sister should have prompted further inquiry in the
cause
of
the
accident
on
the
part
of
defense
counsel.
Rather, because he could not find any medical experts to
testify, Goldstein was unable to choose any trial strategy
that
involved
contradicting
the
prosecution’s
medical
experts.
Further, Goldstein testified that one of the defense
strategies was to argue that the older sister “had a habit
of making things up.”
Thus, when the prosecutor opened
13
with the statement that the older sister was now denying
there was an accident, he felt it strengthened the defense:
But you know, . . . since our position was
the girl was a liar, I welcomed [the prosecutor]
getting up and saying that the girl had lied.
He testified:
A.
Our, the tactical decision was made
that our main thrust was that this girl was a
liar.
That if she was, if she was in fact
sexually assaulted it wasn’t by Bill Grant.
Q.
And would have trying to attack the
conclusions of the doctor or fight about a
bicycle accident, would that have detracted from
the defense that the victim was a liar?
A.
It could of, it could have.
obviously I can’t read a jury’s mind.
could have.
I mean
But it
Q.
But in your mind, it would have been a
tactical decision to pick one defense and keep
hitting that rather than a shotgun?
A.
Well, our defense all along was, we
don’t know if she was sexually assaulted or not.
But if she was, it wasn’t Bill Grant. You know,
that we, that we didn’t know whether she was or
she wasn’t because she had, she had a tendency to
lie. But in any case, it wasn’t Bill Grant.
Thus, he specifically considered the effect of the older
sister’s contradictory testimony and chose, as a matter of
strategy, to highlight the inconsistencies and use it to
the defense’s advantage.
Goldstein also testified that he knew of the existence
of
the
mother
of
the
boys
who
14
allegedly
witnessed
the
bicycle
accident
before
trial
and
knew
witnessed the older sister’s injury.
that
he
was
not
aware
that
the
that
she
had
He stated, however,
boys
claimed
they
had
witnessed a bicycle accident until he received a letter
from their mother after the trial.
He explained that he
did not interview or call the boys’ mother because, as far
as he understood it, her testimony was that she saw the
bleeding, and he already had two witnesses who testified
they saw the bleeding.
because
the
defense
sister
had
been
defendant,
so
Further, Goldstein stressed that
theory
was
sexually
that
assaulted,
establishing
the
even
if
it
existence
the
was
of
a
older
not
by
bicycle
accident was not crucial.
In
short,
defense
counsel
explained
that:
(1)
he
strategically chose to focus on two themes—that whatever
had
happened
to
the
older
sister,
defendant
was
not
involved, and that the older sister was a liar; (2) he made
the further strategic decision not to pursue a theory that
would
have
required
presenting
evidence
regarding
the
existence of the bicycle accident, on the grounds that the
conflicting stories strengthened the theory that the older
sister was a liar and could possibly distract the jury from
his
chosen
trial
strategy;
and
(3)
he
chose
to
not
interview the contested witnesses because their testimony
15
was either irrelevant to his defense (whether the bicycle
accident had actually happened) or cumulative (the extent
of the older sister’s injuries).
testified
that
he
chose
his
Defense counsel further
defense
strategy
after
considering that he could not present any medical testimony
to rebut the prosecution’s medical testimony that the older
sister’s injuries were consistent with sexual assault.
It is clear that defense counsel did not interview the
contested witnesses because, at the time he was preparing
for trial, he had no reason to think those witnesses would
enhance his chosen trial strategies.
Further, it is clear
that defense counsel did not interview the witnesses during
the
trial
because
he
believed
that
the
older
sister’s
testimony that she had lied about the bicycle accident only
strengthened his defense.
Justice
strategy
is
KELLY’s
failure
puzzling.
to
Justice
acknowledge
KELLY
also
such
trial
fails
to
acknowledge or apply the deferential standard required by
Strickland.
Rather than shunning hindsight and reviewing
counsel’s actions from counsel’s perspective at the time of
the
alleged
error
in
light
of
all
the
circumstances,
Justice KELLY summarily concludes that defense counsel was
ineffective because his strategy did not prove successful.
This holding cannot be squared with our Sixth Amendment
16
jurisprudence.
“[T]he Sixth Amendment guarantees a range
of reasonably competent advice and a reliable result.
does not guarantee infallible counsel.”
It
People v Mitchell,
454 Mich 145, 171; 560 NW2d 600 (1997).
Further, Justice KELLY gives only lip service to the
fact that defense counsel was not preparing for a trial in
which the sole count was the first-degree criminal sexual
conduct charge.
Rather, defense counsel had to prepare a
defense that addressed all three charges against defendant.
He was repeatedly frustrated in his investigatory efforts
by lack of cooperation from the ostensible witnesses.
He
did not have the benefit of perfect hindsight, nor did he
have unlimited time and resources.
Rather, he had to make
his own “reasonable professional judgments” regarding “the
limitations
on
investigation,”
including
the
“reasonable
decision that makes particular investigations unnecessary.”
Strickland, supra at 690-691.
C.
REASONABLE PROBABILITY
In addition to ignoring the deferential standard of
judicial review of trial strategy involving the multiple
charges against defendant, Justice KELLY also ignores the
definition
of
“reasonable
probability.”
“Reasonable
probability” does not mean that a majority of this Court
finds the testimony of the contested witnesses compelling.
17
Rather, as explained above, “reasonable probability” means
a
probability
outcome.3
sufficient
to
undermine
confidence
in
the
Defendant has simply presented what could have
been an alternate trial strategy; he has not met his burden
of demonstrating a sufficient probability that the actual
strategy
chosen
by
his
counsel
actually
undermined
confidence in the outcome of his trial.
Further, any determination of “reasonable probability”
must take into account the entire record, including all
the evidence produced regarding the three counts against
defendant.
testimony
Given
that
the
sisters’
defendant
father’s
spontaneously
devastating
protested
his
innocence before anyone knew the extent or cause of the
older
sister’s
testimony
of
injuries,
both
and
sisters
given
regarding
the
the
corroborated
second-degree
criminal sexual conduct charges, one cannot conclude that
defense
counsel’s
decision
not
to
pursue
the
bicycle
accident issue with exhausting detail undermines confidence
in the outcome.
After
reviewing
the
full
record,
I
cannot
conclude
that defense counsel’s actions constituted anything less
3
Justice KELLY attempts to recharacterize this standard
as “beyond a reasonable doubt.”
Nowhere do I argue,
however, that the standard is “beyond a reasonable doubt.”
18
than sound trial strategy.
Applying the correct standards
of review and placing the burden on defendant reveals that
defendant
has
not
demonstrated
that
defense
counsel
committed any error at all, let alone an error that would
undermine confidence in the outcome.
III.
RETRIAL
I also note that, if there is a retrial, the evidence
regarding the bicycle accident that Justice KELLY finds so
compelling will be subject to intense scrutiny, given the
lack
of
any
coherent
testimony
regarding
the
alleged
bicycle accident.
In the characterizations of the testimony regarding
the alleged bicycle accident, Justice KELLY willfully omits
the many inconsistencies that arose during the testimony.
A
full
review
of
the
testimony,
as
outlined
below,
demonstrates that the testimony was conflicting, confusing,
and
actually
undermined
witnesses at trial.
the
testimony
of
the
defense
Had defense counsel presented such
testimony at trial, the jury would have been presented with
five
defense
testimony
of
witnesses,
the
other
two
three.
of
whom
I
fail
contradicted
to
see
how
the
the
decision to present a coherent, unified defense theory to
the jury constitutes ineffective assistance.
19
A. THE INITIAL TESTIMONY REGARDING
THE
BICYCLE ACCIDENT
After the verdict was rendered, but before sentencing,
new defense counsel moved for a new trial on the basis of
newly discovered evidence.
The new evidence presented at
the motion relevant to this appeal was that the sisters’
cousins witnessed the bicycle accident that defendant had
alleged caused the older sister’s injuries.
The cousins’
testimony, however, was confusing and contradictory.
At
the
time
of
the
first-degree
sexual
conduct offense, the boys were six and eight.
criminal
Their mother
testified that she had not witnessed the bicycle accident,
but that her children had.
She testified that she was in
the bathroom with defendant’s girlfriend helping the older
sister
after
she
was
injured
and
acknowledged
that
defendant’s girlfriend would have known of her presence and
made
the
same
observations.
The
cousins’
mother
also
stated that the rest of the family knew she was at the
house on the day of the accident and also knew that her
children were there.
She testified that she was aware of
the trial and stated that she told defendant=s mother about
her presence in the bathroom and her children=s presence at
the accident on the second day of the trial.
The
older
cousin
testified
that
he
saw
the
sister’s bicycle accident and saw her get injured.
20
older
He
testified that, after the accident, the older sister did
not cry or scream and walked by herself up to the house,
where defendant’s girlfriend took her into the bathroom.
He testified that the older sister was wearing light blue
jeans, but that the jeans turned dark after the accident
because of all the blood.
He testified that the older
sister got hurt on the bicycle handles.
He specified that
he was at the bottom of the hill when the older sister got
hurt and that no one was at the top of the hill.
He
testified that defendant’s girlfriend would have known that
he was at the house and that he was also playing with the
bicycle
when
the
accident
occurred.
He
also
stated
repeatedly that he never told his mother or anyone else
about the accident and insisted that if his mother said
otherwise, she would be wrong.
The younger cousin testified that he knew he was at
the hearing to testify about the bicycle accident, although
he insisted no one told him that.
wheel
on
the
bicycle
handlebars were intact.
was
He stated that the front
broken
off,
but
that
the
He testified that he saw the older
sister running down the hill with the bicycle and that she
fell on some metal when she let go of it and got hurt in
her private part.
The younger cousin testified that after
she got hurt, the older sister just got up and walked to
21
the house.
After repeated questioning, he testified that
he specifically remembered that the older sister had been
wearing blue sweat pants, and not jeans, and that the sweat
pants were torn in the front.
testified
that,
contrary
to
The younger cousin also
the
older
sister’s
uncle’s
testimony at trial, the uncle was not at the home on the
day the accident happened and that, if he said differently,
the
uncle
would
be
wrong.
Thus,
the
boy’s
testimony
contradicted that of one of the key defense witnesses at
trial.
The
younger
cousin
testified
that
defendant’s
girlfriend and the older sister’s grandfather would have
known he was at the house on the day of the accident and
that they all knew he was with the older sister when the
accident happened.
He also testified both that he had told
someone about the bicycle accident a couple minutes after
it happened and that he never told anyone about the bicycle
accident at all.
After the hearing, the judge denied the motion for new
trial and sentenced defendant to fifteen to forty years for
the first-degree criminal sexual conduct count and ten to
fifteen years for the two counts of second-degree criminal
sexual conduct.
22
B. SUBSEQUENT TESTIMONY REGARDING
THE
BICYCLE ACCIDENT
The cousins testified again at the Ginther hearing,
and
their
much
of
testimony
the
at
the
testimony
Ginther
given
hearing
previously
at
contradicted
the
hearing
regarding the motion for a new trial.4
The older cousin testified that the bicycle was like a
unicycle
and
Instead,
people
handlebars.
that
it
ran
was
not
behind
the
possible
bicycle
to
ride
it.
holding
the
Contrary to his testimony at the motion for a
new trial, the older cousin testified, “But I didn=t see her
get
hurt
on
the
bike,
though.”
(Emphasis
added.)
He
further testified, “I didn=t see the bike part hit her, but
I knew where she was hurt at.”
He also testified that the
older sister did not walk up the hill as he had previously
testified, but instead that her mother and an aunt went
down the hill and got her.
The older cousin testified that
the hill was over fifty feet long and that he was at the
top of the hill at the time of the accident, not at the
4
Justice KELLY’s characterization of the trial court’s
decision at the Ginther hearing is also misleading.
The
trial court gave a very detailed decision, finding not that
the boys were unable to remember clearly at the time of the
Ginther hearing, but that the court did “not believe that
the witnesses, Mr. Goldstein is alleged to have failed to
interview, would have been of assistance to the Defendant
and would have directly exculpated the Defendant on the
CSC-I offense. . . .”
23
bottom of the hill as he had previously testified.
He
testified that he talked to his mother about the accident
shortly after it happened, but later said he didn=t remember
whether
he
talked
to
her
or
not.
Finally,
he
also
testified that on the morning of the hearing he was talking
with his mother and grandmother “about how the jury screwed
up.”
He stated:
Q.
Okay.
You chatted with somebody this
morning about this?
A.
Just about B well, rumor B well, what I
heard about the jury and how they messed and that
was about it this morning.
Q.
about?
Your
mom
A.
Okay.
A.
Okay.
A.
Okay.
all
No.
Q.
was
Yes.
Q.
this
Yes?
A.
what
Um hm.
Q.
you
Yeah.
Q.
told
She told you why you were here?
And she told you what to say?
What did she tell you?
A.
She told us that we=re going here to see
if we can help Bill. [Emphasis added.]
The
younger
cousin
testified,
contrary
to
his
brother’s testimony, that both he and defendant actually
24
rode the bicycle the day of the accident.
This testimony
placed defendant at the scene of the injury and directly
contradicted
with
the
testimony
of
all
of
the
defense
witnesses at trial, who had testified that defendant was
not at the scene when the older sister was injured.
He
testified that the bicycle had both a seat and pedals,
again contrary to his brother’s testimony.
He testified
that, contrary to his previous testimony, the older sister
was
riding
the
bicycle
and
not
running
behind
it.
He
stated that he was at the top of the hill with his brother
at the time of the accident, and that the older sister was
injured by the handlebars on the bicycle, not by the pile
of metal at the bottom of the hill as he had previously
testified:
Q.
Okay. So [the older sister] didn=t run
into a pile of metal at the bottom of the hill?
A.
No.
Q.
That didn=t happen?
A.
Right.
That did not happen.
Finally, when the younger cousin was questioned about
the
older
sister=s
clothes,
the
following
exchange
place:
Q.
[The older sister] was wearing clothes?
A.
Yes.
25
took
Q.
Do you remember
pants or short pants?
if
she
A.
on
long
She had on long pants.
Q.
had
Okay.
A.
And I only know that they were blue.
don=t know if they were sweat pants or jeans.
have no idea.
Q.
What made
pants or jeans?
you
say
that
about
I
I
sweat
A.
Because she had a pair of sweat pants
and she had a pair of jeans and I know they were
both blue.
Recall
younger
that,
cousin
at
had
the
motion
insisted
that
for
a
the
new
trial,
the
older
sister
was
wearing sweat pants and not jeans, and that he knew the
difference between the two.
He was the only person to
testify that the older sister was not wearing jeans.
His
spontaneous statement that he no longer knew if the older
sister
was
wearing
sweat
pants
or
jeans
prompted
following exchange:
Q.
Okay.
Did your mom or anybody in your
family talk to you about what you were going to
testify to today?
A.
Q.
about?
Only my mom.
Okay.
What did your mom talk to you
A.
She said I was testifying to see if I
could get Grant-Bill Grant out.
Q.
Get Bill Grant off?
26
the
A.
Um hm. [Emphasis added.]
Thus, the boys’ testimony gave no coherent explanation
of
whether
accident,
alleged
they
how
actually
the
accident
alleged
alleged
occurred,
accident
inconsistencies
saw
or
remembered
accident
or
who
occurred.
in
the
boys’
the
occurred,
was
where
the
when
the
present
Given
the
testimony
alleged
numerous
regarding
the
bicycle accident and the boys’ testimony that they were
trying to “help” defendant or “get [defendant] out,” the
boys’ testimony on retrial will be subject to impeachment.
Given the inherent problems in using this testimony, it
will
be
certainty
difficult
any
on
details
retrial
to
surrounding
establish
the
with
alleged
any
bicycle
accident.
IV. CONCLUSION
In her opinion, Justice KELLY ignores both the facts
and the law.
Rather than placing the burden on defendant
to demonstrate the ineffective assistance of his counsel
and reviewing defendant’s claim with the strong presumption
that counsel’s actions constituted sound trial strategy,
the
opinions
of
both
Justice
KELLY
and
Justice
TAYLOR
conclude, in hindsight, that, because those justices would
have
presented
a
different
27
strategy,
counsel
was
ineffective.
departure
This
from
is
our
an
unprecedented
Sixth
Amendment
and
unwarranted
jurisprudence.
Application of the law to the facts of this case compels
the
conclusion
that
counsel
thoughtfully
strategy and pursued that strategy.
chose
a
trial
Counsel’s contested
actions were all deliberately chosen to execute counsel’s
chosen strategy.
error
by
his
Defendant has failed to demonstrate any
counsel,
let
confidence in the outcome.
is
an
unfavorable
alone
one
that
undermined
Rather, all defendant has shown
result.
Until
today,
an
unfavorable
result was not enough to demonstrate ineffective assistance
of counsel.
KELLY
and
With all respect due the opinions of Justice
Justice
TAYLOR,
I
believe
it
still
is
not.
Accordingly, I would affirm the decision of the Court of
Appeals.
Maura D. Corrigan
Elizabeth A. Weaver
Robert P. Young, Jr.
28
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 119500
WILLIAM COLE GRANT,
Defendant-Appellant.
_______________________________
WEAVER, J. (dissenting).
I
respectfully
dissent
from
the
majority’s
holding
that the defense counsel was constitutionally ineffective.
The older sister initially told everyone, including
her treating physician, that she had been injured in a
bicycle accident.
At trial, the older sister testified
that there had been no bicycle accident and that her injury
had resulted from defendant’s sexual assault.
The lead
opinion’s finding that defense counsel was constitutionally
ineffective is based on defense counsel’s pretrial failure
to investigate to determine if the bicycle accident had in
fact occurred.
The
lead
opinion’s
basic
premise
is
unsupported
because there is nothing in the record to show that defense
counsel knew of the older sister’s inconsistent statements
before trial.
The lead opinion relies on one source of
information——a report by the second doctor——to support its
theory
that
defense
counsel
knew
or
should
have
known
before trial that the older sister had given inconsistent
statements about the cause of her injury before trial.
This report by the second doctor is not in the record
before us.
No one testified about the contents of the
referenced
report,
nor
was
the
report
admitted
into
evidence.
The lead opinion’s assertion that the second
doctor’s report may have indicated that the older sister
had inconsistently described the cause of her injuries is
mere speculation, unsupported by the record.
Rather, the evidence properly before us indicates that
defense counsel had no reason to know that the older sister
would testify that there had been no bicycle accident.
the
June
7,
2000,
Ginther1
hearing
defense
In
counsel
repeatedly testified that the accident was not disputed:
Q. Would it have been of assis-, of
assistance to have an eyewitness to the accident?
A. Only if it was disputed.
The accident
was not disputed.
The girl never disputed it.
[The sisters’ uncle] testified what he, or was
willing to testify to what he observed. And it,
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
and one of, one of the things that he observed
was the girl saying, “I had an accident.”
* * *
Q. Alright.
Maybe to the extent that it
might have assisted in the defense of the
position
that
any
injuries
that
the
girl
sustained, she sustained as a result of the
bicycle accident?
A.
No. Maybe to the extent if the, if the
accident was disputed, helping the jury decide
whether the accident actually occurred or not.
But there was no dispute that the girl said to
[her uncle], in [her uncle’s] presence and in the
presence of his sister, that she fell.
She had
an accident. So that issue was not in dispute.
* * *
A. No, my te-, my statement all this morning
has been that I didn’t think we needed to prove
that the accident occurred because I didn’t think
the occurrence of the accident was in dispute.
The excerpts from the Ginther hearing that the lead
opinion quotes, ante at 15-16, to support the proposition
that “defense counsel acknowledged that it was important to
establish
that
the
bicycle
accident
occurred”
actually
demonstrate that prior to trial defense counsel did not
know that it would be important to establish that a bicycle
accident had occurred.
Further,
“proposed
on
January
statement
of
24,
facts”
3
2001,
with
defendant
the
filed
circuit
a
court.
Defendant’s proposed statement of facts included two points
which indicated that the trial counsel did not know before
trial that the accident was disputed:
31. Goldstein [trial counsel] did not call
an eye witness to the bike accident at the trial
and did not think that an eye witness would have
been of any assistance to him since he believed
that the bike accident was not disputed by the
alleged victim.
32. Goldstein did not believe that an
eyewitness to the bike accident was important for
purposes of linking the alleged victim’s injury
to the bike accident since he felt that such an
eyewitness would have only been important to the
Defendant’s defense if the bike accident itself
was in dispute, TR 40, and that the only thing an
eyewitness to the bike accident could testify to
was
that
the
accident
occurred.
TR
91.
Goldstein, however, did not believe that the bike
accident was in dispute or that the same was
“relevant.” TR 40; 89; TR 110.
The
filing
concluded
with
the
plea
that
“Defendant
hereby requests that this Honorable Court adopt the above
reference facts as the relevant facts applicable to the
issue
of
whether
or
not
Defendant’s
trial
attorney
effective, as limited by the Court of Appeals.”
was
January
24, 2001, proposed statement of facts.
I agree with Chief Justice Corrigan and Justice Young
that defendant did not meet his burden of showing that his
attorney’s performance fell below an objective standard of
reasonableness and that, but for counsel’s errors, there is
4
a reasonable probability that the result of the proceeding
would have been different.
People v Pickens, 446 Mich 298;
521 NW2d 797 (1994) (adopting the Strickland v Washington,
466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 [1984], standard
of
ineffective
evidence
in
assistance
the
record
of
before
counsel).
There
us
that
to
show
is
no
defense
counsel knew of the older sister’s inconsistent statements
before
trial;
rather,
the
evidence
properly
before
us
indicates that defense counsel had no reason to know that
the
older
sister
bicycle accident.
would
testify
that
there
had
been
no
I would affirm the decision of the Court
of Appeals.
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
5
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 119500
WILLIAM COLE GRANT,
Defendant-Appellant.
_______________________________
YOUNG, J. (dissenting).
I respectfully dissent.
deferring
to
the
trial
I believe that the wisdom of
court's
determination
whether
ineffective assistance of counsel has been demonstrated is
a sound policy. See People v Sexton (After Remand), 461
Mich 746, 752; 609 NW2d 822 (2000).
The trial court, which
has first-hand knowledge of the witnesses and the conduct
of the trial, is in the best position to assess not only
whether
defense
deficient,
but
counsel's
whether
any
trial
such
performance
deficiency
has
been
might
have
altered the outcome of the trial.
As is aptly demonstrated by the number and variety of
opinions this case has generated, this case is one that is
highly fact-sensitive and productive of no clear precedent
that can provide guidance for future cases.
Because I do
not
believe
that
the
trial
court
erred
in
its
determinations on the claim of ineffective assistance of
counsel
in
the
several
hearings
it
conducted
question, I would affirm the convictions.
Robert P. Young, Jr.
Maura D. Corrigan
Elizabeth A. Weaver
2
on
this
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