PEOPLE OF MI V STEVE CARBIN
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED APRIL 3, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No.
114799
STEVE CARBIN,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
We granted leave to consider defendant’s claim that he
was denied the effective assistance of trial counsel.
The
trial court, acting as trier of fact, found defendant guilty
of first-degree criminal sexual conduct, MCL 750.520b; MSA
28.788(2), and sentenced him to a five to fifteen year term of
imprisonment.
After a Ginther hearing1 ordered by the Court
of Appeals, the trial court denied defendant’s motion for a
new trial.
The Court of Appeals then affirmed defendant’s
conviction in an unpublished opinion.2 We affirm the judgment
of the Court of Appeals.
Defendant was not denied the
effective assistance of trial counsel.
I. FACTUAL
AND
PROCEDURAL BACKGROUND
The victim, a woman in her mid-thirties, worked at a
private recreation center in Detroit.
On the evening of
February 11, 1994, she stayed at work to close the facility.
Sometime shortly after 9:00 p.m., when she believed that she
was alone, she was attacked by two men who remained inside the
building.
One of those men forcibly raped her.
At trial, the
victim identified defendant as the man who raped her. She
could not identify her other attacker.
Defendant’s trial
counsel argued that the victim identified the wrong man and
that defendant could not have committed the crime because he
had been locked inside the Detroit Psychiatric Institute at
the time the crime occurred.
The victim testified that she saw defendant’s face in the
light for one minute when the attack began and then again for
1
See People v Ginther, 390 Mich 436; 212 NW2d 922
(1973).
2
Unpublished opinion per curiam, issued January 22,
1999, reh den March 25, 1999 (Docket No. 198969).
2
five or ten minutes during the rape itself.
She recognized
defendant as one of the members of the recreation center.
Although she did not know his name, she explained that she had
seen him around the center before the rape:
Q. How is it that you know [defendant] from
the past?
A. Because he’s a member at the center. He
came upstairs when we had the floor exercise, and I
had to get the supervisor one time to ask him to
leave.
And he left and stayed gone for awhile.
Then he came back to the center, he came back up
again the night of the floor exercise, and the
exercise instructor she came back to the ceramics
table
and
she
said
that
the
ladies
were
uncomfortable and could I have the young man to
leave. And I went and told [the supervisor] again
that he was upstairs and the ladies wanted him to
leave.
The victim also explained that defendant frequently came to
the recreation center to swim hours before the pool was
scheduled to open and waited outside or in the lobby.
When
the pool opened, defendant entered, but stayed at the shallow
end.
The police did not immediately locate defendant because
the recreation center did not have a picture of him.
After
the February assault, the victim did not return to work at the
recreation center until May. She did not see defendant at the
recreation center until September 1994.
defendant
at
the
recreation
center
When she first saw
after
immediately panicked and left the building.
3
the
rape,
she
By the time she
called the police from her house, the center had already
closed for the evening.
The next day, defendant once again
came to the recreation center.
This time, staff members
alerted the police and defendant was arrested.
In addition to the victim’s testimony, the prosecutor
presented the testimony of the victim’s friend, who arrived at
the recreation center shortly after the rape and called the
police, and two police officers who responded to the initial
call.
One of the police officers testified that they got the
run at 9:35 p.m. and that they arrived at 9:40 p.m.
The
victim, who appeared shaken, told the officers that she had
been assaulted by two men, one of whom she knew.
Defendant’s
director
of
Institute.
records
only
medical
Bond
indicated
witness
records
testified
that
at
trial
was
Yvonne
at
the
Detroit
that
the
institute’s
defendant
had
been
Bond,
Psychiatric
medical
involuntarily
hospitalized at the institute on the day of the crime.
The
records showed that defendant was present at 5:55 p.m. and
10:30 p.m. on that day and that he was “locked up” and
“couldn’t get out” during the interim hours.
On cross-examination, Bond admitted that patients had
escaped from the Detroit Psychiatric Institute in the past.
She also explained that patients were not locked in their
individual rooms.
Thus, she admitted, it was “conceivable”
4
that a patient could leave the sixth-floor psychiatric unit by
making it past one set of locked doors to a hallway and a
stairway leading down to the first floor exit. In addition to
the stairway, a locked elevator could be accessed if the door
happened to open while the elevator was in use.3
Regarding
detailed
notes
the
medical
reflected
records,
Bond
defendant’s
explained
activities
at
that
the
institute between the hours of 7:00 a.m. and 3:30 p.m. on the
day of the crime. These particular notes ceased at 3:30 p.m.,
which was the end of a shift.
She also explained that the
10:30 p.m. notation indicated that a nurse had given defendant
a certificate in his room.
While she was never asked to
explain her assertion that defendant was present at 5:55 p.m.,
Bond did testify that a record showed that a doctor had seen
defendant at 5:10 p.m.
In making its findings of fact and conclusions of law,
the trial court initially recounted the victim’s testimony in
detail.
The judge explained that he believed the victim’s
testimony “just from listening to her.”
testimony
was
credible
because
she
Her identification
was
defendant’s face from previous observations.
3
familiar
with
Finally, the
Bond did not clearly testify (1) whether the locked
elevator was located outside the set of locked doors leading
to the psychiatric unit, or (2) whether the stairway itself
was also locked.
5
trial court explained that the victim displayed no bias
against the defendant that would have prompted her to falsify
the story.
In rejecting defendant’s alibi defense, the court opined
that the detailed notes regarding defendant’s whereabouts from
7:00 a.m. to 3:30 p.m. on the day of the crime established an
“ironclad alibi” only for that specific period of time.
In
contrast, defendant had presented no records to establish
conclusively his presence at the institute when the crime was
committed.
Regarding the institute’s security measures, the
trial court found that it was “not a lock down facility like
the Wayne County Jail where there are guards and the like.”
Accordingly, the trial court reasoned that it was “just
speculation” that defendant could not have left the facility
to commit the crime.
prosecution
had
The trial court thus concluded that the
proven
beyond
a
reasonable
doubt
that
defendant was guilty of the crime of first-degree criminal
sexual conduct.
After
pending,
trial,
while
defendant’s
defendant’s
first
claim
appellate
of
appeal
was
counsel
moved
for
defendant’s release on bond pending appeal.
In response to
the bond motion, the trial court took testimony for purposes
of assessing the substantiality of defendant’s grounds of
appeal.
Barbara Pettibone, a clinical social worker at
6
Detroit Psychiatric Institute, testified at the bond hearing
that defendant, whom she recognized, had been involuntarily
admitted to the institute at 1:30 p.m. on February 11, 1994,
the day of the crime, and discharged on March 14, 1994.
She
explained that the institute was a “locked facility,” which
meant that a person attempting to enter from the outside would
ordinarily have to pass through either three locked doors or
one keyed elevator and one locked door—except during visiting
hours from 6:30 p.m. to 8:00 p.m. when the doors were not
locked.
Pettibone also testified that she could not remember
if she had previously been contacted by any other lawyer.
On cross-examination, Pettibone explained that the staff
routinely conducted a bed check each night “around” 11:00
p.m., but that she was not positive regarding the exact time
this was usually done.
She also acknowledged that no one
could conclude with certainty whether a new patient such as
defendant, who may not have been well-known to the staff after
the afternoon shift change, “left or stayed” during the
visiting hours.
Finally, Pettibone noted that maintenance
workers were present at the facility with keys to the locked
doors.
After hearing Pettibone’s testimony, the trial court
granted defendant’s motion and set bond in the amount of
$25,000.4
4
The prosecutor informs that, despite the Court of
Appeals affirmance of his conviction, defendant remains on
(continued...)
7
The
Court
of
Appeals
thereafter
granted
defendant’s
motion to remand to the trial court for a Ginther hearing.
The trial court once again took testimony from Pettibone
regarding the security measures in place at the Detroit
Psychiatric Institute. In response to direct questioning from
defendant’s second appellate counsel, Pettibone testified that
she recalled seeing defendant at the institute on the day he
was admitted.
In contrast to her testimony at the bond
hearing that defendant had been admitted at 1:30 p.m. on
February 11, 1994, Pettibone explained that the nursing notes
indicated that defendant came to the facility at 7:00 a.m. on
that day and was present through at least 3:00 p.m.
She also
stated, more conclusively than in her testimony at the bond
hearing, that a bed check had occurred at 11:00 p.m.
With
respect
to
the
institute’s
security,
Pettibone
explained that defendant would have been kept in a locked
ward, behind at least two locked doors.
While acknowledging
that patients have escaped in the past, she opined that it
would be “very difficult,” but “not impossible,” for a person
to escape, and “impossible” to get back in through the “two or
three locked doors” without a key or “having the door opened
for them.” Pettibone also explained that the front door would
be locked from the outside after hours, that security guards
4
(...continued)
bond pending appeal. Consistent with this opinion, that bond
may be revoked.
8
are sometimes present at the front door, and that maintenance
persons have keys to the locked doors.
On cross-examination, Pettibone conceded that, apart from
her notes, she had no independent memory of seeing defendant
on the day of the crime.
Although she remembered defendant,
she did not remember seeing him on that specific day.
She
also testified that patients had escaped from the psychiatric
unit in the past.
Finally, Pettibone admitted that her notes
did not account for defendant’s whereabouts at 9:00 p.m. on
the day of the crime.
Defendant
next
called
Dr.
psychiatrist at the institute.
Kalappurakal
Joseph,
a
Joseph testified that he had
only a vague memory of defendant and that, as a general
matter, it would be very difficult for a patient to escape and
return to the facility.
Defendant’s last witness was his
first appellate counsel, Ben Gonek.
Gonek testified that
defendant passed a polygraph examination conducted by the
Detroit Police Department after the trial.5
He also testified
that defendant had consistently maintained his innocence.
Defendant was unable to call his trial counsel to testify
5
Defendant makes no claim of ineffective assistance on
the basis of the polygraph examination. Instead, he asserts
without further explanation that it buttressed the credibility
of Pettibone and Joseph. The prosecutor has suggested that
the polygraph test results may have been unreliable, given the
state of defendant’s mental health.
9
because she died before the hearing.
The trial court denied defendant’s motion for new trial.
First,
the
essentially
testimony
cumulative
testimony at trial.
Bond’s
at
trial
the
of
Ginther
Yvonne
hearing
Bond’s
had
medical
been
records
Especially noteworthy was that, like
testimony,
nothing
at
the
Ginther
hearing
verified defendant’s whereabouts between approximately 6:00
p.m. and 10:30 p.m. on the day of the crime.
Because of the
cumulative nature of the testimony at the Ginther hearing, the
trial court reasoned that defense counsel’s performance had
fallen “below that which would be expected of an attorney of
ordinary training and skill in criminal law” only if she had
presented “no testimony at all” regarding defendant’s alibi.6
The trial court then noted that the victim’s trial
testimony had been especially compelling.
In particular, it
explained that the victim’s memorable prior contacts with
defendant “enhanced her credibility in making an accurate and
reliable identification.”
The court also observed that the
victim had a good opportunity to observe defendant accurately
at the time of the crime, and that she immediately told the
police that she had been raped by a man whom she knew.
6
The
In making this determination, the trial court relied on
the standard set forth in People v Garcia, 398 Mich 250; 247
NW2d 547 (1976).
That standard was rendered obsolete by
People v Pickens, 446 Mich 298; 521 NW2d 797 (1994).
10
trial judge then stated that he had been impressed by the
victim’s credibility while sitting as the trier of fact:
Appellate counsel for [defendant], Mr. Gonek
and Mr. Cripps, none of them have had occasion to
look this complainant in the eye, judge her
credibility, judge any motive to lie, judge to
determine if she was making a mistake. I had that
luxury and I remember her and she was a very
believable witness. There’s no doubt in her mind
that this was the man who committed the rape.
For these reasons, the trial court concluded that defendant
had not been denied the effective assistance of counsel.
The
trial court reached this conclusion without expressly stating
whether it believed that defendant’s case had been prejudiced
by trial counsel’s failure to call Pettibone and Joseph as
witnesses.
The Court of Appeals then affirmed defendant’s conviction
in
an
unpublished
per
curiam
opinion.
In
response
to
defendant’s argument that he had been denied the effective
assistance of counsel, the panel concluded that defendant
failed to overcome the presumption that his counsel had been
effective under the constitutional standard.
The Court of
Appeals reasoned that the Ginther hearing testimony did no
more than the trial testimony to establish that defendant was
locked in a mental institution on the night of the crime.
Because both the trial testimony and Ginther hearing testimony
tended to show that it would have been difficult, but not
impossible, for defendant to escape and return without being
11
noticed, the Court of Appeals concluded that defendant failed
to demonstrate that defense counsel’s decision to call Bond,
rather than Pettibone and Joseph, was anything more than trial
strategy.
The panel also concluded that defendant failed to
demonstrate the existence of a reasonable probability that,
but for counsel’s failure to present these witnesses, he would
have been acquitted.
This Court initially denied defendant’s application for
leave to appeal. 461 Mich 946 (2000). On reconsideration, we
vacated the denial order and granted defendant’s application
for leave to appeal, limited to the question whether defendant
was denied the effective assistance of counsel.
462 Mich 918
(2000).
II. EFFECTIVE ASSISTANCE
OF
COUNSEL
A defendant seeking a new trial on the ground that trial
counsel was ineffective bears a heavy burden.
To justify
reversal under either the federal or state constitutions,7 a
convicted defendant must satisfy the two-part test articulated
by the United States Supreme Court in Strickland v Washington,
7
US Const, Am VI provides that the accused in a criminal
prosecution “shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” This requirement is
made applicable to the states through the Fourteenth Amendment
due process clause. Gideon v Wainwright, 372 US 335, 342; 83
S Ct 792; 9 L Ed 2d 799 (1963). Likewise, Const 1963, art 1,
§ 20 provides that the accused in a criminal prosecution
“shall have the right . . . to have the assistance of counsel
for his . . . defense.”
12
466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
v
Pickens,
446
Mich
298,
302-303;
521
NW2d
See People
797
(1994).
“First, the defendant must show that counsel’s performance was
deficient.
This requires showing that counsel made errors so
serious that counsel was not performing as the ‘counsel’
guaranteed by the Sixth Amendment.” Strickland, supra at 687.
In so doing, the defendant must overcome a strong presumption
that counsel’s performance constituted sound trial strategy.
Id. at 690.
“Second, the defendant must show that the
deficient performance prejudiced the defense.”
To
demonstrate
prejudice,
the
defendant
Id. at 687.
must
show
the
existence of a reasonable probability that, but for counsel’s
error, the result of the proceeding would have been different.
Id. at 694.
“A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id.
Because the defendant bears the burden of demonstrating both
deficient performance and prejudice, the defendant necessarily
bears the burden of establishing the factual predicate for his
claim.
See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
In this case, defendant argues that he was denied the
effective assistance of counsel because trial counsel (1)
failed to interview Pettibone and Joseph before the trial, and
(2)
failed
to
call
Pettibone
defendant’s bench trial.
and
Joseph
to
testify
at
Defendant characterizes defense
13
counsel’s failure to call Pettibone and Joseph as a failure to
present an alibi defense.
We agree with the Court of Appeals
conclusion that defendant’s claim fails with respect to both
parts of the Strickland test.
Initially, we reject defendant’s argument that trial
counsel’s performance was deficient in failing to interview
Pettibone and Joseph before trial.
Nothing in the record
establishes that trial counsel failed to investigate either
Pettibone or Joseph before trial.
Although trial counsel was
deceased, and thus could not testify regarding the extent of
her
efforts
to
investigate
defendant’s
alibi,
neither
Pettibone nor Joseph offered any helpful testimony regarding
their
contact
or
lack
preparation for trial.
of
contact
with
trial
counsel
in
Pettibone testified only that she
could not remember whether she had contact with a lawyer;
Joseph
provided
no
testimony
on
the
subject
of
defense
counsel’s pretrial preparation. The fact that defense counsel
called Bond to testify at trial demonstrates that she had
conducted
a
pretrial
investigation
regarding
defendant’s
presence at the Detroit Psychiatric Institute on the day of
the crime.
Absent any evidence regarding the extent of trial
counsel’s pretrial investigation, especially with respect to
the potential testimony of Pettibone and Joseph, we conclude
that
defendant
failed
to
establish
14
a
necessary
factual
predicate of this part of his ineffective assistance of
counsel claim.
See Hoag, supra at 6.
Defendant’s ineffective assistance claim is thus reduced
to an assertion that trial counsel’s performance was deficient
because she failed to call Pettibone and Joseph to testify at
trial.
As
presumption
such,
that
defendant
trial
witnesses was strategic.
cannot
counsel’s
overcome
failure
to
the
strong
call
these
Contrary to defendant’s argument,
counsel’s apparent decision not to present the testimony of
the witnesses in question did not deprive defendant of an
alibi defense.
Bond testified at trial that medical records
showed defendant to be present at the Detroit Psychiatric
Institute at 5:55 p.m. and 10:30 p.m. and that he was “locked
up” and “couldn’t get out” between those times.
Accordingly,
defense counsel did present an alibi defense at trial.
The testimony at the Ginther hearing did nothing more
than Bond’s testimony to account specifically for defendant’s
presence between 5:55 p.m. and 10:30 p.m. on the day of the
crime. If anything, this additional testimony only could have
affected the quality of defendant’s alibi defense.
Viewed
objectively, it is not at all clear that the quality of
defendant’s alibi defense would have been improved with the
addition of testimony from Pettibone and Joseph.
generalized testimony was vague and conclusory.
15
Joseph’s
As such, it
would have added nothing of substance to defendant’s alibi
defense.
Although Pettibone’s testimony included more detail
than Bond’s testimony regarding (1) the precise number of
locked doors that defendant would have had to have traversed
and (2) the obstacles defendant would have faced attempting to
reenter the facility, she also was not an expert on the
security
measures
Institute.
employed
at
the
Detroit
Psychiatric
More importantly, Pettibone’s posttrial testimony
included two new and important pieces of information favorable
to
the
prosecution
testimony.
that
were
not
part
of
Bond’s
trial
First, contrary to Bond’s definite statement that
defendant was “locked” in the facility between 5:55 p.m. and
10:30 p.m., Pettibone testified that the supposedly “locked”
doors were actually unlocked during visiting hours from 6:30
p.m. to 8:00 p.m. on the day of the crime.8
Second, Pettibone
acknowledged that maintenance workers were present after hours
with keys to the locked doors.
Although the failure to present cumulative testimony can
amount
to
ineffective
assistance
of
counsel
under
some
circumstances, see People v Johnson, 451 Mich 115; 545 NW2d
8
It seems likely that the shift in focus in the
posttrial testimony from defendant’s likelihood of escaping
from the Detroit Psychiatric Institute to defendant’s
likelihood of reentering the facility was largely necessitated
by Pettibone’s damaging testimony suggesting the ease with
which a patient could “escape” during visiting hours.
16
637 (1996), this is not such a case.
In Johnson, this Court
held that the defendant’s trial counsel was ineffective in
failing
to
call
additional
defense
favorable, cumulative testimony.
witnesses
to
give
The defendant was convicted
of second-degree murder for shooting a man during an affray in
a Pontiac tavern.
testified
that
The tavern owner and defendant’s father
defendant
did
not
shoot
the
victim.
A
prosecution witness testified that defendant was the shooter.
Defendant presented evidence that his trial counsel was aware
of at least four other witnesses who would have testified that
defendant did not shoot a gun during the affray.
Defense
counsel’s testimony at the Ginther hearing did not suggest a
strategic reason for his failure to call the cumulative
witnesses.
Acknowledging that a trial is “not simply a
balance scale,” this Court nevertheless found the exculpatory
evidence to be so substantial that it could have changed the
outcome of the trial.
Id. at 122.
In contrast to the
shooting at issue in Johnson, an alibi defense based on the
extent of security measures taken at a mental hospital does
not
necessarily
benefit
from
a
number
of
different
perspectives from different witnesses.
While there is no obvious reason why one person generally
familiar with the subject would be less persuasive than three,
the presentation of only one witness has the advantage of
17
eliminating the possibility of distracting inconsistencies.
Here, for example, Pettibone’s testimony regarding the precise
times defendant was allegedly present in the facility (based
on the medical records) differed somewhat from Bond’s.
Most
notably, Bond gleaned from the records that defendant was
present in the unit at 10:30 p.m., less than one hour after
the police responded to the crime.
Pettibone testified only
that a bed check took place at 11:00 p.m.
Given the problems
with Pettibone’s and Joseph’s testimony, and the absence of
any evidence that defense counsel’s decision to present only
Bond’s testimony was not strategic, we conclude that defendant
was not denied the effective assistance of counsel. His claim
fails the “performance” part of the Strickland test.
For many of the same reasons, defendant’s claim also
fails the “prejudice” part of the Strickland test.
On the
basis of the trial court’s findings of fact at trial, and its
statements made in denying defendant’s motion for new trial,
it is clear that (1) the marginal differences in the alibi
testimony
of
Pettibone
and
Joseph
would
not
have
had
a
significantly greater effect on the trier of fact than did the
testimony of Bond, and (2) the trier of fact was especially
impressed with victim’s inherently credible trial testimony.
Although the trial court did not expressly rule that the
outcome at trial would have been the same had Pettibone and
18
Joseph
been
called
to
testify,
it
did
state
that
their
additional testimony was “for the most part, cumulative” and
that the victim’s testimony that defendant was one of her
attackers was “very believable.”
Accordingly, on this record
we cannot say that a reasonable probability exists that, but
for counsel’s failure to call Pettibone and Joseph to testify
at
trial,
different.
the
result
of
the
proceeding
would
have
been
Rather, we are confident that the result would
have been precisely the same.
Affirmed.
CAVANAGH ,
WEAVER , KELLY ,
TAYLOR , YOUNG , and
concurred with CORRIGAN , C.J.
19
MARKMAN , JJ.,
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