Opinion
SC: 163440 COA: 351580
04-01-2022
PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jerome Joseph MORGAN, Defendant-Appellee.
Order
On order of the Court, the application for leave to appeal the June 24, 2021 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Viviano, J. (dissenting).
In denying leave to appeal in this case, this Court leaves in place an unpublished Court of Appeals decision holding that defense counsel's cross-examination of the victim, which it believed bolstered instead of undermined her credibility, constituted objectively deficient performance that prejudiced defendant. But no Ginther hearing has been held to determine if defendant's claims have any merit—indeed, an earlier panel of the Court of Appeals rejected defendant's request for a Ginther hearing. I believe that, at a minimum, we should order a Ginther hearing to assist in our review by allowing trial counsel to explain his approach to the case. For these reasons, I respectfully dissent.
People v. Ginther , 390 Mich. 436, 212 N.W.2d 922 (1973).
In this case, defendant was convicted after a bench trial of two counts of first degree criminal sexual conduct (CSC-I) (victim under 13 years of age), MCL 750.520b(2)(b). The only direct evidence was the victim's testimony. Therefore, the central issue at the bench trial was the credibility of the victim. The victim testified that, when she was between the ages of eight and ten, she would stay over at her great-aunt Karen's home with her cousins. During this time, Karen's husband, defendant, would touch the victim inappropriately. The victim explained that the abuse happened at night and during the day and that defendant threatened to hurt her and her family if she told anyone. On one occasion, defendant carried the victim from the dining room to his bedroom while Karen was at work and on other occasions defendant would sneak quietly into the dining room to abuse her. The victim first told her nine-year-old cousin, AL, about the abuse, and then her mother.
Defense counsel presented evidence that the apartment was cluttered and hard to move around in and that the floors squeaked, so it would have been difficult for defendant to sneak through the house at night. Karen also testified that she did not work nights, that she was always at home at night, and that it would not have been possible for defendant to get up at night to abuse the victim without waking her. Defense counsel also presented evidence to establish a motive for the victim to lie: the victim admitted that she did not like defendant because he was strict with her when she was at the house.
Defense counsel attempted to impeach the victim during cross-examination. It appears from the transcript that defense counsel was preparing to have the victim read from her preliminary examination testimony. The trial court, however, interjected and said, "She's not going to read. You can ask her whether or not she remembers being asked this question and giving this answer." Defense counsel complied, asking the victim several questions about her earlier testimony at the preliminary examination. Each time, he asked her if she remembered her prior statement. She responded in the affirmative to each question. During the course of this line of questioning, defense counsel drew out some inconsistencies between the victim's trial testimony and her preliminary examination testimony. In reading her the preliminary examination testimony, he also introduced her earlier accusations against defendant, which she reaffirmed. Defense counsel also asked the victim if she remembered telling an examiner at a children's advocacy center called Kids-TALK that defendant touched her butt with his penis, to which the victim responded "yes." Defense counsel then asked if the victim had failed to mention this detail at the preliminary exam or during the trial. The victim responded that she had not been asked. But defense counsel explained that the prosecutor had asked the victim to list all of the places and times that she had disclosed defendant's abuse. Defense counsel also tried to ask the victim about her statement that most of the assaults happened at night, when Karen, her great-aunt, was working. This statement conflicted with Karen's testimony that she worked during the daytime. However, the prosecutor objected that defense counsel was reading the preliminary exam transcript and stated that there had been no inconsistencies. Defense counsel then stopped this line of questioning.
One of his first questions acknowledged the victim's testimony on direct examination that she had trouble recalling the first time she was abused. He asked whether, during that first time, defendant touched her private area with his mouth and his genitals. She responded, "Yes." Defense counsel read from the preliminary examination transcript the victim's testimony that the first time defendant abused her was by touching her private area with his fingers. She recalled providing that testimony. Accordingly, defense counsel highlighted the victim's inconsistent testimony concerning the first instance of abuse. Defense counsel then questioned her about the time when defendant touched her with his genitals. On direct examination, she had testified that she had her shirt on when this happened. Defense counsel read from the victim's preliminary hearing testimony in which she twice asserted her clothes had been off at that time. She also stated that she recalled providing that testimony.
In finding defendant guilty, the trial court considered several factors. The trial court first rejected defendant's argument that the victim was lying because defendant was strict with her. It then found that there was a lack of evidence that the victim had a motive to lie. The trial court then discussed how and when the victim had disclosed the abuse and the consistency of her statements. On consistency, the trial court asked, "Has [the victim's] story been consistent?" In concluding that it had, the court reasoned, "She really wasn't impeached on anything of substance from the preliminary exam, Kids-TALK or the medical records that were admitted." Ultimately, the trial court concluded that the victim was "a credible witness and that she testified honestly."
Defendant appealed in the Court of Appeals, which held that defendant was entitled to a new trial because of ineffective assistance of counsel. The Court of Appeals found that defense counsel's strategy to impeach the victim based on the preliminary examination testimony was "wholly unreasonable" and that it constituted deficient performance. Moreover, the Court of Appeals found that defendant was prejudiced because the prosecution's case hinged entirely on the credibility of the victim's allegations and so defense counsel's success in undermining the victim's credibility was all the more critical. People v. Morgan , unpublished opinion of the Court of Appeals, entered June 24, 2021 (Docket No 351580), 2021 WL 2619719. The prosecutor then filed the present application for leave to appeal, which the majority today denies.
The Court of Appeals also held that counsel was ineffective for failing to object to testimony by the victim's cousin, AL, who testified that the victim had told AL that defendant had touched her inappropriately. Defense counsel did not object to the hearsay testimony. However, it is unclear whether MRE 803A —which allows hearsay regarding a child's statement about sexual acts when the declarant was "under the age of ten when the statement was made"—would have applied. In any case, even if this was an error, it would likely be harmless as the statement was cumulative to the in-court testimony. Therefore, there is no reasonable probability that, but for this error, the result of the proceeding would have been different. See People v. Randolph , 502 Mich. 1, 9, 917 N.W.2d 249 (2018).
The right to counsel guaranteed by the United States and Michigan constitutions includes the right to effective assistance of counsel. U.S. Const., Am. VI ; see also Const. 1963, art. 1, § 20. To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that trial counsel's performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant. People v. Randolph , 502 Mich. 1, 9, 917 N.W.2d 249 (2018), citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To satisfy the first prong, the defendant must show that counsel's performance fell below an objective standard of reasonableness. People v. Trakhtenberg , 493 Mich. 38, 51, 826 N.W.2d 136 (2012). In examining whether defense counsel's performance fell below an objective standard of reasonableness, a defendant must overcome the strong presumption that counsel's performance was born from a sound trial strategy. Id. at 52, 826 N.W.2d 136, quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052. Initially, a court must determine whether the "strategic choices [were] made after less than complete investigation," Trakhtenberg , 493 Mich. at 52, 826 N.W.2d 136, quoting Strickland , 466 U.S. at 690-691, 104 S.Ct. 2052 (alteration in Trakhtenberg ). "Under Strickland , strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Hinton v. Alabama , 571 U.S. 263, 274, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (quotation marks and citation omitted). "Defense counsel must be afforded ‘broad discretion’ in the handling of cases, which often results in ‘taking the calculated risks which still do sometimes, at least, pluck legal victory out of legal defeat.’ " People v. Pickens , 446 Mich. 298, 325, 521 N.W.2d 797 (1994) (citation omitted).
A very strong argument could be made that defense counsel here did not perform deficiently. Certainly, this case is unlike those in which we have found deficient performance, such as when counsel completely failed to investigate the client's case or prepare for the defense. See, e.g., Trakhtenberg , 493 Mich. at 53-53, 826 N.W.2d 136 ; People v. Ackley , 497 Mich. 381, 389, 870 N.W.2d 858 (2015). There is no suggestion that defense counsel in this case was in any way unprepared. On the contrary, defense counsel conducted several interviews, hired an investigator, and admitted evidence establishing a motive for the victim to lie as well as evidence casting doubt on the victim's allegations. For example, defendant elicited testimony that made it seem less likely that defendant would be able to sneak around the apartment as the victim described in her testimony, as well as evidence that defendant was never alone with the victim. Defendant also elicited testimony from the victim that she and her mother did not like defendant. As the Court of Appeals noted, this was a "close case" and "defendant presented numerous pieces of evidence to cast doubt on whether th[e] allegations were worthy of belief." Morgan , unpub. op. at 8. Under these circumstances, defense counsel's strategic choices should be "virtually unchallengeable." Hinton , 571 U.S. at 274, 134 S.Ct. 1081 (quotation marks and citation omitted). In any event, it seems inherently contradictory to say that defense counsel's performance was good enough to cast doubt on the allegations, yet at the same time so objectively deficient that defendant received constitutionally ineffective assistance.
When it came to cross-examination, defense counsel's approach appears to represent a "calculated risk" of the sort courts should not second-guess. It is true that the victim's preliminary examination testimony was not favorable to defendant. But this was a bench trial, and it was unlikely that the fact-finder would be unduly swayed by hearing the testimony. Cf. Gentile v. State Bar of Nevada , 501 U.S. 1030, 1077, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (Rehnquist, C.J., dissenting) ("[T]rial judges often have access to inadmissible and highly prejudicial information and are presumed to be able to discount or disregard it."); People v. Edwards , 171 Mich.App. 613, 619, 431 N.W.2d 83 (1988) ("Generally, error is less likely to be deemed to require reversal in a bench trial because the judge is less likely to be deflected from the task of fact-finding by prejudicial considerations that a jury might find compelling."). Instead, this was a credibility contest, and it was critical for defense counsel to make the victim appear less credible. He therefore might have reasonably concluded that introduction of the preliminary examination testimony—which, recall, he initially did not seek to read into the record himself but did so only at the judge's direction—was worth the risk if it could undermine the victim's credibility. And he was, in fact, able to point out a few inconsistencies in the victim's testimony.
The Court of Appeals did not recognize any of the inconsistencies revealed by defense counsel's questioning. The court instead suggested that "her preliminary examination testimony was consistent with her trial testimony." Morgan , unpub. op. at 7. This erroneous conclusion formed the basis for the court's determination that counsel had provided ineffective assistance. Id.
This is no easy task when cross-examining a child victim. A more aggressive approach might have backfired, but so could a do-nothing strategy of asking minimal questions. See Adams v. Bertrand , 453 F.3d 428, 436 (C.A.7, 2006) (finding it to be sound trial strategy not to aggressively cross-examine an assault victim); Spencer v. Donnelly , 193 F.Supp.2d 718, 734 (W.D.N.Y., 2002) (finding that the failure to cross-examine a child sexual-assault victim with regard to prior inconsistent statements, together with other flaws in counsel's performance, constituted ineffective assistance). Faced with these challenges, defense counsel took a middle path. Cf. People v. Caballero , 184 Mich.App. 636, 640, 459 N.W.2d 80 (1990) (finding that failure to impeach a sexual-assault victim with inconsistent statements was not ineffective where the counsel testified that he feared antagonizing the court by attacking the victim). He gently probed the child victim's recollections and was able to produce a few inconsistencies in the victim's statements. That he failed to produce more does not necessarily mean he was ineffective, nor does the fact that this approach risked revealing some consistencies in the victim's testimony in the preliminary examination and the trial. Counsel has broad discretion to take these types of risks. Pickens , 446 Mich. at 325, 521 N.W.2d 797.
Indeed, counsel appears to have been following accepted practice by keeping his questions simple, asking only whether she remembered saying certain things at the preliminary examination. 1A Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 18:24, p. 361. In doing so, he was "tak[ing] very small steps from one point to the next" and "very gently" attempting to elicit inconsistencies. Id. at 363. And in cueing the victim's recall by using her statements at the preliminary examination, counsel perhaps was responding to the fact that " ‘young children find free recall considerably more difficult than cued-recall and recognition.’ " Keenan, Child Witnesses: Implications of Contemporary Suggestibility Research in a Changing Legal Landscape , 26 Dev Mental Health L 99, 101 (2007) (citation omitted). Thus, it seems that defense counsel employed a well-accepted approach for the questioning of child victims. It cannot be the case that every time such an approach does not work well, counsel has been ineffective.
Given these arguments, before determining whether the risk was reasonable and whether counsel performed deficiently, I would order a Ginther hearing at which he could explain his strategy. Since a defendant "must overcome the strong presumption that counsel's performance was born from a sound trial strategy," Trakhtenberg , 493 Mich. at 52, 826 N.W.2d 136, a Ginther hearing can assist in the court's review of the reasonableness of a counsel's approach by allowing counsel to explain his or her approach to the case. See, e.g., People v. Douglas , 496 Mich. 557, 586, 852 N.W.2d 587 (2014) (noting defense counsel's testimony at the Ginther hearing regarding his trial strategy).
By failing to provide even a Ginther hearing, the majority today appears indifferent to the difficulties faced by defense counsel in cases like this one and the social costs of a new trial. The Court of Appeals’ approach in this case invites courts to sit as armchair quarterbacks, second-guessing counsel's trial strategy in difficult cases and leading to unnecessary retrials. If routinely followed, this will put victims and other witnesses through the stress and anxiety of another trial in many more instances than Strickland requires and will place more strain on our already overburdened courts. For these reasons, I respectfully dissent and would instead order a Ginther hearing to determine whether defense counsel provided unconstitutionally deficient representation.