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People v. Craige

STATE OF MICHIGAN COURT OF APPEALS
Jul 18, 2017
No. 333018 (Mich. Ct. App. Jul. 18, 2017)

Opinion

No. 333018

07-18-2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BERNARD JOHN CRAIGE, Defendant-Appellant.


UNPUBLISHED Gratiot Circuit Court
LC No. 13-006802-FC Before: SERVITTO, P.J., and MURRAY and BORRELLO, JJ. PER CURIAM.

Defendant appeals as of right his jury trial convictions of one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(b)(ii) (multiple variables), and two counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(d), for alleged criminal sexual conduct with his biological daughter. The trial court sentenced defendant to concurrent terms of 15 to 50 years' imprisonment for the CSC-I count and 7 to 15 years' imprisonment for each CSC-III count. We affirm.

This case returns to us after we remanded for a Ginther hearing. In a previous opinion, we ruled that there was a reasonable probability that the proposed testimony of Nancy Craige, now Nancy Hoffman, would have led to a different result if credited by the jury. People v Craige, unpublished opinion per curiam of the Court of Appeals, issued July 30, 2015 (Docket No. 321233). Hoffman, whom defense counsel did not call as a witness, is defendant's ex-wife and was the complainant's step-mother. Hoffman averred in an affidavit that she would have testified, contrary to the complainant's testimony, "that I did not tell the victim that I knew all along Defendant was abusing her, and in fact, I responded to the victim with the question, 'are you sure?' " Hoffman also averred she would have testified "that I heard the victim, prior to her disclosing Defendant's abuse, state that she was afraid her step-father would get out of prison and hurt her because she did not tell the truth regarding the allegations that he sexually abused her." Lastly, Hoffman averred she would have testified "that I heard the victim threaten the Defendant that she was 'going to get him for this' when he told her she could not live with her boyfriend."

On remand, the trial court conducted an evidentiary hearing at which it heard testimony from Hoffman and defense counsel. Defense counsel denied that Hoffman had told him the substance of her proposed testimony, while Hoffman maintained that she did. Defense counsel explained that he chose not to call Hoffman because she was a "live wire" and "she had given me the impression that she may lie and she had given conflicting statements about certain things." He further testified that Hoffman did not want to hurt defendant's case with her testimony and he was concerned that her testimony may do so. Defense counsel specifically maintained that his notes showed that Hoffman had stated that she would deny statements she had made to the police. Hoffman denied that she told counsel she would lie on the witness stand.

At the conclusion of the testimony, the trial court issued an opinion and order in which it indicated that it had considered Hoffman's proposed testimony and found that it would have had "limited value" at defendant's trial. The trial court also discussed defense counsel's reasons for not calling Hoffman, and concluded that defense counsel "made an informed decision that calling Ms. Hoffman [was] fraught with more potential problems than benefits for [defendant]." The trial court was also "satisfied" that defense counsel's decision to not call Hoffman did not prejudice defendant. Accordingly, the trial court determined that defendant had failed to show that he was denied the effective assistance of counsel.

"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law. A judge first must find the facts, and then must decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel." People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). "A trial court's findings of fact . . . are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo." People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008), citing People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). A trial's court credibility determination is reviewed for clear error. People v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008). "Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made." People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480 (2002) citing People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993) (opinion by Griffin, J.).

"Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004), citing People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). "To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that his attorney's performance was objectively unreasonable in light of prevailing professional norms; and (2) that he was prejudiced by the deficient performance." People v Walker, 497 Mich 894, 895; 855 NW2d 744 (2014), citing People v Carbin, 463 Mich 590, 599-600, 623 NW2d 884 (2001). In order to demonstrate prejudice, "the defendant must show the existence of a reasonable probability that, but for counsel's error, the result of the proceeding would have been different." People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), citing Strickland v Washington, 466 US 668; 104 SCt 2052; 80 LEd2d 674 (1984).

"Decisions regarding whether to call or question a witness are presumed to be matters of trial strategy." People v Putnam, 309 Mich App 240, 248; 870 NW2d 593 (2015), citing People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). "This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel's competence with the benefit of hindsight." People v Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001), citing People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987). "But 'a court cannot insulate the review of counsel's performance by calling it trial strategy'; counsel's strategy must be sound, and the decisions as to it objectively reasonable." People v Ackley, 497 Mich 381, 388-389; 870 NW2d 858 (2015), quoting People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). "Trial counsel's failure to a call a witness is only considered ineffective assistance if it deprived the defendant of a substantial defense. A substantial defense is one that could have affected the outcome of the trial." Putnam, 309 Mich App at 248 (internal citation omitted).

Defendant first argues that the trial court made "the completely opposite determination that this Court made" with regard to the impact Hoffman's testimony would have had at trial. Indeed, we found that Hoffman denying that she "knew all along" that defendant was abusing the complainant, "JS", "would have contradicted JS's testimony and it would have communicated to the jury that JS's stepmother, someone who had helped raise JS and who knew her well, was distrustful of her." Craige, unpub op at 6. But, as the trial court reasoned, "[g]iven that the testimony of both [JS] and [Hoffman] established that [Hoffman] recommended tape-recording conversations to 'get evidence' since without it 'nobody is going to believe you,' the absence of her statement 'are you sure' is of little significance." According to the trial court, JS's testimony that Hoffman told her she needed evidence of defendant's sexual abuse sufficiently indicated to the jury that JS was not regarded as trustworthy. JS's own testimony clearly indicated to the jury that at least Hoffman found her untrustworthy and that others likely viewed her in the same manner.

The trial court also addressed the value of Hoffman's testimony that she heard JS tell defendant "I will get you for this and I will get you in trouble" after defendant told JS she could not live with her boyfriend. We previously reasoned that "[t]his testimony would have corroborated defendant's contention that JS fabricated the allegations against him out of anger after he would not let her live with her boyfriend." Craige, unpub op at 6-7. We noted that "[a]lthough defendant testified to the same effect, corroboration undoubtedly would have been helpful." The trial court stated, "Since [defendant] was a party to the conversation he obviously could have testified to such a statement." We agree that, given the remaining evidence, Hoffman's testimony which would have merely corroborated defendant's testimony, was of negligible value.

The trial court did not disagree that Hoffman's testimony that JS said she made false accusations against her step-father would have been valuable to the defense. Instead, the trial accepted defense counsel's statement that Hoffman did not share that information with him. Defense counsel's notes showed that he called Hoffman before the trial to discuss "7/9/12 prior case [JS's step-father] out of jail." However, this written note does not establish that Hoffman told counsel about JS making false statements about her step-father. Rather, the note indicates that counsel and Hoffman discussed the step-father getting out of jail. And, while defense counsel did testify that JS's family members "mentioned a previous case that [JS] and her sister were victims and they claimed that [JS] lied about that incident" there is no indication that the family members who advised him of this fact included Hoffman. Thus, the trial court did not clearly err in finding defense counsel more credible than Hoffman on this matter.

Defendant also takes issue with the trial court's analysis of the reasons defense counsel may not have called Hoffman as a witness. Because defense counsel explained why he decided to not call Hoffman as a witness, we choose not to address the other reasons identified by the trial court as possible justifications for not calling Hoffman. Defense counsel said that Hoffman was a "live wire" and that he was concerned that she may lie on the witness stand. Again, not calling a witness can be trial strategy, Putnam, 309 Mich App at 248. And, "regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." People v Dendel, 481 Mich 114, 130; 748 NW2d 859, amended 481 Mich 1201; 750 NW2d 165 (2008); MCR 2.613(C). The trial court clearly laid out why he found defense counsel to be a more credible witness than Hoffman. We do not find that determination to be clearly erroneous. Accordingly, defendant has not carried his burden of demonstrating ineffective assistance of counsel.

Affirmed.

/s/ Deborah A. Servitto

/s/ Christopher M. Murray

/s/ Stephen L. Borrello

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


Summaries of

People v. Craige

STATE OF MICHIGAN COURT OF APPEALS
Jul 18, 2017
No. 333018 (Mich. Ct. App. Jul. 18, 2017)
Case details for

People v. Craige

Case Details

Full title:PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BERNARD JOHN…

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Jul 18, 2017

Citations

No. 333018 (Mich. Ct. App. Jul. 18, 2017)