STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 20, 2018
Plaintiff-Appellee,
v No. 336680
Berrien Circuit Court
KENNETH WADE PENLEY, LC No. 2016-002467-FC
Defendant-Appellant.
Before: SAWYER, P.J., and STEPHENS and GADOLA, JJ.
PER CURIAM.
Defendant appeals by right his jury convictions for one count of first-degree criminal
sexual conduct (CSC), MCL 750.520b, one count of second-degree CSC, MCL 750.520c, and
one count of assault with intent to commit CSC involving sexual penetration, MCL 750.520g.1
On December 21, 2016, defendant was sentenced as a habitual fourth offender, MCL 769.12, to
serve concurrent terms of 180 months to 360 months for the CSC convictions, and 120 months to
360 months for the assault conviction. Defendant filed a Motion for a New Trial or for a
Ginther2 evidentiary hearing on June 22, 2017, arguing that his counsel was constitutionally
ineffective. A Ginther hearing was granted, and held on September 6, 2017. On January 2,
2018, the trial court issued an opinion and order denying the motion for a new trial. Defendant
appeals from that order and we affirm.
I. BACKGROUND
Defendant’s convictions arise from his sexual assault of his son, DK. Defendant’s and
DK’s biological mother, Dana Kiser’s parental rights were terminated to DK when DK was two
years’ old, but DK ended up in defendant’s custody in the fall of 2015 when he was 13 years’ old
because DK’s maternal grandfather thought defendant should be involved in DK’s life. It was
while living in a two-bedroom trailer with defendant, defendant’s mother Iva Penley, and
defendant’s then girlfriend, Melissa Watson, that DK was sexually assaulted by defendant.
1
He was acquitted of the same three charges arising from a second sexual assault with the same
victim.
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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At trial, DK alleged he was assaulted on two separate occasions. He testified that both
instances occurred in the bedroom DK, defendant and defendant’s girlfriend sometimes shared.
DK testified that while he actively struggled against the first attack, he succumbed to the second
without resistance. In both cases, DK testified that the defendant referred to DK as being “gay”
and gripped his genitals, causing him significant pain. DK testified that after the first incident,
he went into the living room and told Iva what defendant had done to him, and that Iva just
smiled. This reaction caused DK not to tell Iva about the second incident. After the first assault,
DK began to experience painful urination, blood in his urine, and testicular pain and swelling.
Dr. Ryan Stringer testified that DK was brought to the emergency room in March 2016 by Dana
and was diagnosed with acute urinary retention and inflammation of the testicle. Dr. Stringer
testified that DK returned to the emergency room the following month with the same complaints.
While antibiotics had been prescribed at the first visit the defendant never filled that prescription.
Dr Stringer again treated DK and prescribed a new round of antibiotics. This time however, Dr.
Stringer filed a report with Children’s Protective Services (CPS) based on his discussions with
Dana regarding defendant’s custody of DK and defendant’s failure to fulfill DK’s prior antibiotic
prescription. Dana and DK’s two older brothers Samuel and Kenneth, testified that after
returning from the second emergency visit, DK disclosed to them that defendant had assaulted
him. DK testified that he decided to disclose the abuse because he thought his family and
doctors would eventually learn the truth and that if he told, he would not have to return to live
with defendant. Dana testified that CPS arrived quickly thereafter and removed DK from her
home. CPS worker Alexandra Heit testified that she referred DK to the Child Assessment Center
(CAC) to be forensically interviewed by Amelia Harper and took him to a local CPS office
where he was interviewed by Officer Wesley Koza. DK was also examined by sexual assault
nurse examiner (SANE) Teresa Yoakum.
Defendant’s trial theory was that DK fabricated the assaults. Defendant, Iva, defendant’s
sister Tammy Wilson, and defendant’s prior girlfriends Watson and Emily Horvath also testified
in defendant’s favor. All of those witnesses denied ever seeing anything untoward between
defendant and DK. Iva specifically denied that DK reported the first assault to her.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A. ISSUE PRESERVATION
An ineffective assistance of counsel claim is preserved when defendant moves for a new
trial or Ginther hearing in the trial court. People v Payne, 285 Mich App 181, 188; 774 NW2d
714 (2009). However, he raises two issues before this Court on appeal that were not presented to
the trial court in those motions nor raised at the hearing. The unpreserved issues were that trial
counsel abandoned potential helpful information and failed to object to defendant being
shackled. Defendant’s ineffective assistance issue is therefore partially preserved.
B. STANDARD OF REVIEW
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
“The trial court must first find the facts and then decide whether those facts constitute a violation
of the defendant’s constitutional right to effective assistance of counsel.” People v Matuszak,
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263 Mich App 42, 48; 687 NW2d 342 (2004). “We review the trial court's factual findings for
clear error. Clear error exists if the reviewing court is left with a definite and firm conviction that
the trial court made a mistake.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011)
(internal citation omitted). “[W]e review de novo questions of constitutional law.” People v
Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). We also “review de novo the trial
court’s determination of prejudice.” People v Dendel, 481 Mich 114, 132 n 18; 748 NW2d 859
(2008). “This Court reviews unpreserved claims of ineffective assistance of counsel for errors
apparent on the record.” People v Johnson, 293 Mich App 79, 90; 808 NW2d 815 (2011).
“A trial court’s decision to grant or deny a motion for a new trial is reviewed for an abuse
of discretion.” People v Blackston, 481 Mich. 451, 460; 751 NW2d 408 (2008) (citation
omitted). A trial court abuses its discretion when its decision falls outside the range of principled
outcomes. People v Terrell, 289 Mich App 553, 559; 797 NW2d 684 (2010).
C. ANALYSIS
Defendant argues nine instances where trial counsel was ineffective. We have
aggregated these claims into three categories: 1) failures to object, 2) unreasonable trial strategy,
and 3) shackling.
To establish an ineffective assistance of counsel, defendant must show “(1) the
performance of his counsel was below an objective standard of reasonableness under prevailing
professional norms and (2) a reasonable probability exists that, in the absence of counsel's
unprofessional errors, the outcome of the proceedings would have been different.” People v
Sabin, 242 Mich App 656, 659; 620 NW2d 19 (2000). “There is a presumption that defense
counsel was effective, and a defendant must overcome the strong presumption that counsel’s
performance was sound trial strategy.” Johnson, 293 Mich App at 90. “Decisions regarding
what evidence to present, whether to call witnesses, and how to question witnesses are presumed
to be matters of trial strategy, as is a decision concerning what evidence to highlight during
closing argument.” People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008) (internal
citations omitted). “We will not substitute our judgment for that of counsel on matters of trial
strategy, nor will we use the benefit of hindsight when assessing counsel’s competence.” Unger,
278 Mich App at 242–243. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
1. FAILURE TO OBJECT
Defendant argues that counsel was ineffective for failing to object to certain testimony
from Dana, DK and Yoakum. Defendant first argues that defense counsel was ineffective for
failing to object to Dana’s testimony that when she and defendant were married, he preferred
anal sex, they had anal sex daily, and that at times, the anal sex was “rough.” We agree. At the
Ginther hearing, trial counsel testified that he should have objected to this testimony and that he
realized this after the fact while still in trial, but at that time did not want to emphasize the point.
He conceded there was no trial strategy in his failure to object. The prosecutor agrees that the
testimony should not have come in, and that an objection from counsel would have just drawn
more attention. The trial court echoed these points, finding in its opinion and order that the
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testimony was improper, but that defense counsel was not ineffective for failing to object
because of the risk of highlighting the testimony.
The testimony was not relevant to any fact at issue, and it did show that defendant had a
“lustful disposition” for anal sex. See People v Sabin, 463 Mich 43, 60–61; 614 NW2d 888
(2000) (“Unlike the courts of other jurisdictions, we have never adopted the so-called ‘lustful
disposition’ rule, which allows the use of other acts for propensity purposes in sex offense
cases.”). Trial counsel, the prosecutor and the trial court reasoned that objecting to the testimony
would have given it more emphasis. It is true that “there are times when it is better not to object
and draw attention to an improper comment,” People v Bahoda, 448 Mich 261, 287 n 54; 531
NW2d 659 (1995). The court ultimately found that while admission of the testimony was
erroneous, the decision not to object was a matter of trial strategy. We cannot conclude that the
trial court’s decision was outside the range of principled outcomes in this case.
Testimony regarding the suicide death of DK’s brother, BK, is the focus of defendant’s
next claim of error. Both DK and Nurse Yoakum testified in this regard. DK testified in
response to the prosecutor’s question as to how many siblings he had, that he had a sibling
named BK whom he forgot to mention on the first day of trial because BK committed suicide a
few years prior at the age of sixteen. Yoakum, the forensic nurse, was questioned about the
extent to which she questioned DK on the exact date and time of the assaults. She responded
that she did not do so because DK shut down after telling her that BK committed suicide and left
a note indicating that the reason was that he did not want to be like defendant. At the Ginther
hearing, trial counsel testified that he discussed the issue of BK’s suicide with defendant before
trial. Trial counsel testified that defendant wanted the jury to know that BK had committed
suicide so that he could explain the context of a recorded jail conversation where he asked Emily
not to tell his son Kenneth that a jacket defendant gave Kenneth had once belonged to BK. Trial
counsel also testified that defendant indicated that he would bring up BK’s suicide to show that
because he had just lost a son, he would not have done anything to lose another child.
Again, the trial court found that counsel was not ineffective in either instance. That
decision was based, in part, on the trial court finding that counsel was credible in reporting the
conversation with the defendant regarding the plan to contextualize the jailhouse recording and
earn empathy for his loss. Secondarily, the trial court found that the strategy was not
unreasonable. We defer to the court’s fact-finding that counsel had discussed the issue with the
defendant and they jointly decided to disclose the suicide. We agree that it was not unreasonable
to attempt to place the jailhouse conversation in a more favorable context and not clear error for
the court to find that this was the agreed upon strategy. The fact that this strategy was not
successful did not render counsel ineffective. People v Stewart (On Remand), 219 Mich App 38,
42; 555 NW2d 715 (1996).
The argument regarding Yoakum goes beyond the fact of the suicide and raises the
inferences as to the reason for the suicide. Defendant argues that Yoakum’s testimony, that it
was reported to her by DK that BK left a note saying that he did not want to be like the
defendant, should have drawn an objection and that the failure to object prejudiced him both at
its initial utterance and was later compounded by prosecutorial arguments in closing. At the
Ginther hearing and here, defendant’s argument is based upon the assertion that the jury inferred
that “did not want to be like” the defendant meant that BK was a victim of assaults like DK. The
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trial court specifically noted that the testimony from Yoakum did not offer any explanation or
further exposition as to the meaning of “not be like” the defendant. Given that there was little
testimony about BK and none about him being assaulted by anyone, we concur with the trial
court that more likely than not the jury surmised the reference was to the defendant’s other
known dysfunctional characteristics. Defendant also claims that counsel’s failure to object to
Nurse Yoakum’s testimony led to the prosecutor making a correlation in closing argument
between being sexually assaulted and having suicidal thoughts, which defendant argues was a
specific reference to BK. The record clearly shows however, that the prosecutor was arguing
about DK’s suicidal ideation and not BK’s. There was no mention of BK Still, defendant argues
that trial counsel should have objected to Nurse Yoakum’s testimony because this later argument
by the prosecutor was irrelevant where DK never testified he was suicidal. Indeed, DK did not
testify that he was suicidal, but defendant fails to recall the testimony from DK’s grandfather
David that after DK’s second counseling appointment, the counselor suggested DK be taken
directly to the hospital because DK reported that he was afraid he was going to hurt himself.
Additionally, as noted by the trial court, the prosecution’s witness on the behavior of sexual
assault victims, referenced suicidal ideation being among the typical post-assault behaviors.
Defendant next argues that trial counsel was ineffective for not objecting to hearsay
testimony from Amelia Harper, Nurse Yoakum and Officer Koza regarding DK’s out-of-court
descriptions of his assault that were later used by the prosecution to bolster DK’s credibility. We
find that this argument was abandoned in the trial court and again on appeal. In the trial court,
Defendant’s Amended Reply Brief in Support of Motion for New trial provided, “this is an area
in which the defense has come to agree with the prosecution.” On appeal, defendant fails to
identify which statements were hearsay and why. For these reasons, we consider defendant’s
hearsay issue abandoned.3 “It is not enough for an appellant in his brief simply to announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority
either to sustain or reject his position.” Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d
388 (1959).
Defendant additionally argues trial counsel was ineffective for not objecting to the
following testimony from the prosecution’s child abuse expert Brooke Rospierski on cross-
examination and redirect examination that defendant argues vouched for DK’s credibility. First
on cross-examination:
Q. Okay. So, based upon your review of the report that you did, the
forensic interview, is there anything to suggest one way of the other whether
consistency was an issue or might be an issue?
A. When I reviewed that report, the Michigan protocol was followed.
[DK] provided free narrative of the sexual abuse that occurred by his father.
3
See e.g. Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959) (“We are told in
the brief that the claimed faulty instructions may be found elsewhere, but we are not told what
these instructions were, why they might be faulty, or precisely where to look for them. This is
insufficient to present these questions for consideration in this forum.”).
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During that interview I thought that he was consistent in his statements. He
provided several sensory details of what had happened to his body. And I
consider that, what he said during that inter – a valid disclosure of sexual contact.
And again, on redirect:
Q. And, again, from reviewing the interview of [DK], he provided a valid
disclosure?
A. Correct.
Q. And why was that?
A. Well, [DK] was able to talk very openly about that interview. You
know, Ms. Parker [sic] asked, “Why are you here today?” and [DK] was able to
walk her through what had occurred. He provided a lot of specific details and
sensory details to that interviewer. At no time did Ms. Harper, you know, put
words in his mouth or ask direct questions; your know, “Did you [sic] dad
sexually abuse you?” Those were valid responses used by her.
At the Ginther hearing, trial counsel testified that he did not object to the testimony
because he understood Rospierski’s use of the word “valid” as relating to whether the procedure
used to gain the disclosure was in accordance with the protocol. The trial court agreed, finding
that trial counsel was not ineffective because there was no need for trial counsel to object.
In a CSC case involving a child, an “expert may not testify with regard to whether the
victim’s allegations are truthful or whether sexual abuse in fact occurred.” People v Garrison,
187 Mich App 657, 658; 468 NW2d 321 (1991). Read in context, Rospierski’s testimony did not
vouch for DK’s disclosure as being truthful. Rospierski’s earlier testimony went over the
different phases of the interview process and one of them was the free narrative where the child
was asked an open-ended question like, “Tell me why you came here to talk to me today.”
Rospierski explained that after the child “talked about everything they’re able to,” the
interviewer would ask clarification questions like, “What happened next?” to prompt details of
the incident. Rospierski testified that the protocol was designed “to not put words into kids’
mouths.” She explained, “I never want to provide them with a response or prompt a false
disclosure, and that’s why we never ask those direct questions that occur, so that we can get the
most information from those children.” The first answer elicited on cross-examination referred
to DK’s narrative as a valid disclosure, and not a false disclosure, because the protocol to obtain
the free narrative was followed. In the redirect portion of Rospierksi’s testimony, she was again
asked whether DK made a valid disclosure and again Rospierski testified that the free narrative
process was followed with an open-ended question that prompted a narrative from DK with
details in his own words. In either instance, Rospierski’s use of the word “valid” referred to the
process by which the disclosure was obtained and not to what DK actually said. Trial counsel’s
decision not to object was objectively reasonable and defendant was not prejudiced by the
testimony because it did not vouch for DK’s credibility.
Defendant last argues that trial counsel was ineffective for failing to object to the
prosecutor’s mischaracterization of medical testimony from Dr. Stringer and Nurse Yoakum in
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her closing argument. At the Ginther hearing, trial counsel testified that he did not object to the
prosecutor’s characterization of medical evidence during closing argument because the closing
argument was just the prosecutor’s interpretation of the evidence and the jury would be told that
the attorney’s arguments were not evidence. The trial court held that defendant’s contention that
the prosecutor mischaracterized the medical evidence from Dr. Stringer was unsupported by the
record and later concluded that if there was a misstatement by the prosecutor, it was minor. The
trial court held that the prosecutor did not misrepresent Nurse Yoakum’s testimony because the
blue and yellow coloring was consistent with bruising. The prosecutor argued in closing:
He told you how his diagnosis was orchitisepidiymo, and how the three
causes of this diagnosis come from some sort of infection, come from some sort
of sexually transmitted disease, or trauma. He told you all how you are able -- or
he’s able to rule out with a high degree of certainty that [DK] did not have an
infection, because there was no evidence of an infection; no fever, no chills. He
went through a whole list about how there was no evidence for that, as well as
with a high degree of certainty you can rule out STD because [DK] tested
negative for that.
So, what we’re left with, ladies and gentlemen, is trauma, and it’s a type of
trauma that Dr. Stringer said can be caused the way that [DK] says it was caused:
by grabbing the testicles and squeezing them. . .
Defendant contends this was a mischaracterization of the evidence because the prosecutor argued
that every other potential cause was eliminated except trauma when Dr. Stringer actually testified
that he found no physical evidence of trauma, that viruses could not be eliminated and that he did
diagnose DK with an infection. We disagree. At trial, the prosecutor asked, “Okay. And we are
able, though, to rule out at least two other causes with high degree of certainty” and Dr. Stringer
answered, “Correct.” Thus, the prosecutor’s later argument in closing, that Dr. Stringer was able
to rule out with a high degree of certainty the two other causes was not a mischaracterization of
the evidence.4 In this case, trial counsel did not have a reason to object and this Court will not
find counsel “ineffective for failing to raise meritless or futile objections.” People v Putman,
309 Mich App 240, 245; 870 NW2d 593 (2015).
Defendant also argues that the prosecutor misrepresented Nurse Yoakum’s testimony to
argue that the yellow color on DK’s penis and blue color on his anus were indicative of bruising
when Nurse Yoakum testified that because the colors were not gone two weeks later when she
reexamined DK, they were not indicative of bruising.
The prosecutor argued in closing:
She also talked about her findings form the examination she did on DK’s
genitals, how she found yellow color noted on his penis, and a bluish color in his
4
In his brief, defendant goes beyond the record to define orchitisepidiymo to conclude that DK
had an infection. That evidence was not produced at trial and will not be considered.
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anal area. She told you how it’s consistent with bruising, but she can’t tell you
when the bruised happened. She can’t tell you that. But, again, that’s another
thing that is consistent with what DK says happened. He says his penis was
grabbed, and he has this yellow coloring on his penis. And he also had this blue
coloring on his anal area, just like DK said happened. It’s from what DK said
happened.
Nurse Yoakum testified that at the first exam, she was unsure whether the yellow color was
bruising. She testified that she reexamined DK to look again at the areas where she documented
discoloration “because typically if it’s bruising, in two weeks that bruising will be gone.” She
testified that the discoloration was still there. Nurse Yoakum did not opine how the yellow and
blue colors came to be and acknowledged on cross-examination that inserting the catheter, as
well as the catheter becoming dislodged could cause bruising on the penis. The reasonable
conclusion drawn from Nurse Yoakum’s testimony was that the yellow and blue coloring on
DK’s genital and anal areas was natural pigment. The prosecutor misrepresented the evidence
when she argued that Nurse Yoakum testified the colors were from bruising. Trial counsel could
have, but was not required, to object to the misrepresentation during the prosecutor’s closing. As
trial counsel stated at the Ginther hearing, the prosecutor’s closing argument was merely
argument and the jury would be instructed that the prosecutor’s arguments were not evidence.
“It is well established that jurors are presumed to follow their instructions.” People v Graves,
458 Mich 476, 486; 581 NW2d 229 (1998). Moreover, this jury asked for all the evidence,
exhibits and recordings at the beginning of its deliberations. Further, while trial counsel’s
decision whether to highlight the misrepresentation in defendant’s closing argument was a matter
of trial strategy, trial counsel did argue that there was no explanation for the discolorations.
Defendant cannot establish that he was prejudiced by the misrepresentation.
The only instance where the trial court’s deference to the trial strategy of the counsel was
erroneous was relative to the testimony regarding the defendant’s sexual relationship with Dana.
Even if counsel’s performance was objectively deficient, defendant must show that trial
counsel’s performance prejudiced him in order to establish ineffective assistance of counsel. “At
issue in a claim of ineffective assistance of counsel is whether counsel’s failure to object to the
improper evidence was constitutionally deficient, and if so whether that failure prejudiced the
defendant.” People v Randolph, 502 Mich 1, 12; 917 NW2d 249 (2018). Prejudice is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 US at 694. Trial counsel’s failure to object to
Dana’s testimony was not outcome determinative. As the trial court mentioned, Dana’s
testimony was brief and not the focus of closing argument. DK gave detailed accounts of being
sexually assaulted by defendant that were corroborated by other family members and buttressed
by medical and mental health professionals. Defendant emphatically denied the allegations. The
jury simply believed DK. Trial counsel’s failure to object to Dana’s testimony does not
undermine confidence in the verdict given the overwhelming amount of other properly admitted
evidence in support of the jury verdict.
2. TRIAL STRATEGY
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Defendant also argues that trial counsel’s “we have nothing to hide” strategy was
unsound because it had defendant introduce a criminal history that was otherwise inadmissible,
abandoned potentially helpful information, and lowered the burden of proof.
Counsel may be found ineffective when his chosen strategy is determined unsound or
unreasonable. People v Dalessandro, 165 Mich App 569, 577–578; 419 NW2d 609 (1988). “A
sound trial strategy is one that is developed in concert with an investigation that is adequately
supported by reasonable professional judgments.” People v Grant, 470 Mich 477, 486; 684
NW2d 686 (2004). “[T]he Sixth Amendment guarantees a range of reasonably competent advice
and a reliable result. It does not guarantee infallible counsel.” Leblanc, 465 Mich at 592. We
also recognize that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by defense counsel or the range of legitimate
decisions regarding how best to represent a criminal defendant.” Strickland, 466 US at 688-689.
Defendant specifically points to trial counsel’s purposeful admission of prior convictions
from 1990, 1993, 2005, and 2011, and argues that they should have been excluded under MRE
609.5 At the Ginther hearing, trial counsel testified that his decision to admit these convictions
was strategic to show that defendant had never been convicted of a sex crime. Trial counsel’s
decision to introduce defendant’s prior criminal history may constitute a matter of trial strategy.
People v Murph, 185 Mich App 476, 479; 463 NW2d 156 (1990), mod on other grounds 190
Mich App 707 (1991). Further, admitting guilt to some crimes, while maintaining innocence to
others has been recognized by this Court as a risky but permissible trial tactic to improve
defendant’s credibility. People v Wise, 134 Mich App 82, 98; 351 NW2d 255 (1984). Given the
circumstances, trial counsel’s strategy was not unreasonable. The termination of defendant’s
parental rights and his fractured relationship with his children was a matter of some relevance to
this case and the termination was, in part occasioned by defendant’s incarcerations. Allowing
evidence of convictions that were otherwise inadmissible was a risky strategy. However, given
the fact that his criminal history was likely to be referenced, we cannot say that the trial court’s
determination that it was not unreasonable to, at least demonstrate that defendant had no history
of criminal sexual assault was outside the range of principled outcomes. It is a closer question as
to how this affected the outcome of the trial. But, given that the defense was able to prevail on
one of the two sexual assault counts, it is likely that the outcome of the trial would not have been
different had counsel chosen not to introduce defendant’s prior convictions.
Defendant also faults counsel for failing to object to testimony from DK that defendant
had been in prison before, and from Tammy that defendant was violent toward his past
girlfriends. Defendant further complains that the court instructed the jury that it could consider
5
MRE 609(c) reads: “Evidence of a conviction under this rule is not admissible if a period of
more than ten years has elapsed since the date of the conviction or of the release of the witness
from the confinement imposed for that conviction, whichever is the later date.”; See also People
v Allen, 429 Mich 558, 596; 420 NW2d 499 (1988) (“[P]rior convictions for non-theft crimes
which do not contain elements of dishonesty or false statement should never be admitted into
evidence.”).
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defendant’s past convictions when determining whether to believe defendant or not. At the
Ginther hearing, trial counsel’s reason for allowing this testimony was again, because his
concern was only showing the jury that defendant did not have a criminal history involving
sexual assault. It is quite likely that the age of the domestic violence would have made it
inadmissible however, it is clear that trial counsel failed to consider even the impact of the
domestic violence issue. Counsel did not appreciate the similarity between the CSC charges and
prior domestic violence conviction as assaults against a domestic relative, and this was below the
acceptable standard of performance. There was no strategy involved. However, the testimony
was limited, not the subject of argument and not likely a significant factor in the outcome of the
case.
Defendant also argues that trial counsel was ineffective for abandoning potential helpful
information that DK had twice previously claimed he was sexually assaulted and those
allegations were proven false. Defendant is referring to the prosecution’s preemptive Motion in
Limine to Exclude Evidence of Victim’s Sexual Conduct under MCL 750.520j where defendant
had not filed a motion yet to admit such evidence, and defendant’s answer “that on at least two
prior occasions the victim has claimed to have been sexually assaulted and it was determine jis
[sic] allegations were false.” A hearing was held on October 13, 2016, where defense counsel
stated, “I investigated part of that and it was not able to be substantiated, so I’m not gonna make
that a big issue.” Therefore, the court granted the prosecutor’s motion.
“A defendant is entitled to have his counsel prepare, investigate, and present all
substantial defenses.” People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990).
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. In
other words, counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. [Wiggins v
Smith, 539 US 510, 521–522; 123 S Ct 2527; 156 L Ed 2d 471 (2003), quoting
Strickland, 466 US at 690–691.]
Our review of this claim is limited to errors apparent on the record, because it was not included
in defendant’s motion for a new trial or Ginther hearing. Johnson, 293 Mich App at 90. From
the record, it is clear that trial counsel did not abandon potentially helpful information, but that
he investigated the allegations and determined they were not substantiated.
Defendant lastly argues that the following argument from trial counsel’s closing
argument lowered the burden of proof:
Let’s – when you really boil this down to the trial itself – and I’m trying to make
it easy – and by the way, I limited myself to 45 minutes … The real issue, ladies
and gentlemen of the jury, is whether you believe [DK]. That’s the real issue. All
the rest of this stuff is a smoke screen, when it really comes down to it. If you
don’t believe [DK] then there’s no way you can convict my client of anything.
The only way you can convict my client is if you believed what [DK] said, and
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we don’t believe there’s any evidence to suggest really that [DK] was telling the
truth.
Defendant argues that trial counsel instead should have emphasized the concept of reasonable
doubt to the jury. Trial counsel was free to argue defendant’s theory of the case in closing
argument. Some attorneys argue reasonable doubt; some attorneys argue the strength of the
evidence. Counsel’s decisions regarding “what evidence to highlight during closing argument”
are presumed to be matters of trial strategy that this Court will not second-guess. Putman, 309
Mich App at 248.
Defendant’s other numbered arguments related to the depth or lack of treatment trial
counsel gave to issues in closing argument do not establish ineffective assistance counsel.
Rather, defendant argues what counsel could have done differently. “There are countless ways
to provide effective assistance,” and “[e]ven the best criminal defense attorneys would not
defend a particular client in the same way.” Strickland, 466 US at 689.
3. SHACKLING
Defendant also argues that trial counsel was ineffective for not objecting to defendant
being shackled. Our review of this claim is limited to errors apparent on the record, because it
was not preserved below in defendant’s motion for a new trial or Ginther hearing. Johnson, 293
Mich App at 90.
“In general, freedom from shackling of a defendant during trial has long been recognized
as an important component of a fair and impartial trial.” People v Moore, 164 Mich App 378,
384; 417 NW2d 508 (1987), judgment mod and remanded 433 Mich 851; 442 NW2d 638
(1989). “A court may order shackling of a defendant only on a finding supported by record
evidence that shackling is necessary to prevent escape, injury to persons in the courtroom, or to
maintain order.” People v Dunn, 446 Mich 409, 411; 521 NW2d 255 (1994). A “defendant is
not prejudiced if the jury was unable to see the shackles on the defendant.” Horn, 279 Mich App
at 36-37. Even “when jurors inadvertently see a defendant in shackles, there still must be some
showing that the defendant was prejudiced.” Id. at 36.
Defendant waived this issue at trial. Defendant was in leg restraints that were chained to
the floor and the court arranged for defendant to be taken out of the courtroom before the jury
entered and exited so as not to see defendant’s restraints. On the fourth day of trial, defense
counsel surprised the court by announcing that defendant would testify. The court called for a
short break, and the following colloquy began:
Defense Counsel. Your Honor, I don’t have a problem with it. He admits
he’s in jail; he’s in jail now. We aren’t trying to hide that.
The Court. All right.
Defense Counsel. So, I – I have no problem with that.
The Court. All right.
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Defense Counsel. So – so, just unchain him so he can go --
Defendant. Yeah.
It is clear from this record that defendant waived his right not to be shackled before the jury.
4. CUMULATIVE ERROR
“The cumulative effect of several minor errors may warrant reversal where the individual
errors would not.” People v Ackerman, 257 Mich App 434, 454; 669 NW2d 818 (2003). “In
order to reverse on the grounds of cumulative error, the errors at issue must be of consequence.
In other words, the effect of the errors must have been seriously prejudicial in order to warrant a
finding that defendant was denied a fair trial.” People v Knapp, 244 Mich App 361, 388; 624
NW2d 227 (2001) (internal citation omitted). We agreed with only two of defendant’s nine
claims of ineffective assistance and for those claims, determined that defendant was not
prejudiced. Defendant’s cumulative error argument fails.
The trial court’s decision to deny defendant a new trial based on ineffective assistance of
counsel was not an abuse of discretion. The trial court’s finding that trial counsel was not
ineffective was within the range of principled outcomes given that trial counsel provided
ineffective assistance in only one of the nine instances argued, and that even in that one instance,
the error was not outcome determinative.
III. PROSECUTORIAL MISCONDUCT
A. ISSUE PRESERVATION
Claims of prosecutorial misconduct are preserved by “contemporaneous objection or
request for a curative instruction in regard to any alleged error.” People v Brown, 279 Mich App
116, 134; 755 NW2d 664 (2008). Defendant’s claims are not preserved because he did not
object at trial.
B. STANDARD OF REVIEW
Unpreserved claims are reviewed for plain error affecting defendant’s substantial rights.
People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). “Reversal is warranted only
when the ... error resulted in the conviction of an actually innocent defendant or when an error
seriously affected the fairness, integrity or public reputation of the judicial proceeding
independent of the defendant’s innocence.” People v Carines, 460 Mich 750, 763-764; 597
NW2d 130 (1999) (citations and internal quotation marks omitted).
C. ANALYSIS
“Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “[W]e consider
issues of prosecutorial misconduct on a case-by-case basis by examining the record and
evaluating the remarks in context, and in light of defendant’s arguments.” People v Thomas, 260
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Mich App 450, 454; 678 NW2d 631 (2004). “Prosecutors are typically afforded great latitude
regarding their arguments and conduct at trial.” Unger, 278 Mich App at 236. They are “free to
argue the evidence and all reasonable inferences from the evidence as it relates to [their] theory
of the case.” People v Gonzalez, 178 Mich App 526, 535; 444 NW2d 228 (1989). Further “this
Court does not believe a case should be reversed merely because a few technically improper
questions are asked. In fact, it is hard to find a trial where every question is exactly proper. In
order to require a reversal some prejudice or patterns of eliciting inadmissible testimony must be
shown.” People v Hooper, 50 Mich App 186, 196; 212 NW2d 786 (1973). “Appellate review of
prosecutorial remarks is generally precluded absent an objection because the trial court was
deprived of an opportunity to cure the error.” People v Bass (On Rehearing), 223 Mich App
241, 246; 581 NW2d 1 (1997). However, “reversal is warranted in the absence of an objection if
a curative instruction could not have eliminated the prejudicial effect of the remarks or where
failure to review the issue would result in a miscarriage of justice.” Id.
Defendant repeats much of the same claims of error from his ineffective assistance of
counsel claim, this time couched as prosecutorial misconduct. Defendant first argues that the
prosecutor engaged in misconduct when she elicited testimony from Dana regarding defendant’s
sexual preference for anal sex. The prosecutor agrees that the testimony was improper and
should not have been admitted in the context of defendant’s ineffective assistance of counsel
claim, but did not address the testimony in regards to whether it was prosecutorial misconduct to
elicit the testimony. Regardless, we find that it was misconduct. A “prosecutor should not use
arguments calculated to inflame the passions or prejudices of the jury.” Bahoda, 448 Mich at
298. Here, the prosecutor purposely elicited the testimony on direct exam and did not argue that
it was relevant to any fact at issue. Despite its flagrancy, the testimony did not deny defendant a
fair trial. The evidence of defendant’s guilt was substantial. DK provided a detailed description
of being assaulted that was corroborated by the spontaneous statements he made to family
members. Medical testimony confirmed that he sought treatment for the pain he complained
resulted from the assaults. Defendant was recorded asking witnesses to lie for him. Dana’s
testimony was brief in the context of the whole trial. Further, a proper objection could have
cured any prejudicial effect from the testimony.
Defendant next argues the prosecutor engaged in prosecutorial misconduct for placing the
issue of BK’s suicide note before the jury. BK’s suicide was mentioned by DK and Yoakum. In
both those instances, their testimony regarding BK was unresponsive to the question posed. In
DK’s case, the prosecution asked if he had any other siblings and in Yoakum’s case the defense
asked whether DK told her when the incidents occurred. “Unresponsive answers from witnesses
are generally not prosecutorial error.” People v Jackson, 313 Mich App 409, 427; 884 NW2d
297 (2015). In any event, defendant cannot show prejudice when he planned to introduce the
same evidence to his advantage to explain the context of a recorded jail phone call and the reason
why he would not sexually assault DK after having just lost a son.
Defendant also argues that the prosecutor engaged in prosecutorial misconduct when she
placed the testimony of Harper, Nurse Yoakum and Officer Koza before the jury because it was
hearsay and vouched for DK’s credibility. Defendant’s argument for this issue is three
sentences: “The prosecution tried this case as if the general rule on hearsay did not apply. The is
[sic] covered by People v. Douglas and People v. Shaw. In its closing, the prosecution used the
hearsay to bolster DK’s credibility (TT IV 960-968, 997).” There is no discussion of the merits
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of the error or how defendant was prejudiced. “It is axiomatic that where a party fails to brief the
merits of an allegation of error, the issue is deemed abandoned by this Court.” Prince v
MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999). In any event, defendant cannot
establish that he was prejudiced by the hearsay testimony when it was a vital part of his trial
strategy for the jury to hear DK’s multiple accounts of the assaults in order to argue their
inconsistencies and therefore attack DK’s credibility.
Defendant additionally argues it was prosecutorial misconduct for the prosecutor to
misrepresent Dr. Stringer’s testimony to implicate that DK’s urinary problems and genital issues
were the result of trauma. “[A] prosecutor may not argue facts not in evidence or
mischaracterize the evidence presented, the prosecutor may argue reasonable inferences from the
evidence.” People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001). As stated in
relation to defendant’s ineffective assistance of counsel claim, the prosecutor did not
misrepresent Dr. Stringer’s testimony when the doctor testified that the jury could rule out the
other two causes with a high degree of certainty.
We similarly reject defendant’s cumulative error argument on the basis that there are no
errors to aggregate.
IV. JURY COMPROMISE
A. STANDARD OF REVIEW
Defendant argued that the jury verdict was compromised as a basis for the trial court to
grant him a new trial. We review a trial court’s decision on a motion for a new trial for an abuse
of discretion. People v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012); People v Lemmon, 456
Mich 625, 648 n 27; 576 NW2d 129 (1998). “An abuse of discretion occurs when the trial court
renders a decision falling outside the range of principled decisions.” Rao, 491 Mich at 279.
“This Court reviews de novo questions regarding inconsistent verdicts, which are constitutional
issues.” People v Russell, 297 Mich App 707, 722; 825 NW2d 623 (2012).
B. ANALYSIS
Defendant argues that his verdicts were inconsistent because the jury acquitted him of
one of the alleged assaults and found him guilty of the other. He argues that the verdict was
achieved as the result of compromise for the same reason. He additionally argues that the
inconsistent verdicts were the result of juror confusion because the jury’s request for a time line
during deliberations indicated that it was confused over the offense dates. The trial court’s
opinion and order after the Ginther hearing did not address defendant’s challenge to the jury
verdict.
Inconsistent verdicts, where the “acquittal of one charge renders it seemingly impossible
for the jury to have found the existence of all elements of the charge on which it convicts,” may
result from jury compromise, jury confusion or leniency. People v Davis, 320 Mich App 484,
491; 905 NW2d 482 (2017), app gtd in part 501 Mich 1066; 910 NW2d 301 (2018); People v
Lewis, 415 Mich 443, 450–452; 330 NW2d 16 (1982). Reversal is warranted in the case of
compromise or confusion. Lewis, 415 Mich at 451-452, 450 n 9. The prejudice posed from an
inconsistent verdict resulting from jury compromise is the risk that some of the jurors did not
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believe beyond a reasonable doubt that defendant committed the underlying offense, but
nonetheless agreed to convict him in exchange for defendant’s acquittal of other charges. Lewis,
415 Mich at 451–452. In the case of confusion, when there is evidence that “the jury was
confused, did not understand the instructions, and did not know what it was doing,” both verdicts
are tainted. Id. at 450 n 9. “If the jury was lenient, the defendant was not prejudiced by the
inconsistency in the verdicts and has no cause for complaint.” Id. at 451. “[T]he mercy-
dispensing power of the jury may serve to release a defendant from some of the consequences of
his act without absolving him of all responsibility.” People v Vaughn, 409 Mich 463, 466; 295
NW2d 354 (1980).
“Juries are not held to any rules of logic nor are they required to explain their decisions.”
Id. “Because the jury is the sole judge of all the facts, it can choose, without any apparent logical
basis, what to believe and what to disbelieve.” People v Chamblis, 395 Mich 408, 420; 236
NW2d 473 (1975). “Consistency in the verdict is not necessary. Each count in an indictment is
regarded as if it was a separate indictment.” Dunn v United States, 284 US 390, 393; 52 S Ct
189; 76 L Ed 356 (1932) (citations omitted.) “Narrowly viewed, a jury’s acquittal on one charge
in a multi-count indictment signals no more than the jurors’ agreement not to convict on that
charge for whatever reason satisfactory to them.” People v Lewis, 415 Mich 443, 450; 330
NW2d 16 (1982).
We are not persuaded that defendant’s verdicts were the result of jury compromise. In
Graves, our Supreme Court noted the following “sufficiently persuasive indicia of jury
compromise” that if present, might warrant reversal in certain circumstances:
1) logically irreconcilable verdicts are returned, or 2) there is clear record
evidence of unresolved jury confusion, or 3) . . . where a defendant is convicted
of the next-lesser offense after the improperly submitted greater offense. [Graves,
458 Mich at 488].
Here, the verdicts are not so logically irreconcilable that reversal of defendant’s convictions is
warranted. There were two independent incidents of assault and the jury was instructed to
consider each count separately. The jury could have believed that there was not enough evidence
of the second assault.
Additionally, there was no evidence that the jury was confused. Defendant’s only
evidence that the jury was confused is that it asked for a “time line sheet.” Defendant infers the
jury was confused about the offense dates from this request. Defendant’s argument is pure
conjecture and not supported by the record. Within minutes of retiring to the jury room, the jury
requested not only the time line sheet, but “all evidence, time line sheet, and sound files,
pictures, exhibits.” This is a sign of a jury intent on following its charge, not one that was
confused or misled.
Affirmed.
/s/ David H. Sawyer
/s/ Cynthia Diane Stephens
/s/ Michael F. Gadola
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