Order Michigan Supreme Court
Lansing, Michigan
December 11, 2020 Bridget M. McCormack,
Chief Justice
158764 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
In re CHRISTOPHER ROSS, JR., Minor Richard H. Bernstein
_________________________________________ Elizabeth T. Clement
Megan K. Cavanagh,
Justices
PEOPLE OF THE STATE OF MICHIGAN,
Petitioner-Appellee,
v SC: 158764
COA: 331096
Oakland CC Family Div:
CHRISTOPHER ROSS, JR., 2014-826056-DL
Respondent-Appellant.
_________________________________________/
On October 8, 2020, the Court heard oral argument on the application for leave to
appeal the August 21, 2018 judgment of the Court of Appeals. On order of the Court, the
application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal,
we REVERSE the judgment of the Court of Appeals and REMAND this case to the
Oakland Circuit Court. The Court of Appeals erred by reversing the trial court’s decision
to grant the respondent a new trial. As the trial court correctly decided, the respondent
received ineffective assistance of counsel under Strickland v Washington, 466 US 668,
687 (1984). Because “reasonably effective assistance must be based on professional
decisions and informed legal choices can be made only after investigation of options,”
counsel has a duty to conduct a reasonable investigation into a defendant’s case. Id. at
680. This duty to investigate includes the pursuit of all leads regarding inconsistencies
with a complainant’s allegations, as the instant trial counsel recognized at the evidentiary
hearing held pursuant to People v Ginther, 390 Mich 436 (1973). See People v Grant,
470 Mich 477, 487 (2004). Here, trial counsel failed to further investigate and
substantiate the respondent’s claim that the complainant allowed the respondent to use
her cellular phone to call his mother after the alleged sexual assault occurred. Although
counsel testified at the evidentiary hearing that the phone records initially provided to
him by the respondent’s mother did not identically match the details of the respondent’s
narrative, counsel was put on notice to investigate the matter further through the
respondent’s assertions regarding the phone calls, the respondent’s mother’s assertions
regarding the phone calls, and the phone records that were received before trial that
demonstrated that the respondent’s mother called the complainant three times on the
afternoon in question. Further investigation would have revealed, as it did during the
evidentiary hearing, that a call was made from the complainant’s phone to the
respondent’s mother’s phone, prompting the three calls in return.
Given that the trial was essentially a credibility contest, counsel’s failure to
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investigate an issue that would have bolstered the respondent’s credibility and revealed
an inconsistency in the complainant’s narrative was not—as the Court of Appeals
erroneously determined—a strategic decision, but instead a fundamental abdication of his
duty to conduct a complete investigation. Had counsel investigated further and the phone
call evidence been admitted at trial, it is probable that the result of the proceeding would
have been different. We REMAND this case to the Oakland Circuit Court for further
proceedings consistent with this order. In all other respects, leave to appeal is DENIED,
because we are not persuaded that the remaining questions presented should be reviewed
by this Court.
ZAHRA, J. (concurring in part and dissenting in part).
I disagree with this Court’s peremptory order that in part concludes that “the Court
of Appeals erred by reversing the trial court’s decision to grant the respondent a new
trial.”1 I agree with the Court that the Court of Appeals’ judgment should be reversed;
but only because, in my judgment, the lower court record does not provide a basis for any
appellate review. Appellate proceedings in this matter should be reserved until the trial
court makes the constitutionally required findings to conclude that defense counsel
provided ineffective counsel. Absent these required findings, a peremptory order from
this Court begets the same error made by the Court of Appeals’ opinions and judgment, a
component of this case that prompted our interest in and consideration of this case.
The trial court ruled:
[J]ust as the failure to file a witness list falls below an objective reasonable
1
The Court ordered oral argument on the application on the following four issues:
(1) whether appeals from juvenile adjudications for criminal offenses are
governed by the time limits for civil cases or by the time limits for criminal
cases, see MCR 7.305(C)(2); (2) whether the standard for granting a new
trial in a juvenile delinquency case is the same as the standard for granting
a new trial in a criminal case, compare MCR 3.992(A) with MCR 6.431(B);
(3) whether juveniles who claim a deprivation of their due process right to
counsel must satisfy the two-part test set forth in Strickland v Washington,
466 US 668, 687 (1984); and (4) whether the Court of Appeals erred in
reversing the trial court’s decision to grant the respondent a new trial based
on evidence that trial counsel did not obtain or present. [In re Ross, Minor,
505 Mich 964, 964-965 (2020).]
The Court’s dispositional order only addresses the fourth issue.
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standard,2 so too is the issue of failing to properly have evidence admitted
at trial. More crucial is the fact that such evidence, i.e., Mrs. Ross’s cell
phone records, could have been obtained prior to trial through
discovery . . . .
In regard to the trial court’s court ruling that “the failure to file a witness list falls
below an objective reasonable standard, as no witness was otherwise prevented from
testifying at trial based on [defense counsel’s] failure to file a witness list,” this ruling is
ultimately correct but significantly flawed. If, as the court concluded, “no witness was
otherwise prevented from testifying at trial based on [defense counsel’s] failure to file a
witness list,” defense counsel’s performance cannot in this instance be deemed to have
fallen short of an objectively reasonable standard of performance. The trial court
expressly incorporated this flawed holding in concluding that, “as previously discussed,
just as the failure to file a witness list falls below an objective reasonable standard, so too
is the issue of failing to properly have evidence admitted at trial. More crucial is the fact
that such evidence, i.e., Mrs. Ross’s cell phone records, could have been obtained prior to
trial through discovery . . . .”
Here, defense counsel and his associate attorney undertook a difficult case. In my
review, the complainant was entirely credible throughout investigations by the police and
the panoply of family court proceedings. Respondent presents an entirely concocted and
incredible narrative based on phone records he obviously had in his possession before the
2
In this respect, the trial court held:
Regarding Respondent’s allegation that his trial counsel, Mr. Daniel
Randazzo, was ineffective for failure to file a witness list, the Court finds
that Respondent is not entitled to a new trial on that issue.
The evidence from trial and the evidentiary remand hearing is clear
that there’s no dispute that Mr. Randazzo failed to timely file a witness list.
The Court agrees with Respondent that that fact alone satisfies the first
prong, that Mr. Randazzo’s performance fell below an objectively
reasonable standard of performance, and nor can that failure to file a
witness list be considered trial strategy. However, though the Respondent
disagrees, the Court record is also clear that the error was harmless, as no
witness was otherwise prevented from testifying at trial based on Mr.
Randazzo’s failure to file a witness list.
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family court adjudication, and he admittedly “reviewed” these records before his
adjudication. Respondent testified at the adjudication that he reviewed phone records of
three calls between two cellular phones all placed within one minute, 4:31 p.m. Maybe
this could be coincidence, but there is no evidence to suggest that either of these cellular
phones had previously placed a call to the other. Clearly, respondent had in his
possession and reviewed the very phone records he now claims his defense counsel
should have discovered through further investigation. Thus, while I agree with the Court
that appellate courts tread on thin ice when making findings to remedy the lack of a trial
court’s findings required by law, I nonetheless maintain that the only appropriate remedy
is to remand and require the trial court to make requisite constitutional findings to support
its decision that defense counsel’s performance fell below an objectively reasonable
standard.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 11, 2020
t1208
Clerk