People v. Grant

Michigan Supreme Court
Lansing, Michigan

Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 15, 2004

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 119500

WILLIAM COLE GRANT,

Defendant-Appellant.
_______________________________

BEFORE THE ENTIRE BENCH

KELLY, J.

This is a claim of ineffective assistance of counsel.

Defendant was convicted by a jury on three counts of

criminal sexual conduct involving two sisters. His

convictions were based largely on testimony of the older

girl who stated that defendant had severely injured her

during an incident of sexual misconduct. Defendant

maintained that he was innocent and that the injury this

girl sustained was caused by a bicycle accident, as she had

originally related.

Defendant’s counsel failed to adequately interview

members of the family who were present on the day of the
incident. He did not determine if in fact the alleged

bicycle accident had caused the older girl’s injury. On

the basis of well-established law, we hold that counsel’s

failure to investigate and substantiate defendant’s primary

defense was not a strategic decision, erroneous only in

hindsight. It was a fundamental abdication of his duty to

conduct a complete investigation, and it restricted his

ability to make reasonable professional judgments and put

forth his case. As a consequence, defendant was deprived

of a substantial defense and of the effective assistance of

counsel. We reverse the convictions and remand the case

for a new trial.

I

The facts in this case were developed at trial and

through several posttrial hearings before the trial court.1

A detailed understanding of them and when they were

presented is necessary to fully evaluate the appeal. At

the time of the alleged incident, defendant was living with

his girlfriend at her parents’ home. The sisters are his

girlfriend’s nieces. They alleged that defendant sexually

1
Chief Justice Corrigan accuses us of “rel[ying] on
factual inaccuracies.” Post at 1. Yet, she fails to
identify any of them. We believe that the record relied on
here has been accurately stated.

2

abused them on two occasions. The first time was at a

birthday party for their grandfather, when the older of

them was about eight years old. She alleged that defendant

forced her to have intercourse with him. The second

allegation was that defendant sexually touched both girls

in a closet about a year later.

On the day of the first alleged incident, the older

girl was severely injured. She suffered a tear from the

rear of her vaginal opening to her anus. She told her

family and her treating doctor that she had injured herself

in a bicycle accident. The examining doctor described the

injury as a “clean” tear, consistent with a straddle

injury, rather than a ragged tear consistent with abuse.

This doctor prepared an initial report of his examination

that included the older girl’s statements. He prepared a

subsequent report that concluded that, alternatively, her

injury could have been caused by sexual abuse.

After the second alleged incident, which occurred

about a year later, the older girl told a friend that

defendant had had intercourse with her. The friend told

her mother, who called child protective services. In

connection with the resulting investigation, the girls’

father took them to a second doctor. During the older

girl’s examination by this doctor, she said that defendant

3

had raped, then threatened her, demanding that she

fabricate the bicycle accident to explain her injury. This

doctor also prepared a report of her examination of the

complainants, which she provided to the police officer who

was investigating the alleged abuse.

The prosecutor proceeded to trial on the theory that

the bicycle accident was a fabrication. The older girl

testified that her injury was the result of sexual abuse by

defendant. She testified that there had never been a

bicycle accident at all. The prosecutor’s evidence also

included testimony by both examining doctors and the

investigating officer. In closing argument, the prosecutor

emphasized that defendant had presented no eyewitness

testimony to support the occurrence of a bicycle accident.

Before trial, defense counsel had available to him at

least three sources of information about the charges

against defendant.2 (1) He had a copy of the first doctor’s

first report, and knew about or had a copy of his second

report. (2) He knew about and possibly had a copy of the

second doctor’s report. (3) He had a list given him by

2
We rely on trial testimony to evaluate this case. We
do not premise our analysis on an assumption about the
contents of only one document, as Justice Weaver implies.
Post at 2.

4

defendant of at least twelve people associated with the

girls or defendant to interview for information or as

witnesses.

Defense counsel’s investigators interviewed only two

or three of these people. None of them had seen the

alleged bicycle accident. Counsel did not direct his

investigators to inquire whether the people interviewed

could name anyone who had seen it or knew more about it.

Consequently, he failed to learn that there were

eyewitnesses. Two of the sisters’ cousins could have

testified that, on the day of the alleged incident, they

saw the older girl injure her genital region in a bicycle

accident.

Defense counsel proceeded to trial on a three-pronged

theory: (1) defendant did not commit the crimes, if they

even occurred; (2) the injury to the older girl was the

result of the bicycle accident; and (3) this girl

habitually made up things. He argued that, despite the

absence of eyewitness testimony, several witnesses said

they had heard about the accident, not from the older girl,

but from her brother. The jury convicted defendant as

charged.

Defense counsel learned of the potential eyewitnesses

at the time of sentencing. The girls’ aunt approached

5

counsel and told him that her sons, their cousins, had

witnessed the accident. Defense counsel’s motion to reopen

proofs, presumably to present newly discovered evidence,

was denied.

Defendant then retained different counsel who sought a

new trial on the basis of newly discovered evidence.3

During a lengthy hearing in the trial court, the cousins

testified that they witnessed the older girl injure herself

in the bicycle accident. However, the trial court

determined that the exculpatory evidence would have been

merely cumulative.

On direct appeal, the Court of Appeals found that

counsel could have discovered and produced the evidence at

trial using reasonable diligence. Hence, defendant was not

entitled to a new trial on the basis of newly discovered

evidence. But, the Court did find that the evidence was

3
For a new trial to be granted on the basis of newly
discovered evidence, defendant had to show that

(1) the evidence itself, not merely its
materiality, was newly discovered; (2) the newly
discovered evidence was not cumulative; (3)
including the new evidence upon retrial would
probably cause a different result; and (4) the
party could not, using reasonable diligence, have
discovered and produced the evidence at trial.
[People v Johnson, 451 Mich 115, 118 n 6; 545
NW2d 637 (1996).]

6

material and not cumulative. It remanded the case for a

Ginther4 hearing regarding whether counsel had been

ineffective for failing to discover or present the

evidence. Unpublished opinion per curiam, issued May 16,

2000 (Docket No. 214941).

By the time the Ginther hearing was held before the

trial court, the two cousins only vaguely recalled the

incident. This is not surprising considering that the

alleged accident had occurred more than five years earlier

when they were about ten and six years old. The trial

court ruled that the evidence was not sufficiently

probative to support a determination that counsel was

ineffective for failing to ascertain and introduce it. It

appears that the trial court’s decision was based on the

fact that the witnesses were unable to remember the

incident clearly at the time of the Ginther hearing.

Defendant again appealed. The Court of Appeals,

apparently analyzing only the Ginther hearing testimony,

agreed with the trial court that the evidence “would not

have been of substantial benefit to the defense.”

Unpublished memorandum opinion of the Court of Appeals,

issued May 1, 2001 (Docket No. 214941).

4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

7

 Defendant sought leave to appeal in this Court,

requesting a new trial on alternate theories: either the

eyewitness testimony of the bicycle accident was newly

discovered evidence, or defendant had been denied the

effective assistance of counsel by counsel’s failure to

produce eyewitnesses at trial. At oral argument before

this Court, defense counsel conceded that this evidence

would have been discoverable with reasonable diligence and,

therefore, was not “newly discovered.” We consider only

whether defendant was deprived of the effective assistance

of counsel.

II

Whether a person has been denied the effective

assistance of counsel is a mixed question of fact and

constitutional law. A judge must first find the facts,

then must decide whether those facts establish a violation

of the defendant’s constitutional right to the effective

assistance of counsel. People v Riley, 468 Mich 135, 139;

659 NW2d 611 (2003). We review a trial court’s findings of

fact for clear error. People v LeBlanc, 465 Mich 575, 579;

640 NW2d 246 (2002).5 Questions of constitutional law are

5
Although we must defer to the trial court’s findings
made at the hearing held pursuant to People v Ginther 390
(continued…)

8

reviewed de novo. Tolksdorf v Griffith, 464 Mich 1, 5; 626

NW2d 163 (2001).

III

In People v Pickens,6 this Court adopted the

ineffective assistance of counsel standard that the United

States Supreme Court established in Strickland v

Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674

(1984). Accordingly, to demonstrate ineffective

assistance, a defendant must show that his attorney’s

performance fell below an objective standard of

reasonableness. The defendant must overcome the

presumption that the challenged action could have been

sound trial strategy. Id. at 689, see also People v

Carrick, 220 Mich App 17, 22; 558 NW2d 242 (1996). A

reviewing court must not evaluate counsel’s decisions with

the benefit of hindsight. Strickland, supra at 689. On

the other hand, the court must ensure that counsel’s

actions provided the defendant with the modicum of

representation that is his constitutional right in a

criminal prosecution.

(continued…)
Mich 436; 212 NW2d 922 (1973), we do not afford blind
deference when the trial court applies the wrong legal
standard.
6
446 Mich 298; 521 NW2d 797 (1994).

9

 “[S]trategic choices made after less than complete

investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations

on investigation. . . . [C]ounsel has a duty to make

reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.”

Strickland, supra at 690-691.

The defendant must show also that this performance so

prejudiced him that he was deprived of a fair trial.

Pickens, supra at 338. To establish prejudice, he must

show a reasonable probability that the outcome would have

been different but for counsel’s errors. Strickland, supra

at 694. A reasonable probability need not rise to the

level of making it more likely than not that the outcome

would have been different. Id. at 693. “The result of a

proceeding can be rendered unreliable, and hence the

proceeding itself unfair, even if the errors of counsel

cannot be shown by a preponderance of the evidence to have

determined the outcome.” Id. at 694.

A

In this case, counsel’s performance was not

objectively reasonable. Defendant was facing three counts

of sexual misconduct. Two of them were founded wholly on

the sisters’ statements implicating defendant. The third

10

and most serious of them was founded on the older girl’s

statements and an underlying physical injury. The best

refutation of all the charges would have been strong

substantive evidence that the older girl’s injury was

caused by something or someone other than defendant. Had

that charge been defeated, then the other two would have

been greatly weakened, given the questionable credibility

of the two girls as witnesses. The development of defense

counsel’s trial strategy had to consider these facts. His

failure to conduct a more thorough investigation to uncover

evidence to support an alternate causation theory was

objectively unreasonable.

A sound trial strategy is one that is developed in

concert with an investigation that is adequately supported

by reasonable professional judgments. Counsel must make

“an independent examination of the facts, circumstances,

pleadings and laws involved . . . .” Von Moltke v Gillies,

332 US 708, 721; 68 S Ct 316; 92 L Ed 309 (1948). This

includes pursuing “all leads relevant to the merits of the

case.” Blackburn v Foltz, 828 F2d 1177, 1183 (CA 6, 1987).

We evaluate defense counsel’s performance from

counsel’s perspective at the time of the alleged error and

in light of the circumstances. Strickland, supra at 689.

Thus, counsel’s words and actions before and at trial are

11

the most accurate evidence of what his strategies and

theories were at trial.

At the Ginther hearing before the trial court on

defendant’s claim of ineffective assistance of counsel,

defense counsel responded to questioning. He said that his

theory had been that the older girl was in the habit of

telling lies and could not be trusted. His “main thrust

was that this girl was a liar” and he “welcomed” her

testimony that she had lied about the bicycle accident.

She had been, he theorized, either injured in a bicycle

accident or by a sexual assault, but, regardless, was

falsely accusing defendant.

Yet, counsel did not think it necessary to be prepared

to prove the occurrence of the bicycle accident in order to

substantiate his theory that it had caused the injury. He

felt that additional witnesses would not be vital. He

failed to contact most of the persons whose names defendant

had provided for his own defense. He failed to inquire

whether anyone in the family had seen and could testify

about the fact of the alleged bicycle accident and its role

in causing the injury. He failed to act on statements from

the witnesses that he did interview that the girls’ brother

may have seen the accident.

12

 Justice Weaver disagrees that defense counsel thought

the occurrence of the accident was disputed because he

testified at the Ginther hearing on his own effectiveness

that “'The accident was not disputed. The girl never

disputed it.'” Post at 2. However, his subjective belief

was unreasonable.

Counsel had readily available to him information that

should have prompted further inquiries. For example,

defense counsel admitted at the Ginther hearing that the

first doctor’s initial report said that the injury was not

caused by sexual abuse.7 When that doctor testified at

trial, he stated that the older girl had told him “[t]hat

she was riding a bicycle and slipped and had a straddle

injury . . . .” The girl told the second doctor that she

had not been injured in a bicycle accident. This doctor

testified that the older girl said that

7
In addition, defense counsel also contacted other
doctors regarding possible causes of the older
complainant’s injury. However, those doctors were unable
to conclusively determine the cause of the injury. Even if
they had, they would not have been able to testify at trial
because they had not examined the girl. Thus, because no
doctor definitively determined the cause of the injury
independent of the girl’s statements, counsel needed a
witness who saw the girl injure herself in a bicycle
accident. Chief Justice Corrigan’s distinction between
counsel’s failure to find “a” witness versus “any” witness
is meaningless. Post at 13. “A” and “any” are synonyms.
Random House Webster’s College Dictionary (1995).

13

 she had been told by this person who abused her
not to tell anyone because . . . he would hurt
her and he threatened her . . . and so she told
[the first doctor] that this was a bike accident
and this was the story she was told to give him
by this abuser.
It is reasonable to infer that the doctors' testimony was

based on their patient histories and the reports they had

prepared. That evidence shows that the girl had made

conflicting statements about the cause of her injury.

The officer investigating the alleged abuse had “asked

that a letter be dictated” of the results of the

examination, which the doctor did. On cross-examination of

this witness, defense counsel referred to a notation he had

made in his copy of this doctor’s report, indicating that

he had seen it before trial. Hence, defense counsel had

seen both reports before trial.

This testimony clearly demonstrates8 that the two

doctors’ reports showed conflicting causes of the injury

and conflicting statements by the older girl. Hence,

defense counsel knew or should have known before trial that

the cause of the injury was in question.

Chief Justice Corrigan, post at 12 n 2, and Justice

Weaver, post at 2, criticize the majority for relying on

8
We do not “speculat[e]” about the contents of these
reports, as Justice Corrigan argues post at 12 n 2.

14

the second doctor’s report. We find that it was

unreasonable for defense counsel to rely on the older

girl’s anticipated testimony at trial to refute the

allegation that defendant had caused her physical injury.

It would have been unreasonable even if the second doctor’s

report had not indicated that the girl was changing her

story and even if defense counsel had lacked the report. A

central element of his defense was that the girl had

falsely accused defendant. It was not reasonable for

counsel to rely on part of her testimony to establish an

important fact while hoping to show her a liar as to the

rest.

Also contrary to Chief Justice Corrigan’s assertions,

post at 14, defense counsel acknowledged that it was

important to establish that the bicycle accident occurred.

He came to this realization in the course of the Ginther

hearing. Defense counsel was asked:

Q. Would it have been important for the
jury to hear testimony, in your opinion, on
behalf of Mr. Grant, that they observed vaginal
bleeding from this bicycle accident or . . .

A. Yeah. If . . .

Q. . . . bleeding in that area?

A. Right. But your question was about
witnesses to the accident. You’re, you’re not
asking about witnesses to the bleeding. So the

15

 answer to the witnesses, the accident, no, that
was not important.

Later in the hearing, defense counsel was asked:

Q. Counsel? The issue, as you say, was not
the accident. The issue was the cause of the
bleeding.

A. Correct.

Q. If you had an eyewitness who was able to
not only say, “I saw the accident,” which you say
is elementary because it’s, it’s irrelevant. But
he can say, “I saw the accident,” and, and “I saw
the cause of the bleeding” that occurred from the
bicycle accident. Would that type of eyewitness
have been important to the defense? That the
injury was sustained by the accident and not by
criminal sexual conduct?

A. A, a, a civilian eyewitness can say that
that’s what caused the bleeding? I don’t think
any such thing existed.

Q. Well, let me ask you, sir, if you put a
witness on the stand and that witness says, “I
saw the little girl riding her bicycle.” “And I
saw her get into an accident and I saw her
bleeding afterwards.” Would that have been
relevant to this defense?

A. If such a witness existed, I guess so,
yeah.[9]

Despite his later characterization of his decision-

making as “informed,” we cannot conclude that counsel’s

9
We disagree with Chief Justice Corrigan’s statement
that the eyewitnesses’ testimony could have “undermined”
defendant’s defense. Post at 2. We cannot imagine in what
sense testimony proving that the girl was lying when she
said that defendant caused her injuries could have done
anything other than benefit defendant.

16

failure to investigate the alleged bicycle accident was in

pursuit of a trial strategy, erroneous only in hindsight.

People v Johnson, 451 Mich 115, 122-123; 545 NW2d 637

(1996).

Because counsel failed to prepare himself, he failed

to appreciate his client’s predicament: without direct

evidence of the accident that caused the older sister’s

injury, his defense was merely a credibility contest

between a little girl and an accused rapist. Witnesses who

saw the older sister descend a hill on a bicycle, fall, and

return with blood-soaked pants could have provided

substantive evidence that abuse did not cause her injury.10

10
Chief Justice Corrigan, post at 19-27, suggests that
the eyewitnesses’ testimony would not have been of much
assistance to defendant because their testimonies at the
Ginther hearing were inconsistent. The boys had difficulty
remembering whether the older girl was wearing blue jeans
or sweat pants at the time of the accident, which had
occurred several years earlier. This does not foreclose
the conclusion that there is a reasonable probability that
the outcome would have been different if they had
testified. This testimony would have been the only
substantive evidence presented at trial of the occurrence
of the accident. As explained beginning at p 21, the
failure to present it prejudiced defendant.

Moreover, the trial court determined this evidence
would not have been of assistance to defendant because it
was merely cumulative as well as because it was
inconsistent. As the Court of Appeals recognized, there is
a reasonable probability that the outcome would have been
different with the testimony. P 24. Some internal
(continued…)

17

The only evidence that the prosecutor presented to prove

these three counts was the testimony and statements of the

two girls and the fact of the older girl’s physical injury.

Counsel’s lack of forethought is critical considering

that, as he himself opined, in cases like this, the

defendant practically has to be proven innocent to be

acquitted. Given these circumstances, a defense founded

solely on credibility was sorely vulnerable to defeat.

We also note that this is not an instance in which

counsel failed to discover facts after a reasonable inquiry

that would have caused an effective attorney to inquire

further. As stated,11 at no time did counsel direct his

investigators to ask whether anyone had seen the bicycle

accident. Cf. Wiggins v Smith, 539 US 510; 123 S Ct 2527;

156 L Ed 2d 471 (2003)(failure to investigate). His

failure to conduct an investigation to determine if known

witnesses had direct evidence to substantiate his defense

was objectively unreasonable. See Frazier v Huffman, 343

F3d 780, 795 (CA 6, 2003). It is even more so where his

witnesses testified that they had heard about the accident

(continued…)

inconsistencies are expected when children recall an

incident long past.

11
See p 5.

18

from the girls’ brother. He should have recognized that

his witnesses could not give substantive evidence of the

accident based on another’s out-of-court statements. MRE

802.

Moreover, this is not a case of counsel disregarding

one possible, alternate theory of defense in favor of a

better one, after finding the first “contradictory,

confusing, incredible, or simply poor.” Pickens, supra at

325. As stated above, counsel’s theory was that the girl

was a liar and had falsely accused defendant. This was a

sound defense strategy.12 Had it been fortified by adequate

investigation, it would have shown the weakness in the

prosecutor’s case, and it could have made a difference in

the verdict. See my discussion beginning at p 21.

This case differs from one in which there has been a

failure to call witnesses whose potential testimony defense

counsel already knows. Cf. People v Johnson, 451 Mich 115;

545 NW2d 637 (1996); People v Carbin, 463 Mich 590; 623

NW2d 884 (2001). Here, counsel did not interview half of

the people whom defendant identified as potentially having

12
Thus, we do acknowledge the merit in defense
counsel’s trial strategy, contrary to the assertions of
Chief Justice Corrigan, post at 17. However, we also
recognize its fatal shortcomings.

19

helpful information.13 He did not know what testimony these

witnesses would give. He did not know where they had been

or what they had seen.

The fact that defense counsel obtained no substantive

evidence of the cause of the older sister’s injury shows

that his investigation was incomplete. He relied on the

girl’s own, already recanted explanation. His decision not

to call as witnesses the individuals identified by

defendant was not based on objectively “reasonable

professional judgments.” Consequently, his trial strategy

was unreasonable under these circumstances.

B

The failure to make an adequate investigation is

ineffective assistance of counsel if it undermines

confidence in the trial’s outcome. Carbin at 590.

Counsel’s failure to investigate his primary defense

prejudiced defendant. It adversely affected the outcome,

depriving defendant of a fair trial. In light of the

evidence presented at trial, there is a reasonable

probability that the outcome would have been different.

13
Chief Justice Corrigan forgives defense counsel’s
failure because some witnesses were uncooperative. Post at
10-11. However, counsel did not even attempt to contact
many of the known witnesses.

20

 It was critical to defendant’s theory to show that the

older sister had been injured in a bicycle accident. At

trial, counsel tried belatedly to establish in the jury’s

mind the idea that the bicycle accident was real rather

than a mere story told by a frightened girl. But, the jury

heard no direct evidence that the girl's injury could have

been occasioned by a bicycle accident. Most of the

evidence defense counsel attempted to elicit to

substantiate the occurrence of the accident was

inadmissible as hearsay. The evidence that defense counsel

did present concerned the girl’s bleeding, serving only to

underscore the severity of her injuries. Later, the

prosecutor’s closing argument emphasized the defense’s lack

of evidence.

On appeal from the trial court’s denial of defendant’s

motion for a new trial, the Court of Appeals correctly held

that the cousins’ testimony was not cumulative. It was the

best evidence available in support of defendant’s theory.

Eyewitness descriptions of the accident would have given

independent support to defendant’s theory that the injury

was caused by a bicycle accident, not by sexual misconduct.

As the Court of Appeals explained, the girls’ cousins’

testimony ”could have transformed a defense theory without

any substantiation to a theory supported by observation of

21

eyewitnesses.” Unpublished opinion per curiam, issued May

16, 2000 (Docket No. 214941), p 2. Hence, it was more

probative than the older girl’s own earlier statements or

the statements of the other witnesses presented at trial,

which were admissible only for impeachment. As the Court

of Appeals recognized, “[t]his testimony was not

corroborative; it would have materially changed the

quality, as opposed to the quantity, of the evidence

supporting defendant’s theory.” Id.

Had the jury heard the cousins’ testimony about the

alleged accident, the nature of the defense would have

changed from an unsubstantiated argument to the jury. It

would have become a direct attack on the factual basis of

the prosecution’s primary charge grounded in credible

testimony.

The testimony of the two eyewitnesses would have

demonstrated that the older girl’s physical injury was the

result of a bicycle accident, not sexual abuse. It would

have greatly undermined the older girl’s credibility and

strongly suggested that she was fabricating horrific

stories about defendant.

Had the eyewitnesses testified, the prosecutor’s only

remaining evidence of these three counts would have been

22

the testimony of the younger girl.14 After hearing the

older sister’s other claims, which were fanciful,15 the jury

reasonably would have disbelieved the younger sister’s

allegations. She might not have testified.16

The trial court considered the hearsay evidence that

was presented at trial about the accident and concluded

that additional evidence of the same nature would have been

merely cumulative. It failed to consider the trial

evidence in favor of defendant when it determined whether

there is a reasonable probability that the outcome would

have been different. Strickland at 694.

For instance, the older girl “was not crying” when she

was examined by the first doctor and she was not “afraid.”

She was “less nervous than most kids that age” and was not

14
Chief Justice Corrigan cites the testimony of the
prosecution’s other witnesses to assert that there was a
mountain of evidence against defendant. Post at 3-7.
However, all their testimony about the cause of the injury
derived from the older girl’s statements. Once her
accusation was undermined with evidence that an accident
injured her, the prosecutor’s case would have been
substantially weakened.
15
The older girl said that the sexual attack “felt
weird” rather than painful. She also said that the first
doctor took her baby out.
16
These paragraphs analyze the effect of this fact on
defense counsel’s decisions. They do not “ignore” it, as
Chief Justice Corrigan claims. Post at 2.

23

“particularly under stress or nervous.” The doctor was

later asked:

Q. And the observations that you made were
consistent with [the older girl’s] report of an
accident from a fall on a bicycle. Isn’t that
correct?

A. Correct.

The doctor concluded, on the basis of the girl's calm

emotional state and the physical characteristics of the

injury, that sexual abuse was not involved.

The younger girl testified that she and her sister

voluntarily “sat on [defendant’s] lap” after one of the

alleged CSC-II incidents. They also failed to tell their

father or uncle what had allegedly just occurred, although

they were there with defendant and the girls. Defendant’s

girlfriend testified that he had “never done anything” to

the girls. The older girl was “always hanging around with

[defendant] and sitting on his lap” and never acted afraid

of him. The girls’ grandfather also testified that the

attitude of the girls towards defendant never changed.

At the Ginther hearing, the trial court failed to

recognize that the question was not whether the cousins’

testimony was probative. The question was not, as Chief

Justice Corrigan implies in her dissent, post at 4-5,

whether the evidence was sufficient to allow a reasonable

24

juror to find guilt "beyond a reasonable doubt." People v

Gonzalez, 468 Mich 636, 640; 614 NW2d 78 (2003). If that

standard obtained at a Ginther hearing, an ineffective

assistance of counsel claim would fail in almost every

instance. The question was whether there was a reasonable

probability that the outcome of the trial would have been

different had defense counsel adequately investigated the

facts before developing his strategy.

After the Ginther hearing, when denying defendant’s

motion for a new trial, the trial court improperly relied

on counsel’s expertise and performance in past cases to

evaluate his performance in this case. It noted that

defendant’s counsel was experienced in criminal defense

work. The dissent succumbs to the same mistake. It is

irrelevant that counsel “expended twice his normal

resources on this case . . . .” Post at 10. When defense

counsel agreed to represent defendant, he committed himself

to conducting an adequate investigation of the case. The

resources he devoted to other cases are irrelevant to

assessing the performance of his duties in this case.

If the eyewitnesses had testified, the older sister’s

testimony that she was injured by sexual abuse would have

been refuted. This would have seriously impeached her

testimony regarding the other incidents of abuse that

25

allegedly occurred more than a year later. It would have

corroborated the testimony that defendant had a positive

relationship with the girls.

Considering the evidence admitted for and against

defendant, there is a reasonable probability that defendant

would not have been convicted as charged. The trial court

failed to appreciate that counsel’s failure to investigate

and substantiate the defendant’s primary defense was a

fundamental abdication of counsel’s duty to conduct a

complete investigation. It deprived his client of a

substantial defense. Consequently, we find that defendant

was deprived of the effective assistance of counsel.

Because his convictions are not founded on a fair trial,

they cannot stand.17

IV

In conclusion, defense counsel failed to investigate

and substantiate defendant’s primary defense. There is a

reasonable probability that the result of this trial would

have been different had the evidence in question been

17
We concede that an unfavorable result is not enough
to demonstrate ineffective assistance of counsel. However,
an unfavorable result may be enough where a defendant can
demonstrate a reasonable probability that a more favorable
result would have been reached.

26

presented. This failure was not a strategic decision,

erroneous only in hindsight.

We hold that counsel’s failure to conduct a complete

investigation was a fundamental abdication of duty that

prejudiced defendant, depriving him of a fair trial.

Accordingly, the convictions are reversed and the case

remanded for a new trial because of the ineffective

assistance of defendant’s counsel.

Marilyn Kelly
Michael F. Cavanagh

27

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 119500

WILLIAM COLE GRANT,

Defendant-Appellant.
_______________________________

TAYLOR, J. (concurring).

I concur in the result of Justice Kelly’s opinion. I

reach this conclusion not, as the dissents suggest, on the

basis of hindsight, but on the fact that defense counsel

was faced with a first-degree criminal sexual conduct (CSC

I) charge in which it was not simply a “who do you believe”

contest between an injured girl and the defendant where she

says it happened and he says it did not. Rather, it was a

“who do you believe” contest plus the prosecution had the

additional evidence of a savage vaginal injury that surely

would make a lot of people think that criminal sexual

conduct happened unless there was another explanation for

the injury.

While it is not ineffective to say the injured girl is

a liar and always had been (especially given the other two
charges), that defense will only cover the usual case that

turns on credibility and for which there is no physical

evidence. Where there is such incriminating evidence and

the injured girl is now asserting that defendant, and not a

bicycle accident, caused her injury, an investigation to

find witnesses to the bicycle accident is required. To

fail to do so is not a reasonable, professional judgment.

Strickland v Washington, 466 US 668, 690-691; 104 S Ct

2052; 80 L Ed 2d 674 (1984).

Clifford W. Taylor
Stephen J. Markman

2

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 119500

WILLIAM COLE GRANT,

Defendant-Appellant.
_______________________________

CORRIGAN, C.J. (dissenting).

Although this fact-specific case has no majority

opinion and therefore lacks any jurisprudential

significance, I cannot join in the opinion of Justice KELLY

or Justice TAYLOR because their analyses depart from settled

principles regarding ineffective assistance of counsel.

Therefore, I respectfully dissent. The opinions of Justice

KELLY and Justice TAYLOR conclude that defense counsel is

constitutionally ineffective if counsel’s chosen strategy

does not produce a favorable outcome for the defendant.

Justice KELLY’s opinion relies on factual inaccuracies,

omissions, and speculation and fails to observe case law

from both this Court and the United States Supreme Court.

Applying that law to the facts, I conclude that defendant

has not overcome the strong presumption that defense
counsel’s decision to not interview certain witnesses was

strategic. Rather, the evidence shows that defense counsel

chose not to interview the contested witnesses because

their testimony was not necessary to his chosen trial

strategy and could, in fact, have undermined it.

Accordingly, I would affirm the decision of the Court of

Appeals.

I. FACTUAL HISTORY AND PROCEDURAL POSTURE

A detailed understanding of the trial is necessary to

fully evaluate whether defense counsel was ineffective.

Defendant was charged with one count of first-degree

criminal sexual conduct, MCL 750.520b(1)(a), and two counts

of second-degree criminal sexual conduct for conduct

involving his girlfriend’s nieces. Justice KELLY appears to

ignore this crucial fact in her opinion: defendant was

facing three counts of criminal sexual conduct, not only

the one count involving the severe injury to the older

sister. All the evidence presented and decisions made by

defense counsel must therefore be evaluated in light of the

three counts.

The prosecution proved that defendant had sexually

penetrated the older sister, causing a severe injury to her

2

vaginal wall,1 and that defendant had also touched both

sisters on a later occasion. Regarding the charge of

first-degree criminal sexual conduct, the older sister

testified that she originally told everyone, including the

emergency room doctor who treated her, that she had been

injured in a bicycle accident. She admitted that she had

lied about the bicycle accident. Instead, defendant had

injured her when he penetrated her. She stated that

defendant told her to say she was injured in a bicycle

accident.

The sisters’ father’s testimony regarding the first-

degree criminal sexual conduct charge was particularly

noteworthy. The father was present at the home when the

older sister appeared with her injuries. He testified

that, before anyone knew the extent or cause of the older

sister’s injuries, defendant spontaneously insisted he had

not hurt her:

Q. Okay, and when you got ready to leave
for the hospital, you—you and [the defendant’s
girlfriend, who was the sisters’ aunt] took [the
older sister]. Is that right?

A. Well that young man over there come over
there crying to [defendant’s girlfriend] saying I

1
The older sister underwent surgery under general
anesthesia that required twenty stitches to repair an
episiotomy-like rip.

3

 didn’t do this, I didn’t do that, and they know
right off the bat that I was going to take care
of it my own way.

The sisters’ father further testified:

Then when we came back—when I came back
[defendant] goes—he goes running to [his
girlfriend] saying that he didn’t—[the older
sister’s father’s] going to think the wrong [sic,
thing] about me. What do you expect I’m going to
think? If something’s happened to [the older
sister], I’m going to think it unless I know what
happened. Then he goes crying over there to [his
girlfriend] and [his girlfriend] comes over and
says I got something to tell you. Bill
[defendant] didn’t touch. . .Bill didn’t touch
[the older sister]. Then I had [the older
sister] to psy—psychology and—

Q. What are talk—

A. We’re talking about the bike accident.
You brought up the subject so I’m just telling
ya’.

Regarding the charges of second-degree criminal sexual

conduct, both sisters testified that defendant had touched

them inappropriately in a bedroom in their father’s

apartment. Their testimony was corroborated by their

father, who testified that defendant went alone to the part

of the apartment where the girls were playing and was gone

from the kitchen for about five to ten minutes.

In her opinion, Justice KELLY repeatedly insists that

the “only evidence” of the three counts of criminal sexual

conduct was the sisters’ statements and testimony. This is

patently false. The prosecution presented no fewer than

4

eight witnesses during the two-day trial, including two

physicians, the sisters, a friend of the older sister (who

corroborated the older sister’s testimony), the mother of

the older sister’s friend (who also corroborated the older

sister’s testimony), the sisters’ father (whose testimony

was outlined above), and the officer who initially

investigated the complaints. When discussing the evidence

presented at trial, the prosecution should be afforded

every supportive inference that can be drawn from this

evidence. Justice KELLY, however, simply denies that

evidence existed at all. This selective recitation of the

facts is misleading.

The defense theory at trial was twofold: (1) that

defendant did not commit the offenses and had no knowledge

of them, and (2) that the older sister habitually lied and

could not be trusted. The defense presented three

witnesses.

The first was the sisters’ grandfather and defendant’s

girlfriend’s father. He lived at the house where the

first-degree criminal sexual conduct occurred. He

testified that defendant was never alone with the older

sister and that the bicycle in question was like a

unicycle, with the front broken off. He testified that he

saw the older sister playing with the bicycle on previous

5

occasions, although he was not home at the time of the

accident. The older sister’s brother, however, told him

about the bicycle accident. The grandfather testified that

the older sister had never told him about any sexual abuse

and that she never acted as though she was afraid of

defendant or did not like him.

The second defense witness was the older sister’s

uncle and defendant’s girlfriend’s brother. He also

testified that defendant was never alone in the house and

that, to his knowledge, defendant never watched the older

sister alone. Moreover, the older sister never acted

frightened or uncomfortable around defendant and she never

mentioned any abuse or inappropriate behavior to him.

Although he had not seen the bicycle accident, the older

sister’s brother also told him about it. He saw the older

sister after she was injured and knew she was being

transported to the hospital. He also saw defendant after

the older sister went to the hospital and did not remember

defendant having any blood on his shirt.

The last witness was the older sister’s aunt and

defendant=s girlfriend at the time of the offense. She and

defendant had a child together, for whom defendant paid

child support. She testified that defendant was never

alone in the house and that it was “absolutely impossible”

6

for defendant to have ever been alone with the older

sister. Further, although she had not witnessed the

bicycle accident, she did accompany the older sister to the

hospital. The older sister’s brother also told her about

the bicycle accident. Further, defendant=s clothes had not

been disturbed and she did not see blood on any of his

clothing. Finally, she testified that the older sister had

never come to her about any abuse or inappropriate behavior

and that the girl liked defendant and always wanted to be

around him.

In his closing statement, defense counsel argued that

defendant did not commit the offenses and that the older

sister, for whatever reasons, had lied. He pointed out

numerous inconsistencies in the girl’s testimony, including

her insistence that she had been eight months pregnant and

had the baby taken out of her at the hospital. Finally,

defense counsel also made strategic use of the fact that

none of the defense witnesses had witnessed the bicycle

accident. He noted that the witnesses had all heard about

the accident from the older sister’s brother, rather than

from the older sister herself. The jury convicted

defendant on all counts.

7

 II. DISCUSSION

A. THE LAW REGARDING INEFFECTIVE ASSISTANCE OF COUNSEL

I agree with Justice KELLY that in People v Pickens,

446 Mich 298; 521 NW2d 797 (1994), this Court adopted the

standard of ineffective assistance of counsel set forth in

Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed

2d 674 (1984). To prove ineffective assistance, a

defendant must show that his attorney’s performance fell

below an objective standard of reasonableness and that, but

for counsel’s errors, there is a reasonable probability

that the result of the proceeding would have been

different. “Reasonable probability” is defined as “a

probability sufficient to undermine confidence in the

outcome.” Strickland, supra at 694 (emphasis added).

Unfortunately, Justice KELLY gives only lip service to

the strong presumption that counsel’s actions were sound

trial strategy, and that “every effort [must] be made to

eliminate the distorting effects of hindsight . . . .” Id.

at 689. See also People v Toma, 462 Mich 281, 302; 613

NW2d 694 (2000), (“[A] defendant must overcome the strong

presumption that his counsel’s action constituted sound

trial strategy under the circumstances.”); People v Hoag;

460 Mich 1, 6; 594 NW2d 57 (1999) (the law affords a strong

presumption that counsel’s actions constituted trial

8

strategy). In evaluating a claim of ineffective

assistance, “[j]udicial scrutiny of counsel’s performance

must be highly deferential” and should refrain from second-

guessing counsel’s chosen trial strategy. Strickland,

supra at 689 (emphasis added). Counsel’s performance must

be evaluated from counsel’s perspective at the time of the

alleged error and in light of the circumstances. Id. This

deferential standard of review exists because “it is all

too easy for a court, examining counsel’s defense after it

has proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable.” Id.

B. INVESTIGATION AND STRATEGY

Rather than apply this deferential standard of review,

Justice KELLY has twisted the law to place the burden on the

defense counsel to defend his chosen strategy. In fact,

Justice KELLY goes further and holds that, because defense

counsel’s strategy was not ultimately successful, it cannot

even be considered reasonable. Ante at 11. In so holding,

Justice KELLY completely ignores counsel’s testimony in the

hearing held pursuant to People v Ginther, 390 Mich 436;

212 NW2d 922 (1973). Justice KELLY concludes that

“[counsel here was not] disregarding one possible,

alternate theory of defense in favor of a better one

9

. . . .” Ante at 19. This conclusion is not supported by

the record evidence.

Defendant’s trial counsel, David I. Goldstein,

testified at the Ginther hearing. Goldstein expended twice

his normal resources on this case: although he customarily

used only one investigator for each case, he assigned two

investigators to defendant’s case because the witnesses

were so uncooperative. Justice KELLY’s assertions that

counsel had information “readily available” to him and

“failed to contact most of the persons whose names defense

had provided for his own defense,” ante at 12, are

misleading and unfounded. Goldstein testified at length

regarding his difficulty in finding any defense witnesses

who would cooperate. In fact, as stated below, Goldstein

provided documentary evidence of his repeated attempts to

contact potential defense witnesses and the many ways those

attempts were rebuffed or ignored. He stated that the

investigators finally interviewed the older sister’s

grandfather, uncle, and defendant’s girlfriend, but only

after considerable effort. The witnesses, particularly

defendant’s girlfriend, would not return calls or keep

scheduled appointments. He offered physical exhibits,

including interviews notes and office records, to support

this testimony. The defense witnesses defense counsel was

10

able to contact even ignored a trial subpoena, forcing him

to obtain a material witness warrant to ensure their

presence at trial. Defense counsel could not force the

possible defense witnesses to cooperate; he was limited by

the witnesses’ marked refusal to cooperate.

The defense theory was that defendant did not commit

the crime. At the time of the trial, Goldstein did not

believe that establishing the accident was going to be a

problem because the older sister had acknowledged the

bicycle accident. Until the trial began, Goldstein was not

aware that the older sister was denying the bicycle

accident:

A. I didn’t think we needed to prove that
the accident occurred because I didn’t think the
occurrence of the accident was in dispute.

Q. Did you, did, the nature of the injury
was in dispute, however? Wasn’t it?

A. The nature of the injury, but not the
accident itself.[2]

2
Justice KELLY relies on a police report to prove that
Goldstein knew that the older sister had made inconsistent
statements regarding the nature of her injuries. This
police report is not in the record before us. Justice
KELLY’s assertions regarding this missing report are
baffling. Justice KELLY also repeatedly insists that
defense counsel’s access to two doctor’s reports should
have prompted further inquiry. These reports are also not
in the record before us. If the missing police report and
the other missing reports identified by Justice WEAVER are so
crucial to Justice KELLY’s determination of this case, the
(continued…)

11

 Goldstein testified that he did not consider it

important to the defense to obtain eyewitnesses to the

accident because of the older sister’s admission and

because “a layperson observing an accident can’t testify as

to the extent of injuries.” He stated that he already had

witnesses to testify about the amount of blood:

[P]roving the existence of the . . .
accident was not significant. We had [the
uncle]. We had the, we had the statement of the
girl. [The uncle] saw the blood. Nobody was
disputing the bleeding. So proving that was not
. . . a critical issue. The critical issue was
relating that to the, to the charge. . . .

And a . . . lay witness can’t do that.

Goldstein explained that, given the anticipated testimony

of Dr. Bond of a credible report of sexual abuse, he did

not feel it was necessary to interview or call eyewitnesses

to the bicycle accident:

If the doctors are going to testify that the
bicycle accident did not cause that injury,
what’s the point of proving that there was an
accident?

He explained that he made the tactical decision to not

contest the medical experts because he could not find any

(continued…)
proper course is not to “infer” the contents of the missing
reports, but to remand to the trial court to reconstruct
those reports. Justice KELLY refuses to remand to
reconstruct these reports; instead, she simply bases her
analysis on nothing more than mere speculation.

12

medical experts who would testify for the defense without

having examined the older sister at the time of the injury.

Justice KELLY implies, ante at 13 n 7, that the fact that

defense counsel was unable to find any doctors to testify

should somehow have prompted some further inquiry regarding

the cause of the older sister’s injuries. This

mischaracterizes Goldstein’s testimony at the Ginther

hearing. Goldstein did not testify that he could not find

a doctor who could conclusively determine the cause of the

older sister’s injuries; rather, he testified that he could

not find any doctor who could form any opinion because the

doctors had not had an opportunity to personally examine

the older sister. I fail to understand how the fact that

no doctor would testify without personally examining the

older sister should have prompted further inquiry in the

cause of the accident on the part of defense counsel.

Rather, because he could not find any medical experts to

testify, Goldstein was unable to choose any trial strategy

that involved contradicting the prosecution’s medical

experts.

Further, Goldstein testified that one of the defense

strategies was to argue that the older sister “had a habit

of making things up.” Thus, when the prosecutor opened

13

with the statement that the older sister was now denying

there was an accident, he felt it strengthened the defense:

But you know, . . . since our position was
the girl was a liar, I welcomed [the prosecutor]
getting up and saying that the girl had lied.

He testified:

A. Our, the tactical decision was made
that our main thrust was that this girl was a
liar. That if she was, if she was in fact
sexually assaulted it wasn’t by Bill Grant.

Q. And would have trying to attack the
conclusions of the doctor or fight about a
bicycle accident, would that have detracted from
the defense that the victim was a liar?

A. It could of, it could have. I mean
obviously I can’t read a jury’s mind. But it
could have.

Q. But in your mind, it would have been a
tactical decision to pick one defense and keep
hitting that rather than a shotgun?

A. Well, our defense all along was, we
don’t know if she was sexually assaulted or not.
But if she was, it wasn’t Bill Grant. You know,
that we, that we didn’t know whether she was or
she wasn’t because she had, she had a tendency to
lie. But in any case, it wasn’t Bill Grant.

Thus, he specifically considered the effect of the older

sister’s contradictory testimony and chose, as a matter of

strategy, to highlight the inconsistencies and use it to

the defense’s advantage.

Goldstein also testified that he knew of the existence

of the mother of the boys who allegedly witnessed the

14

bicycle accident before trial and knew that she had

witnessed the older sister’s injury. He stated, however,

that he was not aware that the boys claimed they had

witnessed a bicycle accident until he received a letter

from their mother after the trial. He explained that he

did not interview or call the boys’ mother because, as far

as he understood it, her testimony was that she saw the

bleeding, and he already had two witnesses who testified

they saw the bleeding. Further, Goldstein stressed that

because the defense theory was that even if the older

sister had been sexually assaulted, it was not by

defendant, so establishing the existence of a bicycle

accident was not crucial.

In short, defense counsel explained that: (1) he

strategically chose to focus on two themes—that whatever

had happened to the older sister, defendant was not

involved, and that the older sister was a liar; (2) he made

the further strategic decision not to pursue a theory that

would have required presenting evidence regarding the

existence of the bicycle accident, on the grounds that the

conflicting stories strengthened the theory that the older

sister was a liar and could possibly distract the jury from

his chosen trial strategy; and (3) he chose to not

interview the contested witnesses because their testimony

15

was either irrelevant to his defense (whether the bicycle

accident had actually happened) or cumulative (the extent

of the older sister’s injuries). Defense counsel further

testified that he chose his defense strategy after

considering that he could not present any medical testimony

to rebut the prosecution’s medical testimony that the older

sister’s injuries were consistent with sexual assault.

It is clear that defense counsel did not interview the

contested witnesses because, at the time he was preparing

for trial, he had no reason to think those witnesses would

enhance his chosen trial strategies. Further, it is clear

that defense counsel did not interview the witnesses during

the trial because he believed that the older sister’s

testimony that she had lied about the bicycle accident only

strengthened his defense.

Justice KELLY’s failure to acknowledge such trial

strategy is puzzling. Justice KELLY also fails to

acknowledge or apply the deferential standard required by

Strickland. Rather than shunning hindsight and reviewing

counsel’s actions from counsel’s perspective at the time of

the alleged error in light of all the circumstances,

Justice KELLY summarily concludes that defense counsel was

ineffective because his strategy did not prove successful.

This holding cannot be squared with our Sixth Amendment

16

jurisprudence. “[T]he Sixth Amendment guarantees a range

of reasonably competent advice and a reliable result. It

does not guarantee infallible counsel.” People v Mitchell,

454 Mich 145, 171; 560 NW2d 600 (1997).

Further, Justice KELLY gives only lip service to the

fact that defense counsel was not preparing for a trial in

which the sole count was the first-degree criminal sexual

conduct charge. Rather, defense counsel had to prepare a

defense that addressed all three charges against defendant.

He was repeatedly frustrated in his investigatory efforts

by lack of cooperation from the ostensible witnesses. He

did not have the benefit of perfect hindsight, nor did he

have unlimited time and resources. Rather, he had to make

his own “reasonable professional judgments” regarding “the

limitations on investigation,” including the “reasonable

decision that makes particular investigations unnecessary.”

Strickland, supra at 690-691.

C. REASONABLE PROBABILITY

In addition to ignoring the deferential standard of

judicial review of trial strategy involving the multiple

charges against defendant, Justice KELLY also ignores the

definition of “reasonable probability.” “Reasonable

probability” does not mean that a majority of this Court

finds the testimony of the contested witnesses compelling.

17

Rather, as explained above, “reasonable probability” means

a probability sufficient to undermine confidence in the

outcome.3 Defendant has simply presented what could have

been an alternate trial strategy; he has not met his burden

of demonstrating a sufficient probability that the actual

strategy chosen by his counsel actually undermined

confidence in the outcome of his trial.

Further, any determination of “reasonable probability”

must take into account the entire record, including all

the evidence produced regarding the three counts against

defendant. Given the sisters’ father’s devastating

testimony that defendant spontaneously protested his

innocence before anyone knew the extent or cause of the

older sister’s injuries, and given the corroborated

testimony of both sisters regarding the second-degree

criminal sexual conduct charges, one cannot conclude that

defense counsel’s decision not to pursue the bicycle

accident issue with exhausting detail undermines confidence

in the outcome.

After reviewing the full record, I cannot conclude

that defense counsel’s actions constituted anything less

3
Justice KELLY attempts to recharacterize this standard
as “beyond a reasonable doubt.” Nowhere do I argue,
however, that the standard is “beyond a reasonable doubt.”

18

than sound trial strategy. Applying the correct standards

of review and placing the burden on defendant reveals that

defendant has not demonstrated that defense counsel

committed any error at all, let alone an error that would

undermine confidence in the outcome.

III. RETRIAL

I also note that, if there is a retrial, the evidence

regarding the bicycle accident that Justice KELLY finds so

compelling will be subject to intense scrutiny, given the

lack of any coherent testimony regarding the alleged

bicycle accident.

In the characterizations of the testimony regarding

the alleged bicycle accident, Justice KELLY willfully omits

the many inconsistencies that arose during the testimony.

A full review of the testimony, as outlined below,

demonstrates that the testimony was conflicting, confusing,

and actually undermined the testimony of the defense

witnesses at trial. Had defense counsel presented such

testimony at trial, the jury would have been presented with

five defense witnesses, two of whom contradicted the

testimony of the other three. I fail to see how the

decision to present a coherent, unified defense theory to

the jury constitutes ineffective assistance.

19

 A. THE INITIAL TESTIMONY REGARDING THE BICYCLE ACCIDENT

After the verdict was rendered, but before sentencing,

new defense counsel moved for a new trial on the basis of

newly discovered evidence. The new evidence presented at

the motion relevant to this appeal was that the sisters’

cousins witnessed the bicycle accident that defendant had

alleged caused the older sister’s injuries. The cousins’

testimony, however, was confusing and contradictory.

At the time of the first-degree sexual criminal

conduct offense, the boys were six and eight. Their mother

testified that she had not witnessed the bicycle accident,

but that her children had. She testified that she was in

the bathroom with defendant’s girlfriend helping the older

sister after she was injured and acknowledged that

defendant’s girlfriend would have known of her presence and

made the same observations. The cousins’ mother also

stated that the rest of the family knew she was at the

house on the day of the accident and also knew that her

children were there. She testified that she was aware of

the trial and stated that she told defendant=s mother about

her presence in the bathroom and her children=s presence at

the accident on the second day of the trial.

The older cousin testified that he saw the older

sister’s bicycle accident and saw her get injured. He

20

testified that, after the accident, the older sister did

not cry or scream and walked by herself up to the house,

where defendant’s girlfriend took her into the bathroom.

He testified that the older sister was wearing light blue

jeans, but that the jeans turned dark after the accident

because of all the blood. He testified that the older

sister got hurt on the bicycle handles. He specified that

he was at the bottom of the hill when the older sister got

hurt and that no one was at the top of the hill. He

testified that defendant’s girlfriend would have known that

he was at the house and that he was also playing with the

bicycle when the accident occurred. He also stated

repeatedly that he never told his mother or anyone else

about the accident and insisted that if his mother said

otherwise, she would be wrong.

The younger cousin testified that he knew he was at

the hearing to testify about the bicycle accident, although

he insisted no one told him that. He stated that the front

wheel on the bicycle was broken off, but that the

handlebars were intact. He testified that he saw the older

sister running down the hill with the bicycle and that she

fell on some metal when she let go of it and got hurt in

her private part. The younger cousin testified that after

she got hurt, the older sister just got up and walked to

21

the house. After repeated questioning, he testified that

he specifically remembered that the older sister had been

wearing blue sweat pants, and not jeans, and that the sweat

pants were torn in the front. The younger cousin also

testified that, contrary to the older sister’s uncle’s

testimony at trial, the uncle was not at the home on the

day the accident happened and that, if he said differently,

the uncle would be wrong. Thus, the boy’s testimony

contradicted that of one of the key defense witnesses at

trial. The younger cousin testified that defendant’s

girlfriend and the older sister’s grandfather would have

known he was at the house on the day of the accident and

that they all knew he was with the older sister when the

accident happened. He also testified both that he had told

someone about the bicycle accident a couple minutes after

it happened and that he never told anyone about the bicycle

accident at all.

After the hearing, the judge denied the motion for new

trial and sentenced defendant to fifteen to forty years for

the first-degree criminal sexual conduct count and ten to

fifteen years for the two counts of second-degree criminal

sexual conduct.

22

 B. SUBSEQUENT TESTIMONY REGARDING THE BICYCLE ACCIDENT

The cousins testified again at the Ginther hearing,

and their testimony at the Ginther hearing contradicted

much of the testimony given previously at the hearing

regarding the motion for a new trial.4

The older cousin testified that the bicycle was like a

unicycle and that it was not possible to ride it.

Instead, people ran behind the bicycle holding the

handlebars. Contrary to his testimony at the motion for a

new trial, the older cousin testified, “But I didn=t see her

get hurt on the bike, though.” (Emphasis added.) He

further testified, “I didn=t see the bike part hit her, but

I knew where she was hurt at.” He also testified that the

older sister did not walk up the hill as he had previously

testified, but instead that her mother and an aunt went

down the hill and got her. The older cousin testified that

the hill was over fifty feet long and that he was at the

top of the hill at the time of the accident, not at the

4
Justice KELLY’s characterization of the trial court’s
decision at the Ginther hearing is also misleading. The
trial court gave a very detailed decision, finding not that
the boys were unable to remember clearly at the time of the
Ginther hearing, but that the court did “not believe that
the witnesses, Mr. Goldstein is alleged to have failed to
interview, would have been of assistance to the Defendant
and would have directly exculpated the Defendant on the
CSC-I offense. . . .”

23

bottom of the hill as he had previously testified. He

testified that he talked to his mother about the accident

shortly after it happened, but later said he didn=t remember

whether he talked to her or not. Finally, he also

testified that on the morning of the hearing he was talking

with his mother and grandmother “about how the jury screwed

up.” He stated:

Q. Okay. You chatted with somebody this
morning about this?

A. Just about B well, rumor B well, what I
heard about the jury and how they messed and that
was about it this morning.

Q. Your mom told you what this was all
about?

A. Yeah.

Q. Okay. She told you why you were here?

A. Um hm.

Q. Yes?

A. Yes.

Q. Okay. And she told you what to say?

A. No.

Q. Okay. What did she tell you?

A. She told us that we=re going here to see
if we can help Bill. [Emphasis added.]

The younger cousin testified, contrary to his

brother’s testimony, that both he and defendant actually

24

rode the bicycle the day of the accident. This testimony

placed defendant at the scene of the injury and directly

contradicted with the testimony of all of the defense

witnesses at trial, who had testified that defendant was

not at the scene when the older sister was injured. He

testified that the bicycle had both a seat and pedals,

again contrary to his brother’s testimony. He testified

that, contrary to his previous testimony, the older sister

was riding the bicycle and not running behind it. He

stated that he was at the top of the hill with his brother

at the time of the accident, and that the older sister was

injured by the handlebars on the bicycle, not by the pile

of metal at the bottom of the hill as he had previously

testified:

Q. Okay. So [the older sister] didn=t run
into a pile of metal at the bottom of the hill?

A. No.

Q. That didn=t happen?

A. Right. That did not happen.

Finally, when the younger cousin was questioned about

the older sister=s clothes, the following exchange took

place:

Q. [The older sister] was wearing clothes?

A. Yes.

25

 Q. Do you remember if she had on long
pants or short pants?

A. She had on long pants.

Q. Okay.

A. And I only know that they were blue. I
don=t know if they were sweat pants or jeans. I
have no idea.

Q. What made you say that about sweat
pants or jeans?

A. Because she had a pair of sweat pants
and she had a pair of jeans and I know they were
both blue.

Recall that, at the motion for a new trial, the

younger cousin had insisted that the older sister was

wearing sweat pants and not jeans, and that he knew the

difference between the two. He was the only person to

testify that the older sister was not wearing jeans. His

spontaneous statement that he no longer knew if the older

sister was wearing sweat pants or jeans prompted the

following exchange:

Q. Okay. Did your mom or anybody in your
family talk to you about what you were going to
testify to today?

A. Only my mom.

Q. Okay. What did your mom talk to you
about?

A. She said I was testifying to see if I
could get Grant-Bill Grant out.

Q. Get Bill Grant off?

26

 A. Um hm. [Emphasis added.]

Thus, the boys’ testimony gave no coherent explanation

of whether they actually saw or remembered the alleged

accident, how the alleged accident occurred, where the

alleged accident occurred, or who was present when the

alleged accident occurred. Given the numerous

inconsistencies in the boys’ testimony regarding the

bicycle accident and the boys’ testimony that they were

trying to “help” defendant or “get [defendant] out,” the

boys’ testimony on retrial will be subject to impeachment.

Given the inherent problems in using this testimony, it

will be difficult on retrial to establish with any

certainty any details surrounding the alleged bicycle

accident.

IV. CONCLUSION

In her opinion, Justice KELLY ignores both the facts

and the law. Rather than placing the burden on defendant

to demonstrate the ineffective assistance of his counsel

and reviewing defendant’s claim with the strong presumption

that counsel’s actions constituted sound trial strategy,

the opinions of both Justice KELLY and Justice TAYLOR

conclude, in hindsight, that, because those justices would

have presented a different strategy, counsel was

27

ineffective. This is an unprecedented and unwarranted

departure from our Sixth Amendment jurisprudence.

Application of the law to the facts of this case compels

the conclusion that counsel thoughtfully chose a trial

strategy and pursued that strategy. Counsel’s contested

actions were all deliberately chosen to execute counsel’s

chosen strategy. Defendant has failed to demonstrate any

error by his counsel, let alone one that undermined

confidence in the outcome. Rather, all defendant has shown

is an unfavorable result. Until today, an unfavorable

result was not enough to demonstrate ineffective assistance

of counsel. With all respect due the opinions of Justice

KELLY and Justice TAYLOR, I believe it still is not.

Accordingly, I would affirm the decision of the Court of

Appeals.

Maura D. Corrigan
Elizabeth A. Weaver
Robert P. Young, Jr.

28

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 119500

WILLIAM COLE GRANT,

Defendant-Appellant.
_______________________________

WEAVER, J. (dissenting).

I respectfully dissent from the majority’s holding

that the defense counsel was constitutionally ineffective.

The older sister initially told everyone, including

her treating physician, that she had been injured in a

bicycle accident. At trial, the older sister testified

that there had been no bicycle accident and that her injury

had resulted from defendant’s sexual assault. The lead

opinion’s finding that defense counsel was constitutionally

ineffective is based on defense counsel’s pretrial failure

to investigate to determine if the bicycle accident had in

fact occurred.

The lead opinion’s basic premise is unsupported

because there is nothing in the record to show that defense

counsel knew of the older sister’s inconsistent statements
before trial. The lead opinion relies on one source of

information——a report by the second doctor——to support its

theory that defense counsel knew or should have known

before trial that the older sister had given inconsistent

statements about the cause of her injury before trial.

This report by the second doctor is not in the record

before us. No one testified about the contents of the

referenced report, nor was the report admitted into

evidence. The lead opinion’s assertion that the second

doctor’s report may have indicated that the older sister

had inconsistently described the cause of her injuries is

mere speculation, unsupported by the record.

Rather, the evidence properly before us indicates that

defense counsel had no reason to know that the older sister

would testify that there had been no bicycle accident. In

the June 7, 2000, Ginther1 hearing defense counsel

repeatedly testified that the accident was not disputed:

Q. Would it have been of assis-, of
assistance to have an eyewitness to the accident?

A. Only if it was disputed. The accident
was not disputed. The girl never disputed it.
[The sisters’ uncle] testified what he, or was
willing to testify to what he observed. And it,

1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

2

 and one of, one of the things that he observed
was the girl saying, “I had an accident.”

* * *
Q. Alright. Maybe to the extent that it
might have assisted in the defense of the
position that any injuries that the girl
sustained, she sustained as a result of the
bicycle accident?

A. No. Maybe to the extent if the, if the
accident was disputed, helping the jury decide
whether the accident actually occurred or not.
But there was no dispute that the girl said to
[her uncle], in [her uncle’s] presence and in the
presence of his sister, that she fell. She had
an accident. So that issue was not in dispute.

* * *

A. No, my te-, my statement all this morning
has been that I didn’t think we needed to prove
that the accident occurred because I didn’t think
the occurrence of the accident was in dispute.

The excerpts from the Ginther hearing that the lead

opinion quotes, ante at 15-16, to support the proposition

that “defense counsel acknowledged that it was important to

establish that the bicycle accident occurred” actually

demonstrate that prior to trial defense counsel did not

know that it would be important to establish that a bicycle

accident had occurred.

Further, on January 24, 2001, defendant filed a

“proposed statement of facts” with the circuit court.

3

Defendant’s proposed statement of facts included two points

which indicated that the trial counsel did not know before

trial that the accident was disputed:

31. Goldstein [trial counsel] did not call
an eye witness to the bike accident at the trial
and did not think that an eye witness would have
been of any assistance to him since he believed
that the bike accident was not disputed by the
alleged victim.

32. Goldstein did not believe that an
eyewitness to the bike accident was important for
purposes of linking the alleged victim’s injury
to the bike accident since he felt that such an
eyewitness would have only been important to the
Defendant’s defense if the bike accident itself
was in dispute, TR 40, and that the only thing an
eyewitness to the bike accident could testify to
was that the accident occurred. TR 91.
Goldstein, however, did not believe that the bike
accident was in dispute or that the same was
“relevant.” TR 40; 89; TR 110.

The filing concluded with the plea that “Defendant

hereby requests that this Honorable Court adopt the above

reference facts as the relevant facts applicable to the

issue of whether or not Defendant’s trial attorney was

effective, as limited by the Court of Appeals.” January

24, 2001, proposed statement of facts.

I agree with Chief Justice Corrigan and Justice Young

that defendant did not meet his burden of showing that his

attorney’s performance fell below an objective standard of

reasonableness and that, but for counsel’s errors, there is

4

a reasonable probability that the result of the proceeding

would have been different. People v Pickens, 446 Mich 298;

521 NW2d 797 (1994) (adopting the Strickland v Washington,

466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 [1984], standard

of ineffective assistance of counsel). There is no

evidence in the record before us to show that defense

counsel knew of the older sister’s inconsistent statements

before trial; rather, the evidence properly before us

indicates that defense counsel had no reason to know that

the older sister would testify that there had been no

bicycle accident. I would affirm the decision of the Court

of Appeals.

Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.

5

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 119500

WILLIAM COLE GRANT,

Defendant-Appellant.

_______________________________

YOUNG, J. (dissenting).

I respectfully dissent. I believe that the wisdom of

deferring to the trial court's determination whether

ineffective assistance of counsel has been demonstrated is

a sound policy. See People v Sexton (After Remand), 461

Mich 746, 752; 609 NW2d 822 (2000). The trial court, which

has first-hand knowledge of the witnesses and the conduct

of the trial, is in the best position to assess not only

whether defense counsel's trial performance has been

deficient, but whether any such deficiency might have

altered the outcome of the trial.

As is aptly demonstrated by the number and variety of

opinions this case has generated, this case is one that is

highly fact-sensitive and productive of no clear precedent

that can provide guidance for future cases. Because I do
not believe that the trial court erred in its

determinations on the claim of ineffective assistance of

counsel in the several hearings it conducted on this

question, I would affirm the convictions.

Robert P. Young, Jr.
Maura D. Corrigan
Elizabeth A. Weaver

2