People v. Carbin

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED APRIL 3, 2001

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 114799

STEVE CARBIN,

Defendant-Appellant.

____________________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, C.J.

We granted leave to consider defendant’s claim that he

was denied the effective assistance of trial counsel. The

trial court, acting as trier of fact, found defendant guilty

of first-degree criminal sexual conduct, MCL 750.520b; MSA

28.788(2), and sentenced him to a five to fifteen year term of

imprisonment. After a Ginther hearing1 ordered by the Court

of Appeals, the trial court denied defendant’s motion for a

new trial. The Court of Appeals then affirmed defendant’s

conviction in an unpublished opinion.2 We affirm the judgment

of the Court of Appeals. Defendant was not denied the

effective assistance of trial counsel.

I. FACTUAL AND PROCEDURAL BACKGROUND

The victim, a woman in her mid-thirties, worked at a

private recreation center in Detroit. On the evening of

February 11, 1994, she stayed at work to close the facility.

Sometime shortly after 9:00 p.m., when she believed that she

was alone, she was attacked by two men who remained inside the

building. One of those men forcibly raped her. At trial, the

victim identified defendant as the man who raped her. She

could not identify her other attacker. Defendant’s trial

counsel argued that the victim identified the wrong man and

that defendant could not have committed the crime because he

had been locked inside the Detroit Psychiatric Institute at

the time the crime occurred.

The victim testified that she saw defendant’s face in the

light for one minute when the attack began and then again for

1

See People v Ginther, 390 Mich 436; 212 NW2d 922

(1973).

2

Unpublished opinion per curiam, issued January 22,

1999, reh den March 25, 1999 (Docket No. 198969).

2

five or ten minutes during the rape itself. She recognized

defendant as one of the members of the recreation center.

Although she did not know his name, she explained that she had

seen him around the center before the rape:

Q. How is it that you know [defendant] from

the past?

A. Because he’s a member at the center. He

came upstairs when we had the floor exercise, and I

had to get the supervisor one time to ask him to

leave. And he left and stayed gone for awhile.

Then he came back to the center, he came back up

again the night of the floor exercise, and the

exercise instructor she came back to the ceramics

table and she said that the ladies were

uncomfortable and could I have the young man to

leave. And I went and told [the supervisor] again

that he was upstairs and the ladies wanted him to

leave.

The victim also explained that defendant frequently came to

the recreation center to swim hours before the pool was

scheduled to open and waited outside or in the lobby. When

the pool opened, defendant entered, but stayed at the shallow

end.

The police did not immediately locate defendant because

the recreation center did not have a picture of him. After

the February assault, the victim did not return to work at the

recreation center until May. She did not see defendant at the

recreation center until September 1994. When she first saw

defendant at the recreation center after the rape, she

immediately panicked and left the building. By the time she

3

called the police from her house, the center had already

closed for the evening. The next day, defendant once again

came to the recreation center. This time, staff members

alerted the police and defendant was arrested.

In addition to the victim’s testimony, the prosecutor

presented the testimony of the victim’s friend, who arrived at

the recreation center shortly after the rape and called the

police, and two police officers who responded to the initial

call. One of the police officers testified that they got the

run at 9:35 p.m. and that they arrived at 9:40 p.m. The

victim, who appeared shaken, told the officers that she had

been assaulted by two men, one of whom she knew.

Defendant’s only witness at trial was Yvonne Bond,

director of medical records at the Detroit Psychiatric

Institute. Bond testified that the institute’s medical

records indicated that defendant had been involuntarily

hospitalized at the institute on the day of the crime. The

records showed that defendant was present at 5:55 p.m. and

10:30 p.m. on that day and that he was “locked up” and

“couldn’t get out” during the interim hours.

On cross-examination, Bond admitted that patients had

escaped from the Detroit Psychiatric Institute in the past.

She also explained that patients were not locked in their

individual rooms. Thus, she admitted, it was “conceivable”

4

that a patient could leave the sixth-floor psychiatric unit by

making it past one set of locked doors to a hallway and a

stairway leading down to the first floor exit. In addition to

the stairway, a locked elevator could be accessed if the door

happened to open while the elevator was in use.3

Regarding the medical records, Bond explained that

detailed notes reflected defendant’s activities at the

institute between the hours of 7:00 a.m. and 3:30 p.m. on the

day of the crime. These particular notes ceased at 3:30 p.m.,

which was the end of a shift. She also explained that the

10:30 p.m. notation indicated that a nurse had given defendant

a certificate in his room. While she was never asked to

explain her assertion that defendant was present at 5:55 p.m.,

Bond did testify that a record showed that a doctor had seen

defendant at 5:10 p.m.

In making its findings of fact and conclusions of law,

the trial court initially recounted the victim’s testimony in

detail. The judge explained that he believed the victim’s

testimony “just from listening to her.” Her identification

testimony was credible because she was familiar with

defendant’s face from previous observations. Finally, the

3

Bond did not clearly testify (1) whether the locked

elevator was located outside the set of locked doors leading

to the psychiatric unit, or (2) whether the stairway itself

was also locked.

5

trial court explained that the victim displayed no bias

against the defendant that would have prompted her to falsify

the story.

In rejecting defendant’s alibi defense, the court opined

that the detailed notes regarding defendant’s whereabouts from

7:00 a.m. to 3:30 p.m. on the day of the crime established an

“ironclad alibi” only for that specific period of time. In

contrast, defendant had presented no records to establish

conclusively his presence at the institute when the crime was

committed. Regarding the institute’s security measures, the

trial court found that it was “not a lock down facility like

the Wayne County Jail where there are guards and the like.”

Accordingly, the trial court reasoned that it was “just

speculation” that defendant could not have left the facility

to commit the crime. The trial court thus concluded that the

prosecution had proven beyond a reasonable doubt that

defendant was guilty of the crime of first-degree criminal

sexual conduct.

After trial, while defendant’s claim of appeal was

pending, defendant’s first appellate counsel moved for

defendant’s release on bond pending appeal. In response to

the bond motion, the trial court took testimony for purposes

of assessing the substantiality of defendant’s grounds of

appeal. Barbara Pettibone, a clinical social worker at

6

Detroit Psychiatric Institute, testified at the bond hearing

that defendant, whom she recognized, had been involuntarily

admitted to the institute at 1:30 p.m. on February 11, 1994,

the day of the crime, and discharged on March 14, 1994. She

explained that the institute was a “locked facility,” which

meant that a person attempting to enter from the outside would

ordinarily have to pass through either three locked doors or

one keyed elevator and one locked door—except during visiting

hours from 6:30 p.m. to 8:00 p.m. when the doors were not

locked. Pettibone also testified that she could not remember

if she had previously been contacted by any other lawyer.

On cross-examination, Pettibone explained that the staff

routinely conducted a bed check each night “around” 11:00

p.m., but that she was not positive regarding the exact time

this was usually done. She also acknowledged that no one

could conclude with certainty whether a new patient such as

defendant, who may not have been well-known to the staff after

the afternoon shift change, “left or stayed” during the

visiting hours. Finally, Pettibone noted that maintenance

workers were present at the facility with keys to the locked

doors. After hearing Pettibone’s testimony, the trial court

granted defendant’s motion and set bond in the amount of

$25,000.4

4

The prosecutor informs that, despite the Court of

Appeals affirmance of his conviction, defendant remains on

(continued...)

7

 The Court of Appeals thereafter granted defendant’s

motion to remand to the trial court for a Ginther hearing.

The trial court once again took testimony from Pettibone

regarding the security measures in place at the Detroit

Psychiatric Institute. In response to direct questioning from

defendant’s second appellate counsel, Pettibone testified that

she recalled seeing defendant at the institute on the day he

was admitted. In contrast to her testimony at the bond

hearing that defendant had been admitted at 1:30 p.m. on

February 11, 1994, Pettibone explained that the nursing notes

indicated that defendant came to the facility at 7:00 a.m. on

that day and was present through at least 3:00 p.m. She also

stated, more conclusively than in her testimony at the bond

hearing, that a bed check had occurred at 11:00 p.m.

With respect to the institute’s security, Pettibone

explained that defendant would have been kept in a locked

ward, behind at least two locked doors. While acknowledging

that patients have escaped in the past, she opined that it

would be “very difficult,” but “not impossible,” for a person

to escape, and “impossible” to get back in through the “two or

three locked doors” without a key or “having the door opened

for them.” Pettibone also explained that the front door would

be locked from the outside after hours, that security guards

4
(...continued)

bond pending appeal. Consistent with this opinion, that bond

may be revoked.

8

are sometimes present at the front door, and that maintenance

persons have keys to the locked doors.

On cross-examination, Pettibone conceded that, apart from

her notes, she had no independent memory of seeing defendant

on the day of the crime. Although she remembered defendant,

she did not remember seeing him on that specific day. She

also testified that patients had escaped from the psychiatric

unit in the past. Finally, Pettibone admitted that her notes

did not account for defendant’s whereabouts at 9:00 p.m. on

the day of the crime.

Defendant next called Dr. Kalappurakal Joseph, a

psychiatrist at the institute. Joseph testified that he had

only a vague memory of defendant and that, as a general

matter, it would be very difficult for a patient to escape and

return to the facility. Defendant’s last witness was his

first appellate counsel, Ben Gonek. Gonek testified that

defendant passed a polygraph examination conducted by the

Detroit Police Department after the trial.5 He also testified

that defendant had consistently maintained his innocence.

Defendant was unable to call his trial counsel to testify

5

Defendant makes no claim of ineffective assistance on

the basis of the polygraph examination. Instead, he asserts

without further explanation that it buttressed the credibility

of Pettibone and Joseph. The prosecutor has suggested that

the polygraph test results may have been unreliable, given the

state of defendant’s mental health.

9

because she died before the hearing.

The trial court denied defendant’s motion for new trial.

First, the testimony at the Ginther hearing had been

essentially cumulative of Yvonne Bond’s medical records

testimony at trial. Especially noteworthy was that, like

Bond’s trial testimony, nothing at the Ginther hearing

verified defendant’s whereabouts between approximately 6:00

p.m. and 10:30 p.m. on the day of the crime. Because of the

cumulative nature of the testimony at the Ginther hearing, the

trial court reasoned that defense counsel’s performance had

fallen “below that which would be expected of an attorney of

ordinary training and skill in criminal law” only if she had

presented “no testimony at all” regarding defendant’s alibi.6

The trial court then noted that the victim’s trial

testimony had been especially compelling. In particular, it

explained that the victim’s memorable prior contacts with

defendant “enhanced her credibility in making an accurate and

reliable identification.” The court also observed that the

victim had a good opportunity to observe defendant accurately

at the time of the crime, and that she immediately told the

police that she had been raped by a man whom she knew. The

6
In making this determination, the trial court relied on

the standard set forth in People v Garcia, 398 Mich 250; 247

NW2d 547 (1976). That standard was rendered obsolete by

People v Pickens, 446 Mich 298; 521 NW2d 797 (1994).

10

trial judge then stated that he had been impressed by the

victim’s credibility while sitting as the trier of fact:

Appellate counsel for [defendant], Mr. Gonek

and Mr. Cripps, none of them have had occasion to

look this complainant in the eye, judge her

credibility, judge any motive to lie, judge to

determine if she was making a mistake. I had that

luxury and I remember her and she was a very

believable witness. There’s no doubt in her mind

that this was the man who committed the rape.

For these reasons, the trial court concluded that defendant

had not been denied the effective assistance of counsel. The

trial court reached this conclusion without expressly stating

whether it believed that defendant’s case had been prejudiced

by trial counsel’s failure to call Pettibone and Joseph as

witnesses.

The Court of Appeals then affirmed defendant’s conviction

in an unpublished per curiam opinion. In response to

defendant’s argument that he had been denied the effective

assistance of counsel, the panel concluded that defendant

failed to overcome the presumption that his counsel had been

effective under the constitutional standard. The Court of

Appeals reasoned that the Ginther hearing testimony did no

more than the trial testimony to establish that defendant was

locked in a mental institution on the night of the crime.

Because both the trial testimony and Ginther hearing testimony

tended to show that it would have been difficult, but not

impossible, for defendant to escape and return without being

11

noticed, the Court of Appeals concluded that defendant failed

to demonstrate that defense counsel’s decision to call Bond,

rather than Pettibone and Joseph, was anything more than trial

strategy. The panel also concluded that defendant failed to

demonstrate the existence of a reasonable probability that,

but for counsel’s failure to present these witnesses, he would

have been acquitted.

This Court initially denied defendant’s application for

leave to appeal. 461 Mich 946 (2000). On reconsideration, we

vacated the denial order and granted defendant’s application

for leave to appeal, limited to the question whether defendant

was denied the effective assistance of counsel. 462 Mich 918

(2000).

II. EFFECTIVE ASSISTANCE OF COUNSEL

A defendant seeking a new trial on the ground that trial

counsel was ineffective bears a heavy burden. To justify

reversal under either the federal or state constitutions,7 a

convicted defendant must satisfy the two-part test articulated

by the United States Supreme Court in Strickland v Washington,

7
US Const, Am VI provides that the accused in a criminal

prosecution “shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” This requirement is

made applicable to the states through the Fourteenth Amendment

due process clause. Gideon v Wainwright, 372 US 335, 342; 83

S Ct 792; 9 L Ed 2d 799 (1963). Likewise, Const 1963, art 1,

§ 20 provides that the accused in a criminal prosecution

“shall have the right . . . to have the assistance of counsel

for his . . . defense.”

12

466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). See People

v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).

“First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not performing as the ‘counsel’

guaranteed by the Sixth Amendment.” Strickland, supra at 687.

In so doing, the defendant must overcome a strong presumption

that counsel’s performance constituted sound trial strategy.

Id. at 690. “Second, the defendant must show that the

deficient performance prejudiced the defense.” Id. at 687.

To demonstrate prejudice, the defendant must show the

existence of a reasonable probability that, but for counsel’s

error, the result of the proceeding would have been different.

Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

Because the defendant bears the burden of demonstrating both

deficient performance and prejudice, the defendant necessarily

bears the burden of establishing the factual predicate for his

claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

In this case, defendant argues that he was denied the

effective assistance of counsel because trial counsel (1)

failed to interview Pettibone and Joseph before the trial, and

(2) failed to call Pettibone and Joseph to testify at

defendant’s bench trial. Defendant characterizes defense

13

counsel’s failure to call Pettibone and Joseph as a failure to

present an alibi defense. We agree with the Court of Appeals

conclusion that defendant’s claim fails with respect to both

parts of the Strickland test.

Initially, we reject defendant’s argument that trial

counsel’s performance was deficient in failing to interview

Pettibone and Joseph before trial. Nothing in the record

establishes that trial counsel failed to investigate either

Pettibone or Joseph before trial. Although trial counsel was

deceased, and thus could not testify regarding the extent of

her efforts to investigate defendant’s alibi, neither

Pettibone nor Joseph offered any helpful testimony regarding

their contact or lack of contact with trial counsel in

preparation for trial. Pettibone testified only that she

could not remember whether she had contact with a lawyer;

Joseph provided no testimony on the subject of defense

counsel’s pretrial preparation. The fact that defense counsel

called Bond to testify at trial demonstrates that she had

conducted a pretrial investigation regarding defendant’s

presence at the Detroit Psychiatric Institute on the day of

the crime. Absent any evidence regarding the extent of trial

counsel’s pretrial investigation, especially with respect to

the potential testimony of Pettibone and Joseph, we conclude

that defendant failed to establish a necessary factual

14

predicate of this part of his ineffective assistance of

counsel claim. See Hoag, supra at 6.

Defendant’s ineffective assistance claim is thus reduced

to an assertion that trial counsel’s performance was deficient

because she failed to call Pettibone and Joseph to testify at

trial. As such, defendant cannot overcome the strong

presumption that trial counsel’s failure to call these

witnesses was strategic. Contrary to defendant’s argument,

counsel’s apparent decision not to present the testimony of

the witnesses in question did not deprive defendant of an

alibi defense. Bond testified at trial that medical records

showed defendant to be present at the Detroit Psychiatric

Institute at 5:55 p.m. and 10:30 p.m. and that he was “locked

up” and “couldn’t get out” between those times. Accordingly,

defense counsel did present an alibi defense at trial.

The testimony at the Ginther hearing did nothing more

than Bond’s testimony to account specifically for defendant’s

presence between 5:55 p.m. and 10:30 p.m. on the day of the

crime. If anything, this additional testimony only could have

affected the quality of defendant’s alibi defense. Viewed

objectively, it is not at all clear that the quality of

defendant’s alibi defense would have been improved with the

addition of testimony from Pettibone and Joseph. Joseph’s

generalized testimony was vague and conclusory. As such, it

15

would have added nothing of substance to defendant’s alibi

defense. Although Pettibone’s testimony included more detail

than Bond’s testimony regarding (1) the precise number of

locked doors that defendant would have had to have traversed

and (2) the obstacles defendant would have faced attempting to

reenter the facility, she also was not an expert on the

security measures employed at the Detroit Psychiatric

Institute. More importantly, Pettibone’s posttrial testimony

included two new and important pieces of information favorable

to the prosecution that were not part of Bond’s trial

testimony. First, contrary to Bond’s definite statement that

defendant was “locked” in the facility between 5:55 p.m. and

10:30 p.m., Pettibone testified that the supposedly “locked”

doors were actually unlocked during visiting hours from 6:30

p.m. to 8:00 p.m. on the day of the crime.8 Second, Pettibone

acknowledged that maintenance workers were present after hours

with keys to the locked doors.

Although the failure to present cumulative testimony can

amount to ineffective assistance of counsel under some

circumstances, see People v Johnson, 451 Mich 115; 545 NW2d

8

It seems likely that the shift in focus in the

posttrial testimony from defendant’s likelihood of escaping

from the Detroit Psychiatric Institute to defendant’s

likelihood of reentering the facility was largely necessitated

by Pettibone’s damaging testimony suggesting the ease with

which a patient could “escape” during visiting hours.

16

637 (1996), this is not such a case. In Johnson, this Court

held that the defendant’s trial counsel was ineffective in

failing to call additional defense witnesses to give

favorable, cumulative testimony. The defendant was convicted

of second-degree murder for shooting a man during an affray in

a Pontiac tavern. The tavern owner and defendant’s father

testified that defendant did not shoot the victim. A

prosecution witness testified that defendant was the shooter.

Defendant presented evidence that his trial counsel was aware

of at least four other witnesses who would have testified that

defendant did not shoot a gun during the affray. Defense

counsel’s testimony at the Ginther hearing did not suggest a

strategic reason for his failure to call the cumulative

witnesses. Acknowledging that a trial is “not simply a

balance scale,” this Court nevertheless found the exculpatory

evidence to be so substantial that it could have changed the

outcome of the trial. Id. at 122. In contrast to the

shooting at issue in Johnson, an alibi defense based on the

extent of security measures taken at a mental hospital does

not necessarily benefit from a number of different

perspectives from different witnesses.

While there is no obvious reason why one person generally

familiar with the subject would be less persuasive than three,

the presentation of only one witness has the advantage of

17

eliminating the possibility of distracting inconsistencies.

Here, for example, Pettibone’s testimony regarding the precise

times defendant was allegedly present in the facility (based

on the medical records) differed somewhat from Bond’s. Most

notably, Bond gleaned from the records that defendant was

present in the unit at 10:30 p.m., less than one hour after

the police responded to the crime. Pettibone testified only

that a bed check took place at 11:00 p.m. Given the problems

with Pettibone’s and Joseph’s testimony, and the absence of

any evidence that defense counsel’s decision to present only

Bond’s testimony was not strategic, we conclude that defendant

was not denied the effective assistance of counsel. His claim

fails the “performance” part of the Strickland test.

For many of the same reasons, defendant’s claim also

fails the “prejudice” part of the Strickland test. On the

basis of the trial court’s findings of fact at trial, and its

statements made in denying defendant’s motion for new trial,

it is clear that (1) the marginal differences in the alibi

testimony of Pettibone and Joseph would not have had a

significantly greater effect on the trier of fact than did the

testimony of Bond, and (2) the trier of fact was especially

impressed with victim’s inherently credible trial testimony.

Although the trial court did not expressly rule that the

outcome at trial would have been the same had Pettibone and

18

Joseph been called to testify, it did state that their

additional testimony was “for the most part, cumulative” and

that the victim’s testimony that defendant was one of her

attackers was “very believable.” Accordingly, on this record

we cannot say that a reasonable probability exists that, but

for counsel’s failure to call Pettibone and Joseph to testify

at trial, the result of the proceeding would have been

different. Rather, we are confident that the result would

have been precisely the same.

Affirmed.

CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and MARKMAN , JJ.,

concurred with CORRIGAN , C.J.

19