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