Ineffective assistance of counsel; People v. Trakhtenberg; People v. Ginther; Trial strategy; People v. Foster; Decision whether to call a witness; People v. Ackerman; A substantial defense; People v. Payne; People v. Chapo; Failure to advance a meritless argument; People v. Ericksen; Moot sentencing issue; People v. Tombs; People v. Richmond

Holding that defendant’s trial counsel did not provide ineffective assistance, and declining to consider his sentencing issue as moot, the court affirmed his conviction and sentence for being an accessory after the fact to a felony. He was sentenced to 18 to 60 months. In a police interview, he admitted that he and two other individuals (A) and (K) “took turns fatally cutting and stabbing the victim. Defendant threw the knife they used into a nearby creek and helped hide the victim’s body . . . .” He took police to the body. On appeal, he argued that his trial counsel was ineffective for not calling his guardian and therapist as witnesses. He contended that “his therapist’s testimony would have ‘provided extra support’ for his duress defense and would have showed that defendant was susceptible to influence from [A]. The therapist testified at the Ginther hearing that defendant ‘was struggling with depression and anxiety and he was having difficulty with sleep. And he was doing the best that he could to function.’” The therapist also testified that if she had been called as a witness “at trial, she would have stated that defendant had a ‘significant mental health history,’ that [he] had been depressed since he was 13 years old, and that he struggled academically.” But the court noted that evidence of his mental illness was “introduced during trial. A police officer testified that defendant told him that he had anxiety and took antidepressants. Video evidence was admitted in which defendant is heard telling the officer that he used antidepressants. Further, trial counsel advanced the defense of duress—not ‘a general susceptibility to social influence’ defense. Thus, defendant was not deprived of a substantial defense.” He further asserted that his guardian would have testified about his “complete history and mental health challenges,” and that he was delayed in his milestones, to show his history of susceptibility to others’ influence. But testimony about his “history of susceptibility to influence would show that defendant acted in conformity therewith on the date of this incident, and presumably have been inadmissible under MRE 404(b)(1).” Further, trial counsel stated that he did not call her as a witness due to concerns about what she might say on cross-examination and opening the door to evidence defendant acted to impress K.