Ineffective assistance of counsel; Alleged failure to raise a valid legal defense; Failure to raise challenges based on defendant being under the influence of marijuana when he made police statements & consented to the search of his phone; Voluntariness of a waiver of Fifth Amendment rights; People v Cipriano; Failure to investigate & present mitigating evidence at sentencing

Rejecting defendant’s multiple ineffective assistance of counsel claims, the court affirmed his convictions of capturing/distributing the image of an unclothed person, using a computer to commit a crime, and eavesdropping-installing a device. He first asserted that “defense counsel failed to present a legally valid defense because his theory consisted of the incorrect premise that a phone is not a computer. Defense counsel, however, raised the lack of direct evidence of defendant taking the photographs and videos in his opening statement, cross-examinations, motion for a directed verdict, and in closing.” The court concluded that this provided “an objectively reasonable defense. Therefore, even if defense counsel’s argument about the phone not constituting a computer was legally invalid, defendant” failed to show that “counsel’s performance fell below an objective standard of reasonableness or that defendant was prejudiced.” He next contended that defense “counsel was ineffective for failing to challenge his statements made, and his consent to search his phone given, while he was under the influence of marijuana.” But the court found that the “totality of the circumstances indicates that defendant’s statements in the first interview were voluntarily made” as well as “knowingly and intelligently made.” It determined that despite his “marijuana use, defendant appeared capable of understanding and agreeing to the waiver of his Miranda rights.” He specifically challenged “his statement identifying a video on his phone as being of his ex-girlfriend rather than of the victim, showing he knew that the images were on his phone.” However, he made that “statement in his second interview, which took place a day after he was arrested. Defendant has not demonstrated how officer’s questioning the first day coerced [his] statements on the second day, nor that [he] would be incapacitated by using marijuana the day before.” As to his consent to search his phone, the totality of the circumstances established that it was valid. And once the detective found photos and videos on the “phone, he stopped the search and obtained a search warrant. Because officers first obtained valid consent to search and then a search warrant, a motion by trial counsel to exclude the videos would have been futile, and trial counsel was not ineffective.”