Ineffective assistance of counsel; Trial counsel’s performance; People v Trakhtenberg; Reasonable probability of a different outcome; People v Hoag; Michigan Department of Corrections (MDOC)
Concluding that defendant was not denied the effective assistance of counsel, the court affirmed. He was convicted of CSC I. The victim was a six-year-old child. Defendant argued “that trial counsel provided ineffective assistance because he failed to fully investigate [his] paralysis, failed to use [his] lack of sensation below the nipple line to impeach the victim’s testimony, and failed to argue that he had no motive to carry out the assault.” The court held that trial “counsel’s decision not to cross examine the victim about the issue of biting, due to the risks . . ., was certainly reasonable. But, under these facts, where trial counsel knew that defendant was a paraplegic, we question whether he exercised reasonable professional judgment when deciding to forego investigation into defendant’s medical records doctors.” But the court did not need to “determine that issue because we find that there is no reasonable probability that the outcome would have been different but for trial counsel’s allegedly deficient performance.” Defendant’s ineffective assistance of counsel argument was “premised upon his assertion that he had no sensation below the nipple line, meaning that he could not have felt the sensation of being bitten anywhere below the waist, and likewise would not have been motivated to sexually assault anyone because he had no sensation in his genitals.” However, his claim was “directly contradicted by his own medical records from MDOC, which were admitted as evidence during the Ginther hearing in this case, and which indicate that he did, in fact, have sensation below the nipple line from 2012, until as recently as [4/22], i.e., more than three years after his [2/19] jury trial.” In sum, defendant could not show that there was “a reasonable probability that a different outcome would have occurred at trial, had his counsel made the argument about his having no feeling below the nipple line, because the 2012-2013 medical record evidence presented to the jury would have been replete with statements made by defendant rebutting his argument. Had the trial court granted [his] motion for new trial, the prosecution would have been able to present even more evidence rebutting defendant’s argument, including the statement he made to MDOC medical staff in 2022, when he said his swollen knee ‘really hurts,’ and when he reported his pain as being an eight on a scale of 10.” Thus, he failed to meet his burden under Hoag and Trakhtenberg, because he did not show “that, but for trial counsel’s allegedly deficient performance, a different result would have been reasonably probable.” As a result, the court could not “conclude that the trial court erred when it denied his motion for new trial.”
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