Ineffective assistance of counsel; Cross-examination; Elicitation of highly damaging testimony; Prejudice

Holding that defense counsel’s elicitation of testimony from the complaining witness in this CSC case that defendant engaged in bestiality warranted a new trial, the court reversed the trial court’s order denying his motion for a new trial, vacated his convictions, and remanded for a new trial. He was convicted of multiple CSC offenses involving a young relative (MP). “At the Ginther hearing, the trial court concluded that defense counsel’s strategy of introducing an allegation of bestiality involving defendant at trial to challenge MP’s credibility was not reasonable strategy.” The court noted no one on appeal disputed “that defense counsel’s introduction of highly damaging and prejudicial testimony fell below an objective standard of reasonableness under prevailing professional norms.” The trial court determined “there was no reasonable probability that the jury would have disbelieved MP’s claims of sexual abuse if only she had not testified about bestiality.” The court disagreed, concluding that while “there was some corroborative testimony and evidence, MP’s testimony about the sexual assaults was key. Defense counsel never explained to the jury how or why MP’s testimony about the bestiality was ‘unrealistic’ or ‘impossible’ and made MP’s sexual assault allegations improbable. To the contrary, as the trial court recognized, MP’s bestiality allegation was not so fantastical or unbelievable as to clearly challenge MP’s credibility regarding her own sexual-assault allegations.” The court held that where “defendant was on trial for sexually assaulting an underage relative, the evidence of bestiality was not only highly inflammatory, but also may have induced the jury to find defendant guilty on the basis of its perception of his extreme sexual deviance rather than on the strength of the prosecution’s case relying largely on MP’s testimony to establish that defendant sexually assaulted her once in 2011 and once in 2015.”