Ineffective assistance of counsel; Failure to secure an expert witness & to introduce a statement by the victim; Trial strategy; Sentencing; Proportionality; Presumption as to a within-guidelines sentence; People v Posey; Unusual circumstances; Cruel &/or unusual punishment; People v Burkett; Jail credit; MCL 769.11b; People v Idziak

The court held that defendant’s trial counsel was not ineffective for failing to secure an expert witness and to introduce a statement by the victim at trial. It also rejected defendant’s proportionality and cruel and/or unusual punishment challenges to his sentence, and held that he was not entitled to additional jail credit. He was convicted of second-degree murder and sentenced as a fourth-offense habitual offender to 50 to 80 years. As to the expert issue, the “trial court concluded that trial counsel exercised reasonable due diligence and his failure to retain an expert did not fall below an objective standard of reasonableness.” The court agreed. The record showed “trial counsel reasonably investigated the facts at issue in determining whether to call an expert to testify and made multiple attempts to obtain an expert, including consulting a list and reaching out to other doctors for recommendations of potential experts. He spoke with several doctors before retaining” one, and after that arrangement “fell through, he made further efforts to retain” another. While the timing of his efforts “may not have been ideal,” the court “will not second-guess matters of trial strategy or ‘assess counsel’s competence with the benefit of hindsight.’” And while defendant faulted “trial counsel’s focus on causation to the exclusion of mens rea,” the court noted that he “clearly did not abandon the mens rea element at trial.” The trial court in the bench trial found other witnesses “credible and defendant’s version of events lacked credibility and thus concluded that the mens rea element was satisfied.” As to the victim’s statement, the trial court determined that it “‘ultimately supported the prosecution’s theory that’” defendant assaulted her and “‘the medical evidence corroborated’” that a very serious assault occurred. Thus, the trial court found that the decision not to seek its admission did not fall below an objective standard of reasonableness. The court agreed. Even assuming the “statement was admissible, trial counsel reasonably determined that its admission would be more prejudicial than probative.” As to the sentence, the factors defendant cited did not constitute unusual circumstances rebutting the presumptive proportionality of his within-guidelines sentence. And because it “did not violate the principle of proportionality,” it was not unconstitutionally cruel or unusual. Affirmed.