Confrontation Clause; People v Nunley; Absence of the children’s mother in the father’s trial on failure to pay child support charges; Whether Michigan Child Support Enforcement System (MiCSES) records were testimonial; Ineffective assistance of counsel; Refusal to call the mother as a witness; Prejudice; Failure to adequately investigate an impossibility defense; People v Likine

Holding that defendant’s Confrontation Clause rights were not violated and rejecting his ineffective assistance of counsel claims, the court affirmed his failure to pay child support convictions. The trial court was correct that the Clause was not implicated by the absence of the children’s mother (C) from the trial. She was not a witness against defendant and “the prosecution did not introduce any out-of-court statements from her as substantive evidence.” The trial court also correctly ruled that the Clause was not implicated by MiCSES records, as they were nontestimonial. They “track all activity in a specific case, indicating that they are generated for administrative purposes. In this respect, [they] are ‘a routine, objective cataloging of an unambiguous factual matter’ that were created for the ‘administrative business reason’ of tracking all activity with respect to the child support order in this case.” Because they “were not created for purposes of a criminal prosecution, they were nontestimonial” and their admission did not trigger the Clause’s protections. As to defendant’s ineffective assistance claim based on defense counsel’s refusal to call C as a witness, the court found that he failed to show prejudice. He contended she “was an essential witness because only she could testify about other, direct payments and support he provided outside the payments recorded by the MiCSES.” But he offered no evidence that she “would actually testify that he made such payments or provided additional support.” With no showing that she “would testify in his favor, he” failed to establish “her absence was outcome-determinative.” He also did not show “that additional investigation by defense counsel would have unearthed true evidence for his impossibility defense,” and thus he could not establish “that any alleged failure to do so was outcome-determinative.”