Ineffective assistance of counsel; “Reasonable probability” standard for establishing prejudice; Other acts evidence; Stipulating to the admission of the interrogation video; Failure to play the Kids Talk tape; Failure to object to instances of alleged prosecutorial error; Failure to list a witness on the witness list; Cumulative effect of alleged errors
On remand from the Supreme Court, the court again held that defendant could not establish ineffective assistance of counsel because he could not show prejudice, and that there was no cumulative effect of errors that would warrant a new trial. As the court concluded in its original opinion, defense counsel opened the door to the admission of other acts evidence when she asked witness-S “on cross-examination whether she had ever heard from any other third parties that defendant had molested any girls, including AD.” Defendant argued that if defense counsel had properly investigated the case, she would not have asked S this question, and the admission of the other acts evidence was highly prejudicial. Although S answered the “question by saying that she had heard a third party claim that defendant molested another girl, and on redirect the prosecutor asked [S] who she heard this from, and whether the alleged victim was a minor, the prosecutor also stated that she would not use this information in closing argument, and she did not. Defense counsel also tried to rephrase the question or withdraw it, but the trial court directed [S] to answer once it was made clear that she had heard and understood the question.” Nonetheless, defendant was unable to show that there was a reasonable probability that, but for “counsel’s error in opening the door, the result of the proceedings would have been different.” The court noted that “AD testified that defendant sexually assaulted her, and this testimony was sufficient to convict defendant.” In addition, a motion by defense counsel for a mistrial or a curative instruction “most likely would have been denied for having opened the door to the" challenged evidence, making such requests futile. Affirmed.
Full Text Opinion
State Bar of Michigan
306 Townsend St
Lansing, MI 48933-2012