People v. Brannon
| Decision Date | 27 August 2013 |
| Docket Number | No. 303267,303267 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ROBERT K. BRANNON, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Monroe Circuit Court
Before: MURPHY, C.J., and MARKEY and RIORDAN, JJ.
In October 2008, a jury convicted defendant of first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(a). Before defendant was sentenced, he filed a motion for a new trial on the ground that he was denied the effective assistance of counsel. Following a Ginther1 hearing, the trial court granted defendant's motion in June 2009. The prosecution appealed and this Court affirmed the trial court's decision in People v Brannon, unpublished opinion per curiam of the Court of Appeals, issued March 23, 2010 (Docket No. 292617). However, in lieu of granting leave to appeal, our Supreme Court reversed this Court's decision, vacated the trial court's order granting defendant a new trial, and remanded the case to the trial court for reinstatement of defendant's conviction and further proceedings. People v Brannon, 486 Mich 1070; 784 NW2d 205 (2010). On remand, the trial court sentenced defendant to 20 to 40 years' imprisonment, with credit for time served. Defendant now appeals as of right, and we affirm.
Defendant was convicted of engaging in sexual penetration with a six-year-old niece in the summer of 1995, at the home of the victim's maternal grandparents in Temperance, Michigan. The alleged act of penetration involved defendant's insertion of a crayon into the victim's anal opening. The victim did not tell anyone else about the incident until approximately ten years later, after she learned that defendant had sexually molested one of her aunts (defendant's sister-in-law). That aunt testified that she was 15 years old when defendant first sexually assaulted her and that defendant engaged in inappropriate sexual contact with her onseveral subsequent occasions. Like the victim, the aunt delayed telling anyone about the sexual assaults. The aunt testified that she did not tell anyone because defendant threatened to leave her sister if she told. The aunt additionally testified that she did not want to disrupt the family and that defendant assured her that he was not engaging in inappropriate conduct with anyone else. Defendant argued at trial that the victim's2 testimony was not credible, and he also presented an alibi defense to show that he was never at the home of the victim's grandparents during the summer of 1995.
Defendant first argues on appeal that he was denied the effective assistance of counsel at trial because defense counsel failed to conduct a reasonable investigation before deciding not to present expert testimony regarding the effect of the victim's delayed reporting on the reliability of her trial testimony.
A claim of ineffective assistance of counsel involves a mixed question of fact and constitutional law, which are reviewed, respectively, for clear error and de novo. People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). To establish ineffective assistance of counsel, a defendant bears the burden of showing both deficient performance and prejudice. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001). Counsel's performance is deficient if it falls below an objective standard of professional reasonableness. People v Fyda, 288 Mich App 446, 450; 793 NW2d 712 (2010). To establish prejudice, defendant must show a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id.
Here, defendant's claim regarding the presentation of expert testimony was the subject of a prior appeal. We agree with the trial court that our Supreme Court's prior decision with respect to this matter precludes appellate relief in this appeal. Although the trial court's reliance on res judicata was misplaced, inasmuch as there was no prior final judgment, see Richards v Tibaldi, 272 Mich App 522, 531; 726 NW2d 770 (2006), the law of the case doctrine precludes this Court from revisiting this specific issue. The law of the case doctrine provides that if an appellate court decides a legal question and remands for further proceedings, the legal question will not be determined differently by the appellate court in a subsequent appeal where the facts are materially the same. Grievance Administrator v Lopatin, 462 Mich 235, 259; 612 NW2d 120 (2000). "[T]he appellate court's decision likewise binds lower tribunals because the tribunal may not take action on remand that is inconsistent with the judgment of the appellate court." Id. at 260; see also People v Whisenant, 384 Mich 693, 702; 187 NW2d 229 (1971). The doctrine applies to issues that were decided in the prior appeal, either implicitly or explicitly. Grievance Administrator, 462 Mich at 260. Stated otherwise, "[t]he law of the case doctrine applies only to questions actually decided in the prior decision and to those questions necessary to the court's prior determination." City of Kalamazoo v Dep't of Corrections, 229 Mich App 132, 135; 580 NW2d 475 (1998).
To avoid application of the law of the case doctrine, defendant attempts to separate defense counsel's strategic decisions from the adequacy of his investigation. But as our Supreme Court explained in People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012), counsel's investigation is not a separate component from strategy, but rather a product of the investigation:
In examining whether defense counsel's performance fell below an objective standard of reasonableness, a defendant must overcome the strong presumption that counsel's performance was born from a sound trial strategy. Strickland [v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984)]. Yet a court cannot insulate the review of counsel's performance by calling it trial strategy. Initially, a court must determine whether the "strategic choices [were] made after less than complete investigation," and any choice is "reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-691. Counsel always retains the "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id.
The essence of the trial court's June 1, 2009, order granting defendant a new trial on the basis of ineffective assistance of counsel was that defense counsel failed to fully investigate the benefit of expert witnesses. This Court affirmed on this same ground, stating, "As the trial court concluded, under the specific facts of this case, defense counsel failed to adequately investigate the benefit of expert witnesses, denying defendant the effective assistance of counsel." Brannon, slip op at 3. Our Supreme Court expressly reversed this Court's judgment and vacated the trial court's order granting the new trial. Brannon, 486 Mich at 1070. The Supreme Court reasoned that "[t]he record clearly established that defense counsel discussed issues of delayed reporting of sexual assault by a child witness with a potential expert witness, and made a reasonable strategic decision to forego expert testimony in light of the possibility that the witness might also provide testimony favorable to the prosecution." Id. Although the Supreme Court did not provide a detailed discussion of the investigation conducted by trial counsel, it clearly considered both the investigation and its impact on the strategic decision to forego expert testimony, and it reversed this Court's determination that counsel did not reasonably investigate the benefit of expert witnesses. Because there was no change in the material facts, the trial court reached the correct result in declining to revisit this issue, and we too are bound by our Supreme Court's prior decision. Thus, the law of the case doctrine precludes relief with respect to this matter.
Defendant presents additional ineffective assistance of counsel claims that were not raised in the prior appeal. He argues that defense counsel was ineffective for not raising a hearsay objection to the victim's testimony on direct examination by the prosecutor that she knew that her aunt had claimed to have been sexually assaulted by defendant. We disagree. Hearsay is "a statement, other than one made by declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). A statement offered to show an individual's state of mind is not precluded by the hearsay rule. People v Fisher, 449 Mich 441, 449; 537 NW2d 577 (1995). It is apparent from the record that the purpose of the victim's testimony regarding her knowledge of defendant's sexual assault against the victim's aunt was to show its effect on the victim's decision to come forward after several years to report the crayon incident. Indeed, defense counsel testified at the Ginther hearing that he was aware that evidence regarding what the victim learned about her aunt was part of the reason for herdecision to report the crayon incident. As the trial court found when denying defendant's posttrial motion for a new trial with respect to this issue, the evidence was admissible to explain the victim's motivation for her delayed report of the charged sexual assault, a nonhearsay purpose. Because a hearsay objection would have been futile, defense counsel was not ineffective for failing to object. Counsel is not required to make a futile objection. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Moreover, given that the aunt herself testified to the sexual assaults committed against her by defendant, the requisite prejudice has not been established.
Defendant also argues that defense counsel was ineffective for failing to challenge the admissibility of the victim's aunt's testimony under MRE 404(b)(1). We again disagree. The aunt's testimony was admitted...
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