People v. Gioglio
| Decision Date | 05 April 2011 |
| Docket Number | Docket No. 293629. |
| Citation | 292 Mich.App. 173,807 N.W.2d 372 |
| Parties | PEOPLE v. GIOGLIO. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jeffrey R. Fink, Prosecuting Attorney, and Cheri L. Bruinsma, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Desiree M. Ferguson) for defendant.
Before: M.J. KELLY, P.J., and KIRSTEN FRANK KELLY and BORRELLO, JJ.
Defendant Jeffrey Paul Gioglio appeals as of right his jury convictions of two counts of criminal sexual conduct in the second degree (CSC II) and one count of attempted CSC II. See MCL 750.520c(1)(a). The trial court sentenced him to serve 80 to 270 months in prison for his first CSC II conviction, 60 to 270 months in prison for his second CSC II conviction, and 18 to 90 months in prison for his conviction of attempted CSC II. On appeal, defendant argues that he did not have the assistance of counsel that the United States Constitution guaranteed him. And the record of the trial proceedings strongly suggests that he did not receive the kind of vigorous representation that one would expect in a trial that could—and did—result in a lengthy prison sentence. Indeed, after reviewing the trial record in light of the evidence adduced at the hearing on defendant's motion for a new trial, we conclude that the trial court erred, as a matter of law, when it summarily concluded that this case did not implicate United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and instead analyzed defendant's motion solely under the test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defendant's trial counsel failed to subject the prosecution's case to any meaningful adversarial testing. Therefore, prejudice must be presumed under Cronic. Accordingly, we reverse defendant's convictions and remand for a new trial.
The prosecutor charged defendant with three counts arising from alleged sexual contact between defendant and his niece, TB, who was approximately six years old at the time of the events at issue. The prosecutor charged him with two counts of CSC II for his conduct, which included causing TB to touch his penis. The prosecutor also charged him with one count of attempting to commit CSC II for an incident where TB's mother discovered TB sitting on defendant's lap in her underclothes.
The trial began on the same day that the parties selected their jury. The prosecuting attorney, Christine Bourgeois, opened the case by giving a short summary of the evidence that she proposed to offer. She stated that, in May 2004, TB's mother walked into her daughter's room and saw TB “straddling” defendant's lap on a chair and “rocking” and she could see that defendant “had an erect penis.” The prosecution then explained that the evidence would show that this was not the only incident; TB would testify about two other incidents where he touched TB or had TB touch him “for a sexual purpose.” She stated that TB would give the “specifics on exactly what happened” and that there would also be corroborating evidence. Based on the evidence she planned to present, she asked the jury to find defendant guilty. Defendant's trial counsel, Susan Prentice–Sao, elected not to give an opening statement, but reserved it for later.
The prosecution's first witness testified that she was TB's physical education instructor for the 2008 to 2009 school year. The instructor testified that there was an incident in gym class where several students told her that TB had been telling other students that “her uncle had raped her.” The instructor stated that she notified various persons and that, as a result, child protective services became involved. Prentice–Sao did not object to the instructor's testimony about what TB purportedly told other students,1 and did not cross-examine the instructor.
The prosecution next called TB to testify. She testified that she was born in 1998 and that in 2004 she and her family lived at her grandmother's house in Kalamazoo along with defendant. She said, without objection, that defendant came to live with her after it was learned that his father “did some bad stuff to football players.” She stated that while living at her grandmother's home, defendant “raped” her.
TB stated that on one occasion defendant kissed her on the lips and all over her body; he “French-kissed” her. On another day, defendant was mowing the lawn and when he finished he got her and took her behind the “air conditioning vent-type thing” and “stuck his private area out from—out from under his—he unzipped his pants and stuck his private up” and then made her “touch it and lick it.” She said that she licked it once and that he said “[TB] you're doing it” while she licked it. She said she did not tell anyone at the time because she did not know any better. TB said that, on another day, he took her behind the couch, had her unzip her pants, and kissed her “private area.” He “pulled down my pants and underwear, and then kissed my private area.”
As for the final incident, TB testified that defendant sat on the desk chair in her room and asked her to sit on his lap. She “was sitting with [her] legs spread apart on his lap facing him.” She was wearing her nightgown and socks and he was about to make her touch his penis. She knew this because he “folded down his pants and boxers and stuck up his penis and—and before he was—he was trying to stick up his penis,” but her mother walked in.
TB testified that she finally told a girl at school and her gym teacher because she could not hold it in any longer. She did not tell her mother about the other incidents until after someone came to her school to speak to her about the incidents. After Bourgeois finished her direct examination, Prentice–Sao informed that court that she had no questions for TB.
HB testified next that she was defendant's half-sister and TB's mother. She stated that she and her family were living with her adoptive mother when her half-brother “came into a bind” and she took him into her home.
HB said that she has a sleep disorder and that her daughter normally stays in the living room with her when she sleeps. She said she awoke because she could not hear TB playing and got up to look for her. She found TB in her room with defendant: She said that when defendant got up she noticed that he had an erection. HB said that defendant tried to blame the incident on TB, stating that “it was her fault.” HB said she did not report the incident at that time because she thought she could handle it. After the incident came to light, she told an officer that defendant told her at the time that TB “wanted it.”
HB also said that she knew about a prior incident where her mother mentioned that she saw TB and defendant behind the air conditioner outside and TB had her pants undone. She said she put precautions in place to prevent any further problems but kicked him out after the incident in the bedroom.
At the close of direct examination, Prentice–Sao cross-examined HB. She asked her about what her mother noticed on the day TB was outside by the air conditioner with defendant. HB responded that her mother told her that she saw TB with her zipper undone. Prentice–Sao then asked about the visibility around the area where the compressor unit was in the yard. She then elicited testimony about the nature and frequency of HB's discussions with TB about good touches and bad touches before the incidents at issue.
On redirect examination, HB agreed that she talked to TB about good touches and bad touches a couple of times and was surprised that TB never told her about defendant's actions.
HB's adoptive mother, SC, testified next. She said that she was living with HB and HB's family in Kalamazoo. Defendant moved in with them on Labor Day weekend in 2003. SC said that there is an air-conditioning unit outside in an area that is difficult to see from anywhere in the house and that is also concealed from the neighbors. She testified that defendant would often play with TB and that he was willing to play with her on a more “childlike level.” She recalled that there was a time when TB came in from playing outside with defendant and had her zipper down.
She stated that, at some point in the spring or summer of 2004, she received a call at work from her daughter. Her daughter told her that something happened between TB and defendant; specifically, HB told her that she believed defendant “acted sexually toward [TB.]” SC stated—without objection—that, although she did not initially have suspicions about defendant, “it was something I was always wary of because I knew [defendant's] history of having been abused as a child.” She further stated that she decided to question TB and defendant individually to find out what happened.
SC testified that TB responded to her questions as though she did not know what she was talking about. She got the impression “that nothing had happened—or at least nothing that [TB] perceived to have happened.” When Bourgeois asked SC about her reaction given the “allegations [that] have surfaced,” she testified that TB must have felt that “she had to protect him, that he had probably told her that it was not something she should tell anyone else, that other people wouldn't understand.” Prentice–Sao did not object to this question and answer and Bourgeois immediately asked SC whether she really knew that and SC agreed that it was just her guess.
SC testified that defendant denied that there had been any inappropriate touching, but that “he and [TB] loved each other and that [TB] had told him she loved him and they wanted to...
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People v. Gioglio
...and events surrounding Gioglio's trial; for the sake of brevity, we will not restate the facts here. See People v. Gioglio, 292 Mich.App. 173, 176–192, 807 N.W.2d 372 (2011). The majority determined that Gioglio's trial lawyer, Susan Prentice–Sao, did not subject the prosecution's case to m......