People v. Henriques
| Docket Number | 359614 |
| Decision Date | 09 November 2023 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TYRIONE ISAIAH HENRIQUES, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Allegan Circuit Court LC No. 2019-0022477-FC.
Before: Brock A. Swartzle, P.J., and Colleen A. O'Brien and Kathleen A. Feeney, JJ.
After a four-day trial, a jury convicted defendant, Tyrione Isaiah Henriques, of unlawful imprisonment, MCL 750.349b; two counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(b) (force or coercion); domestic violence, MCL 750.81(2); torture, MCL 750.85; and assault with a dangerous weapon, MCL 750.82. The trial court sentenced defendant to terms of imprisonment of 8 to 15 years for unlawful imprisonment, 10 to 15 years for each CSC-III conviction, 93 days for domestic violence, 23 to 60 years for torture, and 365 days for assault with a dangerous weapon. In defendant's first appeal, this Court, while retaining jurisdiction, remanded for a Ginther[1] hearing to address whether defendant's trial counsel rendered ineffective assistance by (1) failing to request a specific unanimity instruction for the torture charge and (2) failing to object to SANE Bonnie Christopher's inadmissible hearsay testimony. People v Henriques, unpublished per curiam opinion of the Court of appeals, issued September 14, 2023 (Docket No. 359614), p 12. At the Ginther hearing, the trial court found that defendant's trial counsel's performance did not fall below an objective standard of reasonableness because it was reasonable trial strategy for counsel to not request a specific unanimity instruction and not object to the Christopher's testimony. Finding no error, we affirm both findings.
In defendant's original appeal, he raised several other issues that this Court declined to address as part of this Court's first opinion, explaining that those issues would be addressed "after remand as necessary." Id. at p 1 n 3. Addressing those issues, we conclude that none warrant appellate relief except for defendant's argument that he should not have been required to register pursuant to the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., for his conviction of unlawful imprisonment. Accordingly, we affirm defendant's convictions and sentences, but remand to the trial court for entry of an order removing defendant from the sex offender registry for his conviction of unlawful imprisonment.
This Court's previous opinion thoroughly laid out the basic facts underlying defendant's convictions, the relevant pretrial history, and the relevant events that transpired at defendant's trial. Id. at 2-4. Those facts will not be repeated here. This Court's previous opinion then addressed three claims of ineffective assistance that defendant raised on appeal: (1) whether his trial counsel was ineffective for failing to request a specific unanimity instruction for the charge of torture; (2) whether his trial counsel was ineffective for failing to object to SANE Christopher's hearsay testimony; and (3) whether defendant's trial counsel was ineffective for failing to file an interlocutory appeal challenging the circuit court's reinstatement of charges dismissed by the district court. This Court concluded that the first claim required remand for a Ginther hearing; that defendant's second claim identified a potential error that defendant's trial counsel would have the opportunity to explain at the Ginther hearing; and that defendant's third claim did not amount to ineffective assistance.
At the Ginther hearing on remand, defendant's trial counsel, Damian Nunzio, testified that the defense's theory at trial was that defendant "was innocent of all charges." Nunzio termed this "a global defense" in which the defense's position was that the victim's statements to police and at trial "were completely incredible" and "unreliable." Nunzio explained that this strategy hinged on impeaching the victim's credibility. According to Nunzio, he arrived at this strategy because he believed the victim's "story was just fantastic" because it involved the jury believing that defendant committed a series of heinous acts-like pouring urine on the victim "on a regular basis" and giving the victim chemical burns-while she was "imprisoned in a house full of people." Nunzio further testified that this strategy was consistent with defendant's wishes; Nunzio said that defendant "wanted complete exoneration."
When questioned about why he did not request a specific unanimity instruction for the torture charge, Nunzio testified that it was because doing so "would have cut into" the defense's "global" strategy. Nunzio explained that, with a specific unanimity instruction, "the jury would be going through a process of piecemealing" the victim's testimony to determine whether one portion of it was believable and could support a charge of torture. This was counter to the defense's strategy, according to Nunzio, because the defense wanted the jury "looking globally at [the victim's] entire statements," not parsing through the victim's testimony and finding certain portions that may be more believable than others. Nunzio further explained the he feared that this "piecemealing" of the victim's testimony could lead the jury to credit portions of the victim's testimony unrelated to the torture charge, thereby "encourag[ing] a potential likelihood of convictions on the other charged acts." Nunzio also agreed that, had he requested a specific unanimity instruction to account for the prosecution's two theories of torture, the prosecution could have requested to add an additional charge of torture to separate its two theories into two distinct charges.
With respect to SANE Christopher's testimony, Nunzio explained that he did not object to Christopher's testimony because it supported the defense's strategy of "this global attack on [the victim's] story." According to Nunzio, Christopher's testimony about statements the victim made to Christopher were inconsistent with statements that the victim made at trial, which "was beneficial to attacking the credibility of" the victim. Nunzio believed that this was particularly powerful support for the defense because Christopher was supposed to be a "nonbiased medical witness" for the prosecution, yet the defense was able to use Christopher's testimony as a means of attacking the victim's credibility. Nunzio reiterated that this was also consistent with the defense's "global" strategy of attacking the victim's credibility to argue that defendant "was completely innocent."
After the parties presented arguments, the trial court found that, based on the reasons Nunzio gave during his testimony, Nunzio's decisions to not object to Christopher's hearsay testimony and not request a specific unanimity instruction were reasonable trial strategy.
A trial court's factual findings after a Ginther hearing are reviewed for clear error, while its ultimate ruling on whether defense counsel provided constitutionally ineffective representation is reviewed de novo. People v Haynes, 338 Mich.App. 392, 429; 980 N.W.2d 66 (2021).
"To establish a claim of ineffective assistance, a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." Id. (quotation marks and citation omitted). Defense "counsel is given wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases." People v Unger, 278 Mich.App. 210, 242; 749 N.W.2d 272 (2008). For that reason, this Court will generally "not substitute its judgment for that of counsel regarding matters of trial strategy." People v Davis, 250 Mich.App. 357, 368; 649 N.W.2d 94 (2002). However, a strategy "in fact must be sound, and counsel's decisions as to it objectively reasonable; 'a court cannot insulate the review of counsel's performance by calling it trial strategy.'" People v Douglas, 496 Mich. 557, 585; 852 N.W.2d 587 (2014), quoting Trakhtenberg, 493 Mich. at 52.
We agree with the trial court that, based on Nunzio's testimony, his decisions to not object to Christopher's hearsay testimony and not request a specific unanimity instruction were reasonable trial strategy. With respect to Christopher's hearsay testimony, Nunzio testified that he did not object to Christopher's hearsay testimony because it supported the defense's theory that the victim's testimony was incredible. Nunzio explained that Christopher's testimony about statements that the victim made to Christopher contradicted statements that the victim made at trial, thereby supporting the defense's theory. This was plainly trial strategy, and we agree with the trial court that it was reasonable. Accordingly, we conclude that defendant has failed to establish that Nunzio's performance fell below an objective standard of reasonableness in this respect.
Turning to the specific unanimity instruction, Nunzio testified that he did not request the instruction because doing so would have been inconsistent with the defense's strategy. Nunzio described the defense as a "global" defense in which defendant sought "complete exoneration" by arguing that the victim's entire testimony was unbelievable. According to Nunzio, requesting a specific unanimity instruction would have been inconsistent with this defense because it would have asked jurors to "piecemeal" the victim's testimony. Nunzio feared that, if jurors did so, they may credit some portions of the victim's testimony while still disbelieving the more "incredible" portions. Nunzio was also concerned that encouraging...
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