People v. Jurewicz

Decision Date06 August 2019
Docket NumberNo. 342193,342193
Citation942 N.W.2d 116,329 Mich.App. 377
Parties PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Scott Richard JUREWICZ, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Jerard M. Jarzynka, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

Wendy Barnwell, Eastpointe, for defendant.

Before: O'Brien, P.J., and Fort Hood and Cameron, JJ.

Fort Hood, J. Defendant appeals as of right his jury convictions for felony murder, MCL 750.316(1)(b), and first-degree child abuse, MCL 750.136b(2). Defendant was sentenced to life without the possibility of parole for his felony murder conviction and to 50 to 75 years in prison for the child abuse conviction. Defendant contends on appeal that he is entitled to a new trial because (1) his trial counsel was ineffective for failing to call expert witnesses, and (2) his constitutional right to confront the witnesses against him was violated by the admission of hearsay statements made by two approximately three-year-old children. We affirm.

I. FACTUAL BACKGROUND

This case arises out of defendant's murder of an 18-month-old child. On March 14, 2015, defendant ate a spaghetti dinner with his son, defendant's then girlfriend, and her three children, EH, LH, and BH. After dinner, defendant put BH to bed. BH became fussy and defendant became frustrated, so defendant "shook [BH] a little bit" and "put him back down ... hard[ ]" in his crib. BH abruptly stopped crying, and defendant went downstairs. After a few minutes, defendant returned upstairs to check on BH. According to defendant, when he returned upstairs he discovered noodles spilling out of BH's mouth, and BH was lifeless and purple. First responders were able to restart BH's heart, but he was immediately placed on life support and died three days later. A CAT scan showed that an "overall loss of oxygen for a period of time caused brain damage and the cells of the brain to die." BH had retinal hemorrhages in both eyes, and an MRI showed swelling in his spine.

After BH's death, BH's mother left defendant and defendant began dating again. Two months later, defendant was present when his new girlfriend's young son, JP, was found smothered to death in his crib. While BH's death was being investigated, Child Protective Services (CPS) was investigating EH and LH's home to ensure their safety. Following JP's death, CPS also began investigating the home of JP's brother, SC, to ensure SC's safety. During separate forensic interviews with CPS, SC and EH stated that they had been choked by defendant. Defendant was eventually charged and convicted with BH's murder on a theory that the cause of BH's death was homicide from blunt-force trauma. He now appeals his convictions. We affirm.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that his trial counsel was ineffective for failing to call any witnesses to testify on defendant's behalf. Specifically, defendant contends that his trial attorney erred when he failed to call Dr. Leslie Hamilton and Dr. Michael Pollanen as expert witnesses. We disagree.

Generally, "[t]he question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of constitutional law."

People v. Trakhtenberg , 493 Mich. 38, 47, 826 N.W.2d 136 (2012). Because no Ginther1 hearing was held, this Court's review is limited to mistakes apparent on the record. People v. Payne , 285 Mich. App. 181, 188, 774 N.W.2d 714 (2009).

Both the United States Constitution and the 1963 Michigan Constitution guarantee defendants the right to effective assistance of counsel. U.S. Const., Am. VI ; Const. 1963, art. 1, § 20. To obtain a new trial on the basis of ineffective assistance, a defendant must show that (1) trial 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. Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ; People v. Pickens , 446 Mich. 298, 521 N.W.2d 797 (1994). A defendant must overcome a strong presumption that counsel's performance was sound trial strategy. Strickland , 466 U.S. at 689, 104 S.Ct. 2052. The defendant must also show that defense counsel's performance was so prejudicial that the defendant was deprived of a fair trial. Pickens , 446 Mich. at 338, 521 N.W.2d 797. To establish prejudice, a defendant must show a reasonable probability that the outcome would have been different but for counsel's errors. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability need not be a preponderance of the evidence; rather, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

Defense attorneys retain the "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary" but have wide discretion as to matters of trial strategy. Id. at 691, 104 S.Ct. 2052 ; People v. Heft , 299 Mich. App. 69, 83, 829 N.W.2d 266 (2012). This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel's competence with the benefit of hindsight. Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ; Payne , 285 Mich. App. at 190, 774 N.W.2d 714. The fact that defense counsel's strategy ultimately failed does not render it ineffective assistance of counsel. People v. Stewart (On Remand) , 219 Mich. App. 38, 42, 555 N.W.2d 715 (1996). Defense counsel's decisions regarding whether to call a witness are presumptively matters of trial strategy. People v. Russell , 297 Mich. App. 707, 716, 825 N.W.2d 623 (2012). "The failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense. Similarly, the failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome." Id. (quotation marks, citations, and brackets omitted).

We first address defendant's argument that his trial counsel was ineffective because he failed to call Dr. Hamilton as an expert witness. Dr. Hamilton reviewed BH's medical records and authored a report opining that there was no evidence of trauma in BH's spine; rather, in Dr. Hamilton's opinion, the damage to BH's spine was caused by whatever unidentified event caused his brain to swell, which was not necessarily a "shaking-type trauma." Dr. Hamilton ultimately concluded that "it [was] not possible to make the neuropathologic diagnoses of ‘shaking’ or ‘whiplash,’ " which largely contradicted the prosecution's theory of the case. Defendant argues that defense counsel erred when he failed to call Dr. Hamilton as a witness to present these conclusions to the jury and that this failure prejudiced him. We disagree.

Defendant has not shown that Dr. Hamilton's testimony would have provided him a "substantial defense" not otherwise available given that the conclusions contained in Dr. Hamilton's report were , in fact, presented to the jury. See Russell , 297 Mich.App. at 716, 825 N.W.2d 623.

First, defendant's counsel presented Dr. Hamilton's report during the testimony of Dr. Carl Schmidt, and Dr. Schmidt confirmed more than once that Dr. Hamilton did not believe BH's injuries could have been "caused by shaking." Dr. Hamilton's report was then presented a second time during the testimony of Dr. Evan Matshes. Dr. Matshes confirmed that Dr. Hamilton had concluded there was no evidence of whiplash, shaking, or jerking. Because two experts testified regarding the conclusions reached in Dr. Hamilton's report, we fail to see how calling Dr. Hamilton as a witness would have provided any new information for the jury to consider. Indeed, trial counsel's tactic of not calling Dr. Hamilton as a witness enabled the defense to use her expert opinion to undermine the conclusions of the prosecution's expert witnesses' without exposing Dr. Hamilton to cross-examination. Accordingly, we cannot conclude that defense counsel's decision not to call Dr. Hamilton deprived defendant of a substantial defense.

Defendant also argues that his counsel was ineffective for failing to call Dr. Pollanen. Dr. Pollanen authored a report concluding that the cause and manner of BH's death could not be determined. Again, defendant has not shown that Dr. Pollanen's testimony would have provided him a substantial defense not otherwise available. Dr. Pollanen's conclusions were also presented to the jury via the testimony of Dr. Matshes, as well as through the testimony of Dr. Jeffrey Jentzen. Dr. Matshes testified as to Dr. Pollanen's conclusion that the cause and manner of BH's death were indeterminable, even noting that he had initially agreed with that conclusion. Dr. Jentzen testified that he had reviewed Dr. Pollanen's report and explained that Dr. Pollanen "couldn't call [BH's death] a homicide." Thus, as with Dr. Hamilton, two expert witnesses testified regarding Dr. Pollanen's conclusions, and defendant has failed to establish that Dr. Pollanen would have offered any new information that would amount to a substantial defense not otherwise provided.

Because it has not been shown that counsel's failure to call Dr. Hamilton and Dr. Pollanen deprived defendant of a substantial defense, we cannot conclude that defense counsel's actions fell below an objectively reasonable standard. Without needing to reach the issue of prejudice, we conclude that defendant's ineffective assistance of counsel claim is without merit.2

III. THE CONFRONTATION CLAUSE

Defendant next argues that the trial court erred when it granted the prosecution's motion to introduce the hearsay statements of SC and EH because the statements were testimonial in nature and therefore violated defendant's...

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2 cases
  • People v. Propp
    • United States
    • Court of Appeal of Michigan — District of US
    • October 3, 2019
    ...any event, "it is not the duty of this Court to discover and rationalize the basis for defendant's claims...." People v. Jurewicz , 329 Mich. App. 377, 393, 942 N.W.2d 116 (2019), citing People v. Kelly , 231 Mich. App. 627, 640-641, 588 N.W.2d 480 (1998). "[N]or may [a defendant] give only......
  • People v. Jurewicz
    • United States
    • Michigan Supreme Court
    • September 25, 2020
    ...only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense.’ " People v. Jurewicz , 329 Mich. App. 377, 382, 942 N.W.2d 116 (2019), quoting People v. Russell , 297 Mich. App. 707, 716, 825 N.W.2d 623 (2012). The defendant was not required to sho......

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