People v. LeBlanc

• Decision Date: 12 March 2002
• Docket Number: Docket No. 118774.
• Citation: 640 N.W.2d 246,465 Mich. 575
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, Cross-Appellee, v. William Emery LeBLANC, Defendant-Appellee, Cross-Appellant.
• Court: Michigan Supreme Court

640 N.W.2d 246

465 Mich. 575

PEOPLE of the State of Michigan, Plaintiff-Appellant, Cross-Appellee, v. William Emery LeBLANC, Defendant-Appellee, Cross-Appellant.

Docket No. 118774.

Supreme Court of Michigan.

March 12, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Sara Brubaker, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, Lansing, for the people.

Bellanca, Beattie & DeLisle, P.C. (by Frank D. Eaman), Harper Woods, for the defendant-appellee.

PER CURIAM.

A circuit court jury convicted the defendant of third-degree criminal sexual conduct, but the Court of Appeals reversed on the ground that the defendant had been denied effective assistance of trial counsel. Because the circuit court's findings of fact were not clearly erroneous and its conclusions of law are correct, we agree with the circuit court that the defendant's trial attorneys were not ineffective. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.

I

In early 1998, the defendant was charged with one count of third-degree criminal sexual conduct for having sexual intercourse with his wife's daughter—his stepdaughter. MCL 750.520d(1)(a). The stepdaughter says that a number of sexual assaults occurred, culminating on a Sunday afternoon in May 1997, when sexual relations occurred in the defendant's truck, as they parked on a rural road.

The defendant has consistently denied the charge. He maintains that the criminal allegation is the complainant's revenge for parental discipline of an unruly teenager. At trial, he supplemented that defense with alibi testimony, seeking to demonstrate that he was working on the Sunday afternoons when this assault might have occurred. This matter was tried before a Leelanau Circuit Court jury in the late summer of 1998. The jurors believed the complainant, and thus found the defendant guilty as charged. In October 1998, the court sentenced the defendant to term of six to fifteen years in prison. Two months later, the court denied the defendant's motion for new trial.

After the defendant appealed, the Court of Appeals granted his motion to remand,¹ so that he could file another motion for new trial. On remand, the circuit court conducted a Ginther² hearing to determine whether the defendant had been denied effective assistance by the two attorneys who represented him at trial. After taking testimony from several witnesses, the circuit court denied the motion.

Following the remand, the Court of Appeals reversed the defendant's conviction, agreeing with his contention that he had been denied effective assistance.³

The prosecuting attorney has applied for leave to appeal.⁴

II

In People v. Mitchell, 454 Mich. 145, 155-156, 560 N.W.2d 600 (1997), we explained the principles of law that govern an inquiry whether there has been a denial of effective assistance:

The benchmark case describing the standard for claims of actual ineffective assistance of counsel in Michigan is People v. Pickens, [446 Mich. 298, 318, 521 N.W.2d 797 (1994)], which held that the right to counsel under the Michigan Constitution does not justify a more restrictive standard than that applied under the United States Constitution and adopted the Supreme Court's test in Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. That test requires the greatest level of factual inquiry into the actual conduct of the defense and its effect on the outcome of the trial. It places the burden on the defendant to show, with regard to counsel's performance,

"that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment ... [and] that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. [Id. at 687, 104 S.Ct. 2052.]"

In applying this test, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. at 689, 104 S.Ct. 2052.[C]ases decided under the Strickland/Pickens test require the defendant to "overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland at 689, 104 S.Ct. 2052.

Accord, People v. Toma, 462 Mich. 281, 302-303, 613 N.W.2d 694 (2000).

III

In conducting an appellate review of the manner in which these principles were applied by the circuit court and the Court of Appeals, we begin by locating the proper standard for such review. Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law. A judge first must find the facts, and then must decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel.

As we have explained in other contexts, a trial court's findings of fact are reviewed for clear error. MCR 2.613(C), 6.001(D); cf. MCR 7.211(A)(3)(a). See, generally, Grievance Administrator v. Lopatin, 462 Mich. 235, 247, n. 12, 612 N.W.2d 120 (2000); In re Trejo, Minors, 462 Mich. 341, 356-357, 612 N.W.2d 407 (2000); McDougal v. McDougal, 451 Mich. 80, 87, 545 N.W.2d 357 (1996); Sparks v. Sparks, 440 Mich. 141, 151-152, 485 N.W.2d 893 (1992); Mazur v. Blendea, 409 Mich. 858, 294 N.W.2d 827 (1980).

Questions of constitutional law are reviewed by this Court de novo. Tolksdorf v. Griffith, 464 Mich. 1, 5, 626 N.W.2d 163 (2001); People v. Dunbar, 463 Mich. 606, 615, 625 N.W.2d 1 (2001); Blank v. Dep't of Corrections, 462 Mich. 103, 112, 611 N.W.2d 530 (2000).

IV

In the present case, the Court of Appeals concluded that a review of the record had persuaded it that "trial counsel's performance undermines confidence in the reliability of the result. Mitchell, supra.

" That conclusion rested on three principal bases—failure to introduce testimony from a defense expert, failure to conduct a proper voir dire of prospective jurors, and failure to object to rebuttal testimony. However, we conclude that in each instance the circuit court, not the Court of Appeals, correctly resolved the issue whether the defendant was denied effective assistance.

A Expert Testimony

The prosecution relied in part on the testimony of an expert in treating teenage sexual abuse victims.⁵ The expert testified that young victims often delay reporting the crime because of embarrassment, concern for the family, and other reasons. The import of her testimony was that the behavior of the complainant in this case was consistent with the behavior often exhibited by such victims.

Defense counsel had subpoenaed an expert who was prepared to offer countering testimony. However, defense counsel did not call her to testify at trial.⁶

At trial, the prosecution expert properly refrained from offering an opinion regarding the defendant's guilt.⁷ However, the Court of Appeals found her testimony to have been quite significant, and criticized defense counsels' failure to call the defense expert. Saying that the record belied the claim that the decision not to call her was strategic, the Court characterized defense counsels' preparation as "inadequate," and concluded, "our confidence in the reliability of the result has been undermined, Mitchell, supra, and a new trial based on ineffective assistance is warranted."

The contrary conclusion of the circuit court was explained in the opinion it issued after the remand proceedings. The circuit court noted several minor matters regarding which the would-be defense expert could have challenged the prosecution expert, but concluded that these were fairly inconsequential. The principal issue, obviously, was whether the defense attorneys had committed a serious mistake in deciding to forgo the testimony of the expert whom they had subpoenaed. Concerning this question, the circuit court stated:

When [one of the defense attorneys] testified [at the remand hearing], he stated that his approach in examining [the prosecution expert] was to attack her credibility by showing that she was part of the police team and that she had a relationship counseling and treating the complainant. Thus she would not be objective in the juries' eyes. He went on to testify that he did not call [the defense expert] because in his experience a battle of the experts in cases of this type tends to favor of [sic] the prosecution. Merely calling a defense expert on these issues tells the jury that such experts are important and are to be believed and actually tends to increase in the [jurors'] eyes the importance of these expert witnesses in [defense counsel's] view. So he decided not to call [an expert].

As a tactical decision, even in retrospect, this Court cannot say that [defense counsel's] plan about expert witnesses was wrong. During trial on August 26, 1998, under cross-examination by [defense counsel], the victim was asked what [the prosecution expert] had told her about the behavior of sexual abuse victims, implying she had been coached by [the expert]. He went on to bring out by questioning the victim that [the expert] was involved with the prosecution team in planning how the trial was conducted. The defense team's approach to [the prosecution expert] was to show that she was not objective and that therefore her testimony to the jury could not be believed. This is a legitimate and reasonable tactical decision by an attorney as to how to handle the other side's expert witness.

This is a sound reading of the events that unfolded at trial—certainly there is no clear error in the circuit court's findings of fact. One can posit theories under which the defense might have...