People v. Shaw, Docket No. 313786.

• Decision Date: 14 June 2016
• Docket Number: Docket No. 313786.
• Citation: 315 Mich.App. 668,892 N.W.2d 15
• Parties: PEOPLE v. SHAW.
• Court: Court of Appeal of Michigan — District of US

315 Mich.App. 668

892 N.W.2d 15

PEOPLE

v.SHAW.

Docket No. 313786.

Court of Appeals of Michigan.

Submitted Feb. 10, 2016, at Detroit.

Decided June 14, 2016, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Stuart J. Dunnings, III, Prosecuting Attorney, and Joseph B. Finnerty, Appellate Division Chief, for the people.

State Appellate Defender, Detroit (by Desiree M. Ferguson ) for defendant.

Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

SHAPIRO, J.

In August 2011, when the complainant was 23 years old, she reported to the Lansing Police Department that defendant, her stepfather, had sexually molested her on multiple occasions between the ages of 8 and 16. Following a jury trial, defendant was convicted of nine counts of first-degree criminal sexual conduct (CSC–I), MCL 750.520b, and acquitted of an additional count of CSC–I. Defendant filed a motion for new trial on the ground of ineffective assistance of counsel. After a 10–day Ginther¹ hearing, the trial court denied the motion for new trial. Defendant now appeals his conviction and the denial of his motion for new trial. We conclude that defendant did not receive effective assistance of counsel at trial and that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Accordingly, we reverse and remand for a new trial.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that defense counsel was ineffective for a number of reasons. Because a Ginther hearing was held, the issue is preserved. See People v. Johnson, 144 Mich.App. 125, 129, 373 N.W.2d 263 (1985). A defendant's ineffective assistance of counsel claim "is a mixed question of fact and constitutional law." People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002). When reviewing an ineffective assistance of counsel claim, this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of law. Id. The trial court's findings are clearly erroneous if this Court is definitely and firmly convinced that the trial court made a mistake. People v. Reese, 491 Mich. 127, 139, 815 N.W.2d 85 (2012).

The right to counsel guaranteed by the United States and Michigan Constitutions, U.S. Const. Am. VI ; Const. 1963, art. 1, § 20, is the right to the effective assistance of counsel. United States v. Cronic, 466 U.S. 648, 654–655, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ; People v. Pubrat, 451 Mich. 589, 594, 548 N.W.2d 595 (1996). To establish ineffective assistance of counsel, a defendant must show (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and (2) that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687–688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; People v. Frazier, 478 Mich. 231, 243, 733 N.W.2d 713 (2007).

A. FAILURE TO OBJECT TO HEARSAY

Defendant argues that his counsel's performance fell below reasonable professional norms because, among other reasons, his attorney failed to object to hearsay testimony offered by five different witnesses, each of whom recounted statements made by the complainant in which she told them that defendant had sexually abused her years earlier. Defendant further argues that this hearsay testimony was of particular significance because it served to bolster the complainant's credibility in a case that turned on credibility.

MRE 801 defines hearsay as "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Unless an exception exists, hearsay is inadmissible. MRE 802. "In a trial where the evidence essentially presents a one-on-one credibility contest between the victim and the defendant, hearsay evidence may tip the scales against the defendant, which means that the error is more harmful." People v. Gursky, 486 Mich. 596, 620–621, 786 N.W.2d 579 (2010).

Three of the challenged witnesses were members of the complainant's family, one was Dr. Stephen Guertin, a pediatrician, who was admitted as an expert in child sexual abuse, and the last was Lansing Police Detective Elizabeth Reust. We address each in turn.

1. STATEMENTS TO FAMILY MEMBERS

The prosecution called three relatives of complainant—two cousins and her sister. Her cousin Elizabeth testified that, while at their grandmother's house, while upset and crying, the complainant told her that defendant had sexually touched her. Her cousin Laura testified that, in 2011 or 2012, while on a family canoe outing, the complainant, crying and intoxicated, told her that defendant had abused her when she was younger and specifically recounted one incident. The complainant's sister, Brooke, testified that later in the canoe trip, she, the complainant, and Laura took a walk together. During the walk, Laura told Brooke that the complainant had said to her that defendant had been "molesting her ever since she was little." Brooke testified that the complainant then began to cry and recounted a specific incident in which defendant raped her in the living room while the rest of the family was out in the yard. The prosecution concedes, and we agree, that no exception to the hearsay rule applies to any of these statements, so admitting testimony recounting them was plain error and the failure to object constituted ineffective assistance of counsel. Given that the statements were clearly hearsay, and defense counsel conceded he had no strategic reasons for failing to object, we conclude that defense counsel's performance fell below an objective standard of reasonableness. Frazier, 478 Mich. at 243, 733 N.W.2d 713.

2. TESTIMONY OF DR. GUERTIN

Dr. Guertin conducted a forensic physical examination of the complainant seven years after the last alleged instance of abuse. Without objection, he recounted in detail the complainant's statements to him about the abuse. On appeal, defendant argues that the statements were inadmissible hearsay and that counsel should have objected. The prosecution responds that such an objection would have been futile because the statements were admissible pursuant to MRE 803(4) because they were made for the purposes of medical treatment or diagnosis.

"Statements made for the purpose of medical treatment are admissible pursuant to MRE 803(4) if they were reasonably necessary for diagnosis and treatment and if the declarant had a self-interested motivation to be truthful in order to receive proper medical care." People v. Mahone, 294 Mich.App. 208, 214–215, 816 N.W.2d 436 (2011). The "rationale for MRE 803(4) is the existence of (1) the self-interested motivation to speak the truth to treating physicians in order to receive proper medical care, and (2) the reasonable necessity of the statement to the diagnosis and treatment of the patient." People v. Meeboer (After Remand), 439 Mich. 310, 322, 484 N.W.2d 621 (1992). An injury need not be readily apparent. Mahone, 294 Mich.App. at 215, 816 N.W.2d 436. Moreover, "[p]articularly in cases of sexual assault, in which the injuries might be latent, such as contracting sexually transmitted diseases

or psychological in nature, and thus not necessarily physically manifested at all, a victim's complete history and a recitation of the totality of the circumstances of the assault are properly considered to be statements made for medical treatment." Id.

We agree with defendant that MRE 803(4) does not apply under the circumstances presented here. First, the examination by Guertin did not occur until seven years after the last alleged instance of abuse, thereby minimizing the likelihood that the complainant required treatment. Second, the complainant did not seek out Guertin for gynecological services. Rather, she was specifically referred to Guertin by the police in conjunction with the police investigation into the allegations of abuse by defendant.² And during the seven years since the last alleged incident of abuse, she had seen a different physician, who was not called as a witness, for gynecological care. Under these facts, the complainant's statements to Guertin were not admissible because they were not statements for the purposes of medical treatment. See People v. Kosters, 175 Mich.App. 748, 751, 438 N.W.2d 651 (1989) (holding that a nurse's testimony about the victim's statements was inadmissible because the statements were not reasonably necessary to medical diagnosis and treatment). The prosecution argues, on the basis of defense counsel's testimony at the Ginther hearing, that allowing the admission of hearsay statements by Guertin was strategic because defense counsel hoped to point out variations of fact in the complainant's statements. However, a review of Guertin's report, which was available to counsel before trial, readily reveals the absence of any significant inconsistencies; certainly none that could justify allowing a medical professional to offer extensive and highly damaging hearsay testimony. Accordingly, defense counsel's performance fell below an objective standard of reasonableness when he failed to object to Guertin's hearsay testimony. Frazier, 478 Mich. at 243, 733 N.W.2d 713.

3. TESTIMONY OF DETECTIVE REUST

The primary investigating officer was Detective Reust. Her testimony also contained numerous hearsay statements for which no exceptions were applicable. First, she, like other witnesses, recounted the out-of-court statements made to her by the complainant, including detailed descriptions of the alleged abuse. And in an example of hearsay within hearsay, i.e., double hearsay, she testified to the statements of Guertin that described in detail the complainant's statements to him.

Reust also testified extensively about how she confirmed numerous background facts that the complainant reported to her. She recounted statements made by the...