People v. Trakhtenberg

Citation826 N.W.2d 136,493 Mich. 38
Decision Date21 December 2012
Docket NumberDocket No. 143386.,Calendar No. 2.
PartiesPEOPLE of the State of Michigan, Plaintiff–Appellee, v. Jacob TRAKHTENBERG, Defendant–Appellant.
CourtSupreme Court of Michigan

493 Mich. 38
826 N.W.2d 136

PEOPLE of the State of Michigan, Plaintiff–Appellee,
Jacob TRAKHTENBERG, Defendant–Appellant.

Docket No. 143386.
Calendar No. 2.

Supreme Court of Michigan.

Argued Oct. 10, 2012.
Decided Dec. 21, 2012.

[826 N.W.2d 138]

Bill Schuette, Attorney General, John J. bursch, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Matthew A. Fillmore, Assistant Prosecuting Attorney, for the people.

Robyn B. Frankel, for defendant.



[493 Mich. 42]This case requires us to determine whether collateral estoppel may be applied to preclude review of a criminal defendant's claim of ineffective assistance of counsel when a prior civil judgment held that defense counsel's performance did not amount to malpractice. We hold that collateral estoppel may not be applied in these circumstances because defendant did not have a full and fair opportunity to litigate his ineffective-assistance-of-counsel claim, contrary to the requirements of the doctrine itself.

[826 N.W.2d 139]

Given our conclusion that collateral estoppel is inapplicable, we must also determine whether defendant [493 Mich. 43]was deprived of his right to the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We hold that defense counsel's performance was constitutionally deficient because she failed to exercise reasonable professional judgment when she decided to forgo any investigation of the case before settling on a defense strategy. That deficiency prejudiced defendant by undermining the reliability of the outcome of his trial, which rested solely on the credibility of the complainant and defendant. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the trial court for a new trial.


Defendant was charged with five counts of second-degree criminal sexual conduct (CSC–II) for allegedly touching the genitals of his eight-year-old daughter and forcing her to touch his genitals. During the bench trial, the complainant testified that defendant touched her three or four times (once or twice while she was in defendant's bed at night) and would lower her hand to his genitals. Liliya Tetarly, the complainant's mother and defendant's ex-wife, testified that in 2004 the complainant developed yeast infections. On direct examination, Tetarly denied asking defendant to treat the yeast infections with ointment and stated that the complainant became upset when she had to go to defendant's home. Defense counsel did not cross-examine Tetarly. As the only defense witness, defendant testified that he never forced the complainant to touch his genitals and that he touched the complainant's genitals six times to apply medication at Tetarly's insistence after a heated argument over whether it was appropriate for him to apply the ointment. Defendant [493 Mich. 44]was convicted of three counts of CSC–II. Two counts were based on evidence that defendant touched the complainant and one count was based on evidence that defendant forced her to touch his genitals. After the parties' closing arguments, the trial court commented that “very little's clear to me in this case, starting with what the allegations are that go to each count.”

On direct appeal, defendant argued that defense counsel was ineffective for failing to impeach Tetarly with evidence of bias pertaining to their divorce four years earlier. Defendant argued that Tetarly had attempted to hit him with her car, which was supported by a police report, and assaulted him while he was driving, which resulted in Tetarly's arrest on domestic violence charges. The Court of Appeals denied defendant's motion for an evidentiary hearing pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973), 1 and held that defense counsel was not ineffective for failing to impeach Tetarly because the record lacked evidence to show that she was still upset over the divorce. People v. Trakhtenberg, unpublished opinion per curiam of the Court of Appeals, issued March 27, 2007 (Docket No. 268416), 2007 WL 914625. Defendant applied for leave to appeal in this Court, which was denied. People v. Trakhtenberg, 480 Mich. 856, 737 N.W.2d 729 (2007).

Defendant subsequently filed a legal malpractice claim against defense counsel,

[826 N.W.2d 140]

which the trial court dismissed upon defense counsel's motion for summary disposition. The Court of Appeals affirmed, holding that defense counsel's performance fell within the “attorney [493 Mich. 45]judgment rule.” Trakhtenberg v. McKelvy, unpublished opinion per curiam of the Court of Appeals, issued October 27, 2009 (Docket No. 285247), 2009 WL 3465436.2 See, also, Simko v. Blake, 448 Mich. 648, 532 N.W.2d 842 (1995). Meanwhile, in his criminal case, defendant filed a motion for relief from judgment under MCR 6.508(D)(3), claiming that he was entitled to a new trial because he was denied the effective assistance of trial and appellate counsel and, alternatively, that newly discovered evidence warranted a new trial. The trial court denied the motion under MCR 6.508(D)(3)(b), and the Court of Appeals denied defendant leave to appeal. People v. Trakhtenberg, unpublished order of the Court of Appeals, entered March 20, 2009 (Docket No. 290336), 2011 WL 1902020. In lieu of granting leave to appeal, this Court retained jurisdiction and remanded the case to the Court of Appeals for consideration as on leave granted, and the Court of Appeals was ordered to remand the case to the trial court to conduct a Ginther hearing in order to evaluate defendant's claims. People v. Trakhtenberg, 485 Mich. 1132, 779 N.W.2d 823 (2010).

During the course of the Ginther hearing, voluminous testimony was taken. Tetarly admitted that she was dissatisfied with the divorce judgment and had made negative comments about defendant in front of the complainant. And, for the first time, Tetarly disclosed that before reporting the complainant's allegations of abuse to the authorities, she brought the complainant to a youth pastor. Tetarly stated that she then brought the complainant to CARE House, which provides intervention and treatment services for child victims of abuse, where Amy Allen, a CARE House [493 Mich. 46]employee, performed a forensic interview, during which the complainant alleged the abuse. The responding detective's police report states that the detective asked Tetarly to directly ask the complainant whether defendant had ever touched her “private parts” with his fingers. That questioning eventually led to the complainant's second formal allegation of abuse.

Allen, who was unaware that the complainant had spoken to others about the abuse, testified that it is important to know whether the child has spoken to anyone else in order to conduct a proper forensic interview because, as a result of repeated interviewing, a child might start to mistakenly believe that something happened to him or her. Additionally, Dr. Katherine Okla, a clinical psychologist specializing in sexual abuse, noted her concern regarding the complainant's knowledge of her mother's hatred of defendant and explained that Tetarly's leading and suggestive questions and the repeated questioning of the complainant (especially in a therapeutic rather than forensic setting) could have tainted the child's recollection of the events surrounding the alleged abuse. Defendant testified that he had requested that defense counsel consult with numerous witnesses including Allen and HT, who was defendant's son.

Defense counsel testified that her defense theory was two-fold: she would (1) impeach the complainant's trial testimony with an inconsistent statement regarding the number of times defendant made her touch him and (2) show that defendant

[826 N.W.2d 141]

lacked the requisite intent of sexual gratification to be convicted of CSC–II.3 Additionally,[493 Mich. 47]she advised defendant to waive his preliminary examination, and she did not demand discovery, obtain Allen's notes, or interview any witnesses because she felt that any further information was irrelevant to the defense theories. Defense counsel testified that she was unaware of the complainant's continued therapy, her feelings toward defendant, her testimony in the civil trial that defendant applied medication to her vagina, and her meeting with a youth pastor.

Following the hearing, the trial court ruled that defense counsel was ineffective and defendant was entitled to a new trial. The Court of Appeals reversed, reasoning, in part, that collateral estoppel precluded the Court from reviewing the performance of defense counsel because in defendant's legal malpractice case, the Court had held that defense counsel's performance fell within the “attorney judgment rule.” The Court further held that counsel was not ineffective on the basis of the claims of error left for its review. People v. Trakhtenberg, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2011 (Docket No. 290336), 2011 WL 1902020. Defendant sought leave to appeal in this Court, which we granted. People v. Trakhtenberg, 490 Mich. 927, 805 N.W.2d 502 (2011).


This Court reviews de novo the application of a legal doctrine, including collateral estoppel. Estes v. Titus, 481 Mich. 573, 578–579, 751 N.W.2d 493 (2008). The 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. Armstrong, 490 Mich. 281, 289, 806 N.W.2d 676 (2011).

[493 Mich. 48]III. ANALYSIS

Generally, the proponent of the application of collateral estoppel must show “that (1) a question of fact essential to the judgment was actually litigated and determined by a valid and final judgment, (2) the same parties had a full and fair...

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