If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

February 13, 2020

v No. 342621

Roscommon Circuit Court

TYLER MATTHEW BRIGHAM, LC No. 17-007819-FH

Defendant-Appellant.

Before: FORT HOOD, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

Defendant, Tyler Matthew Brigham, appeals as of right his conviction by a jury of thirddegree criminal sexual conduct (CSC-III), MCL 750.520d(1)(b) (penetration using force or 

coercion). The trial court sentenced him to 35 months’ to 15 years’ imprisonment. We affirm.

Defendant’s conviction arose from the sexual penetration of the victim, CP, during the 

early morning hours of February 14, 2016, after an informal party at a home in Roscommon. In a 

police interview after CP reported the incident, defendant denied having any sexual contact at all 

with CP that night. The police initially believed him. After testing of CP’s underwear showed 

DNA consistent with defendant, the police concluded that he had lied in his interview, and 

defendant was charged with CSC-III. At trial, defendant’s attorney, Aaron Coltrane, focused from 

the outset—by way of his arguments and witness examinations—on a defense of consensual sex, 

although in the midst of trial he also tried to plant a small seed of doubt regarding whether any sex 

had occurred at all. After his conviction, defendant filed a motion for a new trial, which the trial 

court denied. This Court granted defendant’s motion for a remand, and an evidentiary hearing 

took place regarding defendant’s claim that Coltrane had rendered ineffective assistance of counsel 

at trial. After the evidentiary hearing, the trial court again denied defendant’s motion for a new 

trial.

I. UNPRESERVED ALLEGATIONS OF ERROR 

Defendant contends that trial errors occurred in connection with (1) testimony and 

commentary regarding defendant’s credibility during his police interview, (2) statements by the 

trial court that allegedly amounted to testimony, and (3) testimony by the police regarding 
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defendant’s failure to submit to a second interview. He also contends that, in each instance, 

Coltrane rendered ineffective assistance of counsel by failing to object to or otherwise address the 

errors. 

This Court reviews unpreserved issues for plain error affecting substantial rights. People

v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Under the plain-error doctrine, reversal is 

warranted if a “clear or obvious” error occurred that “affected the outcome of the lower court 

proceedings.” Id. And even if this standard is satisfied,

an appellate court must exercise its discretion in deciding whether to reverse. 

Reversal is warranted only when the plain, forfeited error resulted in the conviction 

of an actually innocent defendant or when an error seriously affected the fairness, 

integrity or public reputation of judicial proceedings independent of the defendant’s 

innocence. [Id. at 763-764 (citation, quotation marks, and brackets omitted).] 

“Whether a person has been denied effective assistance of counsel is a mixed question of 

fact and constitutional law. A judge must first find the facts, and then must decide whether those 

facts constitute a violation of the defendant’s constitutional right to effective assistance of 

counsel.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The court’s findings of 

fact are reviewed for clear error, and questions of constitutional law are reviewed de novo. Id.

To obtain relief based on ineffective assistance of counsel, a party “must show that 

counsel’s performance fell short of [an] . . . objective standard of reasonableness and that, but for 

counsel’s deficient performance, there is a reasonable probability that the outcome of the . . . trial 

would have been different.” People v Ackley, 497 Mich 381, 389; 870 NW2d 858 (2015) 

(quotation marks, citation, and brackets omitted). “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. (quotation marks and citation omitted). 

A defendant must overcome a strong presumption that counsel’s actions were based on sound trial 

strategy. Id. at 388.

A. COMMENTARY REGARDING DEFENDANT’S CREDIBILITY

Defendant contends that Trooper Tyler Dougherty and Lieutenant Rick Sekely with the 

Michigan State Police improperly testified that defendant was not credible during his police 

interview when he said that no sex had taken place between him and CP. Defendant also takes 

exception to certain comments the trial court and prosecutor made in connection with the 

testimony. Finally, defendant objects to a statement made by Trooper Dougherty during the 

interview itself. 

1. PLAIN-ERROR ANALYSIS 

We note, initially, that certain portions of the testimony and commentary cited by defendant 

were simply not erroneous. “It is generally improper for a witness to comment or provide an 
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opinion on the credibility of another witness,[1]because credibility matters are to be determined by 

the jury.” People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007); see also People v Musser, 

494 Mich 337, 349; 835 NW2d 319 (2013). However, a witness may comment on another 

witness’s demeanor. See, generally, Dobek, 274 Mich App at 71. Accordingly, Trooper 

Dougherty’s testimony about defendant’s demeanor of leaning back during the interview and 

Coltrane’s reference to this demeanor during questioning were not plainly erroneous. In addition, 

Trooper Dougherty’s statement that “we have our . . . ways of . . . talking to somebody to try to 

figure out the truth” was not a direct comment on defendant’s credibility and therefore was not 

plainly erroneous. Nor did Lieutenant Sekely, during his testimony, directly comment on 

defendant’s credibility; he answered a hypothetical question about what it means if he obtains a 

statement from a person and the “statement was [the] complete opposite of what the evidence 

shows.” And he again was answering a hypothetical question when opining that lying to police 

officers is worse than lying to one’s mother about eating a cookie. Finally, the trial court did not 

directly comment on defendant’s credibility when it allowed certain testimony by Trooper 

Dougherty because, in the trial court’s words, the trooper had experience with “deceptive training 

and things of that nature and interviewing techniques.” References to a police officer’s training in 

general are not inappropriate, see, generally, People v Ramsdell, 230 Mich App 386, 404; 585 

NW2d 1 (1998), but more importantly, the court’s ruling benefited the defense because Coltrane 

was able to imply, from the further allowed questioning, that it would be very frightening for a 22-

year-old such as defendant to be interviewed by the police.

 We agree with the prosecutor that it is the following three instances that could potentially 

be construed as improper comments on credibility: Trooper Dougherty’s statement during the 

interview itself when he said, “And, from what [CP] says happened, looks like what happened;” 

Trooper Dougherty’s testimony that he was seeing a “lot more” deception in the interview video 

after gaining experience as a trooper; and the prosecutor’s question to Lieutenant Sekely during 

which she referred to “the fact that [defendant] was not truthful during his . . . interview with you 

guys[.]”2 

The statement made by Trooper Dougherty during the interview itself was not prejudicial 

because the jury was clearly informed that Trooper Dougherty, around the time of the interview, 

did not in fact believe that the offense had “happened” as described by CP. He testified, “[A]t the 

time I believed [defendant] and he stated that no sexual assault had occurred and nothing sexual 

along the lines [sic] occurred that night.” The statement from the interview that defendant 

challenges on appeal was not outcome-determinative. Carines, 460 Mich at 763.

We find that the other two instances also did not amount to outcome-determinative errors. 

Id. First, in Dobek, 274 Mich App at 71, a police officer testified that he had “no concerns about 

lying” by the victim in that case. This Court stated, “Given that [the officer] was called as a witness 

by the prosecutor and that a criminal prosecution against defendant was pursued, the jurors surely 

 

1 Defendant was, in essence, a “witness” in this case because his videotaped interview was played 

for the jury.

2 The prosecutor asked Lieutenant Sekely if he “look[ed] at” this fact, and Lieutenant Sekely 

answered, “Yes.”
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understood that [the officer] believed that the victim was telling the truth even without the disputed 

testimony.” Id. The pertinent circumstances in the present case are analogous. In addition, it is 

apparent from all the circumstances that Coltrane’s primary theory was consent. In his opening 

statement, Coltrane said that the evidence would show that CP was drunk and “all over everybody”

at the party. He said that she wanted “love or affection[.]” He talked about her wanting to turn 

the gay man who was present at the party “straight.” He said, “[I]t was Valentines [sic] Day and 

she was recently divorced.” He said that the bedroom lock where CP was sleeping could only be 

opened from the inside. Coltrane stated, “[T]here’s only one conclusion. That is that it wasn’t 

forceful, it wasn’t rape.” Coltrane conducted an extremely thorough cross-examination of CP in 

which he implied, among other things, that she was lonely, that she wanted to turn the gay man 

straight, that she spent a lot of time talking to defendant on the night in question, that she wanted 

companionship that night, and that she was flattered by the attentions of someone as young as 

defendant. In his closing argument, Coltrane said that CP gave “different stories,” that there were 

no signs of physical force on CP, and that the prosecution had not established its case beyond a 

reasonable doubt. He said that defendant “did not forcefully rape” CP.

This primary theory of consent was reasonable in light of DNA evidence linking defendant 

to sexual activity with CP.3 Admitting that defendant lied during his police interview was part and 

parcel of this defense. The implication Coltrane made through cross-examination was that 

defendant lied because of nervousness and because of not wanting to admit that he had sex with 

CP because his fiancée, who was also at the party on the night in question, had come with him to 

the police station for the interview. Given the primary theory put forward,4and given that the 

jurors would have assumed that the police disbelieved defendant’s assertion during the interview 

that no sex had occurred between him and CP, see id., no outcome-determinative error is apparent.

2. INEFFECTIVE-ASSISTANCE ANALYSIS

At the Ginther hearing, Coltrane testified that his primary trial strategy was to suggest that 

the sex had been consensual. Defendant’s new attorney, Shannon Smith, asked Coltrane at the 

Ginther hearing why he did not object to testimony about signs of deception. Coltrane said that 

he was trying to paint the police in a poor light.

 

3 The DNA evidence is discussed more thoroughly later in this opinion. There was no conclusive 

DNA match such as one sometimes finds in other cases; the evidence showed only certain 

probabilities that the DNA in CP’s underwear was from defendant or a paternal relative of 

defendant. These probabilities, however, were extremely damaging in light of the fact that CP and 

defendant were both at the party and in light of CP’s testimony that defendant raped her.

4 As explained more thoroughly infra, Coltrane, during the course of trial and likely in response to 

certain questions posed by the jurors, changed his strategy slightly and adopted a somewhat 

“blended” defense in which he was arguing consent but also attempting to plant a small seed that 

there may have been no sexual contact at all between defendant and CP. Given the evidence 

produced at trial, we do not think the challenged statements about defendant’s credibility were the 

determining factor for the jury’s rejection of this “secondary” theory. 
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Given what defendant told police—that he did not have any sex with CP—and given the 

DNA evidence and defendant’s admission to Coltrane from the very start of the attorney-client 

relationship that he had indeed had sex with CP,5 Coltrane was in a difficult position.6 In his 

questioning of the police, he emphasized that they did not go to the crime scene or investigate the 

doors in the house. It was clearly part of his trial strategy to imply that the police investigation 

had been shoddy. It was reasonable trial strategy to allow the officers to opine about defendant’s 

deception in the interview, because this raises the specter of why the police did not pick up on this 

deception in the first place but only came to the “deception” conclusion after receiving the DNA 

results. This is particularly pertinent with regard to Trooper Dougherty, who was a very new 

trooper at the time of the incident and said that later, after gaining experience, he saw more 

deception. That Trooper Dougherty changed his mind about defendant’s believability supported 

the theory that he had been less than thorough in his investigations soon after the incident occurred.

At any rate, even if Coltrane’s actions fell below an objective standard of reasonableness, 

defendant, given the posture of the defense, the DNA evidence, and the fact that the jury would 

presume that the police witnesses disbelieved defendant’s “no sex” assertion, see Dobek, 274 Mich 

App at 71, defendant cannot show a reasonable probability that the outcome of the trial would have 

been different if counsel had acted differently, Ackley, 497 Mich at 389.7

B. INFRINGEMENT OF DEFENDANT’S FIFTH AND SIXTH AMENDMENT RIGHTS 

Defendant contends that certain testimony by Trooper Dougherty and Lieutenant Sekely 

infringed on his constitutional rights to counsel and to remain silent, see US Const, Ams V and 

VI, because the officers informed the jury that defendant was not speaking to the police after 

receiving advice from counsel. We note, initially, that Lieutenant’s Sekely simply made no 

comment about defendant’s right to silence or retention of an attorney. Lieutenant Sekely stated 

that he that he “attempted” to follow up with defendant and “did intend” to follow up with him, 

but he gave no indication regarding why this follow-up did not occur. Defendant has shown no 

“clear or obvious” error or any ineffective assistance of counsel in association with the testimony. 

Carines, 460 Mich at 763; Ackley, 497 Mich at 389.

During his cross-examination of Trooper Dougherty, Coltrane asked why Trooper 

Dougherty did not visit the scene of the incident. Trooper Dougherty said, “We got the DNA that 

we needed . . . and then after the original incident I was advised not to have any form of contact 

 

5 Defendant conceded that he told Coltrane this.

6 He could not, for example, put defendant on the stand to deny sex with CP, given that defendant 

admitted to the sex. See, e.g., MRPC 3.4(b) (indicating that a lawyer shall not assist a witness in 

testifying falsely).

7 We reject defendant’s implication that the court’s failure to recite the words “reasonable 

probability” in its ruling, see Ackley, 497 Mich at 389, requires reversal. It is evident that the trial 

court knew and was applying the pertinent legal standards.
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with ah, [defendant]. So, that also played a part into [sic] the investigation.” Defendant takes 

issue with the following colloquy that subsequently occurred:

Q. You were advised not to have any—

A. Contact with [defendant].

Q. Was that—

A. From a defense attorney.

Q. From a defense attorney.

A. Yes.

Q. Did you ah, you did attempt to interview [defendant] again I believe?

A. Yeah, but that—but that was when I was advised not to have any contact 

with him.

In People v Schollaert, 194 Mich App 158, 160-161; 486 NW2d 312 (1992), a police 

officer testified that when the police went to the defendant’s house to take him in for questioning, 

defendant never asked why the police were there or made any statements aside from saying, “ 

‘Come on in.’ ” This Court ruled that “the admission as substantive evidence of testimony 

concerning a defendant’s silence before custodial interrogation and before the Miranda[8] warnings 

have been given is [not] a violation of the defendant’s constitutional rights.” Id. at 164. The 

Schollaert Court arrived at this conclusion after reviewing much of the very same caselaw that 

defendant relies upon on appeal. There is no indication that when Trooper Dougherty approached 

defendant for a follow-up interview, defendant was subject to a custodial interrogation and had 

been given the Miranda warnings. Under the ruling of Schollaert, there was no violation of 

defendant’s right to remain silent. 

In Salinas v Texas, 570 US 178, 181; 133 S Ct 2174; 186 L Ed 2d 376 (2013) (opinion by 

ALITO,J.), the United States Supreme Court addressed circumstances similar to those in Schollaert, 

regarding the introduction into evidence of a defendant’s silence that occurred before placement 

into custody and before the giving of Miranda warnings. The Court had granted certiorari “to 

resolve a division of authority in the lower courts over whether the prosecution may use a 

defendant’s assertion of the privilege against self-incrimination during a noncustodial police 

interview as part of its case in chief.” Id. at 183. The lead opinion stated, “[B]ecause petitioner 

did not invoke the privilege during the interview, we find it unnecessary to reach that question.” 

Id. The lead opinion stated that “it would have been a simple matter for [defendant] to say that he 

was not answering the officer’s question on “Fifth Amendment grounds.” Id. at 186. It indicated 

that for the defendant’s argument on appeal to have been successful, the defendant must have 

 

8 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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“expressly” invoked the privilege. See id. at 188. It stated that while reliance on the Fifth 

Amendment might be the most likely reason for a failure to answer police questions, there may be 

other reasons, such as an attempt to protect someone else. Id. at 189.

9

The record here does not contain sufficient evidence that defendant was invoking his Fifth 

Amendment rights. There could have been other reasons why defendant’s attorney advised 

defendant not to answer police questions, such as a fear of harassment. In light of Schollaert and

Salinas, defendant has not established any Fifth Amendment error in connection with Trooper 

Dougherty’s testimony. 

To the extent that defendant is arguing that Trooper Dougherty’s testimony somehow 

violated his right to counsel, this argument, too, is unsupported because the right to counsel does 

not attach until “after adversarial legal proceedings have been initiated against a defendant by way 

of indictment, information, formal charge, preliminary hearing, or arraignment[.]” People v Hieu 

Van Hoang, 328 Mich App 45, 55; 935 NW2d 396 (2019) (quotation marks and citation omitted). 

There is no indication that adversarial legal proceedings had been initiated at the time Trooper 

Dougherty approached defendant.

Defendant has not met his burden of showing a clear or obvious error and has not shown 

that counsel acted unreasonably with regard to Trooper Dougherty’s testimony. Carines, 460 Mich 

at 763; Ackley, 497 Mich at 389.

C. TESTIMONY BY THE TRIAL COURT 

Defendant contends that the trial court improperly gave testimony at trial regarding (1) the 

lock on the bedroom door where CP slept on the night in question and (2) the way messaging 

works on Facebook.

1. LOCK COMMENT

Regarding the lock on the door of the bedroom where CP slept on the night in question, 

Trooper Dougherty stated, “We were informed that the door was a one-way lock and if I recall 

correctly, [the homeowners] said there’s a little hole on the one side of the door that can pop the 

lock and open the door.

10

 Lieutenant Sekely testified on direct examination that the lock was of a 

type that is opened with a key that is “almost like a pin, it’s not much bigger than a paper clip. A 

. . . larger paper clip and yeah.” The prosecutor asked whether the type of lock on the door could 

be unlocked with something other than a key. Lieutenant Sekely said, “Ah, yes. You could ah, 

straighten out a paper clip. You could use a small nail.” Coltrane objected, stating that Lieutenant 

 

9 A majority of the justices in Salinas concurred that no Fifth Amendment violation had occurred. 

Two of the justices went further, however, and asserted that the defendant’s “claim would fail even 

if he had invoked the privilege” because, in the view of those justices, the Fifth Amendment simply 

does not prohibit comments about a defendant’s silence under any circumstances. Id. at 192-193 

(opinion by THOMAS, J.).

10 CP testified that the door had a “pin-hole” lock.
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Sekely had not actually seen the lock. The court said, “I . . . agree.” The prosecutor responded by 

saying that one of the homeowners, Lori Middleton, had told Lieutenant Sekely what “[t]ype of 

lock it was.” The prosecutor asked, “Isn’t that correct?” and Lieutenant Sekely answered, “That’s 

correct.” The prosecutor asked again if Middleton had told Lieutenant Sekely about the lock. 

Lieutenant Sekely said, “[W]hat I’m describing about the locks is what I was told by [Middleton].” 

The court said, “But we still don’t have the lock, we don’t have a picture of it.” The prosecutor 

said, “No, we don’t.” The court said, “So, I . . . think it’s been testified multiple times that a paper 

clip can trip this lock and a straight key can.” Defendant objects to this last statement by the court. 

Defendant has not established plain error in conjunction with the court’s statement. 

Defendant frames the issue as involving a violation of the right to confrontation. Defendant argues 

that “he had no opportunity to question the judge to show that he . . . did not know anything about 

that lock.” A defendant does have the right to confront witnesses against him or her. People v 

Ho, 231 Mich App 178, 189; 585 NW2d 357 (1998). “If a defendant has been limited in his ability 

to cross-examine the witnesses against him, his constitutional right to confront witnesses may have 

been violated.” Id. But the trial court was not a “witness against defendant” when it made the 

comment about the lock. The court stated that “it’s been testified multiple times that a paper clip 

can trip this lock and a straight key can.” (Emphasis added.) Trooper Dougherty testified about 

the “hole” by which one could “pop the lock and open the door.” Lieutenant Sekely said that a 

paper clip or a small nail or a key that was like “a larger paper clip” could open the lock. The court 

was summarizing the testimony that had already been given—not giving testimony itself. Under 

these circumstances, there was no clear or obvious violation of defendant’s right to confrontation. 

See Carines, 460 Mich at 763. With regard to the claim of ineffective assistance of counsel, even 

assuming, for purposes of argument, that Coltrane should have objected to the court’s comment, 

defendant has not established the requisite prejudice. Indeed, the testimony by Trooper Dougherty 

and Lieutenant Sekely conveyed the same information, and the court’s statement adequately 

conveyed that it was simply referring to earlier testimony. There is no reasonable probability that 

the court’s comment affected the outcome of the case. Ackley, 497 at 389. Although defendant 

claims that he had no opportunity to set forth the fact that “the judge . . . did not know anything 

about that lock,” this was patently evident from the context and content of the court’s comment.11

2. FACEBOOK COMMENT

The Facebook comment arose after CP testified that she received a Facebook message from 

defendant around 4:00 a.m. on the night in question. A juror posed a question, asking whether 

defendant needed CP’s cellular-telephone number to send her a Facebook message. CP said that 

 

11 In his supplemental brief on appeal, defendant contends that it was “not reasonable for the judge 

even to allow testimony about the properties of a lock from witnesses who had never seen the 

lock.” Defendant does not support this statement with any authority and, at any rate, we find that 

it is an improper attempt to expand the issue as presented before remand. See People v Brigham, 

unpublished order of the Court of Appeals, entered February 8, 2019 (Docket No. 342621) (noting 

that the remand proceedings and the supplemental brief were limited to the issues raised in the 

motion to remand). Defendant’s focus before remand was that the court gave improper testimony 

and that Coltrane had not been given an opportunity to cross-examine the court.
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he did not. The court said, “With Facebook it’s a completely different system, if you’re on 

Facebook and he’s on Facebook he can message you. Although if you’re not friends you wouldn’t 

get that message until you friended him.” CP then said, “Right.” She said, “Cuz . . . I was friends 

with [Middleton] on Facebook so I would have been on her friends list [for defendant] to find me 

there.” She said, “And then he can send me a message but I, it doesn’t give you an alert. It’s still 

in my Facebook inbox thing where I can accept it or I can decline the message—” The prosecutor 

said, “[F]or someone who might not be clear on Facebook . . . you don’t have to be friends to 

message somebody[?]” CP replied, “No, but that’s when you don’t get the alert that there’s a 

message so, for friends on Facebook and you message me I’ll get an alert that I have a message.” 

She indicated that the message would be “in my Facebook inbox thing where I can accept it or I 

can decline the message. . . .”

Defendant states on appeal, “As for Facebook, the judge, even if he knew the ins and outs 

of that website as of the time in question, the information still must come from a witness, not from 

a judge who cannot be cross-examined, and whose word will be taken as the truth.” It appears that 

there was in fact a clear or obvious error, see Carines, 460 Mich at 763, with regard to the court’s 

statement about Facebook, and indeed the court appears to have admitted as much in post-trial 

proceedings. The court appears to have been giving a statement of alleged fact about Facebook. 

However, defendant has not shown that this error was outcome-determinative. The court stated 

that a person who is on Facebook can message a second person who is on Facebook, although the 

second person would not “get that message” until he or she “friended” the first person. If anything, 

the court’s comment aided the defense, because it suggested that CP could not have read the 

message from defendant unless she “friended” him. CP testified that she did not read the message 

until a day or two after the incident; her having “friended” defendant a day or two after the charged 

incident would have been detrimental to the prosecutor’s case.

Defendant has not established entitlement to relief under the plain-error doctrine and 

cannot show a reasonable probability, in conjunction with his ineffective-assistance claim, that the 

outcome of the case would have differed had he objected to the court’s comment about Facebook. 

Id.; Ackley, 497 at 389.

II. DEFENDANT’S RIGHT TO TESTIFY 

Defendant contends that reversal is mandated because the record contains no on-the-record 

waiver, by him as opposed to Coltrane, of his right to testify. Whether a defendant’s waiver of the 

right to testify must occur on the record is an issue of law. We review issues of law de novo. 

People v Aspy, 292 Mich App 36, 40; 808 NW2d 569 (2011).

A defendant has a constitutional right to testify, and although defense counsel must advise 

the defendant of this right, it is ultimately the defendant’s decision regarding whether to testify. 

People v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). But “[t]here is no 

requirement in Michigan that there be an on-the-record waiver of a defendant’s right to testify.” 

People v Harris, 190 Mich App 652, 661; 476 NW2d 767 (1991). In Harris, id. at 661-662, the 

Court stated that “the trial court had no duty to advise [the defendant] of the right [to testify], nor 
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was it required to determine whether she made a knowing and intelligent waiver.”12 Harris is 

dispositive with regard to defendant’s claim that error occurred by virtue of the fact that the trial 

record shows no explicit waiver of his right to testify.

 Defendant also contends that Coltrane rendered ineffective assistance of counsel by 

failing to adequately advise him of the right to testify. This argument, too, is not tenable. A 

defendant has the burden of establishing the factual predicate for a claim of ineffective assistance 

of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Defendant said at the Ginther

hearing that he did not “know that [he] had really a say” regarding whether to testify. Defendant’s 

statement is belied by the trial record, however. During jury selection, in the presence of 

defendant, Coltrane asked the potential jurors, “Would you guys promise to me that one way or 

the other, we won’t know but will you guys promise me that you won’t judge [defendant] if . . . he 

decides not to testify? If we decide together?” Coltrane then said, “That’s his constitution [sic] 

right.” As noted, Coltrane referred to defendant “decid[ing] not to testify.” In addition, 

defendant’s father said in a sentencing letter, “My son should have testified but unfortunately all 

the advice that we were given was it wasn’t necessary based on the evidence.” In his closing 

argument, Coltrane stated that “we made” the decision to have defendant refrain from testifying 

and asked the jurors to refrain from holding this against defendant. Coltrane denied at the Ginther 

hearing that it was solely his (i.e., Coltrane’s) decision that defendant not testify. The record 

supports that defendant did, in fact, know that he had a “say” in whether to testify. 

Defendant also argues that Coltrane rendered ineffective assistance by advising defendant 

not to testify because defendant’s testimony was necessary for the consent defense. As delineated 

in part I.A.1. of this opinion, Coltrane brought up the consent defense in other ways. In addition, 

Coltrane stated at the Ginther hearing that “[t]here were things that we didn’t want to go into . . . 

that we thought would hurt our position.” Given that defendant, if he testified, would have been 

subject to a withering cross-examination in connection with his police interview, this statement by 

Coltrane carries weight. Defendant has not overcome the strong presumption of sound trial 

strategy. Ackley, 497 Mich at 388.

III. HEARSAY

Defendant contends that testimony by witness Mark Lamse was inadmissible hearsay. This 

Court reviews for an abuse of discretion a trial court’s decision regarding the admission of 

evidence. People v Denson, 500 Mich 385, 396; 902 NW2d 306 (2017). 

Lamse testified that CP texted him on the evening in question and “kinda ah, eluded [sic] 

to the fact that you know, someone was kinda giving her the creeps or she was glad she had a lock 

on the door or something to that nature.” The prosecutor said, “And you indicated that she did 

mention that somebody was being kinda creepy[?]” Lamse responded, “Yeah.” Defendant objects 

 

12 Contrary to defendant’s argument, Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed 

2d 552 (2005), does not contradict Michigan caselaw indicating that the waiver of the right to 

testify need not be shown on the record.
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to the admission of Lamse’s testimony and claims that it amounted to using CP’s out-of-court 

statement to prove that defendant was acting “creepy.” 

MRE 803(3) states that the following is not excluded by the hearsay rule:

A statement of the declarant’s then existing state of mind, emotion, 

sensation, or physical condition (such as intent, plan, motive, design, mental 

feeling, pain, and bodily health), but not including a statement of memory or belief 

to prove the fact remembered or believed unless it relates to the execution, 

revocation, identification, or terms of declarant’s will.

In People v Ortiz, 249 Mich App 297, 300; 642 NW2d 417 (2001), the defendant was 

convicted of murdering his ex-wife. The trial court admitted several statements of the victim into 

evidence under MRE 803(3), including statements “that the victim was afraid of [the] defendant, 

[and] that she thought [the] defendant was stalking her.” Id. at 307. This Court upheld admission 

of the statements, ruling, in part, that “[e]vidence of the victim’s state of mind, [and] evidence of 

the victim’s plans, which demonstrated motive (the ending of the marriage and the tension between 

the victim and the defendant), . . . were admissible under MRE 803(3).” Id. at 310. The situation 

in Ortiz is somewhat analogous to the present case, because Lamse was, in effect, testifying about 

CP’s discomfort as a result of the behavior of a person at the party.

Defendant, however, relies on People v Moorer, 262 Mich App 64; 683 NW2d 736 (2004). 

In that case, the defendant was convicted of killing the person who was dating his estranged wife. 

Id. at 65. “The trial court permitted several witnesses to . . . testify that [the victim] told them that 

[the] defendant had threatened [the victim’s] life.” Id. at 66-67. A witness also stated that the 

victim told him that defendant “was looking for [the victim] with a pistol[.]” Id. The defendant 

conceded that “the challenged statements in part concerned [the victim’s] state of mind,” but 

argued “that they also . . . described actions by [the] defendant” and thus did not fall within the 

parameters of MRE 803(3). Id. at 72. The Moorer Court ruled that the analysis in Ortiz was 

“cursory” and provided “no reliable basis for the admission of the alleged hearsay statements at 

issue in” Moorer. Id. at 72. The Moorer Court ruled that the statements at issue were not 

admissible because they were “statements of mind . . . based on past events[.]” Id. at 73. It 

emphasized that out-of-court statements involving past events could not be used to prove the past 

events. Id. at 73-74.

In some ways, the present case is similar to Moorer, because when CP told Lamse that she 

felt uncomfortable because of someone being “creepy,” this was, viewed in context, a statement 

that defendant, before CP’s statement to Lamse—i.e., in the past—had been acting in a certain 

manner—i.e., in a “creepy” manner. It could be argued that the prosecutor, by having Lamse 

testify, was trying to prove the past event (involving defendant acting strangely). In other ways, 

however, the present case is dissimilar to Moorer, because the primary point of the prosecutor’s 

introduction of the statement was to show that CP was feeling a certain way and that, in light of 

this feeling, she would not have voluntarily had sex with defendant. Cf. People v Smelley, 285 

Mich App 314, 325-326; 775 NW2d 350 (2009), vacated in part on other grounds 485 Mich 1023 

(2010) (indicating that the out-of-court statements in that case were admitted primarily for 

demonstrating the truth of certain acts committed by the defendant, not for demonstrating the 

declarant’s state of mind).
-12-

We conclude that we need not decide whether Lamse’s testimony was admissible under 

Ortiz or inadmissible under Moorer, because “evidentiary error does not require reversal unless, 

after an examination of the entire cause, it appears more probable than not that the error affected 

the outcome of the trial in light of the weight of the properly admitted evidence.” Id. at 327. 

Defendant concedes that a witness can testify that a speaker was upset during a conversation. As 

such, Lamse could properly testify about CP’s discomfort in general. The only objectionable part 

of Lamse’s testimony was that CP attributed this feeling to the actions of a person at the party.13 

But CP herself clearly and repeatedly testified that it was defendant’s actions that made her feel 

uncomfortable. In fact, she referred to the texting conversation with Lamse, saying, “I had 

messaged [Lamse] because at one point I felt very uncomfortable so I went up to [Middleton] and 

I said what’s up with [defendant], he’s kinda freaking me out.” Defendant did not challenge this 

testimony below and does not challenge it on appeal. Given that CP testified to the same 

information now being challenged on appeal and given that Lamse could properly testify about 

CP’s discomfort in general, it is not “more probable than not” that any error associated with 

Lamse’s testimony affected the outcome of the case. Id.

14

IV. ADDITIONAL ALLEGATIONS OF INEFFECTIVE ASSISTANCE

 Defendant raises four additional areas in which he believes that Coltrane rendered 

ineffective assistance of counsel. He claims that Coltrane was ineffective by dealing with the 

laboratory reports in an unreasonable manner, by failing to object to the admission of sexualassault-nurse-examiner (SANE) evidence, by failing to object to improper arguments by the 

prosecutor, and by failing to dismiss a juror during jury selection.

A. LABORATORY REPORTS

There were two laboratory reports introduced at trial: the initial report of preliminary 

testing by Tara Lang Cramer, who testified at trial, and the report of DNA testing by Michelle 

 

13 While it is true that Lamse did not refer to defendant by name in his testimony, it is clear from 

context that CP, in her statement to Lamse about which Lamse was testifying, was referring to 

defendant.

14 Defendant appears to be contending that Coltrane rendered ineffective assistance of counsel by 

not objecting to Lamse’s testimony on the basis of MRE 402 and MRE 403. He states that “[t]he 

state of mind of the complainant was not relevant” and that the testimony “was more prejudicial 

than probative.” This argument is without merit. CP’s state of mind was relevant and in fact it 

was highly relevant. That CP felt uncomfortable on the evening in question made it less likely that 

she consented to having sex with a person she had just met. Coltrane’s failure to object on the 

basis of MRE 402 and MRE 403 did not fall below an objective standard of reasonableness. 

Ackley, 497 Mich at 389. Moreover, the failure to object was not reasonably likely to have affected 

the outcome of the case, id., because (1) the objection would likely have been overruled and (2) 

even if Lamse’s testimony had been excluded, CP testified to the same information.
-13-

Schmitt, who did not testify at trial. Defendant contends that Coltrane should not have acquiesced 

to the admission of the DNA report into evidence.

Smith asked at the Ginther hearing about the admission of the DNA report without the 

testimony of Schmitt. Coltrane said that the laboratory reports were not the “crux of the case” 

because the defense was consent. He said, “[W]e’re not saying that there was not any type of 

sexual activity whatsoever.” Smith asked why, then, he cross-examined so much about the 

report,15 and Coltrane said:

[A]t that point in time it was one of those things where it was something that was 

latched [onto] based upon what happened at trial, and it was just basically casting 

doubt, another issue of reasonable doubt. You know, it wasn’t, you know, like I 

said, everything in hindsight’s 2020 [sic]. Where you’re in the middle of trial and 

there’s another issue that could possibly cause reasonable doubt, it was . . . 

something that I looked into further. 

Coltrane said, “[I]t was casting a little bit of doubt on those as another area of possible reasonable 

doubt.” But he said that he did not want to argue forcefully that the laboratory reports were wrong 

because the primary defense was consent, and he said that he believed that having an expert weigh 

in on the probability statistics “would’ve been extremely confusing for the jury.” Coltrane said 

that, in essence, the defense was not “disputing” the test results, even though he did try to seed 

some doubt in the jury about the results.

The court ruled that “[t]he DNA was not pivotal” for the defense because the defense was 

consent. It said that counsel was trying to “cast a little bit of confusion over the DNA test results, 

but it really wasn’t a pivotal point in this case because it was consensual sex so his DNA would 

likely be there. That was basically his case from my point of view listening to his opening, 

listening to his closing, and watching the way he approached the issues on direct and crossexamination.” 

Defendant contends that Coltrane, by acquiescing to the admission of the DNA report, 

foreclosed the opportunity to exclude the evidence entirely (i.e., if the prosecutor did not produce 

Schmitt as a witness). See, generally, Melendez-Diaz v Massachusetts, 557 US 305; 129 S Ct 

2527; 174 L Ed 2d 314 (2009) (dealing with the right to confrontation in the context of laboratory 

reports). But defendant has pointed to no evidence that Schmitt was unavailable as a witness. A 

defendant bears the burden of establishing the factual predicate for his or her claim of ineffective 

assistance of counsel, and defendant has not met this burden. See People v Jackson (On 

Reconsideration), 313 Mich App 409, 432; 884 NW2d 297 (2015). In other words, he has not 

provided any basis for this Court to conclude that if Coltrane had insisted on the DNA report being 

 

15 We disagree that Coltrane cross-examined witnesses strenuously about the DNA report authored 

by Schmitt, although he did refer to the DNA test as being a “probability test.” He did ask Cramer

some probing questions about her preliminary report. We note that the fact that Coltrane made 

reference to the “probability test” belies defendant’s implication on appeal that Coltrane did not 

understand the DNA report. 
-14-

admitted only in conjunction with the testimony of Schmitt, the report would have been excluded 

because of Schmitt’s unavailability. 

Defendant also claims that Coltrane should have questioned Schmitt about the meaning of 

the report to show that the DNA results were not particularly reliable and not particularly strong 

in terms of implicating defendant. Again, however, defendant points to nothing showing that a 

cross-examination of Schmitt, in particular, would have weakened the impact of the report. Id. 

For example, defendant did not present a scientific expert at the Ginther hearing to opine that the 

DNA results were untrustworthy or otherwise suspect. The DNA report stated that a “Y-STR 

haplotype” was obtained from defendant’s known DNA. It stated that the “Y-STR haplotype” 

identified in CP’s underwear “matches the Y-STR haplotype from” defendant and “would be 

expected to match all other paternally related males.” The report indicated that it was 2141 times 

more likely that defendant was the source of the haplotype in the underwear than an unrelated male 

in the Caucasian population, 1220 times more likely that defendant was the source of the haplotype 

in the underwear than an unrelated male in the African American population, and 1443 times more 

likely that defendant was the source of the haplotype than an unrelated male in the Hispanic 

population.

Admittedly, Coltrane could have elicited the fact that this case did not involve a rock-solid 

identification of unique DNA, such as one finds in some other cases, but instead involved certain 

probabilities of finding a particular Y-STR haplotype in certain populations. But Coltrane did not 

need Schmitt, in particular, to do this, because it was apparent from reading the report itself, which 

was admitted into evidence in conjunction with police testimony. 

What could be deemed problematic is that Coltrane allowed Trooper Dougherty to testify 

that “the DNA came back either it was from [defendant] or a paternal relative of [defendant].”16 

This was a mischaracterization of the DNA results.17 It is true that the jurors could read the report 

themselves, but given its technical wording, it is not unreasonable to assume that some jurors may 

have relied on Trooper Dougherty’s characterization of the results in the report. If the defense was 

primarily arguing that sex between defendant and CP never happened, it would have fallen below 

 

16 Trooper Dougherty’s and Lieutenant Sekely’s testimony about a “match” between the 

underwear DNA and defendant’s DNA was less troublesome because the Y-STR haplotype was, 

in fact, a match. The problem is that there were other potential people who could have been 

“matches.” That, indeed, was the point of the probability analysis in the DNA report.

17 Trooper Dougherty erred again when he said that semen was found in CP’s underwear. Indeed, 

the pertinent report refers only to “the possible presence of seminal fluid.” There is no reasonable 

probability that this error affected the outcome of the trial, however, see Ackley, 497 Mich at 389, 

because (1) the jurors could see the word “possible” clearly on the first page of the pertinent report; 

Lieutenant Sekely properly referred to the “possible presence of seminal fluid” (emphasis added); 

and, most importantly, the author of the report, Cramer, testified, “I was able to identify the 

possible presence of seminal fluid um, but I wasn’t able to confirm necessarily that there was 

semen present.” 
-15-

an objective standard of reasonableness for Coltrane to refrain from objecting to this 

mischaracterization by Trooper Dougherty, because the officer made the DNA results seem much 

stronger than they actually were. 

A pertinent question, then, is whether the trial court was correct in its conclusion that “[t]he 

DNA was not pivotal” for the defense because the defense was consent. As set forth in part I.A.1. 

of this opinion, the primary defense was, indeed, consent. It is true that at the Ginther hearing,

Coltrane said that he did try to seed some doubt in the jury about the meaning of the testing results. 

Coltrane’s testimony from the Ginther hearing, along with the somewhat different tones of his 

closing statement and his opening statement,18 indicate that Coltrane was touching upon whether 

the sex between CP and defendant had even occurred. This was likely because of the jurors’ 

questions during trial whereby they inquired about where exactly the DNA was found on CP’s 

underwear and also inquired about whether defendant had ever slept in the bed where the sexual 

assault was alleged to have taken place. But the fact remains that the primary defense was consent. 

As noted, Coltrane said that he did not want to argue forcefully that the laboratory reports were 

wrong because the primary defense was consent, and he said that he believed that having an expert 

weigh in on the probability statistics “would’ve been extremely confusing for the jury.”

Even though the DNA results gave “probabilities,” the fact remains that these probabilities 

were extremely damaging in light of CP’s testimony and in light of the undisputed facts that 

defendant slept in the same house as CP that night, without any of his male relatives being present. 

In addition, defendant’s 4 a.m. Facebook message to CP was entered into evidence. Conceding 

sex and arguing consent or lack of force was a reasonable choice of strategy. We conclude that 

Coltrane’s failure to object to Trooper Dougherty’s mischaracterization of the DNA testing results 

was not unreasonable because Coltrane was relying primarily on the defense of consent, even 

though, during the course of trial, he tried to plant a small seed of doubt regarding whether the sex 

ever happened.

B. SANE EVIDENCE

The SANE nurse who examined CP after the incident testified at trial, and her report was 

entered into evidence.

MRE 803(4) states that the following are not excluded by the hearsay rule:

Statements made for purposes of medical treatment or medical diagnosis in 

connection with treatment and describing medical history, or past or present 

symptoms, pain, or sensations, or the inception or general character of the cause or 

external source thereof as reasonably necessary to such diagnosis and treatment.

In People v Mahone, 294 Mich App 208, 214-215; 816 NW2d 436 (2011), this Court stated that 

“[s]tatements made for the purpose of medical treatment are admissible pursuant to MRE 803(4) 

if they were reasonably necessary for diagnosis and treatment if the declarant had a self-interested 

motivation to be truthful in order to receive proper medical care.” The Court added, “This is true 

 

18 He emphasized consent more in the latter.
-16-

irrespective of whether the declarant sustained any immediately apparent physical injury.” Id. at 

215. Significantly, the Court stated:

Particularly in cases of sexual assault, in which the injuries may 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. Thus, statements the victim made to the 

nurse were all properly admissible pursuant to MRE 803(4). [Id. (citation omitted; 

emphasis added).] 

In light of Mahone, the nurse’s testimony and report were admissible. And counsel was not 

required to make a futile objection. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 

(2010). 

Defendant contends that certain Supreme Court precedent shows that the nurse’s report 

and testimony were inadmissible. For example, he cites People v LaLone, 432 Mich 103, 109, 

113-116; 437 NW2d 611 (1989) (opinion by BRICKLEY, J.),19 wherein the Court concluded that a 

statement to a psychologist about the identify of an attacker in a sexual-assault case was not 

admissible under MRE 803(4). But even assuming that the holding of LaLone extends to a 

statement made to a SANE nurse, there still would be no ineffective assistance of counsel in the 

present case because CP clearly named defendant as the attacker during her testimony and there 

was never any allegation that the crime occurred but was committed by someone other than 

defendant. As such, any possible error associated with the nurse’s reporting of defendant’s name 

was not reasonably likely to have affected the outcome of the case. Ackley, 497 Mich at 389.

Defendant also relies on Merrow v Bofferding, 458 Mich 617; 581 NW2d 696 (1998). In 

that case, the plaintiff alleged negligence after he sustained arm injuries from a glass door pane 

located in a residence leased from the defendants. Id. at 620. The defendants alleged that the 

plaintiff caused his own injury by punching the glass. Id. at 621. They sought to introduce an 

excerpt from the plaintiff’s medical records stating that the plaintiff put his arm through the glass 

after being involved in a fight with his girlfriend. Id. The Court ruled that “the statement 

concerning the ‘fight with his girlfriend’ ” was improperly admitted under MRE 803(4) because 

all the doctor needed to know for diagnosis and treatment was that defendant’s arm went through 

the glass, not that defendant had a fight with his girlfriend. Id. at 628-630. The Court noted that 

the plaintiff had specifically sought treatment for injuries to his arm and that what happened before

the arm went through the window was not necessary for diagnosis and treatment. Id. at 630 & n 

10. The present case is different because clearly, possible psychological injuries were at issue. 

See Mahone, 294 Mich App at 215. In fact, CP reported to the nurse that she was having a hard 

time processing what happened, and the nurse noted that CP was “very much self-blaming.” 

Defendant’s reliance on Merrow is unpersuasive.

 

19 A majority of the justices concurred in the proposition from LaLone that is cited here.
-17-

C. PROSECUTORIAL ERROR

Defendant contends that Coltrane was ineffective because he failed to object to certain 

analogies made by the prosecutor during voir dire and during her rebuttal closing argument. A 

prosecutor does not have to confine his or her argument to the blandest possible terms. People v 

Aldrich, 246 Mich App 101, 112; 631 NW2d 67 (2001). The pertinent question is whether the 

prosecutor’s remarks, viewed in context, tended to deprive defendant of a fair and impartial trial. 

See id. at 110. We conclude that Coltrane did not act below an objective standard of 

reasonableness by failing to object to the prosecutor’s comments because the prosecutor, in making 

her analogies, was merely trying to convey the meaning of the difficult-to-define concept of 

“beyond a reasonable doubt.” In addition, there was no reasonable probability that the failure to 

object affected the outcome of the proceedings. Ackley, 497 Mich at 389. The court stated in its 

preliminary jury instructions that defendant was presumed innocent and that this presumption was 

to continue “unless you are satisfied beyond a reasonable doubt that [defendant] is guilty.” It 

described a reasonable doubt as “a fair, honest doubt growing out of the evidence or lack of 

evidence.” The court said, “It is not merely an imaginary or possible doubt, but a doubt based on 

reason and common sense. A reasonable doubt is just that, a doubt that is reasonable after a careful 

and considered examination of the facts and circumstances of this case.” The court repeated this 

information in its final instructions. It also stated, “[Y]ou must take the law as I give it to you. If 

a lawyer says something different about the law, follow what I say.” Jurors are presumed to follow 

their instructions. Mahone, 294 Mich App at 212. Under the circumstances, defendant has not 

established ineffective assistance of counsel in connection with the prosecutor’s comments.

D. JURY SELECTION

Defendant contends that Coltrane was ineffective because he failed to use an available 

peremptory challenge to dismiss a juror—Juror McPherson—who was a conservation officer and 

worked with Trooper Dougherty. 

At the Ginther hearing, Coltrane said that he remembered Juror McPherson and 

remembered that he had been the jury foreperson. Smith asked how Coltrane thought Juror 

McPherson would be helpful to the defense. Coltrane answered:

[H]e said he could . . . be impartial, but you and I both know that you could take 

that one way or the other. But he knew police procedures. He’s dealt with 

individuals that lie, tell, you know, falsities on a regular basis.

As far as, you know testimony of [CP] is concerned what we saw were 

multiple opposing statements, contradictory statements that I thought he would pick 

up on.

Also, there were some problems with the actual—with the detectives not 

going back to the scene, doing that kind of stuff, whereas I thought if he could be 

impartial, he would be a strong individual, I thought after questioning him, and I 

believe I went back and actually questioned him a few times or asked him additional 

questions, I thought that he would see all of that.
-18-

And I thought that he would be an individual, especially, you know as . . . 

an officer to strictly abide by the law as, you know, as it’s concerned that it’s beyond 

a reasonable doubt and with . . . his knowledge, I . . . thought it would play to our 

advantage. 

Smith asked whether it would be fair to assume that a law-enforcement officer would put trust into 

what another officer said in a case, and Coltrane answered:

Not necessarily. That’s the answers that I received from Officer 

McPherson. They let [sic] me to believe that he could be impartial, and that’s why 

I left him on there, basically. Because he knew the policies and procedures, knew 

how everything was supposed to be done, and it was not done correctly. So I don’t 

necessarily think it would be 100-percent accurate to say that.

Coltrane said, “I thought . . . he was gonna be impartial.” He added, “I thought given . . . the things 

that happened throughout the . . . investigation, things that weren’t done, that weren’t done 

correctly, you know, different statements made, contradicting statements I thought was stuff he 

deals with every day that he’d be able to pick up on.” Coltrane said that he thought that Juror 

McPherson “could aid in our defense.” He also indicated that he and defendant decided together 

to keep Juror McPherson on the jury, agreeing with prosecutor that he had turned and spoken with 

defendant before deciding to keep Juror McPherson.

There is a strong presumption that trial counsel’s actions were strategic. People v Unger, 

278 Mich App 210, 342; 749 NW2d 272 (2008). This Court does “not substitute [its] judgment 

for that of counsel on matters of trial strategy” and does not “use the benefit of hindsight when 

assessing counsel’s competence.” Id. at 242-243. The Unger Court stated, “Perhaps the most 

important criteria in selecting a jury include a potential juror’s facial expressions, body language, 

and manner of answering questions.” Id. at 258. It added, “[A]s a reviewing court, we cannot see 

the jurors or listen to their answers to voir dire questions. For this reason, this Court has been 

disinclined to find ineffective assistance of counsel on the basis of an attorney’s failure to challenge 

a juror.” Id. at 258 (quotation marks and citation omitted). The Court noted that “[a] lawyer’s 

hunches, based on his observations, may be as valid as any method of choosing a jury.” Id.

(quotation marks and citation omitted).

It is apparent from Coltrane’s questioning during voir dire, as well as from his testimony 

at the Ginther hearing, that he carefully weighed whether to keep Juror McPherson on the jury and 

decided to do so as a matter of strategy. However, this Court cannot insulate a review of an 

attorney’s performance merely by calling it trial strategy; the strategy must be sound. Ackley, 497 

Mich 388-389. Although some of Juror McPherson’s answers during voir dire could be viewed 

as favorable to the prosecution, Juror McPherson stated that he could weigh the evidence equally 

and be fair and impartial. He also placed a certain emphasis on going to the scene when 

investigating a crime. And part of Coltrane’s strategy was to argue that the police conducted a 

shoddy investigation, such as by not going to the crime scene or investigating the doors in the 

house. Given this strategy, and given the Unger Court’s emphasis on nonverbal cues, we conclude 

that defendant has not overcome the presumption of sound trial strategy. As noted by the 

prosecutor on appeal, Juror McPherson may have “given some nonverbal cue that he disliked 

Trooper Dougherty.”
-19-

As for the prejudice prong of an ineffective-assistance claim, defendant claims that a 

defendant need not establish prejudice from any errors in jury selection because such prejudice is 

nearly impossible to demonstrate. Defendant relies on People v Schmitz, 231 Mich App 521; 586 

NW2d 766 (1998), abrogated by People v Bell, 473 Mich 275; 702 NW2d 128 (2005), amended 

474 Mich 1201 (2005), a case involving an improper denial by the trial court of peremptory 

challenges. In particular, defendant relies on the Schmitz Court’s indication that “prejudice from 

errors surrounding the selection of juries is virtually impossible to demonstrate” and its resultant 

conclusion that a defendant, to obtain relief, need not establish prejudice resulting from such errors. 

See id. at 531-532. In Bell, 473 Mich at 293 (opinion by CORRIGAN, J.), it was indicated that an 

improper denial by a trial court of peremptory challenges is subject to harmless-error analysis. 

The lead opinion stated that Schmitz is “no longer binding, in light of our current harmless error 

jurisprudence, to the extent that [it holds] that a violation of the right to a peremptory challenge 

requires automatic reversal.” Id. at 293.

20

 The lead opinion stated that it is jury-selection errors 

involving racial discrimination that are not subject to harmless-error analysis. Id. at 293.

Defendant’s reliance on Schmitz for his argument that no prejudice need be demonstrated 

in the present case is improper in light of the statements in Bell. The Court in Bell evidently did 

not agree with Schmitz that the difficultly in demonstrating prejudice from jury-selection errors 

should always obviate prejudice requirements. As such, defendant has not demonstrated that the 

standard “prejudice” prong for an ineffective-assistance claim is inapplicable to the current issue. 

Given Juror McPherson’s assertion that he could weigh the evidence fairly, defendant has not 

shown a reasonable probability that Coltrane’s failure to dismiss Juror McPherson affected the 

outcome of the trial, Ackley, 497 Mich 389, even if the decision fell below an objective standard 

of reasonableness.

V. CUMULATIVE ERROR

Defendant argues that reversal is required because of cumulative error. “This Court 

reviews a cumulative-error argument to determine if the combination of alleged errors denied the 

defendant a fair trial.” People v Hill, 257 Mich App 126, 152; 667 NW2d 78 (2003). 

“[T]he cumulative effect of several errors can constitute sufficient prejudice to warrant 

reversal where the prejudice of any one error would not.” LeBlanc, 465 Mich at 591.

As set forth earlier in this opinion, the areas of error involved (1) Trooper Dougherty’s 

statement about seeing deception in defendant’s interview and the prosecutor’s related question to 

Lieutenant Sekely during which she referred to defendant’s deception;21 (2) the court’s 

 

20 A majority of justices agreed that the denial of a statutory peremptory challenge is subject to 

harmless-error review and that Schmitz was, therefore, repudiated. See Bell, id. at 302 (opinion by 

TAYLOR, C.J.).

21 As we have noted, the statement by Trooper Dougherty during the interview about the 

believability of CP’s story could not conceivably be prejudicial, given his testimony that he 
-20-

“testimony” about Facebook; and (3) arguably, Lamse’s reference to CP’s statement about a 

person acting “creepy.” The court’s testimony about Facebook was favorable to the defense, as 

we noted in part I.C.2. of this opinion. In addition, Lamse’s reference to CP’s statement about a 

person acting “creepy” was inconsequential, given that (1) Lamse could properly comment 

regarding CP’s state of mind in general and (2) CP clearly testified that it was the actions of 

defendant that were making her feel uncomfortable that night. The only error of possible 

consequence involved the issue of defendant’s credibility during his police interview.22 But as we 

have already discussed, the “deception” errors were not outcome-determinative, and it was not 

unreasonable for Coltrane to fail to object to the testimony and comments in question.

Defendant reiterates his contention that the trial court applied the wrong standard of review 

for claims of ineffective assistance of counsel. The court stated that the jury would not “have come 

to a different conclusion” even if various alleged errors had not occurred. But just because the 

court did not set forth, with exact precision, the “reasonable probability” language from caselaw 

dealing with ineffective assistance of counsel, see, e.g., Ackley, 497 Mich at 389, does not mean 

that the court applied the improper standard. At any rate, while this Court reviews a trial court’s 

factual findings for clear error, it reviews de novo the ultimate question of whether a person has 

been denied his or her constitutional right to effective assistance of counsel. LeBlanc, 465 Mich 

at 579. As such, the trial court’s wording is of little consequence. No basis for reversal is apparent.

VI. CONCLUDING REMARKS

Defendant strenuously argues that Coltrane rendered ineffective assistance of counsel. He 

contends that he would have been better served if Coltrane had more aggressively pursued a 

strategy of consent by putting defendant on the stand. But as we noted, Coltrane had legitimate 

concerns about how defendant would fare on the stand. Conversely, a possible strategy might have 

been to focus on the laboratory reports and argue forcefully that the prosecutor had failed to 

establish beyond a reasonable doubt that the Y-STR haplotype found in CP’s underwear belonged 

to defendant. This strategy was questionable, however, given CP’s testimony at trial. And again, 

defendant told Coltrane from the outset that he did have sex with CP, thus precluding the 

possibility of Coltrane’s putting defendant on the stand to deny sexual contact. Ultimately, 

Coltrane primarily presented a defense of consent and also attempted to plant a small seed of doubt 

regarding whether any sex had even occurred. As noted, this slight change in strategy occurred 

mid-trial and was likely the result of questions posed by jurors. Coltrane’s cross-examination of 

CP was extremely thorough and he repeatedly tried to suggest to the jurors that the police 

investigation had been shoddy. His voir dire questions were probing, and his opening and closing 

statements were lengthy. As stated in LeBlanc, 465 Mich at 592:

 

believed defendant at the conclusion of the interview. Viewed in context, the statement by Trooper 

Dougherty was simply an interview technique.

22 As discussed in part IV.A. of this opinion, the way Coltrane dealt with the DNA evidence was 

not “erroneous” because it was reasonable trial strategy; he was primarily focusing on consent and 

did not want to confuse the jury by delving into the probability statistics surrounding the DNA.
-21-

In the real world, defending criminal cases is not for the faint of heart. 

Lawyers must fulfill ethical obligations to the court, zealously advocate the client’s 

best interests (which includes establishing that they, and not the client, are in charge 

of making the professional decisions), and protect themselves against grievances 

and claims of malpractice. Lawyers will inevitably make errors in the process, but, 

because both cases and attorneys come in an infinite variety of configurations, those 

errors can only rarely be defined with sufficient precision to inform defense 

attorneys correctly just what conduct to avoid. Thus, the Sixth Amendment 

guarantees a range of reasonably competent advice and a reliable result. It does not 

guarantee infallible counsel. [Quotation marks and citations omitted.]

We conclude that Coltrane was reasonably competent and that the result of the trial was reliable.

Affirmed.

/s/ Karen M. Fort Hood 

/s/ Jane M. Beckering 

/s/ Mark T. Boonstra