____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

____________________________________ 

Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED APRIL 3, 2001
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellee,
 

v	 No. 114799
 

STEVE CARBIN,
 

Defendant-Appellant.
 

BEFORE THE ENTIRE BENCH
 

CORRIGAN, C.J.
 

We granted leave to consider defendant’s claim that he
 

was denied the effective assistance of trial counsel. The
 

trial court, acting as trier of fact, found defendant guilty
 

of first-degree criminal sexual conduct, MCL 750.520b; MSA
 

28.788(2), and sentenced him to a five to fifteen year term of
 
imprisonment. After a Ginther hearing1 ordered by the Court
 

of Appeals, the trial court denied defendant’s motion for a
 

new trial. The Court of Appeals then affirmed defendant’s
 

conviction in an unpublished opinion.2 We affirm the judgment
 

of the Court of Appeals. Defendant was not denied the
 

effective assistance of trial counsel.
 

I. FACTUAL AND PROCEDURAL BACKGROUND
 

The victim, a woman in her mid-thirties, worked at a
 

private recreation center in Detroit. On the evening of
 

February 11, 1994, she stayed at work to close the facility.
 

Sometime shortly after 9:00 p.m., when she believed that she
 

was alone, she was attacked by two men who remained inside the
 

building. One of those men forcibly raped her. At trial, the
 

victim identified defendant as the man who raped her. She
 

could not identify her other attacker. Defendant’s trial
 

counsel argued that the victim identified the wrong man and
 

that defendant could not have committed the crime because he
 

had been locked inside the Detroit Psychiatric Institute at
 

the time the crime occurred.
 

The victim testified that she saw defendant’s face in the
 

light for one minute when the attack began and then again for
 

1
 See People v Ginther, 390 Mich 436; 212 NW2d 922
 

(1973).
 

2
 Unpublished opinion per curiam, issued January 22,


1999, reh den March 25, 1999 (Docket No. 198969).
 

2
 
five or ten minutes during the rape itself. She recognized
 

defendant as one of the members of the recreation center.
 

Although she did not know his name, she explained that she had
 

seen him around the center before the rape:
 

Q. How is it that you know [defendant] from
 

the past?
 

A. Because he’s a member at the center. He
 

came upstairs when we had the floor exercise, and I


had to get the supervisor one time to ask him to


leave. And he left and stayed gone for awhile.


Then he came back to the center, he came back up


again the night of the floor exercise, and the


exercise instructor she came back to the ceramics
 

table and she said that the ladies were
 

uncomfortable and could I have the young man to


leave. And I went and told [the supervisor] again


that he was upstairs and the ladies wanted him to


leave. 


The victim also explained that defendant frequently came to
 

the recreation center to swim hours before the pool was
 

scheduled to open and waited outside or in the lobby. When
 

the pool opened, defendant entered, but stayed at the shallow
 

end.
 

The police did not immediately locate defendant because
 

the recreation center did not have a picture of him. After
 

the February assault, the victim did not return to work at the
 

recreation center until May. She did not see defendant at the
 

recreation center until September 1994. When she first saw
 

defendant at the recreation center after the rape, she
 

immediately panicked and left the building. By the time she
 

3
 
called the police from her house, the center had already
 

closed for the evening. The next day, defendant once again
 

came to the recreation center. This time, staff members
 

alerted the police and defendant was arrested.
 

In addition to the victim’s testimony, the prosecutor
 

presented the testimony of the victim’s friend, who arrived at
 

the recreation center shortly after the rape and called the
 

police, and two police officers who responded to the initial
 

call. One of the police officers testified that they got the
 

run at 9:35 p.m. and that they arrived at 9:40 p.m. The
 

victim, who appeared shaken, told the officers that she had
 

been assaulted by two men, one of whom she knew.
 

Defendant’s only witness at trial was Yvonne Bond,
 

director of medical records at the Detroit Psychiatric
 

Institute. Bond testified that the institute’s medical
 

records indicated that defendant had been involuntarily
 

hospitalized at the institute on the day of the crime. The
 

records showed that defendant was present at 5:55 p.m. and
 

10:30 p.m. on that day and that he was “locked up” and
 

“couldn’t get out” during the interim hours.
 

On cross-examination, Bond admitted that patients had
 

escaped from the Detroit Psychiatric Institute in the past.
 

She also explained that patients were not locked in their
 

individual rooms. Thus, she admitted, it was “conceivable”
 

4
 
that a patient could leave the sixth-floor psychiatric unit by
 

making it past one set of locked doors to a hallway and a
 

stairway leading down to the first floor exit. In addition to
 

the stairway, a locked elevator could be accessed if the door
 

happened to open while the elevator was in use.3
 

Regarding the medical records, Bond explained that
 

detailed notes reflected defendant’s activities at the
 

institute between the hours of 7:00 a.m. and 3:30 p.m. on the
 

day of the crime. These particular notes ceased at 3:30 p.m.,
 

which was the end of a shift. She also explained that the
 

10:30 p.m. notation indicated that a nurse had given defendant
 

a certificate in his room. While she was never asked to
 

explain her assertion that defendant was present at 5:55 p.m.,
 

Bond did testify that a record showed that a doctor had seen
 

defendant at 5:10 p.m.
 

In making its findings of fact and conclusions of law,
 

the trial court initially recounted the victim’s testimony in
 

detail. The judge explained that he believed the victim’s
 

testimony “just from listening to her.” Her identification
 

testimony was credible because she was familiar with
 

defendant’s face from previous observations. Finally, the
 

3
 Bond did not clearly testify (1) whether the locked


elevator was located outside the set of locked doors leading


to the psychiatric unit, or (2) whether the stairway itself


was also locked.
 

5
 
trial court explained that the victim displayed no bias
 

against the defendant that would have prompted her to falsify
 

the story.
 

In rejecting defendant’s alibi defense, the court opined
 

that the detailed notes regarding defendant’s whereabouts from
 

7:00 a.m. to 3:30 p.m. on the day of the crime established an
 

“ironclad alibi” only for that specific period of time. In
 

contrast, defendant had presented no records to establish
 

conclusively his presence at the institute when the crime was
 

committed. Regarding the institute’s security measures, the
 

trial court found that it was “not a lock down facility like
 

the Wayne County Jail where there are guards and the like.”
 

Accordingly, the trial court reasoned that it was “just
 

speculation” that defendant could not have left the facility
 

to commit the crime. The trial court thus concluded that the
 

prosecution had proven beyond a reasonable doubt that
 

defendant was guilty of the crime of first-degree criminal
 

sexual conduct.
 

After trial, while defendant’s claim of appeal was
 

pending, defendant’s first appellate counsel moved for
 

defendant’s release on bond pending appeal. In response to
 

the bond motion, the trial court took testimony for purposes
 

of assessing the substantiality of defendant’s grounds of
 

appeal. Barbara Pettibone, a clinical social worker at
 

6
 
Detroit Psychiatric Institute, testified at the bond hearing
 

that defendant, whom she recognized, had been involuntarily
 

admitted to the institute at 1:30 p.m. on February 11, 1994,
 

the day of the crime, and discharged on March 14, 1994. She
 

explained that the institute was a “locked facility,” which
 

meant that a person attempting to enter from the outside would
 

ordinarily have to pass through either three locked doors or
 

one keyed elevator and one locked door—except during visiting
 

hours from 6:30 p.m. to 8:00 p.m. when the doors were not
 

locked. Pettibone also testified that she could not remember
 

if she had previously been contacted by any other lawyer.
 

On cross-examination, Pettibone explained that the staff
 

routinely conducted a bed check each night “around” 11:00
 

p.m., but that she was not positive regarding the exact time
 

this was usually done. She also acknowledged that no one
 

could conclude with certainty whether a new patient such as
 

defendant, who may not have been well-known to the staff after
 

the afternoon shift change, “left or stayed” during the
 

visiting hours. Finally, Pettibone noted that maintenance
 

workers were present at the facility with keys to the locked
 

doors. After hearing Pettibone’s testimony, the trial court
 

granted defendant’s motion and set bond in the amount of
 

$25,000.4
 

4
 The prosecutor informs that, despite the Court of


Appeals affirmance of his conviction, defendant remains on


(continued...)
 

7
 
The Court of Appeals thereafter granted defendant’s
 

motion to remand to the trial court for a Ginther hearing.
 

The trial court once again took testimony from Pettibone
 

regarding the security measures in place at the Detroit
 

Psychiatric Institute. In response to direct questioning from
 

defendant’s second appellate counsel, Pettibone testified that
 

she recalled seeing defendant at the institute on the day he
 

was admitted. In contrast to her testimony at the bond
 

hearing that defendant had been admitted at 1:30 p.m. on
 

February 11, 1994, Pettibone explained that the nursing notes
 

indicated that defendant came to the facility at 7:00 a.m. on
 

that day and was present through at least 3:00 p.m. She also
 

stated, more conclusively than in her testimony at the bond
 

hearing, that a bed check had occurred at 11:00 p.m.
 

With respect to the institute’s security, Pettibone
 

explained that defendant would have been kept in a locked
 

ward, behind at least two locked doors. While acknowledging
 

that patients have escaped in the past, she opined that it
 

would be “very difficult,” but “not impossible,” for a person
 

to escape, and “impossible” to get back in through the “two or
 

three locked doors” without a key or “having the door opened
 

for them.” Pettibone also explained that the front door would
 

be locked from the outside after hours, that security guards
 

4(...continued)


bond pending appeal. Consistent with this opinion, that bond
 

may be revoked.
 

8
 
are sometimes present at the front door, and that maintenance
 

persons have keys to the locked doors.
 

On cross-examination, Pettibone conceded that, apart from
 

her notes, she had no independent memory of seeing defendant
 

on the day of the crime. Although she remembered defendant,
 

she did not remember seeing him on that specific day. She
 

also testified that patients had escaped from the psychiatric
 

unit in the past. Finally, Pettibone admitted that her notes
 

did not account for defendant’s whereabouts at 9:00 p.m. on
 

the day of the crime.
 

Defendant next called Dr. Kalappurakal Joseph, a
 

psychiatrist at the institute. Joseph testified that he had
 

only a vague memory of defendant and that, as a general
 

matter, it would be very difficult for a patient to escape and
 

return to the facility. Defendant’s last witness was his
 

first appellate counsel, Ben Gonek. Gonek testified that
 

defendant passed a polygraph examination conducted by the
 

Detroit Police Department after the trial.5 He also testified
 

that defendant had consistently maintained his innocence.
 

Defendant was unable to call his trial counsel to testify
 

5
 Defendant makes no claim of ineffective assistance on
 

the basis of the polygraph examination. Instead, he asserts


without further explanation that it buttressed the credibility


of Pettibone and Joseph. The prosecutor has suggested that


the polygraph test results may have been unreliable, given the


state of defendant’s mental health.
 

9
 
because she died before the hearing.
 

The trial court denied defendant’s motion for new trial.
 

First, the testimony at the Ginther hearing had been
 

essentially cumulative of Yvonne Bond’s medical records
 

testimony at trial. Especially noteworthy was that, like
 

Bond’s trial testimony, nothing at the Ginther hearing
 

verified defendant’s whereabouts between approximately 6:00
 

p.m. and 10:30 p.m. on the day of the crime. Because of the
 

cumulative nature of the testimony at the Ginther hearing, the
 

trial court reasoned that defense counsel’s performance had
 

fallen “below that which would be expected of an attorney of
 

ordinary training and skill in criminal law” only if she had
 

presented “no testimony at all” regarding defendant’s alibi.6
 

The trial court then noted that the victim’s trial
 

testimony had been especially compelling. In particular, it
 

explained that the victim’s memorable prior contacts with
 

defendant “enhanced her credibility in making an accurate and
 

reliable identification.” The court also observed that the
 

victim had a good opportunity to observe defendant accurately
 

at the time of the crime, and that she immediately told the
 

police that she had been raped by a man whom she knew. The
 

6 In making this determination, the trial court relied on


the standard set forth in People v Garcia, 398 Mich 250; 247


NW2d 547 (1976). That standard was rendered obsolete by
 

People v Pickens, 446 Mich 298; 521 NW2d 797 (1994).
 

10
 
trial judge then stated that he had been impressed by the
 

victim’s credibility while sitting as the trier of fact:
 

Appellate counsel for [defendant], Mr. Gonek


and Mr. Cripps, none of them have had occasion to


look this complainant in the eye, judge her
 

credibility, judge any motive to lie, judge to


determine if she was making a mistake. I had that
 

luxury and I remember her and she was a very


believable witness. There’s no doubt in her mind
 

that this was the man who committed the rape.
 

For these reasons, the trial court concluded that defendant
 

had not been denied the effective assistance of counsel. The
 

trial court reached this conclusion without expressly stating
 

whether it believed that defendant’s case had been prejudiced
 

by trial counsel’s failure to call Pettibone and Joseph as
 

witnesses.
 

The Court of Appeals then affirmed defendant’s conviction
 

in an unpublished per curiam opinion. In response to
 

defendant’s argument that he had been denied the effective
 

assistance of counsel, the panel concluded that defendant
 

failed to overcome the presumption that his counsel had been
 

effective under the constitutional standard. The Court of
 

Appeals reasoned that the Ginther hearing testimony did no
 

more than the trial testimony to establish that defendant was
 

locked in a mental institution on the night of the crime.
 

Because both the trial testimony and Ginther hearing testimony
 

tended to show that it would have been difficult, but not
 

impossible, for defendant to escape and return without being
 

11
 
 

noticed, the Court of Appeals concluded that defendant failed
 

to demonstrate that defense counsel’s decision to call Bond,
 

rather than Pettibone and Joseph, was anything more than trial
 

strategy. The panel also concluded that defendant failed to
 

demonstrate the existence of a reasonable probability that,
 

but for counsel’s failure to present these witnesses, he would
 

have been acquitted.
 

This Court initially denied defendant’s application for
 

leave to appeal. 461 Mich 946 (2000). On reconsideration, we
 

vacated the denial order and granted defendant’s application
 

for leave to appeal, limited to the question whether defendant
 

was denied the effective assistance of counsel. 462 Mich 918
 

(2000).
 

II. EFFECTIVE ASSISTANCE OF COUNSEL
 

A defendant seeking a new trial on the ground that trial
 

counsel was ineffective bears a heavy burden. To justify
 

reversal under either the federal or state constitutions,7

 a
 

convicted defendant must satisfy the two-part test articulated
 

by the United States Supreme Court in Strickland v Washington,
 

7 US Const, Am VI provides that the accused in a criminal


prosecution “shall enjoy the right . . . to have the


Assistance of Counsel for his defence.” This requirement is


made applicable to the states through the Fourteenth Amendment


due process clause. Gideon v Wainwright, 372 US 335, 342; 83
 

S Ct 792; 9 L Ed 2d 799 (1963). Likewise, Const 1963, art 1,


§ 20 provides that the accused in a criminal prosecution


“shall have the right . . . to have the assistance of counsel


for his . . . defense.” 


12
 
 

466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). See People
 

v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).
 

“First, the defendant must show that counsel’s performance was
 

deficient. This requires showing that counsel made errors so
 

serious that counsel was not performing as the ‘counsel’
 

guaranteed by the Sixth Amendment.” Strickland, supra at 687.
 

In so doing, the defendant must overcome a strong presumption
 

that counsel’s performance constituted sound trial strategy.
 

Id. at 690. “Second, the defendant must show that the
 

deficient performance prejudiced the defense.” Id. at 687.
 

To demonstrate prejudice, the defendant must show the
 

existence of a reasonable probability that, but for counsel’s
 

error, the result of the proceeding would have been different.
 

Id. at 694. “A reasonable probability is a probability
 

sufficient to undermine confidence in the outcome.” Id.
 

Because the defendant bears the burden of demonstrating both
 

deficient performance and prejudice, the defendant necessarily
 

bears the burden of establishing the factual predicate for his
 

claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
 

In this case, defendant argues that he was denied the
 

effective assistance of counsel because trial counsel (1)
 

failed to interview Pettibone and Joseph before the trial, and
 

(2) failed to call Pettibone and Joseph to testify at
 

defendant’s bench trial. Defendant characterizes defense
 

13
 
counsel’s failure to call Pettibone and Joseph as a failure to
 

present an alibi defense. We agree with the Court of Appeals
 

conclusion that defendant’s claim fails with respect to both
 

parts of the Strickland test.
 

Initially, we reject defendant’s argument that trial
 

counsel’s performance was deficient in failing to interview
 

Pettibone and Joseph before trial. Nothing in the record
 

establishes that trial counsel failed to investigate either
 

Pettibone or Joseph before trial. Although trial counsel was
 

deceased, and thus could not testify regarding the extent of
 

her efforts to investigate defendant’s alibi, neither
 

Pettibone nor Joseph offered any helpful testimony regarding
 

their contact or lack of contact with trial counsel in
 

preparation for trial. Pettibone testified only that she
 

could not remember whether she had contact with a lawyer;
 

Joseph provided no testimony on the subject of defense
 

counsel’s pretrial preparation. The fact that defense counsel
 

called Bond to testify at trial demonstrates that she had
 

conducted a pretrial investigation regarding defendant’s
 

presence at the Detroit Psychiatric Institute on the day of
 

the crime. Absent any evidence regarding the extent of trial
 

counsel’s pretrial investigation, especially with respect to
 

the potential testimony of Pettibone and Joseph, we conclude
 

that defendant failed to establish a necessary factual
 

14
 
predicate of this part of his ineffective assistance of
 

counsel claim. See Hoag, supra at 6.
 

Defendant’s ineffective assistance claim is thus reduced
 

to an assertion that trial counsel’s performance was deficient
 

because she failed to call Pettibone and Joseph to testify at
 

trial. As such, defendant cannot overcome the strong
 

presumption that trial counsel’s failure to call these
 

witnesses was strategic. Contrary to defendant’s argument,
 

counsel’s apparent decision not to present the testimony of
 

the witnesses in question did not deprive defendant of an
 

alibi defense. Bond testified at trial that medical records
 

showed defendant to be present at the Detroit Psychiatric
 

Institute at 5:55 p.m. and 10:30 p.m. and that he was “locked
 

up” and “couldn’t get out” between those times. Accordingly,
 

defense counsel did present an alibi defense at trial.
 

The testimony at the Ginther hearing did nothing more
 

than Bond’s testimony to account specifically for defendant’s
 

presence between 5:55 p.m. and 10:30 p.m. on the day of the
 

crime. If anything, this additional testimony only could have
 

affected the quality of defendant’s alibi defense. Viewed
 

objectively, it is not at all clear that the quality of
 

defendant’s alibi defense would have been improved with the
 

addition of testimony from Pettibone and Joseph. Joseph’s
 

generalized testimony was vague and conclusory. As such, it
 

15
 
would have added nothing of substance to defendant’s alibi
 

defense. Although Pettibone’s testimony included more detail
 

than Bond’s testimony regarding (1) the precise number of
 

locked doors that defendant would have had to have traversed
 

and (2) the obstacles defendant would have faced attempting to
 

reenter the facility, she also was not an expert on the
 

security measures employed at the Detroit Psychiatric
 

Institute. More importantly, Pettibone’s posttrial testimony
 

included two new and important pieces of information favorable
 

to the prosecution that were not part of Bond’s trial
 

testimony. First, contrary to Bond’s definite statement that
 

defendant was “locked” in the facility between 5:55 p.m. and
 

10:30 p.m., Pettibone testified that the supposedly “locked”
 

doors were actually unlocked during visiting hours from 6:30
 

p.m. to 8:00 p.m. on the day of the crime.8 Second, Pettibone
 

acknowledged that maintenance workers were present after hours
 

with keys to the locked doors. 


Although the failure to present cumulative testimony can
 

amount to ineffective assistance of counsel under some
 

circumstances, see People v Johnson, 451 Mich 115; 545 NW2d
 

8
 It seems likely that the shift in focus in the


posttrial testimony from defendant’s likelihood of escaping


from the Detroit Psychiatric Institute to defendant’s
 

likelihood of reentering the facility was largely necessitated


by Pettibone’s damaging testimony suggesting the ease with


which a patient could “escape” during visiting hours.
 

16
 
637 (1996), this is not such a case. In Johnson, this Court
 

held that the defendant’s trial counsel was ineffective in
 

failing to call additional defense witnesses to give
 

favorable, cumulative testimony. The defendant was convicted
 

of second-degree murder for shooting a man during an affray in
 

a Pontiac tavern. The tavern owner and defendant’s father
 

testified that defendant did not shoot the victim. A
 

prosecution witness testified that defendant was the shooter.
 

Defendant presented evidence that his trial counsel was aware
 

of at least four other witnesses who would have testified that
 

defendant did not shoot a gun during the affray. Defense
 

counsel’s testimony at the Ginther hearing did not suggest a
 

strategic reason for his failure to call the cumulative
 

witnesses. Acknowledging that a trial is “not simply a
 

balance scale,” this Court nevertheless found the exculpatory
 

evidence to be so substantial that it could have changed the
 

outcome of the trial. Id. at 122. In contrast to the
 

shooting at issue in Johnson, an alibi defense based on the
 

extent of security measures taken at a mental hospital does
 

not necessarily benefit from a number of different
 

perspectives from different witnesses. 


While there is no obvious reason why one person generally
 

familiar with the subject would be less persuasive than three,
 

the presentation of only one witness has the advantage of
 

17
 
eliminating the possibility of distracting inconsistencies.
 

Here, for example, Pettibone’s testimony regarding the precise
 

times defendant was allegedly present in the facility (based
 

on the medical records) differed somewhat from Bond’s. Most
 

notably, Bond gleaned from the records that defendant was
 

present in the unit at 10:30 p.m., less than one hour after
 

the police responded to the crime. Pettibone testified only
 

that a bed check took place at 11:00 p.m. Given the problems
 

with Pettibone’s and Joseph’s testimony, and the absence of
 

any evidence that defense counsel’s decision to present only
 

Bond’s testimony was not strategic, we conclude that defendant
 

was not denied the effective assistance of counsel. His claim
 

fails the “performance” part of the Strickland test.
 

For many of the same reasons, defendant’s claim also
 

fails the “prejudice” part of the Strickland test. On the
 

basis of the trial court’s findings of fact at trial, and its
 

statements made in denying defendant’s motion for new trial,
 

it is clear that (1) the marginal differences in the alibi
 

testimony of Pettibone and Joseph would not have had a
 

significantly greater effect on the trier of fact than did the
 

testimony of Bond, and (2) the trier of fact was especially
 

impressed with victim’s inherently credible trial testimony.
 

Although the trial court did not expressly rule that the
 

outcome at trial would have been the same had Pettibone and
 

18
 
Joseph been called to testify, it did state that their
 

additional testimony was “for the most part, cumulative” and
 

that the victim’s testimony that defendant was one of her
 

attackers was “very believable.” Accordingly, on this record
 

we cannot say that a reasonable probability exists that, but
 

for counsel’s failure to call Pettibone and Joseph to testify
 

at trial, the result of the proceeding would have been
 

different. Rather, we are confident that the result would
 

have been precisely the same. 


Affirmed.
 

CAVANAGH, WEAVER, KELLY, TAYLOR, YOUNG, and MARKMAN, JJ.,
 

concurred with CORRIGAN, C.J.
 

19