Michigan Supreme Court Lansing, Michigan

Robert P. Young, Jr.

, Chief Justice

Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly

Brian K. Zahra Bridget M. McCormack

David F. Viviano

, Justices 

# Order

March 7, 2014

147581

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff

- Appellee,

v SC: 147581 COA: 306191 Lapeer CC: 10

- 010499

- FC ANDREW AUDIE WILLIAMS, Defendant

- Appellant.

____________________________________/

On order of the Court, the application for leave to appeal the June 20, 2013 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

M ARKMAN , J. ( dissenting ).

I respectfully dissent and would grant leave to appeal in this case in which defendant has questioned the effectiveness of his trial counsel in a defense to a charge of

first

- degree criminal sexual conduct (CSC

- I). We are presented here with a situation in which (a) counsel fully reviewed the report of the prosecutor’s forensic expert regarding his medical examination of the alleged victim, (b) counsel consulted with a local physician regarding the medical findings set forth in the report, (c) counsel consulted with defendant concerning whether to retain their own expert to counter the medical findings set forth in the report and defendant agreed with counsel that this was

unn ecessary, and (d) counsel effectively cross

- examined the forensic expert to minimize any harm done to defendant by the report. What counsel did not do, however, was to recognize the extent to which the report may have been of considerable potential benefi t to defendant by evidencing that he might be innocent of the crimes for which he has now been convicted and is serving a 15

- to 30

- year sentence.

In 2010, defendant’s granddaughter alleged that between 2001 and 2005 defendant sexually abused her on 15 o ccasions. These allegations led the prosecutor to charge

defendant with three counts of CSC

- I. The charges were based on three separate incidents in which it was alleged that defendant engaged in sexual intercourse with his granddaughter, who was between five and nine years old. The granddaughter was examined by a forensic expert, Dr. Mischa Pollard, whose report stated, inter alia , that

h er examination revealed no visible tears or transections of the victim’s hymenal ring.

In preparing for trial, de fense counsel read Dr. Pollard’s report and consulted a local general practitioner for the purpose of determining whether anything in the report was damaging to defendant. Learning from the practitioner that “there was nothing really2

damaging in [the] rep ort by itself,” defense counsel focused on other aspects of the case without further investigating or apparently recognizing that the lack of any visible tearing or transection of the hymenal ring was not simply not “really damaging” to defendant, but pote ntially highly exculpatory.

Defendant was eventually convicted on all three CSC

- I counts. On appeal, he now argues that counsel was ineffective for failing to recognize that Dr. Pollard’s report significantly supported defendant’s claim of innocence, in part as a result of counsel’s failure to consult with and retain his own forensic expert. To further develop this

argument, a Ginther 1 hearing was held, and Dr. Stephen Guertin 2 testified that there is a 94% to 96% chance that a single incident of sexu al intercourse with a prepubertal child would result in a tear or transection of the hymenal ring, leaving a lasting visible abnormality. 3 Given the likelihood that any single incident would leave such an abnormality, it follows statistically that there m ay have been as high as a 99.978% chance that an abnormality would result from at least one of three charged incidents of sexual

intercourse. 4

Following the Ginther hearing, the trial court denied defendant’s motion for a new trial, and the Court of App eals affirmed because it concluded that counsel’s decision not

1 People v Ginther , 390 Mich 436 (1973).

2 Dr. Guertin is the medical director of the Sparrow Children’s Center and the director of the Pediatric Intensive Care Unit at Sparrow Hospital. He is also an associate professor of pediatrics at Michigan State University. As part of his practice, Dr. Gu ertin “sees between 100 and 200 children per year who have been referred . . . for suspected child abuse,” which often results in Dr. Guertin assisting the police and the prosecution in cases brought against individuals who have abused children.

3 Dr. G uertin testified that the reason sexual intercourse with a prepubertal child is so likely to leave such an abnormality is because the hymen during the prepubertal stage typically has a “maximum opening” of 10 millimeters while “[t]he average penis is 35

mi llimeters

. . . .”

4 This latter percentage was not set forth by Dr. Guertin, but is a statistical inference drawn from his testimony. That is, if each episode of intercourse independently of the others gave rise to a 94% to 96% chance of a tear, the 99.9 78% percentage would seem to be an accurate figure in identifying the likelihood of a tear from at least one of these episodes. If, however, potential anatomical factors, rather than happenstance, predominately explain the absence of a tear, then the like lihood of a lasting visible abnormality might remain at 94% to 96%.3

to retain and call an expert witness was “sound trial strategy” on the grounds that Dr. Pollard’s testimony “did not favor the prosecution.” 5

To make out a claim of ineffective assistance of counsel, a defendant must show that (1) “his attorney’s representation fell below an objective standard of reasonableness” and (2) there is “‘a reasonable probability that, but for counsel’s unprofessional e rrors, the result of the proceeding would have been different

. . . .’” People v Toma , 462 Mich 281, 302

- 303 (2000), citing Strickland v Washington , 466 US 668, 687 (1984), and quoting People v Mitchell , 454 Mich 145, 167 (1997). To provide effective ass istance of counsel, defense counsel not only must consult with experts when doing so “would have revealed [the] weaknesses of the prosecution’s case,” People v Trakhtenberg , 493 Mich 38, 53 (2012), but also must consult with experts when an expert analysis , as part of the investigatory process, is likely to develop evidence favorable to the defendant, Strickland

, 466 US at 690

- 691. Sound trial strategy can only be “developed in concert with an investigation that is adequately supported by reasonable profes sional judgments.” People

v Grant , 470 Mich 477, 486 (2004). This, in part, requires counsel to make “‘an independent examination of the facts, circumstances, pleadings and laws involved

. . . .’”

Id . at 486

- 487, quoting Von Moltke v Gillies , 332 US 708 , 721 (1948).

Under these standards, a court reviewing ineffective

- assistance claims must

evaluate those claims on a case

- by

- case basis. In so doing, an appellate court should look at the specific steps counsel took in light of the facts, evidence, an d circumstances of the case. There is no particular “checklist” of actions that may be undertaken by counsel that will automatically immunize him from being found ineffective, but his actions as a whole

and in context must be assessed. There is no “one

- s ize fits all” investigation.

Defendant here was arguably prejudiced, and considerably so, by counsel’s decision not to consult and retain an expert. Had counsel been apprised of the data set forth by Dr. Guertin, he likely would have developed a trial strategy that encompassed expert forensic testimony. Indeed, he admitted as much at the Ginther hearing, stating that he “obviously . . . would have used” the testimony offered by Dr. Guertin because “it certainly would [have] help[ed] [defendant ’s] case.”

5 People v Williams , unpublished opinion per curiam of the Court of Appeals, issued June 20, 2013 (Docket No. 306191), p 2.I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

March 7, 2014

h0304 4

Clerk For these reasons, I would grant leave to appeal to assess whether counsel here employed reasonable professional judgment. In particular, I w ould address the following: (1) whether counsel here satisfied his professional duty when he consulted a general practitioner rather than a forensic expert, (2) whether counsel here could effectively delegate his responsibility for identifying arguments in support of his client to a general practitioner or to any other expert, (3) whether the forensic report contained findings that an ordinary attorney would reasonably recognize as helpful to his client independently of any expert analysis, (4) whether coun sel here can be deemed ineffective despite having consulted with his client and secured his agreement to the trial strategy pursued, and (5) whether counsel’s performance in this case was properly reviewed by the trial court and the Court of Appeals on the basis of the specific “facts, circumstances, pleadings and laws involved.” 6

6 Grant , 470 Mich at 486

- 487 (quotation marks and citation omit ted).