PEOPLE v TRAKHTENBERG Docket No. 143386. Argued October 10, 2012 (Cal endar No. 2). Decided December 21, 2012. Jacob Trakhtenberg was convicted of thr ee counts of second-degree criminal sexual conduct after a bench trial in th e Oakland Circuit Court, Deborah G. Tyner, J. The charges stemmed from allegations of sexual contact made by defendant’s then 8-y ear-old daughter. The Court of Appeals, Z AHRA , P.J., and B ANDSTRA and O WENS , JJ., affirmed defe ndant’s convictions in an unpublished opinion per curiam, issu ed March 27, 2007 (Doc ket No. 268416). The Supreme Court denied defendant’s applicatio n for leave to appeal. 480 Mich 856 (2007). Defendant then moved for relief from the j udgment under subchapter 6.500 of the Michigan Court Rules, asserting that he was entitled to a new trial because he was denied the effective assistance of trial and appellat e counsel and, alternatively, th at newly discovered evidence warranted a new trial. The tria l court, Daniel P. O’Brien, J., denied the motion. The Court of Appeals denied defendant’s appl ication for leave to appeal in an unpublished order, entered March 20, 2009 (Docket No. 290336). In lieu of granting leave to appeal, the Supreme Court retained jurisdiction and remanded the case to the Court of Appeals for cons ideration as on leave granted and ordered the Court of Appeals to re mand the case to the tria l court to conduct an evidentiary hearing in order to evaluate defe ndant’s claims. 485 Mich 1132 (2010). Meanwhile, defendant had also brought a malpractice claim ag ainst his trial counsel in the Oakland Circuit Court. The court, Shalina D. Kumar, J., gran ted summary disposition in favor of defendant’s trial counsel. The Court of Appeals, M URRAY , P.J., and M ARKEY and B ORRELLO , JJ., affirmed that decision. Trakhtenberg v McKelvey , unpublished opinion per curiam, issued October 27, 2009 (Docket No. 285247). Defendant sought leave to appeal in the Supreme Court, which ordered that the application be held in abeyan ce pending resolution of the criminal case. Trakhtenberg v McKelvey , 780 NW2d 828 (Mich, 2010). Followi ng the evidentiary hearing on remand in the criminal case, the trial court, Dani el P. O’Brien, J., ruled that defense counsel had been ineffective and that defendant was entitle d to a new trial. Th e Court of Appeals, D ONOFRIO , P.J., and C AVANAGH and S TEPHENS , JJ., reversed in an unpublished opinion per curiam, issued May 19, 2011 (Docke t No. 290336). The Court of Appe als reasoned, in part, that collateral estoppel precluded it fr om reviewing the performance of defendant’s trial counsel because in the malpractice case the Court of App eals had held that defendant’s trial counsel’s performance fell within the “attorney judgment” rule. The Supreme Court granted defendant’s application for leave to a ppeal. 490 Mich 927 (2011). In an opinion by Justice C AVANAGH , joined by Justices M ARILYN K ELLY , M ARKMAN , and M ARY B ETH K ELLY , the Supreme Court held : Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra This syllabus constitutes no part of th e opinion of the Court but has been prepared by the Reporter of Decision s for the convenience of the reader. Reporter of Decisions: John O. JuroszekCollateral estoppel may not be applied on the basis of a prior civil judgment holding that defense counsel’s performance did not amount to ma lpractice in order to preclude review of a criminal defendant’s claim of in effective assistance of counsel. 1. Generally, the proponent of the application of collateral estoppel mu st show that (1) a question of fact essential to the judgment was actually litigated and determined by a valid and final judgment, (2) the same parties had a full and fair opportunity to litiga te the issue, and (3) there was mutuality of estoppel. In determin ing whether the party opposing collateral estoppel had a full and fair opportunity to adjudicate his or her claim, a court must take into consideration the choice of forum and the incentive to litig ate. Cross-over esto ppel occurs when the application of collateral estoppe l crosses over the line between ci vil and criminal proceedings. Although some cases have suggested that collateral estoppel ma y be applied when an issue adjudicated in a prior civil proceeding is clai med to be precluded in a subsequent criminal proceeding, those cases were distinguishable becaus e, in this case, it was the prosecution and not defendant that sought to apply the doctrine. In this case, the C ourt of Appeals erred by applying collateral estoppel because defendant did not have a full and fair opportunity to litigate his claim in the malpractice proceeding. Defendant’s in terests when pursuing the malpractice claim differed from his interests in asserting his co nstitutional right to the effective assistance of counsel. In the civil case, defendant sought mone tary gain, and in the criminal case he sought protection of his liberty. Because he had a di fferent and, most likely, stronger incentive to litigate counsel’s errors in the criminal proceeding, the prior malpractice case did not afford defendant a full and fair opportuni ty to litigate his claim of in effective assistance of counsel. 2. Both the Michigan and United States Constitutions require that a criminal defendant enjoy the assistance of counsel for his or her defens e. In order to obtain a new trial, a defendant must show that (1) counsel’s pe rformance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, ther e is a reasonable probab ility that the outcome would have been different. In examining whet her defense counsel’s performance fell below an objective standard of reasonablen ess, a defendant must overcome the strong presumption that counsel’s performance was born fro m a sound trial strategy. But a court cannot insulate review of counsel’s performance by calli ng it trial strategy. The court must determine whether defense counsel made the strategic choices after less th an complete investigation, and any choice is reasonable precisely to the extent that reasona ble professional judgmen ts support the limitations on investigation. In this case, defense couns el failed to exercise reasonable professional judgment when deciding to forgo particular inves tigations relevant to the defense, including her failure to identify the factual pr edicate of each of the five ch arged counts of criminal sexual conduct, her failure to consult with key witnesse s, and her failure to sufficiently develop the defense presented at trial. A ccordingly, her representation fell below an objective standard of reasonableness. Defendant was unf airly prejudiced by counsel’s de ficient performance. The key evidence against defendant was the complainant’ s testimony. Therefore, the reliability of defendant’s convictions was undermined by defens e counsel’s failure to introduce impeachment evidence and evidence that corroborated defe ndant’s testimony that defense counsel was unaware of because she decided to forgo those investigations. Had the impeachment evidence and the evidence that corrobor ated defendant’s testimony been introduced, there was a reasonable probability that the result of th e trial would have been different.Court of Appeals’ judgment reversed; case remanded to the trial court for a new trial.
Chief Justice Y OUNG , joined by Justice Z AHRA , dissenting, agreed that collateral estoppel did not bar review of defendant’s claims of error, but disagreed with the majority’s analysis of that issue and disagreed with the majority’s conc lusion that defendant di d not receive effective assistance of counsel. Accordingly, he would ha ve affirmed the result reached by the Court of Appeals. Instead of examining defendant’s interests in litigatin g his malpractice claim as the majority did, Chief Justice Y OUNG would have considered the elements required to apply collateral estoppel. In this case, the first elem ent necessary to apply collateral estoppel was not satisfied because defendant’s clai m of ineffective assist ance of counsel was not actually litigated and determined by a valid and final judgment in the malpractice action. A party asserting malpractice must establish that, but for the negl igence, the outcome of th e case would have been favorable to the plaintiff. However, a criminal defendant may be entitled to a new trial on the basis of ineffective assistance of counsel even if the errors of counsel cannot be shown by a preponderance of the evidence to have determin ed the outcome. Because a legal malpractice action requires a higher threshold of prejudice than a claim of ine ffective assistance of counsel, a defendant can establish ineffectiv e assistance of counsel even if he or she cannot establish legal malpractice. Nonetheless, the result reached by th e Court of Appeals should have been affirmed because defendant failed to establish that couns el’s performance was outside the wide range of professionally competent assistance leading to a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedi ng would have been different. The lower courts did not err by determining that defense counsel’s trial strategy was objectively reasonable, and the Court of Appeals correctly reversed as an abuse of discretion the tr ial court’s decision to grant defendant a new trial, the sole basis for which was that counsel di d not proffer a defense focusing on the character of the complainant’s moth er. Moreover, even if counsel was deficient for failing to conduct particular i nvestigations, adequately impeach the complainant, or introduce potentially corroborative testimony, defendant coul d not satisfy the prej udice requirement for a claim of ineffective assistance of counsel.
Justice H ATHAWAY did not participate because of a professional relationship with a member of a law firm involved in the matter.

©2012 State of MichiganFILED DECEMBER 21, 2012
S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v No. 143386 JACOB TRAKHTENBERG, Defendant-Appellant.

BEFORE THE ENTIRE BENCH (except H ATHAWAY , J.)
C AVANAGH , J. This case requires us to de termine whether collateral es toppel may be applied to preclude review of a criminal defendant’s clai m of ineffective assist ance of counsel when a prior civil judgment held that defens e counsel’s performance did not amount to malpractice. We hold that collateral estoppe l may not be applied in these circumstances because defendant did not have a full and fair opportunity to litigate his ineffectiveassistance-of-counsel claim, contrary to the requirements of the doctrine itself.
Given our conclusion that collateral es toppel is inapplicable, we must also determine whether defendant was deprived of his right to the effective assistance of Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra2 counsel under Strickland v Washington , 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). We hold that defe nse counsel’s performance wa s constitutionally deficient
because she failed to exercise reasonable professional judgment when she decided to forgo any investigation of the case before set tling on a defense strate gy. That deficiency prejudiced defendant by underm ining the reliability of the ou tcome of his trial, which rested solely on the credibility of the comp lainant and defendant. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the trial court for a
new trial.
I. FACTS AND PROCEEDINGS Defendant was charged with five counts of second-degree criminal sexual conduct (CSC-II) for allegedly touching the genitals of his eight-year-old daug hter and forcing her to touch his genitals. During the bench tria l, the complainant testified that defendant
touched her three or four times (once or twice while she was in defendant’s bed at night)
and would lower her hand to hi s genitals. Lilya Tetarly, the complainant’s mother and defendant’s ex-wife, testified that in 2004 the co mplainant developed yeast infections. On direct examination, Tetarly denied asking defendant to tr eat the yeast infections with ointment and stated that the complainant beca me upset when she had to go to defendant’s
home. Defense counsel did no t cross-examine Tetarly. As the only defense witness,
defendant testified that he never forced the co mplainant to touch his genitals and that he touched the complainant’s genitals six times to apply medication at Tetarly’s insistence after a heated argument over whether it was a ppropriate for him to apply the ointment.
Defendant was convicted of three counts of CSC-II. Two counts were based on evidence
that defendant touched the complainant and one count was based on evidence that3 defendant forced her to touch his genitals. Af ter the parties’ closing arguments, the trial court commented that “very little’s clear to me in this case, st arting with what the allegations are that go to each count.” On direct appeal, defendant argued that defense counsel was ineffective for failing to impeach Tetarly with eviden ce of bias pertaining to their divorce four years earlier. Defendant argued that Tetarly had attempte d to hit him with her car, which was supported by a police report, and assaulted hi m while he was driving, which resulted in Tetarly’s arrest on domestic violence charges. The Court of Appeals denied defendant’s motion for an evidentiary hearing pursuant to People v Ginther , 390 Mich 436; 212 NW2d 922 (1973), 1 and held that defense counsel was not ineffectiv e for failing to impeach Tetarly because the reco rd lacked evidence to show that she was still upset over the divorce. People v Trakhtenberg , unpublished opinion per cu riam of the Court of Appeals, issued March 27, 2007 (Docket No. 268416). Defe ndant applied for leave to appeal in this Court, which was denied. People v Trakhtenberg , 480 Mich 856 (2007). Defendant subsequently filed a legal malp ractice claim against defense counsel,
which the trial court dismisse d upon defense counsel’s motio n for summary disposition. The Court of Appeals affirmed, holding that defense counsel’s pe rformance fell within the “attorney judgment rule.” Trakhtenberg v McKelvy , unpublished opinion per curiam

1 The Court also denied defenda nt’s subsequent motion to hold the appeal in abeyance to give defendant more time to verify additiona l grounds for bias—namely, that Tetarly had previously made false allegati ons that defendant’s prior wife sexually abused defendant’s son from that marriage in order for defendant to gain an advantage in the then pending custody dispute over defendant’s son, HT.4 of the Court of Appeals, issued Oc tober 27, 2009 (D ocket No. 285247). 2 See, also, Simko v Blake , 448 Mich 648; 532 NW2d 842 (1995). Meanwhile, in his criminal case, defendant filed a motion for relief from judg ment under MCR 6.508(D)(3), claiming that
he was entitled to a new trial be cause he was denied the eff ective assistance of trial and appellate counsel and, alternatively, that newly discovered evid ence warranted a new
trial. The trial court denied the moti on under MCR 6.508(D)(3)(b), and the Court of Appeals denied defendant leave to appeal. People v Trakhtenberg , unpublished order of the Court of Appeals, entered March 20, 2009 (Docket No. 290336). In lieu of granting leave to appeal, this Court retained jurisdiction and remanded the case to the Court of Appeals for consideration as on leave granted, and the Court of Appeals was ordered to
remand the case to the trial court to conduct a Ginther hearing in order to evaluate
defendant’s claims. People v Trakhtenberg , 485 Mich 1132 (2010). During the course of the Ginther hearing, voluminous testimony was taken. Tetarly admitted that she wa s dissatisfied with the divo rce judgment and had made negative comments about defendant in front of the complainant. And, for the first time, Tetarly disclosed that before reporting the complainant’s allegations of abuse to the authorities, she brought the complainant to a youth pastor. Tetarl y stated that she then brought the complainant to CARE House, which provides interv ention and treatment services for child victims of abuse, wh ere Amy Allen, a CARE House employee, performed a forensic intervie w, during which the complainant alleged the abuse. The

2 Defendant sought leave to appe al in this Court. We ordere d that the application be held in abeyance pending a decision in this criminal case. Trakhtenberg v McKelvy , 780 NW2d 828 (Mich, 2010).5 responding detective’s police report states that the detective asked Tetarly to directly ask the complainant whether defendant had ever touc hed her “private parts” with his fingers. That questioning eventually led to the complainant’s second formal allegation of abuse. Allen, who was unaware that the comp lainant had spoken to others about the abuse, testified that it is impor tant to know whethe r the child has spoken to anyone else in order to conduct a proper forensic interview be cause, as a result of repeated interviewing, a child might start to mistakenly believe th at something happened to him or her. Additionally, Dr. Katherine Okla , a clinical psychologist sp ecializing in sexual abuse, noted her concern regarding the complainant’ s knowledge of her mother’s hatred of defendant and explained that Tetarly’s leadin g and suggestive questions and the repeated questioning of the complainant (e specially in a therapeutic rath er than forensic setting) could have tainted the child’s recollection of the events su rrounding the alleged abuse.
Defendant testified that he had requested that defense co unsel consult with numerous witnesses including Allen and HT , who was defendant’s son.
Defense counsel testified that her de fense theory was tw o-fold: she would (1) impeach the compla inant’s trial testimony with an in consistent statement regarding
the number of times defendant made her touc h him and (2) show that defendant lacked the requisite intent of sexual gratif ication to be convicted of CSC-II. 3 Additionally, she advised defendant to waive his prelimin ary examination, and she did not demand

3 MCL 750.520a(q) defines “sexual contact,” in relevant part, as the “intentional touching of the victim’s or actor’s intimate parts . . . if that intentional to uching can reasonably be construed as being for the purpose of sexua l arousal or gratification, [or] done for a sexual purpose . . . .”6 discovery, obtain Allen’s notes, or intervie w any witnesses because she felt that any
further information was irreleva nt to the defense theories. Defense counsel testified that she was unaware of the complainant’s continue d therapy, her feeli ngs toward defendant, her testimony in the civil trial that defendant applied medication to her vagina, and her meeting with a youth pastor. Following the hearing, the trial court ruled that defe nse counsel was ineffective
and defendant was entitled to a new trial. The Court of Appeals re versed, reasoning, in part, that collateral estoppel precluded th e Court from reviewing the performance of defense counsel because in defendant’s legal malpractice case, the Court had held that defense counsel’s performance fell within the “attorney judgment rule.” The Court
further held that counsel was not ineffective on the basis of the claims of error left for its review. People v Trakhtenberg , unpublished opinion per curiam of the Court of Appeals, issued May 19, 2011 (Docket No. 290336). Defendan t sought leave to appeal in this Court, which we granted. People v Trakhtenberg , 490 Mich 927 (2011).
II. STANDARD OF REVIEW This Court reviews de novo the application of a legal doc trine, including collateral estoppel. Estes v Titus , 481 Mich 573, 578-579; 751 NW 2d 493 (2008). The question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court’s findings of fact and reviews de novo questions of constitutional law. People v Armstrong , 490 Mich 281, 289; 806 NW2d 676 (2011).7 III. ANALYSIS
A. COLLATERAL ESTOPPEL Generally, the proponent of th e application of collateral estoppel must show “that (1) a question of fact essentia l to the judgment was actually litigated and determined by a valid and final judgment, (2) the same parties had a full and fair oppor tunity to litigate the issue, and (3) there was mu tuality of estoppel.” Estes , 481 Mich at 585. 4 When the application of collateral estoppel “crosses ove r” the line between a criminal and a civil proceeding, it has aptly been termed “cross-over estoppel.” 5 Several Court of Appeals opinions have held that a criminal defense a ttorney may rely on the doctrine of collateral estoppel in order to avoid malpractice liabi lity when a full and fair determination was made in a previous criminal ac tion that the same client had received effective assistance of counsel. See, e.g., Barrow v Pritchard , 235 Mich App 478, 484-485; 597 NW2d 853 (1999). Yet we must hesitate to apply collateral estoppel in the reverse situation—when the government seeks to apply collateral estoppel to preclude a criminal defendant’s
claim of ineffective assistance of counsel in light of a prior civil judgment that defense counsel did not commit malpractice. The prosecution argues that this Court ap proved the application of collateral estoppel in the civil-to-criminal context in People v Gates , 434 Mich 146; 452 NW2d 627 (1990). Gates stated that “[c]ases involving ‘cross-over estoppel,’ where an issue

4 While the dissent is critical of the majority’s analysis, we believe that our analysis is analytically sound and well supported.

5 See Brenner, “Crossing-over:” The issue-preclus ive effects of a civil/criminal adjudication upon a pr oceeding of the opposite character , 7 N Ill U L Rev 141 (1987).8 adjudicated in a civil proceeding is claimed to be precluded in a subsequent criminal proceeding, or vice versa, are relatively recent and rare.” Id. at 155. And further, the United States Supreme Court ha s stated that “the doctrine of collateral estoppel is not made inapplicable by the fact that this is a criminal case, wherea s the prior proceedings
were civil in character.” Yates v United States , 354 US 298, 335; 77 S Ct 1064; 1 L Ed 2d 1356 (1957), overru led on other grounds by Burks v United States , 437 US 1; 98 S Ct 2141; 57 L Ed 2d 1 (1978 ). It is unnecessary to discuss the relevant holdings of these cases, however, because the prosecution and the Court of Appeals have ignored a fundamental aspect of this ca se that distinguishes it from Gates and Yates . In this case, defendant is not the pr oponent of the applica tion of collateral estoppel; to the contrary, the prosecution asked the Court to apply the doc trine to estop the Court’s full review of defendant’s claim that he received ineffective assistance of counsel. 6 In the present case, we must consider the goal of the doctrine of collateral estoppel along with the elements of th e doctrine to determine whethe r the Court of Appeals erred when it precluded review of many of defendant ’s allegations concerning the ways in
which defense counsel erred. The doctri ne of collateral estoppel has compelling

6 Similarly, the Court of Appeals erred when it characterized the application of collateral estoppel as “defensive.” In determining wh ether defendant’s constitutional right to the effective assistance of counsel was denied, there cannot be an “offense” and a “defense,” as the traditional application of collateral estoppel presumes. The prosecution is not in a position where it must somehow “defend” itself; ra ther, if we must fit this case into the traditional framework of collateral estoppel, it is clear that defendant is put on the defensive. It is true that , ultimately, defendant is cha llenging his convic tion and asking for a new trial, yet he does no t do so by attacking the pr osecution. He is merely protecting his constitutional right to an effective attorney.9 underpinnings because it “relieve[s] parties of the cost and vexation of multiple lawsuits, conserve judicial resources, a nd, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v McCurry , 449 US 90, 94; 101 S Ct 411; 66 L Ed 2d 308 (1980), citing Montana v United States , 440 US 147, 153-154; 99 S Ct 970; 59 L Ed 2d 210 (1979). Further, collatera l estoppel “also promote[s] the comity between state and federal courts that has been recognized as a bulwark of the federal system.” Allen , 449 US at 96, citing Younger v Harris , 401 US 37, 43-45; 91 S Ct 746; 27 L Ed 2d 669 (1971). That said, collateral estoppel “must be applied so as to strike a balance between the need to eliminate repe titious and needless litigation [6] and the interest in affording litigants a full and fair adjudication of the issues i nvolved in their claims.” Storey v Meijer, Inc , 431 Mich 368, 372; 429 NW2d 169 (1988) (e mphasis added). In determining whether the party opposing colla teral estoppel has had a “full and fair” opportunity to adjudicate his or her claim, a court must take into consideration the choice of forum and incentive to litigate . . . . [A]s so often is the case, no one set of facts, no one collection of words or phrases, will provide an automatic formula for proper rulings on estoppel pleas . In the end, decision will necessarily rest on the trial cour ts’ sense of justice and equity. [ Blonder-Tongue Laboratories, Inc v Univ of Illinois Foundation , 402 US 313, 333-334; 91 S Ct 1434; 28 L Ed 2d 788 (1971).] See, also, Storey , 431 Mich at 373 (stating that “[t]he extent to which the doctrine is applied is also dependent upon the nature of the forum in which the initial determination was rendered”). We hold that the Court of Appeals erre d when it applied collateral estoppel to preclude its review of defendant’s ineff ective-assistance-of-counsel claim because
defendant did not have a full an d fair opportunity to litigate his claim in the malpractice10 proceeding. Considering the nature of th e forum in which defe ndant’s allegations concerning counsel’s errors were initially reje cted, it is clear that defendant’s interest when pursuing his civil malp ractice claim differed from hi s interest in asserting his constitutional right to effectiv e counsel in the criminal pr oceeding. Indeed, defendant sought monetary gain in the malpractice ca se, whereas in his criminal case he seeks protection of a constitutional right and his liber ty. Accordingly, be cause defendant has a different and most likely stronger incentive to litigate counsel’s errors in the criminal proceeding, the prior civil litigation concerning counsel’s alleged claims of error did not
afford defendant a full and fa ir opportunity to litigate hi s ineffective-assistance-ofcounsel claim.
Because we conclude that the Court of Appeals erred when it applied collateral estoppel, which precluded a full review of defense counsel’s alleged errors, we must now
decide the merits of defendant’s ineffective- assistance-of-counsel claim on the basis of a
full review of the eviden ce revealed at the evid entiary hearing.
B. INEFFECTIVE ASSI STANCE OF COUNSEL Both the Michigan and the United States Constituti ons require that a criminal defendant enjoy the assistance of counsel for his or her defens e. Const 1963, art 1, § 20; US Const, Am VI. In order to obtain a ne w trial, a defendant must show that (1) counsel’s performance fell belo w an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability th at the outcome would have been different. Armstrong , 490 Mich at 290; see, also, People v Pickens , 446 Mich 298; 521 NW2d 797 (1994) (adopting the federal constitutional standard for an
ineffective-assistance-of-couns el claim as set forth in Strickland ).11 1. DEFENSE COUN SEL’S PERFORMANCE In examining whether defense counsel’ s performance fell be low an objective standard of reasonableness, a defendant mu st overcome the strong presumption that counsel’s performance wa s born from a sound trial strategy. Strickland , 466 US at 689. Yet a court cannot insulate the review of counsel’s performance by calling it trial strategy. Initially, a court must determine wh ether the “strategic choices [were] made after less than complete investigation,” and any choice is “reasona ble precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-691. Counsel always reta ins the “duty to make reasonable investigations or to make a reasonable decision that make s particular investigations unnecessary.” Id . In this case, the trial court and th e Court of Appeals erred by failing to recognize that defense counsel’s error was th e failure to exercise reasonable professional judgment when deciding not to conduct any inve stigation of the case in the first instance. 7 Accordingly, no purported limitation on her inve stigation of the case can be justified as reasonable trial strategy. 8 We hold that because defens e counsel failed to exercise

7 Instead, the trial court framed defense couns el’s error as a decision to pursue the “‘no sex gratification/denial’ defens e and not the “‘sinister or ba d mom defense’” (referring to defense counsel’s failure to impeach Tetarly ). The Court of Appeals reversed the trial court’s ruling that counsel was ineffective for failing to pursue the impeachment defense in part because this decision was part of a reasonable trial strategy. The trial court’s erroneous focus on wh ether these “defenses” were pr operly pursued led the Court of Appeals to justify defense counsel’s decision to pursue only one de fense as a matter of trial tactics, which are not reviewable in hindsight.

8 Contrary to the dissent’s view, our conclu sion in this case that defense counsel’s performance was constitutionally deficient does not equate with judging counsel’s strategy in hindsight. Th e dissent is correct that Strickland counsels against a hindsight review of defense counsel’s choices and th at reviewing courts should “evaluate the12 reasonable professional judgment when decidi ng to forgo particular investigations relevant to the defense, her representa tion fell below an obje ctive standard of
reasonableness. First, defense counsel failed to identify th e factual predicate of each of the five charged counts of CSC-II. Although the ch arging documents lack ed specific factual allegations, defense counsel a dvised defendant to waive his preliminary examination and
she failed to file a motion for a bill of particulars. As a result, in this case defense counsel was left without a comp etent understanding of the prosecution’s theories of guilt. In fact, James Sabbota, an expert in criminal trial practice and defending cases involving allegations of criminal sexual conduct, testif ied at defendant’s evidentiary hearing that without either a preliminary examination or a bill of particulars, there was no way to develop a defense in this case. Second, defense counsel failed to consu lt with key witnesses who would have revealed weaknesses of the prosecution’s case. Particularly, counsel failed to interview Allen, despite the fact that the prosecution included her on its witn ess list. Moreover, given the exposure the compla inant had to multiple intervie ws and leading questions, a reasonable attorney would have consulted an expert, such as Okla, to testify regarding the

conduct from counsel’s pers pective at the time.” Strickland , 466 US at 689. However, the dissent misinterprets our char acterization of defense counsel’ s errors in this case. We do not hold that counsel’s performance was objectively unreasonable because her chosen strategy was unsuccessful or that another st rategy would have been more successful. Rather, we hold that defense counsel may not us e trial strategy to insulate trial decisions if counsel cannot provide a reasonable basis fo r the chosen strategy, particularly where, as here, the strategy is chosen before conducting any reasonable investigation.13 propriety of how the complainant made her allegations. Yet the only expert defense counsel consulted was John Neumann, an expert in sex offender evaluation. 9 Perhaps most importantly, defense counsel stated at the Ginther hearing that she chose not to consult any witnesses or ob tain additional evidence before she decided to pursue a defense strategy for which she concluded th at no further investigation was necessary. Lastly, defense counsel’s unreasonably inad equate investigation contributed to her failure to sufficiently develop the defense that was actually presented at trial. This case turned solely on cred ibility—the ultimate question at tria l was whether the complainant’s allegations of sexual abuse were truthful or, co nversely, if her allegations were the result of improper motivations and interviewing tec hniques. Counsel’s failure to cross-examine Tetarly and adequately impeach the complain ant was a result of counsel’s unreasonable decision to forgo any investigat ion in the case. In fact, counsel admitted that had she discovered the pertinent information, she woul d have (1) impeached the complainant with her additional inconsistent statements regard ing the number of times defendant allegedly forced her to touch him, (2) impeached the complainant and Te tarly regarding the complainant’s impression that defendant did not love her, and (3) consulted experts and Allen regarding proper forensic -interviewing protocol. Al so, counsel failed to employ reasonable professional judgment when deci ding not to interview HT, who was also

9 As the United States Court of Appeals for the Second Circ uit has explained, a defense attorney may be deemed ineffe ctive, in part, for failing to consult an expert when “counsel had neither the educa tion nor the experience necessary to evaluate the evidence and ‘make for himself a reasonable, informed determination as to whether an expert should be consulted or calle d to the stand . . . .’” Eze v Senkowski , 321 F3d 110, 128 (CA 2, 2003), quoting Pavel v Hollins , 261 F3d 210, 225- 226 (CA 2, 2001) (emphasis added).14 listed on the prosecution’s witness list. HT wa s intimately familiar with the relationship between defendant and the complainant. Thus, an attorney exercising reasonable professional judgment would have at least spoken to HT in an attempt to determine if he could provide testimonial evidence that might have corroborated defendant’s testimony. Therefore, we hold that defense counsel’s perform ance was constitutionally deficient because a sound defense strategy cann ot follow an incomplete investigation of
the case when the decision to forgo further investigation wa s not supported by reasonable professional judgment. We must now turn to the question whether defendant was prejudiced by the deficiency. 10
2. PREJUDICE 11 In addition to proving that defense c ounsel’s representation was constitutionally deficient, defendant must show that “but fo r counsel’s deficient pe rformance, a different result would have been reasonably probable.” Armstrong , 490 Mich at 290, citing Strickland , 466 US at 694-696. A de fendant may meet this burden “even if the errors of counsel cannot be shown by a preponderance of the evidence to ha ve determined the

10 Additionally, to the extent that defendan t cannot show that he was entitled to a new trial in light of newly discovered evidence under People v Cress , 468 Mich 678, 692; 664 NW2d 174 (2003), because he or defense counsel could, “using reasonable diligence, have discovered and produced the evidence at trial,” defense counsel was further ineffective for not having employed such re asonable diligence. (C itation and quotation marks omitted.)

11 Although the trial court did not expressl y find that defendant was prejudiced by defense counsel’s errors and the Court of Ap peals failed to reach this issue, in the interests of judicial economy, we find it nece ssary to consider this issue in the present appeal. See Peterman v Dep’t of Natural Resources , 446 Mich 177, 18 3; 521 NW2d 499 (1994), and MCR 7.316(A).15 outcome.” 12 Strickland , 466 US at 694. And “[w]here there is relatively little evidence to support a guilty verdict to begin with (e.g., the uncorroborated testimony of a single witness), the magnitude of errors necessary for a finding of prejud ice will be less than where there is greater evidence of guilt.” Brown v Smith , 551 F3d 424, 434-435 (CA 6, 2008), citing Strickland , 466 US at 696. In the present case, the key evidence that the pros ecution asserted against defendant was the comp lainant’s testimony; therefore, the reliability of defendant’s convictions was undermined by defense coun sel’s failure to introduce impeachment evidence and evidence that corroborated defe ndant’s testimony. The defense strategy not to present the trier of fact w ith vital evidence was the result of counsel’s failure to employ reasonable professional judgment, which lim ited counsel’s knowledge of the existence and importance of th at evidence. Regarding the impeachment ev idence, while it is true that defense counsel crossexamined the compla inant, the omissions in that cross- examination, coupled with defense

12 The dissent admits in its discussion c oncerning whether collateral estoppel was properly applied in this case that defendant’s burden to show that he was prejudiced by defense counsel’s errors is less than the preponderance-of-the-evidence standard. However, the dissent nonetheless appears to hold defendant to a higher burden by concluding that, despite the fact that this case was decided solely on the credibility of defendant and the complainant and the trier of fact was deprived of a substantial amount of relevant information, there was not at least a reasonable likelihood that the outcome of the trial would have been different but fo r counsel’s deficient performance. Indeed, defendant’s trial concluded in less than one ho ur, whereas it took the trial court more than five days to collect testimony during defendant’s Ginther hearing. Additionally, we note that our holding today does not resolve the question of guilt or innocence. Rather, we hold only that defendant is entitled to a new trial so that his guilt or innocence may be properly determined, as required by the Michigan and United States Constitutions.16 counsel’s failure to cross-examin e Tetarly, deprived the trier of fact of the necessary and
available evidence that disc redited the complainant’s a llegations. Similarly, in Armstrong , 490 Mich at 292, this Court held th at, although the co mplainant was crossexamined by defense counsel, “a reasonable probability exists that this additional attack on the complainant’s credibility [the introduction of cell phone records] would have tipped the scales in favor of finding a reasonable doubt abou t defendant’s guilt.” 13 Had counsel exercised reasonable j udgment when investigating the case, she would have been able to impeach the compla inant’s testimony with th e complainant’s additional inconsistent statements and w ith expert testimony that disc redited the propriety of the complainant’s accusations. Further, defense counsel’s failure to impeach Tetarly left the record completely devoid of any motivation that Tetarly may have had to distort and encourage the complainant’s allegations. Without this evidence , “in a case that essentially boil[s] down to wh ether the complainant’s alle gations of [criminal sexual conduct] [are] true,” we have no doubt that the re liability of defendant’s convictions is adequately called into question. Id . at 293. Likewise, defense counsel’s failure to co rroborate the defense that defendant did not have the intent of sexual gratification co mpounded the prejudicial effect of defense counsel’s failure to impeach the complainant’s testim ony. She did not ask the

13 It is true that the additional impeachment evidence available to the defense counsel in Armstrong was documentary evidence and, in th is case, the additional evidence was testimonial. But here, defense counsel’s cr oss-examination of th e complainant was, without justification, substantially less di screditing than the de fense counsel’s crossexamination of the complainant in Armstrong . This increased the need for the introduction of any available impeachment evidence, even if it was testimonial.17 complainant if defendant had previously applie d ointment to her for medical purposes. If she had, presumably, th e complainant would have answered in the affirmativ e, given that she testified accordingly in a later civil proc eeding. Likewise, de fense counsel did not consult with HT, who likely would have offe red testimony that corroborated defendant’s testimony. 14 Instead, counsel relied solely on defendant’s testimony that he did not possess the requisite intent. Therefore, if defense counsel had exerci sed reasonable professional judgment, she
would have discovered and presented impeachment evid ence and evidence that
corroborated defendant’s testim ony, and there is a reasonable probability that the result of
the trial would have been different. Thus , defendant has shown that he was unfairly prejudiced by defense counsel’s errors.
IV. CONCLUSION We conclude that collateral estoppel cannot be applied to preclude the review of a
criminal defendant’s claim of ineffective assi stance of counsel simp ly because a previous civil proceeding determined that defense counsel had not committed malpractice. Application of collateral estoppel on that basis fails to satisfy the element of the doctrine requiring that a defendant prev iously have had an opportunity to fully and fairly litigate his or her ineffective-assist ance-of-counsel claim. Furthermore, defense counsel’s perform ance in this case was constitutionally inadequate and rendered defendant’s trial unf air and unreliable. Th erefore, we reverse

14 During the course of Tetarly’s correspond ing civil case against defendant, HT was asked if defendant “ever act[ed] in a sexua l manner to [the complainant].” HT responded, “No.”18 the judgment of the Court of Appeals and re mand this case to the trial court for a new
trial.

Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Mary Beth KellyS T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v No. 143386 JACOB TRAKHTENBERG, Defendant-Appellant.

Y OUNG , C.J. ( dissenting ). I respectfully dissent from the Court’s de cision to grant defendant a new trial on
his motion for relief fro m judgment. While I agree with the majority that collateral estoppel does not bar defenda nt’s claims of error, I cannot adopt the majority’s amorphous analysis on that issue and instead would simply hold that the prosecution has not satisfied the elements required to a pply collateral estoppel against defendant. Moreover, in applying Strickland v Washington to the facts of this case, I do not believe
defendant is entitled to relief because he ha s not shown that counsel’s performance was “outside the wide range of professionally co mpetent assistance” lead ing to “a reasonable probability that, but for couns el’s unprofessional errors, the result of the proceeding
would have been different.” 1 Thus, I would affirm the re sult reached by the Court of Appeals.

1 Strickland v Washington , 466 US 668, 690, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).2 I. COLLATERAL ESTOPPEL The Court of Appeals determined that the collateral estoppel doctrine barred
substantive consideration of many of defendant’s ineffec tive assistance of counsel
claims. 2 While I agree with the ma jority that the Court of Appeals erred by applying collateral estoppel to bar many of defendan t’s claims, I do not adopt the majority’s analysis to reach this conclu sion. Instead of examining de fendant’s interests in litigating his legal malpractice and ineffective assistan ce of counsel claims, I would consider the elements required to apply collateral estoppel , which lead inexorably to the conclusion that defendant is not precluded from alleging ineffective assi stance of counsel in a motion for relief from judgment. Accordingly, I would decide the issu e on this basis alone.
In Monat v State Farm Insurance Co , this Court articulated the elements of collateral estoppel: Generally, for collateral estoppel to apply three elements must be satisfied: (1) “a question of fact essen tial to the judgment must have been actually litigated and determined by a va lid and final judgment”; (2) “the same parties must have had a full [and fair] opportunity to litigate the issue”; and (3) “there must be mutuality of estoppel.” [3]

2 The Court of Appeals first concluded that the circuit court erred by granting defendant a new trial because the circuit court’s analysis was complete as a matter of law once it concluded that his counsel’s tr ial strategy was reasonable. Ne vertheless, it went on to examine potential alternative ba ses for affirming the circuit court’s decision, and it ended up rejecting many of defendant’s ineffective assistance of counsel claims on the basis of collateral estoppel. Because it was sufficient to resolve defendant’ s appeal on the basis of its conclusion that trial counsel’s stra tegy was reasonable, th e Court of Appeals’ decision to apply collateral estoppel was not essential to its holding.

3 Monat v State Farm Ins Co , 469 Mich 679, 682-684; 67 7 NW2d 843 (2004), quoting Storey v Meijer, Inc , 431 Mich 368, 373 n 3; 429 NW2d 169 (1988) (alteration in original). Monat also held that the third element, mutuality of estoppel, is unnecessary when the party asserting estoppel claims that the opposi ng party is bound by a previous3 In this case, the first el ement of collateral estoppel is not satisfied because
defendant’s ineffective assist ance of counsel claim was not “actually litigated and determined by a valid and final judgment” in his legal malpractice action. A party asserting legal malpractice “m ust establish that, but for the negligence, the outcome of
the case would have been favorable to the plaintiff.” 4 However, Strickland specifically indicates that a criminal defendant may be entitled to a new trial on the basis of
ineffective assistance of counse l “even if the errors of co unsel cannot be shown by a preponderance of the evidence to have determined the outcome.” 5 Because a legal malpractice action requires a higher threshold of prejudice than an ineffective assistance of counsel claim, a defendant can establish in effective assistance of counsel even if he cannot establish legal malpractic e. As a result, the Court of Appeals erred by concluding that defendant’s ineffective assistance of counsel claim was “a ctually litigated and determined by a valid and final judgment,” and we need not even consider defendant’s interests in undertaking his legal malpractice and ineffective assistan ce of counsel claims as the majority does.

adverse ruling: “There is no compelling reas on, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.” Monat , 469 Mich at 689 (quotation marks and citation omitted). Accordingly, because the prosecution seek s to apply collateral estoppel against defendant, Monat does not require mutuality of estoppel and the fact that the prosecutor was not a party in defendant’s legal malprac tice claim does not itself bar application of collateral estoppel.

4 Radtke v Miller, Can field, Paddock & Stone , 453 Mich 413, 42 4; 551 NW2d 698 (1996).

5 Strickland , 466 US at 694.4 II. INEFFECTIVE ASSI STANCE OF COUNSEL Nevertheless, when examining defendant’s substantive claims, I do not believe
defendant is entitled to a new trial on the ba sis of his motion for relief from judgment. 6
The Sixth Amendmen t of the United States Constitution, incorporated to the states through the Fourteenth Amendment, 7 guarantees a criminal defendant “the right . . . to
have the Assistance of Counsel for his defence.” 8 Strickland requires a defendant to “identify the acts or omissions of counsel that are . . . outside the wide range of professionally competent assistance.” 9 This review of counse l’s performance is “highly deferential,” 10 must proceed under “a strong presum ption that counsel’s conduct falls within the wide range of reasonable professi onal assistance,” and must consider whether the challenged action (or failu re to act) “‘might be considered sound trial strategy.’” 11 Only when a criminal defe ndant has shown counsel’s pe rformance to be objectively

6 Because defendant is seeking relief pursuant to subchapter 6.500 of the Michigan Court Rules, we review for an abuse of discretion the circuit court’s decision to grant this relief. See People v Osaghae (On Reconsideration) , 460 Mich 529, 534; 596 NW2d 911 (1999). However, we review de novo any underly ing questions of constitutional law. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).

7 Powell v Alabama , 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932).

8 US Const, Am VI. The Mi chigan Constitution also provid es a right to the effective assistance of counsel, see Const 1963, art 1, § 20, although it “does not afford greater protection than federal preceden t with regard to a defendan t’s right to co unsel when it involves a claim of ineffec tive assistance of counsel,” People v Pickens , 446 Mich 298, 302; 521 NW2d 797 (1994).

9 Strickland , 466 US at 690.

10 Id. at 689.

11 Id. , quoting Michel v Louisiana , 350 US 91, 101; 76 S Ct 158; 100 L Ed 83 (1955).5 unreasonable can we consider the effect of counsel’s performance: a criminal defendant is only entitled to a new trial if he can show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the re sult of the proceeding would have been
different.” 12 Strickland also provides that “counsel ha s a duty to make reasonable investigations or to make a reasonable decision that make s particular investigations unnecessary.” 13 The majority claims that counsel was in effective because she did not conduct a preliminary examination or file for a bill of particulars to determine the nature of the charges against defendant. Counsel testif ied that she did not conduct a preliminary examination because she did not want to pr eserve the testimony of certain unfavorable witnesses. Further, while th e charging documents lacked specific factual allegations beyond the offenses charged, c ounsel testified at defendant’s Ginther 14 hearing that she had police and Family Independence Agency reports from which she could determine the factual allegations supporting the charges agains t defendant. Counsel also testified that she believed the imprecision in the charging documents would confuse the trier of fact and redound to defendant’s benefit. The majo rity fails to consider that the decision to forgo a preliminary examination or bill of particulars can itself be a reasonable trial strategy under the circumstances of this ca se, when counsel had information regarding the nature of the charges fro m documents in her possession.

12 Strickland , 466 US at 694.

13 Id. at 691.

14 See People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).6 That in hindsight a strategy was not completely successful does not render it
unreasonable and does not render counsel’s assistance ineffective. Strickland itself implores reviewing courts to undertake “every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the ci rcumstances of counsel’s challenged conduct,
and to evaluate the conduct from co unsel’s perspective at the time.” 15 In this case, when looking to what strategy coun sel developed or could have developed at the time she was preparing for trial, we must consider that any strategy must accoun t for defendant’s admissions that he touched his daughter’s ge nitals at least seven times—six times, he claims, to administer ointment, and once to determine the extent of the pain that his daughter complained of. As a result of these admissions, trial counsel could not prepare
the defense that none of the touchings occurred. Rathe r, counsel had to argue that the times that defendant applied the ointment were not for a sexual purpose. Defendant vehemently denied that he ever touched the complainant’s hand to his penis, and trial counsel’s strategy with regard to that issu e was to impeach the co mplainant’s credibility and explain that defendant put the complainant’s hand to his stomach to show her an oldworld remedy to relieve stomach pain. Both the circuit court and the Court of Ap peals determined that this trial strategy was objectively reasonable, and they did not err by doing so. Nevertheless, the circuit
court held that counsel was in effective for failing to present the alternative defense that the complainant’s mo ther, Liliya Tetarly, fabricated the allegations. While this defense is

15 Strickland , 466 US at 689; see also People v LaVearn , 448 Mich 207, 216; 528 NW2d 721 (1995), quoting Strickland , 466 US at 689.7 not necessarily inconsistent w ith counsel’s chosen defense, counsel provided a reasonable explanation at the Ginther hearing regarding why she did not choose to present it: she was afraid that basing a defense on Tetarly’ s relationship with defendant would open the
door to information that would reflect badl y on defendant, includ ing details about the acrimonious divorce between defendant and Tetarly. 16 The Court of Appeals correctly reversed as an abuse of discretion the circ uit court’s decision to grant defendant a new trial, the sole basis for which was that co unsel did not proffer a defense focusing on Tetarly’s character. Furthermore, the circuit court abused its discretion when it granted defendant a new trial without inquiring into the poten tial prejudice resulting from counsel’s actions
because Strickland requires a defendant to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, th e result of the proceeding would have been
different.” 17 Even if counsel was deficient for failing to interview CARE House employees or consult with an expert abou t forensic interviewing techniques, the unrebutted evidence indicates th at the complainant’ s initial revelation was not a product
of any questioning; rather, both th e complainant and her mother have testified that the complainant made the revelation spontaneou sly. While defendant’s expert at the Ginther

16 The majority explains that counsel failed to investigate allegations of sexual abuse that Tetarly made in the past agai nst defendant’s other ex-wife. However, the record below only indicates that she reported what defendant’s son (a toddler at the time) said and did. While the ex-wife was not convicted of abuse, it is not apparent from the record that these allegations are false—or intentionally false—claims of abuse that would implicate Tetarly’s general character for truthfulness.

17 Strickland , 466 US at 694.8 hearing, Dr. Katherine Okla, testified th at she had concerns about the interview techniques that led to the complainant’s subsequent disclosures involving defendant’s touching of her genitals, defendant admitted that he had touched the complainant’s genitals. Thus, I cannot c onclude that there is a reas onably likely pr obability of a different result occurring but fo r counsel’s failure to inte rview CARE House employees or consult with an expert. Moreover, while the majority argues that counsel did not adequately impeach the complainant, counsel’s cro ss-examination of the compla inant at trial highlighted inconsistencies regarding th e number of times that the complainant claimed that defendant touched her hand to his genitals. Indeed, at one point, the circuit court cut counsel off and acknowledged th at the complainant could not explain the inconsistencies between her testimony and a police report. 18 The circuit court dete rmined that three of the five charged counts of second-degree crimin al sexual conduct arose out of allegations that defendant touched the complainant’s hand to his genitals, and it convicted defendant
of one of those three counts. I cannot c onclude that further cross-examination of complainant emphasizing any inconsistencies in the complainant’s pr evious statements would have resulted in a reasonably likely chance of acquittal on the single remaining count relating to the touching of defendant’s genitals given the circuit court’s statement

18 While the majority puts much stock in potential expert testimony to impeach the complainant’s testimony, the sa me experts might also have bolstered her credibility by helping to explain the inconsistencies that defense counsel sought to highlight. For instance, CARE House employee Amy Allen testif ied at defendant’s civil trial that it is not unusual for a sexual abuse victim to gi ve conflicting reports about the abuse.9 that the complainant’s vivid de scription of defendant’s genita ls was “not something that a
child would fabricate.”
The circuit court also found defendant ’s testimony about administering the medication not to be credible, “mainly because of the major in consistency in regard to the rebuttal witness’s testimony th at he was never asked to a pply the ointment” and because the complainant’s “yeas t infections did not occur around the time in which allegedly
these incidents occurred . . . .” Nothin g in any postconviction testimony undermines Tetarly’s claim that the compla inant did not suffer from yeast in fections at the time of the allegations, and defendant has no t offered any proof to undermine that claim. As a result, defendant has not shown a reasonably probable ch ance of a different outcome at trial on the charges involving de fendant’s touching of the complainant’s genitals. Tetarly always
maintained that she did not ask defendant to apply any medication, and she reiterated at
the Ginther hearing that she never provided defe ndant with medication to place on the complainant’s genital area. Indeed, this testimony that defendant was not allowed to apply ointment is rendered more credible by Tetarly’s test imony that defendant poured cologne on complainant’s genita l area in February 2004. Th is testimony went unrebutted during both the bench trial and the Ginther hearing. Moreove r, the complainant’s testimony at a subsequent ci vil proceeding corroborates Tetarly’s testimony that only Tetarly would apply ointment for the complain ant’s yeast infections and that defendant once poured cologne on the complainan t’s genital area. 19

19 Although the majority observes that the co mplainant testified otherwise at the civil proceeding, the complain ant quickly retracted that statem ent and reiterated that only her mother would apply the ointment.10 Defendant also claims that testimony by his son, HT, would have corroborated defendant’s claim that Tetarly insisted th at defendant apply the ointment to the complainant’s genital area and th at, after several minutes of heated argument, he yielded to her request. Neverthele ss, defendant offers no proof on this claim beyond his bald assertion that HT was actually present for the conversation that defenda nt described. In fact, HT was deposed during th e civil litigation against defend ant, but he did not testify regarding this alleged conversa tion. Instead, HT testified that defendant often yelled at the complainant to retu rn to her room when, at night, sh e would appear at his bedroom. This is consistent, however, with the compla inant’s testimony at the civil trial that sometimes defendant would yell at her to return to her room, although she also testified
that sometimes he would tell her to join him in his bed. Th e lack of an offer of proof regarding whether HT could corroborate de fendant’s testimony about the ointment sharply contrasts with the situat ion resulting in a new trial in People v Armstrong , 20 in which the defendant offered documentary proof that contradicted specific testimony by the complainant at trial. A ccordingly, I cannot say that this potentia l corroborative testimony is sufficiently concrete to satisfy Strickland ’s prejudice requirement. 21

20 People v Armstrong , 490 Mich 281; 8 06 NW2d 676 (2011).

21 In addition to his ineffectiv e assistance of counsel claims, defendant also claimed that newly discovered evidence requires a new trial. The lower courts correctly rejected defendant’s argument. In particular, the Court of Appeals expl ained that most of defendant’s claimed newly disc overed evidence could have been discovered at the time of trial. In analyz ing the evidence that actually constituted newly di scovered evidence— the results of defendant’s polygraph exam ination and the complainant’s subsequent writings—the Court of Appeals correctly determin ed that a different re sult is not probable upon retrial. See People v Cress , 468 Mich 678, 692; 664 NW2d 174 (2003).11 III. CONCLUSION For all these reasons, I would affirm the Co urt of Appeals’ ruling that defendant is not entitled to a new trial, alt hough I would vacate its conclu sion that collateral estoppel
bars substantive consideration of defendant’s ineffective assistance of counsel claims.
Defendant is not entitled to a new trial pursuant to his motion for relief from judgment
because he has not satisfied the elements of Strickland— that counsel’s performance was “outside the wide range of professionally co mpetent assistance” leading to “a reasonable probability that, but for counsel ’s unprofessional errors, th e result of the proceeding
would have been different.” 22

Robert P. Young, Jr. Brian K. Zahra

H ATHAWAY , J., did not participate because of a professional relationship with a member of a law firm in volved in th e matter.

22 Strickland , 466 US at 690, 694.