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

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

In re CHRISTOPHER ROSS, JR., Minor.

PEOPLE OF THE STATE OF MICHIGAN,

Petitioner-Appellee,

UNPUBLISHED

August 21, 2018

v No. 331096

Oakland Circuit Court

CHRISTOPHER ROSS, JR., Family Division

LC No. 2014-826056-DL

Respondent-Appellant.

Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ.

PER CURIAM.

Respondent appeals as of right the trial court’s order of disposition placing him on inhome probation following a bench trial at which he was adjudicated responsible on one count of 

fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e (sexual contact by force or 

coercion). After filing his appeal, respondent moved for an evidentiary hearing regarding his 

allegations that his trial counsel, Daniel Randazzo, was ineffective. See People v Ginther, 390 

Mich 436; 212 NW2d 922 (1973). This Court granted respondent’s motion and, after a lengthy 

evidentiary hearing, the trial court rejected most of respondent’s claims but did conclude that 

Randazzo was ineffective for failing to admit certain telephone records at trial. Thus, the trial 

court concluded that respondent was entitled to a new trial. For the reasons discussed below, we 

reverse and remand for reinstatement of the trial court’s initial adjudication and order of 

disposition.

I. FACTS

Respondent was a high school student. On November 20, 2014, he admittedly engaged 

in sexual activity with a 16-year-old classmate in the hallway of their school. The complainant 

testified that respondent forcibly assaulted her, while respondent claimed that the encounter was 

consensual. No one witnessed the incident. After a bench trial, at which respondent was 

represented by Randazzo, the trial court found the complainant credible, and entered an order 

adjudicating respondent responsible on one count of CSC-IV.
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Randazzo filed a motion for a new trial, which was denied. Respondent then obtained 

new counsel, who filed a second motion for a new trial. This motion raised a wide variety of 

claims, all alleging that Randazzo provided ineffective assistance of counsel. The trial court 

rejected the motion, finding it to be a disguised motion for reconsideration of the first motion for 

a new trial. Respondent then filed a claim of appeal in this Court, and a subsequent motion 

seeking remand for an evidentiary hearing. This motion identified three areas in which 

respondent felt Randazzo was ineffective, omitting several other areas that were identified by 

respondent in his second motion for a new trial. On July 21, 2016, this Court granted the motion, 

and remanded the matter to the trial court for an evidentiary hearing. This Court’s order stated, 

“Proceedings on remand are limited to the issues as raised in the motion to remand.” In re 

Christopher Ross, Jr, unpublished order of the Court of Appeals, entered July 21, 2016 (Docket

No. 331096).

The evidentiary hearing was extraordinarily lengthy and contentious. Respondent’s 

counsel repeatedly tried to delve into issues that were raised in the second motion for a new trial, 

but not in respondent’s motion to remand filed in this Court. Relying on this Court’s remand 

order, the trial court repeatedly rejected respondent’s attempts to expand the issues considered on 

remand. About a year after it began, the evidentiary hearing concluded with the trial court 

granting respondent a new trial. On appeal, the prosecutor argues that the trial court erred. 

Respondent contends that the trial court was correct to grant a new trial for the single reason 

cited by the trial court, and also that the trial court should have found Randazzo ineffective for 

other purported failures. Respondent further argues that he should have been permitted to 

present expert testimony from Jerome Sabbota regarding best practices in defending a CSC case, 

and that the trial court erred by limiting the scope of the hearing to those areas identified in 

respondent’s motion to remand.

II. STANDARD OF REVIEW

Claims of ineffective assistance of counsel present mixed questions of fact and 

constitutional law. People v Shaw, 315 Mich App 668, 671; 892 NW2d 15 (2016). Any factual 

findings by the trial court are reviewed for clear error, while the ultimate legal issue is reviewed 

de novo. Id. at 671-672. Clear error exists if “this Court is definitely and firmly convinced that 

the trial court made a mistake.” Id. at 672.

“To prevail on a claim of ineffective assistance of counsel, a defendant bears a heavy 

burden to establish that (1) counsel’s performance was deficient, meaning that it fell below an 

objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable 

probability that the outcome of the defendant’s trial would have been different.” People v 

Solloway, 316 Mich App 174, 188; 891 NW2d 255 (2016). However, such performance must be 

evaluated without the benefit of hindsight, People v LaVearn, 448 Mich 207, 216; 528 NW2d 

721 (1995), and the defendant must overcome a strong presumption that counsel’s actions were 

based on reasonable trial strategy, People v Cline, 276 Mich App 634, 637; 741 NW2d 563 

(2007).
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III. ANALYSIS

A. TELEPHONE RECORDS

The trial court’s sole basis for granting respondent a new trial was its conclusion that 

Randazzo was ineffective for failing to present telephone records showing calls between a 

telephone belonging to Crystal Ross (Crystal), who is respondent’s mother, and the 

complainant’s telephone about the time the sexual encounter ended. We conclude that 

Randazzo’s decisions with regard to the telephone records were sound strategic decisions, and 

thus, cannot warrant a new trial.

When Randazzo was retained, the case had been ongoing and was approaching trial. 

Respondent had already acknowledged that he had a sexual encounter with the complainant so

the only issue to be litigated at trial was whether the encounter was consensual. And because 

there were no witnesses, the trial was essentially a credibility contest between the complainant 

and respondent.

At some point before trial, Randazzo was told by Crystal and respondent that the 

complainant allowed respondent to use her telephone to call Crystal after the sexual encounter. 

If true, this might support the claim that the encounter was consensual because it could indicate 

that the two were on good terms. Crystal provided telephone records to Randazzo in an effort to 

support the claim. The records are a statement of usage activity, taken from Crystal’s online 

account with her cellular carrier. Three calls, all at 4:31 p.m., are highlighted, and a handwritten 

note states that these calls were from the complainant’s telephone to Crystal’s telephone. This 

handwritten note, however, was incorrect. While the records go back at least an hour before the 

encounter, and continue after the encounter, they do not show any incoming calls from the 

complainant’s telephone number to Crystal’s telephone number. Rather, the records only show 

three outgoing calls, placed by Crystal to the complainant’s telephone, at 4:31 p.m.

With these records in hand, Randazzo accurately explained at the evidentiary hearing that 

he had nothing to support respondent’s claim that the complainant allowed him to use her 

telephone to call Crystal. And at trial, the complainant testified that she did not allow respondent 

to use her telephone after the encounter. When respondent testified, it seems that he was viewing 

the records Crystal gave to Randazzo. Respondent testified—in contradiction to the records—

that he made three calls from the complainant’s telephone, all at 4:31 p.m. While the prosecutor 

objected on the basis that she had not received any telephone records in discovery, the trial court 

overruled the objection, explaining that Randazzo had not sought to introduce the records into 

evidence, but if he did, the objection could be renewed. Randazzo never attempted to introduce 

the records that he had into evidence, instead relying on respondent’s verbal testimony to support 

the theory that the complainant allowed respondent to use her telephone.

At the evidentiary hearing, Randazzo explained his strategy. Randazzo wanted to create 

the impression that the complainant allowed respondent to use her telephone after the encounter. 

Randazzo first questioned the complainant on cross-examination, and elicited her testimony that 

she did not allow respondent to use her telephone. Having no records to back up respondent’s 

claim that he used the complainant’s telephone, Randazzo then questioned respondent regarding 

the calls while he viewed the records Randazzo did have. Randazzo was essentially trying to 
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trick the prosecution and the trial court into believing that there were records substantiating that 

these calls took place. Of course, had the records been admitted, they would have shown that 

respondent’s testimony was not supported by the records. Nonetheless, because of how 

Randazzo approached the issue, he was able to infer that documentary evidence supported 

respondent’s testimony that the complainant allowed him to use her telephone, despite Randazzo 

having been provided no such evidence. At the same time, he was able to call the complainant’s 

credibility into doubt.

Under the circumstances, respondent fails to overcome the presumption that Randazzo’s 

performance was reasonable. Decisions regarding what evidence to admit are “presumed to be 

matters of trial strategy . . . .” People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). 

Respondent must overcome a strong presumption that Randazzo’s strategy was sound. See 

Cline, 276 Mich App at 637. With the records that were available to him at the time, Randazzo 

did the best he could. By questioning respondent in the manner he did, but without introducing 

the records themselves and not providing those records to the prosecutor in discovery, Randazzo 

was able to imply that records existed that backed up respondent’s testimony when none actually 

existed. He was also able to disguise this strategy from the prosecutor. We cannot find fault in 

how Randazzo approached the issue at trial, given what was available to Randazzo at the time. 

Indeed, had Randazzo offered the records he had into evidence at trial, which is primarily what 

respondent now argues was Randazzo’s error, Randazzo would have made a strategic mistake. 

Randazzo would have presented records that failed to call the complainant’s credibility into 

doubt, and at the same time, proved that respondent’s testimony was false. In a case that was a 

pure credibility contest between the complainant and respondent, such an error would have been 

egregious.1

The twist in this case is that during the Ginther hearing, a representative from Crystal’s 

cellular carrier, AT&T, provided more detailed internal records, and testified that a call was in 

fact placed from the complainant’s telephone to Crystal’s telephone at 4:24:59 p.m. For reasons 

unexplained, this call is not included in the records Crystal provided to Randazzo. Knowing this 

to be the case, is respondent entitled to a new trial?

We answer that question in the negative. Randazzo’s performance cannot be assessed 

with the benefit of hindsight. See LaVearn, 448 Mich at 216. This Court must “evaluate defense 

counsel’s performance from counsel’s perspective at the time of the alleged error and in light of 

the circumstances.” People v Grant, 470 Mich 477, 487; 684 NW2d 686 (2004). The real 

question in this matter is one left largely, if not entirely, unaddressed by respondent on appeal: 

should Randazzo have performed any additional investigation into the question of respondent’s 

use of the complainant’s telephone?2 “A sound trial strategy is one that is developed in concert 

 1 Even though the more detailed records were available at the time of the Ginther hearing, 

respondent still maintained that he made three calls from the complainant’s telephone at 4:31 

p.m. when he testified at the Ginther hearing.

2 Respondent’s appellate brief generally fails to distinguish between the records Randazzo did 

have before trial, and those that were presented at the evidentiary hearing through AT&T’s 
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with an investigation that is adequately supported by reasonable professional judgments.” Id. at 

486. An independent examination of the facts and circumstances must be undertaken. Id. at 

486-487 (citation omitted). “This includes pursuing all leads relevant to the merits of the case.” 

Id. at 487 (quotation marks and citation omitted). “Strategic choices made after less than 

complete investigation are reasonable precisely to the extent that reasonable professional 

judgments support the limitations on investigation[.] Counsel has a duty to make reasonable 

investigations or to make a reasonable decision that makes particular investigations 

unnecessary.” Id. at 485 (quotation marks, brackets, and citation omitted).

In this case, Randazzo testified to why he did not perform any additional investigation 

into the telephone records before trial. First, he explained that he was given the records by 

Crystal that did not support respondent’s claims. Having these records, Randazzo saw no reason 

to investigate further. The records came from AT&T’s online account statement for Crystal’s 

telephone. Under these circumstances, it was reasonable for Randazzo to conclude that further 

investigation was not necessary. The records appeared complete. No one has explained 

precisely why the one call that was actually initiated from the complainant’s telephone does not 

appear on the account statement, and no one has explained why Randazzo should have 

questioned the accuracy of the records he was provided.

Second, Randazzo did not view the call, even if it was made, as particularly important. 

Even presuming the call occurred, it did not prove that the encounter was consensual. It was 

equally possible that respondent took the complainant’s telephone away from her without her 

consent, or that she allowed him to use the telephone out of fear, given that respondent had just 

sexually assaulted her by force. Certainly, it is understandable that Randazzo would not want the 

complainant to testify to either of these scenarios. Thus, while evidence of the call had some 

potential to assist respondent’s case, it could also substantially harm it, depending on how the 

complainant explained the call. By proceeding as he did, Randazzo avoided any additional 

damaging testimony from the complainant regarding how respondent came to use her telephone.

Third, and perhaps of less importance, Randazzo explained that no mention of the call 

was made in the police report or in other statements provided to him by respondent and Crystal. 

Rather, it was shortly before trial that this information was provided. Given the evidence 

Randazzo was provided, the possible harm that could come from presenting evidence that a call 

was made, as well as the time constraints, we cannot fault Randazzo for failing to dig any deeper 

into the issue and subpoena records from AT&T. “Defense counsel is given wide discretion in 

 

representative. Respondent chastises Randazzo for failing to understand how to admit telephone 

records at trial. There is no evidence that Randazzo did not understand how to admit telephone 

records; rather, as explained, the record shows that he had very sound strategic reasons for not 

admitting the records he did have in his possession at respondent’s trial. Respondent also 

suggests that Randazzo did not know how to subpoena telephone records. Again, no record 

evidence supports this claim. Rather, as is discussed below, Randazzo exercised reasonable 

professional judgment under the circumstances and concluded that no further investigation was 

necessary.
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matters of trial strategy because many calculated risks may be necessary in order to win difficult 

cases.” People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). Randazzo made a 

strategic decision regarding how to proceed, choosing to take certain risks instead of others. 

That his strategic decisions did not ultimately win the day does not mean that his strategy was 

unreasonable. See People v Williams, 240 Mich App 316, 332; 614 NW2d 647 (2000).

The trial court failed to address Randazzo’s strategic reasons for proceeding as he did. 

The trial court held that it was objectively unreasonable for Randazzo not to admit the telephone 

records at trial, but the court did not acknowledge the fact that the telephone records Randazzo 

had in his possession at that point did not support respondent’s case. The trial court’s analysis 

with regard to what happened at trial is flawed for the reasons discussed. And with regard to 

whether Randazzo should have subpoenaed any records from AT&T, the trial court simply 

explained that the records could have been obtained and authenticated at trial through an 

appropriate witness, as was done during the Ginther hearing. Certainly, this could have been 

done. But the question for the trial court was whether Randazzo’s decision not to undertake any 

additional investigation was a reasonable professional judgment considering the specific facts 

and circumstances at the time he made the decision. See Grant, 470 Mich at 485-487. For the 

reasons discussed, we conclude that Randazzo’s failure to conduct any additional investigation 

into this specific area was a reasonable exercise of professional judgment. Accordingly, 

respondent failed to show that Randazzo’s performance was objectively unreasonable, and is not 

entitled to a new trial. See Solloway, 316 Mich App at 188.

B. OTHER CLAIMS THAT RANDAZZO WAS INEFFECTIVE

Respondent argues that, aside from Randazzo’s failure to present telephone records at 

trial, he was ineffective for all of the reasons rejected by the trial court. Specifically, he contends 

that Randazzo was ineffective for: (1) failing to file a witness list, (2) failing to call several 

witnesses to testify at trial, and (3) failing to obtain a pretrial polygraph under MCL 776.21(5). 

We disagree.

First, respondent is not entitled to relief on his claim that Randazzo was ineffective for 

failing to file a witness list. While Randazzo could be faulted for failing to file a witness list, this 

failure did not result in any prejudice to respondent. After Randazzo discussed the situation with 

the prosecutor, the prosecutor explained that none of the witnesses counsel intended on calling 

were a surprise, and thus, the prosecutor would not seek any relief as a result of Randazzo’s 

mistake. In short, this mistake had absolutely no effect on the trial. Because relief is only 

warranted where there is a reasonable probability that counsel’s error or errors affected the 

outcome of trial, no relief is warranted. See People v Trakhtenberg, 493 Mich 38, 51; 826 

NW2d 136 (2012).

Respondent’s arguments that Randazzo was ineffective for failing to investigate or call 

certain witnesses are also without merit. “Decisions regarding what evidence to present and 

whether to call or question witnesses are presumed to be matters of trial strategy, and this Court 

will not substitute its judgment for that of counsel regarding matters of trial strategy.” People v 

Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). “Furthermore, the failure to call 

witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a 

substantial defense.” People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). In this 
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case, respondent argues that several witnesses should have been called to bolster his consent 

defense. Randazzo raised this exact defense throughout respondent’s trial. It was identified by 

Randazzo in his opening statement as the primary issue to be decided. Randazzo cross-examined 

the complainant on the issue of consent, and attempted to attack her credibility. He presented 

respondent’s own testimony as the primary source of support for the defense, and then argued in 

closing that respondent should be believed. The failure to call other witnesses to provide 

additional testimony cannot, under the circumstances, warrant a new trial. See id. (“The record 

reveals that defense counsel raised the defense of consent through her cross-examination of the 

complainant, and sought to bolster that defense by attacking her credibility. Defense counsel 

bolstered this theory in closing argument. As the defense of consent was actually raised, 

defendant’s contention is without merit.”).

And further, none of the witnesses respondent argues should have been called had much, 

if anything, to offer. Respondent first argues that Randazzo should have called respondent’s 

brother, Conner Ross (Conner), to testify about “prior, similar, false allegations” of sexual 

assault levied against Conner by the complainant, which respondent contends would have 

“directly impacted” the complainant’s credibility. Simply put, there was no prior, similar, or 

false accusation. The complainant apparently felt uncomfortable during a physical encounter 

with Conner that Conner acknowledged occurred, and for which Conner apologized. The trial 

court did not find that this evidence would have altered the result of the trial. Given that the 

evidence was not of a false accusation at all, we find no fault with that assessment, or with 

Randazzo’s decision not to call Conner to testify.

Respondent argues that Ariel Crumes, another student at respondent’s school, could have 

testified: (1) that the complainant was romantically interested in respondent and wanted to send 

“slutty” photographs to him earlier in November 2014; (2) that the complainant was in a good 

mood when she returned from a 10 to 20 minute absence from her workout on November 20, 

2014; and (3) that after Crumes spoke with the complainant in the days or weeks after the 

incident, she thought the complainant was not telling the truth and wanted to change her story. 

The trial court found that Crumes was not credible, a determination that is entitled to great 

deference. See People v Farrow, 461 Mich 202, 208; 600 NW2d 634 (1999). Respondent fails 

to address the simple fact that the trial court did not believe Crumes’s testimony. Obviously, if 

Crumes’s testimony would not have been believed, it would not have changed the outcome of the 

trial.

Further, Randazzo explained why Crumes was not called to testify. Although Crumes 

had, at one point, indicated that the complainant had recanted or repudiated the allegations 

against respondent, Crumes later stated that she had been coerced into making such claims. 

Crumes indeed testified at the hearing that Crystal pressured her into writing a statement. 

Crumes’s written statement also indicated that she did not have any knowledge of what occurred 

between respondent and the complainant. Given those circumstances, it is reasonable that 

Randazzo would not want to call Crumes to testify. Even if believed, Crumes had little to offer 

to assist respondent. Calling her to testify could have opened the door for the prosecutor to 

present evidence that Crumes was coerced by Crystal, evidence that would have undermined 

Crumes’s credibility, and also casted a poor light on respondent and his family.
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Further, Randazzo’s assessment of Crumes’s potential testimony was quite accurate. 

Crumes did not, as respondent insists, testify that the complainant recanted her allegations. 

Rather, Crumes testified that, in part because of Crystal’s insistence, she tried to talk to the 

complainant on multiple occasions about the incident. The complainant never recanted. Crumes 

simply speculated that the complainant wanted to change her story. With regard to what 

occurred on the day of the incident, Crumes wrote in her letter:

On the day that the supposed rape happened [the complainant] came to 

lifting. She was really happy and excited to lift that day. It happened between 3-

4 lifting with her. Lifting went on after 4 just a little bit because I was with her. 

She was really happy with herself and completing the workout. 

I do not believe [respondent] participated in the act being accused against

him.

In other words, Crumes’s position was that she was with the complainant the entire time and that 

nothing could have occurred between respondent and the complainant. But video shows 

respondent and the complainant together shortly before 4:00 p.m. and respondent fully 

acknowledged engaging in sexual activity with the complainant. Crumes’s statement shows that 

she had no knowledge of the complainant’s whereabouts during or after the sexual encounter 

between her and respondent.

Respondent argues that two other classmates, Trevor Muir and Cobe Bryant, could have 

provided important testimony, in that they could have testified that they did not see the 

complainant while respondent, Muir, and Bryant were running through the halls at the school. 

Respondent argues that this “important point” would have impeached the complainant’s 

testimony, as the complainant testified that she saw respondent run past her once, and then he 

later stopped to talk to her. The trial court did not find Bryant or Muir credible, a decision not 

addressed by respondent on appeal. Further, respondent provided essentially the same testimony 

as the complainant when it came to how the two first met up. Like the complainant, respondent 

also explained that he saw the complainant once while he was running and that he later stopped 

running and ran into her, leading to their encounter. It is not unreasonable strategy to fail to 

present this testimony. All it would have shown is that Muir and Bryant did not notice the 

complainant while they were running, while respondent did. Nor is there any reason to think that 

the absence of this testimony would have affected the outcome of the trial.3

 3 Respondent suggests that Muir and Bryant would also have provided testimony consistent with 

respondent’s timeline of events. Both Muir and Bryant testified that respondent ran with them 

and was absent from their view only for a period of seconds until the group finished running 

around 4:00 p.m. Muir and Bryant did not see the encounter between respondent and the 

complainant, and did not see respondent or the complainant after the encounter, which all agree 

did occur. Muir and Bryant indeed might have provided testimony consistent with respondent’s 

timeline, but neither could have provided any testimony that would have been relevant to the sole 

question in this case: whether the sexual encounter was consensual.
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Finally, respondent takes issue with the fact that Randazzo did not seek a pretrial 

polygraph. The trial court did seem to err in its opinion when it stated that the only question 

before the court was whether Randazzo was ineffective for failing to seek a post-trial polygraph, 

and that the question of whether Randazzo should have sought a pretrial polygraph was not 

before the trial court. As is discussed in detail later in this opinion, the remand proceedings were 

limited by this Court to those issues specifically raised by respondent’s motion to remand. 

Respondent’s brief in support of the motion to remand clearly took issue with the fact that 

Randazzo did not seek a pretrial polygraph under MCL 776.21(5), noting that by failing to do so, 

Randazzo “al[l] but eradicated the ability for [plea] negotiation or request for dismissal.” In fact, 

the entire focus of the motion to remand, at least with regard to the polygraph, was whether 

counsel should have sought one before trial under MCL 776.21(5). However, the trial court 

nonetheless examined whether Randazzo acted reasonably by not requesting a polygraph 

examination before trial, and concluded that he did.

It is debatable whether respondent would have even been entitled to a polygraph under

MCL 776.21(5). The statute states that a “defendant” is entitled to a polygraph. Respondent was 

not a defendant; he was a respondent in a juvenile delinquency proceeding. We are aware of no 

cases stating specifically that MCL 776.21(5) is or is not applicable in juvenile delinquency 

proceedings. “[J]uvenile cases are not criminal proceedings.” In re Carey, 241 Mich App 222, 

231; 615 NW2d 742 (2000). The argument could be made that the Legislature, for whatever 

reason, did not intend to extend the rights granted by MCL 776.21(5) to juveniles, as the 

Legislature chose to use the term “defendant,” and nothing more. See Carey, 241 Mich App at 

232-233 (refusing to apply provisions of the Mental Health Code, MCL 330.2020 et seq., 

regarding competency examinations to juvenile delinquency proceedings because the statutes at 

issue referred specifically to defendants in criminal proceedings; however, those statutes could 

serve as a guide). Respondent does not make any argument explaining exactly how MCL 

776.21(5) is applicable to delinquency proceedings, instead relying on the trial court’s statements 

at the disposition hearing that indicated respondent could have availed himself of the statute. 

Respondent does not address the possibility that the trial court was simply incorrect.

However, it is arguable that MCL 776.21(5) is applicable to a juvenile delinquency 

proceeding. In In re McDaniel, 186 Mich App 696, 698; 465 NW2d 51 (1991), this Court held 

that through operation of MCR 1.104, which is itself applicable to juvenile delinquency 

proceedings through MCR 3.901(A)(1) and (B)(1), “the rules set forth in the Code of Criminal 

Procedure are applicable [to juvenile delinquency matters] unless they conflict with the rules of 

procedure for juvenile matters set forth in the court rules or in the Probate Code.” MCL 

776.21(5) is a part of the Code of Criminal Procedure. The parties cite no court rules or rules 

stated in the Probate Code with which MCL 776.21(5) would conflict. Accordingly, one could 

argue that MCL 776.21(5) applies to juvenile delinquency matters.

But Randazzo explained that he did not believe the statute was applicable in a juvenile 

delinquency matter. Given the lack of case law on the specific question, which seems subject to 

reasonable dispute, we conclude that counsel cannot be deemed ineffective for failing to seek a 

pretrial polygraph under MCL 776.21(5). See People v Reed, 453 Mich 685, 695; 556 NW2d 

858 (1996) (“Before the Court of Appeals decision in this case, no Michigan authority had held 

that such an instruction can be given in this situation. Certainly, defense counsel’s performance 

cannot be deemed deficient for failing to advance a novel legal argument.”).
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In any case, the trial court correctly concluded that Randazzo’s choice not to obtain a 

pretrial polygraph was a matter of strategy, regardless of whether Randazzo believed respondent 

was entitled to request one under the statute. At the evidentiary hearing, Randazzo gave a 

number of reasons why a pretrial polygraph was not desirable in this case. Randazzo did not 

believe a polygraph would be useful because it would, at best, confirm respondent’s subjective 

belief that the sexual encounter was consensual. But the true question in this case was whether 

the complainant consented to the encounter. Randazzo also explained that he would not 

recommend obtaining a polygraph through the statute without first obtaining a private polygraph, 

and that respondent’s family’s financial situation was not conducive to paying for a private 

polygraph. Further, Randazzo’s experience was that the results of a private polygraph were not 

always consistent with those found by a state-administered polygraph examination. There were 

also risks to taking a state-administered polygraph; respondent might have made damaging 

admissions during such an examination. Nor did Randazzo think that a pretrial polygraph, even 

if passed by respondent, would have caused the prosecutor to dismiss the charges or negotiate a 

plea. Randazzo testified that in his experience, prosecutors were unlikely to consider a 

polygraph at the stage the case was in when Randazzo was retained. He also testified that in this 

particular case, the prosecutor was not amenable to dismissing the charges or negotiating a plea. 

The trial court found Randazzo’s testimony on the subject credible, and this testimony 

reveals several strategic and practical reasons for not seeking a polygraph before trial. 

Randazzo’s decision not to seek a polygraph examination under the statute was a matter of 

reasonable trial strategy, and thus, the failure to obtain a pretrial polygraph cannot be considered 

ineffective assistance by Randazzo. See Cline, 276 Mich App at 637. Further, given that the 

prosecutor was not interested in dismissing the charges or negotiating a plea in this case, there 

was no prejudice to respondent. See Solloway, 316 Mich App at 188. Therefore, Randazzo’s 

failure to seek a pretrial polygraph cannot be considered ineffective assistance of counsel.

C. EXPERT WITNESS TESTIMONY

Respondent contends that the trial court abused its discretion by refusing to allow 

Sabbota to testify as an expert witness at the evidentiary hearing. We disagree. A trial court’s 

decision regarding whether to admit or exclude expert witness testimony is reviewed for an 

abuse of discretion. People v Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009). “A trial 

court abuses its discretion when it selects an outcome that does not fall within the range of 

reasonable and principled outcomes.” People v Young, 276 Mich App 446, 448; 740 NW2d 347 

(2007).

Before the evidentiary hearing in this matter, the prosecutor filed a motion seeking to 

exclude expert witness testimony respondent intended on presenting through Sabbota. 

According to respondent, Sabbota, had he testified, would have been asked to provide “general 

testimony as to past practices involving the Oakland County Prosecutor’s Office and best 

practices for defense of” CSC cases. The prosecutor cited two cases, In re Thurston, 226 Mich 

App 205, 213 n 7; 574 NW2d 374 (1997), rev’d 459 Mich 923 (1998), and People v Kowalski, 

492 Mich 106, 121; 821 NW2d 14 (2012), for the premise that the reasonableness prong of the 

ineffective assistance of counsel test was strictly a legal question to be decided by the trial court, 

and as such, was not a proper subject for expert witness testimony. Respondent answered the 

objection by contending that these two cases were not applicable and that in Trakhtenberg, 493 
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Mich at 53, our Supreme Court not only found it proper to rely on an expert to decide whether 

counsel was ineffective, but relied specifically on Sabbota’s testimony regarding best practices in 

a CSC case to hold that counsel was ineffective in that matter.

It is true that in Trakhtenberg, our Supreme Court relied on Sabbota’s testimony 

regarding how best to defend a CSC case to find that counsel’s performance in that case was 

unreasonable. Id. And the cases cited by the prosecutor do not address claims of ineffective 

assistance of counsel. In In re Thurston, this Court found an attorney guilty of contempt for 

making false representations during argument of a criminal appeal. In re Thurston, 226 Mich 

App at 221, 231. This Court stated in a footnote that “what constitutes proper advocacy is a 

question of law and therefore not a proper subject of expert testimony.” Id. at 213 n 7. Clearly, 

this Court was referring to appellate advocacy, not criminal trial practice. And in Kowalski, the 

issue was whether an expert should have been allowed to testify regarding the occurrence of 

false confessions; no ineffective assistance claim was discussed. Kowalski, 492 Mich at 110. 

Although the issue was not specifically litigated in Trakhtenberg, in light of our Supreme 

Court’s reliance on Sabbota’s testimony in that case, we cannot agree with the prosecutor’s 

initial position that there is an absolute prohibition against expert witness testimony on the 

subject of the reasonableness of trial counsel’s actions.

However, in a reply brief filed in the trial court, the prosecutor explained that in People v 

Marshall, 298 Mich App 607, 619; 830 NW2d 414 (2012), vacated in part on other grounds 493 

Mich 1020 (2013), this Court concluded that a trial court did not abuse its discretion by 

precluding an expert witness from testifying at a Ginther hearing “regarding whether defense 

counsel’s performance adhered to community standards and norms.” In Marshall, this Court 

explained:

Expert testimony is admissible under MRE 702 if the trial court determines that 

“specialized knowledge will assist the trier of fact to understand the evidence or 

to determine a fact in issue . . . .” In this case, the testimony was offered at a 

hearing at which the trial court acted as the trier of fact. The court found that the 

proposed testimony would not be helpful because it was “well aware of the 

community standards on this issue.” The trial court appropriately evaluated the 

admissibility of the proposed testimony under MRE 702. Because the court was 

familiar with the facts of the case and the legal standards for evaluating an 

attorney’s performance relative to a claim of ineffective assistance of counsel, its 

decision to exclude defendant’s proposed expert testimony was within the range 

of reasonable and principled outcomes and, therefore, was not an abuse of 

discretion. [Id. at 619.]

Thus, it would seem fairly clear from Trakhtenberg and Marshall that there is no per se rule that 

expert testimony cannot be heard at a Ginther hearing. However, whether such testimony will 

ultimately be admitted is controlled by MRE 702. Marshall, 298 Mich App at 619.

In this matter, the trial court explained that Sabbota’s testimony would not be helpful to 

deciding the questions presented before it on remand, particularly in light of the evidence that 

had been presented up to the time of the court’s ruling, which was made fairly late in the 

evidentiary hearing. In other words, just as occurred in Marshall, the trial court concluded that 
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MRE 702 was not satisfied because the testimony would not have been helpful to the trial court. 

On appeal, respondent primarily argues that In re Thurston and Kowalski are not applicable. 

That is true, but fails to address the trial court’s ruling.

In fact, respondent does very little to explain how Sabbota’s testimony could have been 

helpful in this case, particularly when one considers that the trial court only had three specific 

areas before it in which Randazzo was alleged to have provided deficient assistance. Respondent 

initially contends that the court’s ruling denied respondent the opportunity to develop a record 

regarding the polygraph question, as Sabbota would have testified that he would have sought a 

pretrial polygraph, either privately or through the applicable statute. However, respondent also

contends that Sabbota would not have provided any testimony regarding what should have been 

done specifically in this case, but rather, would have provided testimony of generalities; in other 

words, of what generally should be done in any CSC case. As was discussed, whether Randazzo 

should have sought a polygraph turns on many considerations, all of which are specific to this 

case. Generalized assertions regarding ordinary practices would have been of little use to the 

trial court, which was tasked with determining whether Randazzo provided ineffective assistance 

to respondent in this particular case.

Respondent also suggests that the trial court’s ruling prohibited respondent from 

providing testimony regarding the specialized knowledge needed to defend a CSC case, and 

“what could have been done[]” in this case. This vague argument fails to establish any reason 

why Sabbota’s testimony would have been helpful to the trial court when it came to deciding the 

specific questions at issue in this case. As such, respondent fails to demonstrate any error 

warranting relief.

D. SCOPE OF REMAND PROCEEDINGS

Finally, respondent contends that the trial court erred by limiting the scope of the remand 

proceedings to those areas identified by respondent in the motion to remand he filed in this 

Court. We disagree. “Whether a trial court followed an appellate court’s ruling on remand is a 

question of law that this Court reviews de novo.” Schumacher v Dep’t of Natural Resources, 

275 Mich App 121, 127; 737 NW2d 782 (2007).

This Court granted respondent’s motion to remand in an order stating the following:

The Court orders that the motion to remand pursuant to MCR 7.211(C)(1)

is GRANTED and the matter is remanded so that respondent-appellant may 

conduct an evidentiary hearing in support of his second motion for a new trial 

based on ineffective assistance of counsel. The trial court shall rule on the motion 

after conducting the evidentiary hearing. Proceedings on remand are limited to 

the issues as raised in the motion to remand. [In re Christopher Ross Jr, 

unpublished order of the Court of Appeals, entered July 21, 2016 (Docket No. 

331096) (emphasis added).]

This Court’s remand order was exceptionally clear: the proceedings on remand were limited to 

the specific issues respondent chose to raise in the motion to remand filed in this Court. Id. 

“When a case is remanded by an appellate court, proceedings on remand are limited to the scope 
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of the remand order.” People v Canter, 197 Mich App 550, 567; 496 NW2d 336 (1992). The 

trial court was correct to limit the scope of the remand proceedings to the three areas identified in 

respondent’s motion to remand filed with this Court. This Court’s order clearly limited the 

remand proceedings to those issues, and it would have been error for the trial court to allow 

respondent to present evidence or pursue claims beyond those specific areas. See id.

Reversed and remanded for reinstatement of the trial court’s initial adjudication and order 

of disposition. We do not retain jurisdiction.

/s/ Mark J. Cavanagh

/s/ Michael J. Kelly