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

revision until final publication in the Michigan Appeals Reports.

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

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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

May 23, 2019

v No. 337735

Oakland Circuit Court

KEVIN THOMAS McCOLLUM, LC No. 2016-259142-FC

Defendant-Appellant.

Before: SHAPIRO, P.J., and BECKERING and M. J. KELLY, JJ.

SHAPIRO, J. (dissenting).

The majority concludes that defense counsel’s failure to object to multiple hearsay 

repetitions of the complainant’s testimony constitutes ineffective assistance of counsel. I agree. 

However, I cannot agree with the majority’s conclusion that “there is no ‘reasonable probability 

that, but for counsel’s errors, the result of the proceeding would have been different.’ ” Majority 

opinion, p 8, quoting Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 

(1984).

The jury heard five different witnesses recount complainant’s statements to them 

regarding the alleged abuse: complainant’s mother, complainant’s friend, two school counselors 

and the school principal. The testimony of each was hearsay and there were no applicable 

exceptions.1 Moreover, defense counsel stipulated to admission of the video recording of the 

forensic interview in which complainant recounted the alleged events in detail in response to 

questioning. Thus, rather than hearing the complainant’s description of the events once—and 

subject to cross examination—the jury heard it repeatedly and from sources that provide an 

imprimatur of accuracy. We considered a similar circumstance in People v Shaw, 315 Mich App

668, 892 NW2d 15 (2016), and held that counsel’s error required a new trial even though in that 

case there was supporting physical evidence, evidence which is lacking here. We reasoned:

 1 Because complainant was not under ten years old when she made her initial statement accusing 

defendant of molesting her, the tender years exception set forth in MRE 803A is inapplicable.
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Given the time that had passed since the alleged abuse stopped, the lack of 

any witnesses to the charged crimes, and the lack of any significant circumstantial 

proofs, this case turned largely on the complainant’s credibility. Because defense 

counsel did not object to the hearsay statements, the jury heard the complainant’s 

version of events more than five times. And in the case of [the examining 

physician and the reporting officer], the hearsay was offered with what amounted 

to an official stamp of approval. . . .

* * *

Given the frequency, extent, and force of the hearsay testimony, we 

conclude that, had defense counsel objected to its admission, there is a reasonable 

probability that the outcome of this case would have been different. [Id. at 677-

678.]

This case is also comparable to People v Douglas, 496 Mich 557; 852 NW2d 587 (2014), 

where the Supreme Court reversed the defendant’s conviction in a child sex abuse case on the 

grounds of evidentiary error and ineffective assistance of counsel. As here, the challenged 

evidence was the forensic interview of the complainant which was played for the jury and the 

testimony of several individuals recounting statements made to them by the complainant. 

Douglas quoted the following from People v Gursky, 486 Mich 596, 620-621; 786 NW2d 579 

(2010), on which the majority relies:

In a trial where the evidence essentially presents a one-on-one credibility contest 

between the victim and the defendant, hearsay evidence may tip the scales against 

the defendant, which means that the error is more harmful. This may be even 

more likely when the hearsay statement was made by a young child, as opposed to

an older child or adult.

Despite that applicable guidance, the majority concludes that because the complainant testified, 

the prejudicial effect is diminished since the other witnesses are only corroborating her 

testimony. However, the unanimous Douglas Court was less impressed with that argument. It 

noted that “such cumulative hearsay testimony is more likely to be harmless where, unlike here, 

there is other evidence to corroborate the allegations beyond the declarant’s statements; 

meanwhile, the likelihood of harm may only increase where, as here, the declarant was a young 

child and the case was a pure credibility contest.” Id. at 581. Douglas went on to note the

particular prejudicial impact of the complainant’s forensic interview that was played for the jury: 

“The video recording of the forensic interview provided further reinforcement still, as the jury 

was able to watch [the complainant] herself testify again, this time at greater length, with the 

assistance of [the forensic interviewer’s] expert questioning, and not subject to crossexamination, of course.” Id. at 581-582.

In this case, the forensic interview—which was 90 minutes long—as well as the other 

hearsay weighed heavily in favor of a finding of guilt. Given that a substantial portion of the 

prosecution’s proofs constituted hearsay pertaining to the ultimate issue, I would conclude that 

defendant has demonstrated a reasonable probability that, but for counsel’s error, the result of the 
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proceedings would have been different. See Smith v Spisak, 558 US 139, 149; 130 S Ct 676; 175 

L Ed 2d 595 (2010); People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).

/s/ Douglas B. Shapiro