Michigan Supreme Court

Lansing, Michigan

Stephen J. Markman, Chief Justice

Brian K. Zahra

Bridget M. McCormack

David F. Viviano 

Richard H. Bernstein

Kurtis T. Wilder

Elizabeth T. Clement, Justices

Order 

June 1, 2018

156668 & (92)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v SC: 156668

COA: 328157

Kalamazoo CC: 2014-000448-FC

MICHAEL DWAYNE CARVER,

Defendant-Appellee. 

_________________________________________/

On order of the Court, the application for leave to appeal the August 29, 2017 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the question presented should be reviewed by this Court. The motion for 

decision on Standard 4 brief is DENIED as moot.

WILDER, J. (dissenting). 

I dissent from the order denying leave to appeal. Rather, I would reverse the 

judgment of the Court of Appeals, and reinstate defendant’s conviction and sentence of 

first-degree criminal sexual conduct, MCL 750.520b(1)(a) and (2)(b). The lower courts 

erred in concluding that trial counsel rendered ineffective assistance of counsel. 

Defendant failed to establish his burden that trial counsel’s performance fell below an 

objective standard of reasonableness, and that there was a reasonable probability that, 

absent the alleged error, the result of the proceeding would have been different. See 

People v Vaughn, 491 Mich 642, 669 (2012).

As to the issue of trial counsel’s performance, the Court of Appeals majority found 

that, had trial counsel consulted with an expert on child suggestibility, “it is virtually 

certain” that such an expert could have provided him with the tools he needed to rebut 

testimony by an expert or an investigator suggesting that it is a rare case in which a child 

makes a false report. Further, the Court of Appeals found that had trial counsel consulted 

with an expert, he would have educated himself on the issues at play and would have 

been in a better position to evaluate the evidence and determine whether the sexual 

assault occurred or occurred in the manner described by the victim. 

In my view, both lower courts overlooked the crucial facts as testified to at the 

Ginther1 hearing, and compounded the error by analogizing this case to the factually 

distinguishable cases of People v Ackley, 497 Mich 381 (2015), and People v 

Trakhtenberg, 493 Mich 38 (2012). “Strickland [v Washington, 466 US 668 (1984)]

itself rejected the notion that the same investigation will be required in every case.” 

 1 People v Ginther, 390 Mich 436 (1973).
2

Cullen v Pinholster, 563 US 170, 195 (2011). In fact, “[i]t is ‘[r]are’ that constitutionally 

competent representation will require ‘any one technique or approach.’ ” Id. (citation 

omitted; second alteration in original). “Under Strickland, strategic choices made after 

thorough investigation of law and facts relevant to plausible options are virtually 

unchallengeable; and strategic choices made after less than complete investigation are 

reasonable precisely to the extent that reasonable professional judgments support the 

limitations on investigation.” Hinton v Alabama, 571 US 263, ___; 134 S Ct at 1088 

(2014) (quotation marks and citation omitted). 

Here, trial counsel testified that he met with his superiors at length about the 

upcoming trial and sought their advice on whether to utilize an expert. Counsel reviewed 

at least one study and weighed the advantages and disadvantages of putting an expert on 

the stand. It was only after he conducted an investigation and sought counsel from his 

superiors that trial counsel made the informed decision not to consult with and call an 

expert on child suggestibility. This is precisely the type of case that is virtually 

unchallengeable under Strickland. See id. In my opinion, the lower courts ignored wellrooted Strickland principles, and improperly reviewed the case with the benefit of 

hindsight. See People v Unger, 278 Mich App 210, 242-243 (2008) (“We will not 

substitute our judgment for that of counsel on matters of trial strategy, nor will we use the 

benefit of hindsight when assessing counsel’s competence.”). 

As to the issue of prejudice, I largely agree with the dissent and merely write to 

make an additional point. I think it is important to remind attorneys and the lower courts 

that “[a] reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 US at 694. “That requires a ‘substantial,’ not just 

‘conceivable,’ likelihood of a different result.” Cullen, 563 US at 189 (citation omitted). 

Here, the Court of Appeals majority found that an expert “could have” explained 

how a child of the victim’s age is susceptible to suggestion, and that trial counsel “could 

have plausibly argued” the victim made a false report even though the victim may have 

honestly believed her recollection was true. In my opinion, the majority was merely 

conjecturing on what might have happened had trial counsel employed the strategy that it 

found best suited, and not whether, in the face of the whole record, a substantial 

likelihood of a different result existed. 
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 June 1, 2018

d0529

3

Clerk

Accordingly, I would conclude that defendant failed to establish his burden in 

demonstrating trial counsel rendered ineffective assistance of counsel entitling him to a 

new trial, reverse the judgment of the Court of Appeals, and reinstate defendant’s 

conviction and sentence. 

ZAHRA, J., joins the statement of WILDER, J.