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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 23, 2017

v No. 330071 Arenac Circuit Court WALTER FRANK STEENBERGH, LC No. 15-003908-FC

Defendant-Appellant.

Before: K ELLY , P.J., and S TEPHENS and O’B RIEN , JJ.

S TEPHENS , J. (concurring in part and dissenting in part).

I agree with the majority that the trial court did not err in regards to the admissibility of nurse Threadgill’s testimony under MRE 803(4). I also agree th at defense counsel was not ineffective for failing to object to Threadgill’s testimony bas ed on the ground that it was inadmissible hearsay.

I respectfully disagree with the majority as to defendant’s re maining ineffective assistance of counsel claim because I find that defense counsel ’s failure to retain or consult with a single expert witness constituted ineffective assistance of c ounsel.

The United States and the Michigan Constitutions guarantee a d efendant the right to counsel, US Const, Am VI; Const 1963, art 1, § 20, which encomp asses the right to effective assistance of counsel. People v Meissner , 294 Mich App 438, 459; 812 NW2d 37 (2011). “To be constitutionally effective, counsel’s performance must meet an ‘objective standard of reasonableness.’ ” People v Ackley , 497 Mich 381, 388; 870 NW 2d 858 (2015) quoting People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 (2012). “In determining whethe r defense counsel met this threshold, . . . the defendant bears the burde n of proving that, in view of the totality of the circumstances, counsel's performance was defici ent and so serious as to deprive the defendant of a fair trial.” People v Armendarez , 188 Mich App 61, 74–75; 468 NW2d 893 (1991). “[F]ailure to investigat e adequately and to attempt to secure suitable expert assistance in the preparation and presentation of [a] defense” may constitute ineffective assistance of counsel. Ackley , 497 Mich at 383. While “[a]n attorney’s decision whether to retain witnesses, including expert witnesses, is a ma tter of trial strategy,” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009), “counsel’s strate gy must be sound, and the dec isions as to it objectively reasonable,” Ackley , 497 Mich at 388-389. “[A] court must determine whether the ‘ strategic choices [were] made after less th an complete investigation,’ an d any choice is ‘reasonable-2- precisely to the extent that reasonable professional judgments support the limitations on investigation.’ ” Trakhtenberg , 493 Mich at 52 quoting Strickland v Washington , 466 US 668, 690-691; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Counsel has a “ duty to make reasonable investigations or to make a reasonable decision that makes part icular investigations unnecessary.” Hinton v Alabama , 134 S Ct 1081, 1088; 188 L Ed 2d 1 (2014), quoting Strickland , 466 US at 690-691.

Failure to call a witness constitutes ineffective assistance o f counsel if it deprives a defendant of a substantial defense. Payne , 285 Mich App at 190. “A substantial defense is one that might have made a difference in the outcome of the trial.” People v Kelly , 186 Mich App 524, 526; 465 NW2d 569 (1990). A defendant asserting that a su bstantial defense was lost by counsel’s failure to secure an expert witness must offer proof that an expert witness would have testified favorably if called by the defense. People v Ackerman , 257 Mich App 434, 455; 669 NW2d 818 (2003). In this case, because no supplemental hearing was held, review is limited to mistakes apparent from the record. People v Williams , 223 Mich App 409, 414; 566 NW2d 649 (1997). Defendant ackno wledges hi s duty under Ackerman to provide proof t hat an expert would testify favorably, and while failing to produce an expert affid avit, instead relies on the record to establish the factual predicate for his claim of ineffective as sistance. 1

I find, that in this case, the record does support the asserti on that an expert witness in clinical psychology, forensic int erviewing or child memory and suggestibility, w ould have aided defendant and that consultation with an expert “might have made a difference in the outcome of the trial.” Kelly , 186 Mich App at 526. The prosecution correctly notes that th is is not a case where the prosecution’s theory w as heavily reliant on expert op inion. It was, as many CSC cases are, a case that focused on the complainant’s credibility. How ever, the unfortunate history of the complainant who was a victim of a prior sexual assault when she was a toddler should have compelled defense counsel to consult with an expert. If counse l in Ackley

, supra , who was rebuffed by one expert, should have sought a second, counsel he re was ineffective for not seeking even one.

TB testified that she was the victim of a prior assault at age three or four and participated in counseling as a result. She, also, intertwined the specific s of the prior assault with the instant case. In particular, she gave testimony regarding her fear of reporting the assault because of a threat to her family but admitted that this defendant never thr eatened her family. Instead, she earnestly admitted that she was transferring the threat made to her when she was assaulted as a toddler to the current case. It is noteworthy that TB did not disclose any information about the assault in this case until her parents informed her of an open investigation. Shortl y thereafter, the child was seen by Threadgill. T hreadgill’s testimony also impl icates the need for expert

1 Cf. People v Davis , 250 Mich App 357, 369; 649 NW2d 94 (2002) (“Here, defendant c laims that his counsel was ineffectiv e because counsel failed to call the codefendants, Hamill, or defendant’s mother as witnesses. However, the record does not s uggest how any of these witnesses would have benefited defendant’s case, and defendant has not provided this Court with affidavits indicating what the proposed testimony of the codefe ndants or Hamill would have been.)-3- consultation by competent counsel. Threadgill acknowledged tha t she did not do a forensic interview and that she made no inquiry into any prior assault. However, the bulk of her testimony was not about the spontaneous information TB gave her , but about the child’s answers to very specific questions posed to her about the details of th e assault at issue. I n fact, Threadgill knew nothing of a prior assault and therefore her testimony of TB’s response to her questions, which elicited details not announ ced by TB before, made no dist inction between the two assaults. Defense counsel was aware of the prior assault early on, having filed a motion for discovery for “information of the prior allega tion” that was later withdrawn after defense counsel was provided the “information.” We are unawar e of the exact “information” h e received. The record in this case is devoid of any questioning of TB or Threadgill regarding the effect of the prior assault and subsequent counseling on TB’s memory.

Consultation with a clinical psy chologist would have educated defense counsel about the type of counseling TB would have received at age three or four, and how TB would have processed that information. Alt hough the first assault occurre d at a very young age, TB retained memory of it. A child of three to four years of age is highly susceptible. An i nvestigation of what TB retained from that incident or from the counseling she received thereafter would have assisted defense counsel in form ulating questions to determine any effect on her memory of the instant assault. I cannot surmise under what circumstances it would be reasonable for defense counsel to not at least consult with an expert and pursue how the prior assault would complicate the details of the current a ssault in the mind of a young child

. There are known difficulties involved when interviewing childr en. People v Tesen , 276 Mich App 134, 144; 739 NW2d 689 (2007). “[C]hild-sexual-abuse cases present ‘special considerations’ given ‘the relia bility problems created by chil dren’s suggestibility.’ ” People v Musser , 494 Mich 337, 357; 835 NW2d 319 (2013) quoting People v Peterson , 450 Mich 349, 371; 537 NW2d 857 opinion amended on denial of reh 450 Mich 121 2; 548 NW2d 625 (1995). Defense counsel’s cross-examination of Threadgill leads me to b elieve that defense counsel was unaware of this issue. There was no examination into the wordi ng of Threadgill’s questions or prompts, or responses to TB’s answers. There was no examinatio n into whether Threadgill followed-up on TB’s understanding of terms used by Threadgill. The suggestibility of Threadgill’s questions was left unchallenged. An expert on for ensic interviewing or child suggestibility would have assist ed defense counsel in targeting any issues of unreliability in TB’s statement to Threadgill.

The prosecution’s arguments agai nst a finding of ineffective a ssistance are untenable. True, defense counsel’s closing focused on the inconsistencies in TB’s testimony however, I cannot agree with the prosecution that the same approach would have been taken if defense counsel had consulted with or secured an expert to testify in d efendant’s defense. The prosecution contends that there was no need for a defense exper t because Threadgill did not offer any opinion testimony that would have precipitated the need for a counter expert. Defense counsel is not limited to defensive tactics. Zealous represent ation incorporates offensive strategy, where counsel anticipat es a case’s challenges and kno ws its weaknesses so that he or she is prepared to meet them. Expert assistance would have adv anced defendant’s theory before the jury. “Had it been fortified by adequate investigation, it would have shown the weakness in the prosecutor’s case, and it could have made a difference in t he verdict.” People v Grant , 470 Mich 477, 492; 684 NW2d 686 (2004). Furthermore, nowhere in th e review of an ineffective-4- assistance of counsel claim based on the failure to engage an e xpert witness is defendant’s claim for an expert contingent upon whe ther the prosecution has an ex pert.

Defendant’s case is not like Ackley

, supra , or Agar
, supra , in that here no request was even made for an expert. I can find no objectively reasonable basis to have not made such a request. The lack of a request t o consult or retain an expert in this case was not sound trial strategy in any form. Accordingly, I conclude that in this cas e counsel’s failure to consult with or attempt to secure an expert witness to assist in the prepara tion and presentation of defendant’s defense fell below an objective standard of reasonableness. Th e record does indicate that an expert witness would have aided defendant and that there was a reasonable probability that but for counsel’s error, the result of the proceeding would have be en different.

In People v Agar , 500 Mich 891; 886 NW2d 717 (2016) 2 , our Supreme Court ordered that the defendant’s case be remanded so that the defendant cou ld offer “proof indicating how the expert’s testimony would be m aterial and favorable to the d efense.” In Agar , defense counsel was denied a request for a n expert in computer forensic s. 3 Our Supreme Court further directed the trial court on remand to “address in writing wheth er the absence of a defense expert sufficiently prejudiced the defendant such that a new trial is warranted.” Agar , 500 Mich at ___. As with the defendant in Agar , I cannot, at this stage, make a finding as to whether prejudi ce resulted from counsel’s failure sufficient to warrant a new tri al. Accordingly, I would remand for further proceedings related to the retention of an expert.

/s/ Cynthia Diane Stephens

2 “Supreme Court orders that include a decision with an understandable rationale establish binding precedent.” People v Giovannini , 271 Mich App 409, 414; 722 NW2d 237 (2006).

3 People v Agar , 314 Mich App 636; 887 NW2d 662 (2016) rev’ in part and vacate d in part 500 Mich 891; 886 NW2d 717 (2016).