McCORMACK, J.
The defendant, Jeffery Douglas, was convicted by a jury of first-degree and second-degree criminal sexual conduct in connection with the alleged sexual abuse of his then-three-year-old daughter, KD. Before us is whether the Court of Appeals erred in concluding that, as a result of evidentiary errors at trial and the ineffective assistance of counsel during both the pretrial and trial stages of the case, the defendant is entitled to a new trial and to the reinstatement of a plea offer he rejected. We agree with the Court of Appeals that a new trial is warranted in light of the errors by both the court and defense counsel at trial. We hold, however, that the Court of Appeals erred in concluding that the prosecution's prior plea offer must be reinstated, as we see no reversible error in the trial court's determination to the contrary. Accordingly, we affirm the Court of Appeals in part, reverse in part, and remand for proceedings consistent with this opinion.
KD is the biological daughter of the defendant and Jessica Brodie. The defendant and Brodie lived together for approximately seven years, during which time KD was born. The couple separated at the end of March 2008. Around that time, the defendant and Brodie each filed domestic violence charges against the other, which were ultimately dismissed. Upon the recommendation of Children's Protective Services (CPS), KD went to live with the defendant in May 2008; KD was 3½ years old at the time. The defendant and KD lived with the defendant's mother for approximately one month, and then lived with his current wife (then his girlfriend) from June 2008 until January 2009. At that point, KD went to live with Brodie and spent alternating weekends with the defendant. In May 2009, the defendant married his current wife and the couple announced her pregnancy shortly thereafter.
In June 2009, the instant allegations of sexual abuse surfaced: namely, that the defendant had made KD perform fellatio on him while he and KD were living with his mother approximately a year earlier, and that the defendant had made KD touch his penis on a separate, prior occasion. According to Brodie, KD spontaneously disclosed the alleged fellatio to her while the two were in the car together. As a result, Brodie moved up KD's preexisting appointment with her therapist, who in turn contacted CPS after speaking with KD. CPS opened an investigation and, together with local police, arranged for a forensic interview of KD at Care House, a social services center committed to the prevention of child abuse. During that interview, KD discussed the alleged fellatio and touching.
The defendant was thereafter charged with one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), and one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a); CPS also filed a petition to initiate child protective proceedings. KD and Brodie testified at a preliminary examination. Prior to that hearing, the prosecution discussed with defense counsel the possibility of a plea to one count of attempted CSC, which the defendant rejected. The case proceeded to trial in March 2010. Shortly beforehand, the prosecution extended a second plea offer to the defendant for one count of fourth-degree criminal sexual conduct (CSC-IV),
At trial, the prosecution presented testimony from KD (by then five years old), Brodie, and certain individuals involved in the underlying investigation of the case: Detective Sergeant Gary Muir, who testified, in relevant part, to the content of a recorded telephone conversation between the defendant and Brodie; State Police Trooper Larry Rothman, who testified regarding two interviews he had conducted with the defendant in connection with the allegations; CPS worker Diana Fallone, who testified regarding her investigation of the allegations and decision to commence child protective proceedings; and forensic interviewer Jennifer Wheeler, who was qualified as an expert and, over the defendant's objection, testified to the content of her interview with KD. The jury was also shown a video recording of that interview, again over the defendant's objection.
The defendant testified in his own defense, denying any wrongdoing. The defendant also presented testimony from his mother, with whom he and KD were living at the time the fellatio was alleged to have occurred, and from his current wife. The defendant's theory at trial was that the allegations of abuse had been fabricated by Brodie out of spite toward the defendant and his new wife, and that Brodie had coached KD accordingly.
The jury convicted the defendant as charged. As he had throughout the pretrial and trial stages of the case, the defendant maintained his innocence at sentencing. The trial court initially sentenced the defendant to concurrent prison terms of 85 to 360 months and 38 to 180 months for the CSC-I and -II convictions, respectively. After the defendant's term of incarceration began, however, the Department of Corrections notified the court, and the court in turn notified the parties, that the defendant had not been sentenced in accordance with MCL 750.520b(2)(b), which requires a 25-year mandatory minimum sentence for his conviction of CSC-I. Neither the court, the prosecution, nor defense counsel appear to have been aware of this mandatory minimum before receiving this correspondence, and the defendant had not been informed of it at any point prior. The parties then filed competing motions: the prosecution, to modify the sentence in accordance with the mandatory minimum; the defendant, for reinstatement of the prosecution's second pretrial plea offer, for a new trial, and for a Ginther
On September 9, 2010, the trial court held a hearing on the motions, at which the defendant and his trial counsel testified; the court thereafter granted the prosecution's motion to modify the sentence and denied the defendant's requests for relief. The testimony received at the hearing and the court's subsequent ruling on the motions focused predominantly on the pretrial advice the defendant had received from counsel regarding the prosecution's plea offer and the consequences of a conviction at trial, and to what extent any errors in that advice affected the defendant's decision to reject the offer.
The defendant appealed, and the Court of Appeals reversed, concluding that the defendant was entitled both to a new trial and to reinstatement of the prosecution's plea offer. People v. Douglas, 296 Mich.App. 186, 817 N.W.2d 640 (2012). The Court of Appeals found numerous evidentiary errors at trial, committed by both
The prosecution then sought leave to appeal in this Court, challenging both the award of a new trial to the defendant and the requirement that the prosecution's prior plea offer be reinstated. We granted leave to appeal in order to review these issues. People v. Douglas, 493 Mich. 876, 821 N.W.2d 574 (2012).
A trial court's decision to admit evidence will not be disturbed absent an abuse of discretion, which occurs when the court "chooses an outcome that falls outside the range of principled outcomes." People v. Musser, 494 Mich. 337, 348, 835 N.W.2d 319 (2013). If the court's evidentiary error is nonconstitutional and preserved, then it "`is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative'" — i.e., that "it undermined the reliability of the verdict." Id., quoting People v. Krueger, 466 Mich. 50, 54, 643 N.W.2d 223 (2002).
Whether the defendant received the effective assistance of counsel guaranteed him under the United States and Michigan Constitutions is a mixed question of fact and law. People v. Trakhtenberg, 493 Mich. 38, 47, 826 N.W.2d 136 (2012), citing People v. Armstrong, 490 Mich. 281, 289, 806 N.W.2d 676 (2011). This Court reviews for clear error the trial court's findings of fact in this regard, and reviews de novo questions of constitutional law. Id.
We turn first to the Court of Appeals' determination that the defendant is entitled to a new trial. We agree that such relief is warranted. This conclusion stems from errors made by both the trial court and defense counsel in the handling of evidence presented through three witnesses for the prosecution: forensic interviewer Wheeler, Detective Sergeant Muir, and CPS worker Fallone. As set forth below, the trial court erred in twice admitting the out-of-court statements made by KD to Wheeler during her forensic interview regarding the alleged fellatio; furthermore, defense counsel's performance was constitutionally deficient in permitting Muir, Fallone, and Wheeler to offer inadmissible testimony vouching for KD's credibility. The trial court's error and defense counsel's deficient performance were each
With no physical evidence of or third-party witnesses to the alleged abuse, the prosecution built its case around the credibility of KD's in-court and out-of-court statements, and the unreliability of the defendant's denials. The prosecution's first witness was five-year-old KD, who testified that she sucked the defendant's "peepee" and touched it with her hand. She initially denied that his "peepee" touched any part of her body when she sucked it, including her mouth, but later indicated that she touched it once with her hands, and once with her mouth. She also expressed uncertainty regarding what she meant by "peepee." As to the alleged fellatio, KD indicated that it happened while she and the defendant were alone in a bedroom at the defendant's mother's house, that the defendant was awake and lying on a bed, and that he asked her to do it. KD testified that she told Brodie this while at Brodie's house, and that she told Brodie the truth; she denied telling anyone but Brodie, but also indicated that she talked about it with "Jennifer" and "Tara" (whom the record indicates to be Wheeler and KD's therapist, respectively). She affirmed that she also told Brodie that milk came out of the defendant's "peepee" and, when asked if she told Brodie that the "milk" tasted like cherry,
The prosecution next called Brodie, who testified that in early June 2009, KD "spontaneous[ly]" told her that "I sucked my daddy's peepee until the milk came out, and my daddy said, oh yeah, that's how you do it." Contrary to KD's testimony, Brodie indicated that this happened while she was driving in the car with KD to pick up her fiancé. When asked by Brodie, KD said this happened in the office at the defendant's mother's house. When asked if KD ever told her that the milk tasted like cherry, Brodie replied that KD said that at the preliminary examination but had never told her that. Brodie testified that she then moved up KD's therapy appointment in light of the disclosure and, when CPS thereafter became involved, took KD to Care House for a forensic interview. Brodie denied that she told KD what to say; she also denied that she held any animosity toward the defendant or his new wife, or that she threatened either of them or their relationship with KD at any point prior to KD's disclosure.
Detective Sergeant Muir then testified about his role in the investigation of these allegations. In particular, Muir testified that, after KD's forensic interview, he asked Brodie to make a telephone call to defendant regarding the allegations. Muir recounted that Brodie told the defendant "[t]hat [KD] had said that she had sucked on her dad's peepee and stuff came out," and that, when the defendant responded that he did not know why KD would say that, Brodie replied, "I know my daughter don't lie; why is she making these allegations then; was there anything that happened
The prosecution then presented expert testimony from Wheeler regarding KD's forensic interview at Care House. Before Wheeler took the stand, defense counsel objected that KD's out-of-court statements during the forensic interview were inadmissible hearsay, arguing in particular that they did not meet certain requirements of MRE 803A's categorical hearsay exception. The trial court overruled the objection. Wheeler testified about her background and experience as a child forensic interviewer, which included "thousands" of such interviews, and was qualified as an expert in that field. After describing Care House (which she characterized as a "neutral location") and the general protocol used for child forensic interviews, Wheeler discussed her interview with KD. She testified that KD told her that "[m]y daddy made me suck his peepee," and that "[o]ne time we sucked it, and one time we touched it," repeating these statements throughout her testimony and using body diagrams from the interview — including one labeled with the defendant's name — to illustrate them. She also testified that KD told her that the alleged fellatio happened at the house of the defendant's mother, with just her and the defendant in the room; that KD "pointed to her mouth" when asked "what did he make you suck it with"; and that KD told her the "milk" tasted like "peepee milk," and not like cherry. Wheeler further testified that KD told her it tasted "yuk" and it went down her throat. Wheeler considered whether there had been a misunderstanding, but determined there was not because KD was "very clear" about what happened. The prosecutor then asked Wheeler for her opinion regarding the truthfulness of KD's statements. After defense counsel objected, the prosecutor rephrased, asking whether Wheeler believed KD had been coached to tell her these things; without objection, Wheeler opined that KD had not. Wheeler thereafter reaffirmed that she believed KD had not been coached by Brodie, but rather "was being truthful with [her]" during the interview. Again, defense counsel did not object.
After Wheeler, the prosecution called CPS worker Diana Fallone, who testified that, in her capacity at CPS, she investigates complaints of abuse and neglect and that she performed such an investigation here. Fallone testified that, after interviewing Brodie and observing KD's forensic interview, she filed a petition to commence child protective proceedings based on KD's allegations. She testified that, if she thought a child were lying, she would not seek such a petition, and that she would have to substantiate that the allegations did in fact occur before seeking a petition. Fallone then testified that, based on her investigation in the instant case, she found that KD's "allegations had been substantiated." She further testified that, "based on the disclosures made at Care House, there was no indication that [KD] was coached or being untruthful[.]" Defense counsel did not object to this testimony.
Trooper Rothman then testified that he interviewed the defendant twice about the allegations. Rothman testified that, when he mentioned the alleged fellatio to the defendant during the first interview, defendant denied that it happened but became more nervous as the interview went
The prosecution closed its case in chief by showing the jury the video recording of Wheeler's forensic interview with KD. The defendant renewed his prior objection to these out-of-court statements under MRE 803A, which was again overruled. Consistent with Wheeler's prior testimony, the video showed KD telling Wheeler that she sucked the defendant's "peepee" one time and touched it one time, with both KD and Wheeler repeating these statements throughout the interview. Likewise, the video showed Wheeler eliciting from KD, through further questioning and redirection, additional details regarding the alleged fellatio, echoing and expanding upon Wheeler's testimony to that effect. Lastly, the video showed Wheeler questioning KD about the separate touching incident. KD said that this happened on a different day and with her stepsister, and that the defendant told them both to "quit touching."
As with the prosecution, the defense focused on the credibility of KD's accounts of the alleged abuse, attempting to undermine their reliability and to impugn Brodie's motives in connection with them. The defendant first called his mother, who testified that the defendant and KD lived with her for a two-week period and that, during that time, KD slept with her every night and the defendant slept in the office. She further testified that she did not leave her house during that two-week period and that the defendant was never alone with KD there. The defendant's current wife then testified that the allegations against the defendant came right after they got married and found out they were having a baby. She also testified that Brodie was jealous, was angry with her, and would make constant phone calls to the defendant arguing over KD.
The defendant testified last, and denied the allegations. He testified that on one occasion, when he was living with Brodie and KD was two, he awoke to KD touching his penis when he was sleeping in the nude; he did not know what she touched him with, did not put her in the bed or know how she got there, and would not have slept in the nude if he had known she was going to be there. He "freaked out" and told KD that "it's a big no, no, you can't do that." He then told Brodie, and "there was no big concern about it" because "[i]t was a two-year-old exploring." The defendant also testified that, on another occasion, KD and her stepsister came into the bedroom and woke him up by jumping on the bed; he was sleeping in the nude at the time, but was under the covers. The defendant explained that his relationship with Brodie ended "[v]ery badly." He testified that he initially received custody of KD in the spring of 2008
We start with the trial court's admission, over the defendant's objection, of KD's out-of-court statements during the forensic interview, which came into evidence through both the testimony of Wheeler and the video recording of that interview. The parties do not dispute that these statements constitute hearsay under MRE 801(c), "offered in evidence to prove the truth of the matter asserted." The prosecution contends, however, that this hearsay was properly admitted under MRE 803A's categorical hearsay exception. MRE 803A "codified the common-law `tender years exception,'" People v. Gursky, 486 Mich. 596, 607, 786 N.W.2d 579 (2010), and provides, in relevant part:
According to the defendant, KD's statements to Wheeler during the forensic interview fail to meet many of MRE 803A's criteria: they were not spontaneously made; they were made over a year after the alleged incidents of abuse, and there has been no showing that this delay was caused by "fear or other equally effective circumstance"; and they do not reflect the first out-of-court statements made by KD corroborating her trial testimony concerning the alleged abuse. Only the last of these challenges was advanced in the defendant's objection to this evidence at trial,
As noted, we will not disturb a trial court's decision to admit evidence unless that decision "falls outside the range of principled outcomes." Musser, 494 Mich. at 348, 835 N.W.2d 319. Such circumstances are present here. As the defendant argued, and the prosecution conceded before the trial court, KD's disclosure of the alleged fellatio to Wheeler was not her first corroborative statement regarding that incident; rather, Brodie testified that KD previously disclosed that incident to her, which led to KD's interview with Wheeler. As a result, MRE 803A does not permit admission of KD's disclosure of the alleged fellatio during the forensic interview.
The prosecution notes that KD's disclosure to Wheeler of the separate touching incident was her first corroborative statement to that effect. Even if so,
Accordingly, KD's disclosure of the alleged fellatio to Wheeler falls outside the plain scope of MRE 803A's hearsay exception and was improperly admitted under that rule. The prosecution, however, argues on appeal that KD's out-of-court statements were nonetheless admissible under MRE 803(24)'s residual hearsay exception, citing People v. Katt, 468 Mich. 272, 290, 662 N.W.2d 12 (2003), in support. Like the Court of Appeals, we are not persuaded. As this Court has summarized,
The requirements of this residual exception "are stringent and will rarely be met, alleviating concerns that [it] will `swallow' the categorical [hearsay] exceptions through overuse." Id. at 289, 662 N.W.2d 12.
Applying this standard in Katt, this Court held that a child's disclosure of sexual abuse to a CPS worker, though inadmissible under MRE 803A because it was not the child's first corroborative statement concerning the abuse, was nonetheless admissible under MRE 803(24). That result is not warranted here. First, KD's disclosure of the alleged fellatio to Wheeler was not "the most probative evidence of that fact reasonably available." Katt, 468 Mich. at 290, 662 N.W.2d 12. This is "essentially ... a `best evidence' requirement," which "is a high bar and will effectively limit use of the residual exception to exceptional circumstances." Id. at 293, 662 N.W.2d 12 (quotation marks and citation omitted). In this case, the "best evidence" of KD's out-of-court disclosure of the alleged fellatio was the statement made to Brodie prior to the forensic interview with Wheeler. To conclude otherwise would contravene MRE 803A's express preference for first corroborative statements, and the rationale underlying it. See id. at 296, 662 N.W.2d 12 ("[T]he tender-years rule prefers a child's first statement over later statements" because, "[a]s time goes on, a child's perceptions become more and more influenced by the reactions of the adults with whom the child speaks."). MRE 803(24)'s residual exception cannot be used to "swallow" MRE 803A's categorical one in this fashion. Id. at 289, 662 N.W.2d 12. The testimony at issue in Katt did not present this same risk; while the child had previously disclosed the abuse to his mother, that first corroborative statement was not available or presented at trial. See id. at 295, 296, 662 N.W.2d 12. Not so here, and nothing in Katt indicates that Wheeler's testimony regarding KD's disclosure was properly admitted in addition to Brodie's.
Similarly, unlike the testimony in Katt, KD's disclosure to Wheeler does not "demonstrate circumstantial guarantees of trustworthiness equivalent to" those required under MRE 803A, such that it merits admission despite its failure to meet those requirements. "To be admitted, residual hearsay must reach the same quantum of reliability as categorical hearsay; simply, it must do so in different ways." Id. at 289-290, 662 N.W.2d 12. Thus, if a statement is "deficient in one or more requirements of a categorical exception, those deficiencies must be made up by alternate indicia of trustworthiness," discerned from "the `totality of the circumstances' surrounding [the] statement." Id. at 289, 291, 662 N.W.2d 12.
Here, Wheeler's testimony regarding KD's disclosure of the fellatio incident does not satisfy MRE 803A's categorical hearsay exception because it was not her first corroborative statement; its spontaneity and delayed nature have also been questioned under that rule. The prosecution notes that the disclosure is nonetheless sufficiently trustworthy under MRE 803(24) because it, like the disclosure in Katt, was made in the course of a properly administered forensic interview. Katt, however, is again distinguishable, and does not support this conclusion. While the disclosure in Katt occurred during a properly administered forensic interview, that interview was intended to address unrelated concerns regarding potential physical abuse by the child's mother. During the interview, the child spontaneously said that the defendant, his father, did "nasty
Similar circumstantial guarantees were lacking here. The specific purpose of Wheeler's interview of KD was to investigate her prior disclosure of the alleged fellatio — a fact known to both Wheeler and Brodie before the interview — and Brodie's motives in connection with KD's disclosure and interview were strongly disputed. Indeed, concern that KD's statements were improperly influenced by Brodie not only animates the defendant's challenges to their spontaneity and delay under MRE 803A, but also informs their inadmissibility under that rule's first corroborative statement requirement. See Katt, 468 Mich. at 296, 662 N.W.2d 12. While the interviewing methods used by Wheeler may bear on the extent of this concern, we do not conclude, and Katt does not indicate, that they were alone sufficient to cure it. Nor do we see how these methods, or any other circumstances of this case, afforded KD's disclosure to Wheeler "alternative indicia of trustworthiness" such that it should be deemed any more admissible under MRE 803(24)'s residual exception than it is under MRE 803A's categorical one.
Accordingly, we conclude that the trial court abused its discretion by admitting KD's out-of-court statements to Wheeler regarding the alleged fellatio. We further conclude that this preserved error more probably than not undermined the reliability of the verdict against the defendant, warranting relief. Musser, 494 Mich. at 348, 835 N.W.2d 319. In reaching this conclusion, we consider "`the nature of the error in light of the weight and strength of the untainted evidence.'" Id., quoting Krueger, 466 Mich. at 54, 643 N.W.2d 223. In particular, as this Court has recognized,
See also People v. Anderson, 446 Mich. 392, 407 n. 37, 521 N.W.2d 538 (1994) ("While credibility contests are not uncommon in criminal sexual conduct cases, the wrongful admission of corroborating testimony `on either side could tip the scales' and result in harmful error."), quoting People v. Gee, 406 Mich. 279, 283, 278 N.W.2d 304 (1979) (citations omitted).
This case presented the jury with a pure credibility contest; there were no third-party witnesses to either instance of alleged abuse, nor any physical evidence of it.
The prosecution characterizes this evidence as harmlessly cumulative of KD's in-court testimony, pointing to our observations in Gursky that "where a hearsay statement is not offered and argued as substantive proof of guilt, but rather offered merely to corroborate the child's testimony, it is more likely that the error will be harmless," and that "[w]here the declarant himself testifies and is subject to cross-examination, the hearsay testimony is of less importance and less prejudicial." Gursky, 486 Mich. at 620-621, 786 N.W.2d 579. As we also cautioned in Gursky, however, "`the fact that the statement [is] cumulative, standing alone, does not automatically result in a finding of harmless error,'" but is only one consideration to be accounted for when evaluating the prejudicial effect of the erroneously admitted hearsay. Id. (citation omitted). Thus, 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.
Based on the evidence presented in this case, we cannot conclude that Wheeler's testimony and the video recording of the forensic interview were harmlessly cumulative; this hearsay evidence not only corroborated by echo KD's in-court testimony, but added clarity, detail, and legitimacy to it. KD's account of the fellatio at trial, while incriminating, left ample room for reasonable doubt; it betrayed uncertainty on fundamental details, was inconsistent in certain respects with Brodie's corroborative testimony, and was clouded by the strongly disputed motives of Brodie. The evidence of KD's disclosures to Wheeler, however, did much to alleviate this doubt. Rather than simply Brodie corroborating KD's testimony, there now too was Wheeler, an expert no less, with no apparent partiality, repeating, clarifying, and more fully articulating KD's general allegations. The video recording of the forensic interview provided further reinforcement still, as the jury was able to watch KD herself testify again, this time at greater length, with the assistance of Wheeler's expert questioning, and not subject to cross-examination, of course. This video confirmed Wheeler's rendition of KD's statements, repeated them more times over, and elaborated upon them, adding further detail to the graphic scene the prior testimony had sketched.
The prosecution contends that any prejudice was immaterial in light of the defendant's tacit admissions, pointing in particular to his failure to offer an outright denial to Trooper Rothman of the allegations of fellatio, saying instead that he did not remember anything of that sort happening. At trial, the defendant admitted to giving this response, but characterized his choice of words as responsive to Trooper Rothman's specific question; according to the defendant, when Rothman asked if the fellatio did, in fact, occur, he denied it. While the jury certainly may have factored this testimony into its assessment of the defendant's credibility, we, like the Court of Appeals, do not find it, or the other untainted evidence offered at trial, sufficiently powerful to restore confidence in the jury's verdict in light of the trial court's error. Rather, we conclude that KD's erroneously admitted statements during the forensic interview more probably than not "tipped the scales" against the defendant such that the reliability of the verdict against him was undermined and a new trial is warranted. See, e.g., Gursky, 486 Mich. at 621, 786 N.W.2d 579; Straight, 430 Mich. at 427-428, 424 N.W.2d 257; Anderson, 446 Mich. at 407 n. 37, 521 N.W.2d 538.
We find this relief likewise warranted by defense counsel's mishandling of inadmissible testimony offered by Wheeler, Fallone, and Muir vouching for KD's credibility. As noted, Fallone testified that, based on her investigation, she found that KD's "allegations had been substantiated" and that, "based on the disclosures made at Care House, there was no indication that [KD] was coached or being untruthful[.]" As the Court of Appeals held, this testimony violated the well-established principle that "it is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial." Musser, 494 Mich. at 349, 835 N.W.2d 319. See, e.g., People v. Dobek, 274 Mich.App. 58, 71, 732 N.W.2d 546 (2007) ("It is generally improper for a witness to comment or provide an opinion on the credibility of another witness, because credibility matters are to be determined by the jury."). Wheeler likewise violated this principle when she offered her expert conclusions that KD had not been coached by Brodie but rather was being truthful with her. See People v. Peterson, 450 Mich. 349, 352, 537 N.W.2d 857 (1995) (affirming that "an expert may not vouch for the veracity of a victim").
Despite the plainly inadmissible nature of the testimony from Fallone and Muir, defense counsel did not object. And while defense counsel initially, and successfully, opposed the prosecution's attempt to elicit an expert conclusion from Wheeler regarding the veracity of KD's statements, he thereafter inexplicably permitted that testimony without objection. We agree with the Court of Appeals that, as a result, the defendant was denied the effective assistance of counsel. To be constitutionally effective, counsel's performance must meet an "objective standard of reasonableness." Trakhtenberg, 493 Mich. at 51, 826 N.W.2d 136. In showing this standard has not been met, "a defendant must overcome the strong presumption that counsel's performance was born from a sound trial strategy." Id. at 52, 826 N.W.2d 136, citing Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The strategy, however,
We see no sound strategy in counsel's failure to object to the vouching testimony offered by Wheeler, Fallone, and Muir. As defense counsel affirmed at the Ginther hearing, his trial strategy was to demonstrate that KD was not believable, that her testimony had been tainted by Brodie, and that she had told different stories to different people throughout the investigative process. In fact, he also testified that, consistent with this strategy, he would have objected to any opinions offered that KD was being truthful. Wheeler's and Fallone's testimony that KD was telling the truth, and Muir's recounting of Brodie's statements to that same effect, directly contravened this strategy. Defense counsel offered, and we see, no strategic reason to permit this inadmissible testimony to pass without objection here.
We further conclude that, but for these deficiencies in counsel's performance, "there is a reasonable probability that the outcome of [the defendant's trial] would have been different." Trakhtenberg, 493 Mich. at 51, 826 N.W.2d 136. As already discussed, the prosecution's case hinged wholly on the credibility of KD's allegations, making defense counsel's success in undermining that credibility all the more critical. Rather than pursuing this strategy vigilantly, defense counsel permitted Wheeler, Fallone, and Muir — three figures of apparent authority and impartiality, with direct involvement in and knowledge of the investigation leading to the defendant's prosecution — to present testimony improperly reaching the key factual issue before the jury: whether KD was telling the truth. Wheeler's and Fallone's commentary was especially prejudicial in this regard — the former offering the jury an expert opinion regarding KD's credibility in the instant case, and the latter offering the jury her, and CPS's, professional assessment of the veracity and substantiation of KD's complaints. We cannot overlook the influence such testimony may have in a case such as this. See Musser, 494 Mich. at 357-358, 835 N.W.2d 319 (noting that, "given `the reliability problems created by children's suggestibility,'" this Court "has condemned opinions related to the truthfulness of alleged child-sexual-abuse complainants" because the jury in such credibility contests "is often `looking to "hang its hat" on the testimony of witnesses it views as impartial'"), quoting Peterson, 450 Mich. at 371, 376, 537 N.W.2d 857.
We thus conclude that the defendant is entitled to a new trial as a result of both the trial court's erroneous admission of KD's statements regarding the alleged fellatio during her forensic interview, and defense counsel's ineffective assistance with respect to the testimony of Wheeler, Fallone, and Muir. This case put before the jury serious and disturbing allegations, heavily contested facts and motives, and a singular, difficult choice: whether to believe KD or the defendant. The trial court's and defense counsel's errors each bore directly and significantly upon this choice. For the reasons discussed, we find
Because we do not find them necessary to this award of relief, we do not reach a number of the defendant's unpreserved evidentiary challenges: namely, whether KD's disclosures of the alleged touching and fellatio incidents to Wheeler were inadmissible under MRE 803A because they were not spontaneously made, as well as whether those disclosures, and KD's disclosure of the alleged fellatio to Brodie, were inadmissible under that rule because there was no demonstration of "fear or equally effective circumstance" excusing their substantial delay. The parties remain free to litigate these issues on retrial. We take this opportunity to note, however, that we agree with the observations in Judge RONAYNE KRAUSE'S concurring opinion in the Court of Appeals that, when evaluating whether a delay in disclosure is excusable under MRE 803A, courts should bear in mind that "MRE 803A(3) requires any circumstance that would be similar in its effect on a victim as fear in inducing a delay in reporting, not a circumstance that is necessarily similar in nature to fear," and that "[n]othing in the rule even requires that any `other equally effective circumstance' must have been affirmatively created by the defendant." Douglas, 296 Mich.App. at 211, 817 N.W.2d 640 (RONAYNE KRAUSE, J., concurring).
While we agree with the Court of Appeals that the defendant is entitled to a new trial, we disagree that he is entitled to relief on the basis of his counsel's deficient performance at the pretrial stage. Although during the plea-bargaining process counsel indisputably misadvised the defendant of the consequences he faced if convicted at trial, the trial court did not reversibly err in determining that the defendant has not shown prejudice as a result of counsel's deficient performance.
Before trial, the defendant was presented with two plea offers: the first, made before the preliminary examination, was for the defendant to plead guilty to attempted CSC, carrying a five-year maximum penalty; the second, made just before trial, was for the defendant to plead
According to the defendant, counsel's failure to properly advise him of the 25-year mandatory minimum sentence, as well as of certain consequences of sex-offender registration, denied him the effective assistance of counsel; as a result, the defendant contends, he is entitled to reinstatement of the prosecution's second plea offer. As at trial, a defendant is entitled to the effective assistance of counsel in the plea-bargaining process. Lafler v. Cooper, 566 U.S. ___, ___, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). A defendant seeking relief for ineffective assistance in this context must meet Strickland's familiar two-pronged standard by showing (1) "that counsel's representation fell below an objective standard of reasonableness," and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ___, 132 S.Ct. at 1384. In demonstrating prejudice, the "defendant must show the outcome of the plea process would have been different with competent advice." Id. at ___, 132 S.Ct. at 1384. Where, as here, the alleged prejudice resulting from counsel's ineffectiveness is that the defendant rejected a plea offer and stood trial,
The defendant has the burden of establishing the factual predicate of his ineffective assistance claim. People v. Hoag, 460 Mich. 1, 6, 594 N.W.2d 57 (1999). And as already noted, a trial court's factual findings in that regard are reviewed for clear error and cannot be disturbed unless "the reviewing court is left with a definite and firm conviction that the trial court made a mistake." Armstrong, 490 Mich. at 289, 806 N.W.2d 676. See MCR 2.613(C).
Here, after hearing testimony from the defendant and defense counsel at the Ginther hearing, the trial court rejected the defendant's claim of ineffective assistance. The court found that the defendant, at the time he rejected the prosecution's second plea offer, believed that a conviction at trial would result in a 20-year maximum prison sentence, supervised to no contact with his children for 20 years, and registration as a sex offender. The court reasoned that, although the defendant thought he faced a 20-year
We agree with the Court of Appeals that counsel's mistaken advice regarding the sentence the defendant faced at trial fell below an objective standard of reasonableness.
In concluding otherwise, the Court of Appeals made no mention of the role that the defendant's belief in his innocence may have played in his decision to go to trial, despite its prominent place in the trial court's reasoning, and instead focused on certain testimony offered by defense counsel and the defendant that knowledge of the 25-year mandatory minimum would have affected their treatment of the prosecution's plea offer. Review of that testimony in full, however, paints a different picture. First, contrary to the Court of Appeals' characterization, defense counsel did not testify that he would have "absolutely pressed" the defendant to accept the prosecution's plea offer had he known of the 25-year mandatory minimum at the time. Rather, counsel stated that, "[i]f there was a do-over on this, I would have absolutely pressed [the defendant] and insisted he take the deal ... because we lost at trial, and the consequences are he's now looking at 25 years in prison." When asked what he would have done differently had he only known about the mandatory minimum, however, and not the ultimate outcome of the trial, defense counsel was much more equivocal in his response, saying simply that he "would have made sure [the defendant] understood how long 25 years was." Counsel further testified that his and the defendant's position had always been that the defendant would plead to nothing that would result in placing the defendant on the sex-offender registry, in part because the defendant was concerned about losing contact with his children, but also because he found the type of behavior to which he would be pleading "disgusting and offensive and [he] would never engage in" it.
Meanwhile, the defendant, as the Court of Appeals noted, testified that he would have accepted a plea had he known of the 25-year mandatory minimum, and also suggested that he would have been more inclined to accept a plea had he not mistakenly believed that sex-offender registration would prohibit him from living with his children for its duration. As noted, it is questionable that the defendant's misconceptions regarding the consequences of sex-offender registration were caused by any deficient performance on counsel's
As a result, we are not "left with a definite and firm conviction that the trial court made a mistake" in finding that the defendant has failed to show prejudice stemming from his counsel's deficient performance, Armstrong, 490 Mich. at 289, 806 N.W.2d 676; rather, the record amply supports the conclusion that, even had the defendant been properly advised of the consequences he faced if convicted at trial, it was not reasonably probable that he would have accepted the prosecution's plea offer. See Lafler, 566 U.S. at ___, 132 S.Ct. at 1384-1385.
For the foregoing reasons, we conclude that the defendant is entitled to a new trial, but is not entitled to reinstatement of the prosecution's plea offer. Accordingly, we affirm the judgment of the Court of Appeals in part, reverse in part, and remand for proceedings consistent with this opinion. In addition, we deny as moot the defendant's motion to expand the record.
YOUNG, C.J., MARY BETH KELLY, and ZAHRA, JJ., concurred with McCORMACK, J.
VIVIANO, J. (concurring in part and dissenting in part).
I agree with the majority and the Court of Appeals that a new trial is warranted.
To prevail on his Lafler
The majority defers to the trial court's finding that the failure to advise defendant about the mandatory minimum would not have changed the outcome of defendant's decision. In the majority's view, the "full body" of defendant's testimony at the posttrial Ginther hearing undermines the credibility of defendant's claim that misinformation regarding the sentence he faced upon conviction "meaningfully influenced his decision to reject the prosecution's plea offer."
I disagree. On direct examination at the Ginther hearing, counsel recognized that defendant had consistently maintained his innocence and rejected plea offers before trial, so counsel asked defendant, "How could you enter a guilty plea to an offense if you maintained your innocence?" Defendant responded unequivocally: "Like I said, the only way that I would've really done it is if I would've known that I was facing that 25-year minimum." In case this statement was not already clear enough, counsel then asked "Are you saying that if you had known you were looking at 25 years, you would have entered a plea?" To which defendant replied, "Yes."
It is true that, on cross-examination, the prosecutor asked, "Okay, so there is no plea bargain you could have been offered that would've required you to be on the sex offender registry that you would have accepted; is that true?" Defendant responded, "Correct." But if read in context, it becomes clear that what defendant was saying was that, without knowing that he was facing a 25-year mandatory minimum sentence, he would not have accepted any plea that would have required him to register as a sex offender. As a follow-up to the above question, the prosecutor asked, "But now you're telling this Court that you ... would've taken a plea bargain because you wouldn't want to go to prison for 25 years, but you rejected one, in fact two, knowing that you could go to prison for 20 years; is that true?" Defendant replied, "Correct, and the reason was because I wasn't told that that would be the minimum of 20 years." Hence, defendant consistently maintained that he would have responded differently to the prosecution's offers if he had known about the mandatory minimum sentence he was facing.
In addition to mischaracterizing defendant's posttrial testimony, I believe the majority gives too little weight to the magnitude of defense counsel's error. Suppose a defense attorney mistakenly told a client
But as the magnitude of a defense attorney's error grows, it seems more and more likely that the outcome of the plea-bargaining process would have been different absent counsel's mistake, no matter how a defendant actually behaved on the basis of constitutionally deficient advice. In other words, the predictive value of a defendant's pretrial behavior decreases as the significance of a defense attorney's error increases. Consider a case in which a defense attorney told a client that she was facing a 2-year maximum term, when in fact the statutory maximum term was life in prison without the possibility of parole. The error there would be so great that the error itself would seem to create a reasonable probability that the outcome of the trial process would have been different, even in the defendant steadfastly maintained her innocence before trial. Big differences in information are more likely to generate big changes in behavior.
In this case, defendant's attorney did not make a small error. The applicable sentencing statute clearly states that defendant's offense was punishable "by imprisonment for life or any term of years, but not less than 25 years."
The trial court minimized this error by noting that there was only a 5-year gap between the 20-year maximum that defendant mistakenly thought he was facing and the actual 25-year minimum he was facing. But comparing those two numbers is like comparing apples and oranges. It makes more sense to compare the mistaken maximum (20 years) and the actual maximum (life), and to compare the mistaken estimated sentence (5 to 8 years) with the actual minimum sentence that defendant was facing (at least 25 years). These comparisons more vividly show the significance of defense counsel's error.
The question becomes whether, in view of the magnitude of defense counsel's error and defendant's conduct and testimony, the trial court clearly erred when it determined that there was no "reasonable probability" that defendant would have accepted one of the prosecution's plea offers. "Reasonable probability" is a term of art in the domain of criminal procedure. "A reasonable probability is a probability sufficient to undermine confidence in the outcome."
In this case, I believe the trial court clearly erred by finding there was no "reasonable probability" that defendant would have accepted one of the prosecution's plea offers. Even the most stubborn defendant would at least consider pleading guilty upon learning that he was about to stand trial on a charge for which the statutory minimum sentence was 25 years in prison. This is especially true where, as here, defense counsel informed defendant that his likely sentence upon conviction would be only 5 to 8 years, approximately one-fifth of the minimum term required by statute. This is an error so significant that I believe defendant's actual pretrial behavior has marginal predictive value.
The prosecution made its first offer — a plea to attempted CSC, which is a felony carrying a 5-year maximum term of imprisonment
The second component of Lafler's prejudice prong concerns whether the court would have accepted the terms of the plea deal. Looking at the events that transpired before trial, I can find nothing to suggest that the trial court would have rejected a guilty plea by defendant if he had offered one. Hence, I believe defendant has established that the court would have accepted his plea if it had been offered.
As the majority notes, the prosecution made two plea offers: "[T]he first, made before the preliminary examination, was for the defendant to plead guilty to attempted CSC, carrying a five-year maximum penalty; the second, made just before trial, was for the defendant to plead guilty to CSC-IV, carrying a two-year maximum penalty."
In Lafler, the Supreme Court did not articulate a bright-line rule regarding how to remedy an instance of ineffective assistance during the plea-bargaining process. Instead, it explained:
This paragraph suggests that when, as in this case, a mandatory minimum sentence confined the trial court's discretion after conviction, the appropriate role for
With reference to that prerejection baseline, I would remand this case to the trial court and order the prosecution to reoffer its first offer, one count of attempted CSC, to defendant. This would restore the parties as much as possible to the position they were in before any ineffective assistance on the part of counsel.
To be clear, I would not order the trial court to accept defendant's plea if defendant were to accept the prosecution's offer. Just as in Lafler, I would leave "open to the trial court how best to exercise [its] discretion in all the circumstances of the case."
Again, I agree with the majority that defendant is entitled to a new trial and that his attorney's pretrial advice was constitutionally deficient. However, I would hold that defendant has shown that he was prejudiced by his attorney's deficient counsel, and I would order the prosecution to reinstate its first plea offer in order to remedy this constitutional violation.
MICHAEL F. CAVANAGH and MARKMAN, JJ., concurred with VIVIANO, J.
Dobek thus held that certain erroneously admitted vouching testimony did not warrant relief because it was elicited in direct response to defense counsel's questioning on the topic and was reviewed for prejudice under a significantly more deferential standard than is applicable here. Dobek does not suggest that Fallone's mere presence on the stand as a witness for the prosecution cures any prejudice caused by her testimony vouching for KD, nor does it cast doubt upon our conclusion that, but for counsel's ineffectiveness as to the testimony of Wheeler, Fallone, and Muir, there was a reasonable probability that the outcome of the defendant's trial would have been different.
The Court of Appeals also concluded that defense counsel performed deficiently by failing to object to KD's disclosures to Brodie and Wheeler on the basis of their delayed nature. Just as we need not reach the merits of that objection here, our disposition of this appeal does not require us to determine whether counsel was ineffective for failing to pursue it. We note, however, that the timing of KD's disclosures supported the defendant's theory that Brodie fabricated them out of spite; defense counsel thus may have chosen not to object to KD's disclosures on the basis of delay so as not to encourage the development of a record at trial that might provide alternate explanations for that delay. We are thus not convinced that defense counsel's failure to object on this basis was constitutionally ineffective, given how it dovetailed with his trial strategy.
Similarly, the dissent believes that we have "give[n] too little weight to the magnitude of defense counsel's error" in our analysis, because "[e]ven the most stubborn defendant would at least consider pleading guilty upon learning that he was about to stand trial on a charge for which the statutory minimum sentence was 25 years in prison." We share the dissent's appreciation of the magnitude of defense counsel's error in this case, and likewise recognize the influence such an error might have on an individual's decision whether to accept a plea of the sort offered here. At issue, however, is the effect of counsel's error on this particular defendant, not some hypothetical one. This question, as the dissent observes, is inherently counterfactual, but nonetheless one on which the trial court can and did ably develop a complete record, and we see no reversible error in the court's assessment of it. We cannot agree with the dissent that this assessment should have instead been dictated by the trial court's — or our own — abstract belief of what "[e]ven the most stubborn defendant" might have done, "no matter how [the] defendant actually behaved" in this case.
It is precisely because of the counterfactual nature of the inquiry that the magnitude of the error should be given more prominence in the analysis. When beginning the difficult task of predicting human behavior, it is important that a trial court consider how drastically the actual pretrial history in a case varies from the hypothetical scenario that the court is considering. Otherwise, the court will risk compounding the errors of a constitutionally deficient attorney by holding his or her client accountable for how the client behaved on the basis of erroneous legal advice.
