Opinion
351999
03-23-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JUAN MANUEL LOPEZ, Defendant-Appellant.
UNPUBLISHED
Van Buren Circuit Court LC No. 2019-022031-FH
Before: K. F. Kelly, P.J., and Boonstra and Redford, JJ
PER CURIAM.
Defendant appeals by right his jury-trial convictions of third-degree criminal sexual conduct (CSC-III) and one count of assault and battery. Finding no errors warranting reversal of defendant's convictions, we affirm them. However, we remand the case to the trial court solely for the ministerial task of amending the judgment of sentence to properly show defendant's sentence for the CSC-III conviction.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant's convictions stem from a sexual assault that he committed against the victim, a woman who hired a company called "Senior Services," who defendant worked for, to help the victim travel to and from medical appointments. Several days before the victim's scheduled medical appointment, defendant, who was tasked with driving the victim for Senior Services, knocked on the victim's door unexpectedly and told the victim he was only there to confirm where she lived in advance of the appointment. He also complimented her on her nightgown. Unsettled, the victim stated she did not let defendant into the apartment.
On the day of the victim's appointment, defendant arrived to transport her and, as he was securing her seatbelt in the vehicle, he brushed his hand across her breast. After the appointment, defendant drove the victim home and followed her into her apartment. Defendant locked the door behind him and sexually assaulted the victim. Defendant only stopped and left after the victim told him that she expected a visitor. After the assault, the victim stated that she received several telephone calls and voice messages from defendant, although she admitted she deleted the voice messages.
After the victim reported the assault to Senior Services, law enforcement became involved and interviewed defendant. During the interview, defendant admitted that he gave the victim a ride to an appointment and that he kissed her on the mouth. He stated that he may have bit her neck but claimed he could not remember because he was on medication at the time. Additionally, defendant told police that his wife was no longer affectionate with him and that he could not have sexually assaulted the victim because he had erectile dysfunction.
Defendant was eventually tried and convicted of CSC-III and assault and battery including, in part, on the basis of DNA evidence found on the victim's body and clothing. After his trial, defendant moved for a Ginther hearing, asserting that his defense counsel was ineffective for failing to hire a DNA expert to rebut the prosecution's DNA evidence. He also argued that defense counsel was ineffective for failing to investigate defendant's phone records because an investigation performed by his appellate counsel purportedly revealed that no calls were placed to the victim's phone from defendant's telephone. After a hearing, the trial court denied defendant's motion. This appeal followed.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
II. STANDARD OF REVIEW
"A claim of ineffective assistance of counsel is a mixed question of law and fact." People v Petri, 279 Mich.App. 407, 410; 760 N.W.2d 882 (2008). "A trial court's findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo." Id. To preserve the issue of whether counsel rendered ineffective assistance, defendant must move for a new trial or evidentiary Ginther hearing in the trial court. Id.
A trial court's decision whether to grant a Ginther hearing is reviewed for an abuse of discretion. People v Unger, 278 Mich.App. 210, 216-217; 749 N.W.2d 272 (2008). "A trial court abuses its discretion when it selects an outcome that was not in the range of reasonable and principled outcomes." People v Roberts, 292 Mich.App. 492, 503; 808 N.W.2d 290 (2011).
III. ANALYSIS
On appeal, defendant argues that he is entitled to a new trial because his trial counsel did not provide him with the effective assistance of counsel. Specifically, defendant contends that his trial counsel was ineffective because counsel did not hire a DNA expert to rebut the prosecutor's DNA evidence and did not investigate defendant's telephone records. Defendant also argues the trial court abused its discretion when it denied defendant's motion for a Ginther hearing. We disagree.
A. DNA EXPERT
Both the United States and Michigan Constitutions guarantee a defendant the right to effective assistance of counsel. U.S. Const, Am VI; Const 1963, art 1, § 20. "To establish ineffective assistance of counsel, defendant must first show that (1) his trial counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." People v Uphaus, 278 Mich.App. 174, 185; 748 N.W.2d 899 (2008). "Effective assistance of counsel is presumed and defendant bears the burden of proving otherwise." Petri, 279 Mich.App. at 410.
This Court "will not second-guess matters of strategy or use the benefit of hindsight when assessing counsel's competence." People v Odom, 276 Mich.App. 407, 415; 740 N.W.2d 557 (2007). Moreover, trial counsel has "wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases." Id. "The inquiry into whether counsel's performance was reasonable is an objective one and requires the reviewing court to determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." People v Vaughn, 491 Mich. 642, 670; 821 N.W.2d 288 (2012) (quotation marks and citation omitted). "This standard requires a reviewing court to affirmatively entertain the range of possible reasons . . . counsel may have had for proceeding as they did." Id. (quotation marks and citation omitted; alteration in original). We will not substitute our own judgment for that of counsel or use the benefit of hindsight in assessing the trial counsel's competence. Unger, 278 Mich.App. at 242-243. Defense counsel is not ineffective merely because a trial tactic did not succeed. People v Stewart (On Remand), 219 Mich.App. 38, 42; 555 N.W.2d 715 (1996).
Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v Washington, 466 U.S. 668, 690-691; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). We 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 N.W.2d 686 (2004). A defendant must overcome the strong presumption that defense counsel's trial strategy is sound. Trakhtenberg, 493 Mich. at 52. "A sound trial strategy is one that is developed in concert with an investigation that is adequately supported by reasonable professional judgments." Grant, 470 Mich. at 486.
Defense counsel's decision whether to retain expert witnesses is a matter of trial strategy. People v Payne, 285 Mich.App. 181, 190; 774 N.W.2d 714 (2009). However, "[criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence." Hinton v Alabama, 571 U.S. 263, 273; 134 S.Ct. 1081; 188 L.Ed.2d 1 (2014) (quotation marks and citation omitted). Further, defense counsel "may be deemed ineffective, in part, for failing to consult an expert when counsel had neither the education nor the experience necessary to evaluate the evidence and make for himself a reasonable, informed determination as to whether an expert should be consulted or called to the stand Trakhtenberg, 493 Mich. at 54 n 9 (quotation marks and citations omitted).
In People v Ackley, 497 Mich. 381, 397-398; 870 N.W.2d 858 (2015), the Michigan Supreme Court concluded that trial counsel provided ineffective assistance when counsel failed to investigate and present a medical expert. The issue presented was whether excessive shaking or an accidental fall caused the unexplained death of the child victim. Id. at 384. The prosecutor presented five medical experts who testified that the child died from excessive shaking. Id. The defense presented no expert to support his theory that the child's injuries were the result of an accidental fall. Id. Additionally, the defense ignored the recommendation of an expert that counsel could seek another expert who would be likely to agree with defendant's claim. Id. at 390. The Michigan Supreme Court concluded that the expert could provide the entire defense in a shaken-baby-syndrome case when there is "no victim who can provide an account, no eyewitness, no corroborative physical evidence and no apparent motive to kill, the expert is the case . . . ." Id. at 397 (quotation marks and citation omitted; alteration in original).
Unlike Ackley, the prosecutor's case involved the presentation of DNA evidence but did not hinge on it. In Ackley, the prosecutor's experts on shaken-baby-syndrome were the sole evidence against the defendant. Id. The prosecutor had no witness and no corroborative physical evidence. Id. In contrast, in this case, the DNA evidence was just one aspect of the prosecutor's case against defendant. The victim herself testified regarding defendant's sexual assault. The allegations were corroborated by physical evidence, including pictures of bruises and abrasions consistent with sexual assault. The prosecutor also presented circumstantial evidence from defendant's interview with the police in which defendant admitted that he drove the victim to her appointment, kissed her on the lips, and possibly bit her. Defendant also told the police that his wife was no longer affectionate toward him, a detail that the victim stated defendant also disclosed to her. These inculpatory statements, presented in conjunction with the other non-DNA physical evidence, was corroborative of the victim's testimony.
Further, defendant's argument overstates the probative value of the DNA evidence presented. The prosecutor presented evidence collected from three locations on the victim's body and only one swab had a high probability of coming from defendant. During cross-examination of the prosecutor's DNA witness, defense counsel elicited admissions that the witness could not determine how the DNA on the victim was transferred to her body and that DNA could be transferred through incidental contact, such as when defendant reached across the victim to secure her seatbelt.
Other DNA swabs revealed the possible presence of seminal fluid, but no male DNA was identified. Defendant contends that the jury was likely misled by this testimony because the phosphate test performed on the DNA looks for the presence of an amino acid found in both vaginal secretions and seminal fluid and the prosecutor's witness did not explain that what was thought to be possible seminal fluid could have been from the victim. According to defendant, an expert testifying on his behalf would have clarified this point.
We are not persuaded that the jury was misled by this testimony. First, the seminal fluid detected was not directly tied to defendant by the expert because no male DNA was found in the swab. Second, the victim never alleged that defendant penetrated her with his penis, removed his own pants, or ejaculated. She only alleged that he penetrated her vagina with his fingers. It is unclear what weight the jury gave this testimony in light of all of the other evidence demonstrating defendant's guilt.
Considering both the extent of the prosecutor's case and the relatively low probative value of that DNA evidence, defense counsel employed reasonable and available defense strategies apart from consultation with DNA experts. See Hinton, 571 U.S. at 273 ("In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.") (quotation marks and citation omitted). Through his cross-examination of the prosecutor's witnesses and in his closing arguments, defense counsel demonstrated that he was familiar with DNA evidence procedures. He presented the theory that the only DNA attributed to defendant was incidentally transferred to the victim and questioned the prosecution's witness about whether the witness could test the DNA of the victim to identify if it came from blood, skin cells, or saliva. Defendant has made no showing that a DNA expert would have presented any additional information to the jury. Given defense counsel's understanding of the DNA evidence and the strategy he used at trial, he made a reasonable, informed decision not to call an expert at trial. See Trakhtenberg, 493 Mich. at 54 n 9.
B. PHONE RECORDS
Next, defendant argues that defense counsel was ineffective for failing to investigate telephone call records and pursue an avenue of impeachment against the victim after an investigation by appellate counsel revealed no evidence of calls made from defendant to the victim after the assault. Again, we disagree.
Defense counsel was aware of the victim's allegation that defendant called her after the assault. However, there is no evidence in the record that defendant told his attorney before or at the time of trial that he did not call the victim. Nevertheless, defense counsel did question the victim at defendant's preliminary examination regarding the messages she claimed defendant left on her answering machine but that she claimed she deleted.
Thus, defense counsel may have considered obtaining the telephone records and decided that doing so could pose a risk to defendant. For example, if the telephone records showed that defendant in fact made several calls to the victim, this information would be relevant evidence of defendant's guilt. Moreover, it is not exactly clear from defendant's arguments how he would have used his own telephone records to impeach the victim. The absence of a record of a call from defendant's known telephones does not prove defendant did not call the victim. Rather, the lack of such a record could just as easily show that defendant was sophisticated enough to know not to use a traceable number when calling his assault victims. It is also unclear how defendant would authenticate and lay the foundation for the introduction of the telephone records without having defendant himself testify. Defense counsel's decision not to investigate the phone records was reasonable trial strategy that we will not second-guess in hindsight. See Unger, 278 Mich.App. at 242-243.
Because we conclude that defense counsel's performance did not fall below an objective standard of reasonableness in any regard, defendant's arguments that the "cumulative effect" of the errors warrants reversal are unconvincing. See People v Mayhew, 236 Mich.App. 112, 128; 600 N.W.2d 370 (1999) (stating that absent the establishment of any error, there can be no cumulative error warranting reversal). For the same reasons, we reject defendant's arguments that the trial court abused its discretion when it denied his motion for a Ginther hearing. See People v Williams, 275 Mich.App. 194, 200; 737 N.W.2d 797 (2007) (stating that a Ginther hearing is not required if the defendant does not set forth additional facts requiring further development of the record to determine if defense counsel was ineffective).
As a final matter, we note that the trial court's judgment of sentence erroneously omits the sentence given for the CSC-III count for which defendant received 2 to 15 years' imprisonment. Therefore, we remand solely for the ministerial task of amending the judgment of sentence to correctly reflect defendant's sentence for that conviction. See MCR 6.435(A).
Defendant's convictions are affirmed and the case is remanded for the ministerial task of correcting the judgment of sentence. We do not retain jurisdiction.