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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

In <a href="http://links.govdelivery.com/track?type=click&amp;enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTYwNjE1LjYwMzA2NDQxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE2MDYxNS42MDMwNjQ0MSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MzE0OTIxJmVtYWlsaWQ9amJ5cm5lQHduai5jb20mdXNlcmlkPWpieXJuZUB3bmouY29tJmZsPSZleHRyYT1NdWx0aXZhcmlhdGVJZD0mJiY=&amp;&amp;&amp;102&amp;&amp;&amp;http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160614_C313786_100_313786.OPN.PDF" target="_blank" rel="noreferrer noopener">People v. Shaw, No. 313786</a>, the Court of Appeals held that trial counsel was ineffective for failing to object to inadmissible hearsay which tended to bolster the victim’s credibility, and failing to present evidence of an alternative source of the victim’s injuries, where there was no reasonable strategic reason for either decision. The court reasoned that the failure to object to hearsay in this case was especially significant because it bolstered the victim’s credibility in a case with a lack of conclusive physical evidence. Further, trial counsel’s failure to investigate and offer testimony of an alternative source of the victim’s injuries may have led the jury to conclude that there was no other cause, other than defendant’s abuse, that could have led to the victim’s injuries. The Court of Appeals also decided that the trial court abused its discretion by admitting, over objection, improper impeachment testimony.  The Court of Appeals concluded that but for counsel’s deficient performance, a different result would have been reasonably probable. Accordingly, the jury’s conviction was reversed and the case was remanded for a new trial.

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Defendant was found guilty after a jury trial of nine counts of criminal sexual conduct 1st degree for sexually abusing his stepdaughter. After his conviction, Defendant filed a motion for a new trial arguing that his trial court counsel had been ineffective.  Defendant asserted that his counsel was ineffective when he failed to object to inadmissible hearsay testimony offered by five different witnesses, allegedly recounting statements the victim had made to each witness describing defendant’s prior abuse.  Three of the five witnesses were relatives of the complainant testifying that the complainant had told them the defendant molested her. The defense counsel should have objected to these testimonies because no exception to the hearsay rule applied.

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The fourth hearsay testimony was the primary investigating officer’s recount of statement made to her regarding the alleged abuse by the complainant. The fifth hearsay testimony was that of the Doctor recounting in detail the complainant’s statements to him about the abuse. The Court of appeals ruled that this testimony was inadmissible because MRE 803(4) did not apply under the circumstances. MRE 803(4), which exempts statements made for the purpose of medical treatment, did not apply here because the statement was not necessary for diagnosis and treatment. The Court of Appeals concluded that the admission of the inadmissible hearsay was so extensive and so significant that, but for trial counsel’s errors, there is a reasonable probability that the outcome of the trial would have been different.

The Court of Appeals also decided that the trial court abused its discretion by admitting, over objection, improper impeachment testimony. The defendant argued that the trial court’s admission of this hearsay testimony violated MRE 404(b) and MRE 403. Based on the Court’s concern for the cumulative effect of these errors, the Court of Appeals reversed and remanded the case for new trial.

Judge Gleicher <a href="http://links.govdelivery.com/track?type=click&amp;enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTYwNjE1LjYwMzA2NDQxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE2MDYxNS42MDMwNjQ0MSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MzE0OTIxJmVtYWlsaWQ9amJ5cm5lQHduai5jb20mdXNlcmlkPWpieXJuZUB3bmouY29tJmZsPSZleHRyYT1NdWx0aXZhcmlhdGVJZD0mJiY=&amp;&amp;&amp;103&amp;&amp;&amp;http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160614_C313786_101_313786C.OPN.PDF" target="_blank" rel="noreferrer noopener">concurred</a> but wrote separate to express that the prosecution’s expert witness was not qualified under MRE 702 to render an opinion on the cause of the complainant injuries. Judge Jansen <a href="http://links.govdelivery.com/track?type=click&amp;enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTYwNjE1LjYwMzA2NDQxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE2MDYxNS42MDMwNjQ0MSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MzE0OTIxJmVtYWlsaWQ9amJ5cm5lQHduai5jb20mdXNlcmlkPWpieXJuZUB3bmouY29tJmZsPSZleHRyYT1NdWx0aXZhcmlhdGVJZD0mJiY=&amp;&amp;&amp;104&amp;&amp;&amp;http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160614_C313786_102_313786D.OPN.PDF" target="_blank" rel="noreferrer noopener">dissented</a> arguing that while the problematic statements constituted hearsay, failure to object constituted a reasonable trial strategy because the defense counsel planned to use them later in trial to reveal inconsistencies and impeach the victim. Furthermore, Judge Jansen argues that the admission of the improper hearsay was harmless.

Partner

Madelaine C. Lane

Labor and Employment

Trial counsel ineffective for failure to object to inadmissible hearsay testimony and failure to present evidence of other possible sources of victim’s injuries

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Trial counsel ineffective for failure to object to inadmissible hearsay testimony and failure to present evidence of other possible sources of victim’s injuries

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