            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 27, 2019
               Plaintiff-Appellee,

v                                                                  No. 338351
                                                                   Macomb Circuit Court
LARRY JAMES BAILEY,                                                LC No. 2016-002492-FH

               Defendant-Appellant.


                                       AFTER REMAND

Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

        Defendant appealed his conviction after a jury trial of assault with intent to commit
criminal sexual conduct involving penetration, MCL 750.520g(1), and second-degree criminal
sexual conduct, MCL 750.520c(2)(b), with respect to a minor. While retaining jurisdiction, we
remanded this case for an evidentiary hearing regarding defense counsel’s decision to introduce a
transcript of the complainant’s forensic interview into evidence given that the transcript plainly
constituted inadmissible hearsay.1 On remand, the trial court conducted the hearing and
concluded that defendant was not denied his constitutional right to effective assistance of
counsel. We affirm. 2

        “To establish a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the



1
 People v Bailey, unpublished per curiam opinion of the Court of Appeals, issued March 7, 2019
(Docket No. 338351).
2
  Whether defense counsel performed ineffectively is a mixed question of fact and law. People v
Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). We review the trial court’s factual
findings for clear error and review questions of constitutional law de novo. Id.



                                               -1-
defense.” People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003). A defense
counsel’s performance is deficient if “it fell below an objective standard of reasonableness under
prevailing professional norms.” Id. To show prejudice, “the defendant must show the existence
of a reasonable probability that, but for counsel’s error, the result of the proceeding would have
been different.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

        At the hearing, defense counsel testified that his strategy was to undermine the
complainant’s testimony by showing deficiencies in the forensic interview. Specifically, the
interview was not video recorded but instead transcribed by staff members who were not
licensed stenographers. Moreover, the questions and answers were written down by two
different individuals and there are points in the transcripts where it is not clear what question
goes with what answer. Counsel also noted that there were several times when the complainant’s
response was recorded as “not audible.” Counsel asserted that these deficiencies showed that
CARE House and the prosecutor were merely “rubber stamping” the charges against defendant.
The trial court found that defendant’s claim failed on both counts, i.e., counsel provided effective
assistance of counsel and that there was not a reasonable probability that defendant was
prejudiced by counsel’s performance, noting that the complainant’s testimony was “more than
credible.”

        Counsel had few options in terms of strategy given the strength of the prosecution’s
proofs. However, given that the content of the transcript was highly inculpatory, whether
defense counsel’s claimed strategy was an objectively reasonable strategy is a close question.
See People v Ackley, 497 Mich 381, 388-389; 870 NW2d 858 (2015). In the interview, the
complainant recounted two specific instances of abuse consistent with her testimony at trial and
named defendant as her abuser. Moreover, counsel’s questions and arguments regarding the
recording of the interview could have been made without introduction of the transcript into
evidence. Finally, contrary to counsel’s testimony, the transcript is not particularly difficult to
follow, nor does it contain indications that the complainant’s answers were the result of coaching
or improper leading questions. Although there were a few instances where the complainant’s
response was recorded as inaudible, concluding that these answers were potentially exculpatory
was little more than speculation.

        However, we need not definitively decide whether counsel’s performance was
objectively unreasonable because we agree with the trial court that defendant has not shown
outcome-determinative prejudice. We note that in People v Douglas, 496 Mich 557, 580-581;
852 NW2d 587 (2014), the Supreme Court cautioned against viewing corroborating hearsay
evidence in a “pure credibility contest” as harmless. However, this case differs from Douglas in
certain respects.3 First, in Douglas the jury was shown a video recording of the forensic



3
  To be clear, we distinguish Douglas only as to the extent of the prejudice involved. Douglas,
496 Mich at 575, makes clear that a child’s statements during a forensic interview, whether
recounted by the interviewer or recorded by video, are inadmissible when the child had
previously disclosed the allegations. See also People v Shaw, 315 Mich App 668, 672-677; 892
NW2d 15 (2016).



                                                -2-
interview with the complainant, id. at 563, not merely given a transcript to review if they chose.
Second, unlike Douglas, the interview in this case provided no additional information or details
beyond that provided by the complainant in her testimony. See id. at 571, 581. Third, in this
case there was corroborating testimony other than the transcript. The complainant’s
grandmother testified to the initial disclosure under MRE 803A, and the examining nurse
testified to the complainant’s statements of abuse, presumably under MRE 803(4).4 Finally, we
defer to the trial court’s finding that the complainant presented credible testimony. For those
reasons, defendant has not carried his burden of showing a reasonable probability that, but for
the alleged error, the outcome at trial would have been different.

       Affirmed.



                                                            /s/ Jonathan Tukel
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Michael F. Gadola




4
  MRE 803(4) provides that statements made for purposes of medical treatment are not excluded
by the rule against hearsay. Defendant did not challenge the nurse examiner’s testimony either
before the trial court or on appeal. We also note that the forensic interviewer testified that the
complainant’s statements during the interview were “consistent with the allegations” and that the
complainant specifically named defendant as her abuser. This was inadmissible hearsay, but on
appeal defendant has not asserted that counsel’s failure to object to that testimony constituted
ineffective assistance of counsel.



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