Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  April 4, 2018                                                                     Stephen J. Markman,
                                                                                               Chief Justice

                                                                                          Brian K. Zahra
                                                                                  Bridget M. McCormack
  153697                                                                                David F. Viviano
                                                                                    Richard H. Bernstein
                                                                                         Kurtis T. Wilder
                                                                                   Elizabeth T. Clement,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                  Justices
            Plaintiff-Appellee,
  v                                                      SC: 153697
                                                         COA: 324963
                                                         Van Buren CC: 14-019392-FC
  JOSE L. GARCIA-MANDUJANO,
             Defendant-Appellant.

  _________________________________________/

         On March 6, 2018, the Court heard oral argument on the application for leave to
  appeal the March 15, 2016 judgment of the Court of Appeals. On order of the Court, the
  application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal,
  we REVERSE the judgment of the Court of Appeals holding that trial counsel provided
  constitutionally effective representation, we VACATE the defendant’s convictions and
  sentences, and we REMAND this case to the Van Buren Circuit Court for a new trial. To
  establish that trial counsel was ineffective, defendant must first establish that counsel’s
  performance was deficient. Strickland v Washington, 466 US 668, 687 (1984). This
  requires a showing that counsel made errors so serious that he was not functioning as the
  “counsel” guaranteed by the Sixth Amendment because his performance fell below an
  objective standard of reasonableness under prevailing professional norms. Id.; People v
  LeBlanc, 465 Mich 575, 578 (2002); People v Effinger, 212 Mich App 67, 69 (1995).
  Once defendant has established that counsel’s performance was deficient, he must
  establish that the deficient performance prejudiced the defense. Strickland, 466 US at
  687; LeBlanc, 465 Mich at 578. To do this, he must show that “there is a reasonable
  probability that, but for counsel’s unprofessional errors, the result of the proceeding
  would have been different.” Strickland, 466 US at 694. “A reasonable probability is a
  probability sufficient to undermine confidence in the outcome.” Id. This requires a
  showing that counsel’s errors were so serious that they deprived defendant of a fair trial
  with a reliable result. Id.

        Here, defense counsel was provided in pretrial discovery a medical report prepared
  by a physician assistant who examined the complainant and who was listed on the
                                                                                                                2

prosecution’s witness list. The report, while repeating the claims of the complainant, was
generally favorable to the defense in that it did not document any tearing, bruising,
bleeding, lacerations, DNA evidence, or evidence of any sexually transmitted disease
found on the complainant. Defense counsel did not attempt to interview this critical
witness before trial and did not reasonably prepare to cross-examine the trial testimony of
the physician assistant by relying on the report to ask targeted questions to elicit the
exculpatory evidence. Rather, defense counsel asked the witness during cross-
examination the open-ended question whether there was “no medical evidence” to
support the complainant’s claim of assault. The witness responded that an adult
speculum had easily been used to examine the 12-year-old complainant. Defense counsel
testified at the Ginther hearing1 that he thought he had elicited evidence from the witness
that she had not mentioned the speculum in her report. But review of the record finds no
such impeachment. Further, instead of using the report to impeach the witness on the
failure to document the adult speculum in the report, defense counsel aggravated this
inadequacy when, in his own words, he “tried to be the expert” on female anatomy.2
That was not a reasonable trial strategy. Here, “[a]ny attorney acting reasonably” would
have elicited the favorable exculpatory evidence from the report and then, if necessary,
used the report to impeach the witness by presenting to the jury her failure to mention the
speculum in her report documenting the complainant’s examination. People v
Armstrong, 490 Mich 281, 290 (2011). This is particularly true when, as here, attacking
the witness’s credibility “offered the most promising defense strategy.” Id. at 291.

       Moreover, defense counsel’s conduct was not only deficient, it also prejudiced
defendant. This case was solely a credibility contest between defendant and the
complainant, and the physician assistant’s testimony that she used an adult speculum to
examine the 12-year-old complainant was the only medical evidence admitted at trial.
Because defense counsel not only allowed this testimony to stand unchecked but also
highlighted the testimony, there exists a reasonable probability of a different result.




1
    People v Ginther, 390 Mich 436 (1973).
2
 Defense counsel admitted this was “[n]ot my finest moment, as the jurors told me at the
end that I know nothing about the female anatomy . . . .”



                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          April 4, 2018
         s0328
                                                                              Clerk
