Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  February 3, 2017                                                                 Stephen J. Markman,
                                                                                              Chief Justice

                                                                                    Robert P. Young, Jr.
                                                                                         Brian K. Zahra
  154220 & (107)                                                                 Bridget M. McCormack
                                                                                       David F. Viviano
                                                                                   Richard H. Bernstein
                                                                                         Joan L. Larsen,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                 Justices
            Plaintiff-Appellant/Cross-Appellee,
  v                                                      SC: 154220
                                                         COA: 313786
                                                         Ingham CC: 12-000206-FC
  BARRY DAVIS SHAW,
           Defendant-Appellee/Cross-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the June 14, 2016
  judgment of the Court of Appeals and the application for leave to appeal as
  cross-appellant are considered, and they are DENIED, because we are not persuaded that
  the questions presented should be reviewed by this Court.

           ZAHRA, J. (dissenting).

          I would grant leave or, at the least, order oral argument on whether to grant the
  application or take other action. 1 In this case, the prosecution presented evidence that
  defendant frequently engaged in acts of sexual abuse with his stepdaughter when she was
  between 9 and 16 years of age. In August 2011, when she was 23 years old, she reported
  this lengthy period of abuse to the Lansing Police Department. At the conclusion of a
  jury trial in September 2012, defendant was convicted of nine counts of first-degree
  criminal sexual conduct (CSC-I), MCL 750.520b, and acquitted of one count of CSC-I.
  In October 2012, he was sentenced to a prison term of 180 to 480 months (15 to 40 years)
  for one count and to concurrent terms of 225 to 480 months in prison (18¾ to 40 years)
  for the remaining counts.

         In April 2013, defendant’s appellate counsel moved for a new trial. The trial court
  held a Ginther 2 hearing over a period of ten days from December 6, 2013, to February 21,
  2014. After further briefing by the parties, the court issued a detailed 40-page opinion
  denying the motion for new trial. In a June 14, 2016 published opinion, the Court of
  Appeals reversed on the ground that defendant did not receive effective assistance of
  counsel at trial. 3 Judge KATHLEEN JANSEN dissented. 4 The Court of Appeals majority
  1
      MCR 7.305(H)(1).
  2
      People v Ginther, 390 Mich 436 (1973).
  3
      People v Shaw, 315 Mich App ___ (2016).
  4
      Id. at ___ (JANSEN, J., dissenting).
                                                                                            2

concluded that defense counsel was ineffective for failing to object to hearsay testimony
and for failing to present other evidence explaining the source of the victim’s injuries. 5

       I have grave concerns that the Court of Appeals impermissibly substituted its
judgment for that of the trial judge, who made specific findings rejecting each of
defendant’s claims of error in a thorough and well-reasoned opinion issued after a
lengthy and comprehensive Ginther hearing. 6 If the application for leave to appeal raised
only this issue, a denial might be in order. Typically, this Court refrains from engaging
in error correction. But of great jurisprudential significance is the question whether the
Court of Appeals properly interpreted the rape-shield statute when it concluded that trial
counsel was ineffective for failing to admit evidence of the victim’s adult sexual activity.

       In the Ginther hearing it was disclosed that defense counsel “did not ask questions
about the complainant’s [consensual adult] sexual activity with [her boyfriend] because

5
    Id. at ___ (opinion of the Court); slip op at 10.
6
  Although the legal framework for reviewing claims of ineffective assistance of counsel
is well established in this state, this Court has previously found it necessary to remind the
Court of Appeals of its limited role, emphasizing that
         [i]n the real world, defending criminal cases is not for the faint of heart.
         Lawyers must fulfill ethical obligations to the court, zealously advocate the
         client’s best interests (which includes establishing that they, and not the
         client, are in charge of making the professional decisions), and protect
         themselves against grievances and claims of malpractice. Lawyers will
         inevitably make errors in the process, but, because both cases and attorneys
         come in an infinite variety of configurations, those errors can only rarely be
         defined “with sufficient precision to inform defense attorneys correctly just
         what conduct to avoid.” [Strickland v Washington, 466 US 668, 693
         (1984).] Thus, the Sixth Amendment guarantees a range of reasonably
         competent advice and a reliable result. It does not guarantee infallible
         counsel. [People v LeBlanc, 465 Mich 575, 592 (2002), quoting People v
         Mitchell, 454 Mich 145, 170-171 (1997) (emphasis added).]
A reviewing court must be cognizant that “[i]t is all too tempting for a defendant to
second-guess counsel’s assistance after conviction . . . , and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.” Strickland, 466 US at 689.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. (emphasis
added). In my view, the Court of Appeals majority ignored the above principles. As
observed by Judge JANSEN in her dissent, no deference was given to the evidentiary
conclusions reached by the learned trial judge, and instead the majority impermissibly
substituted its judgment for that of the trial court.
                                                                                           3

[counsel] believed it to be barred by the rape-shield law.” 7 “The trial court agreed, ruling
that defense counsel’s failure to present this testimony was not of consequence because it
would have been barred by the rape shield law.” 8 But the Court of Appeals opined that
“[b]oth counsel and the [trial] court were mistaken.” 9 Relying on People v Mikula 10and
People v Haley, 11 two nonprecedential cases, 12 the Court of Appeals concluded that
“evidence of an alternative explanation for the hymenal changes and source for the
chronic anal fissure would have been admissible under the exception to the rape-shield
statute, and defense counsel’s failure to ask the boyfriend about these issues fell below an
objective standard of reasonableness.” 13

       Not only did the Court of Appeals fail to accord the proper deference due to
defense counsel and the trial court on this sophisticated question of evidentiary law, it
also erroneously read into the rape-shield statute an exception that is not supported by the
language of the act. MCL 750.520j provides:

                (1) Evidence of specific instances of the victim’s sexual conduct,
         opinion evidence of the victim’s sexual conduct, and reputation evidence of
         the victim’s sexual conduct shall not be admitted under sections 520b to
         520g unless and only to the extent that the judge finds that the following
         proposed evidence is material to a fact at issue in the case and that its
         inflammatory or prejudicial nature does not outweigh its probative value:

                                              * * *

                (b) Evidence of specific instances of sexual activity showing the
         source or origin of semen, pregnancy, or disease.




7
    Shaw, 315 Mich App at ___ (opinion of the Court); slip op at 6.
8
    Id. at ___; slip op at 6.
9
    Id. at ___; slip op at 6.
10
     People v Mikula, 84 Mich App 108, 115 (1978).
11
     People v Haley, 153 Mich App 400, 405-406 (1986).
12
     MCR 7.215(J)(1).
13
     Shaw, 315 Mich App at ___ (opinion of the Court); slip op at 6.
                                                                                                               4


       The Court of Appeals in a published and now binding opinion took the “source of
disease” exception and expanded it to include a “source of injury” exception. The plain
language of MCL 750.520j(1)(b) excepts only evidence pertaining to “source or origin of
semen, pregnancy, or disease.” “Source of injury” does not fall within any of these
explicit exceptions.

        Accordingly, I conclude that the instant case presents a jurisprudentially
significant issue that ought to be given greater consideration by this Court. I would grant
leave or, at the least, order oral argument on whether to grant the application or take other
action.

       YOUNG, J., joins the statement of ZAHRA, J.




                         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.
                         February 3, 2017
       s0131
                                                                             Clerk
