            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 23, 2019
               Plaintiff-Appellee,

v                                                                   No. 337735
                                                                    Oakland Circuit Court
KEVIN THOMAS McCOLLUM,                                              LC No. 2016-259142-FC

               Defendant-Appellant.


Before: SHAPIRO, P.J., and BECKERING and M. J. KELLY, JJ.

SHAPIRO, J. (dissenting).

        The majority concludes that defense counsel’s failure to object to multiple hearsay
repetitions of the complainant’s testimony constitutes ineffective assistance of counsel. I agree.
However, I cannot agree with the majority’s conclusion that “there is no ‘reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.’ ” Majority
opinion, p 8, quoting Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674
(1984).

        The jury heard five different witnesses recount complainant’s statements to them
regarding the alleged abuse: complainant’s mother, complainant’s friend, two school counselors
and the school principal. The testimony of each was hearsay and there were no applicable
exceptions.1 Moreover, defense counsel stipulated to admission of the video recording of the
forensic interview in which complainant recounted the alleged events in detail in response to
questioning. Thus, rather than hearing the complainant’s description of the events once—and
subject to cross examination—the jury heard it repeatedly and from sources that provide an
imprimatur of accuracy. We considered a similar circumstance in People v Shaw, 315 Mich App
668, 892 NW2d 15 (2016), and held that counsel’s error required a new trial even though in that
case there was supporting physical evidence, evidence which is lacking here. We reasoned:


1
 Because complainant was not under ten years old when she made her initial statement accusing
defendant of molesting her, the tender years exception set forth in MRE 803A is inapplicable.



                                                -1-
               Given the time that had passed since the alleged abuse stopped, the lack of
       any witnesses to the charged crimes, and the lack of any significant circumstantial
       proofs, this case turned largely on the complainant’s credibility. Because defense
       counsel did not object to the hearsay statements, the jury heard the complainant’s
       version of events more than five times. And in the case of [the examining
       physician and the reporting officer], the hearsay was offered with what amounted
       to an official stamp of approval. . . .

                                              * * *

              Given the frequency, extent, and force of the hearsay testimony, we
       conclude that, had defense counsel objected to its admission, there is a reasonable
       probability that the outcome of this case would have been different. [Id. at 677-
       678.]

       This case is also comparable to People v Douglas, 496 Mich 557; 852 NW2d 587 (2014),
where the Supreme Court reversed the defendant’s conviction in a child sex abuse case on the
grounds of evidentiary error and ineffective assistance of counsel. As here, the challenged
evidence was the forensic interview of the complainant which was played for the jury and the
testimony of several individuals recounting statements made to them by the complainant.
Douglas quoted the following from People v Gursky, 486 Mich 596, 620-621; 786 NW2d 579
(2010), on which the majority relies:

       In a trial where the evidence essentially presents a one-on-one credibility contest
       between the victim and the defendant, hearsay evidence may tip the scales against
       the defendant, which means that the error is more harmful. This may be even
       more likely when the hearsay statement was made by a young child, as opposed to
       an older child or adult.

Despite that applicable guidance, the majority concludes that because the complainant testified,
the prejudicial effect is diminished since the other witnesses are only corroborating her
testimony. However, the unanimous Douglas Court was less impressed with that argument. It
noted that “such cumulative hearsay testimony is more likely to be harmless where, unlike here,
there is other evidence to corroborate the allegations beyond the declarant’s statements;
meanwhile, the likelihood of harm may only increase where, as here, the declarant was a young
child and the case was a pure credibility contest.” Id. at 581. Douglas went on to note the
particular prejudicial impact of the complainant’s forensic interview that was played for the jury:
“The video recording of the forensic interview provided further reinforcement still, as the jury
was able to watch [the complainant] herself testify again, this time at greater length, with the
assistance of [the forensic interviewer’s] expert questioning, and not subject to cross-
examination, of course.” Id. at 581-582.

       In this case, the forensic interview—which was 90 minutes long—as well as the other
hearsay weighed heavily in favor of a finding of guilt. Given that a substantial portion of the
prosecution’s proofs constituted hearsay pertaining to the ultimate issue, I would conclude that
defendant has demonstrated a reasonable probability that, but for counsel’s error, the result of the



                                                -2-
proceedings would have been different. See Smith v Spisak, 558 US 139, 149; 130 S Ct 676; 175
L Ed 2d 595 (2010); People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).



                                                         /s/ Douglas B. Shapiro




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