Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  June 1, 2018                                                                       Stephen J. Markman,
                                                                                                Chief Justice

  156668 & (92)                                                                            Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                        Kurtis T. Wilder
            Plaintiff-Appellant,                                                    Elizabeth T. Clement,
                                                                                                     Justices
  v                                                       SC: 156668
                                                          COA: 328157
                                                          Kalamazoo CC: 2014-000448-FC
  MICHAEL DWAYNE CARVER,
             Defendant-Appellee.
  _________________________________________/

         On order of the Court, the application for leave to appeal the August 29, 2017
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court. The motion for
  decision on Standard 4 brief is DENIED as moot.

           WILDER, J. (dissenting).

          I dissent from the order denying leave to appeal. Rather, I would reverse the
  judgment of the Court of Appeals, and reinstate defendant’s conviction and sentence of
  first-degree criminal sexual conduct, MCL 750.520b(1)(a) and (2)(b). The lower courts
  erred in concluding that trial counsel rendered ineffective assistance of counsel.
  Defendant failed to establish his burden that trial counsel’s performance fell below an
  objective standard of reasonableness, and that there was a reasonable probability that,
  absent the alleged error, the result of the proceeding would have been different. See
  People v Vaughn, 491 Mich 642, 669 (2012).

         As to the issue of trial counsel’s performance, the Court of Appeals majority found
  that, had trial counsel consulted with an expert on child suggestibility, “it is virtually
  certain” that such an expert could have provided him with the tools he needed to rebut
  testimony by an expert or an investigator suggesting that it is a rare case in which a child
  makes a false report. Further, the Court of Appeals found that had trial counsel consulted
  with an expert, he would have educated himself on the issues at play and would have
  been in a better position to evaluate the evidence and determine whether the sexual
  assault occurred or occurred in the manner described by the victim.


          In my view, both lower courts overlooked the crucial facts as testified to at the
  Ginther 1 hearing, and compounded the error by analogizing this case to the factually
  distinguishable cases of People v Ackley, 497 Mich 381 (2015), and People v
  Trakhtenberg, 493 Mich 38 (2012). “Strickland [v Washington, 466 US 668 (1984)]
  itself rejected the notion that the same investigation will be required in every case.”

  1
      People v Ginther, 390 Mich 436 (1973).
                                                                                           2

Cullen v Pinholster, 563 US 170, 195 (2011). In fact, “[i]t is ‘[r]are’ that constitutionally
competent representation will require ‘any one technique or approach.’ ” Id. (citation
omitted; second alteration in original). “Under Strickland, strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Hinton v Alabama, 571 US 263, ___; 134 S Ct at 1088
(2014) (quotation marks and citation omitted).

        Here, trial counsel testified that he met with his superiors at length about the
upcoming trial and sought their advice on whether to utilize an expert. Counsel reviewed
at least one study and weighed the advantages and disadvantages of putting an expert on
the stand. It was only after he conducted an investigation and sought counsel from his
superiors that trial counsel made the informed decision not to consult with and call an
expert on child suggestibility. This is precisely the type of case that is virtually
unchallengeable under Strickland. See id. In my opinion, the lower courts ignored well-
rooted Strickland principles, and improperly reviewed the case with the benefit of
hindsight. See People v Unger, 278 Mich App 210, 242-243 (2008) (“We will not
substitute our judgment for that of counsel on matters of trial strategy, nor will we use the
benefit of hindsight when assessing counsel’s competence.”).

       As to the issue of prejudice, I largely agree with the dissent and merely write to
make an additional point. I think it is important to remind attorneys and the lower courts
that “[a] reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 US at 694. “That requires a ‘substantial,’ not just
‘conceivable,’ likelihood of a different result.” Cullen, 563 US at 189 (citation omitted).

       Here, the Court of Appeals majority found that an expert “could have” explained
how a child of the victim’s age is susceptible to suggestion, and that trial counsel “could
have plausibly argued” the victim made a false report even though the victim may have
honestly believed her recollection was true. In my opinion, the majority was merely
conjecturing on what might have happened had trial counsel employed the strategy that it
found best suited, and not whether, in the face of the whole record, a substantial
likelihood of a different result existed.
                                                                                                               3


      Accordingly, I would conclude that defendant failed to establish his burden in
demonstrating trial counsel rendered ineffective assistance of counsel entitling him to a
new trial, reverse the judgment of the Court of Appeals, and reinstate defendant’s
conviction and sentence.

      ZAHRA, J., joins the statement of WILDER, 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.
                         June 1, 2018
       d0529
                                                                             Clerk
