                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 17, 2018
                Plaintiff-Appellee,

v                                                                  No. 335731
                                                                   Oakland Circuit Court
JASON MICHAEL MILES,                                               LC No. 2016-258387-FC

                Defendant-Appellant.


Before: SWARTZLE, P.J., and SHAPIRO and BOONSTRA, JJ.


SHAPIRO, J. (dissenting).

        I respectfully dissent because we cannot properly rule on defendant’s claim of ineffective
assistance of counsel without a Ginther1 hearing. I would remand for such a hearing and retain
jurisdiction so that we can rule on defendant’s appeal based upon an adequate record.

         This was an unusual case. Defendant was charged with multiple counts of criminal
sexual conduct based on alleged sexual abuse of the complainant while she was between six to
nine years old, when defendant was married to her mother. The complainant, age 16 at the time
of trial, testified that during those years, defendant touched her private parts every morning and
every evening in the house in which they resided, i.e. nearly every day for those three years.

         Complainant testified that the first time she reported this abuse was six years after it
ended, when she was in junior high school. She explained that she went to see a therapist, Karen
Schulte, for treatment and in response to Schulte’s inquiry, she revealed that defendant had
sexually abused her. This revelation triggered the report to the police and defendant’s arrest.
Complainant testified that she had suppressed the memory of this abuse for at least six years, and
that it came back to her when she started hearing the word, “molestation” used in conversation
and looked up its meaning.




1
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


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        Complainant’s testimony was the primary, if not sole, evidence against defendant. There
was no forensic evidence nor evidence of injury. There were no other witnesses and complainant
did not tell anyone about the abuse prior to meeting with Schulte.

         Defendant asserts that his trial counsel made several fundamental errors that denied him a
fair trial. I would conclude that each of these claims of error cannot be properly reviewed
without a Ginther hearing. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).

        The first claimed error is the failure to have sought out and retained an expert on the
nature of memory formation and recovery. Given that the case against defendant rested largely
on what is termed “recovered memory,” an expert on the reliability of that phenomenon would
have been highly relevant and potentially of substantial weight. See People v Blevins, 314 Mich
App 339, 363-384; 886 NW2d 456 (2016) (SHAPIRO, J, dissenting) (discussion of the state of the
forensic literature regarding memory). The prosecution argues that defense counsel did seek out
such an expert but that the expert was not supportive. Defendant argues that defense counsel’s
contact with this expert concerned only the manner in which the forensic interview of the
complainant was conducted, and that the question of memory formation and retrieval was not
discussed. Without an evidentiary hearing, it is impossible to know what the expert was actually
contacted about and what occurred thereafter. To demonstrate prejudice, plaintiff has submitted
an affidavit from Dr. Katherine Jacobs, a forensic psychologist with expertise in memory. The
affidavit appears comprehensive and credible and in it, Dr. Jacobs indicates that she was willing
and available to testify.

        Defendant also asserts that his trial counsel was ineffective because counsel played to the
jury, an unedited recording of a police interview in which he twice asked to see an attorney and
then called a halt to the interview. The prosecution argues that defense counsel’s decision to
show the videotape was a reasonable attempt to rebut police testimony about the defendant’s
demeanor during the interview. However, the challenge to trial counsel’s action is not based on
his decision to show the video; rather, the challenged action is counsel’s failure to request that
the video be edited so that the jury would not hear his request for counsel or demand that the
interview end. The reasons for counsel’s decision are not apparent on the record. Moreover, the
failure to redact the challenged excerpts may have substantially affected the jury’s decision,
particularly in light of the prosecution’s reliance on this testimony during closing arguments.
The prosecutor argued:

               If you’re in an interview room with a detective investigating sexual-assault
       charges, are you going to act the way he did? No, Ladies and Gentlemen, you’re
       not. You’re going to say, No, it didn’t happen. You’re going to try to get facts.
       The first thing he did was say I don’t—I think I need an attorney; I think I need an
       attorney. And he ended the interview.

The prosecutor again emphasized defendant’s request for an attorney at other points during
closing argument. He told the jury: “Twice. Twice he said [that he wanted to] talk to an
attorney, Ladies and Gentlemen. And the interview was ended because of him.” The prosecutor
also stated: “He didn’t say anything an innocent person would say when confronted with these
allegations during that interview. And I suggest, again, that you watch [the video] again.” While
the failure to seek the redaction of defendant’s request for counsel and ending of the interview

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appears on its face to have been ineffective, a final determination can only be made after hearing
the relevant testimony at a Ginther hearing.

         Defendant’s third basis for his ineffectiveness claim is that counsel did not file a
Stanaway2 motion to request an in-camera inspection of complainant’s therapy. Defense
counsel’s failure to request a Stanaway review is difficult to understand in the context of this
case. MCR 6.201(C)(1) provides in relevant part that “there is no right to discover information
or evidence that is protected from disclosure by constitution, statute, or privilege[.]” However,
“[i]f a defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a
reasonable probability that records protected by privilege are likely to contain material
information necessary to the defense, the trial court shall conduct an in camera inspection of the
records.” MCR 6.201(C)(2). In the instant case, defendant asserts that despite repeated requests
to trial counsel to seek review of the complainant’s therapy records, counsel failed to do so.
There was testimony that the complainant had seen two therapists before she disclosed the sexual
abuse to Schulte. Because a Ginther hearing was not conducted, we are unable to ascertain
counsel’s reason for failing to request the record and whether such a request was likely to have
affected the outcome of the trial.

       Each of these claims of errors by trial counsel justifies a remand for a Ginther hearing.
At a minimum, we must remand because “the cumulative effect of counsel’s errors may warrant
reversal where individual errors would not.” People v Unger, 278 Mich App 210, 258; 749
NW2d 272 (2008) (quotation marks and citation omitted).

         Accordingly, I respectfully dissent.



                                                            /s/ Douglas B. Shapiro




2
    People v Stanaway, 446 Mich 643; 521 NW2d 557 (1994).


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