                                                                                     Michigan Supreme Court
                                                                                           Lansing, Michigan
                                                                    Chief Justice:       Justices:



Syllabus                                                            Robert P. Young, Jr. Michael F. Cavanagh
                                                                                         Marilyn Kelly
                                                                                         Stephen J. Markman
                                                                                         Diane M. Hathaway
                                                                                         Mary Beth Kelly
                                                                                         Brian K. Zahra
This syllabus constitutes no part of the opinion of the Court but has been               Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.                 John O. Juroszek


                                          PEOPLE v TRAKHTENBERG

       Docket No. 143386. Argued October 10, 2012 (Calendar No. 2). Decided December 21, 2012.

               Jacob Trakhtenberg was convicted of three counts of second-degree criminal sexual
       conduct after a bench trial in the Oakland Circuit Court, Deborah G. Tyner, J. The charges
       stemmed from allegations of sexual contact made by defendant’s then 8-year-old daughter. The
       Court of Appeals, ZAHRA, P.J., and BANDSTRA and OWENS, JJ., affirmed defendant’s convictions
       in an unpublished opinion per curiam, issued March 27, 2007 (Docket No. 268416). The
       Supreme Court denied defendant’s application for leave to appeal. 480 Mich 856 (2007).
       Defendant then moved for relief from the judgment under subchapter 6.500 of the Michigan
       Court Rules, asserting that he was entitled to a new trial because he was denied the effective
       assistance of trial and appellate counsel and, alternatively, that newly discovered evidence
       warranted a new trial. The trial court, Daniel P. O’Brien, J., denied the motion. The Court of
       Appeals denied defendant’s application for leave to appeal in an unpublished order, entered
       March 20, 2009 (Docket No. 290336). In lieu of granting leave to appeal, the Supreme Court
       retained jurisdiction and remanded the case to the Court of Appeals for consideration as on leave
       granted and ordered the Court of Appeals to remand the case to the trial court to conduct an
       evidentiary hearing in order to evaluate defendant’s claims. 485 Mich 1132 (2010). Meanwhile,
       defendant had also brought a malpractice claim against his trial counsel in the Oakland Circuit
       Court. The court, Shalina D. Kumar, J., granted summary disposition in favor of defendant’s
       trial counsel. The Court of Appeals, MURRAY, P.J., and MARKEY and BORRELLO, JJ., affirmed
       that decision. Trakhtenberg v McKelvey, unpublished opinion per curiam, issued October 27,
       2009 (Docket No. 285247). Defendant sought leave to appeal in the Supreme Court, which
       ordered that the application be held in abeyance pending resolution of the criminal case.
       Trakhtenberg v McKelvey, 780 NW2d 828 (Mich, 2010). Following the evidentiary hearing on
       remand in the criminal case, the trial court, Daniel P. O’Brien, J., ruled that defense counsel had
       been ineffective and that defendant was entitled to a new trial. The Court of Appeals,
       DONOFRIO, P.J., and CAVANAGH and STEPHENS, JJ., reversed in an unpublished opinion per
       curiam, issued May 19, 2011 (Docket No. 290336). The Court of Appeals reasoned, in part, that
       collateral estoppel precluded it from reviewing the performance of defendant’s trial counsel
       because in the malpractice case the Court of Appeals had held that defendant’s trial counsel’s
       performance fell within the “attorney judgment” rule. The Supreme Court granted defendant’s
       application for leave to appeal. 490 Mich 927 (2011).

            In an opinion by Justice CAVANAGH, joined by Justices MARILYN KELLY, MARKMAN, and
       MARY BETH KELLY, the Supreme Court held:
       Collateral estoppel may not be applied on the basis of a prior civil judgment holding that
defense counsel’s performance did not amount to malpractice in order to preclude review of a
criminal defendant’s claim of ineffective assistance of counsel.

         1. Generally, the proponent of the application of collateral estoppel must show that (1) a
question of fact essential to the judgment was actually litigated and determined by a valid and
final judgment, (2) the same parties had a full and fair opportunity to litigate the issue, and (3)
there was mutuality of estoppel. In determining whether the party opposing collateral estoppel
had a full and fair opportunity to adjudicate his or her claim, a court must take into consideration
the choice of forum and the incentive to litigate. Cross-over estoppel occurs when the
application of collateral estoppel crosses over the line between civil and criminal proceedings.
Although some cases have suggested that collateral estoppel may be applied when an issue
adjudicated in a prior civil proceeding is claimed to be precluded in a subsequent criminal
proceeding, those cases were distinguishable because, in this case, it was the prosecution and not
defendant that sought to apply the doctrine. In this case, the Court of Appeals erred by applying
collateral estoppel because defendant did not have a full and fair opportunity to litigate his claim
in the malpractice proceeding. Defendant’s interests when pursuing the malpractice claim
differed from his interests in asserting his constitutional right to the effective assistance of
counsel. In the civil case, defendant sought monetary gain, and in the criminal case he sought
protection of his liberty. Because he had a different and, most likely, stronger incentive to
litigate counsel’s errors in the criminal proceeding, the prior malpractice case did not afford
defendant a full and fair opportunity to litigate his claim of ineffective assistance of counsel.

        2. Both the Michigan and United States Constitutions require that a criminal defendant
enjoy the assistance of counsel for his or her defense. In order to obtain a new trial, a defendant
must show that (1) counsel’s performance fell below an objective standard of reasonableness and
(2) but for counsel’s deficient performance, there is a reasonable probability that the outcome
would have been different. In examining whether defense counsel’s performance fell below an
objective standard of reasonableness, a defendant must overcome the strong presumption that
counsel’s performance was born from a sound trial strategy. But a court cannot insulate review
of counsel’s performance by calling it trial strategy. The court must determine whether defense
counsel made the strategic choices after less than complete investigation, and any choice is
reasonable precisely to the extent that reasonable professional judgments support the limitations
on investigation. In this case, defense counsel failed to exercise reasonable professional
judgment when deciding to forgo particular investigations relevant to the defense, including her
failure to identify the factual predicate of each of the five charged counts of criminal sexual
conduct, her failure to consult with key witnesses, and her failure to sufficiently develop the
defense presented at trial. Accordingly, her representation fell below an objective standard of
reasonableness. Defendant was unfairly prejudiced by counsel’s deficient performance. The key
evidence against defendant was the complainant’s testimony. Therefore, the reliability of
defendant’s convictions was undermined by defense counsel’s failure to introduce impeachment
evidence and evidence that corroborated defendant’s testimony that defense counsel was
unaware of because she decided to forgo those investigations. Had the impeachment evidence
and the evidence that corroborated defendant’s testimony been introduced, there was a
reasonable probability that the result of the trial would have been different.
       Court of Appeals’ judgment reversed; case remanded to the trial court for a new trial.

         Chief Justice YOUNG, joined by Justice ZAHRA, dissenting, agreed that collateral estoppel
did not bar review of defendant’s claims of error, but disagreed with the majority’s analysis of
that issue and disagreed with the majority’s conclusion that defendant did not receive effective
assistance of counsel. Accordingly, he would have affirmed the result reached by the Court of
Appeals. Instead of examining defendant’s interests in litigating his malpractice claim as the
majority did, Chief Justice YOUNG would have considered the elements required to apply
collateral estoppel. In this case, the first element necessary to apply collateral estoppel was not
satisfied because defendant’s claim of ineffective assistance of counsel was not actually litigated
and determined by a valid and final judgment in the malpractice action. A party asserting
malpractice must establish that, but for the negligence, the outcome of the case would have been
favorable to the plaintiff. However, a criminal defendant may be entitled to a new trial on the
basis of ineffective assistance of counsel even if the errors of counsel cannot be shown by a
preponderance of the evidence to have determined the outcome. Because a legal malpractice
action requires a higher threshold of prejudice than a claim of ineffective assistance of counsel, a
defendant can establish ineffective assistance of counsel even if he or she cannot establish legal
malpractice. Nonetheless, the result reached by the Court of Appeals should have been affirmed
because defendant failed to establish that counsel’s performance was outside the wide range of
professionally competent assistance leading to a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. The lower courts
did not err by determining that defense counsel’s trial strategy was objectively reasonable, and
the Court of Appeals correctly reversed as an abuse of discretion the trial court’s decision to
grant defendant a new trial, the sole basis for which was that counsel did not proffer a defense
focusing on the character of the complainant’s mother. Moreover, even if counsel was deficient
for failing to conduct particular investigations, adequately impeach the complainant, or introduce
potentially corroborative testimony, defendant could not satisfy the prejudice requirement for a
claim of ineffective assistance of counsel.

     Justice HATHAWAY did not participate because of a professional relationship with a
member of a law firm involved in the matter.




                                    ©2012 State of Michigan
                                                                              Michigan Supreme Court
                                                                                    Lansing, Michigan
                                                        Chief Justice:          Justices:



Opinion                                                 Robert P. Young, Jr. Michael F. Cavanagh
                                                                             Marilyn Kelly
                                                                             Stephen J. Markman
                                                                             Diane M. Hathaway
                                                                             Mary Beth Kelly
                                                                             Brian K. Zahra

                                                               FILED DECEMBER 21, 2012

                              STATE OF MICHIGAN

                                     SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

 v                                                               No. 143386

 JACOB TRAKHTENBERG,

               Defendant-Appellant.


 BEFORE THE ENTIRE BENCH (except HATHAWAY, J.)

 CAVANAGH, J.
        This case requires us to determine whether collateral estoppel may be applied to

 preclude review of a criminal defendant’s claim of ineffective assistance of counsel when

 a prior civil judgment held that defense counsel’s performance did not amount to

 malpractice. We hold that collateral estoppel may not be applied in these circumstances

 because defendant did not have a full and fair opportunity to litigate his ineffective-

 assistance-of-counsel claim, contrary to the requirements of the doctrine itself.

        Given our conclusion that collateral estoppel is inapplicable, we must also

 determine whether defendant was deprived of his right to the effective assistance of
counsel under Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674

(1984).      We hold that defense counsel’s performance was constitutionally deficient

because she failed to exercise reasonable professional judgment when she decided to

forgo any investigation of the case before settling on a defense strategy. That deficiency

prejudiced defendant by undermining the reliability of the outcome of his trial, which

rested solely on the credibility of the complainant and defendant. Accordingly, we

reverse the judgment of the Court of Appeals and remand this case to the trial court for a

new trial.

                             I. FACTS AND PROCEEDINGS

       Defendant was charged with five counts of second-degree criminal sexual conduct

(CSC-II) for allegedly touching the genitals of his eight-year-old daughter and forcing her

to touch his genitals. During the bench trial, the complainant testified that defendant

touched her three or four times (once or twice while she was in defendant’s bed at night)

and would lower her hand to his genitals. Lilya Tetarly, the complainant’s mother and

defendant’s ex-wife, testified that in 2004 the complainant developed yeast infections.

On direct examination, Tetarly denied asking defendant to treat the yeast infections with

ointment and stated that the complainant became upset when she had to go to defendant’s

home. Defense counsel did not cross-examine Tetarly. As the only defense witness,

defendant testified that he never forced the complainant to touch his genitals and that he

touched the complainant’s genitals six times to apply medication at Tetarly’s insistence

after a heated argument over whether it was appropriate for him to apply the ointment.

Defendant was convicted of three counts of CSC-II. Two counts were based on evidence

that defendant touched the complainant and one count was based on evidence that


                                            2
defendant forced her to touch his genitals. After the parties’ closing arguments, the trial

court commented that “very little’s clear to me in this case, starting with what the

allegations are that go to each count.”

       On direct appeal, defendant argued that defense counsel was ineffective for failing

to impeach Tetarly with evidence of bias pertaining to their divorce four years earlier.

Defendant argued that Tetarly had attempted to hit him with her car, which was

supported by a police report, and assaulted him while he was driving, which resulted in

Tetarly’s arrest on domestic violence charges. The Court of Appeals denied defendant’s

motion for an evidentiary hearing pursuant to People v Ginther, 390 Mich 436; 212

NW2d 922 (1973),1 and held that defense counsel was not ineffective for failing to

impeach Tetarly because the record lacked evidence to show that she was still upset over

the divorce. People v Trakhtenberg, unpublished opinion per curiam of the Court of

Appeals, issued March 27, 2007 (Docket No. 268416). Defendant applied for leave to

appeal in this Court, which was denied. People v Trakhtenberg, 480 Mich 856 (2007).

       Defendant subsequently filed a legal malpractice claim against defense counsel,

which the trial court dismissed upon defense counsel’s motion for summary disposition.

The Court of Appeals affirmed, holding that defense counsel’s performance fell within

the “attorney judgment rule.” Trakhtenberg v McKelvy, unpublished opinion per curiam



1
 The Court also denied defendant’s subsequent motion to hold the appeal in abeyance to
give defendant more time to verify additional grounds for bias—namely, that Tetarly had
previously made false allegations that defendant’s prior wife sexually abused defendant’s
son from that marriage in order for defendant to gain an advantage in the then pending
custody dispute over defendant’s son, HT.



                                            3
of the Court of Appeals, issued October 27, 2009 (Docket No. 285247).2 See, also,

Simko v Blake, 448 Mich 648; 532 NW2d 842 (1995). Meanwhile, in his criminal case,

defendant filed a motion for relief from judgment under MCR 6.508(D)(3), claiming that

he was entitled to a new trial because he was denied the effective assistance of trial and

appellate counsel and, alternatively, that newly discovered evidence warranted a new

trial. The trial court denied the motion under MCR 6.508(D)(3)(b), and the Court of

Appeals denied defendant leave to appeal. People v Trakhtenberg, unpublished order of

the Court of Appeals, entered March 20, 2009 (Docket No. 290336). In lieu of granting

leave to appeal, this Court retained jurisdiction and remanded the case to the Court of

Appeals for consideration as on leave granted, and the Court of Appeals was ordered to

remand the case to the trial court to conduct a Ginther hearing in order to evaluate

defendant’s claims. People v Trakhtenberg, 485 Mich 1132 (2010).

       During the course of the Ginther hearing, voluminous testimony was taken.

Tetarly admitted that she was dissatisfied with the divorce judgment and had made

negative comments about defendant in front of the complainant. And, for the first time,

Tetarly disclosed that before reporting the complainant’s allegations of abuse to the

authorities, she brought the complainant to a youth pastor. Tetarly stated that she then

brought the complainant to CARE House, which provides intervention and treatment

services for child victims of abuse, where Amy Allen, a CARE House employee,

performed a forensic interview, during which the complainant alleged the abuse. The

2
  Defendant sought leave to appeal in this Court. We ordered that the application be held
in abeyance pending a decision in this criminal case. Trakhtenberg v McKelvy, 780
NW2d 828 (Mich, 2010).



                                            4
responding detective’s police report states that the detective asked Tetarly to directly ask

the complainant whether defendant had ever touched her “private parts” with his fingers.

That questioning eventually led to the complainant’s second formal allegation of abuse.

       Allen, who was unaware that the complainant had spoken to others about the

abuse, testified that it is important to know whether the child has spoken to anyone else in

order to conduct a proper forensic interview because, as a result of repeated interviewing,

a child might start to mistakenly believe that something happened to him or her.

Additionally, Dr. Katherine Okla, a clinical psychologist specializing in sexual abuse,

noted her concern regarding the complainant’s knowledge of her mother’s hatred of

defendant and explained that Tetarly’s leading and suggestive questions and the repeated

questioning of the complainant (especially in a therapeutic rather than forensic setting)

could have tainted the child’s recollection of the events surrounding the alleged abuse.

Defendant testified that he had requested that defense counsel consult with numerous

witnesses including Allen and HT, who was defendant’s son.

       Defense counsel testified that her defense theory was two-fold: she would

(1) impeach the complainant’s trial testimony with an inconsistent statement regarding

the number of times defendant made her touch him and (2) show that defendant lacked

the requisite intent of sexual gratification to be convicted of CSC-II.3 Additionally, she

advised defendant to waive his preliminary examination, and she did not demand


3
 MCL 750.520a(q) defines “sexual contact,” in relevant part, as the “intentional touching
of the victim’s or actor’s intimate parts . . . if that intentional touching can reasonably be
construed as being for the purpose of sexual arousal or gratification, [or] done for a
sexual purpose . . . .”



                                              5
discovery, obtain Allen’s notes, or interview any witnesses because she felt that any

further information was irrelevant to the defense theories. Defense counsel testified that

she was unaware of the complainant’s continued therapy, her feelings toward defendant,

her testimony in the civil trial that defendant applied medication to her vagina, and her

meeting with a youth pastor.

       Following the hearing, the trial court ruled that defense counsel was ineffective

and defendant was entitled to a new trial. The Court of Appeals reversed, reasoning, in

part, that collateral estoppel precluded the Court from reviewing the performance of

defense counsel because in defendant’s legal malpractice case, the Court had held that

defense counsel’s performance fell within the “attorney judgment rule.” The Court

further held that counsel was not ineffective on the basis of the claims of error left for its

review. People v Trakhtenberg, unpublished opinion per curiam of the Court of Appeals,

issued May 19, 2011 (Docket No. 290336). Defendant sought leave to appeal in this

Court, which we granted. People v Trakhtenberg, 490 Mich 927 (2011).

                               II. STANDARD OF REVIEW

       This Court reviews de novo the application of a legal doctrine, including collateral

estoppel. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). The question

whether defense counsel performed ineffectively is a mixed question of law and fact; this

Court reviews for clear error the trial court’s findings of fact and reviews de novo

questions of constitutional law. People v Armstrong, 490 Mich 281, 289; 806 NW2d 676

(2011).




                                              6
                                      III. ANALYSIS

                             A. COLLATERAL ESTOPPEL

       Generally, the proponent of the application of collateral estoppel must show “that

(1) a question of fact essential to the judgment was actually litigated and determined by a

valid and final judgment, (2) the same parties had a full and fair opportunity to litigate the

issue, and (3) there was mutuality of estoppel.” Estes, 481 Mich at 585.4 When the

application of collateral estoppel “crosses over” the line between a criminal and a civil

proceeding, it has aptly been termed “cross-over estoppel.”5 Several Court of Appeals

opinions have held that a criminal defense attorney may rely on the doctrine of collateral

estoppel in order to avoid malpractice liability when a full and fair determination was

made in a previous criminal action that the same client had received effective assistance

of counsel. See, e.g., Barrow v Pritchard, 235 Mich App 478, 484-485; 597 NW2d 853

(1999). Yet we must hesitate to apply collateral estoppel in the reverse situation—when

the government seeks to apply collateral estoppel to preclude a criminal defendant’s

claim of ineffective assistance of counsel in light of a prior civil judgment that defense

counsel did not commit malpractice.

       The prosecution argues that this Court approved the application of collateral

estoppel in the civil-to-criminal context in People v Gates, 434 Mich 146; 452 NW2d 627

(1990).   Gates stated that “[c]ases involving ‘cross-over estoppel,’ where an issue

4
 While the dissent is critical of the majority’s analysis, we believe that our analysis is
analytically sound and well supported.
5
  See Brenner, “Crossing-over:” The issue-preclusive effects of a civil/criminal
adjudication upon a proceeding of the opposite character, 7 N Ill U L Rev 141 (1987).



                                              7
adjudicated in a civil proceeding is claimed to be precluded in a subsequent criminal

proceeding, or vice versa, are relatively recent and rare.” Id. at 155. And further, the

United States Supreme Court has stated that “the doctrine of collateral estoppel is not

made inapplicable by the fact that this is a criminal case, whereas the prior proceedings

were civil in character.” Yates v United States, 354 US 298, 335; 77 S Ct 1064; 1 L Ed

2d 1356 (1957), overruled on other grounds by Burks v United States, 437 US 1; 98 S Ct

2141; 57 L Ed 2d 1 (1978). It is unnecessary to discuss the relevant holdings of these

cases, however, because the prosecution and the Court of Appeals have ignored a

fundamental aspect of this case that distinguishes it from Gates and Yates. In this case,

defendant is not the proponent of the application of collateral estoppel; to the contrary,

the prosecution asked the Court to apply the doctrine to estop the Court’s full review of

defendant’s claim that he received ineffective assistance of counsel.6

       In the present case, we must consider the goal of the doctrine of collateral estoppel

along with the elements of the doctrine to determine whether the Court of Appeals erred

when it precluded review of many of defendant’s allegations concerning the ways in

which defense counsel erred.       The doctrine of collateral estoppel has compelling


6
  Similarly, the Court of Appeals erred when it characterized the application of collateral
estoppel as “defensive.” In determining whether defendant’s constitutional right to the
effective assistance of counsel was denied, there cannot be an “offense” and a “defense,”
as the traditional application of collateral estoppel presumes. The prosecution is not in a
position where it must somehow “defend” itself; rather, if we must fit this case into the
traditional framework of collateral estoppel, it is clear that defendant is put on the
defensive. It is true that, ultimately, defendant is challenging his conviction and asking
for a new trial, yet he does not do so by attacking the prosecution. He is merely
protecting his constitutional right to an effective attorney.



                                             8
underpinnings because it “relieve[s] parties of the cost and vexation of multiple lawsuits,

conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance

on adjudication.” Allen v McCurry, 449 US 90, 94; 101 S Ct 411; 66 L Ed 2d 308

(1980), citing Montana v United States, 440 US 147, 153-154; 99 S Ct 970; 59 L Ed 2d

210 (1979). Further, collateral estoppel “also promote[s] the comity between state and

federal courts that has been recognized as a bulwark of the federal system.” Allen, 449

US at 96, citing Younger v Harris, 401 US 37, 43-45; 91 S Ct 746; 27 L Ed 2d 669

(1971). That said, collateral estoppel “must be applied so as to strike a balance between

the need to eliminate repetitious and needless litigation[6] and the interest in affording

litigants a full and fair adjudication of the issues involved in their claims.” Storey v

Meijer, Inc, 431 Mich 368, 372; 429 NW2d 169 (1988) (emphasis added).                    In

determining whether the party opposing collateral estoppel has had a “full and fair”

opportunity to adjudicate his or her claim, a court must take into consideration the

       choice of forum and incentive to litigate . . . . [A]s so often is the case, no
       one set of facts, no one collection of words or phrases, will provide an
       automatic formula for proper rulings on estoppel pleas. In the end, decision
       will necessarily rest on the trial courts’ sense of justice and equity.
       [Blonder-Tongue Laboratories, Inc v Univ of Illinois Foundation, 402 US
       313, 333-334; 91 S Ct 1434; 28 L Ed 2d 788 (1971).]

See, also, Storey, 431 Mich at 373 (stating that “[t]he extent to which the doctrine is

applied is also dependent upon the nature of the forum in which the initial determination

was rendered”).

       We hold that the Court of Appeals erred when it applied collateral estoppel to

preclude its review of defendant’s ineffective-assistance-of-counsel claim because

defendant did not have a full and fair opportunity to litigate his claim in the malpractice


                                             9
proceeding.      Considering the nature of the forum in which defendant’s allegations

concerning counsel’s errors were initially rejected, it is clear that defendant’s interest

when pursuing his civil malpractice claim differed from his interest in asserting his

constitutional right to effective counsel in the criminal proceeding. Indeed, defendant

sought monetary gain in the malpractice case, whereas in his criminal case he seeks

protection of a constitutional right and his liberty. Accordingly, because defendant has a

different and most likely stronger incentive to litigate counsel’s errors in the criminal

proceeding, the prior civil litigation concerning counsel’s alleged claims of error did not

afford defendant a full and fair opportunity to litigate his ineffective-assistance-of-

counsel claim.

       Because we conclude that the Court of Appeals erred when it applied collateral

estoppel, which precluded a full review of defense counsel’s alleged errors, we must now

decide the merits of defendant’s ineffective-assistance-of-counsel claim on the basis of a

full review of the evidence revealed at the evidentiary hearing.

                     B. INEFFECTIVE ASSISTANCE OF COUNSEL

       Both the Michigan and the United States Constitutions require that a criminal

defendant enjoy the assistance of counsel for his or her defense. Const 1963, art 1, § 20;

US Const, Am VI. In order to obtain a new trial, a defendant must show that (1)

counsel’s performance fell below an objective standard of reasonableness and (2) but for

counsel’s deficient performance, there is a reasonable probability that the outcome would

have been different. Armstrong, 490 Mich at 290; see, also, People v Pickens, 446 Mich

298; 521 NW2d 797 (1994) (adopting the federal constitutional standard for an

ineffective-assistance-of-counsel claim as set forth in Strickland).


                                             10
                      1. DEFENSE COUNSEL’S PERFORMANCE

         In examining whether defense counsel’s performance fell below an objective

standard of reasonableness, a defendant must overcome the strong presumption that

counsel’s performance was born from a sound trial strategy. Strickland, 466 US at 689.

Yet a court cannot insulate the review of counsel’s performance by calling it trial

strategy. Initially, a court must determine whether the “strategic choices [were] made

after less than complete investigation,” and any choice is “reasonable precisely to the

extent    that   reasonable   professional   judgments    support    the   limitations   on

investigation.” Id. at 690-691. Counsel always retains the “duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary.” Id. In this case, the trial court and the Court of Appeals erred by failing to

recognize that defense counsel’s error was the failure to exercise reasonable professional

judgment when deciding not to conduct any investigation of the case in the first instance.7

Accordingly, no purported limitation on her investigation of the case can be justified as

reasonable trial strategy.8   We hold that because defense counsel failed to exercise

7
  Instead, the trial court framed defense counsel’s error as a decision to pursue the “‘no
sex gratification/denial’ defense and not the “‘sinister or bad mom defense’” (referring to
defense counsel’s failure to impeach Tetarly). The Court of Appeals reversed the trial
court’s ruling that counsel was ineffective for failing to pursue the impeachment defense
in part because this decision was part of a reasonable trial strategy. The trial court’s
erroneous focus on whether these “defenses” were properly pursued led the Court of
Appeals to justify defense counsel’s decision to pursue only one defense as a matter of
trial tactics, which are not reviewable in hindsight.
8
  Contrary to the dissent’s view, our conclusion in this case that defense counsel’s
performance was constitutionally deficient does not equate with judging counsel’s
strategy in hindsight. The dissent is correct that Strickland counsels against a hindsight
review of defense counsel’s choices and that reviewing courts should “evaluate the


                                             11
reasonable professional judgment when deciding to forgo particular investigations

relevant to the defense, her representation fell below an objective standard of

reasonableness.

       First, defense counsel failed to identify the factual predicate of each of the five

charged counts of CSC-II. Although the charging documents lacked specific factual

allegations, defense counsel advised defendant to waive his preliminary examination and

she failed to file a motion for a bill of particulars. As a result, in this case defense

counsel was left without a competent understanding of the prosecution’s theories of guilt.

In fact, James Sabbota, an expert in criminal trial practice and defending cases involving

allegations of criminal sexual conduct, testified at defendant’s evidentiary hearing that

without either a preliminary examination or a bill of particulars, there was no way to

develop a defense in this case.

       Second, defense counsel failed to consult with key witnesses who would have

revealed weaknesses of the prosecution’s case. Particularly, counsel failed to interview

Allen, despite the fact that the prosecution included her on its witness list. Moreover,

given the exposure the complainant had to multiple interviews and leading questions, a

reasonable attorney would have consulted an expert, such as Okla, to testify regarding the



conduct from counsel’s perspective at the time.” Strickland, 466 US at 689. However,
the dissent misinterprets our characterization of defense counsel’s errors in this case. We
do not hold that counsel’s performance was objectively unreasonable because her chosen
strategy was unsuccessful or that another strategy would have been more successful.
Rather, we hold that defense counsel may not use trial strategy to insulate trial decisions
if counsel cannot provide a reasonable basis for the chosen strategy, particularly where,
as here, the strategy is chosen before conducting any reasonable investigation.



                                            12
propriety of how the complainant made her allegations. Yet the only expert defense

counsel consulted was John Neumann, an expert in sex offender evaluation.9 Perhaps

most importantly, defense counsel stated at the Ginther hearing that she chose not to

consult any witnesses or obtain additional evidence before she decided to pursue a

defense strategy for which she concluded that no further investigation was necessary.

       Lastly, defense counsel’s unreasonably inadequate investigation contributed to her

failure to sufficiently develop the defense that was actually presented at trial. This case

turned solely on credibility—the ultimate question at trial was whether the complainant’s

allegations of sexual abuse were truthful or, conversely, if her allegations were the result

of improper motivations and interviewing techniques. Counsel’s failure to cross-examine

Tetarly and adequately impeach the complainant was a result of counsel’s unreasonable

decision to forgo any investigation in the case. In fact, counsel admitted that had she

discovered the pertinent information, she would have (1) impeached the complainant with

her additional inconsistent statements regarding the number of times defendant allegedly

forced her to touch him, (2) impeached the complainant and Tetarly regarding the

complainant’s impression that defendant did not love her, and (3) consulted experts and

Allen regarding proper forensic-interviewing protocol. Also, counsel failed to employ

reasonable professional judgment when deciding not to interview HT, who was also


9
  As the United States Court of Appeals for the Second Circuit has explained, a defense
attorney may be deemed ineffective, in part, for failing to consult an expert when
“counsel had neither the education nor the experience necessary to evaluate the evidence
and ‘make for himself a reasonable, informed determination as to whether an expert
should be consulted or called to the stand . . . .’” Eze v Senkowski, 321 F3d 110, 128 (CA
2, 2003), quoting Pavel v Hollins, 261 F3d 210, 225-226 (CA 2, 2001) (emphasis added).



                                            13
listed on the prosecution’s witness list. HT was intimately familiar with the relationship

between defendant and the complainant.          Thus, an attorney exercising reasonable

professional judgment would have at least spoken to HT in an attempt to determine if he

could provide testimonial evidence that might have corroborated defendant’s testimony.

       Therefore, we hold that defense counsel’s performance was constitutionally

deficient because a sound defense strategy cannot follow an incomplete investigation of

the case when the decision to forgo further investigation was not supported by reasonable

professional judgment.    We must now turn to the question whether defendant was

prejudiced by the deficiency.10

                                    2. PREJUDICE11

       In addition to proving that defense counsel’s representation was constitutionally

deficient, defendant must show that “but for counsel’s deficient performance, a different

result would have been reasonably probable.” Armstrong, 490 Mich at 290, citing

Strickland, 466 US at 694-696. A defendant may meet this burden “even if the errors of

counsel cannot be shown by a preponderance of the evidence to have determined the

10
   Additionally, to the extent that defendant cannot show that he was entitled to a new
trial in light of newly discovered evidence under People v Cress, 468 Mich 678, 692; 664
NW2d 174 (2003), because he or defense counsel could, “using reasonable diligence,
have discovered and produced the evidence at trial,” defense counsel was further
ineffective for not having employed such reasonable diligence. (Citation and quotation
marks omitted.)
11
   Although the trial court did not expressly find that defendant was prejudiced by
defense counsel’s errors and the Court of Appeals failed to reach this issue, in the
interests of judicial economy, we find it necessary to consider this issue in the present
appeal. See Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499
(1994), and MCR 7.316(A).



                                           14
outcome.”12 Strickland, 466 US at 694. And “[w]here there is relatively little evidence

to support a guilty verdict to begin with (e.g., the uncorroborated testimony of a single

witness), the magnitude of errors necessary for a finding of prejudice will be less than

where there is greater evidence of guilt.” Brown v Smith, 551 F3d 424, 434-435 (CA 6,

2008), citing Strickland, 466 US at 696.

       In the present case, the key evidence that the prosecution asserted against

defendant was the complainant’s testimony; therefore, the reliability of defendant’s

convictions was undermined by defense counsel’s failure to introduce impeachment

evidence and evidence that corroborated defendant’s testimony. The defense strategy not

to present the trier of fact with vital evidence was the result of counsel’s failure to employ

reasonable professional judgment, which limited counsel’s knowledge of the existence

and importance of that evidence.

       Regarding the impeachment evidence, while it is true that defense counsel cross-

examined the complainant, the omissions in that cross-examination, coupled with defense


12
   The dissent admits in its discussion concerning whether collateral estoppel was
properly applied in this case that defendant’s burden to show that he was prejudiced by
defense counsel’s errors is less than the preponderance-of-the-evidence standard.
However, the dissent nonetheless appears to hold defendant to a higher burden by
concluding that, despite the fact that this case was decided solely on the credibility of
defendant and the complainant and the trier of fact was deprived of a substantial amount
of relevant information, there was not at least a reasonable likelihood that the outcome of
the trial would have been different but for counsel’s deficient performance. Indeed,
defendant’s trial concluded in less than one hour, whereas it took the trial court more than
five days to collect testimony during defendant’s Ginther hearing. Additionally, we note
that our holding today does not resolve the question of guilt or innocence. Rather, we
hold only that defendant is entitled to a new trial so that his guilt or innocence may be
properly determined, as required by the Michigan and United States Constitutions.



                                             15
counsel’s failure to cross-examine Tetarly, deprived the trier of fact of the necessary and

available evidence that discredited the complainant’s allegations.           Similarly, in

Armstrong, 490 Mich at 292, this Court held that, although the complainant was cross-

examined by defense counsel, “a reasonable probability exists that this additional attack

on the complainant’s credibility [the introduction of cell phone records] would have

tipped the scales in favor of finding a reasonable doubt about defendant’s guilt.”13 Had

counsel exercised reasonable judgment when investigating the case, she would have been

able to impeach the complainant’s testimony with the complainant’s additional

inconsistent statements and with expert testimony that discredited the propriety of the

complainant’s accusations. Further, defense counsel’s failure to impeach Tetarly left the

record completely devoid of any motivation that Tetarly may have had to distort and

encourage the complainant’s allegations.            Without this evidence, “in a case that

essentially boil[s] down to whether the complainant’s allegations of [criminal sexual

conduct] [are] true,” we have no doubt that the reliability of defendant’s convictions is

adequately called into question. Id. at 293.

       Likewise, defense counsel’s failure to corroborate the defense that defendant did

not have the intent of sexual gratification compounded the prejudicial effect of defense

counsel’s failure to impeach the complainant’s testimony.            She did not ask the


13
   It is true that the additional impeachment evidence available to the defense counsel in
Armstrong was documentary evidence and, in this case, the additional evidence was
testimonial. But here, defense counsel’s cross-examination of the complainant was,
without justification, substantially less discrediting than the defense counsel’s cross-
examination of the complainant in Armstrong. This increased the need for the
introduction of any available impeachment evidence, even if it was testimonial.



                                               16
complainant if defendant had previously applied ointment to her for medical purposes. If

she had, presumably, the complainant would have answered in the affirmative, given that

she testified accordingly in a later civil proceeding. Likewise, defense counsel did not

consult with HT, who likely would have offered testimony that corroborated defendant’s

testimony.14 Instead, counsel relied solely on defendant’s testimony that he did not

possess the requisite intent.

       Therefore, if defense counsel had exercised reasonable professional judgment, she

would have discovered and presented impeachment evidence and evidence that

corroborated defendant’s testimony, and there is a reasonable probability that the result of

the trial would have been different. Thus, defendant has shown that he was unfairly

prejudiced by defense counsel’s errors.

                                   IV. CONCLUSION

       We conclude that collateral estoppel cannot be applied to preclude the review of a

criminal defendant’s claim of ineffective assistance of counsel simply because a previous

civil proceeding determined that defense counsel had not committed malpractice.

Application of collateral estoppel on that basis fails to satisfy the element of the doctrine

requiring that a defendant previously have had an opportunity to fully and fairly litigate

his or her ineffective-assistance-of-counsel claim.

       Furthermore, defense counsel’s performance in this case was constitutionally

inadequate and rendered defendant’s trial unfair and unreliable. Therefore, we reverse

14
   During the course of Tetarly’s corresponding civil case against defendant, HT was
asked if defendant “ever act[ed] in a sexual manner to [the complainant].” HT
responded, “No.”



                                             17
the judgment of the Court of Appeals and remand this case to the trial court for a new

trial.


                                                    Michael F. Cavanagh
                                                    Marilyn Kelly
                                                    Stephen J. Markman
                                                    Mary Beth Kelly




                                         18
                             STATE OF MICHIGAN

                                     SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                            No. 143386

JACOB TRAKHTENBERG,

               Defendant-Appellant.


YOUNG, C.J. (dissenting).
         I respectfully dissent from the Court’s decision to grant defendant a new trial on

his motion for relief from judgment. While I agree with the majority that collateral

estoppel does not bar defendant’s claims of error, I cannot adopt the majority’s

amorphous analysis on that issue and instead would simply hold that the prosecution has

not satisfied the elements required to apply collateral estoppel against defendant.

Moreover, in applying Strickland v Washington to the facts of this case, I do not believe

defendant is entitled to relief because he has not shown that counsel’s performance was

“outside the wide range of professionally competent assistance” leading to “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”1 Thus, I would affirm the result reached by the Court of

Appeals.



1
    Strickland v Washington, 466 US 668, 690, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
                             I. COLLATERAL ESTOPPEL

       The Court of Appeals determined that the collateral estoppel doctrine barred

substantive consideration of many of defendant’s ineffective assistance of counsel

claims.2 While I agree with the majority that the Court of Appeals erred by applying

collateral estoppel to bar many of defendant’s claims, I do not adopt the majority’s

analysis to reach this conclusion. Instead of examining defendant’s interests in litigating

his legal malpractice and ineffective assistance of counsel claims, I would consider the

elements required to apply collateral estoppel, which lead inexorably to the conclusion

that defendant is not precluded from alleging ineffective assistance of counsel in a motion

for relief from judgment. Accordingly, I would decide the issue on this basis alone.

       In Monat v State Farm Insurance Co, this Court articulated the elements of

collateral estoppel:

               Generally, for collateral estoppel to apply three elements must be
       satisfied: (1) “a question of fact essential to the judgment must have been
       actually litigated and determined by a valid and final judgment”; (2) “the
       same parties must have had a full [and fair] opportunity to litigate the
       issue”; and (3) “there must be mutuality of estoppel.”[3]

2
 The Court of Appeals first concluded that the circuit court erred by granting defendant a
new trial because the circuit court’s analysis was complete as a matter of law once it
concluded that his counsel’s trial strategy was reasonable. Nevertheless, it went on to
examine potential alternative bases for affirming the circuit court’s decision, and it ended
up rejecting many of defendant’s ineffective assistance of counsel claims on the basis of
collateral estoppel. Because it was sufficient to resolve defendant’s appeal on the basis
of its conclusion that trial counsel’s strategy was reasonable, the Court of Appeals’
decision to apply collateral estoppel was not essential to its holding.
3
  Monat v State Farm Ins Co, 469 Mich 679, 682-684; 677 NW2d 843 (2004), quoting
Storey v Meijer, Inc, 431 Mich 368, 373 n 3; 429 NW2d 169 (1988) (alteration in
original). Monat also held that the third element, mutuality of estoppel, is unnecessary
when the party asserting estoppel claims that the opposing party is bound by a previous


                                             2
         In this case, the first element of collateral estoppel is not satisfied because

defendant’s ineffective assistance of counsel claim was not “actually litigated and

determined by a valid and final judgment” in his legal malpractice action. A party

asserting legal malpractice “must establish that, but for the negligence, the outcome of

the case would have been favorable to the plaintiff.”4 However, Strickland specifically

indicates that a criminal defendant may be entitled to a new trial on the basis of

ineffective assistance of counsel “even if the errors of counsel cannot be shown by a

preponderance of the evidence to have determined the outcome.”5 Because a legal

malpractice action requires a higher threshold of prejudice than an ineffective assistance

of counsel claim, a defendant can establish ineffective assistance of counsel even if he

cannot establish legal malpractice. As a result, the Court of Appeals erred by concluding

that defendant’s ineffective assistance of counsel claim was “actually litigated and

determined by a valid and final judgment,” and we need not even consider defendant’s

interests in undertaking his legal malpractice and ineffective assistance of counsel claims

as the majority does.


adverse ruling: “There is no compelling reason, however, for requiring that the party
asserting the plea of res judicata must have been a party, or in privity with a party, to the
earlier litigation.” Monat, 469 Mich at 689 (quotation marks and citation omitted).
Accordingly, because the prosecution seeks to apply collateral estoppel against
defendant, Monat does not require mutuality of estoppel and the fact that the prosecutor
was not a party in defendant’s legal malpractice claim does not itself bar application of
collateral estoppel.
4
  Radtke v Miller, Canfield, Paddock & Stone, 453 Mich 413, 424; 551 NW2d 698
(1996).
5
    Strickland, 466 US at 694.



                                             3
                     II. INEFFECTIVE ASSISTANCE OF COUNSEL

          Nevertheless, when examining defendant’s substantive claims, I do not believe

defendant is entitled to a new trial on the basis of his motion for relief from judgment.6

The Sixth Amendment of the United States Constitution, incorporated to the states

through the Fourteenth Amendment,7 guarantees a criminal defendant “the right . . . to

have the Assistance of Counsel for his defence.”8 Strickland requires a defendant to

“identify the acts or omissions of counsel that are . . . outside the wide range of

professionally competent assistance.”9 This review of counsel’s performance is “highly

deferential,”10 must proceed under “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance,” and must consider whether

the challenged action (or failure to act) “‘might be considered sound trial strategy.’”11

Only when a criminal defendant has shown counsel’s performance to be objectively

6
 Because defendant is seeking relief pursuant to subchapter 6.500 of the Michigan Court
Rules, we review for an abuse of discretion the circuit court’s decision to grant this relief.
See People v Osaghae (On Reconsideration), 460 Mich 529, 534; 596 NW2d 911 (1999).
However, we review de novo any underlying questions of constitutional law. People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
7
    Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932).
8
  US Const, Am VI. The Michigan Constitution also provides a right to the effective
assistance of counsel, see Const 1963, art 1, § 20, although it “does not afford greater
protection than federal precedent with regard to a defendant’s right to counsel when it
involves a claim of ineffective assistance of counsel,” People v Pickens, 446 Mich 298,
302; 521 NW2d 797 (1994).
9
    Strickland, 466 US at 690.
10
     Id. at 689.
11
     Id., quoting Michel v Louisiana, 350 US 91, 101; 76 S Ct 158; 100 L Ed 83 (1955).



                                              4
unreasonable can we consider the effect of counsel’s performance: a criminal defendant

is only entitled to a new trial if he can show that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.”12      Strickland also provides that “counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary.”13

          The majority claims that counsel was ineffective because she did not conduct a

preliminary examination or file for a bill of particulars to determine the nature of the

charges against defendant. Counsel testified that she did not conduct a preliminary

examination because she did not want to preserve the testimony of certain unfavorable

witnesses. Further, while the charging documents lacked specific factual allegations

beyond the offenses charged, counsel testified at defendant’s Ginther14 hearing that she

had police and Family Independence Agency reports from which she could determine the

factual allegations supporting the charges against defendant. Counsel also testified that

she believed the imprecision in the charging documents would confuse the trier of fact

and redound to defendant’s benefit. The majority fails to consider that the decision to

forgo a preliminary examination or bill of particulars can itself be a reasonable trial

strategy under the circumstances of this case, when counsel had information regarding

the nature of the charges from documents in her possession.

12
     Strickland, 466 US at 694.
13
     Id. at 691.
14
     See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).



                                             5
       That in hindsight a strategy was not completely successful does not render it

unreasonable and does not render counsel’s assistance ineffective.        Strickland itself

implores reviewing courts to undertake “every effort . . . to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.”15 In this case, when

looking to what strategy counsel developed or could have developed at the time she was

preparing for trial, we must consider that any strategy must account for defendant’s

admissions that he touched his daughter’s genitals at least seven times—six times, he

claims, to administer ointment, and once to determine the extent of the pain that his

daughter complained of. As a result of these admissions, trial counsel could not prepare

the defense that none of the touchings occurred. Rather, counsel had to argue that the

times that defendant applied the ointment were not for a sexual purpose. Defendant

vehemently denied that he ever touched the complainant’s hand to his penis, and trial

counsel’s strategy with regard to that issue was to impeach the complainant’s credibility

and explain that defendant put the complainant’s hand to his stomach to show her an old-

world remedy to relieve stomach pain.

       Both the circuit court and the Court of Appeals determined that this trial strategy

was objectively reasonable, and they did not err by doing so. Nevertheless, the circuit

court held that counsel was ineffective for failing to present the alternative defense that

the complainant’s mother, Liliya Tetarly, fabricated the allegations. While this defense is


15
  Strickland, 466 US at 689; see also People v LaVearn, 448 Mich 207, 216; 528 NW2d
721 (1995), quoting Strickland, 466 US at 689.



                                            6
not necessarily inconsistent with counsel’s chosen defense, counsel provided a reasonable

explanation at the Ginther hearing regarding why she did not choose to present it: she

was afraid that basing a defense on Tetarly’s relationship with defendant would open the

door to information that would reflect badly on defendant, including details about the

acrimonious divorce between defendant and Tetarly.16 The Court of Appeals correctly

reversed as an abuse of discretion the circuit court’s decision to grant defendant a new

trial, the sole basis for which was that counsel did not proffer a defense focusing on

Tetarly’s character.

         Furthermore, the circuit court abused its discretion when it granted defendant a

new trial without inquiring into the potential prejudice resulting from counsel’s actions

because Strickland requires a defendant to show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.”17    Even if counsel was deficient for failing to interview CARE House

employees or consult with an expert about forensic interviewing techniques, the

unrebutted evidence indicates that the complainant’s initial revelation was not a product

of any questioning; rather, both the complainant and her mother have testified that the

complainant made the revelation spontaneously. While defendant’s expert at the Ginther


16
  The majority explains that counsel failed to investigate allegations of sexual abuse that
Tetarly made in the past against defendant’s other ex-wife. However, the record below
only indicates that she reported what defendant’s son (a toddler at the time) said and did.
While the ex-wife was not convicted of abuse, it is not apparent from the record that
these allegations are false—or intentionally false—claims of abuse that would implicate
Tetarly’s general character for truthfulness.
17
     Strickland, 466 US at 694.



                                             7
hearing, Dr. Katherine Okla, testified that she had concerns about the interview

techniques that led to the complainant’s subsequent disclosures involving defendant’s

touching of her genitals, defendant admitted that he had touched the complainant’s

genitals. Thus, I cannot conclude that there is a reasonably likely probability of a

different result occurring but for counsel’s failure to interview CARE House employees

or consult with an expert.

       Moreover, while the majority argues that counsel did not adequately impeach the

complainant, counsel’s cross-examination of the complainant at trial highlighted

inconsistencies regarding the number of times that the complainant claimed that

defendant touched her hand to his genitals. Indeed, at one point, the circuit court cut

counsel off and acknowledged that the complainant could not explain the inconsistencies

between her testimony and a police report.18 The circuit court determined that three of

the five charged counts of second-degree criminal sexual conduct arose out of allegations

that defendant touched the complainant’s hand to his genitals, and it convicted defendant

of one of those three counts.     I cannot conclude that further cross-examination of

complainant emphasizing any inconsistencies in the complainant’s previous statements

would have resulted in a reasonably likely chance of acquittal on the single remaining

count relating to the touching of defendant’s genitals given the circuit court’s statement



18
   While the majority puts much stock in potential expert testimony to impeach the
complainant’s testimony, the same experts might also have bolstered her credibility by
helping to explain the inconsistencies that defense counsel sought to highlight. For
instance, CARE House employee Amy Allen testified at defendant’s civil trial that it is
not unusual for a sexual abuse victim to give conflicting reports about the abuse.



                                            8
that the complainant’s vivid description of defendant’s genitals was “not something that a

child would fabricate.”

       The circuit court also found defendant’s testimony about administering the

medication not to be credible, “mainly because of the major inconsistency in regard to the

rebuttal witness’s testimony that he was never asked to apply the ointment” and because

the complainant’s “yeast infections did not occur around the time in which allegedly

these incidents occurred . . . .” Nothing in any postconviction testimony undermines

Tetarly’s claim that the complainant did not suffer from yeast infections at the time of the

allegations, and defendant has not offered any proof to undermine that claim. As a result,

defendant has not shown a reasonably probable chance of a different outcome at trial on

the charges involving defendant’s touching of the complainant’s genitals. Tetarly always

maintained that she did not ask defendant to apply any medication, and she reiterated at

the Ginther hearing that she never provided defendant with medication to place on the

complainant’s genital area. Indeed, this testimony that defendant was not allowed to

apply ointment is rendered more credible by Tetarly’s testimony that defendant poured

cologne on complainant’s genital area in February 2004. This testimony went unrebutted

during both the bench trial and the Ginther hearing.         Moreover, the complainant’s

testimony at a subsequent civil proceeding corroborates Tetarly’s testimony that only

Tetarly would apply ointment for the complainant’s yeast infections and that defendant

once poured cologne on the complainant’s genital area.19

19
  Although the majority observes that the complainant testified otherwise at the civil
proceeding, the complainant quickly retracted that statement and reiterated that only her
mother would apply the ointment.



                                             9
         Defendant also claims that testimony by his son, HT, would have corroborated

defendant’s claim that Tetarly insisted that defendant apply the ointment to the

complainant’s genital area and that, after several minutes of heated argument, he yielded

to her request. Nevertheless, defendant offers no proof on this claim beyond his bald

assertion that HT was actually present for the conversation that defendant described. In

fact, HT was deposed during the civil litigation against defendant, but he did not testify

regarding this alleged conversation. Instead, HT testified that defendant often yelled at

the complainant to return to her room when, at night, she would appear at his bedroom.

This is consistent, however, with the complainant’s testimony at the civil trial that

sometimes defendant would yell at her to return to her room, although she also testified

that sometimes he would tell her to join him in his bed. The lack of an offer of proof

regarding whether HT could corroborate defendant’s testimony about the ointment

sharply contrasts with the situation resulting in a new trial in People v Armstrong,20 in

which the defendant offered documentary proof that contradicted specific testimony by

the complainant at trial. Accordingly, I cannot say that this potential corroborative

testimony is sufficiently concrete to satisfy Strickland’s prejudice requirement.21


20
     People v Armstrong, 490 Mich 281; 806 NW2d 676 (2011).
21
  In addition to his ineffective assistance of counsel claims, defendant also claimed that
newly discovered evidence requires a new trial. The lower courts correctly rejected
defendant’s argument. In particular, the Court of Appeals explained that most of
defendant’s claimed newly discovered evidence could have been discovered at the time
of trial. In analyzing the evidence that actually constituted newly discovered evidence—
the results of defendant’s polygraph examination and the complainant’s subsequent
writings—the Court of Appeals correctly determined that a different result is not probable
upon retrial. See People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003).



                                             10
                                       III. CONCLUSION

         For all these reasons, I would affirm the Court of Appeals’ ruling that defendant is

not entitled to a new trial, although I would vacate its conclusion that collateral estoppel

bars substantive consideration of defendant’s ineffective assistance of counsel claims.

Defendant is not entitled to a new trial pursuant to his motion for relief from judgment

because he has not satisfied the elements of Strickland—that counsel’s performance was

“outside the wide range of professionally competent assistance” leading to “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”22


                                                         Robert P. Young, Jr.
                                                         Brian K. Zahra



     HATHAWAY, J., did not participate because of a professional relationship with a
member of a law firm involved in the matter.




22
     Strickland, 466 US at 690, 694.



                                              11
