                                                                             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 OCTOBER 26, 2011

                             STATE OF MICHIGAN

                                    SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

 v                                                              No. 142762

 RICHARD RANKIN ARMSTRONG,

              Defendant-Appellant.


 BEFORE THE ENTIRE BENCH

 ZAHRA, J.

       In this case, we consider whether the ineffective assistance of defendant’s trial

 counsel in failing to seek the introduction into evidence of cell phone records that would

 have undermined the complainant’s credibility prejudiced defendant, thereby entitling

 him to a new trial. The Court of Appeals held that, even assuming that defense counsel’s

 performance fell below an objective standard of reasonableness, defendant had failed to

 show resulting prejudice. For the reasons stated in this opinion, we disagree and instead

 hold that defense counsel’s ineffective assistance prejudiced defendant. Accordingly, in
lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and

remand the case to the Otsego Circuit Court for a new trial.

                      I. FACTS AND PROCEDURAL HISTORY

       Defendant, a 25-year-old male, was charged with engaging in sexual acts with the

complainant, a 15-year-old girl, on two occasions. At the time of the alleged sexual acts,

the complainant was living with her adoptive mother, Barbara Kamae, who is actually the

complainant’s biological grandmother.       The complainant’s biological mother, Lisa

Annise, gave birth to her at a very young age, and her relationship with the complainant

is more like that of a sister. Through Lisa’s coworker, Donna Eckles, the complainant

became acquainted with defendant, who is Donna’s half brother. William Eckles is

Donna’s husband.

       Defendant and the complainant met on three occasions in the spring of 2005. The

first meeting took place at defendant’s residence, where the complainant spent the night

with William, defendant, and Titto, one of defendant’s friends. William testified that he

remained with the complainant and defendant throughout the entire night because he did

not trust her.   Following this first meeting, the complainant and defendant spoke

frequently over the phone.

       The complainant and defendant met for the second time a few weeks later at the

home of defendant’s uncle. Many others were present, including Donna and William.

The complainant testified that she and defendant watched a movie in the basement while

the others remained upstairs. According to the complainant, she resisted defendant’s

advances and eventually went upstairs on the pretext of using the restroom. When she

returned to lie down on the couch, defendant allegedly removed the cushions to form a


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bed on the floor. The complainant claimed that while lying down on the cushions, she

attempted to maintain her distance from defendant, but he moved closer to her, tried to

kiss her, and asked her to undress. When she refused to comply, defendant allegedly

removed the complainant’s clothes and forced her to engage in oral and vaginal sex,

during which defendant allegedly choked her, slapped her, and made threats against her

life. The complainant claimed that the intercourse lasted for more than an hour.

      William, however, testified that he remained in the basement with defendant and

the complainant nearly the entire night because he did not trust her. According to

William, he slept on the floor while defendant and the complainant slept on one of the

couch’s foldout beds. William testified that the three of them went to sleep at the same

time. He never heard any sexual activity.

      Donna recalled the evening somewhat differently. According to Donna, she and

the complainant were supposed to share a bed upstairs. When Donna woke up to find the

complainant missing, she went downstairs and found the complainant sitting on the arm

of the couch attempting to wake defendant. William was also still in the basement. The

complainant refused Donna’s request that she return upstairs. Following this second

meeting, defendant and the complainant continued to communicate by phone calls and

text messages.

      Defendant and the complainant met for the third and final time at her home.

Defendant brought Titto along, and the three of them talked in the living room while

Barbara, who was on heavy prescription medication at the time, slept in the recliner in the

same room. The complainant claimed that at some point defendant followed her into her

bedroom, shut the door, and ordered her to remove her clothes. As before, defendant


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allegedly slapped, choked, and threatened the complainant and forced her to submit to

oral and vaginal sex over an extended period. The complainant contended that Barbara

remained asleep in the living room while the intercourse took place. Afterward, the

complainant and defendant dressed, defendant fell asleep in the bed, and the complainant

returned to the living room. When defendant awoke, the three of them (defendant, the

complainant, and Titto) left to pick up some fast food.

       Barbara testified that she awoke in her recliner to find a stranger, Titto, sitting on

her couch and then found defendant and the complainant in the bedroom. According to

Barbara, she directed defendant to leave the bedroom, and the complainant left with

defendant and Titto to pick up the fast food.

       The complainant did not see defendant again until trial. She did not mention the

alleged rapes to anyone until months after the second alleged rape, when a counselor

conducting a background survey asked her whether anyone had ever sexually assaulted

her. The complainant, believing that her response would remain confidential, told the

counselor that defendant had sexually assaulted her.          The counselor reported the

allegations to the police.

       At trial, attacking the complainant’s credibility became central to the defense’s

case. Most significantly, Lisa, Barbara, and the complainant’s stepfather all averred that

the complainant had falsely accused her stepfather of raping her in the past. Furthermore,

Lisa characterized the complainant as a compulsive liar, and Barbara indicated that the

complainant lied and “just want[ed] to get people in trouble.”

       The cell phone records at issue in this appeal further call into question the

complainant’s credibility. At trial, the prosecution elicited unequivocal testimony from


                                                4
the complainant that she never communicated with defendant following their third

meeting, at which the second rape allegedly occurred, but she acknowledged that

defendant continued to try to communicate with her. On cross-examination, defense

counsel confronted the complainant with defendant’s cell phone records, which revealed

two incoming calls from Barbara’s cell phone just days after the third meeting. At that

point, the complainant admitted calling defendant once or twice from Barbara’s phone.

However, when confronted with additional cell phone records revealing what defense

counsel described as hundreds of incoming calls following the third meeting, coming not

from Barbara’s cell phone, but from the complainant’s cell phone, she unequivocally

denied contacting defendant after their third meeting when the second alleged rape

occurred. According to the complainant, she wanted no further contact with the man who

had so brutally violated her.

       Defense counsel then attempted to introduce into evidence defendant’s cell phone

records rebutting the complainant’s testimony, but the prosecution objected for lack of a

foundation. The trial court sustained the objection. Defense counsel, who had been

practicing law for only eight months at the time, made no further effort to have the

records admitted.

       During closing argument, the prosecution told the jury that it must disregard the

cell phone records because they had not been properly admitted into evidence. The

prosecution also told the jury to disregard the complainant’s testimony in which she

acknowledged making some of the calls to defendant because the documents on which

the complainant based her testimony had not been properly admitted. The prosecution

even suggested the possibility that defendant or defense counsel had fabricated the cell


                                           5
phone records. Finally, the trial court instructed the jury to disregard evidence that had

not been properly admitted and that evidence consists only of sworn testimony and

exhibits in evidence.

        The jury convicted defendant of two counts of third-degree criminal sexual

conduct, MCL 750.520d(1)(a) (victim at least 13 but less than 16 years old), and the trial

court sentenced defendant to concurrent terms of 7 to 15 years’ imprisonment.           In

defendant’s appeal as of right, appellate counsel moved the Court of Appeals to remand

the case for a Ginther1 hearing on the issue of ineffective assistance of counsel. Attached

to the motion was an affidavit by defendant’s trial counsel acknowledging that he had

intended to introduce the cell phone records but failed to subpoena or otherwise make

available the custodian of the records to lay the proper foundation to introduce them into

evidence. Defense counsel admitted that his failure to pursue introduction of the records

“was not a strategic decision, nor did [he] at any time during trial decide that the phone

records were not necessary or beneficial to the defense case.” The Court of Appeals

denied the motion and subsequently affirmed defendant’s convictions and sentences.

        The Court of Appeals denied reconsideration, and defendant applied for leave to

appeal in this Court. We remanded the case to the trial court with instructions to hold a

Ginther hearing.    Defendant’s trial counsel, the only witness called at the hearing,

testified that he failed to subpoena the custodian of the cell phone records because of the

mistaken belief that the business records exception to the hearsay rule did not require a

custodian to testify. Instead, defense counsel thought it would be sufficient to have the

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



                                            6
complainant acknowledge her phone number on the statement. He admitted that he

intended to introduce the records because they were important to the defense’s case, but

explained that he became flustered following the prosecution’s successful objection and

therefore made no further attempt to have the records admitted.

         The trial court found that the performance of defendant’s trial counsel fell below

an objective standard of reasonableness. Nonetheless, it found that defendant did not

suffer prejudice because he did not demonstrate a reasonable probability that one more

attack on the complainant’s credibility would have resulted in his acquittal. Accordingly,

the trial court upheld defendant’s convictions. The Court of Appeals denied leave to

appeal, but this Court remanded the case to the Court of Appeals for consideration as on

leave granted.2

         The Court of Appeals affirmed, concluding that, even assuming defense counsel’s

failure to pursue admission of the records into evidence constituted ineffective assistance,

defendant did not suffer prejudice thereby.3 Defendant then sought leave to appeal in this

Court.

                               II. STANDARD OF REVIEW

         Whether a defendant received ineffective assistance of trial counsel presents a

mixed question of fact and constitutional law.4 “A judge must first find the facts, then


2
    People v Armstrong, 485 Mich 1132 (2010).
3
  People v Armstrong, unpublished opinion per curiam of the Court of Appeals, issued
January 18, 2011 (Docket No. 291979).
4
    People v Grant, 470 Mich 477, 484; 684 NW2d 686 (2004).



                                             7
must decide whether those facts establish a violation of the defendant’s constitutional

right to the effective assistance of counsel.”5 We review the trial court’s factual findings

for clear error.6 Clear error exists if the reviewing court is left with a definite and firm

conviction that the trial court made a mistake.7       We review de novo questions of

constitutional law.8

                                      III. ANALYSIS

          A defendant must meet two requirements to warrant a new trial because of the

ineffective assistance of trial counsel. First, the defendant must show that counsel’s

performance fell below an objective standard of reasonableness.9         In doing so, the

defendant must overcome the strong presumption that counsel’s assistance constituted

sound trial strategy.10 Second, the defendant must show that, but for counsel’s deficient

performance, a different result would have been reasonably probable.11

          As a threshold matter, we conclude that defense counsel’s performance fell below

an objective standard of reasonableness. Failing to pursue the admission of the cell


5
    Id.
6
    Id.
7
    People v Burrell, 417 Mich 439, 449; 339 NW2d 403 (1983).
8
    Grant, 470 Mich at 485.
9
 Strickland v Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984);
People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994).
10
     People v Rice (On Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999).
11
     Strickland, 466 US at 694-696.



                                              8
phone records into evidence was not a matter of sound trial strategy. Defense counsel

himself testified at the Ginther hearing that the records were important and that the only

reason he failed to pursue their admission was that he mistakenly believed no additional

steps were required for their admission and became flustered when the prosecution

successfully objected to their admittance because of the lack of a foundation. At the

conclusion of the Ginther hearing, the trial court found that failing to pursue the

admission did not constitute sound trial strategy, a finding that the prosecution never

appealed. We decline to entertain the prosecution’s challenge to the trial court’s finding

at this late stage. Moreover, the prosecution’s argument that failing to pursue admission

of the records constituted sound trial strategy wholly lacks merit. Admission of the

records would have caught the complainant in a lie. Any attorney acting reasonably

would have moved for the records’ admission, particularly when, as here, attacking the

complainant’s credibility offered the most promising defense strategy.

         Thus, the critical question is one of prejudice. In answering this question, we hold

that the Court of Appeals clearly erred by affirming the trial court’s finding of no

prejudice.    The reasoning in the Court of Appeals’ opinion was flawed in several

respects.

         First, the Court of Appeals concluded that no prejudice resulted from defense

counsel’s failure to have the cell phone records admitted because the complainant’s

credibility had been “thoroughly impeached . . . .”12         This reasoning was clearly

erroneous. The defense’s whole theory of the case was that the complainant had falsely

12
     Armstrong, unpub op at 3.



                                              9
accused defendant of rape. The attacks on the complainant’s credibility at trial were

inconclusive, providing mere “he said, she said” testimony contradicting the

complainant’s version of the events. The other credibility attacks revealed that the

complainant had falsely accused her stepfather of rape on a prior occasion and that she

habitually lied. Although unquestionably significant, such attacks had less of a tendency

to undermine the complainant’s credibility than the cell phone records, which would have

provided documentary proof strongly suggesting that the complainant lied to this jury

regarding her actions in connection with the alleged rapes in this case.

       Further, the prosecution elicited testimony from the complainant that defendant

violently raped her and made threats against her life and that she had absolutely no wish

to call or speak to defendant after having undergone such a harrowing experience. The

cell phone records revealing frequent communication with defendant following the

alleged rapes would have cast serious doubt on the substance of her accusations. If

defendant violently raped the complainant on two occasions and the complainant felt

brutally violated in the way that she described, then one must question why she reached

out to defendant through text messages and phone calls when severing all lines of

communication would have been a far more appropriate response under the

circumstances. Given the telephone records’ significance, a reasonable probability exists

that this additional attack on the complainant’s credibility would have tipped the scales in

favor of finding a reasonable doubt about defendant’s guilt.

       Second, the Court of Appeals clearly erred when it reasoned that, because MCL

750.520d(1)(a) is a strict liability statute under which the complainant’s consent was

irrelevant, introducing the cell phone records could have resulted in acquittal only if they


                                            10
showed the absence of a sexual relationship.13 Although the issue of consent is indeed

irrelevant under MCL 750.520d(1)(a),14 quite obviously, defense counsel did not seek to

admit the records to establish that the alleged intercourse was consensual.           Rather,

defense counsel sought to establish that the complainant’s allegations that intercourse—

forcible or otherwise—occurred at all lacked credibility because she falsely testified that

she had not called or communicated with defendant after the alleged rapes. We conclude

that a reasonable probability exists that the cell phone records would have convinced the

jury to discredit the complainant’s accusations.

           Third, the Court of Appeals clearly erred by concluding that the cell phone records

could have damaged defendant’s case because they might have emphasized the

seriousness of defendant’s relationship with a 15-year-old girl, casting him in a poor

light. This seems to suggest that the Court of Appeals believed that defense counsel

chose not to admit the records as a matter of trial strategy. Yet it stated earlier in its

opinion that the failure to pursue admission of the records was not a matter of trial

strategy, revealing inconsistency in its reasoning.15 The trial court, following a hearing

on the matter, found that defense counsel’s failure to pursue admission of the records fell

13
     Id.
14
  “[T]here is no issue of consent in a statutory rape charge because a victim below the
age of consent is conclusively presumed to be legally incapable of giving his or her
consent to sexual intercourse.” People v Cash, 419 Mich 230, 247-248; 351 NW2d 822
(1984).
15
  “[D]efense counsel’s failure to have defendant’s phone bill admitted into evidence was
based on an erroneous belief that the complainant’s testimony alone could lay the
foundation for admission of the records and not sound trial strategy . . . .” Armstrong,
unpub op at 2.



                                               11
below an objective standard of reasonableness and did not constitute sound trial strategy.

The prosecution failed to appeal this finding. Further, even assuming that the evidence

would have worked slightly against defendant, it does not follow that the evidence would

not also have worked so significantly against the complainant as to destroy her credibility

and result in defendant’s acquittal. Notwithstanding that the cell phone records revealed

defendant’s frequent communication with a teenage girl, any attorney acting reasonably

would have moved for the records’ admission given that they offered powerful evidence

of the complainant’s lying to the jury in a case that essentially boiled down to whether the

complainant’s allegations of rape were true.

         Finally, the Court of Appeals clearly erred when it reasoned that it made no

difference whether the jury saw the cell phone records since it heard their contents read

into evidence by the complainant. The Court of Appeals seemed to ignore that the

complainant acknowledged only a fraction of the numerous communications revealed in

the cell phone records. Further, according to the trial court’s instruction, the jury was to

disregard the cell phone records because they had not been properly admitted. We

presume that a jury follows its instructions.16 Moreover, even assuming that the jury

considered the portion of the cell phone records read into evidence, the jury also heard

from the prosecution that defendant or defense counsel might have fabricated the records.

We disagree with the Court of Appeals that instructing the jury that the attorneys’

statements and arguments are not evidence cured such a significant and damning

accusation.

16
     People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).



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                                  IV. CONCLUSION

       For the foregoing reasons, we hold that the failure of defendant’s trial counsel to

pursue the introduction of the cell phone records into evidence not only fell below an

objective standard of reasonableness, but also prejudiced defendant. Accordingly, we

reverse the judgment of the Court of Appeals and remand the case to the Otsego Circuit

Court for a new trial.


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




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