in Re Christopher Ross Jr ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
In re CHRISTOPHER ROSS, JR., Minor.
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 21, 2018
Petitioner-Appellee,
v No. 331096
Oakland Circuit Court
CHRISTOPHER ROSS, JR., Family Division
LC No. 2014-826056-DL
Respondent-Appellant.
Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order of disposition placing him on in-
home probation following a bench trial at which he was adjudicated responsible on one count of
fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e (sexual contact by force or
coercion). After filing his appeal, respondent moved for an evidentiary hearing regarding his
allegations that his trial counsel, Daniel Randazzo, was ineffective. See People v Ginther, 390
Mich. 436; 212 NW2d 922 (1973). This Court granted respondent’s motion and, after a lengthy
evidentiary hearing, the trial court rejected most of respondent’s claims but did conclude that
Randazzo was ineffective for failing to admit certain telephone records at trial. Thus, the trial
court concluded that respondent was entitled to a new trial. For the reasons discussed below, we
reverse and remand for reinstatement of the trial court’s initial adjudication and order of
disposition.
I. FACTS
Respondent was a high school student. On November 20, 2014, he admittedly engaged
in sexual activity with a 16-year-old classmate in the hallway of their school. The complainant
testified that respondent forcibly assaulted her, while respondent claimed that the encounter was
consensual. No one witnessed the incident. After a bench trial, at which respondent was
represented by Randazzo, the trial court found the complainant credible, and entered an order
adjudicating respondent responsible on one count of CSC-IV.
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Randazzo filed a motion for a new trial, which was denied. Respondent then obtained
new counsel, who filed a second motion for a new trial. This motion raised a wide variety of
claims, all alleging that Randazzo provided ineffective assistance of counsel. The trial court
rejected the motion, finding it to be a disguised motion for reconsideration of the first motion for
a new trial. Respondent then filed a claim of appeal in this Court, and a subsequent motion
seeking remand for an evidentiary hearing. This motion identified three areas in which
respondent felt Randazzo was ineffective, omitting several other areas that were identified by
respondent in his second motion for a new trial. On July 21, 2016, this Court granted the motion,
and remanded the matter to the trial court for an evidentiary hearing. This Court’s order stated,
“Proceedings on remand are limited to the issues as raised in the motion to remand.” In re
Christopher Ross, Jr, unpublished order of the Court of Appeals, entered July 21, 2016 (Docket
No. 331096).
The evidentiary hearing was extraordinarily lengthy and contentious. Respondent’s
counsel repeatedly tried to delve into issues that were raised in the second motion for a new trial,
but not in respondent’s motion to remand filed in this Court. Relying on this Court’s remand
order, the trial court repeatedly rejected respondent’s attempts to expand the issues considered on
remand. About a year after it began, the evidentiary hearing concluded with the trial court
granting respondent a new trial. On appeal, the prosecutor argues that the trial court erred.
Respondent contends that the trial court was correct to grant a new trial for the single reason
cited by the trial court, and also that the trial court should have found Randazzo ineffective for
other purported failures. Respondent further argues that he should have been permitted to
present expert testimony from Jerome Sabbota regarding best practices in defending a CSC case,
and that the trial court erred by limiting the scope of the hearing to those areas identified in
respondent’s motion to remand.
II. STANDARD OF REVIEW
Claims of ineffective assistance of counsel present mixed questions of fact and
constitutional law. People v Shaw, 315 Mich. App. 668, 671; 892 NW2d 15 (2016). Any factual
findings by the trial court are reviewed for clear error, while the ultimate legal issue is reviewed
de novo. Id. at 671-672. Clear error exists if “this Court is definitely and firmly convinced that
the trial court made a mistake.” Id. at 672.
“To prevail on a claim of ineffective assistance of counsel, a defendant bears a heavy
burden to establish that (1) counsel’s performance was deficient, meaning that it fell below an
objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable
probability that the outcome of the defendant’s trial would have been different.” People v
Solloway, 316 Mich. App. 174, 188; 891 NW2d 255 (2016). However, such performance must be
evaluated without the benefit of hindsight, People v LaVearn, 448 Mich. 207, 216; 528 NW2d
721 (1995), and the defendant must overcome a strong presumption that counsel’s actions were
based on reasonable trial strategy, People v Cline, 276 Mich. App. 634, 637; 741 NW2d 563
(2007).
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III. ANALYSIS
A. TELEPHONE RECORDS
The trial court’s sole basis for granting respondent a new trial was its conclusion that
Randazzo was ineffective for failing to present telephone records showing calls between a
telephone belonging to Crystal Ross (Crystal), who is respondent’s mother, and the
complainant’s telephone about the time the sexual encounter ended. We conclude that
Randazzo’s decisions with regard to the telephone records were sound strategic decisions, and
thus, cannot warrant a new trial.
When Randazzo was retained, the case had been ongoing and was approaching trial.
Respondent had already acknowledged that he had a sexual encounter with the complainant so
the only issue to be litigated at trial was whether the encounter was consensual. And because
there were no witnesses, the trial was essentially a credibility contest between the complainant
and respondent.
At some point before trial, Randazzo was told by Crystal and respondent that the
complainant allowed respondent to use her telephone to call Crystal after the sexual encounter.
If true, this might support the claim that the encounter was consensual because it could indicate
that the two were on good terms. Crystal provided telephone records to Randazzo in an effort to
support the claim. The records are a statement of usage activity, taken from Crystal’s online
account with her cellular carrier. Three calls, all at 4:31 p.m., are highlighted, and a handwritten
note states that these calls were from the complainant’s telephone to Crystal’s telephone. This
handwritten note, however, was incorrect. While the records go back at least an hour before the
encounter, and continue after the encounter, they do not show any incoming calls from the
complainant’s telephone number to Crystal’s telephone number. Rather, the records only show
three outgoing calls, placed by Crystal to the complainant’s telephone, at 4:31 p.m.
With these records in hand, Randazzo accurately explained at the evidentiary hearing that
he had nothing to support respondent’s claim that the complainant allowed him to use her
telephone to call Crystal. And at trial, the complainant testified that she did not allow respondent
to use her telephone after the encounter. When respondent testified, it seems that he was viewing
the records Crystal gave to Randazzo. Respondent testified—in contradiction to the records—
that he made three calls from the complainant’s telephone, all at 4:31 p.m. While the prosecutor
objected on the basis that she had not received any telephone records in discovery, the trial court
overruled the objection, explaining that Randazzo had not sought to introduce the records into
evidence, but if he did, the objection could be renewed. Randazzo never attempted to introduce
the records that he had into evidence, instead relying on respondent’s verbal testimony to support
the theory that the complainant allowed respondent to use her telephone.
At the evidentiary hearing, Randazzo explained his strategy. Randazzo wanted to create
the impression that the complainant allowed respondent to use her telephone after the encounter.
Randazzo first questioned the complainant on cross-examination, and elicited her testimony that
she did not allow respondent to use her telephone. Having no records to back up respondent’s
claim that he used the complainant’s telephone, Randazzo then questioned respondent regarding
the calls while he viewed the records Randazzo did have. Randazzo was essentially trying to
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trick the prosecution and the trial court into believing that there were records substantiating that
these calls took place. Of course, had the records been admitted, they would have shown that
respondent’s testimony was not supported by the records. Nonetheless, because of how
Randazzo approached the issue, he was able to infer that documentary evidence supported
respondent’s testimony that the complainant allowed him to use her telephone, despite Randazzo
having been provided no such evidence. At the same time, he was able to call the complainant’s
credibility into doubt.
Under the circumstances, respondent fails to overcome the presumption that Randazzo’s
performance was reasonable. Decisions regarding what evidence to admit are “presumed to be
matters of trial strategy . . . .” People v Horn, 279 Mich. App. 31, 39; 755 NW2d 212 (2008).
Respondent must overcome a strong presumption that Randazzo’s strategy was sound. See
Cline, 276 Mich. App. at 637. With the records that were available to him at the time, Randazzo
did the best he could. By questioning respondent in the manner he did, but without introducing
the records themselves and not providing those records to the prosecutor in discovery, Randazzo
was able to imply that records existed that backed up respondent’s testimony when none actually
existed. He was also able to disguise this strategy from the prosecutor. We cannot find fault in
how Randazzo approached the issue at trial, given what was available to Randazzo at the time.
Indeed, had Randazzo offered the records he had into evidence at trial, which is primarily what
respondent now argues was Randazzo’s error, Randazzo would have made a strategic mistake.
Randazzo would have presented records that failed to call the complainant’s credibility into
doubt, and at the same time, proved that respondent’s testimony was false. In a case that was a
pure credibility contest between the complainant and respondent, such an error would have been
egregious.1
The twist in this case is that during the Ginther hearing, a representative from Crystal’s
cellular carrier, AT&T, provided more detailed internal records, and testified that a call was in
fact placed from the complainant’s telephone to Crystal’s telephone at 4:24:59 p.m. For reasons
unexplained, this call is not included in the records Crystal provided to Randazzo. Knowing this
to be the case, is respondent entitled to a new trial?
We answer that question in the negative. Randazzo’s performance cannot be assessed
with the benefit of hindsight. See LaVearn, 448 Mich. at 216. This Court must “evaluate defense
counsel’s performance from counsel’s perspective at the time of the alleged error and in light of
the circumstances.” People v Grant, 470 Mich. 477, 487; 684 NW2d 686 (2004). The real
question in this matter is one left largely, if not entirely, unaddressed by respondent on appeal:
should Randazzo have performed any additional investigation into the question of respondent’s
use of the complainant’s telephone?2 “A sound trial strategy is one that is developed in concert
1
Even though the more detailed records were available at the time of the Ginther hearing,
respondent still maintained that he made three calls from the complainant’s telephone at 4:31
p.m. when he testified at the Ginther hearing.
2
Respondent’s appellate brief generally fails to distinguish between the records Randazzo did
have before trial, and those that were presented at the evidentiary hearing through AT&T’s
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with an investigation that is adequately supported by reasonable professional judgments.” Id. at
486. An independent examination of the facts and circumstances must be undertaken. Id. at
486-487 (citation omitted). “This includes pursuing all leads relevant to the merits of the case.”
Id. at 487 (quotation marks and citation omitted). “Strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation[.] Counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Id. at 485 (quotation marks, brackets, and citation omitted).
In this case, Randazzo testified to why he did not perform any additional investigation
into the telephone records before trial. First, he explained that he was given the records by
Crystal that did not support respondent’s claims. Having these records, Randazzo saw no reason
to investigate further. The records came from AT&T’s online account statement for Crystal’s
telephone. Under these circumstances, it was reasonable for Randazzo to conclude that further
investigation was not necessary. The records appeared complete. No one has explained
precisely why the one call that was actually initiated from the complainant’s telephone does not
appear on the account statement, and no one has explained why Randazzo should have
questioned the accuracy of the records he was provided.
Second, Randazzo did not view the call, even if it was made, as particularly important.
Even presuming the call occurred, it did not prove that the encounter was consensual. It was
equally possible that respondent took the complainant’s telephone away from her without her
consent, or that she allowed him to use the telephone out of fear, given that respondent had just
sexually assaulted her by force. Certainly, it is understandable that Randazzo would not want the
complainant to testify to either of these scenarios. Thus, while evidence of the call had some
potential to assist respondent’s case, it could also substantially harm it, depending on how the
complainant explained the call. By proceeding as he did, Randazzo avoided any additional
damaging testimony from the complainant regarding how respondent came to use her telephone.
Third, and perhaps of less importance, Randazzo explained that no mention of the call
was made in the police report or in other statements provided to him by respondent and Crystal.
Rather, it was shortly before trial that this information was provided. Given the evidence
Randazzo was provided, the possible harm that could come from presenting evidence that a call
was made, as well as the time constraints, we cannot fault Randazzo for failing to dig any deeper
into the issue and subpoena records from AT&T. “Defense counsel is given wide discretion in
representative. Respondent chastises Randazzo for failing to understand how to admit telephone
records at trial. There is no evidence that Randazzo did not understand how to admit telephone
records; rather, as explained, the record shows that he had very sound strategic reasons for not
admitting the records he did have in his possession at respondent’s trial. Respondent also
suggests that Randazzo did not know how to subpoena telephone records. Again, no record
evidence supports this claim. Rather, as is discussed below, Randazzo exercised reasonable
professional judgment under the circumstances and concluded that no further investigation was
necessary.
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matters of trial strategy because many calculated risks may be necessary in order to win difficult
cases.” People v Odom, 276 Mich. App. 407, 415; 740 NW2d 557 (2007). Randazzo made a
strategic decision regarding how to proceed, choosing to take certain risks instead of others.
That his strategic decisions did not ultimately win the day does not mean that his strategy was
unreasonable. See People v Williams, 240 Mich. App. 316, 332; 614 NW2d 647 (2000).
The trial court failed to address Randazzo’s strategic reasons for proceeding as he did.
The trial court held that it was objectively unreasonable for Randazzo not to admit the telephone
records at trial, but the court did not acknowledge the fact that the telephone records Randazzo
had in his possession at that point did not support respondent’s case. The trial court’s analysis
with regard to what happened at trial is flawed for the reasons discussed. And with regard to
whether Randazzo should have subpoenaed any records from AT&T, the trial court simply
explained that the records could have been obtained and authenticated at trial through an
appropriate witness, as was done during the Ginther hearing. Certainly, this could have been
done. But the question for the trial court was whether Randazzo’s decision not to undertake any
additional investigation was a reasonable professional judgment considering the specific facts
and circumstances at the time he made the decision. See Grant, 470 Mich. at 485-487. For the
reasons discussed, we conclude that Randazzo’s failure to conduct any additional investigation
into this specific area was a reasonable exercise of professional judgment. Accordingly,
respondent failed to show that Randazzo’s performance was objectively unreasonable, and is not
entitled to a new trial. See Solloway, 316 Mich. App. at 188.
B. OTHER CLAIMS THAT RANDAZZO WAS INEFFECTIVE
Respondent argues that, aside from Randazzo’s failure to present telephone records at
trial, he was ineffective for all of the reasons rejected by the trial court. Specifically, he contends
that Randazzo was ineffective for: (1) failing to file a witness list, (2) failing to call several
witnesses to testify at trial, and (3) failing to obtain a pretrial polygraph under MCL 776.21(5).
We disagree.
First, respondent is not entitled to relief on his claim that Randazzo was ineffective for
failing to file a witness list. While Randazzo could be faulted for failing to file a witness list, this
failure did not result in any prejudice to respondent. After Randazzo discussed the situation with
the prosecutor, the prosecutor explained that none of the witnesses counsel intended on calling
were a surprise, and thus, the prosecutor would not seek any relief as a result of Randazzo’s
mistake. In short, this mistake had absolutely no effect on the trial. Because relief is only
warranted where there is a reasonable probability that counsel’s error or errors affected the
outcome of trial, no relief is warranted. See People v Trakhtenberg, 493 Mich. 38, 51; 826
NW2d 136 (2012).
Respondent’s arguments that Randazzo was ineffective for failing to investigate or call
certain witnesses are also without merit. “Decisions regarding what evidence to present and
whether to call or question witnesses are presumed to be matters of trial strategy, and this Court
will not substitute its judgment for that of counsel regarding matters of trial strategy.” People v
Davis, 250 Mich. App. 357, 368; 649 NW2d 94 (2002). “Furthermore, the failure to call
witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a
substantial defense.” People v Dixon, 263 Mich. App. 393, 398; 688 NW2d 308 (2004). In this
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case, respondent argues that several witnesses should have been called to bolster his consent
defense. Randazzo raised this exact defense throughout respondent’s trial. It was identified by
Randazzo in his opening statement as the primary issue to be decided. Randazzo cross-examined
the complainant on the issue of consent, and attempted to attack her credibility. He presented
respondent’s own testimony as the primary source of support for the defense, and then argued in
closing that respondent should be believed. The failure to call other witnesses to provide
additional testimony cannot, under the circumstances, warrant a new trial. See id. (“The record
reveals that defense counsel raised the defense of consent through her cross-examination of the
complainant, and sought to bolster that defense by attacking her credibility. Defense counsel
bolstered this theory in closing argument. As the defense of consent was actually raised,
defendant’s contention is without merit.”).
And further, none of the witnesses respondent argues should have been called had much,
if anything, to offer. Respondent first argues that Randazzo should have called respondent’s
brother, Conner Ross (Conner), to testify about “prior, similar, false allegations” of sexual
assault levied against Conner by the complainant, which respondent contends would have
“directly impacted” the complainant’s credibility. Simply put, there was no prior, similar, or
false accusation. The complainant apparently felt uncomfortable during a physical encounter
with Conner that Conner acknowledged occurred, and for which Conner apologized. The trial
court did not find that this evidence would have altered the result of the trial. Given that the
evidence was not of a false accusation at all, we find no fault with that assessment, or with
Randazzo’s decision not to call Conner to testify.
Respondent argues that Ariel Crumes, another student at respondent’s school, could have
testified: (1) that the complainant was romantically interested in respondent and wanted to send
“slutty” photographs to him earlier in November 2014; (2) that the complainant was in a good
mood when she returned from a 10 to 20 minute absence from her workout on November 20,
2014; and (3) that after Crumes spoke with the complainant in the days or weeks after the
incident, she thought the complainant was not telling the truth and wanted to change her story.
The trial court found that Crumes was not credible, a determination that is entitled to great
deference. See People v Farrow, 461 Mich. 202, 208; 600 NW2d 634 (1999). Respondent fails
to address the simple fact that the trial court did not believe Crumes’s testimony. Obviously, if
Crumes’s testimony would not have been believed, it would not have changed the outcome of the
trial.
Further, Randazzo explained why Crumes was not called to testify. Although Crumes
had, at one point, indicated that the complainant had recanted or repudiated the allegations
against respondent, Crumes later stated that she had been coerced into making such claims.
Crumes indeed testified at the hearing that Crystal pressured her into writing a statement.
Crumes’s written statement also indicated that she did not have any knowledge of what occurred
between respondent and the complainant. Given those circumstances, it is reasonable that
Randazzo would not want to call Crumes to testify. Even if believed, Crumes had little to offer
to assist respondent. Calling her to testify could have opened the door for the prosecutor to
present evidence that Crumes was coerced by Crystal, evidence that would have undermined
Crumes’s credibility, and also casted a poor light on respondent and his family.
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Further, Randazzo’s assessment of Crumes’s potential testimony was quite accurate.
Crumes did not, as respondent insists, testify that the complainant recanted her allegations.
Rather, Crumes testified that, in part because of Crystal’s insistence, she tried to talk to the
complainant on multiple occasions about the incident. The complainant never recanted. Crumes
simply speculated that the complainant wanted to change her story. With regard to what
occurred on the day of the incident, Crumes wrote in her letter:
On the day that the supposed rape happened [the complainant] came to
lifting. She was really happy and excited to lift that day. It happened between 3-
4 lifting with her. Lifting went on after 4 just a little bit because I was with her.
She was really happy with herself and completing the workout.
I do not believe [respondent] participated in the act being accused against
him.
In other words, Crumes’s position was that she was with the complainant the entire time and that
nothing could have occurred between respondent and the complainant. But video shows
respondent and the complainant together shortly before 4:00 p.m. and respondent fully
acknowledged engaging in sexual activity with the complainant. Crumes’s statement shows that
she had no knowledge of the complainant’s whereabouts during or after the sexual encounter
between her and respondent.
Respondent argues that two other classmates, Trevor Muir and Cobe Bryant, could have
provided important testimony, in that they could have testified that they did not see the
complainant while respondent, Muir, and Bryant were running through the halls at the school.
Respondent argues that this “important point” would have impeached the complainant’s
testimony, as the complainant testified that she saw respondent run past her once, and then he
later stopped to talk to her. The trial court did not find Bryant or Muir credible, a decision not
addressed by respondent on appeal. Further, respondent provided essentially the same testimony
as the complainant when it came to how the two first met up. Like the complainant, respondent
also explained that he saw the complainant once while he was running and that he later stopped
running and ran into her, leading to their encounter. It is not unreasonable strategy to fail to
present this testimony. All it would have shown is that Muir and Bryant did not notice the
complainant while they were running, while respondent did. Nor is there any reason to think that
the absence of this testimony would have affected the outcome of the trial.3
3
Respondent suggests that Muir and Bryant would also have provided testimony consistent with
respondent’s timeline of events. Both Muir and Bryant testified that respondent ran with them
and was absent from their view only for a period of seconds until the group finished running
around 4:00 p.m. Muir and Bryant did not see the encounter between respondent and the
complainant, and did not see respondent or the complainant after the encounter, which all agree
did occur. Muir and Bryant indeed might have provided testimony consistent with respondent’s
timeline, but neither could have provided any testimony that would have been relevant to the sole
question in this case: whether the sexual encounter was consensual.
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Finally, respondent takes issue with the fact that Randazzo did not seek a pretrial
polygraph. The trial court did seem to err in its opinion when it stated that the only question
before the court was whether Randazzo was ineffective for failing to seek a post-trial polygraph,
and that the question of whether Randazzo should have sought a pretrial polygraph was not
before the trial court. As is discussed in detail later in this opinion, the remand proceedings were
limited by this Court to those issues specifically raised by respondent’s motion to remand.
Respondent’s brief in support of the motion to remand clearly took issue with the fact that
Randazzo did not seek a pretrial polygraph under MCL 776.21(5), noting that by failing to do so,
Randazzo “al[l] but eradicated the ability for [plea] negotiation or request for dismissal.” In fact,
the entire focus of the motion to remand, at least with regard to the polygraph, was whether
counsel should have sought one before trial under MCL 776.21(5). However, the trial court
nonetheless examined whether Randazzo acted reasonably by not requesting a polygraph
examination before trial, and concluded that he did.
It is debatable whether respondent would have even been entitled to a polygraph under
MCL 776.21(5). The statute states that a “defendant” is entitled to a polygraph. Respondent was
not a defendant; he was a respondent in a juvenile delinquency proceeding. We are aware of no
cases stating specifically that MCL 776.21(5) is or is not applicable in juvenile delinquency
proceedings. “[J]uvenile cases are not criminal proceedings.” In re Carey, 241 Mich. App. 222,
231; 615 NW2d 742 (2000). The argument could be made that the Legislature, for whatever
reason, did not intend to extend the rights granted by MCL 776.21(5) to juveniles, as the
Legislature chose to use the term “defendant,” and nothing more. See Carey, 241 Mich. App. at
232-233 (refusing to apply provisions of the Mental Health Code, MCL 330.2020 et seq.,
regarding competency examinations to juvenile delinquency proceedings because the statutes at
issue referred specifically to defendants in criminal proceedings; however, those statutes could
serve as a guide). Respondent does not make any argument explaining exactly how MCL
776.21(5) is applicable to delinquency proceedings, instead relying on the trial court’s statements
at the disposition hearing that indicated respondent could have availed himself of the statute.
Respondent does not address the possibility that the trial court was simply incorrect.
However, it is arguable that MCL 776.21(5) is applicable to a juvenile delinquency
proceeding. In In re McDaniel, 186 Mich. App. 696, 698; 465 NW2d 51 (1991), this Court held
that through operation of MCR 1.104, which is itself applicable to juvenile delinquency
proceedings through MCR 3.901(A)(1) and (B)(1), “the rules set forth in the Code of Criminal
Procedure are applicable [to juvenile delinquency matters] unless they conflict with the rules of
procedure for juvenile matters set forth in the court rules or in the Probate Code.” MCL
776.21(5) is a part of the Code of Criminal Procedure. The parties cite no court rules or rules
stated in the Probate Code with which MCL 776.21(5) would conflict. Accordingly, one could
argue that MCL 776.21(5) applies to juvenile delinquency matters.
But Randazzo explained that he did not believe the statute was applicable in a juvenile
delinquency matter. Given the lack of case law on the specific question, which seems subject to
reasonable dispute, we conclude that counsel cannot be deemed ineffective for failing to seek a
pretrial polygraph under MCL 776.21(5). See People v Reed, 453 Mich. 685, 695; 556 NW2d
858 (1996) (“Before the Court of Appeals decision in this case, no Michigan authority had held
that such an instruction can be given in this situation. Certainly, defense counsel’s performance
cannot be deemed deficient for failing to advance a novel legal argument.”).
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In any case, the trial court correctly concluded that Randazzo’s choice not to obtain a
pretrial polygraph was a matter of strategy, regardless of whether Randazzo believed respondent
was entitled to request one under the statute. At the evidentiary hearing, Randazzo gave a
number of reasons why a pretrial polygraph was not desirable in this case. Randazzo did not
believe a polygraph would be useful because it would, at best, confirm respondent’s subjective
belief that the sexual encounter was consensual. But the true question in this case was whether
the complainant consented to the encounter. Randazzo also explained that he would not
recommend obtaining a polygraph through the statute without first obtaining a private polygraph,
and that respondent’s family’s financial situation was not conducive to paying for a private
polygraph. Further, Randazzo’s experience was that the results of a private polygraph were not
always consistent with those found by a state-administered polygraph examination. There were
also risks to taking a state-administered polygraph; respondent might have made damaging
admissions during such an examination. Nor did Randazzo think that a pretrial polygraph, even
if passed by respondent, would have caused the prosecutor to dismiss the charges or negotiate a
plea. Randazzo testified that in his experience, prosecutors were unlikely to consider a
polygraph at the stage the case was in when Randazzo was retained. He also testified that in this
particular case, the prosecutor was not amenable to dismissing the charges or negotiating a plea.
The trial court found Randazzo’s testimony on the subject credible, and this testimony
reveals several strategic and practical reasons for not seeking a polygraph before trial.
Randazzo’s decision not to seek a polygraph examination under the statute was a matter of
reasonable trial strategy, and thus, the failure to obtain a pretrial polygraph cannot be considered
ineffective assistance by Randazzo. See Cline, 276 Mich. App. at 637. Further, given that the
prosecutor was not interested in dismissing the charges or negotiating a plea in this case, there
was no prejudice to respondent. See Solloway, 316 Mich. App. at 188. Therefore, Randazzo’s
failure to seek a pretrial polygraph cannot be considered ineffective assistance of counsel.
C. EXPERT WITNESS TESTIMONY
Respondent contends that the trial court abused its discretion by refusing to allow
Sabbota to testify as an expert witness at the evidentiary hearing. We disagree. A trial court’s
decision regarding whether to admit or exclude expert witness testimony is reviewed for an
abuse of discretion. People v Steele, 283 Mich. App. 472, 480; 769 NW2d 256 (2009). “A trial
court abuses its discretion when it selects an outcome that does not fall within the range of
reasonable and principled outcomes.” People v Young, 276 Mich. App. 446, 448; 740 NW2d 347
(2007).
Before the evidentiary hearing in this matter, the prosecutor filed a motion seeking to
exclude expert witness testimony respondent intended on presenting through Sabbota.
According to respondent, Sabbota, had he testified, would have been asked to provide “general
testimony as to past practices involving the Oakland County Prosecutor’s Office and best
practices for defense of” CSC cases. The prosecutor cited two cases, In re Thurston, 226 Mich
App 205, 213 n 7; 574 NW2d 374 (1997), rev’d 459 Mich. 923 (1998), and People v Kowalski,
492 Mich. 106, 121; 821 NW2d 14 (2012), for the premise that the reasonableness prong of the
ineffective assistance of counsel test was strictly a legal question to be decided by the trial court,
and as such, was not a proper subject for expert witness testimony. Respondent answered the
objection by contending that these two cases were not applicable and that in Trakhtenberg, 493
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Mich at 53, our Supreme Court not only found it proper to rely on an expert to decide whether
counsel was ineffective, but relied specifically on Sabbota’s testimony regarding best practices in
a CSC case to hold that counsel was ineffective in that matter.
It is true that in Trakhtenberg, our Supreme Court relied on Sabbota’s testimony
regarding how best to defend a CSC case to find that counsel’s performance in that case was
unreasonable. Id. And the cases cited by the prosecutor do not address claims of ineffective
assistance of counsel. In In re Thurston, this Court found an attorney guilty of contempt for
making false representations during argument of a criminal appeal. In re Thurston, 226 Mich
App at 221, 231. This Court stated in a footnote that “what constitutes proper advocacy is a
question of law and therefore not a proper subject of expert testimony.” Id. at 213 n 7. Clearly,
this Court was referring to appellate advocacy, not criminal trial practice. And in Kowalski, the
issue was whether an expert should have been allowed to testify regarding the occurrence of
false confessions; no ineffective assistance claim was discussed. Kowalski, 492 Mich. at 110.
Although the issue was not specifically litigated in Trakhtenberg, in light of our Supreme
Court’s reliance on Sabbota’s testimony in that case, we cannot agree with the prosecutor’s
initial position that there is an absolute prohibition against expert witness testimony on the
subject of the reasonableness of trial counsel’s actions.
However, in a reply brief filed in the trial court, the prosecutor explained that in People v
Marshall, 298 Mich. App. 607, 619; 830 NW2d 414 (2012), vacated in part on other grounds 493
Mich. 1020 (2013), this Court concluded that a trial court did not abuse its discretion by
precluding an expert witness from testifying at a Ginther hearing “regarding whether defense
counsel’s performance adhered to community standards and norms.” In Marshall, this Court
explained:
Expert testimony is admissible under MRE 702 if the trial court determines that
“specialized knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue . . . .” In this case, the testimony was offered at a
hearing at which the trial court acted as the trier of fact. The court found that the
proposed testimony would not be helpful because it was “well aware of the
community standards on this issue.” The trial court appropriately evaluated the
admissibility of the proposed testimony under MRE 702. Because the court was
familiar with the facts of the case and the legal standards for evaluating an
attorney’s performance relative to a claim of ineffective assistance of counsel, its
decision to exclude defendant’s proposed expert testimony was within the range
of reasonable and principled outcomes and, therefore, was not an abuse of
discretion. [Id. at 619.]
Thus, it would seem fairly clear from Trakhtenberg and Marshall that there is no per se rule that
expert testimony cannot be heard at a Ginther hearing. However, whether such testimony will
ultimately be admitted is controlled by MRE 702. Marshall, 298 Mich. App. at 619.
In this matter, the trial court explained that Sabbota’s testimony would not be helpful to
deciding the questions presented before it on remand, particularly in light of the evidence that
had been presented up to the time of the court’s ruling, which was made fairly late in the
evidentiary hearing. In other words, just as occurred in Marshall, the trial court concluded that
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MRE 702 was not satisfied because the testimony would not have been helpful to the trial court.
On appeal, respondent primarily argues that In re Thurston and Kowalski are not applicable.
That is true, but fails to address the trial court’s ruling.
In fact, respondent does very little to explain how Sabbota’s testimony could have been
helpful in this case, particularly when one considers that the trial court only had three specific
areas before it in which Randazzo was alleged to have provided deficient assistance. Respondent
initially contends that the court’s ruling denied respondent the opportunity to develop a record
regarding the polygraph question, as Sabbota would have testified that he would have sought a
pretrial polygraph, either privately or through the applicable statute. However, respondent also
contends that Sabbota would not have provided any testimony regarding what should have been
done specifically in this case, but rather, would have provided testimony of generalities; in other
words, of what generally should be done in any CSC case. As was discussed, whether Randazzo
should have sought a polygraph turns on many considerations, all of which are specific to this
case. Generalized assertions regarding ordinary practices would have been of little use to the
trial court, which was tasked with determining whether Randazzo provided ineffective assistance
to respondent in this particular case.
Respondent also suggests that the trial court’s ruling prohibited respondent from
providing testimony regarding the specialized knowledge needed to defend a CSC case, and
“what could have been done[]” in this case. This vague argument fails to establish any reason
why Sabbota’s testimony would have been helpful to the trial court when it came to deciding the
specific questions at issue in this case. As such, respondent fails to demonstrate any error
warranting relief.
D. SCOPE OF REMAND PROCEEDINGS
Finally, respondent contends that the trial court erred by limiting the scope of the remand
proceedings to those areas identified by respondent in the motion to remand he filed in this
Court. We disagree. “Whether a trial court followed an appellate court’s ruling on remand is a
question of law that this Court reviews de novo.” Schumacher v Dep’t of Natural Resources,
275 Mich. App. 121, 127; 737 NW2d 782 (2007).
This Court granted respondent’s motion to remand in an order stating the following:
The Court orders that the motion to remand pursuant to MCR 7.211(C)(1)
is GRANTED and the matter is remanded so that respondent-appellant may
conduct an evidentiary hearing in support of his second motion for a new trial
based on ineffective assistance of counsel. The trial court shall rule on the motion
after conducting the evidentiary hearing. Proceedings on remand are limited to
the issues as raised in the motion to remand. [In re Christopher Ross Jr,
unpublished order of the Court of Appeals, entered July 21, 2016 (Docket No.
331096) (emphasis added).]
This Court’s remand order was exceptionally clear: the proceedings on remand were limited to
the specific issues respondent chose to raise in the motion to remand filed in this Court. Id.
“When a case is remanded by an appellate court, proceedings on remand are limited to the scope
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of the remand order.” People v Canter, 197 Mich. App. 550, 567; 496 NW2d 336 (1992). The
trial court was correct to limit the scope of the remand proceedings to the three areas identified in
respondent’s motion to remand filed with this Court. This Court’s order clearly limited the
remand proceedings to those issues, and it would have been error for the trial court to allow
respondent to present evidence or pursue claims beyond those specific areas. See id.
Reversed and remanded for reinstatement of the trial court’s initial adjudication and order
of disposition. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly
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