O People of Michigan v. Joshua Lee Dufek ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 5, 2023
Plaintiff-Appellee,
v No. 349918
Wayne Circuit Court
JOSHUA LEE DUFEK, LC No. 18-007516-01-FC
Defendant-Appellant.
ON REMAND
Before: MURRAY, P.J., and JANSEN and MARKEY, JJ.
PER CURIAM.
I. INTRODUCTION
This matter returns to us for a second time on remand from the Supreme Court, with
instructions to reconsider the prejudice prong of defendant’s ineffective assistance of counsel
argument relative to prior bad acts evidence in light of Strickland v Washington, 466 US 668; 104
S Ct 2052; 80 L Ed 2d 674 (1984). After a jury trial, defendant was convicted of two counts of
first-degree criminal sexual conduct (CSC) under MCL 750.520b(2)(b), and he appealed as of
right. People v Dufek, unpublished per curiam opinion of the Court of Appeals, issued June 10,
2021 (Docket No. 349918), p 1. Originally, we held in part VII of this Court’s prior opinion, see
id. at 22-25, that defendant failed to establish ineffective assistance of counsel because he could
not show that, but for counsel’s deficient performance, the result of the proceedings would have
been different. The Supreme Court vacated that portion of the opinion because, although this
Court cited the correct standard under Strickland for assessing prejudice when counsel’s
performance fell below the standard of reasonableness, the standard was not applied in the
analysis. People v Dufek, 969 NW2d 27 (Mich, 2022). The Supreme Court directed us on remand
to determine whether defendant showed that “ ‘but for counsel’s deficient performance, there [was]
a reasonable probability that the outcome would have been different.’ ” Id., citing People v
Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012) (emphasis added).
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In that opinion on remand, we again recognized that counsel was objectively unreasonable
for opening the door to other-acts evidence and found that the error did not prejudice defendant
because AD’s testimony that defendant sexually assaulted her was nevertheless sufficient to
convict defendant. People v Dufek (On Remand), unpublished per curiam opinion of the Court of
Appeals, issued March 31, 2022 (Docket No. 349918), pp 2-3. The Supreme court again vacated
our judgment and remanded the matter to us for further consideration, People v Dufek, 980 NW2d
62 (Mich, 2022), specifically ordering us to provide a more detailed analysis of whether the
admission of the prior bad acts evidence prejudiced defendant such that a new trial was warranted:
The defendant argued on appeal that his trial counsel was ineffective for
asking his ex-wife whether she was aware of any other allegations that the
defendant had molested a child. In response, the witness said she had learned from
the defendant’s sister that he had molested her when they were children. The Court
of Appeals agreed with the defendant that his counsel was objectively unreasonable
for opening the door to other-acts evidence. But it held that he was not prejudiced
by the error. In assessing whether the defendant was prejudiced, the panel made a
critical error.
It concluded that because the victim’s testimony was ‘sufficient to convict
defendant,’ he was not prejudiced by the admission of other-acts evidence. People
v Dufek (On Remand), unpublished per curiam opinion of the Court of Appeals,
issued March 31, 2022 (Docket No. 349918), p 3. Sufficient evidence to convict
does not obviate the need to make a prejudice determination. Rather, as the Court
noted in Strickland, a prejudice analysis requires determining how the error affected
other evidence properly presented.
On remand, the Court of Appeals shall resolve the defendant’s claims of
ineffective assistance of counsel under the correct standard, evaluating the
interaction of the improper other-acts evidence with the other evidence presented
at trial. Additionally, since this issue logically connects to the defendant’s claim of
cumulative error, that claim should also be addressed on remand, if necessary. [Id.]
Pursuant to this directive, we now readdress our prejudice analysis with direct attention to what
bearing admission of the other-acts evidence had on the other properly presented evidence.1 We
affirm.
II. STANDARD OF REVIEW
To preserve an ineffective assistance of counsel argument, the defendant must move for a
new trial or request an evidentiary hearing. People v Head, 323 Mich App 526, 538-539; 917
NW2d 752 (2018). Defendant failed to file a motion for a new trial or request an evidentiary
1
Because the Court’s order specifically directs us to readdress only our prejudice analysis related
to defendant’s challenge of defense counsel’s admission of other-acts evidence, we adopt
subsection B through E of our previous opinion, which relates to defendant’s other ineffective
assistance of counsel arguments. Dufek (On Remand), unpub op at 2-3.
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hearing in the trial court; however, he filed a motion to remand with this Court under MCR
7.211(C). This motion, and a subsequent one, were denied. Because defendant’s motion to remand
was denied and no evidentiary hearing was held in the trial court, defendant’s ineffective assistance
of counsel argument is limited to review for errors apparent on the record. Head, 323 Mich App
at 539. “Whether a defendant was deprived of the effective assistance of counsel presents a mixed
question of fact and constitutional law. Any findings of fact are reviewed for clear error, while
the legal questions are reviewed de novo.” Id. (citations omitted).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
As recounted in our prior opinions, the objectively unreasonable act of defense counsel
was opening the door to the admission of other-acts evidence when she asked Trisha Sweet on
cross-examination whether she had ever heard from any third parties that defendant had molested
any girls, including AD. Dufek, unpub op at 22. After several objections and back-and-forth
statements between counsel and the witness, Sweet testified that she had, as defendant’s sister told
Sweet that defendant molested her when she was a child.
Because our conclusion that defense counsel’s questioning of Sweet on this point fell below
an objective standard of reasonableness has been undisturbed, we must redetermine whether the
deficiencies in defense counsel’s performance were so prejudicial to defendant that he was
deprived of a fair trial. Strickland, 466 US at 687; People v Grant, 470 Mich 477, 486; 684 NW2d
686 (2004). To establish prejudice, defendant must show that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 US at 694. “ ‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ ” People v Muhammad, 326 Mich App 40, 63; 931 NW2d
20 (2018) (citation omitted). Under Strickland’s prejudice standard, “[t]he likelihood of a different
result must be substantial, not just conceivable[,]” Harrington v Richter, 562 US 86, 112; 131 S
Ct 770; 178 L Ed 2d 624 (2011), as “not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the proceeding.” Strickland, 466 US at 693.
The defendant bears the burden of demonstrating deficient performance and prejudice; thus, the
defendant bears the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel. Muhammad, 326 Mich App at 63 (citation omitted).
We now turn to an examination of the untainted evidence presented by the prosecution that
supports defendant’s convictions. First was AD’s testimony, which alone can provide sufficient
evidence to support a conviction. People v DeLeon, 317 Mich App 714, 719; 895 NW2d 577(2016), citing MCL 750.520h. AD testified that defendant would, on numerous occasions and at
her invitation, come into her room when she was scared so that he could rub her back. AD provided
specificity as to where defendant was positioned and what he was wearing when he rubbed her
back, and when he engaged in the different penetrations after rubbing her back. AD also testified
to a “wet spot” that was left on the bed after one occasion and not knowing what it was from. She
also testified about why she ended up disclosing the incidents three years after they occurred.
Though he denied any improper behavior, defendant did admit that he would go into AD’s
room at night when she was scared in order to rub her back. In other words, he provided
corroboration to AD’s testimony about defendant coming into the room at night and rubbing her
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back.2 Similarly, AD’s mother, Sweet, provided emotional3 testimony about AD’s disclosure, and
that upon this disclosure, she immediately took AD to the hospital. AD’s medical records, which
were admitted into evidence, also contained statements that were consistent with what AD testified
to at trial.
Weighing against this evidence is the improper testimony provided by Sweet, who
answered defense counsel’s question by saying that she had heard a third party claim that defendant
molested another girl. On redirect, Sweet identified the third party as defendant’s sister, who
allegedly revealed to Sweet that defendant molested her when she was a minor. This testimony
occurred on five pages of transcript (out of approximately 265 pages of transcripts covering two
and a half days of trial), though there were only three questions and answers that provided the
other acts evidence. Through follow-up questions by defense counsel, Sweet also admitted that
she never made any complaints or reports with the police about the statement until the case against
defendant was brought. The prosecutor did not use this information in closing argument, and it
was not otherwise addressed again before the jury.
Upon review of the record, we again conclude that there was not a reasonable probability
that, but for defense counsel’s error, the outcome of the trial would have been different. As we
have recounted, AD provided fairly detailed testimony about the incidents, and some of that
testimony was corroborated by defendant (the touching during the back rub) and confirmed by
Sweet. And though Sweet indeed provided testimony that defendant had molested his sister when
she was a child, which the jury could have used as confirmation of defendant’s proclivity to molest
young girls, Sweet did not testify to any specific details of defendant’s alleged abuse of his sister,
and his sister did not testify. Thus, the jury was not presented with any evidence regarding (1)
how old defendant or his sister was when the alleged incident occurred; (2) where the event
occurred, and under what circumstances, (3) whether the alleged incident was ever reported, and
if it was, what was the outcome, and (4) whether it was an isolated event, or something prolonged.
In other words, all the jury heard during Sweet’s brief testimony on the issue was that a non-
witness told Sweet that defendant molested her as a child. Though it would have obviously been
better had that testimony never come out, Sweet’s testimony was short and vague, especially when
compared to the more specific testimony from AD and the limited corroboration of some of that
testimony. And, importantly, the testimony was never raised by either party for the remainder of
the trial. We are not convinced that, but for Sweet’s brief testimony, which was not referenced
again during trial, there was a substantial likelihood that the outcome of the proceedings would
have been different. See, e.g., People v Lumsden, 168 Mich App 286, 299; 423 NW2d 645 (1988)
(finding no abuse of discretion in the trial court’s denial of a mistrial, even though two witnesses
suggested that the defendant had committed an uncharged murder, given the fleeting nature of the
remarks and the fact that they were not subsequently “emphasized to the jury”).
Nor does the cumulative effect of the other errors change our opinion. The other errors
were (1) the admission of Sweet’s testimony that AD told her that “My dad did that to me [],” (2)
2
AD and defendant’s consistent testimony on this point likely cast doubt on the veracity of Sara
Mullins’ testimony, as she testified that defendant never went into AD’s room at night.
3
The transcript indicated that Sweet was sobbing during this part of her testimony.
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the prosecutor’s closing argument about whether female genitalia needs to be ripped to prove
abuse, which was successfully objected to, and (3) defense counsel’s failure to add Board as a
witness. None of these errors, when added to the other acts evidence, changes our view. As to
Sweet’s statement, that was merely cumulative to what AD had already testified to before the jury.
With respect to the prosecutor’s closing argument, it was objected to, and the jury was instructed
that statements by counsel are not evidence. See People v Thomas, 260 Mich App 450, 456; 678
NW2d 631 (2004) (“to the extent that the prosecutor’s comments crossed the line into a civic duty
argument, any minimal prejudice was cured by the trial court’s instructions that the jury had to
decide the case on the evidence and that the remarks of counsel were not evidence”). Regarding
defense counsel’s failure to add Board as a witness, the record shows that any testimony offered
by Board regarding the love and relationship between AD and defendant would have been
cumulative to the testimony provided by the defense’s other witnesses. Mullins and defendant
testified that defendant and AD had a loving relationship, and AD testified that she had a loving
relationship with defendant. Therefore, whether considered individually or collectively, none of
these errors deprived defendant of a fair trial. People v LeBlanc, 465 Mich 575, 591 n 12; 640
NW2d 246 (2002).
Affirmed.
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Jane E. Markey
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