O People of Michigan v. Joshua Lee Dufek ( 2022 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 31, 2022
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 STEPHENS, JJ.
PER CURIAM.
I. INTRODUCTION
This matter returns to us on remand from the Supreme Court. In its remand order, that
Court vacated part VII of this Court’s prior opinion, see People v Dufek, unpublished per curiam
opinion of the Court of Appeals, issued June 10, 2021 (Dkt No. 349918), pp 22-25, which
addressed defendant’s arguments regarding ineffective assistance of counsel. People v Dufek, __
Mich __; __ NW2d __ (2022). That portion of the opinion was vacated because, although this
Court cited the correct standard for assessing prejudice when counsel’s performance fell below the
standard of reasonableness, the Court did not apply that standard in its analysis:
Although the Court of Appeals cited the correct standard for assessing prejudice
under Strickland v Washington, 466 US 668 (1984), it failed to apply that standard.
The defendant was not required to show that, but for counsel’s deficient
performance, the result of the proceedings would have been different, or that
prosecutorial error denied him a fair and impartial trial. Rather, prejudice is
established where a defendant shows that “but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been different.”
People v Trakhtenberg, 493 Mich 38, 51 (2012) (emphasis added). On remand, the
Court of Appeals shall resolve the defendant’s claims of ineffective assistance of
counsel under this standard. [People v Dufek, __ Mich at __.]
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We now re-address defendant’s ineffective assistance of counsel arguments using the fully
articulated “reasonable probability” standard for establishing prejudice.1 Although the Supreme
Court only had concern for the standard applied in determining prejudice on two occasions, we
repeat our analysis on the legal challenges to trial counsel’s performance to provide context to the
prejudice analysis. We again affirm.
II. ANALYSIS
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
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 motions to remand
were 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).
To establish ineffective assistance of counsel, the defendant must show “(1) counsel
rendered assistance that ‘fell below an objective standard of reasonableness’ under prevailing
professional norms and (2) that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different[.]’ ” People v
Muhammad, 326 Mich App 40, 63; 931 NW2d 20 (2018) (citation omitted, brackets original). “
‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ”
Id. (citation omitted). The defendant bears the burden to demonstrate deficient performance and
prejudice; thus, the defendant bears the burden of establishing the factual predicate for his
ineffective assistance of counsel argument. Id. “Decisions regarding what evidence to present . . .
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). There is a strong presumption that the assistance of counsel constitutes sound
trial strategy, which the defendant must overcome. Id.A. OTHER-ACTS EVIDENCE
As we concluded in our original opinion, defense counsel opened the door to the admission
of other-acts evidence when she asked Trisha Sweet on cross-examination whether she had ever
heard from any other third parties that defendant had molested any girls, including AD. People v
Dufek, unpublished op at pp 2-5. Defendant argues that had defense counsel properly investigated
this case, she would not have asked Sweet this question, and the admission of the other-acts
evidence was highly prejudicial to defendant.
1
We granted defendant’s motion to file a supplemental brief. The “supplemental” brief is 40
pages, while in his principal brief defendant’s argument on ineffective assistance of counsel
comprised a mere 8 pages. The people also filed a supplemental brief, comprised of 34 pages.
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A failure to conduct a reasonable investigation can amount to ineffective assistance.
People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). “When making a claim of
defense counsel’s unpreparedness, a defendant is required to show prejudice resulting from this
alleged lack of preparation.” People v Caballero, 184 Mich App 636, 640; 459 NW2d 80 (1990).
Defendant has failed to meet this burden. Although Sweet answered defense counsel’s question
by saying that she had heard a third party claim that defendant molested another girl, and on
redirect the prosecutor asked Sweet who she heard this from, and whether the alleged victim was
a minor, the prosecutor also stated that she would not use this information in closing argument,
and she did not. Defense counsel also tried to rephrase the question or withdraw it, but the trial
court directed Sweet to answer once it was made clear that she had heard and understood the
question.
Nonetheless, defendant is unable to demonstrate that there is a reasonable probability that,
but for defense counsel’s error in opening the door, the result of the proceedings would have been
different. Muhammad, 326 Mich App at 63. AD testified that defendant sexually assaulted her,
and this testimony was sufficient to convict defendant. People v Gursky, 486 Mich 596, 623; 786
NW2d 579 (2010). Had defense counsel moved for a mistrial or a curative instruction, she most
likely would have been denied for having opened the door to the other-acts evidence, and such
requests would have been futile. People v Whetstone, 119 Mich App 546, 554; 326 NW2d 552
(1982); People v McMaster, 154 Mich App 564, 570; 398 NW2d 469 (1986). Therefore, defendant
has failed to establish ineffective assistance of counsel with regard to the admission of the other-
acts evidence.
B. INTERROGATION VIDEO
Defendant also argues that defense counsel was ineffective because she stipulated to the
admission of the interrogation video, wherein Munson allegedly improperly bolstered AD’s
credibility and suggested that defendant was guilty, and introduced defendant’s statement that AD
had never lied about anything of this nature before.
Defendant relies on People v Tomasik, 498 Mich 953, 953; 872 NW2d 488 (2015), where
the Supreme Court reversed in part the opinion of this Court, and remanded to the circuit court for
a new trial, providing:
The trial court abused its discretion by admitting the recording of the defendant’s
interrogation. Because nothing of any relevance was said during the interrogation,
it was simply not relevant evidence, and thus was not admissible evidence. See
MRE 401. The admission of this evidence amounted to plain error that affected the
defendant’s substantial rights and seriously affected the fairness, integrity or public
reputation of judicial proceedings. In a trial in which the evidence essentially
presents a ‘one-on-one’ credibility contest between the complainant and the
defendant, the prosecutor cannot improperly introduce statements from the
investigating detective that vouch for the veracity of the complainant and indicate
that the detective believes the defendant to be guilty. [Id. (citations omitted).]
In the interrogation video in Tomasik, the detective had said that she “ ‘investigated the heck out
of the case and knows everything that has gone on’ and that she ‘kn[e]w things happen[ed] when
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[the victim] came over to your house years ago.’ ” People v Tomasik, unpublished per curiam
opinion of the Court of Appeals, issued January 26, 2010 (Docket No. 279161), pp 6-7, vacated
488 Mich 1053 (2011).
Here, the interrogation video contained relevant evidence, and Munson’s statements did
not vouch for AD’s credibility. Munson engaged in interrogation tactics when he said that he had
AD’s medical records, but no further discussion ensued. Munson explained to defendant how
DNA evidence works, and asked defendant if he would be concerned if a DNA sample was taken
and compared to other evidence, and defendant said that he was not concerned. Munson asked
defendant to be honest, and said “if anything happened” to consider AD because such proceedings
would be hard for her, and she would be “dragged through the coals.” Thus, Munson did not
express any sentiment that he thought that defendant was guilty. Munson asked if AD had ever
lied before, to which defendant responded, “Not of this nature.” This does not amount to vouching
for AD’s credibility. Lastly, when defendant said that Mullins would always get him if one of the
children had a nightmare because Mullins would hear the child first and defendant was a heavy
sleeper, Munson found it “hard to believe” because he would expect a little girl of AD’s age to call
for her father when waking up from a nightmare. The statements made by Munson are
distinguishable from those made in Tomasik because they did not constitute a conclusion or
opinion as to defendant’s guilt or the amount of evidence amassed against defendant. As such,
defendant has failed to establish ineffective assistance of counsel by defense counsel’s stipulation
to admit the video into evidence.
Additionally, defendant argues that the admission of the interrogation video prejudiced him
because it introduced his statement that AD had not lied about anything serious before, and this
was irrelevant to whether AD was lying about these allegations. “Decisions regarding what
evidence to present . . . are presumed to be matters of trial strategy.” People v Rockey, 237 Mich
App 74, 76; 601 NW2d 887 (1999). “This Court will not substitute its judgment for that of counsel
regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of
hindsight.” Id. at 76-77. Although the prosecutor relied on defendant’s statement that AD had
never lied about anything of this nature before, defense counsel’s decision to stipulate to admission
of the interrogation video is a matter of trial strategy that will not be substituted by this Court. Id.Moreover, defendant was advised of his Miranda warnings2 during the interrogation, waived them,
and voluntarily chose to speak to Munson. Thus, any objection by defense counsel to the
admission of the video would have been futile. See People v Thomas, 260 Mich App 450, 457;
678 NW2d 631 (2004) (“Counsel is not ineffective for failing to make a futile objection.”).
C. KIDS TALK TAPE
Next, defendant argues that defense counsel was ineffective for failing to play the Kids
Talk tape, which allegedly contained impeachment material to be used with AD.
Trial counsel’s decisions regarding what evidence to present are a matter of trial strategy.
Rockey, 237 Mich App at 76. AD testified at trial that she was seven years old when she lived
with defendant and the sexual assaults occurred, and that she was not in diapers at the time.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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Assuming, arguendo, that the Kids Talk tape would have established an inconsistency in AD’s
testimony, defendant cannot establish that there is a reasonable probability that, but for defense
counsel’s failure to play the video, the results of the proceedings would have been different.
Muhammad, 326 Mich App at 63. Defendant stated in the interrogation video that AD stopped
wearing diapers at the normal time, but he did not know when because it was at a time when AD
was living with Sweet, and defendant did not see AD often. Defendant said that AD had no
problems with bed wetting after she was out of diapers, and never recalled any wet spots on AD’s
bed. AD testified that there was a wet spot on her bed only after the times that defendant penetrated
her with his penis, not his fingers. Defendant was only convicted of the two counts of first-degree
CSC for digital penetration; the jury was hung on the two counts of first-degree CSC for
penetration with his penis, which were later dismissed. Thus, defendant cannot demonstrate that
he was prejudiced by defense counsel’s failure to play the Kids Talk tape in an attempt to impeach
AD. Id.
D. PROSECUTORIAL ERROR
In section IV of our prior opinion, which was not vacated by the Supreme Court, we
rejected defendant’s argument that defense counsel was constitutionally ineffective when she
failed to object to the numerous instances of alleged prosecutorial error. And, only one of the
alleged instances of prosecutorial error concerned improper “bolstering” of AD’s credibility—
when the prosecutor misquoted defendant. We conclude that none of the alleged instances of
prosecutorial error—all of which were previously rejected by the Court and left alone by the
Supreme Court—when considered alone or together, resulted in prejudice to defendant. In other
words, considering these alleged instances of prosecutorial error together does not result in a
conclusion that but for these instances of alleged prosecutorial error, there was a reasonable
probability that the result of the proceeding would have been different. The victim’s testimony
alone is sufficient to support the conviction, MCL 750.520h, and the other remaining evidence
establishes that defendant was not prejudiced.
E. FAILURE TO LIST BOARD AS WITNESS
Defendant next argues that defense counsel was ineffective for failing to list Board on the
witness list, which precluded defense counsel from calling Board to testify. Defendant asserts that
this prejudiced defendant because Board could have testified regarding AD’s attitude and
relationship with defendant in 2017, and that defense counsel should have moved for a mistrial
once the court barred Board from testifying.
Defense counsel admitted that she inadvertently left Board off the witness list. However,
defendant cannot prove that but for this error, there was a reasonable probability that the result of
the proceedings would have been different. Muhammad, 326 Mich App at 63. Defendant relies
on an affidavit of Board, attached as an exhibit to his brief on appeal. This affidavit was not part
of the lower court record, so it cannot be considered on appeal. See People v Seals, 285 Mich App
1, 20-21; 776 NW2d 314 (2009) (affidavits attached to appellate brief were not part of the lower
court record and could not be considered on appeal). Regardless, any testimony offered by Board
as to the love and relationship between AD and defendant would have been cumulative to the
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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. Had defense counsel moved for a mistrial after the trial court ruled that Board
could not testify, it would have been futile because it was the error of defense counsel to leave
Board off the witness list and the evidence was cumulative. Whetstone, 119 Mich App at 554;
McMaster, 154 Mich App at 570. Therefore, defendant cannot establish ineffective assistance of
counsel in this regard.
F. CUMULATIVE EFFECT
Lastly, defendant argues that each of the above-listed errors made by defense counsel were
serious enough standing alone to constitute ineffective assistance, but in the alternative, the
cumulative effect of the errors deprived him of a fair trial. However, this Court only aggregates
actual errors when determining whether the cumulative effect of errors warrants a new trial.
People v LeBlanc, 465 Mich 575, 591 n 12; 640 NW2d 246 (2002). The only actual errors that
defense counsel made were opening the door to other-acts evidence and her failure to list Board as
a witness. However, these do not rise to the level of ineffective assistance of counsel, nor did any
of the other claimed instances of ineffective assistance. Thus, in terms of ineffective assistance,
there is no cumulative effect that would warrant a new trial. Id.Affirmed.
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Cynthia Diane Stephens
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