Ineffective assistance of counsel; Failure to request a specific unanimity jury instruction; People v Cooks; Prejudice; Failure to present expert testimony on child memory; Failure to present exculpatory lay witness testimony; Failure to impeach the victim using prior inconsistent statements; Failure to object to the victim’s testimony about his own prior statements; Admission of defendant’s confession; The corpus delicti rule; Prosecutorial misconduct; Appeal to the jury’s sympathies & sense of civic duty; Cumulative effect of errors

Holding that defense counsel’s performance in failing to request a specific unanimity jury instruction fell below an objective standard of reasonableness and “that defendant was prejudiced by counsel’s deficient performance[,]” the court reversed his conviction and remanded for a new trial. He was convicted of CSC I. The court concluded the trial court erred in ruling after a Ginther hearing “that defense counsel was not ineffective for failing to request a specific unanimity instruction because” one was unnecessary. The jury had the option of convicting on the single CSC I “count based on either the penile penetration or the digital penetration. The prosecutor repeatedly reminded the jury of that. Thus, the prosecution offered two separate acts, each of which would satisfy the actus reus of the” one CSC I charge. “But those two acts were materially different, . . . and defendant interposed two entirely separate defenses to the prosecutor’s claim that each of those acts constituted a crime. The evidence regarding penile penetration came largely from the victim’s testimony[.]” The court noted that defendant “did not dispute that the digital penetration occurred, but argued that it was not sexual in nature.” The court found that the alleged alternative acts were “conceptually distinct, and the competing parties offered materially distinct proofs regarding the two alternatives.” It noted that no “negative consequence would flow from” requesting a specific unanimity instruction, and failing to do so “introduced the risk that the jury would convict defendant even if [it] could not agree on which penetration [he] committed. In that respect, defense counsel’s performance fell below an objective standard of reasonableness.” Further, defendant was prejudiced. Due to “the manner in which the case was charged and how the jury was instructed, we cannot determine whether the jury convicted [him] on the basis of the penile penetration, the digital penetration, or both.” As a result, the court could not “determine whether the jury was unanimous on which penetration was established beyond a reasonable doubt. There exists the possibility that some jurors convicted defendant based on the penile penetration only, while other jurors convicted [him] based on the digital penetration only.” Thus, the court concluded “that a specific unanimity instruction was required[.]” It also found that defense counsel was ineffective related to the failure to present expert testimony and to present a lay witness’s exculpatory testimony, and that the cumulative effect of the errors “undermined confidence in the reliability of the verdict.”