Ineffective assistance of counsel; Failure to call witnesses whose testimony would have impeached the victim & established that defendant did not have violent propensities; Trial strategy; Prejudice

Concluding that defendant was not denied the effective assistance of counsel, the court affirmed. He was convicted of AWIM, assault by strangulation, interference with electronic communications, and domestic violence. He argued “that defense counsel was constitutionally ineffective for failing to call three witnesses whose testimony would have impeached the victim and established that defendant did not have violent propensities toward the victim.” Defendant could not “overcome the presumption that counsel’s decision to avoid calling these witnesses was sound trial strategy.” As the prosecution correctly noted, “some of the witnesses’ proposed testimony would have been inadmissible at trial. For example, evidence of a person’s character or character trait is generally inadmissible for the purpose of proving conformity on a particular occasion, MRE 404(a), and defendant does not identify an applicable exception. Any statements allegedly made by the victim to the proposed witnesses would additionally be inadmissible hearsay if presented for the truth of the matter asserted.” Further, the court found that “to the extent that such statements might have been admissible under a hearsay exception or for purposes of impeachment, defense counsel may well have made a sound strategic decision not to call these witnesses in an effort to avoid opening the door to the further admission of evidence of specific instances of conduct by defendant. Had such evidence been admitted, it could have proved particularly damaging, given that the record indicates that defendant has been accused of domestic violence by others besides the victim.” The court held that defendant “failed to establish that counsel’s decision to not call the three proposed witnesses fell below an objective standard of reasonableness.” Even if the court “were to agree that defendant established the factual predicate for his claim, he cannot establish that he was prejudiced by defense counsel’s decision.” The court concluded that given “the breadth of the evidence in the record supporting defendant’s guilt, it is unlikely that calling any of the now proffered proposed impeachment witnesses would have led to a more favorable outcome in this matter.”