People v Armstrong

S T A T E  O F  M I C H I G A N 
v No. 142762 
In this case, we consider whether the ineffective assistance of defendant’s trial 
counsel in failing to seek the introduction into evidence of cell phone records that would 
have undermined the complainant’s credibility prejudiced defendant, thereby entitling 
him to a new trial.  The Court of Appeals held that, even assuming that defense counsel’s 
performance fell below an objective standard of reasonableness, defendant had failed to 
show resulting prejudice.  For the reasons stated in this opinion, we disagree and instead 
hold that defense counsel’s ineffective assistance prejudiced defendant.  Accordingly, in 
Michigan Supreme Court
Lansing, Michigan
Chief Justice: 
Robert P. Young, Jr. 
Michael F. Cavanagh 
Marilyn Kelly 
Stephen J. Markman 
Diane M. Hathaway 
Mary Beth Kelly 
Brian K. Zahra 2
lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and 
remand the case to the Otsego Circuit Court for a new trial.       
Defendant, a 25-year-old male, was charged with engaging in sexual acts with the 
complainant, a 15-year-old girl, on two occasions.  At the time of the alleged sexual acts, 
the complainant was living with her adoptive mother, Barbara Kamae, who is actually the 
complainant’s biological grandmother.  The  complainant’s biological mother, Lisa 
Annise, gave birth to her at a very young age, and her relationship with the complainant 
is more like that of a sister.  Through Lisa’s coworker, Donna Eckles, the complainant 
became acquainted with defendant, who is Donna’s half brother.  William Eckles is 
Donna’s husband.  
Defendant and the complainant met on three occasions in the spring of 2005.  The 
first meeting took place at defendant’s residence, where the complainant spent the night 
with William, defendant, and Titto, one of defendant’s friends.  William testified that he 
remained with the complainant and defendant throughout the entire night because he did 
not trust her.  Following this first meeting, the complainant and defendant spoke 
frequently over the phone.   
The complainant and defendant met for the second time a few weeks later at the 
home of defendant’s uncle.  Many others were present, including Donna and William.  
The complainant testified that she and defendant watched a movie in the basement while 
the others remained upstairs.  According to the complainant, she  resisted defendant’s 
advances and eventually went upstairs on the pretext of using the restroom.  When she 
returned to lie down on the couch, defendant allegedly removed the cushions to form a 3
bed on the floor.  The complainant claimed that while lying down on the cushions, she 
attempted to maintain her distance from defendant, but he moved closer to her, tried to 
kiss her, and asked her to undress.  When she refused to comply,  defendant allegedly 
removed the complainant’s clothes and forced  her to engage in oral and vaginal sex, 
during which defendant allegedly choked her, slapped her, and made threats against her 
life.  The complainant claimed that the intercourse lasted for more than an hour.   
William, however, testified that he remained in the basement with defendant and 
the complainant nearly the entire night because he did not trust her.  According to 
William, he slept on the floor while defendant and the complainant slept on one of the 
couch’s foldout beds.  William testified that the three of them went to sleep at the same 
time.  He never heard any sexual activity.   
Donna recalled the evening somewhat differently.  According to Donna, she and 
the complainant were supposed to share a bed upstairs.  When Donna woke up to find the 
complainant missing, she went downstairs and found the complainant sitting on the arm 
of the couch attempting to wake defendant.  William was also still in the basement.  The 
complainant refused Donna’s request that she return upstairs.  Following this second 
meeting, defendant and the complainant continued to communicate by phone calls and 
text messages.   
Defendant and the complainant met for the third and  final time at her home.  
Defendant brought Titto along, and the three of them talked in the living room while 
Barbara, who was on heavy prescription medication at the time, slept in the recliner in the 
same room.  The complainant claimed that at some point defendant followed her into her 
bedroom, shut the door, and ordered her to remove her clothes.  As before, defendant 4
allegedly slapped, choked, and threatened the complainant and forced her to submit to 
oral and vaginal sex over an extended period.  The complainant contended that Barbara 
remained asleep in the living room while the intercourse took place.  Afterward, the 
complainant and defendant dressed, defendant fell asleep in the bed, and the complainant 
returned to the living room.  When defendant awoke, the three of them (defendant, the 
complainant, and Titto) left to pick up some fast food.   
Barbara testified that she awoke in her recliner to find a stranger, Titto, sitting on 
her couch and then found defendant and the complainant in the bedroom.  According to 
Barbara, she directed defendant to leave the bedroom, and the complainant left with 
defendant and Titto to pick up the fast food.   
The complainant did not see defendant again until trial.  She did not mention the 
alleged rapes to anyone until months after the second alleged rape, when a counselor 
conducting a background survey asked her whether anyone had ever sexually assaulted 
her.  The complainant, believing that her response would remain confidential, told the 
counselor that defendant had sexually assaulted her.   The counselor reported the 
allegations to the police.   
At trial, attacking the complainant’s credibility became central to the defense’s 
case.  Most significantly, Lisa, Barbara, and the complainant’s stepfather all averred that 
the complainant had falsely accused her stepfather of raping her in the past.  Furthermore, 
Lisa characterized the complainant as a compulsive liar, and Barbara indicated that the 
complainant lied and “just want[ed] to get people in trouble.”   
The cell phone records at issue in this appeal further call into question the 
complainant’s credibility.  At trial, the prosecution elicited unequivocal testimony from 5
the complainant that  she never communicated with defendant following their third 
meeting, at which the second rape allegedly occurred, but she acknowledged that 
defendant continued to try to communicate with her.  On cross-examination, defense 
counsel confronted the complainant with defendant’s cell phone records, which revealed 
two incoming calls from Barbara’s cell phone just days after the third meeting.  At that 
point, the complainant admitted calling defendant once or twice from Barbara’s phone.  
However, when confronted with additional  cell phone records revealing what defense 
counsel described as hundreds of incoming calls following the third meeting, coming not 
from Barbara’s cell phone, but from the complainant’s cell phone, she unequivocally 
denied contacting defendant after their third meeting when the second alleged rape 
occurred.  According to the complainant, she wanted no further contact with the man who 
had so brutally violated her. 
Defense counsel then attempted to introduce into evidence defendant’s cell phone 
records rebutting the complainant’s testimony, but the prosecution objected for lack of a 
foundation.  The trial court sustained the  objection.  Defense counsel, who had been 
practicing law for only eight months at the  time, made no further effort to have the 
records admitted.   
During closing argument, the prosecution told the jury that it must disregard the 
cell phone records because they had not been properly admitted into evidence.  The 
prosecution also told the jury to disregard the complainant’s  testimony in which she 
acknowledged making some of the calls to defendant because the documents on which 
the complainant based her testimony had not been properly admitted.  The prosecution 
even suggested the possibility that defendant  or defense counsel had fabricated the cell 6
phone records.  Finally, the trial court instructed the jury to disregard evidence that had 
not been properly admitted and that evidence consists only of sworn testimony and 
exhibits in evidence.   
The jury convicted defendant of two counts of third-degree criminal sexual 
conduct, MCL 750.520d(1)(a) (victim at least 13 but less than 16 years old), and the trial 
court sentenced defendant to concurrent terms of 7 to 15 years’ imprisonment.  In 
defendant’s appeal as of right, appellate counsel moved the Court of Appeals to remand 
the case for a Ginther hearing on the issue of ineffective assistance of counsel.  Attached 
to the motion was an affidavit by defendant’s trial counsel acknowledging that he had 
intended to introduce the cell  phone records but failed to  subpoena or otherwise make 
available the custodian of the records to lay the proper foundation to introduce them into 
evidence.  Defense counsel admitted that his failure to pursue introduction of the records 
“was not a strategic decision, nor did [he] at any time during trial decide that the phone 
records were not necessary or beneficial to the defense case.”  The Court of Appeals 
denied the motion and subsequently affirmed defendant’s convictions and sentences. 
The Court of Appeals denied reconsideration, and defendant applied for leave to 
appeal in this Court.  We remanded the case to the trial court with instructions to hold a 
Ginther hearing.  Defendant’s trial counsel,  the only witness called at the hearing, 
testified that he failed to subpoena the custodian of the cell phone records because of the 
mistaken belief that the business records exception to the hearsay rule did not require a 
custodian to testify.  Instead, defense counsel thought it would be sufficient to have the 
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).   
complainant acknowledge her  phone number on the statement.  He admitted that he 
intended to introduce the records because they were important to the defense’s case, but 
explained that he became flustered following the prosecution’s successful objection and 
therefore made no further attempt to have the records admitted.   
The trial court found that the performance of defendant’s trial counsel fell below 
an objective standard of reasonableness.  Nonetheless, it found that defendant did not 
suffer prejudice because he did not demonstrate a reasonable probability that one more 
attack on the complainant’s credibility would have resulted in his acquittal.  Accordingly, 
the trial court upheld defendant’s convictions.  The Court of Appeals denied leave to 
appeal, but this Court remanded the case to the Court of Appeals for consideration as on 
leave granted.
The Court of Appeals affirmed, concluding that, even assuming defense counsel’s 
failure to pursue admission of the records into evidence constituted ineffective assistance, 
defendant did not suffer prejudice thereby.

 Defendant then sought leave to appeal in this 
Whether a defendant received ineffective  assistance of trial counsel presents a 
mixed question of fact and constitutional law.
“A judge must first find the facts, then 
People v Armstrong, 485 Mich 1132 (2010).   
People v Armstrong, unpublished opinion per curiam of the Court of Appeals, issued 
January 18, 2011 (Docket No. 291979). 
People v Grant, 470 Mich 477, 484; 684 NW2d 686 (2004).   8
must decide whether those facts establish  a violation of the defendant’s constitutional 
right to the effective assistance of counsel.”
  We review the trial court’s factual findings 
for clear error.
  Clear error exists if the reviewing court is left with a definite and firm 
conviction that the trial court made a mistake.
  We review de novo questions of 
constitutional law.
A defendant must meet two requirements  to warrant a new trial because of the 
ineffective assistance of trial counsel.  First, the defendant must show that counsel’s 
performance fell below an objective standard of reasonableness.
  In doing so, the 
defendant must overcome the  strong presumption that counsel’s assistance constituted 
sound trial strategy.
  Second, the defendant must show that, but for counsel’s deficient 
performance, a different result would have been reasonably probable.
As a threshold matter, we conclude that defense counsel’s performance fell below 
an objective standard of reasonableness.  Failing to pursue the admission of the cell 
People v Burrell, 417 Mich 439, 449; 339 NW2d 403 (1983).   
Grant, 470 Mich at 485. 
Strickland v Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984); 
People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994).   
People v Rice (On Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999).   
Strickland, 466 US at 694-696.   9
phone records into evidence was not a matter of sound trial strategy.  Defense counsel 
himself testified at the Ginther hearing that the records were important and that the only 
reason he failed to pursue their admission was that he mistakenly believed no additional 
steps were required for their admission and became flustered when the prosecution 
successfully objected to their  admittance because of the lack of a foundation.  At the 
conclusion of the  Ginther hearing, the trial court found that failing to pursue the 
admission did not constitute sound trial strategy, a finding that  the prosecution never 
appealed.  We decline to entertain the prosecution’s challenge to the trial court’s finding 
at this late stage.  Moreover, the prosecution’s argument that failing to pursue admission 
of the records constituted sound trial strategy wholly lacks merit.  Admission of the 
records would have caught the complainant  in a lie.  Any attorney acting reasonably 
would have moved for the records’ admission, particularly when, as here, attacking the 
complainant’s credibility offered the most promising defense strategy.   
Thus, the critical question is one of prejudice.  In answering this question, we hold 
that the Court of Appeals clearly erred by  affirming the trial court’s finding of no 
prejudice.  The reasoning in the Court of Appeals’ opinion was flawed in several 
First, the Court of Appeals concluded  that no prejudice resulted from defense 
counsel’s failure to have the cell phone  records admitted because the complainant’s 
credibility had been “thoroughly impeached . . . .”

  This reasoning was clearly 
erroneous.  The defense’s whole theory of the case was that the complainant had falsely 
 accused defendant of rape.  The attacks on the complainant’s credibility at trial were 
inconclusive, providing mere “he said,  she said” testimony contradicting the 
complainant’s version of the events.  The  other credibility attacks revealed that the 
complainant had falsely accused her stepfather of rape on a prior occasion and that she 
habitually lied.  Although unquestionably significant, such attacks had less of a tendency 
to undermine the complainant’s credibility than the cell phone records, which would have 
provided documentary proof strongly suggesting that the complainant lied to  this jury 
regarding her actions in connection with the alleged rapes in this case.   
Further, the prosecution elicited testimony from the complainant that defendant 
violently raped her and made threats against her life and that she had absolutely no wish 
to call or speak to defendant after having undergone such a harrowing experience.  The 
cell phone records revealing frequent communication with defendant following the 
alleged rapes would have cast serious doubt on the substance of her accusations.  If 
defendant violently raped the complainant  on two occasions and the complainant felt 
brutally violated in the way that she described, then one must question why she reached 
out to defendant through text messages and phone calls when severing all lines of 
communication would have been a far  more appropriate response under the 
circumstances.  Given the telephone records’ significance, a reasonable probability exists 
that this additional attack on the complainant’s credibility would have tipped the scales in 
favor of finding a reasonable doubt about defendant’s guilt.   
Second, the Court of Appeals clearly erred when it reasoned that, because MCL 
750.520d(1)(a) is a strict liability statute under which the complainant’s consent was 
irrelevant, introducing the cell phone records could have resulted in acquittal only if they 11
showed the absence of a sexual relationship.

  Although the issue of consent is indeed 
irrelevant under MCL 750.520d(1)(a),
quite obviously, defense counsel did not seek to 
admit the records to establish that the alleged intercourse was consensual.  Rather, 
defense counsel sought to establish that the complainant’s allegations that intercourse—
forcible or otherwise—occurred at all lacked credibility because she falsely testified that 
she had not called or communicated with defendant after the alleged rapes.  We conclude 
that a reasonable probability exists that the cell phone records would have convinced the 
jury to discredit the complainant’s accusations.   
Third, the Court of Appeals clearly erred by concluding that the cell phone records 
could have damaged defendant’s case because they might have emphasized the 
seriousness of defendant’s relationship with  a 15-year-old girl, casting him in a poor 
light.  This seems to suggest that the Court of Appeals believed that defense counsel 
chose not to admit the records  as a matter of trial strategy.  Yet it stated earlier in its 
opinion that the failure to pursue admission of the records was  not  a matter of trial 
strategy, revealing inconsistency in its reasoning.

  The trial court, following a hearing 
on the matter, found that defense counsel’s failure to pursue admission of the records fell 
 “[T]here is no issue of consent in a statutory rape charge because a victim below the 
age of consent is conclusively presumed to be legally incapable of giving his or her 
consent to sexual intercourse.”  People v Cash, 419 Mich 230, 247-248; 351 NW2d 822 

 “[D]efense counsel’s failure to have defendant’s phone bill admitted into evidence was 
based on an erroneous belief that the complainant’s testimony alone could lay the 
foundation for admission of the records and not sound trial strategy . . . .”   Armstrong,
unpub op at 2.   12
below an objective standard of reasonableness and did not constitute sound trial strategy.  
The prosecution failed to appeal this finding.  Further, even assuming that the evidence 
would have worked slightly against defendant, it does not follow that the evidence would 
not also have worked so significantly against the complainant as to destroy her credibility 
and result in defendant’s acquittal.  Notwithstanding that the cell phone records revealed 
defendant’s frequent communication with a teenage girl, any attorney acting reasonably 
would have moved for the records’ admission given that they offered powerful evidence 
of the complainant’s lying to the jury in a case that essentially boiled down to whether the 
complainant’s allegations of rape were true.  
Finally, the Court of Appeals clearly  erred when it reasoned that it made no 
difference whether the jury saw the cell phone records since it heard their contents read 
into evidence by the complainant.  The Court of Appeals seemed to ignore that the 
complainant acknowledged only a fraction of the numerous communications revealed in 
the cell phone records.  Further, according to the trial court’s instruction, the jury was to 
disregard the cell phone records because they had not been properly admitted.  We 
presume that a jury follows its instructions.

  Moreover, even assuming that the jury 
considered the portion of the cell phone records read into evidence, the jury also heard 
from the prosecution that defendant or defense counsel might have fabricated the records.  
We disagree with the Court of Appeals that  instructing the jury  that the attorneys’ 
statements and arguments are not evidence cured such a significant and damning 
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).   13
 For the foregoing reasons, we hold that the failure of defendant’s trial counsel to 
pursue the introduction of the cell phone records into evidence not only fell below an 
objective standard of reasonableness, but also prejudiced defendant.  Accordingly, we 
reverse the judgment of the Court of Appeals and remand the case to the  Otsego Circuit 
Court for a new trial. 
 Brian K. Zahra 
 Robert P. Young, Jr. 
 Michael F. Cavanagh 
 Marilyn Kelly 
 Stephen J. Markman 
 Diane M. Hathaway 
 Mary Beth Kelly