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             Defendant Jeffrey Titus, convicted in 2002 by jury trial of the first-degree premeditated murders of Doug Estes and James Bennett, likes to spend time in litigation. We first wrote about him in Estes v Titus (July 2008) where the wife of Estes was trying to collect a wrongful death judgment from Titus who had transferred all his assets to his wife when they divorced. The Supreme Court ruled - with a caveat - that a property division in a divorce could be the subject of a Uniform Fraudulent Transfer Act action. Speaker Law Firm wrote the amicus brief for the Family Law Section (the Supreme Court disagreed with our position, but the concurring opinion by Marilyn Kelly did agree with us).

            In People v Titus. No. 329770, posted May 4, 2017, defendant Titus filed the latest of his appeals. The MCOA affirmed his convictions in 2004 in People v Titus, (Docket No. 243642). In 2014, defendant filed a motion for relief from judgment in the trial court. Defendant appealed when his motion for relief was denied. People v Titus, unpublished order of the Court of Appeals, entered March 24, 2016 (Docket No. 329770).

            In this appeal, the defendant raised the issue of ineffective assistance of counsel. The court wrote that to prove ineffective assistance of counsel, the defendant must show that counsel’s performance fell below objective standards of reasonableness and that, but for counsel’s deficient performance, there is a reasonable probability that the result of the proceedings would have been different. Effective assistance of counsel is presumed and the defendant bears a heavy burden of proving otherwise.

            Since the defendant already filed a motion for relief from judgment which was denied, the court noted that it could not grant this motion if it alleged grounds for relief that could have been raised on direct appeal from the defendant’s conviction, unless the defendant demonstrates:

• “Good cause” for the failure to raise the grounds for relief on appeal, and 
• “Actual prejudice” from the alleged irregularities.

            Titus argued that he satisfied the good-cause requirement because appellate counsel was ineffective for failing to raise the issue of defense counsel’s ineffective assistance of counsel on direct appeal. The test, wrote the court, for ineffective assistance of appellate counsel is the same as that applicable to a claim of ineffective assistance of trial counsel. Thus, a defendant must show that appellate counsel’s decision not to raise an issue on appeal fell below an objective standard of reasonableness and prejudiced the appeal.

            The defendant raised several issues about the trial as examples of the ineffectiveness of the trial counsel and, by extension, appellate counsel. The court carefully reviewed each claim finding:

“Because defendant has failed to establish that defense counsel’s performance was deficient, appellate counsel was not ineffective for failing to raise the claims of ineffective assistance on direct appeal. Defendant has failed to establish good cause, MCR 6.508(D)(3)(a), and defendant is not entitled to relief on his claims of ineffective assistance of counsel.”

            Defendant also argued that the prosecution violated Brady v Maryland, 373 US 83, (1963) by failing to disclose that Det. Mattison had theorized that two shooters perpetrated the murders. To establish a Brady claim the defendant must show:

            The court found no Brady violation noting that not every stray thought of the detectives of the case need to be revealed by the prosecution. The court decided that two-shooter theory was not required to be disclosed.

            Defendant also argued that the trial court abused its discretion in concluding that the prosecution’s character evidence and [defendant’s] offhand remarks about the killings of his co-workers somehow outweighed the new evidence of innocence. Concluding that the defendant was trying to raise an argument regarding cumulative error, the court wrote that, since defendant failed to establish that he was denied the effective assistance of counsel or that there was a Brady violation, there are no irregularities that could be combined to determine a cumulative effect of errors.
Affirmed.

             
                Ineffective assistance of counsel is an incredibly difficult burden for a criminal defendant to prove – “to establish a claim of ineffective assistance of counsel, the defendant must show that ‘counsel’s representation fell below an objective standard of reasonableness’ under prevailing professional norms and that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” People v Gioglio, 296 Mich App 12 (2012), quoting Strickland v Washington, 466 US 668, 688, 694; 104 St Ct 2052; 80 L Ed 2d 674 (1984). People v Carver, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2017 (Docket No 328157), deals with the issue of the defense attorney who had knowledge of an essential expert witness, but failed to utilize this expert.  In Carver, the mother of the victim was bathing the child when she noticed a speck of blood on the wipe used for the victim. Slip op at 1. The victim then told her mother that her brother touched her, but then changed the story to identify the defendant as the person who touched her after the mother did not seem to believe the first statement. Slip op at 1.

               Defendant was aware of an expert in child suggestibility which is the idea that when you suggest an answer that a child gave is incorrect they will give a different answer in hopes of appeasing the person asking the question. Slip op at 3. Even though this expert gave all of this information on child suggestibility, defense counsel chose not to call this expert as a witness. Defense counsel defended himself stating “he preferred to highlight the discrepancies between the victim’s various statements and emphasize that children can lie.” Slip op at 7. Defense counsel modeled his trial strategy around the fact that the story of the victim was continually changing. This is an appropriate trial strategy as long as the proper investigation was done to determine it to be the best strategy. Defense counsel gave testimony about his preparation for trial, which included: consulting with other lawyers from his firm, reviewing forensic interview protocols, and based on this chose to utilize his trial strategy he had developed. The problem with his strategy arose when he acknowledged that there were crucial aspects of the case that he had not investigated fully, “he could not state the distinction between a child lying and a child relating a false memory, and only knew one factor that implicated suggestibility.” Slip op at 8. This suggests that defense counsel had not properly investigated the issue because had he done so this distinction would have been easily identified and understood.

               Shortcomings do not necessarily mean that there will be a valid claim for ineffective assistance of counsel. Not only must the defendant prove that counsel made professional error, but you also must show that the professional error caused an unfavorable result to the client. It was fairly easily proven that defense counsel did not properly investigate and hold himself to the objective professional standard. This unprofessional error could be harmless if there is a determination made that regardless of the error the outcome would have been the same.

               The Court of Appeals held that the error may have changed the outcome of the case. With the testimony of an expert, defense counsel could have adequately argued that the child’s accusations were false and that the jury could have possibly resulted in a favorable outcome had this information been presented and argued. According to the Court of Appeals, “but for counsel’s unprofessional conduct the outcome could have been different.” Slip op at 12.

              The reason this is such a hard burden to prove is generally counsel has the ability to determine what their strategy will be so long as they complete a full investigation into the circumstances surrounding the case. This is a sense of professional leeway allowing the attorney to decide with their professional judgment what the best approach to the case will be. This allowance is obtained through the many years of schooling, and professional conduct expected for a lawyer.

In Estes v Titus, a woman brought a wrongful death suit against the man who killed her husband. She obtains a judgment but when it came time to collect the wrongful death judgment, the man was in prison for the murder with no assets (because he had transferred all of his assets to his wife when they divorced after the wrongful death suit began).

The wrongful death judgment creditor tried to intervene in the divorce action. The Supreme Court agreed with the trial court that third parties cannot intervene in divorce judgments. She then initiated a supplemental proceeding in the wrongful death case, alleging that the husband fraudulently transferred property to his ex-wife to avoid judgment creditors. She also tried to bring in the murderer’s ex-wife into the UFTA action so that she could collect her judgment from the property that had been transferred to the murderer’s ex-wife in the judgment of divorce. The trial court would not allow the wrongful death judgment creditor to pursue her UFTA claim against the ex-wife. The Supreme Court ruled—with a caveat--that a property division in a divorce could be the subject of an UFTA action. The caveat is that if the parties held the property as tenants by the entirety when they were married, then the judgment creditor could not go after those assets transferred in the divorce judgment.