Ineffective assistance of defendant’s trial counsel.

In People v Armstrong, __ Mich __ (#142762, 10/26/2011) 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.

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.

It did make a difference whether the jury saw the cell phone records since it heard their contents read into evidence by the complainant. 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 accusation.  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.