Background
A jury convicted Brett Lee Cooley of four counts of third-degree criminal sexual conduct involving a victim who was 14 years old when the alleged assaults occurred. The victim testified that Cooley penetrated her on four occasions in late 2020 and threatened her or her mother to discourage disclosure. The victim’s mother, father, and stepmother described behavioral changes they observed around that time.
Cooley waived his right to testify at trial. After his convictions, he moved for a new trial, alleging that trial counsel inadequately advised him about testifying, failed to object to testimony concerning the victim’s behavioral changes, and failed to challenge the prosecutor’s closing argument about the victim’s credibility. The circuit court denied the motion without conducting an evidentiary hearing.
The Court’s Holding
The Court of Appeals rejected Cooley’s prosecutorial-error claim. It held that the prosecutor permissibly argued from the trial evidence—including the victim’s emotional response and acknowledgment that she could not remember certain details—that the victim was credible. The prosecutor did not imply that she possessed special knowledge of the victim’s truthfulness. Any possible prejudice also was cured by the instruction that attorneys’ arguments were not evidence.
The court likewise held that counsel was not ineffective for failing to object to the relatives’ testimony or the prosecutor’s argument. The relatives offered permissible lay testimony based on their own observations and did not give expert opinions or directly vouch for the victim’s credibility. Because objections to that testimony and the closing argument would have lacked merit, counsel’s failure to make them was not deficient.
The court nevertheless remanded for a Ginther evidentiary hearing limited to whether trial counsel ineffectively advised Cooley not to testify because of his “background.” Appellate counsel’s affidavit offered facts suggesting that Cooley wanted to testify, had testimony contradicting the victim’s account, and may have been advised against testifying solely because of a largely unrelated criminal history. Those allegations warranted factual development, although the existing record did not itself establish ineffective assistance. The court affirmed in part and retained jurisdiction.
Key Takeaways
- A prosecutor may argue that a witness is credible when the argument rests on evidence and reasonable inferences rather than purported special knowledge.
- Family members’ testimony that a victim’s behavioral changes made sense after a later disclosure may qualify as lay testimony when based on their own perceptions and does not necessarily constitute expert testimony or improper vouching.
- A defendant may obtain a Ginther hearing by offering specific facts showing that counsel’s advice not to testify could have been objectively unreasonable and that the omitted testimony could reasonably have affected the verdict.
Why It Matters
The decision distinguishes a permissible credibility argument grounded in courtroom observations and testimony from improper prosecutorial vouching. It also confirms that testimony contextualizing behavioral changes does not automatically become expert testimony about patterns of sexual-abuse victims.
At the same time, the limited remand underscores that labeling advice as “trial strategy” does not end the ineffective-assistance inquiry. When counsel’s reason for advising a defendant not to testify is unclear and the proposed testimony would directly contradict the prosecution’s central witness, an evidentiary hearing may be required before the claim can be resolved.