In 2005, a 15-year-old girl accused 25-year-old Richard Armstrong of sexually assaulting her on two occasions in Otsego County, Michigan.
At the time of the alleged assaults, the girl was living with her adoptive mother, Barbara Kamae, who actually is the victim’s biological grandmother. The girl’s biological mother, Lisa Annise, gave birth at a young age, so Kamae adopted the girl and raised her.
Armstrong came to know the alleged victim because his half-sister, Donna Eckles, worked with Lisa Annise.
The girl alleged that she first met Armstrong in the spring of 2005 when she spent the night at Armstrong’s home, along with Eckles’ husband, William, and a man named Titto, who was a friend of Armstrong. Following this meeting, the girl and Armstrong began speaking frequently on the telephone.
A few weeks later, the victim saw Armstrong at Armstrong’s uncle’s home where several other people, including Donna and William Eckles, were present. According to the girl, she and Armstrong were watching a movie alone in the basement when he forced her to engage in oral and vaginal sex for more than an hour, during which he choked and slapped her.
The third time that the victim and Armstrong met was at the victim’s home. Titto was there and the three of them were in the living room while Kamae, who was on prescription medication, slept in a recliner in the same room.
The victim alleged that at some point she went to her bedroom and Armstrong followed her, shut the door and attacked her, slapping and choking her and forcing her to engage in oral and vaginal sex. She said that afterward, they dressed and she left, while Armstrong fell asleep in the bed. When he awoke, she accompanied him and Titto to get fast food.
The girl did not mention the assaults until months later, when a counselor was conducting a background survey and asked if she had ever been sexually assaulted. The girl, believing the information would remain confidential, said Armstrong had raped her. The counselor reported the allegations to police and Armstrong was charged with two counts of third-degree criminal conduct.
At trial, the victim’s credibility was the cornerstone of the defense. The girl’s biological mother, Lisa Annise; the girl’s adoptive mother, Kamae; and the girl’s stepfather all testified that she had falsely accused her stepfather of raping her in the past.
Annise said the girl was a compulsive liar and Kamae said the girl was a liar and “just want(ed) to get people in trouble.”
Further, William Eckles testified that he was present during the entire night of the first alleged attack and that he did not hear anything like the violent attack the girl described.
Kamae testified that when she awoke on the day that the second rape allegedly occurred, she found Armstrong and the victim in the bedroom, but nothing more. She said Armstrong, Titto and the girl then left to get fast food.
Armstrong’s lawyer wanted to introduce Armstrong’s cell phone records to rebut the victim’s testimony that after the second attack, she never communicated with Armstrong again, although she said he tried to contact her.
The cell phone records showed two incoming calls from Kamae’s phone just days after the second attack. Confronted with the records, the victim admitted calling Armstrong once or twice from Kamae’s phone.
When the defense attorney sought to introduce what he said were hundreds of calls coming from the victim’s phone, the victim flatly denied ever speaking with him. The prosecution objected to introduction of the records for lack of foundation and the judge sustained the objection.
The defense attorney, who had been practicing law for just eight months at the time, backed off and did not make any further effort to authenticate the records.
The prosecution, during closing argument, told the jury to disregard references to the cell phone records because they were not in evidence and to disregard the victim’s testimony that she had made one or two calls because the testimony was not properly admitted. The prosecution further suggested that either Armstrong or his lawyer may have fabricated the records.
Armstrong was convicted and sentenced to seven to 15 years in prison.
Following a hearing for a new trial, the trial court judge found that the defense attorney’s performance was objectively unreasonable, but wasn’t sufficiently prejudicial to require a new trial. His trial had been fair, the judge ruled.
The Michigan Court of Appeals then refused a motion to remand the case for a hearing on whether Armstrong’s lawyer had been constitutionally ineffective, even though the lawyer filed an affidavit admitting his failure to authenticate the records was not a strategic decision.
On January 18, 2011, the Court of Appeals affirmed Armstrong’s conviction. The court held while the failure to admit to phone bill “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,” the defense lawyer had “mounted and elicited a number of attacks” against the victim’s credibility.
The error, the court held, was harmless.
On October 26, 2011, the Michigan Supreme Court disagreed, overturning Armstrong’s conviction. The court held that the attacks on the victim’s credibility cited by the appellate court were inconclusive and were far less powerful 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.”
On March 15, 2012, the charges were dismissed by the Otsego County District Attorney and Armstrong was released.
– Maurice Possley