COA: 312721. Wayne CC: 12-004553-FC.
Robert P. Young, Jr., Chief Justice. Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Justices. KELLY, J. (dissenting). MCCORMACK and BERNSTEIN, JJ., join the statement of KELLY, J.
On March 10, 2015, the Court heard oral argument on the application for leave to appeal the April 1, 2014 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Kelly, J. ( dissenting ).
I respectfully dissent from the majority's decision to deny leave to appeal and instead would reverse the judgment of the Court of Appeals and remand this case for a new trial. Because trial [497 Mich. 1004] counsel failed to conduct a reasonable investigation into defendant's alibi defense, counsel's decision not to present the defense at trial constituted ineffective assistance of counsel.
Defendant was charged with several crimes, including armed robbery. The defense theory at trial was misidentification. Following a bench trial, defendant was convicted as charged. The Court of Appeals remanded the case to the trial court for a Ginther hearing, limited to the issue
of whether trial counsel performed ineffectively by failing to adequately investigate or present an alibi defense. Five witnesses testified at the hearing: defendant, his trial counsel, and the three alibi witnesses who appeared the day of trial but were not called to testify. The trial court ultimately determined that trial counsel's decision to not present the alibi testimony was reasonable and, regardless, that the failure to present the defense had no effect on the outcome of the proceeding. The Court of Appeals affirmed defendant's convictions and sentences in a split, unpublished decision.
Both the Michigan and the United States Constitutions require that a criminal defendant be afforded the assistance of counsel. In Strickland v Washington, 466 U.S. 668, 686; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984), the United States Supreme Court stated that " the right to counsel is the right to the effective assistance of counsel." (Quotation marks and citation omitted.) The Court established a bifurcated test for ineffective-assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. [ Id. at 687.]
In holding that the Michigan Constitution does not afford defendants greater protection than its federal counterpart, this Court adopted the Strickland test in People v ...