Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M.
McCormack David F. Viviano Richard H. Bernstein Kurtis T.
Wilder Elizabeth T. Clement, Justices
March 3, 2018, the Court heard oral argument on the
application for leave to appeal the September 15, 2011
judgment of the Court of Appeals. By order of March 30, 2018,
the Court of Appeals opinion was vacated and the case was
remanded to that court for reconsideration. On order of the
Court, the Court of Appeals opinion on remand having been
received, the application is again considered, and it is
DENIED, because we are not persuaded that the question
presented should be reviewed by this Court.
Bernstein, J. (dissenting).
respectfully dissent from the order denying leave to appeal.
After hearing oral argument on the application for leave to
appeal, we vacated the Court of Appeals opinion and remanded
the case to the Court of Appeals for reconsideration. In
particular, we directed the Court of Appeals to determine
whether the defendant is entitled to relief under MCR
case, defendant raised substantive claims of ineffective
assistance of counsel, arguing that his trial counsel had
failed him in numerous ways. On remand, the Court of Appeals
concluded that trial counsel's performance had been
defective only in his handling of an MRE 609 issue; this was
in contrast to the trial court's conclusion that trial
counsel had also erred by failing to investigate or call
potential alibi witnesses as well as potential medical
experts. The Court of Appeals determined that the trial court
had clearly erred by finding that trial counsel had erred in
these additional respects. In so holding, the Court of
Appeals credited trial counsel's testimony at the
evidentiary hearing and found that trial counsel's
strategy was reasonable.
separately because it seems clear to me that the Court of
Appeals is the one that has committed legal error here, not
the trial court. The Court of Appeals refers to ample,
well-grounded caselaw for the proposition that appellate
courts should not" 'second-guess [defense
counsel's] strategic decisions with the benefit of
hindsight.'" People v Hewitt-El (On
Remand), unpublished per curiam opinion of the Court of
Appeals, issued May 8, 2018 (Docket No. 332946), p 7, quoting
People v Dunigan, 299 Mich.App. 579, 590 (2013).
However, in giving trial counsel deference, the Court of
Appeals completely fails to acknowledge the deference it owes
to the trial court's factual findings.
of fact by the trial court may not be set aside unless
clearly erroneous. In the application of this principle,
regard shall be given to the special opportunity of the trial
court to judge the credibility of the witnesses who appeared
before it." MCR 2.613(C). As this Court has previously
stated, "if resolution of a disputed factual question
turns on the credibility of witnesses or the weight of the
evidence, we will defer to the trial court, which had a
superior opportunity to evaluate these matters."
People v Sexton (After Remand), 461 Mich. 746, 752
(2000). Moreover, in this case, the same judge presided over
both the trial and the post-conviction evidentiary hearing,
and was thus the only one who had the opportunity to assess
the credibility of all of the relevant witnesses.
despite the fact that the clear-error standard of review is
as well settled as the standard of review that applies to
ineffective assistance of counsel claims, at no point in its
opinion does the Court of Appeals give the trial court's
factual findings the deference they are due. Although lip
service is paid to the notion that factual findings are only
clearly erroneous "if the reviewing court, upon review
of the entire record, 'is left with a definite and firm
conviction that a mistake has been made, '"
Hewitt-El, unpub op at 4, quoting People v
McSwain, 259 Mich.App. 654, 682 (2003), the Court of
Appeals completely fails to engage in any analysis of how the
trial court's findings were clearly erroneous.
noting that review of the entire record is warranted, the
Court of Appeals only focuses on trial counsel's
self-serving testimony,  neglecting the parts of his testimony
that were vague, inconsistent, and found not to be credible
by the trial court. Although caselaw instructs that factual
findings are only clearly erroneous when an appellate court
is left with a definite and firm conviction that a mistake
has been made, the Court of Appeals does not begin to explain
how the trial court's credibility finding was mistaken in
the first place, much less how the Court of Appeals is
possessed of the definite and firm conviction thereof. The
Court of Appeals opinion fails to even acknowledge the trial
court's contrary credibility determination; instead of
grappling with the proper standard of review, the Court of
Appeals effortlessly glides right over what it leaves out,
acting as if it is merely filling a space where nothing
the Court of Appeals disagrees with the trial court's
credibility determination seems clear; what is less clear is
where in the law the Court of Appeals finds the authority to
substitute its own credibility determination for that of the
trial court. Because I would apply our well-settled caselaw
and the plain and unambiguous language of our court rules to
the facts of this case, I would find that trial counsel's
performance was deficient in multiple regards.
having previously noted that "[a]llowing the jury to
learn that defendant had previously been convicted of armed
robbery five times substantially increased the risk of unfair
prejudice to defendant, particularly where defendant was
presently charged with armed robbery,"
Hewitt-El, unpub op at 6-7, when addressing whether
trial counsel's performance was prejudicial, the Court of
Appeals merely notes that the prosecution had a strong case.
No mention is made of this substantial risk of unfair
prejudice. Here, the prior convictions that were admitted
were identical to the one defendant was being tried for, and
were thus highly prejudicial. See People v Snyder,
301 Mich.App. 99, 106 (2013). Excluding these prior
convictions would have materially improved defendant's
odds of acquittal, especially where defendant was the sole
witness in his own defense, and his credibility was thus of
utmost importance. I would find that defendant has
established a reasonable likelihood that, but for trial
counsel's deficiency, he would have been acquitted. See
joins the Cormack, J., e ...