Ineffective assistance of counsel; Failure to secure the trial presence of two eyewitnesses; U.S. Const. amend. VI; Const. 1963, art. 1, § 20; United States v. Cronic; People v. Pubrat; People v. Swain; People v. Solmonson; Brady v. Maryland; People v. Gadomski; People v. Snider; People v. Eccles; Claim that defendant was entitled to a Crosby hearing pursuant to People v. Lockridge; People v. Burks

After remand to the trial court for a Ginther hearing on the defendant’s claim that his trial counsel was ineffective for failing to secure the trial presence of two eyewitnesses to the shooting, the court affirmed his convictions. He was convicted of first-degree premeditated murder and felony-firearm, arising out of a shooting at a convenience store. He was also convicted of solicitation to commit murder, a charge involving attempts to arrange a second murder. Under the circumstances, the court could not say that defense counsel’s performance as to eyewitness-M fell below an objective standard of reasonableness. Even assuming arguendo that counsel’s failure to call M as a witness was ineffective, the court could “not say that this failure resulted in a reasonable probability that the jury would have reached a different verdict.” It was “not at all clear that his testimony would have been significantly helpful to the defense. Although he reported to the police that the shooter was tall and thin—which defendant is not—he also reported that he did not see the shooting. Further, his testimony would have been subject to effective impeachment based on his distance from the shooting and the lighting conditions at the time of the shooting.” The situation was different as to eyewitness-S, whom counsel believed would provide stronger testimony. Counsel testified that “he did not make any particular efforts to have” S “available for trial, although he added that his investigator had tried to locate him. He testified that he did not attempt to subpoena” S or M, because “he thought that the prosecution was required to produce the witness pursuant to” Brady. In this case, counsel did not attempt to subpoena S because he erroneously believed the prosecution had a duty to procure S for trial. Moreover, when he learned that S was “in India and would not be available for trial, he did not request a due diligence hearing nor did he request a missing witness instruction.” Thus, the court held that counsel’s failure to subpoena S “fell below an objective standard of reasonableness.” However, defendant could not establish that, but for counsel’s failure to pursue S’s testimony, there was a reasonable probability that the outcome would have been different.