Lesser included offense; People v. Cornell; People v. Haynie; Assault & battery; MCL 750.81(1); Assault with intent to commit murder (AWIM); MCL 750.83; People v. Jones; Ineffective assistance of counsel; People v. Ginther; Failure to request a jury instruction on the lesser included offense of assault & battery; People v. Pickens; People v. Hoag; Trial strategy; People v. Trakhtenberg; Strickland v. Washington; People v. Ross; People v. Ora Jones; Hanna v. People; Prejudice; People v. Wilson; Whether counsel should have further impeached the witness; MRE 609(a) & (c); People v. Crew; Jury instruction regarding credibility; M Crim JI 3.6; M Crim JI 5.1; Johnson v. Corbet; Other acts evidence; MRE 404(b)(1) & (2); People v. Rockey; Court costs; People v. Cameron; MCR 7.215(J)(1); Assault with intent to do great bodily harm less than murder (AWIGBH); Felon in possession (FIP)

Noting that the Michigan Supreme Court overruled a pivotal case addressing the lesser included offense issue of assault and battery, the court remanded for a hearing pursuant to Ginther to consider whether defense counsel was ineffective in failing to request a jury instruction. Also, although it remanded, the court considered the remainder of defendant’s appellate challenges, none of which merited relief. He was convicted of AWIGBH, FIP, felonious assault, and felony-firearm. The trial court instructed the jury on the charged offense of AWIM and the lesser included offense of AWIGBH. The jury acquitted him of the greater offense and convicted him of the lesser. On appeal, he argued that the trial court erred by failing to instruct the jury on the lesser offense of assault and battery, and that counsel was ineffective for failing to request the instruction. The court held that it could not discern on the record whether counsel erred in failing to request the instruction. It knew that counsel did not rely on Haynie in deciding against requesting the instruction. The court determined that on remand, the parties may explore “counsel’s legal grounds for requesting an assault and battery instruction, as well as any potential strategic reasons not to request the instruction. The parties may develop a record regarding whether an assault and battery instruction would be supported by a rational view of the evidence. After these considerations are fleshed out, the trial court can determine in the first instance whether defense counsel’s performance fell below an objective standard of reasonableness.” Even if the trial court finds that counsel acted reasonably, the court directed it “to consider the prejudicial effect of the lack of the jury instruction.” The court retained jurisdiction.