Ineffective assistance of counsel; Decision not to call an expert witness; Prejudice

In an order in lieu of granting leave to appeal, the court reversed the part of the Court of Appeals judgment (see e-Journal # 77682 in the 7/6/22 edition) that ruled defendant’s trial counsel was not ineffective, and remanded the case to the trial court for a new trial. The court noted the trial court determined “that defense counsel’s testimony was not credible and that his decision to not call expert witness [M] was deliberate but unreasonable. The record does not reveal any reasons overcoming the trial court’s superior ability to evaluate witness testimony such that its findings of fact could be called clearly erroneous.” The court further found that, “contrary to the Court of Appeals majority’s conclusion, the defendant has shown a reasonable likelihood of a different trial result but for the failure to call [M] as a witness. The proposed expert’s testimony would not have harmed the defense case in any appreciable way, but rather would have provided a concrete explanation of the decedent’s death as a suicide rather than a homicide.” The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.