Prosecutorial misconduct; Telling the jury that a nontestifying codefendant identified defendant as his accomplice; Ineffective assistance of counsel; Failure to safeguard defendant’s right to a fair trial; Failure to object to evidence on Confrontation Clause grounds; Distinguishing People v Washington; Comparing People v Chambers; Failure to object during the prosecution’s opening statement & closing argument; Bruton v United States; People v Bruner

Concluding that prosecutorial misconduct and ineffective assistance of counsel denied defendant-Ivey his right to confrontation and a fair trial, the court reversed his convictions and remanded for a new trial. He was convicted of AWIM, carjacking, armed robbery causing serious injury, receiving and concealing a stolen motor vehicle, and felony-firearm. During his opening statement the assistant prosecutor (H) informed the jury that another man involved in the crime (W) “identified Ivey as his accomplice during a police interrogation.” During H’s “closing and rebuttal arguments, he again informed the jury that [W] had named Ivey as his accomplice.” Ivey’s identification as the accomplice was the sole issue at trial. Ivey claimed that his trial attorney’s “representation was deficient because he failed to object to” an officer’s (JH) testimony about what a gas station owner told JH on Confrontation Clause grounds. Ivey compared this case to Washington. The court concluded that this case was distinguishable “because the statement at issue—that a suspect was at the liquor store on [10/23/19]—was not admitted for the truth of the matter asserted.” Similar to Chambers, JH’s “challenged testimony was not admitted for the truth of the matter asserted—that at least one of the suspects was at the liquor store on” 10/23/19. Rather, it was offered to explain why he and another officer reviewed “surveillance video. The testimony was also admitted to lay the foundation for the still shots of the video, admitted as prosecution exhibits 5, 6, and 7. Because the communication from the gas station employees was not admitted for its truth, the evidence did not violate Ivey’s Confrontation Clause rights,” and failing to object to it did not constitute ineffective assistance of counsel. Ivey next asserted ineffective assistance of counsel based on “failing to object when [H] told the jury during his opening statement and closing argument that [W] identified Ivey as his accomplice.” The court agreed and also concluded that H’s comments constituted misconduct because H knew that W “would not be testifying at trial and told the jury that [W] had implicated Ivey notwithstanding that evidence regarding [W’s] statement would constitute hearsay and be inadmissible on Confrontation Clause grounds.” The court held that while H’s “statements to the jury did not constitute evidence, his comments . . . had the same effect as if evidence of [W’s] statements had been admitted as evidence. [H] told the jury outright what he could not establish with evidence because doing so would constitute hearsay and violate Ivey’s right to confront” W. Finally, it found that there was “a reasonable probability that the outcome would have been different but for [defense counsel’s] deficient handling of the matter.”