OWI third offense; MCL 257.625(1)(b) & MCL 257.625(9)(c); Ineffective assistance of counsel; People v Trakhtenberg; Hearsay within hearsay; MRE 805; Judicial impartiality; Questioning witnesses; MRE 614(b); People v Stevens

The court held that defendant was not denied the effective assistance of counsel because, although counsel performed deficiently by overlooking a favorable statement in a witness’s (R) medical records, defendant failed to show a reasonable probability of a different outcome. Further, counsel was not ineffective for failing to seek redaction of the preliminary-exam judge’s questioning because it did not pierce the veil of judicial impartiality. Police responded to a rollover crash and found defendant outside the vehicle and R trapped inside. Defendant repeatedly told the officer and the in-car camera that he had been driving and had been drinking, including “I’m going to jail for drinking and driving, I have to accept that” and “I still got behind a wheel and I’m still drinking.” R later testified at the preliminary exam that she, not defendant, had been driving, and that testimony was played for the jury after she died before trial. On appeal, the court held that defense counsel performed deficiently because her failure to find the ambulance record was “an omission rather than a decision to not pursue a certain avenue of defense,” and her failure to present it therefore “cannot be said to have been the result of reasonable trial strategy.” However, it found defendant was not prejudiced because the jury already heard R testify that she told “the ambulance drivers” she was the driver, so the omitted record was largely cumulative and only “slightly bolstered [R’s] claim that she was the driver.” The court also noted that the report was not wholly favorable because it stated that R claimed to be the driver, but the ambulance technician also wrote “it was proven while on scene that [R] was not” the driver. The court lastly held that the preliminary-exam judge’s questions were proper because they “focused on eliciting fuller and more exact testimony” as well as “additional relevant information[.]” The court also found “that the judge’s tone and demeanor were generally neutral[.]” Affirmed.