Alleged Brady v Maryland violation; Materiality; People v Chenault; Ineffective assistance of counsel; Failure to object to testimony; Failure to ask for a jury instruction on AWIM’s lesser included offense of AWIGBH; Failure to object to the final oral jury instructions

The court concluded that defendant was not entitled to relief based on the alleged Brady violation because there was “not a reasonable probability that disclosure of” the information would have changed the trial’s outcome. But it remanded for an evidentiary hearing on two of his ineffective assistance of counsel claims. He was convicted of AWIM, FIP, and felony-firearm. His Brady claim concerned the prosecution’s failure to disclose that the shooting victim (P) “had a conviction for an offense that included an element of dishonesty, which defendant could have used at trial to attack [P’s] credibility pursuant to MRE 609(a)(1).” As to whether this evidence was material, there was “no dispute that defendant shot [P] in the back as he was running out of the home. Defendant” admitted this but asserted that “if the jury had reason to question [P’s] credibility, then it could have disbelieved [P’s] ‘self-serving testimony’ that he did not have a gun and there was no physical altercation between” them before P was shot. It was “not apparent what is self-serving about this portion of [P’s] testimony, but regardless, even if the jury did not believe any of [his] testimony, that would not be affirmative evidence that [P] had a gun or that there was a physical altercation between [them] such that defendant could claim self-defense. The jury had to decide the case on the basis of the evidence, and not knowing whether [P] had a gun or whether there was a physical altercation between [P] and defendant is not evidence—it is the absence of evidence.” Thus, the court concluded that, “to any extent that hearing about” P’s prior conviction “may have caused the jury to question [his] credibility, there is still not a reasonable probability that the outcome of defendant’s trial would have been different.” The court rejected his ineffective assistance claim related to failure to object to another witness’s testimony. But it found that the evidence supported a jury instruction on AWIGBH and it was unclear why defense counsel did not request it. Defense counsel also “did not object after the trial court failed to orally instruct the jury on the presumption of innocence, burden of proof, reasonable doubt, and the elements of the offenses during final instructions.” Thus, the court remanded for an evidentiary hearing on these two claims, retaining jurisdiction.