Ineffective assistance of counsel; Failure to call a particular witness; Whether the proposed testimony was admissible; Prior consistent statement (MRE 801(d)(1)(B)); People v Jones; Prejudice; Operating a motor vehicle while intoxicated (OWI); MCL 257.625(1); People v Wood; City of Plymouth v Longeway; Testimony that defendant tried to back the car out of a ditch; A place “generally accessible to motor vehicles”; People v Parrott; Driving while license suspended, revoked, or denied (DWLS)

Holding that defendant did not establish ineffective assistance of counsel as to the decision not to call a particular witness, the court affirmed his OWI, third offense and DWLS convictions. He asserted that defense counsel was ineffective for not calling a defense witness’s (C) friend (Y) to testify that C told her shortly after the accident that he was the driver. The prosecution suggested at trial that C’s “testimony was motivated by defendant’s family paying his travel expenses to Michigan.” Given that C’s “prior, consistent statement that he drove the car into the ditch was made before any potential motive to fabricate arose from the travel payment[,]” the court concluded that Y’s proposed testimony would have been admissible under MRE 801(d)(1)(B). But per her affidavit, Y would also have testified that defendant got into the driver’s seat and attempted to back the car out of the ditch, but it did not move. Under MCL 257.625(1), it did “not matter whether the car did not actually move as a result of defendant’s attempt.” He asserted defense counsel misunderstood the risk because the ditch “was not ‘generally accessible to motor vehicles’ under MCL 257.625(1)” given that he could not get the car out of the ditch. The court disagreed. In Parrott, it concluded “that both the ditch adjacent to the road and a nearby field were generally accessible to motor vehicles.” The court held “that defense counsel had reason to be concerned that presenting [Y’s] testimony could establish an alternate basis for the factfinder to conclude that defendant operated the car while intoxicated.” As a result, defendant did “not overcome his ‘heavy burden’ of proving that defense counsel’s decision not to call [Y] as a trial witness fell below a professional standard of reasonableness.” The court also found that he failed to establish prejudice. While it was conceivable that Y’s testimony would have rehabilitated C’s credibility and influenced “the jury’s determination whether [C] was telling the truth at trial, there is not a ‘substantial’ likelihood of a different result at trial.” The court noted “there was significant circumstantial and direct evidence that allowed the jury to conclude that defendant was the driver.”