Ineffective assistance of counsel; Request for a Ginther hearing; Failure to call a specific witness; Failure to investigate; Failure to impeach a witness with a prior inconsistent statement; MRE 613(b); Handling of the prosecution’s ballistics evidence; Matters of trial strategy

Concluding that defendant was entitled to an evidentiary hearing on three of his ineffective assistance of counsel claims, the court remanded to the trial court for a Ginther hearing on those claims. The case arose from a fatal shooting. Defendant’s defense was that he was innocent and another man (M) was the shooter. The shooting occurred at a concert and party. Among the attendees was M’s cousin, T. In seeking a Ginther hearing, defendant first asserted that his trial counsel was ineffective for failing to call an individual (D) who claimed to have seen M shoot the victim as a witness. It was undisputed that defendant’s trial counsel knew of D and initially intended to call her as a witness, but he did not do so, and the reason was “not apparent from the record.” The court found that more factual development was needed to determine what D told defendant’s trial counsel. Defendant also asserted that his trial counsel was ineffective for failing to impeach T with a prior inconsistent statement. The record showed that his “trial counsel believed (at least at one point) that he could impeach [T] with a prior inconsistent statement, but he ultimately failed to try. Defendant can explore the reason for this decision at a Ginther hearing[,]” where he will presumably offer evidence that T “could have been successfully impeached with a prior inconsistent statement, if such evidence exists.” Given that it was remanding for a Ginther hearing on these claims, the court also determined that defendant was entitled to develop the factual basis for his claim based on the alleged failure to adequately investigate M. But it rejected his claim that his trial counsel was ineffective in his handling of the prosecution’s ballistics evidence. The court retained jurisdiction.