Ineffective assistance of counsel; Failure to subpoena a witness; Prejudice; Failure to impeach a witness; Trial strategy; Failure to consult with & call a firearms expert; Adequacy of counsel’s review of a forensic interview; Failure to use the interview during cross-examination

The court held that defendant failed to overcome the presumption that defense counsel’s decisions as to subpoenaing a witness, impeaching a witness, and whether to “call a firearms expert were matters of trial strategy.” While defense counsel should have asked to use forensic interview transcripts before trial, the court found that this “mistake did not prejudice the defense.” Thus, it affirmed defendant’s first-degree premeditated murder and felony-firearm convictions. As to the failure to subpoena a witness (B) sooner, the initial decision not to do so “was not objectively unreasonable because defense counsel reasonably relied on [B’s] representations that she was willing to testify—she was defendant’s friend and she had gone out of her way to contact defense counsel and ask to testify. When defense counsel learned that [B] was in jail, he attempted to subpoena her and to locate her after she was released.” The court found that it “would not be reasonable to expect defense counsel to hire an investigator over the weekend to locate [B] in addition to the efforts he personally made to locate her.” Further, defendant did not show that B’s absence prejudiced the defense. She had made a statement the prosecution would likely have used to impeach her, and given what her testimony would have been, there was not a reasonable probability that it would have changed the outcome of the trial. As to the failure to cross-examine witness-M with her police statement, she did not change “her story; she simply included an additional detail.” And she admitted in the “statement and during cross-examination that she did not see a gun in defendant’s hands[.]” The court next concluded that the “missing murder weapon and video evidence justified a defense based on the prosecution’s failure to present any physical or testimonial evidence that defendant had been holding a gun instead of a defense based on highly technical expert testimony about ballistics reports.” Finally, while the court found that defense counsel was deficient related to a child witness’s (AG) forensic interview, his failure to use it “on cross-examination did not prejudice the defense.” A jury would likely have concluded “that AG actually saw defendant holding a black revolver, but in the heat of the moment and with her limited experience with handguns, she mistakenly believed it to be [B’s] pistol because both guns were small and black.”