Motion for relief from judgment; MCR 6.508(D)(2) & (3)(a); Ineffective assistance of counsel claim

On remand from the Supreme Court, the court held that MCR 6.508(D)(2) and (3)(a) did not bar defendant from raising the ineffective assistance of counsel claim asserted in his motion for relief from judgment. But it also held that he "failed to overcome the presumption that his trial counsel’s” (P) failure to call a forensic expert (Dr. M) to testify was sound trial strategy and he did not show a reasonable probability there would have been a different result had M testified. Thus, the court again reversed the trial court’s decision to grant him a new trial. It determined that “MCR 6.508(D)(2) did not preclude defendant from raising his ineffective assistance of counsel argument in his motion for relief from judgment because he did not allege grounds for relief that were decided against him in a prior appeal or motion under MCR Subchapter 6.500.” In addition, MCR 6.508(D)(3)(a) did not bar him from raising his argument in his motion “because the record fails to establish that he could have raised his argument on direct appeal or in a prior motion under MCR Subchapter 6.500.” Thus, it determined that he “overcame the procedural bars of MCR 6.508(D)(2) and (3)(a) and” could raise his ineffective assistance of counsel claim in his motion for relief from judgment. But it concluded he did not overcome the presumption that P’s decision not to call M “to testify was a matter of sound trial strategy.” P gave multiple reasons for deciding not to present M’s “testimony, including the fact that trial had proceeded well without the testimony, the prosecution had arranged for a well-respected Michigan State Police lieutenant to testify as a rebuttal witness to counter [M’s] testimony, the lieutenant was present in the building, the lieutenant’s testimony was the final evidence that the jury would hear before it began deliberating, and [P’s] assistant informed him that [M] had to return to New York because of a medical emergency involving his wife.” In finding that he did not show a reasonable probability of a different outcome, the court noted P presented “a reasonable explanation for the lack of blood on the gun without [M’s] testimony” and that M’s “testimony would have been critical of a fellow defense expert[.]”