Ineffective assistance of counsel; Failure to call an expert witness; Trial strategy; Good cause for relief under MCR 6.508(D)(3)(a)

The court held that defendant did not carry his burden of establishing deficient performance on the part of defense counsel. Because defendant did not demonstrate deficient performance, he could not establish he was denied the effective assistance of counsel. Since he could not establish he was denied the effective assistance of counsel, he could not establish good cause for relief under MCR 6.508(D)(3)(a), and the trial court’s decision to grant him a new trial was an abuse of discretion. The prosecution argued the trial court erred by finding counsel was ineffective. The prosecution’s argument was essentially that the trial court erred by concluding counsel’s testimony at the Ginther hearing suggested his failure to call Dr. M was not a matter of sound trial strategy. It appeared the trial court’s finding that counsel “misled it and defendant at trial clouded the trial court’s analysis of defendant’s ineffective assistance claim.” Undoubtedly, counsel’s misstatement about M during trial was improper. And, while the court did not diminish how inappropriate it was for counsel “to mislead the trial court and defendant about his reasons for not calling [M] to testify, that act does not permit us to substitute our judgment on the decision of whether to call [M], the only decision that is alleged to have affected defendant’s trial.” To put it simply, counsel offered numerous reasons why he did not call M, in addition to the fact that M had a family emergency. Counsel believed the trial had gone well without M’s “testimony, and he knew the prosecution had a rebuttal expert that was prepared to testify if” M did. Counsel was “not only concerned about what damage the prosecution’s rebuttal expert would do to defendant’s defense, he was also concerned about the prosecution’s expert being the last the jury heard before it began deliberating.” The court held that this was sound trial strategy. Reversed.