            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 26, 2019
              Plaintiff-Appellee,

v                                                                  No. 338430
                                                                   Wayne Circuit Court
LENARD ROSS,                                                       LC No. 15-007735-01-FH

              Defendant-Appellant.


Before: GLEICHER, P.J., and K. F. KELLY and LETICA, JJ.

PER CURIAM.

        Lenard Ross was convicted by a jury of felonious assault, MCL 750.82, and possession
of a firearm during the commission of a felony (“felony-firearm”), MCL 750.227b. He was
sentenced to concurrent terms of two years’ probation for the felonious assault conviction and
two years’ imprisonment for the felony-firearm conviction. Ross appeals by right. Because we
agree that Ross was denied the effective assistance of counsel, resulting in prejudice, we vacate
his convictions and sentences and remand for a new trial.

                                      I. BACKGROUND

         This case arises from an altercation between Ross and Terry Carter, who lived across the
street from each other on Grandville Avenue. On the day in question, Carter returned home from
work and walked across the street to talk to a neighbor. Ross was raking and sweeping leaves at
the curb in front of his house. Carter testified that Ross suddenly started shouting at him,
threatening to kill him. Ross then went in between his house and the driveway and returned with
a handgun. Ross pointed the handgun at Carter’s head and continued to scream that he was
going to kill Carter. To get away from Ross, Carter walked across the street and went inside his
home. According to Carter, Ross continued ranting and raving with the firearm in hand, so
Carter came back outside to confront Ross. As Carter was walking toward Ross, the police
arrived on the scene. Carter denied having a gun in his possession at any time throughout the
incident.

       The prosecution also presented testimony from three others who had witnessed parts of
the events. Ross’s next door neighbor, Clarice Hendley, testified that she was in her home when


                                               -1-
she heard yelling outside. She heard someone say, “I’ll kill you, I’ll blow you away,” and went
to the door to see what was happening. Hendley saw Ross standing on his front porch waving a
gun at Carter. Carter was in his own home, trying to get outside. Hendley called 911 to report
the incident and then promptly left the area. She did not see Carter with a weapon.

        Towanda Daniels, another Grandville Avenue resident, was walking to the store when
she saw Ross running out of his backyard with a handgun. Carter was standing on his front
porch. Daniels saw police cars and flagged them down to intervene. At trial, Daniels testified
that she heard Ross claim that Carter pulled a rifle on him, but she did not see Carter holding a
rifle. When the police asked her if she had seen Carter with a weapon, she said no.

        A Detroit police officer who responded to Hendley’s 911 call testified that, upon arrival
at the scene, he saw Ross pointing a handgun across the street at Carter. The officer ordered
Ross to drop the weapon several times before Ross complied. The officer handcuffed Ross and
placed him in the police car before speaking with Carter. The police officer and his partner
searched Carter and the area around Carter’s home, but did not find any weapons. Carter denied
consent to search his home, but the police officer did not see Carter enter his house after the
police arrived.

         At trial, Ross agreed that he was sweeping and raking leaves at the curb in front of his
house, but testified that Carter and another neighbor began taunting and laughing at him. When
Ross finally responded to the insults, Carter retrieved an assault rifle and tucked a handgun in his
pants. Seeing Carter approaching him thus armed, Ross feared for his life and got a handgun
from his vehicle. According to Ross, Carter retreated to his house, where Carter’s daughter took
the rifle. Carter then began to walk toward Ross again, at which point the police arrived. Ross
conceded that Carter did not have the rifle anymore when he approached the final time but
explained that, in 2014, Carter had shot at Ross’s house with a gun he had hidden behind his
back. Ross further explained that “[Carter] had two guns that day, a handgun and an AK.” Ross
repeatedly emphasized that he was in fear for his life and was acting in self-defense.

        Ross filed a postconviction motion for a new trial, arguing that he was denied the
effective assistance of counsel because his attorney failed to present a claim of self-defense,
failed to present two witnesses who would have corroborated Ross’s self-defense claim, and
failed to impeach Daniels regarding a material fact. The trial court held a Ginther1 hearing at
which defense counsel testified regarding her decisions. The trial court also heard testimony
from the two witnesses counsel declined to call at trial, defense counsel’s investigator, and the
assistant prosecutor who handled the case. Despite observing that some of defense counsel’s
testimony was “very troubling,” the trial court determined that counsel’s performance satisfied
the constitutional guarantee of effective assistance of counsel and did not prejudice Ross.




1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -2-
                                  II. STANDARD OF REVIEW

        A claim of ineffective assistance of counsel inolves a mixed question of fact and
constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). This Court
reviews for clear error a trial court’s findings of fact and de novo questions of constitutional law.
Id. The trial court’s decision to grant or deny a new trial is reviewed for an abuse of discretion.
People v Russell, 297 Mich App 707, 715; 825 NW2d 623 (2012). “An abuse of discretion
occurs when the trial court’s decision is outside the range of principled outcomes.” Id.
(quotation marks and citation omitted).

                                        III. DISCUSSION

       “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). To
succeed on a claim of ineffective assistance of counsel, “a defendant must establish that
‘counsel’s representation fell below an objective standard of reasonableness’ and that ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ” People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012),
quoting Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
The question of whether counsel performed reasonably is “an objective one and requires the
reviewing court to ‘determine whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.’ ” Vaughn, 491
Mich at 670, quoting Strickland, 466 US at 690. “To demonstrate prejudice, the defendant must
show the existence of a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884
(2001). “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id., quoting Strickland, 466 US at 694 (quotation marks omitted).

        Ross first argues that defense counsel was ineffective because of her failure to assert a
self-defense theory at trial. “Trial counsel is responsible for preparing, investigating, and
presenting all substantial defenses.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68
(2009). “A substantial defense is one that might have made a difference in the outcome of the
trial.” Id. (quotation marks and citation omitted). Defense counsel decided against presenting a
self-defense theory, instead opting to argue that the prosecution failed to establish felonious
assault beyond a reasonable doubt. Although counsel briefly referred to the testimony
concerning Carter’s possession of a gun during the encounter and characterized Carter as “the
terror of that neighborhood,” the central point of her argument was that Carter’s testimony about
simply walking away after Ross pointed a gun at him was inconsistent with how a reasonable
person displays fear. Ross challenges this decision only in the context of arguing that counsel
should have pursued a self-defense theory, but we note that counsel’s chosen defense is
problematic even without balancing the decision against the an alternative option. “The elements
of felonious assault are (1) an assault, (2) with a dangerous weapon, and (3) with the intent to
injure or place the victim in reasonable apprehension of an immediate battery.” People v Avant,
235 Mich App 499, 505; 597 NW2d 864 (1999). Defense counsel’s argument was inapt because
the victim’s alleged fear is not a mandatory element of criminal assault. People v Davis, 277
Mich App 676, 684-686; 747 NW2d 555 (2008), vacated in part on other grounds 482 Mich 978
(2008). Instead, the prosecution need only present evidence from which the jury could determine

                                                -3-
beyond a reasonable doubt that the defendant engaged in behavior designed to place the victim in
apprehension of an immediate battery. Id.

         Turning to defense counsel’s consideration of a self-defense theory, at the Ginther
hearing defense counsel was asked, “[I]n your understanding of the law, if indeed the
complainant had pulled a gun on Mr. Ross causing Mr. Ross to fear for his life, would he be
entitled to wield a weapon in self-defense?” Defense counsel acknowledged that the proposed
hypothetical would present an appropriate case of self-defense, but explained that the
hypothetical was inapplicable in the instant matter based on comments Ross made during his
video-recorded police statement. In particular, in recalling the events leading to his arrest, Ross
told the police that he retrieved his handgun after Carter’s daughter had taken Carter’s assault
rifle into the house. After emphasizing that Ross admitted he did not see a firearm thereafter, the
following exchange occurred regarding Ross’s assertion that he continued to fear for his life:

                Q. You made reference to this [a] moment ago, but do you recall hearing
       that it was a prior occasion when the complainant had shot at Mr. Ross’ home?

               A. Yes.

                                                 * * *

                Q. And do you recall Mr. Ross telling you that he knew . . . that the
       complainant was known to carry a weapon in his backside like in his pants, that
       this is his [Ross’s] experience with him [Carter]?

               A. No. I can’t say I remember hearing that.

              Q. Okay. Do you recall when Mr. Ross indicated on the video that you
       made reference to that he continued to believe—even though the complainant had
       been disarmed, he continued to believe that the complainant had a weapon
       because of his prior experience with him?

              A. Okay. He thought that there was something in the back, and then when
       he was asked did you ever see a gun, he said no.

                                                 * * *

              The Court: Okay. What about—did he ever indicate as counsel asked you
       about pulling something from the backside?

              [Defense Counsel]: Right. When he [Carter] was walking up, he [Ross]
       thought he [Carter] was reaching in the back, and my hands are behind my back
       obviously reaching for something.

               The Court: Okay. And that’s earlier in the statement?

               [Defense Counsel]: Yes.


                                                -4-
               The Court: Did the police ever expound on that?

              [Defense Counsel]: Yes. They asked him, did you actually—did you see
       a gun? And he said no.

         After reviewing Ross’s recorded statement, the trial court found that “one could
conclude, based upon that, standing alone, that there was a basis to argue self-defense.”
However, it also found that defense counsel’s later discussions with Ross left her without
“information . . . that would enable her to argue, successfully, that particular claim.” We
disagree with the latter finding. Although there was indeed evidence that defense counsel met
with Ross on more than one occasion to discuss the case, defense counsel’s explanation
regarding the viability of Ross’s self-defense claim was premised solely on his statement to the
police. Even after Ross waived attorney-client privilege on the record, defense counsel did not
indicate that Ross provided her with any information, beyond the recorded statement, that would
defeat his claim of self-defense. Accordingly, we are left with a definite and firm conviction that
the trial court erred by presuming that defense counsel’s decision to forego a self-defense theory
was properly influenced by her later discussions with Ross.

        Furthermore, like the trial court, our review of Ross’s recorded statement indicates that
Ross’s recollection of the altercation leading to his arrest would indeed support a claim of self-
defense. “At common law, the affirmative defense of self-defense justifies otherwise punishable
criminal conduct . . . ‘if the defendant honestly and reasonably believes his life is in imminent
danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly
force to prevent such harm to himself.’ ” People v Dupree, 486 Mich 693, 707; 788 NW2d 399
(2010) (citation omitted). The defense “is founded upon necessity, real or apparent . . . .”
People v Riddle, 467 Mich 116, 126; 649 NW2d 30 (2002) (quotation marks and citation
omitted). Our Legislature has codified the common-law defense in the Self-Defense Act, MCL
780.971 et seq., which provides, in pertinent part:

               (1) An individual who has not or is not engaged in the commission of a
       crime at the time he or she uses deadly force may use deadly force against another
       individual anywhere he or she has the legal right to be with no duty to retreat if
       either of the following applies:

               (a) The individual honestly and reasonably believes that the use of deadly
       force is necessary to prevent the imminent death of or imminent great bodily harm
       to himself or herself or to another individual.

                                             * * *

               (2) An individual who has not or is not engaged in the commission of a
       crime at the time he or she uses force other than deadly force may use force other
       than deadly force against another individual anywhere he or she has the legal right
       to be with no duty to retreat if he or she honestly and reasonably believes that the
       use of that force is necessary to defend himself or herself or another individual
       from the imminent unlawful use of force by another individual. [MCL 780.972(1)
       and (2).]

                                                -5-
        Defense counsel’s explanation regarding her decision to forego a self-defense theory
demonstrates a fundamental misunderstanding of self-defense law. Her reliance on the fact that
Ross did not see a gun in Carter’s possession after Carter’s daughter took the assault rifle was
misplaced in light of Ross’s unequivocal indication that his earlier observations and past
experiences with Carter led him to believe that Carter remained armed and continued to present a
threat of imminent bodily harm. “In a self-defense claim, the accused’s conduct is judged
according to how the circumstances appeared to him at the time he acted.” People v Adamowicz,
503 Mich 880 (2018), citing Pond v People, 8 Mich 150, 169 (1860). Ross’s admission that he
did not see a gun may have affected the strength of his self-defense claim, but it did not render
the defense inapplicable. Indeed, if the jury believed that Ross only retrieved his own handgun
because he believed it was necessary to defend himself from a similarly armed initial aggressor,
the jury could have acquitted Ross of the charged offenses. MCL 780.972. See also M Crim JI
7.15 (instructing that honest and reasonable belief of danger permits a defendant to act in self-
defense, even if the defendant is mistaken about extent of danger). While we recognize that an
attorney’s strategic determination of the most promising defense will generally not be deemed
ineffective, People v LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995), we cannot
characterize defense counsel’s decision as a matter of objectively reasonable trial strategy when
it was the product of a mistaken understanding of the controlling law. See People v
Trakhtenberg, 493 Mich 38, 52-53; 826 NW2d 136 (2012) (stating that representation falls
below objective standard of reasonableness when counsel fails to exercise reasonably
professional judgment in deciding to forego investigation relevant to defense); People v Grant,
470 Mich 477, 486-487; 684 NW2d 686 (2004) (“Counsel must make ‘an independent
examination of the facts, circumstances, pleadings and laws involved . . . .’ ”) (citation omitted;
emphasis added).

        Whether defense counsel’s deficient performance in this regard prejudiced Ross presents
a closer question. Although defense counsel did not present Ross’s self-defense claim in her
closing argument, Ross’s theory was nevertheless presented to the jury through his own trial
testimony. And despite receiving appropriate instructions regarding self-defense from the trial
court, the jury’s guilty verdicts demonstrate that it rejected Ross’s theory. Notwithstanding this
fact, the record suggests that defense counsel’s mistaken belief regarding the availability of a
self-defense claim may have impacted her other strategic decisions to such a degree that the
cumulative effect undermines our confidence in the outcome of the proceedings.

        For instance, Ross also argues that defense counsel provided ineffective assistance when
she failed to call two witnesses—Leonard Mattison and Ross’s niece, Jacarra Jones—who would
have corroborated Ross’s version of events. “[D]ecisions regarding what evidence to present and
whether to call or question witnesses are presumed to be matters of trial strategy, which we will
not second-guess with the benefit of hindsight.” People v Dixon, 263 Mich App 393, 398; 688
NW2d 308 (2004) (quotation marks and citation omitted). “Furthermore, the failure to call
witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a
substantial defense.” Id.

       Mattison testified that he was riding his bike down Grandville Avenue when he saw
Carter coming into the street with a rifle pointed at Ross. Mattison immediately turned around
and rode the other way. Mattison anticipated testifying at trial, but defense counsel told him on
the second day of trial that she would not call him as a witness because the prosecution would
                                               -6-
“tear [him] apart.” Defense counsel testified that she decided against calling Mattison after the
prosecutor advised her that Mattison had been untruthful during a brief interview with the officer
in charge. According to the assistant prosecutor, Mattison omitted reference to a conviction for
receiving and concealing stolen property from 2006 when he described his criminal history, and
the prosecutor advised defense counsel that he would impeach Mattison with the prior conviction
and omission. Defense counsel testified that she confronted Mattison about the prosecutor’s
allegations and, in response, Mattison merely shrugged and did not otherwise respond.

         Jones testified that she was living in Ross’s household at the time of the altercation
between Ross and Carter. Jones said that she was in the living room when she heard a
confrontation between Ross and Carter outside. Jones walked to the window and saw Carter
crossing the street toward Ross with a “long barrel gun.” Stunned, Jones backed away from the
window and did not witness anything else until she heard police sirens arrive at the scene. Jones
testified that she wrote a statement concerning what she saw. Defense counsel acknowledged
that Ross provided her with a number of letters from potential witnesses, including Jones. The
handwritten statement, addressed to a detective who does not appear connected with this matter,
states:

       Lenard Ross was having problems with Terry Carter July 7, 2014 late that
       evening. I was looking out our front living room window watching [Ross] having
       an altercation with Terry Carter. I then saw Terry Carter pulled out a gun a [sic]
       pointed it at [Ross] and shot. He then ran into his house.

An investigator retained by defense counsel testified that Ross told him Jones did not witness the
subject incident. Defense counsel testified that she did not call Jones for that reason. The trial
court found, and we agree, that Jones’s testimony clearly concerned the earlier altercation
between Ross and Carter in 2014, rather than the 2015 incident underlying Ross’s conviction.

        The prosecution’s case against Ross turned on the credibility of Carter’s version of
events, as corroborated by three witnesses who were not present for the full altercation,
compared with Ross’s uncorroborated claim of self-defense. Had defense counsel understood
the availability of a self-defense theory, it is probable that she would have appreciated the
significant probative value of Mattison’s testimony corroborating Ross’s claim that, before he
retrieved his handgun, Carter confronted him with an assault rifle. See, e.g., People v Jones, 48
Mich App 102, 107; 210 NW2d 145 (1973)2 (recognizing importance of evidence corroborating
a defendant’s claim of self-defense). See also People v Armstrong, 490 Mich 281, 291; 806
NW2d 676 (2011) (reasoning that evidence pertaining to the charged offense generally carries
more weight than impeachment through collateral matters). Instead, the jury was left to decide
the case without the benefit of evidence vital to the credibility of Ross’s self-defense testimony.
Jones’s testimony concerning the previous altercation between Ross and Carter would also carry


2
  Because Jones, 48 Mich App 102, was published before November 1, 1990, it is not
precedentially binding on this Court. MCR 7.215(J)(1). We rely on Jones only as persuasive
authority.


                                                -7-
more significance in the context of a self-defense theory because it would support the
reasonableness of Ross’s fear.

         Ross also argues that defense counsel was ineffective when she failed to impeach Daniels
on a material issue. A police report concerning Ross’s arrest noted that Daniels said she heard
the two men arguing and saw Carter exit his home with a long gun, pointing it at Ross. Contrary
to this report, Daniels testified under oath that she did not see Carter with a gun and that she said
no when the police asked her if she had. Defense counsel did not impeach Daniels with this
evidence or cross-examine her regarding another matter. Defense counsel testified, “I had no
questions for [Daniels], because my strategy was that now it’s about credibility, and Mr. Ross
was gonna’ testify to tell his side of the story.” When pressed further about why her strategy
would rely on Ross “clear[ing] it up,” without impeaching Daniels, defense counsel went on to
explain that she was aware that Ross had discussed buying alcohol for Daniels “for her to
testify,” and Daniels had become angry after they disagreed about the quantity of alcohol.
Defense counsel did not want the dispute to come before the jury because “it’s almost like you’re
bribing a witness to give your—in order for her to testify the way you want her to testify.”3

        Although decisions of whether to question witnesses are generally presumed to be
matters of trial strategy, Russell, 297 Mich App at 716, like her decisions concerning Mattison
and Jones, defense counsel’s consideration of the benefits and potential harm of impeaching
Daniels was tainted by her uninformed decision to forego a self-defense theory. Representation
may be ineffective where “counsel unreasonably fails to develop the defendant’s defenses by
adequately impeaching the witnesses against the defendant.” People v Lane, 308 Mich App 38,
68; 862 NW2d 446 (2014). Impeaching Daniels with the contradictory statement contained in
the police report may have not only diminished the strength of the prosecution’s case, but also
bolstered the credibility of Ross’s claim of self-defense.

                                        IV. CONCLUSION

        Had defense counsel exercised reasonable professional judgment, she would have been
aware that Ross’s recorded statement supported his claim of self-defense and that a self-defense
theory could be reasonably presented to the jury. To be clear, our opinion should not be read as
implying that an attorney could not have made an objectively reasonable and strategic choice to
refrain from calling Mattison and Jones or impeaching Daniels. Rather, the deficiencies in


3
  Although defense counsel considered the alcohol arrangement tantamount to bribery, we note
that the statements attributed to Daniels in the police report were made to the responding police
officers. In light of the failure to develop this issue at trial, it is unclear if the statements were
accurately reported. At any rate, the fact that these statements were allegedly made before there
was any discussion of Ross purchasing alcohol for Daniels undercuts the implication of
“bribery.” In addition, defense counsel’s investigator was also aware of the arrangement and
resulting disagreement between Ross and Daniels. When asked if there was any implication or
suggestion that Ross was trying to procure false testimony, the investigator answered, “Not at
all.”


                                                 -8-
defense counsel’s decisions arose from the fact that they were made without a complete
understanding of the controlling legal principles. Trakhtenberg, 493 Mich at 52-53; Grant, 470
Mich at 486-487. Further, because of her misunderstanding of the law, it is unclear whether
defense counsel would have proceeded in the same manner as it relates to Mattison, Jones, and
Daniels. This uncertainty is significant enough to undermine our confidence in the outcome of
the trial. Carbin, 463 Mich at 600. Accordingly, we vacate Ross’s convictions and sentences
and remand for a new trial. We do not retain jurisdiction.



                                                         /s/ Elizabeth L. Gleicher
                                                         /s/ Kirsten Frank Kelly
                                                         /s/ Anica Letica




                                             -9-
