Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  October 24, 2018                                                                   Stephen J. Markman,
                                                                                                Chief Justice

  156309                                                                                   Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                          Kurtis T. Wilder
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Elizabeth T. Clement,
            Plaintiff-Appellee,                                                                      Justices

  v                                                       SC: 156309
                                                          COA: 330612
                                                          Oakland CC: 2014-251162-FC
  ALEX JAY ADAMOWICZ,
            Defendant-Appellant.

  _____________________________________/

          On order of the Court, the application for leave to appeal the June 22, 2017
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in
  lieu of granting leave to appeal, we VACATE Part II of the Court of Appeals judgment
  titled, “Ineffective Assistance of Counsel,” and we REVERSE in part and VACATE in
  part Part II of the Court of Appeals judgment titled, “Prosecutorial Error.”

          With respect to the defendant’s claim of ineffective assistance of counsel, we
  determine that the development of a factual record is required for appellate consideration.
  See MCR 7.305(C)(8); MCR 7.211(C)(1)(a)(ii). With respect to the defendant’s claims
  of prosecutorial error, contrary to the Court of Appeals’ conclusion, the prosecutor erred
  by asking the jury to consider the defendant’s “moral duty” to retreat from his own
  dwelling in relation to his self-defense claim. Asking a jury to consider a defendant’s
  “moral duty” to retreat is inconsistent with the Self-Defense Act (SDA), MCL 780.971 et
  seq., legally irrelevant to such a claim, and creates a danger of confusion of the issues.
  See MRE 401; MRE 403. The prosecutor also erred by eliciting testimony and
  presenting argument regarding the defendant’s retrospective assessment of his ability to
  retreat, where it was undisputed that the defendant had no duty to retreat. “It is
  universally accepted that retreat is not a factor in determining whether a defensive killing
  was necessary when it occurred in the accused’s dwelling.” People v Riddle, 467 Mich
  116, 134 (2002). In a self-defense claim, the accused’s conduct is judged according to
  how the circumstances appeared to him at the time he acted. See e.g., Pond v People, 8
  Mich 150, 169 (1860). Thus, the prosecutor’s questioning and argument in this regard
  were legally irrelevant and created a danger of confusion of the issues. See MRE 401;
                                                                                                               2

MRE 403. We recognize that the Court of Appeals assumed, without deciding, that the
prosecutor erred and determined that the defendant had nevertheless failed to demonstrate
that the errors affected the outcome of his trial. However, given the significance of the
prosecutor’s errors identified in this order, we VACATE the Court of Appeals’ prejudice
analysis and REMAND for reconsideration of whether the prosecutorial errors
constituted plain error affecting substantial rights. People v Carines, 460 Mich 750, 763
(1999).

       On remand, while retaining jurisdiction, the Court of Appeals shall remand this
case to the Oakland Circuit Court to conduct an evidentiary hearing pursuant to People v
Ginther, 390 Mich 436 (1973), to determine whether the defendant was deprived of his
right to the effective assistance of counsel with respect to the failure to call an expert
witness and the failure to object to the prosecutor’s errors identified above. At the
conclusion of the hearing, the circuit court shall forward the record and its findings to the
Court of Appeals, which shall then resolve the issues presented by the defendant.

        In all other respects, leave to appeal is DENIED, because we are not persuaded
that the remaining questions presented should be reviewed by this Court.

       We do not retain jurisdiction.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         October 24, 2018
       a1017
                                                                             Clerk
