              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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 3, 2019
                Plaintiff-Appellee,

v                                                                   No. 342461
                                                                    Wayne Circuit Court
ARNDOLA CHARLES LEWIS,                                              LC No. 17-001662-01-FC

                Defendant-Appellant.


Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ.

SHAPIRO, J. (concurring in part and dissenting in part).

        I dissent from the majority only as to the issue of ineffective assistance of counsel. The
autopsy report and the testimony of Dr. Schmidt provided the primary proof rebutting the claim
of self-defense. These were inadmissible pursuant to the Confrontation Clause absent testimony
from the medical examiner who conducted the autopsy. See Crawford v Washington, 541 US
36; 124 S Ct 1354; 158 L Ed2 d 177 (2004); People v Lewis, 490 Mich 921 (2011). Despite their
inadmissibility, defense counsel failed to object. My colleagues suggest a strategic basis for the
lack of objection but we have no way of knowing at this point whether counsel’s decision
actually rested on such strategy. Moreover, the suggested strategic basis carries little weight in
comparison to the possibility of excluding the autopsy and testimony altogether. I would
therefore remand to the trial court for a Ginther1 hearing in order to determine what, if any,
strategy actually lay behind the decision not to object and whether the prosecution had means to
introduce this evidence without violating the Confrontation Clause. In all other respects, I
concur.



                                                             /s/ Douglas B. Shapiro



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



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