Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  April 24, 2015                                                                     Robert P. Young, Jr.,
                                                                                                Chief Justice

                                                                                      Stephen J. Markman
                                                                                          Mary Beth Kelly
  149357                                                                                   Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein,
                                                                                                     Justices
  PEOPLE OF THE STATE OF MICHIGAN,
            Plaintiff-Appellee,
  v                                                        SC: 149357
                                                           COA: 312721
                                                           Wayne CC: 12-004553-FC
  ASHLY DRAKE SMITH,
           Defendant-Appellant.

  _________________________________________/

         On March 10, 2015, the Court heard oral argument on the application for leave to
  appeal the April 1, 2014 judgment of the Court of Appeals. On order of the Court, the
  application is again considered, and it is DENIED, because we are not persuaded that the
  question presented should be reviewed by this Court.

           KELLY, J. (dissenting).

         I respectfully dissent from the majority’s decision to deny leave to appeal and
  instead would reverse the judgment of the Court of Appeals and remand this case for a
  new trial. Because trial counsel failed to conduct a reasonable investigation into
  defendant’s alibi defense, counsel’s decision not to present the defense at trial constituted
  ineffective assistance of counsel.

          Defendant was charged with several crimes, including armed robbery. The
  defense theory at trial was misidentification. Following a bench trial, defendant was
  convicted as charged. The Court of Appeals remanded the case to the trial court for a
  Ginther hearing, 1 limited to the issue of whether trial counsel performed ineffectively by
  failing to adequately investigate or present an alibi defense. Five witnesses testified at
  the hearing: defendant, his trial counsel, and the three alibi witnesses who appeared the
  day of trial but were not called to testify. The trial court ultimately determined that trial
  counsel’s decision to not present the alibi testimony was reasonable and, regardless, that
  the failure to present the defense had no effect on the outcome of the proceeding. The
  Court of Appeals affirmed defendant’s convictions and sentences in a split, unpublished
  decision. 2

  1
      See People v Ginther, 390 Mich 436 (1973).
  2
   People v Smith, unpublished opinion per curiam of the Court of Appeals, issued April 1,
  2014 (Docket No. 312721).
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                                 INEFFECTIVE ASSISTANCE

        Both the Michigan and the United States Constitutions require that a criminal
defendant be afforded the assistance of counsel. 3 In Strickland v Washington, 466 US
668, 686 (1984), the United States Supreme Court stated that “the right to counsel is the
right to the effective assistance of counsel.” (Quotation marks and citation omitted.) The
Court established a bifurcated test for ineffective-assistance claims:

                 First, the defendant must show that counsel’s performance was
          deficient. This requires showing that counsel made errors so serious that
          counsel was not functioning as the “counsel” guaranteed the defendant by
          the Sixth Amendment. Second, the defendant must show that the deficient
          performance prejudiced the defense. This requires showing that counsel’s
          errors were so serious as to deprive the defendant of a fair trial, a trial
          whose result is reliable. [Id. at 687.]

In holding that the Michigan Constitution does not afford defendants greater protection
than its federal counterpart, this Court adopted the Strickland test in People v Pickens,
446 Mich 298, 338 (1994).

                                 DEFICIENT PERFORMANCE

       The Strickland Court recognized that “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” 4 “In any ineffectiveness case, a particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.” 5 “[S]trategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation,” but “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable[.]” 6

       Trial counsel met with defendant to discuss trial strategy for the first time the night
before trial. That meeting lasted approximately 15 minutes, a fact not disputed by
counsel. Defendant testified at the Ginther hearing that aside from this one meeting on
the eve of trial, counsel had only spoken with him during court proceedings and in the
bullpen of the jail. Counsel did not dispute that during these earlier encounters defendant

3
    Const 1963, art 1, § 20; US Const, Am VI.
4
    Strickland, 466 US at 691.
5
    Id.
6
    Id. at 690-691.
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informed her of his alibi defense, providing her with the names and contact information
for potential alibi witnesses. Nevertheless, counsel did not file a notice of alibi witness,
as she was statutorily required to do under Michigan law. 7 Filing a notice of alibi defense
does not bind counsel to pursue that strategy. Rather, it simply evidences an “intention to
claim that defense,” MCL 768.20(1), and provides an opportunity for counsel to conduct
further investigation into the validity of the defense.

       Further, trial counsel did not speak with any of the alibi witnesses until the day of
trial and, as a result, counsel did not have sufficient time to consider the relative
cohesiveness of their testimony or the manner in which their testimony could affect the
credibility of the victim’s testimony. Had counsel met with the witnesses before trial, she
could have determined the extent to which their testimony would have been advantageous
to the defense. Instead, the decision to not present the alibi witnesses was based on a
hurried meeting with them the day of the trial. 8 The decision to not elicit testimony from
alibi witnesses was a product of inadequate research, which is not afforded a presumption
of reasonableness under Strickland. 9 Because trial counsel failed in her duty to conduct a
reasonable investigation, her performance was constitutionally deficient.

       Trial counsel agreed at the Ginther hearing that her decision not to raise an alibi
defense was strategic and “based on the idea that this identification was so weak that by
putting on the alibi witnesses you didn’t want to jeopardize the acquittal that you thought
you were going to get.” However, this rationale further supports my opinion that trial
counsel rendered a deficient performance. First, an alibi defense would have supported
the misidentification defense that counsel presented at trial; if the victim’s identification
of defendant was erroneous, then defendant was necessarily at some other place at the
time the crime was committed. Second, if counsel believed that the prosecution’s case-
in-chief was so weak that an alibi witness was unnecessary, she could have tested this
assumption by moving for a directed verdict after the prosecution rested pursuant to
MCR 6.419(D). If the trial court had refused to grant the motion, trial counsel would
have been able to then decide whether to present the alibi defense. As with the failure to
file a notice of alibi defense, there would have been no negative consequences to the
defense in moving for a directed verdict. Defendant had nothing to lose and everything
to gain.



7
    MCL 768.20.
8
  While not addressed by the courts below, defendant and one of the female witnesses
testified at the Ginther hearing that trial counsel did not feel that the two female
witnesses were dressed appropriately for court. Defendant testified that trial counsel said
she would not call either of them because of their attire.
9
    See Strickland, 466 US at 690-691.
                                                                                           4

        For these reasons, the trial court’s conclusion that counsel had made a “strategic
decision” to not call the alibi witnesses is clearly erroneous. Although the trial court
emphasized some inconsistencies in the witnesses’ statements, the majority of the
inconsistencies existed between the testimony of the two female witnesses and the one
male witness. The trial court did not seem to recognize that counsel could have decided
to present only the testimony of the two female witnesses, whose testimony supported
one another’s. In analyzing the inconsistencies among these three accounts, the trial
court engaged in hindsight analysis, which is contrary to Strickland’s instruction that a
reviewing court “must judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct.” 10 Because trial
counsel’s decisions were not borne of adequate investigation at the time they were made,
the trial court clearly erred by finding that counsel’s decisions were reasonable.

                                       PREJUDICE

        In order to be entitled to relief under Strickland, a “defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 11 This Court has also recognized
that “ ‘[w]here there is relatively little evidence to support a guilty verdict to begin with
(e.g., the uncorroborated testimony of a single witness), the magnitude of errors
necessary for a finding of prejudice will be less than where there is greater evidence of
guilt.’ ” 12

        In the present case, the evidence of defendant’s guilt was particularly weak. The
only evidence against defendant was the testimony of the victim. There was no other
evidence corroborating the victim’s eyewitness account. Further, the victim was forced
to lie face down during the robbery, which was over within minutes. The defense also
presented evidence that the victim held a racial bias toward defendant. On cross-
examination, the victim admitted that he made remarks “in a racial context” regarding the
defendant on Facebook after the robbery. Although the victim testified that he was “one
hundred and ten percent” certain that defendant was the perpetrator, at other times his
testimony was more equivocal. For instance, he also admitted that “the more I look back
on it” after the robbery, “I convinced myself I did see what I seen.”

       The only evidence that supported a guilty conviction here was the uncorroborated
testimony of a single witness. Therefore, a lesser magnitude of errors will suffice to

10
     Id. at 690.
11
     Id. at 694.
12
  People v Trakhtenberg, 493 Mich 38, 56 (2012), quoting Brown v Smith, 551 F3d 424,
434-435 (CA 6, 2008).
                                                                                         5

establish prejudice. The trial court based its finding of no prejudice on the fact that the
three witnesses could not account for defendant’s whereabouts for each minute of the
evening the crime was committed. However, the trial court failed to understand that
counsel could have minimized the inconsistencies of alibi witness testimony by calling
only the two female witnesses. Furthermore, the two women testified that they were with
defendant for the large majority of the evening and that defendant left their presence for,
at most, 20 minutes. Given the distance between defendant’s apartment and the scene of
the crime, 20 minutes would have been barely sufficient for defendant to have committed
the crime. The two women also testified that they and defendant had all suffered from a
stomach flu that night. This detail is significant because it establishes how these women
were able to remember the events of that particular night, and it suggests that defendant
would have been physically unable to commit the crime in a 20-minute period.

       I believe that the trial court’s conclusion that counsel’s errors did not affect the
outcome of the proceedings was clearly erroneous. The trial court’s determination was
based on a misunderstanding of how an effective alibi defense could have been presented.
The trial court did not understand that counsel need not have called all three witnesses,
nor did the trial court understand the relevant timeline. Moreover, I do not believe that
the trial court properly applied the standard that this Court outlined in People v
Trakhtenberg, 13 i.e., that the prejudice inquiry must necessarily take into account the
strength or weakness of the prosecution’s case.

                                     CONCLUSION

       Given counsel’s dilatory and seemingly impassive preparation, I conclude that
counsel’s performance was constitutionally deficient under Strickland and that her failure
to prepare for trial prejudiced defendant. Therefore, I would reverse the judgment of the
Court of Appeals and remand this case to the Wayne Circuit Court for a new trial.




13
     Trakhtenberg, 493 Mich 38.
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MCCORMACK and BERNSTEIN, JJ., join the statement of KELLY, J.




                 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.
                 April 24, 2015
s0421
                                                                     Clerk
