Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  January 31, 2020                                                              Bridget M. McCormack,
                                                                                              Chief Justice

  159858                                                                             David F. Viviano,
                                                                                     Chief Justice Pro Tem

                                                                                   Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN,                                                      Brian K. Zahra
            Plaintiff-Appellee,                                                   Richard H. Bernstein
                                                                                  Elizabeth T. Clement
  v                                                      SC: 159858               Megan K. Cavanagh,
                                                                                                   Justices
                                                         COA: 339254
  SARANTAY DEVON HOUSTON,                                Wayne CC: 16-008127-FH
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the application for leave to appeal the May 7, 2019
  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.B. of the judgment of the Court of
  Appeals addressing tool mark identification evidence, and REMAND this case to the
  Wayne Circuit Court for an evidentiary hearing pursuant to People v Ginther, 390 Mich
  436 (1973). Contrary to the statement by the Court of Appeals in this case, the
  defendant’s trial counsel was not required to choose between an alibi defense and
  challenging the expert testimony on firearms and ballistics, as challenging the
  prosecution’s expert would not have undermined the defendant’s alibi defense. 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.

        MARKMAN, J. (dissenting).

         I respectfully dissent. A jury convicted defendant of assault with intent to commit
  great bodily harm, being a felon in possession of a firearm, carrying a concealed weapon,
  and possessing a firearm during the commission of a felony. Evidence supporting the
  verdict included the victim’s identification of defendant as the shooter and testimony
  from a ballistics expert matching shell casings recovered from the scene to a firearm
  retrieved from a house frequented by defendant. Defense counsel presented five alibi
  witnesses who placed defendant at a birthday party at the time of the shooting. Defense
  counsel, however, did not challenge the ballistics expert’s testimony. The Court of
  Appeals affirmed defendant’s convictions, in part rejecting defendant’s argument that
  counsel performed deficiently by not challenging the ballistics expert. This Court vacates
  that portion of the judgment of the Court of Appeals, with this Court stating that
  “challenging the prosecution’s expert would not have undermined the defendant’s alibi
  defense.”

        To obtain a new trial based on a claim of ineffective assistance of counsel,
  “defendant must show that (1) counsel’s performance fell below an objective standard of
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reasonableness and (2) but for counsel’s deficient performance, there is a reasonable
probability that the outcome would have been different.” People v Trakhtenberg, 493
Mich 38, 51 (2012). “In examining whether defense counsel’s performance fell below an
objective standard of reasonableness, a defendant must overcome the strong presumption
that counsel’s performance was born from a sound trial strategy.” Id. at 52 (emphasis
added). This Court reaches its conclusion that a challenge to the ballistics expert would
not have undermined defendant’s alibi defense without (a) first permitting an evidentiary
hearing at which counsel could testify regarding any strategic reasons for not challenging
the expert, and (b) according due deference to the presumption that counsel acted in
pursuit of a sound trial strategy. However, I can think of at least three potentially sound
reasons for counsel’s decision not to have challenged the expert’s testimony.

        First, counsel may have concluded that challenging the expert through cross-
examination would have proven fruitless or even potentially harmful to defendant’s case.
While some literature draws into question the reliability of ballistics-comparison
methodology, an experienced expert in ballistics would likely be familiar with this
literature and prepared to refute the contentions in the literature. Thus, the expert’s
answers on cross-examination might well have undermined counsel’s efforts to draw into
question the direct testimony and could even have strengthened the authority of the
expert’s opinion. As the law school adage goes, an attorney should not ask a witness a
question if the attorney does not know the witness’s answer. 1

        Second, assuming for the sake of argument that the literature relied upon by
defendant on appeal accurately reflects the validity of ballistics-comparison evidence,
reflects the validity of ballistics-comparison evidence, the views of scholars and the
views of the public are not necessarily one and the same. Specifically, in the “Crime
Scene Investigation” age, counsel could reasonably have concluded that a jury would be



1
  Defendant also faults counsel for not having called his own ballistics expert. However,
defendant fails to put forth evidence showing what favorable testimony such an expert
would have provided. See People v Carbin, 463 Mich 590, 600 (2001) (“Because the
defendant bears the burden of demonstrating both deficient performance and prejudice,
the defendant necessarily bears the burden of establishing the factual predicate for his
claim.”). Rather, the expert that defendant contends counsel should have called to testify,
Steven Howard, is yet to have even reviewed the prosecutor’s expert’s report or the
evidence supporting that report. Furthermore, while defendant may attribute this
deficiency in his claim to the trial court not having allocated him $1,500 to retain Mr.
Howard, defendant’s application for leave to appeal in this Court does not challenge that
decision by the trial court.
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highly inclined to believe the ballistics expert’s testimony despite potential flaws in the
methodology supporting that testimony. And counsel may have worried further that an
unsuccessful challenge to the ballistics expert’s testimony would have (a) given the
impression to the jury that defendant was advancing a scattershot defense rather than a
defense focused upon the alibi testimony, and (b) compromised defense counsel’s
credibility in presenting that alibi defense.

       Third, and most importantly, while challenging the ballistics expert’s testimony
might have undermined one of the prosecutor’s pieces of evidence, it would not have
refuted the victim’s positive identification of defendant as the shooter. Rather, it would
have suggested that defendant had employed a different firearm to shoot the victim. But
if the jury believed the five alibi witnesses, the ballistics report might have actually
helped defendant undermine the victim’s identification.             Notably, defendant’s
fingerprints were not recovered from the firearm. And while some papers and pictures
linked defendant to the house from which the police had recovered the firearm,
defendant’s cousin lived in the house. Thus, counsel might have hoped that the jury
would draw the inference that the victim had misidentified defendant for defendant’s
cousin-- a cousin who bore a closer connection to the house than did defendant.

       In light then of the “strong presumption” that counsel acted in accordance with a
sound trial strategy and the three easily conceivable reasons for counsel not having
challenged the ballistics expert, this Court has prematurely concluded that “challenging
the prosecution’s expert would not have undermined the defendant’s alibi defense.”




                         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.
                         January 31, 2020
       a0128
                                                                             Clerk
