                                                                                     Michigan Supreme Court
                                                                                           Lansing, Michigan




Syllabus
                                                                Chief Justice:       Justices:
                                                                Stephen J. Markman   Brian K. Zahra
                                                                                     Bridget M. McCormack
                                                                                     David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                     Kurtis T. Wilder
                                                                                     Elizabeth T. Clement
This syllabus constitutes no part of the opinion of the Court but has been           Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.             Kathryn L. Loomis



                                             PEOPLE v RANDOLPH

             Docket No. 153309. Argued on application for leave to appeal November 7, 2017.
       Decided June 15, 2018.

                Andrew M. Randolph was convicted after a jury trial in the Genesee Circuit Court,
       Geoffrey L. Neithercut, J., of second-degree murder, MCL 750.317; discharging a firearm into a
       building, MCL 750.234b; being a felon in possession of a firearm, MCL 750.224f; and
       possessing a firearm during the commission of a felony, MCL 750.227b, in connection with the
       fatal shooting of Vena Fant, his girlfriend’s mother. The night before the shooting, defendant
       had fought with his girlfriend and packed his belongings into bags before departing. Fant then
       brought these bags to the home of defendant’s father, Alphonso Taylor. After the shooting,
       without a search warrant, the police obtained Taylor’s consent to search the bags, which
       contained several rounds of ammunition. An arrest warrant was later issued and executed on
       defendant at his brother’s apartment, where a search revealed a handgun linked to the killing. At
       trial, the prosecution’s case relied in part on testimony about threats defendant had made to the
       victim’s family on the day of the shooting and evidence of the ammunition and gun found during
       the investigation. Regarding the threats, Linda Wilkerson, the sister of Fant’s fiancé, testified
       that Fant said that defendant had been calling throughout the day and threatening to kill the
       family. Defense counsel did not object to this testimony, nor did he object to the admission of
       the ammunition and gun as evidence. Defendant appealed his convictions, arguing that his
       counsel had been ineffective, and the Court of Appeals remanded the case to the trial court for a
       hearing pursuant to People v Ginther, 390 Mich 436 (1973). At the hearing, defendant’s father,
       Taylor, testified that he had not touched defendant’s bags or received defendant’s permission to
       open them and that when the police searched the bags, they never asked whether Taylor had
       permission to go through them. Trial counsel admitted that he had no strategic reason for failing
       to file a motion to suppress the ammunition found at Taylor’s house. After the hearing, the trial
       court rejected defendant’s ineffective-assistance claim, ruling that counsel’s performance was
       not deficient and that, in any case, defendant was not prejudiced. Defendant appealed on this
       basis and also on the basis of the unpreserved alleged errors by the trial court relating to the
       admission of evidence. The Court of Appeals, SAWYER, P.J., and K. F. KELLY and FORT HOOD,
       JJ., affirmed in an unpublished per curiam opinion issued November 24, 2015 (Docket No.
       321551), holding in part that defendant could not establish his ineffective-assistance claim
       because he had not established that plain error had occurred. The Supreme Court ordered and
       heard oral argument on whether to grant the application for leave to appeal or take other
       peremptory action. 500 Mich 999 (2017).
       In a unanimous opinion by Justice VIVIANO, the Supreme Court, in lieu of granting leave
to appeal, held:

        A defendant’s inability to establish that the trial court committed a plain error does not
necessarily preclude the defendant from establishing the ineffective assistance of counsel on the
basis of that same error. The standards for establishing plain error by the trial court and
ineffective assistance of trial counsel have separate legal elements that focus on different facts.
Accordingly, courts must independently analyze each claim, even if the subject of a defendant’s
ineffective-assistance claim relates to the same error. Because the Court of Appeals failed to
apply the standards set forth in Strickland v Washington, 466 US 668 (1984), to defendant’s
ineffective-assistance claims, the Court of Appeals’ holdings as to those claims were reversed
and the case was remanded to the Court of Appeals to review those claims under the Strickland
framework in light of the trial record and the record produced at the Ginther hearing.

        1. Under Strickland, establishing ineffective assistance requires a defendant to show that
trial counsel’s performance was objectively deficient and that the deficiencies prejudiced the
defendant. Prejudice means 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. The plain-error standard set forth
in People v Carines, 460 Mich 750 (1999), which governs unpreserved errors at trial, has four
elements: (1) error must have occurred, (2) the error was plain, i.e., clear or obvious, (3) the plain
error affected substantial rights, and (4) the plain, forfeited error resulted in the conviction of an
actually innocent defendant or an error seriously affected the fairness, integrity, or public
reputation of judicial proceedings independent of the defendant’s innocence. A “clear or
obvious” error under the second prong is one that is not subject to reasonable dispute. The third
element generally requires a showing of prejudice, i.e., that the error affected the outcome of the
lower court proceedings. Under Carines, it is the trial court’s unobjected-to error that is the
subject of plain-error review, whereas the ultimate determination of an ineffective-assistance
claim under Strickland is whether the defendant has suffered a genuine deprivation of the right to
effective assistance of counsel. Accordingly, plain-error claims and ineffective-assistance claims
have their own elements and require different analyses. Furthermore, an appellate court need not
look beyond the trial court record when reviewing a trial court’s mistake for plain error, whereas
the errors underlying ineffective-assistance claims often are not apparent from the trial record
and require additional evidentiary development. Accordingly, courts should address ineffective-
assistance claims based on the pertinent inquiry—the effect of counsel’s deficient performance—
considering the pertinent facts, which may include facts developed at an evidentiary hearing.

        2. The Court of Appeals impermissibly conflated the plain-error and ineffective-
assistance standards when analyzing the admission of the ammunition and murder weapon.
Defendant argued on appeal that this evidence was the fruit of an unlawful search under the
Fourth Amendment because his father lacked actual or apparent authority to consent to the police
officers’ request to search his belongings. The Court of Appeals held that defendant did not
meet his burden of establishing a plain error affecting his substantial rights regarding the
impropriety of the search and introduction of the allegedly illegal fruits of that search. The
panel’s analysis suggested that any error was not readily apparent from the record and therefore
not obvious under Carines. But defendant also challenged his counsel’s effectiveness relating to
the introduction of this evidence, specifically alleging that his counsel’s failure to move to
suppress the evidence constituted deficient performance and that it prejudiced him. The panel
did not evaluate counsel’s performance or the prejudice that resulted from it at all, instead
relying on its plain-error analysis to conclude that the related ineffective-assistance claims must
also fail. However, whether an error was obvious to the trial court is not an element of an
ineffective-assistance claim. Given the centrality of the gun and ammunition to the prosecution’s
case, any ineffective assistance resulting in their admission might have prejudiced defendant.
The proper analysis would have applied Strickland’s two prongs and asked whether counsel’s
failure to object to the evidence constituted prejudicial deficient performance.

        3. The Court of Appeals also erred by conflating the plain-error and ineffective-
assistance standards when analyzing the admission of Fant’s statements through the testimony of
her fiancé’s sister, Linda Wilkerson. Wilkerson testified that Fant said that defendant had been
threatening Fant’s family. Defendant contended on appeal that those hearsay statements were
inadmissible and that the trial court erroneously admitted them as excited utterances. In its plain-
error analysis of this issue, the Court of Appeals rejected defendant’s argument because any error
in admitting the testimony was not clear or obvious given defendant’s failure to object.
However, the fact that any error was not obvious did not justify rejecting defendant’s ineffective-
assistance claim; rather, the relevant questions for the Court were whether counsel’s failure to
object was deficient performance and whether it prejudiced defendant. The Court of Appeals
alternatively concluded that any plain error in admitting Wilkerson’s statements did not affect
defendant’s substantial rights, given that the statements were evidence of premeditation but the
jury acquitted defendant of first-degree murder. This conclusion could have been reached only
by properly applying the Strickland test, which requires considerations of defense counsel’s
actions and their effect in light of all of the evidence relating to that claim, including that
developed at any evidentiary hearing, and that proper application was not evident in the Court’s
opinion.

        Court of Appeals judgment reversed in part; case remanded to the Court of Appeals for
further proceedings.

       Justice CLEMENT took no part in the decision of this case.




                                    ©2018 State of Michigan
                                                                             Michigan Supreme Court
                                                                                   Lansing, Michigan




OPINION
                                                      Chief Justice:           Justices:
                                                      Stephen J. Markman       Brian K. Zahra
                                                                               Bridget M. McCormack
                                                                               David F. Viviano
                                                                               Richard H. Bernstein
                                                                               Kurtis T. Wilder
                                                                               Elizabeth T. Clement

                                                                       FILED June 15, 2018



                            STATE OF MICHIGAN

                                    SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                               No. 153309

ANDREW MAURICE RANDOLPH,

              Defendant-Appellant.


BEFORE THE ENTIRE BENCH (except CLEMENT, J.)

VIVIANO, J.
       This case requires us to consider whether a defendant’s failure to satisfy the plain-

error test in connection with a legal mistake by the trial court necessarily precludes the

defendant from establishing the ineffective assistance of his trial counsel relating to that

same mistake. Because these standards of review have separate legal elements that focus

on different facts, we hold that a failure to satisfy the plain-error test will not, without

more, foreclose a defendant’s claim of ineffective assistance of trial counsel. This is true
even when the subject of each claim is the same. Therefore, even when a defendant

cannot succeed on a claim being reviewed for plain error, courts may not simply

conclude, without independent consideration, that a defendant is unable to succeed on an

ineffective-assistance claim relating to the same underlying issue.

       In the instant case, the Court of Appeals conflated the two standards of review,

and therefore failed to properly analyze defendant’s ineffective-assistance claims.

Therefore, we reverse the Court of Appeals’ holdings regarding those claims and remand

the case to that Court for reconsideration of those claims in light of the analysis below.

                       I. FACTS AND PROCEDURAL HISTORY

       Defendant lived with his girlfriend, Kanisha Fant. They quarreled throughout the

night of December 9, 2012, with defendant making various threats against Fant’s family.

At some point, he packed his belongings into bags but left them behind when he

departed. Kanisha’s mother, Vena Fant, brought the bags to the home of defendant’s

father, Alphonso Taylor.

       The next day, gunshots struck Vena’s home. One bullet pierced Vena’s neck,

killing her. After the police arrived, defendant showed up at the scene and was taken into

custody. The police lacked sufficient evidence to charge defendant, however, and he was

released. The same day, without a search warrant, the police obtained Taylor’s consent

to search the bags containing defendant’s belongings. They found several rounds of .357

ammunition. The Bureau of Alcohol, Tobacco, Firearms, and Explosives was alerted,

and it obtained an arrest warrant for defendant’s violation of federal law prohibiting a

felon (which he was) from possessing ammunition.




                                              2
        In February 2013, an arrest warrant was issued and executed on defendant at his

brother’s apartment, where defendant had been staying. Because his brother was on

parole, the police searched the apartment based on his brother’s parolee status.1 During

the search, they found a handgun linked to the homicide.

        Defendant was charged with first-degree premeditated murder and felony-firearm,

among other things. The prosecution’s case relied, in part, on testimony about threats

defendant had made to the victim’s family on December 10 and evidence of the

ammunition and gun found during the investigation.           Regarding the threats, Linda

Wilkerson, the sister of Vena’s fiancé, testified that Vena said that defendant, throughout

the day, had been calling and threatening to kill the family. Vena told Wilkerson that

everyone needed to be alert. Defense counsel did not object to this testimony, nor did he

object to the admission of the ammunition and gun.

        Defendant was convicted of the lesser offense of second-degree murder, MCL

750.317, discharging a firearm into a building, MCL 750.234b, being a felon in

possession of a firearm, MCL 750.224f, and possessing a firearm during the commission

of a felony, MCL 750.227b. On appeal, defendant argued, among other issues, that his

trial counsel was constitutionally ineffective, and the Court of Appeals remanded to the

trial court for a Ginther2 hearing.3 Defendant’s father, Taylor, testified at the hearing that

1
  See Mich Admin Code, R 791.7735(2) (permitting a parole agent to conduct a
warrantless search of a parolee’s property when the agent has reasonable cause to believe
a parole violation exists).
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
 People v Randolph, unpublished order of the Court of Appeals, entered March 26, 2015
(Docket No. 321551), p 1.



                                              3
defendant was not living at his house when Vena brought defendant’s belongings there,

and, in fact, had never lived there. Taylor was told to give the bags to defendant, and he

testified that he never touched the bags or received defendant’s permission to open them.

When the police searched the items, they never asked if Taylor had permission to go

through them. Trial counsel admitted at the hearing that there was no strategic reason for

failing to file a motion to suppress the ammunition found at Taylor’s house. He simply

thought defendant lacked standing to make such a claim.

       The trial court rejected defendant’s claim of ineffective assistance of trial counsel,

finding that counsel’s performance was not deficient and that, in any case, defendant was

not prejudiced. Defendant appealed. He also raised a host of unpreserved errors, asking

that they be reviewed for plain error. For the reasons discussed below, the Court of

Appeals affirmed defendant’s conviction, finding neither his claims of trial court error

nor his claim of ineffective assistance persuasive.4 Defendant sought leave to appeal in

this Court, and we ordered briefing on “whether a defendant’s failure to demonstrate

plain error precludes a finding of ineffective assistance of trial counsel; and, in

particular, . . . whether the prejudice standard under the third prong of plain error . . . is

the same as the Strickland [v Washington] prejudice standard . . . .”5




4
 People v Randolph, unpublished per curiam opinion of the Court of Appeals, issued
November 24, 2015 (Docket No. 321551), pp 6-10.
5
 People v Randolph, 500 Mich 999 (2017), citing Strickland v Washington, 466 US 668,
694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).



                                              4
                             II. STANDARD OF REVIEW

      Questions of law, such as the applicability of legal doctrines to a given set of facts,

are reviewed de novo.6

                                     III. ANALYSIS

      The issue in this case involves the relationship between the standards for

reviewing unpreserved claims that the trial court erred (which are reviewed for plain

error) and related claims that trial counsel was constitutionally ineffective. Does a

defendant’s failure to demonstrate the former preclude him or her from being able to

demonstrate the latter? This question arises because it is not uncommon for a defendant

to challenge the same underlying error through both frameworks.7 Here, for example,

defendant claims that the trial court’s admission of the murder weapon and ammunition

was plain error, while also claiming that his trial counsel’s failure to object to the

admission of that evidence constitutes ineffective assistance. Thus his basic challenge to

the admission of the evidence is made in two separate claims for relief. He approaches

the admission of Vena’s statements similarly, contending on the one hand that the trial



6
 People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010); People v Thousand, 465
Mich 149, 156; 631 NW2d 694 (2001).
7
  See, e.g., Gordon v United States, 518 F3d 1291, 1298 (CA 11, 2008) (noting that an
“unobjected-to error” subject to plain-error review could be articulated as a claim of
ineffective assistance); Rhoades v State, 848 NW2d 22, 33 (Iowa, 2014) (Mansfield, J.,
concurring) (noting that while Iowa does not recognize a plain-error rule, “[i]n some
respects, we are using ineffective assistance as a substitute for a plain error rule”); see
also United States v Saro, 306 US App DC 277, 281; 24 F3d 283 (1994) (“[T]here is a
natural analogy between the assertion of ‘plain error’ and the assertion of ineffective
assistance of counsel.”).



                                             5
court plainly erred by admitting them, and on the other hand that his attorney was

constitutionally deficient for allowing that error to happen. Does defendant’s inability to

satisfy the plain-error test preclude him from satisfying the Sixth Amendment test when

he is complaining about the same underlying mistake?

         Our analysis begins with a simple examination of the elements of each standard of

review. Under Strickland v Washington, establishing ineffective assistance requires a

defendant to show (1) that trial counsel’s performance was objectively deficient, and (2)

that the deficiencies prejudiced the defendant.8           Prejudice means “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.”9

         Our plain-error standard, governing unpreserved errors at trial, derives from

federal law.10 As we noted in People v Carines, the test has four elements:

         1) error must have occurred, 2) the error was plain, i.e., clear or obvious,
         3) . . . the plain error affected substantial rights . . . [, and 4)] once a
         defendant satisfies these three requirements, an appellate court must
         exercise its discretion in deciding whether to reverse. Reversal is warranted
         only when the plain, forfeited error resulted in the conviction of an actually
         innocent defendant or when an error seriously affected the fairness,

8
 Strickland, 466 US at 688; see also People v Pickens, 446 Mich 298, 338; 521 NW2d
797 (1994) (adopting the Strickland test as the standard for ineffective assistance under
Michigan’s Constitution).
9
    Strickland, 466 US at 694.
10
   See People v Grant, 445 Mich 535, 553; 520 NW2d 123 (1994) (adopting the plain-
error test for unpreserved nonconstitutional errors from United States v Olano, 507 US
725; 113 S Ct 1770; 123 L Ed 2d 508 (1993)).



                                               6
         integrity or public reputation of judicial proceedings independent of the
         defendant’s innocence.[11]

A “clear or obvious” error under the second prong is one that is not “subject to reasonable

dispute.”12 The third Carines element “generally requires a showing of prejudice, i.e.,

that the error affected the outcome of the lower court proceedings.”13

         As an initial matter, the specific error that is the focus of each standard is different.

It is the trial court’s unobjected-to error that is the subject of plain-error review.14 By

contrast, the “ultimate determination” of an ineffective-assistance claim “is not the

propriety of the trial court’s actions with regard to an alleged error, but whether

defendant has suffered a genuine deprivation of his right to effective assistance of

counsel . . . .”15 There will no doubt be occasions when both standards are relevant; trial

counsel’s deficient performance will often result in a trial court error, but the claims

associated with each type of error have their own elements and require different analyses.




11
  People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999) (rearticulating the
Olano/Grant standard and applying it to unpreserved constitutional errors) (quotation
marks and citation omitted).
12
     Puckett v United States, 556 US 129, 135; 129 S Ct 1423; 173 L Ed 2d 266 (2009).
13
     Carines, 460 Mich at 763.
14
   See, e.g., Saro, 24 F3d at 286 (“Obviousness” for purposes of plain-error review “is
assessed from the perspective of the trial court; the error must be ‘so “plain” the trial
judge and prosecutor were derelict in countenancing it, even absent the defendant’s
timely assistance in detecting it.’ ”), quoting United States v Frady, 456 US 152, 163;
102 S Ct 1584; 71 L Ed 2d 816 (1982).
15
     Deck v State, 68 SW3d 418, 428 (Mo, 2002).


                                                 7
In evaluating a trial court’s error the appellate court is making one determination, and in

evaluating trial counsel’s deficient performance, the determination is different.16

         The tests for each determination reflect their differences. The first two prongs of

the plain-error standard require that an error exist and that it be obvious.17 Neither of

these alone satisfies either Strickland prong. A trial court’s error does not tell us (1)

whether counsel performed deficiently with respect to that trial court error or (2), if

counsel’s performance was deficient, whether it prejudiced the defendant.18             The

obviousness of the error, the second plain-error test element, is no different. While in

some instances an obvious error may correlate with counsel’s ineffectiveness in

responding to it and the prejudice resulting from that failure, in others instances it will

not.

16
  See generally United States v Carthorne, 878 F3d 458, 465 (CA 4, 2017) (“Plain error
review by appellate courts is used ‘to correct only particularly egregious errors’ by a trial
court. . . . By comparison, the ineffective assistance inquiry on collateral review does not
involve the correction of an error by the district court, but focuses more broadly on the
duty of counsel to raise critical issues for that court’s consideration.”); see also Hagos v
People, 288 P3d 116, 121; 2012 CO 63 (Colo, 2012) (“The two claims serve different
purposes and each requires an independent, fact-specific analysis. The [plain-error
analysis] addresses whether the prejudice resulted from the trial court’s acts or omissions,
while the ineffective assistance claim examines whether prejudice resulted from
counsel’s acts or omissions.”).
17
     Carines, 460 Mich at 763.
18
   The inverse is true as well. While counsel’s failure to object to testimony or argument
that the trial court properly admitted might rarely constitute ineffective assistance, see
generally People v Riley (After Remand), 468 Mich 135, 142; 659 NW2d 611 (2003)
(“Ineffective assistance of counsel cannot be predicated on the failure to make a frivolous
or meritless motion.”), we cannot categorically state that any time a defendant is unable
to satisfy the first prong of Carines, a Strickland claim relating to the same issue must
fail, given the different elements of each test.



                                              8
         Examples are helpful. A defendant might appeal a trial court’s obvious error of

permitting a prosecutor to extensively reference the defendant’s post-arrest, post-

Miranda19 silence,20 a clear due process violation. But nothing about that obvious error

by the court, without more, helps the defendant meet his or her burden in bringing an

ineffective-assistance claim, because Strickland’s two prongs ask different questions. At

issue in a claim of ineffective assistance of counsel is whether counsel’s failure to object

to the improper evidence was constitutionally deficient, and if so whether that failure

prejudiced the defendant. And “[c]ounsel may decide, for strategic reasons, not to object

to an obvious error.”21 If counsel’s strategy is reasonable, then his or her performance

was not deficient.22

         Conversely, an error’s lack of obviousness does not, without more, necessarily

preclude an ineffective-assistance claim relating to the same issue. Simply because an

error was unclear does not mean that counsel could let it pass without objection. Indeed,

an ineffective-assistance claim might allege deficient performance that caused the error to

be unclear. For example, an examination of defense counsel’s performance might reveal

that he or she deficiently failed to develop the record or pursue a line of questioning that



19
     Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
20
     See, e.g., People v Shafier, 483 Mich 205, 224; 768 NW2d 305 (2009).
21
     Gordon, 518 F3d at 1300.
22
  See, e.g., People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (“In [proving
deficient performance], the defendant must overcome a strong presumption that counsel’s
performance constituted sound trial strategy.”), citing Strickland, 466 US at 690.



                                             9
would have made an error obvious.23 In such a case, it would be circular to reject the

ineffective-assistance claim on the grounds that the error was not clear under the plain-

error standard. Trial counsel’s own deficient performance—e.g., his or her failure to

develop the record making the error clear—would make it impossible for the defendant to

have that unconstitutional performance evaluated.24

       Each standard does require a showing of prejudice: Carines’s third prong and

Strickland’s second. But even here, a finding that a defendant failed to satisfy the

prejudice prong when complaining about an error by the court will not necessarily mean

that the defendant is unable to prevail on an ineffective-assistance claim relating to the

same underlying issue. In fact, the record on which the claims are assessed will typically

be different. An appellate court need not look beyond the trial court record when


23
   See Ex parte Taylor, 10 So 3d 1075, 1079 (Ala, 2005) (Stuart, J., concurring) (noting
that the trial record might, in certain cases, support a finding of no plain error, but that
“on subsequent review of facts developed surrounding counsel’s performance with regard
to the issue, the more developed record might lead to the conclusion that counsel’s errors
with regard to making the record for review of the substantive claim” constituted
ineffective assistance).
24
  Indeed, the very reason for the plain-error framework, with its extra elements
(particularly Carines’s fourth prong), is for instances in which defense counsel failed to
preserve the argument by raising it in the trial court. See Carines, 460 Mich at 764-765
(“[R]equiring a contemporaneous objection provides the trial court ‘an opportunity to
correct the error, which could thereby obviate the necessity of further legal proceedings
and would be by far the best time to address a defendant’s constitutional and
nonconstitutional rights.’ ”), quoting Grant, 445 Mich at 551; Deck, 68 SW3d at 427 (“If
no objection was made or the error was otherwise not preserved, then the trial court
cannot normally be accused of error in its rulings, much less prejudicial error.”). Had the
claim been preserved by contemporaneous objection, the error would have been brought
to the court’s attention and a different standard would guide the reviewing court. And, of
course, the failure to object in the first place might itself constitute ineffective assistance.



                                              10
reviewing a trial court’s mistake for plain error; an “appellate court can find and correct

the error without any entanglement in contested or unknown facts . . . .”25 That is the

nature of plain-error review.

           By contrast, the errors underlying ineffective-assistance claims often are not

apparent from the trial record but instead require additional evidentiary development.26

This is because ineffective-assistance claims center on deficiencies in the defense

counsel’s decision-making, which will not always reveal themselves in the official

record.27 As the United States Supreme Court has noted, the trial record is “devoted to

issues of guilt or innocence” and will often “not disclose the facts necessary to decide

either prong of the Strickland analysis. If the alleged error is one of commission, the

record may reflect the action taken by counsel but not the reasons for it.”28 Further,

“[w]ithout additional factual development, . . . an appellate court may not be able to

ascertain whether the alleged error was prejudicial.”29 For these reasons, in Michigan, a


25
     United States v Caputo, 978 F2d 972, 974 (CA 7, 1992).
26
    See 3 LaFave, Criminal Procedure (4th ed), § 11.7(e), p 962 (“Appellate courts
uniformly note that where a claim of ineffective assistance of trial counsel could be more
fully developed by evidence outside the trial record, the preferable procedure is to present
it initially in a setting that permits an evidentiary hearing.”).
27
   See Massaro v United States, 538 US 500, 505; 123 S Ct 1690; 155 L Ed 2d 714
(2003) (noting that it was preferable for ineffective-assistance claims to be brought on
collateral review because on direct review the “trial record [is] not developed precisely
for the object of litigating or preserving the claim and thus [is] often incomplete or
inadequate for this purpose”).
28
     Id.
29
  Id.; see also Gov’t of Virgin Islands v Vanterpool, 767 F3d 157, 163 (CA 3, 2014)
(noting that ineffective-assistance claims are not “usually cognizable” on direct review


                                             11
defendant can seek an evidentiary hearing in the trial court on defense counsel’s

performance and then bring an ineffective-assistance claim on direct appeal with the

benefit of the augmented hearing record.30

         Because facts outside the trial record could be critical to an ineffective-assistance

claim, a court presented with such a claim coupled with a related plain-error argument

cannot simply plug in the plain-error prejudice analysis for the ineffective-assistance

prejudice analysis. As with the remaining elements of each claim, a court must evaluate

the record evidence relevant to each independent legal claim.

         Finally, Carines’s fourth prong—focusing on manifest injustice—lacks any analog

in the Strickland test. In short, the elements of an ineffective-assistance claim evaluate

counsel’s performance, and while sometimes a trial court’s error relating to the same

underlying issue will have facts in common with that Sixth Amendment claim, the legal

framework for each operates independently. All of this makes sense, given the different

types of errors each test is meant to address. There is no easy shortcut when reviewing

separate appellate claims of the court’s and counsel’s errors, even where those errors

have as their focus the same underlying issue.

         Our holding here thus does not change the fundamental nature of the analyses for

plain error and ineffective assistance. Rather, we merely seek to emphasize that courts

should address ineffective-assistance claims based on the pertinent inquiry—the effect of


because there typically is not “a record developed enough to assess the efficacy of
defense counsel”).
30
     Ginther, 390 Mich at 443-444.



                                              12
counsel’s deficient performance—considering the pertinent facts, which may include

facts developed at an evidentiary hearing.

                                   IV. APPLICATION

       In this case, we conclude that the Court of Appeals impermissibly conflated the

plain-error and ineffective-assistance standards at least twice. The first involved the

admission of the ammunition and murder weapon. Defendant contends that this evidence

was the fruit of an unlawful search under the Fourth Amendment.               According to

defendant, the search, which occurred at his father’s home, was unlawful because his

father lacked actual or apparent authority to consent to the police officers’ request to

search defendant’s bags.     The discovery of the ammunition among the belongings

resulted in the involvement of the federal agents, which led to the arrest warrant and

culminated in the execution of the warrant at defendant’s brother’s home. The search of

that home was possible because of his brother’s parolee status. And it was during that

search that the murder weapon was found. Thus, according to defendant, the gun and

ammunition were only discovered because of the initial illegal search of defendant’s

belongings and were therefore inadmissible.31



31
   See generally Segura v United States, 468 US 796, 804; 104 S Ct 3380; 82 L Ed 2d
599 (1984) (“[T]he exclusionary rule [i.e., the suppression of illegally seized evidence]
reaches not only primary evidence obtained as a direct result of an illegal search or
seizure, . . . but also evidence later discovered and found to be derivative of an illegality
or ‘fruit of the poisonous tree.’ ”) (citations omitted); People v LoCicero (After Remand),
453 Mich 496, 508; 556 NW2d 498 (1996) (“The exclusionary rule forbids the use of
direct and indirect evidence acquired from governmental misconduct, such as evidence
from an illegal police search.”).



                                             13
          The Court of Appeals held that “defendant has not met his burden of establishing a

plain error affecting his substantial rights”32 regarding the impropriety of the search and

introduction of the allegedly illegal fruits of that search, albeit without a perfectly clear

explanation for that conclusion. On the one hand, the panel reasoned that defendant

might have lacked standing to object to the search because “the fact that defendant left

his belongings behind when he fled and never returned suggested that he abandoned his

belongings . . . .”33 But the Court also stated that “[w]hile it is possible that defendant

was responsible for having his things transferred to Taylor, such that he may not have

abandoned them, the available record lacks sufficient information to make that

determination.”34 Finally, the Court observed that “even assuming that the ammunition

was found as the result of an illegal search, the record does not contain sufficient

information to determine whether the gun was likewise subject to suppression.”35

          It seems the Court’s holding was based on Carines’s second prong, i.e., any error

was not obvious. Indeed, by stating that the “available record [was] insufficient to

establish a Fourth Amendment violation,”36 the Court suggested that any error was not

readily apparent from the record.



32
     Randolph, unpub op at 6.
33
     Id. at 5.
34
     Id. at 5-6.
35
     Id. at 6.
36
     Id. at 5.



                                              14
          But defendant also challenged his counsel’s effectiveness relating to the

introduction of this evidence. Specifically, he alleged that his counsel’s failure to move

to suppress the evidence constituted deficient performance and that it prejudiced him.

The panel did not evaluate counsel’s performance or the prejudice that resulted from it at

all, instead relying on its plain-error work: “Similarly, defendant has failed to establish

plain error in the admission of the evidence regarding the ammunition, defendant’s arrest

on the federal warrant, and the guns, and thus his related ineffective assistance of counsel

claims must also fail.”37 In other words, defense counsel was not ineffective because the

error would not have been obvious to the trial court. Of course, obviousness to the trial

court is not an element of the Strickland test, nor is it even always relevant. And, as

explained previously, an error’s obscurity could be due to trial counsel’s deficient

performance, if he or she failed to develop the record in a manner that would have made

the errors clear. Given the centrality of the gun and ammunition to the prosecution’s

case, any ineffective assistance resulting in their admission might have prejudiced

defendant. The proper analysis would apply Strickland’s two prongs and ask whether

counsel’s failure to object to the evidence constituted prejudicial deficient performance.

          The Court of Appeals made the same mistake in its evaluation of the admission of

Vena’s statements through the testimony of her fiancé’s sister, Wilkerson. According to

Wilkerson, Vena claimed that defendant had been threatening Vena’s family. Defendant




37
     Id. at 10.



                                             15
has contended on appeal that those hearsay statements were inadmissible and that the trial

court erroneously admitted them as excited utterances.38

           In its plain-error analysis of this issue, the Court of Appeals rejected defendant’s

argument for two reasons. First, it concluded that any error in admitting the testimony

was not clear or obvious given defendant’s failure to object.39 Second, as an alternative

rationale, the Court reasoned that any plain error “did not affect defendant’s substantial

rights”—i.e., did not prejudice defendant—because “[Vena’s] statement to Wilkerson

was evidence that the subsequent shooting was done with a premeditated intent to kill,

but defendant was acquitted of first-degree murder and convicted of second-degree

murder, which was supported by other evidence unrelated to this hearsay statement.”40

           Defendant also claimed that his attorney was ineffective for failing to object to this

hearsay evidence. In its consideration of that question, the Court simply noted that

defendant’s claim “must fail” because his plain-error claim failed.41                The Court

continued, “Even if we were to accept defendant’s claim that Vena’s first statement to




38
   MRE 803(2) (defining an “excited utterance” as “[a] statement relating to a startling
event or condition made while the declarant was under the stress of excitement caused by
the event or condition”).
39
  Randolph, unpub op at 4 (“While there is some evidence in the record to suggest that
Vena was not overcome by the stress or excitement caused by the threat, that issue was
not fully explored due to defendant’s failure to object. Therefore, we cannot conclude
that any error is clear or obvious.”).
40
     Id.
41
     Id. at 10.


                                                 16
Wilkerson was inadmissible hearsay, defendant cannot show that he was prejudiced by

counsel’s failure to object [to the hearsay] for the reasons discussed earlier.”42

           The Court of Appeals’ first rationale for rejecting defendant’s plain-error claim—

that the error was not obvious—cannot justify rejecting defendant’s ineffective-assistance

claim. Once again, defense counsel’s own deficient performance might have cloaked the

obviousness of an error (and in fact the panel’s reasoning suggests that it might well

have), but that failure cannot then preclude an ineffective-assistance claim.            The

questions the Court needed to answer were whether counsel’s failure to object was

deficient performance and whether it prejudiced defendant.

           The Court’s second rationale was that defendant had not established plain error

because he could not show that the admission of the statements prejudiced him—

specifically, because the hearsay statements were relevant to establishing premeditation

but the jury rejected premeditation by acquitting defendant of first-degree murder. But

the Court could reach this conclusion only after properly applying Strickland, which

requires considerations of defense counsel’s actions and their effect in light of all of the

evidence relating to that claim, including that developed at any evidentiary hearing.

           That proper application is not evident in the Court’s opinion. The Court parsed

the testimony and the claims of error relating to it. It stated that even if “Vena’s first

statement to Wilkerson was inadmissible hearsay,” defendant could not show prejudice.43

It appears that the “first statement” was Vena’s comment that defendant had “been

42
     Id.
43
     Id. (emphasis added).



                                               17
calling all day threaten’ [sic] to kill the family, especially Lo and Vontay.”44           But

Wilkerson also testified that Vena said she might call her son to warn him about the

threats. In response to the prosecutor’s question, “ ‘How was it that Vena said it?’

Wilkerson answered, ‘She said, she’s like, well, we better watch out. He said he’s goin’

get us, we better be on the alert. It was more or less like that type of—we better, we

better watch out ’cause he said he’s goin’ get us, he’s goin’ kill us, he’s goin’ kill us.’ ”45

           The Court of Appeals did not address these additional statements in its ineffective-

assistance analysis.       But, in its plain-error analysis, the Court rejected defendant’s

argument because it was unclear whether Wilkerson gave an unresponsive answer or

whether she answered by demonstrating the tone and manner in which Vena had made

the statements. Seemingly, then, the Court thought any error in admitting this testimony

was not clear or obvious (i.e., defendant failed to satisfy Carines’s second prong). Again,

a defendant’s failure to satisfy the second prong of Carines’s plain-error test (that the

error was obvious) does not foreclose an ineffective-assistance claim, which evaluates

questions separate from the obviousness of an error. But other than the error’s lack of

obviousness, the Court of Appeals offered no other reason for rejecting defendant’s

ineffective-assistance claim regarding these subsequent hearsay statements from Vena.

Consequently, it either failed to address defendant’s ineffective-assistance argument




44
     Id. at 4 (quotation marks omitted).
45
     Id.



                                                18
concerning the subsequent statements or it once again impermissibly conflated the plain-

error and ineffective-assistance analyses.46

       These errors are sufficient to require a remand to the Court of Appeals so it can

apply the appropriate framework in evaluating defendant’s ineffective-assistance claims.

On remand, the Court of Appeals shall closely reassess all of defendant’s ineffective-

assistance arguments under the Strickland standard, taking into account the record

evidence relevant to that standard.47

                                    V. CONCLUSION

       In this case we hold that a defendant’s inability to satisfy the plain-error standard

in connection with a specific trial court error does not necessarily mean that he or she

cannot meet the ineffective-assistance standard regarding counsel’s alleged deficient

performance relating to that same error. Courts must independently analyze each claim,

even if the subject of a defendant’s claim relates to the same error. Because the Court of

Appeals failed to apply Strickland to defendant’s ineffective-assistance claims, we




46
   To the extent the Court of Appeals held that none of Vena’s hearsay statements could
have prejudiced defendant under Strickland because they were relevant only to
premeditation, the Court’s opinion is unclear. Nor did the Court ever consider whether
the statements could have been relevant for other purposes. Consequently, the Court’s
failure to apply Strickland to the ineffective-assistance claim requires a remand.
47
   Because the above discussion is sufficient to resolve this appeal, we decline to consider
the second question we asked the parties to brief, i.e., “whether the prejudice standard
under the third prong of plain error . . . is the same as the Strickland prejudice
standard[.]” Randolph, 500 Mich at 999.



                                               19
reverse the Court of Appeals’ holdings as to those claims and remand this case to the

Court of Appeals to review those claims under the Strickland framework in light of the

trial record and the record produced at the Ginther hearing.


                                                        David F. Viviano
                                                        Stephen J. Markman
                                                        Brian K. Zahra
                                                        Bridget M. McCormack
                                                        Richard H. Bernstein
                                                        Kurtis T. Wilder


       CLEMENT, J., took no part in the decision of this case.




                                            20
