                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 6, 2018
               Plaintiff-Appellee,

v                                                                    No. 332514
                                                                     Macomb Circuit Court
JAMES DONALD VANCALLIS,                                              LC No. 2014-004654-FC

               Defendant-Appellant.



                                          ON REMAND


Before: STEPHENS, P.J., and CAVANAUGH and K. F. KELLY, JJ.

PER CURIAM.

STEPHENS, J. (Dissenting).

        I respectfully dissent from the majority and would remand this matter for a Ginther
hearing. In this case counsel made a request for assistance of experts and never expended those
funds. Two separate requests for expert assistance were made and separately granted with each
being allocated two thousand five hundred dollars. The areas of expertise included not only eye
witness identification but also crime scene investigation. In making the request defense counsel
was required to demonstrate the relevance of the requested expert and demonstrate in some
fashion how the expert would assist the defense. People v Ackley, 497 Mich 381, 388; 870
NW2d 858 (2015). The majority opinion highlights that this case was one where technical
evidence as well as eyewitness identification evidence was of significance. Appellate counsel’s
brief addressed only the eyewitness issues. In his timely Standard 4 brief the defendant raised
concerns about the failure to obtain or utilize a crime scene investigation expert and requested a
Ginther hearing. The majority opinion analyzes the eye witness identification aspect of the case
and note correctly that defense counsel was an effective examiner on that issue. The majority
does not address the crime scene expert request.

        Focusing on eye witness testimony alone the majority writes “A]bsent a Ginther[]
hearing, we are left to guess why defense counsel declined to produce an expert on eyewitness
identification. But one may assume that defense counsel believed that the issue was properly
explored during trial.” The Standard 4 brief agrees that the review of the challenge to the
defense counsel’s failure to utilize any expert testimony is left to assumption. It is inappropriate

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to ask the in pro per who ferreted out an arguably meritorious issue overlooked by appointed
counsel, to better articulate how expert testimony he never got would have affected the outcome
of his case. Given the prosecutions use of crime scene investigation expert computer generated
evidence at trial and the trial court’s specific grant of funds to address this issue, I would remand
this matter to the trial court for a Ginther hearing where the assumptions as to trial counsel’s
basis for declining to hire or use an expert could be put to bed. I would also afford appellate
counsel the unexpended funds allocated by the trial court in its July 20 order to explore the
efficacy of any expert crime scene.



                                                              /s/ Cynthia Diane Stephens




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