Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  April 1, 2016                                                                     Robert P. Young, Jr.,
                                                                                               Chief Justice

                                                                                     Stephen J. Markman
                                                                                          Brian K. Zahra
                                                                                  Bridget M. McCormack
  152414                                                                                David F. Viviano
                                                                                    Richard H. Bernstein
                                                                                          Joan L. Larsen,
                                                                                                    Justices


  PEOPLE OF THE STATE OF MICHIGAN,
                  Plaintiff-Appellant,

  v                                                       SC: 152414
                                                          COA: 312804
                                                          Wayne CC: 12-005217-FH
  LARRY MANCIEL,
                  Defendant-Appellee.


  _________________________________________/


        On order of the Court, the application for leave to appeal the August 14, 2015
  order of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.


         ZAHRA, J. (dissenting).

          I respectfully dissent. I believe the overwhelming record evidence supports the
  prosecution’s application for leave to appeal. Despite repeated directions to the contrary,
  the trial judge, Judge James A. Callahan, continues to rely on orders in unrelated cases to
  render rulings entirely inconsistent with the record evidence. Judge Callahan apparently
  fails to appreciate when an order of this Court constitutes binding precedent. I would
  grant leave.
                                                                                           2


                       I. FACTS OF THE UNDERLYING CASE

        Defendant first broached an alibi claim before jury selection by informing Judge
Callahan that he “was somewhere else when this incident happened” and that “[t]his is
the first dialogue I had with my attorney, so she didn’t know about the alibi witnesses I
have and the evidence I have.” Defendant asked for an opportunity to present his
witnesses and evidence so that he could receive a fair trial. Defense counsel, attorney
Cena Colbert White, addressed Judge Callahan and stated that “[w]ith respect to the alibi
notice that he’s indicating to me, I received notice for the first time regarding an alibi at
10:06 this morning.” White added that she had spoken to defendant at the jail and during
court appearances multiple times. Judge Callahan expressed his belief in counsel’s
version of the events and the trial proceeded. A jury convicted defendant of unarmed
robbery and first-degree home invasion, and he was sentenced as a fourth-offense
habitual offender to 15 to 30 years’ imprisonment for the home invasion conviction and 5
to 15 years’ imprisonment for the unarmed robbery conviction.

        Pursuant to an order issued by the Court of Appeals, 1 Judge Callahan held an
evidentiary hearing on defendant’s claim of ineffective assistance of counsel. White
testified that she had visited defendant at the jail on May 16, July 2, July 12, and August
24, 2012, and that defendant was extremely involved in the development of his defense
theory, which was misidentification, based on the intruder’s wearing a mask. White
denied that defendant provided information about potential alibi witnesses before trial.
Indeed, she testified that one of defendant’s alleged alibi witnesses, Jeanetta Harris, had
retained White’s services for defendant, but never told White that she was with defendant
at the time of the crime. White testified that she first learned of a potential alibi defense
on the first day of trial, at which time defendant told her that he was at his father’s house
when the crime was committed.

       White also testified that during her July 2, 2012 visit with defendant, defendant
told her that the complainant sold marijuana and that he kicked in the complainant’s door
to steal the complainant’s drug proceeds. White also presented notes taken during that
interview, which had been signed by defendant and corroborated her testimony.

        Judge Callahan, despite having previously indicated on the record that he believed
White’s claim that defendant had first broached an alibi defense immediately before trial,
and despite clear evidence that defendant had lied when claiming at that time “[t]his is
the first dialogue I had with my attorney, so she didn’t know about the alibi witnesses I
have and the evidence I have,” concluded that White should have somehow gleaned the
availability of defendant’s alibi witnesses. Judge Callahan also concluded that the alibi
1
  People v Manciel, unpublished order of the Court of Appeals, entered July 3, 2013
(Docket No. 312804).
                                                                                           3

witnesses would likely have made a difference in the outcome of trial and ruled that
defendant was entitled to a new trial.

       The prosecution challenged this decision, moved to expand the record, and was
eventually provided a second evidentiary hearing. 2 After this hearing, Judge Callahan
indicated that he believed that his original decision to grant defendant a new trial was
appropriate, but claimed that he was in a quandary regarding the effect of a purported
confession by defendant to White. Judge Callahan indicated that he had

         found not only in this case, but in other cases, that once an attorney has
         been informed by his client . . . that he or she has committed the crime, that
         the defense attorney is professionally and ethically bound not to call forth
         alibi witnesses, knowing full well that those alibi witnesses, if the client is
         to be believed, would be testifying falsely, giving perjurious testimony.

Judge Callahan then stated that he was “in a dilemma in that regard . . . based upon
previous rulings of the Court of Appeals and the Supreme Court of this State” that

         recently indicated that the Trial Court erred in finding the testimony of
         former defense trial counsel credible when during a Ginther[3] hearing, he
         stated that the client had admitted his guilt to him and therefore, he was
         ethically precluded from calling alibi witnesses during his client’s trial.
         Should a defense lawyer call alibi witnesses if his client has admitted his
         guilt? Should the client’s admission be considered at all in the defense
         lawyer’s decision to call alibi witnesses?

Judge Callahan went on to conclude: “I guess [White] should have called the witnesses.
Let the perjury begin.”

       The prosecution again challenged the ruling, but the Court of Appeals affirmed. 4
This Court, however, vacated the judgment of the Court of Appeals and remanded to the
Court of Appeals, instructing it to remand the case to Judge Callahan for clarification of
whether his ruling that defendant was entitled to a new trial was based on his
determination that the defense witnesses were credible or whether he granted a new trial
solely because he felt constrained to do so by this Court’s orders in unrelated cases. 5

2
 See People v Manciel, unpublished order of the Court of Appeals, issued May 29, 2014
(Docket No. 312804).
3
    People v Ginther, 390 Mich 436 (1973).
4
 People v Manciel, unpublished opinion per curiam of the Court of Appeals, issued
December 30, 2014 (Docket No. 312804).
5
    People v Manciel, 497 Mich 1034 (2015).
                                                                                           4


       On remand, Judge Callahan again referred to this Court’s orders in unrelated
cases. Judge Callahan again noted that White believed that defendant had admitted his
culpability but explained that clients are not always honest when admitting to engaging in
certain acts. Judge Callahan again claimed that he was

         in a dilemma in that regard, and therefore, based upon previous rulings of
         the Court of Appeals and the Supreme Court of this State, and based upon
         purported alibi witnesses being brought to the attention of defense counsel
         had made a decision that those alibi witnesses, because of the defendant
         admitting to the crime or giving a declaration against interest which could
         be construed as the same, had professionally chosen not to call those alibi
         witnesses because it would be a breach of professional ethics, for the
         defendant could not be in two places simultaneously.

                The Supreme Court and Court of Appeals have recently indicated
         that the Trial Court erred in finding the testimony of former defense trial
         counsel credible when during a Ginther hearing, he stated that the client
         had admitted his guilt to him and therefore, he was ethically precluded from
         calling alibi witnesses during his client’s trial. Should a defense lawyer call
         alibi witnesses if his client has admitted his guilt? Should the client’s
         admission be considered at all in the defense lawyer’s decision to call alibi
         witnesses?

       The prosecution sought to vacate Judge Callahan’s order, but the Court of Appeals
affirmed, entering an order noting that Judge Callahan had granted a new trial on the
basis of the credibility of the witnesses. 6 Despite our clear caution not to rely on
unrelated cases, Judge Callahan continued to improperly rely on orders in the unrelated
cases to render a determination in the instant case that appears to be against the great
weight of the evidence.


                               II. THE UNRELATED CASES

      The unrelated cases that Judge Callahan repeatedly referred to are People v
Hunter 7 and People v Terrell, 8 in which he had been reversed by this Court because we
concluded “[t]he trial court clearly erred in finding that the defendant’s trial attorney was

6
 People v Manciel, unpublished order of the Court of Appeals, entered August 14, 2015
(Docket No. 312804).
7
    People v Hunter, 493 Mich 1015 (2013).
8
    People v Terrell, 495 Mich 869 (2013).
                                                                                         5

credible.” Needless to say, Hunter and Terrell are not binding precedent to the instant
case or, more importantly, to future cases. Significantly, Hunter and Terrell, unlike the
instant case, involved attorney Marvin Barnett, whose unprofessional and alleged
criminal conduct recently resulted in his three-year suspension from the Attorney
Discipline Board.

       Hunter and Terrell are cases unrelated to each other. In each, the defendant was
represented by Barnett. Each defendant was convicted of committing violent felonies.
Each defendant moved for a new trial, claiming that he was denied the effective
assistance of counsel. At each defendant’s Ginther hearing, Barnett testified, without
corroboration of any kind, that the defendant had confessed to him that he had committed
the crime. Barnett claimed in each Ginther hearing that the confession ethically
precluded him from presenting evidence inconsistent with the confession. Judge
Callahan found Barnett’s testimony credible. After thorough review of the lower court
records in each case, this Court disagreed with Judge Callahan’s credibility
determinations with regard to Barnett. This Court remanded each case to the Court of
Appeals for reconsideration of the defendants’ ineffective-assistance claims without
relying on Judge Callahan’s credibility determination.


                                      III. ANALYSIS

       In DeFrain v State Farm Mut Auto Ins Co, this Court explained “[a]n order of this
Court is binding precedent if it constitutes a final disposition of an application and
contains a concise statement of the applicable facts and reasons for the decision.” 9
“These requirements derive from article 6, § 6, of our 1963 Constitution . . . .” 10 The
Hunter and Terrell orders contain no facts and no reasons for the decisions and, therefore,
cannot be considered binding in cases other than Hunter and Terrell. Yet Judge Callahan
extrapolated from these nonprecedential orders that he had previously committed error by
concluding that

         once an attorney has been informed by his client, whether encouraged or
         spontaneously obtained from the client without elicitation, that he or she
         has committed the crime, that the defense attorney is professionally and
         ethically bound not to call forth alibi witnesses, knowing full well that
         those alibi witnesses, if the client is to be believed, would be testifying
         falsely, giving perjurious testimony.

9
 DeFrain v State Farm Mut Auto Ins Co, 491 Mich 351, 369 (2012), citing, People v
Crall, 444 Mich 463, 464 n 8 (1993), and Dykes v William Beaumont Hosp, 246 Mich
App 471, 483 (2001).
10
     DeFrain, 491 Mich at 369.
                                                                                          6

The Court’s orders in Hunter and Terrell made no such assertion. Nothing in the Hunter
and Terrell orders raised any question in regard to an attorney’s ethical obligation to call
alibi witnesses if a defendant had admitted his guilt. Again, the orders only relate to the
trial court’s finding that now-suspended attorney Marvin Barnett’s nearly identical
uncorroborated testimony offered in the Ginther hearings in Hunter and Terrell was
credible.

        By relying on the unrelated orders and improperly extrapolating a rule from those
cases, Judge Callahan failed to appreciate the significance of testimony from an officer of
the court, White, whose testimony was far different from the testimony of Barnett in
those unrelated cases. During the Ginther hearing in this case, White testified in great
detail that defendant had admitted to her that he committed the offense. Her testimony
was confirmed by notes taken during the interview, which defendant admittedly signed,
though later claiming he was delusional. The evidence was also clear that defendant, a
fourth-offense habitual offender, had lied when claiming that he had not met with White
before trial. Significantly, Judge Callahan had acknowledged defendant’s clear lack of
credibility when denying his day-of-trial request to present alibi witnesses. Despite all
indications to the contrary, Judge Callahan continued to improperly rely on this Court’s
orders in unrelated cases in which now-suspended attorney Marvin Barnett had acted as
counsel.

       Ginther hearings are fact intensive and must be evaluated on a case-by-case basis.
Thus, it is difficult to understand why Judge Callahan believes he is constrained in this
case by the orders in Hunter and Terrell. And while I acknowledge that factual findings
made by a trial court are rarely disturbed on appeal, this Court’s orders in Hunter and
Terrell were entirely justified. This point is made evident by the Michigan Attorney
Discipline Board’s notice of suspension, which documents that Barnett had committed a
litany of misconduct in the practice of law. 11 Particularly relevant to our orders was that
11
     The notice provides:
         The hearing panel found that [Barnett] neglected a legal matter, in violation
         of MRPC 1.1(c); failed to seek the lawful objectives of his client through
         reasonably available means permitted by law, in violation of MRPC 1.2(a);
         failed to act with reasonable diligence in violation of MRPC 1.3; failed to
         communicate with his client in violation of MRPC 1.4(a) and (b); failed to
         keep client funds separate from his business funds, in violation MRPC
         1.15(c); failed to deposit client funds into an IOLTA account, in violation
         of MRPC 1.15(g); requested a person other than his client to refrain from
         voluntarily giving relevant information to another party, in violation of
         MRPC 3.4(f); used means that have no substantial purpose other than to
         embarrass, delay, or burden a third person, or used methods of obtaining
         evidence that violated the legal rights of such a person, in violation of
         MRPC 4.4; and failed to treat with courtesy and respect all persons
                                                                                          7

Barnett was found to have “engaged in conduct which involved dishonesty, fraud, deceit,
misrepresentation, or violation of the criminal law, where such conduct reflects adversely
on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, contrary to MRPC
8.4(b)[.]” 12 The hearing panel also found that Barnett had “engaged in conduct that is
contrary to justice, ethics, honesty or good morals, in violation of MCR 9.104(3)” and
“engaged in conduct . . . that violates a criminal law of a state and the United States, to
wit, MCL 750.122(3) and (6), in violation of MCR 9.104(5),” which generally relate to
threats and intimidation of witnesses. 13




           involved in the legal process, in violation of MRPC 6.5(a). The panel also
           found that respondent failed to provide information demanded by the
           Grievance Administrator, in violation of MRPC 8.1(a)(2); engaged in
           conduct which violated the Rules of Professional Conduct, contrary to
           MRPC 8.4(a); engaged in conduct which involved dishonesty, fraud, deceit,
           misrepresentation, or violation of the criminal law, where such conduct
           reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a
           lawyer, contrary to MRPC 8.4(b); engaged in conduct prejudicial to the
           administration of justice, in violation of MCR 9.104(1); exposed the legal
           profession or the courts to obloquy, contempt, censure or reproach, in
           violation of MCR 9.104(2); engaged in conduct that is contrary to justice,
           ethics, honesty or good morals, in violation of MCR 9.104(3); violated the
           standards or rules of professional responsibility adopted by the Supreme
           Court, contrary to MCR 9.104(4); engaged in conduct in [sic] that violates a
           criminal law of a state and the United States, to wit, MCL 750.122(3) and
           (6), in violation of MCR 9.104(5); made knowing misrepresentations of
           facts or circumstances in his answer to the request for investigation, in
           violation of MCR 9.104(6); and made misrepresentations in his answer to
           the request for investigation, in violation of MCR 9.113(A). [Attorney
           Discipline Board, Notice of Suspension and Restitution for Marvin Barnett,
           issued October 28, 2015 (Case Nos. 14-8-GA, 14-26-GA, and 14-53-GA),
           p 1, available at <http://www.adbmich.org/coveo/notices/2015-10-08-14n-
           8.pdf#search=%22Barnett%22>           (accessed    March      30,     2016)
           [https://perma.cc/9ARW-Q2HX].]
12
     Id.
13
     Id.
                                                                                                               8

       Given Judge Callahan’s continued improper reliance on our nonprecedential and
unrelated orders and his failure to appreciate the individual merit of the instant case, I
would grant the prosecution’s application.




                         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 1, 2016
       p0329
                                                                             Clerk
