            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.



                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 25, 2019
              Plaintiff-Appellee/Cross-Appellant,

v                                                                  No. 337860
                                                                   Calhoun Circuit Court
SHAWN DELANO BROWN,                                                LC No. 2010-001368-FC

              Defendant-Appellant/Cross-
              Appellee.


Before: GLEICHER, P.J., and STEPHENS and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals his 2010 jury trial convictions for voluntary manslaughter, MCL
750.321, and second-degree child abuse, MCL 750.136b, by way of the trial court’s 2017 order
that granted his motion to reinstate his direct appeal due to ineffective assistance of appellate
counsel. Defendant was previously sentenced as a third-habitual offender, MCL 769.11, to 100
to 360 months’ imprisonment on the manslaughter conviction and 36 to 96 months’
imprisonment on the child abuse conviction. In defendant’s appeal, we reverse the defendant’s
convictions and sentence and remand for a new trial.

        The prosecution cross-appeals the trial court’s March 10, 2017 Order Reissuing Judgment
of Sentence that reissued defendant’s 2010 judgment of sentence and reinstated defendant’s
direct appeal of right based on a determination that defendant received ineffective assistance of
appellate counsel. In the prosecution’s cross-appeal, we affirm.

                                      I. BACKGROUND

        Defendant’s convictions stem from the death of his five-month old son. Defendant was
the primary caretaker of his son while the child’s mother worked. On January 22, 2010,
defendant told law enforcement and family members that while feeding his son, the child started
choking. He patted him on the back, and the choking did not stop. He patted harder, and the
child stopped breathing. Prior to this incident, the child was healthy. A family friend drove
defendant and the child to the hospital. The child was later transported by ambulance to a
children’s hospital.



                                               -1-
        Defense counsel, who was retained, filed a pretrial motion for funds for a court appointed
expert to counter the testimony from the prosecution’s medical experts and to present an
alternative cause for the child’s death. The court found that defense counsel’s motion, as written,
was insufficient to justify the appointment of funds essentially to find out whether an expert
would be necessary. The court ruled that it was not convinced that the court was required to
expend funds for this purpose and it denied the motion.

         At trial, radiologists and emergency physicians testified that the child suffered injury to
his lungs, dilated pupils, retinal hemorrhaging, and subdural hematomas. Medical experts
testified that the child’s injuries were consistent with both abusive head trauma (AHT) and non-
accidental head trauma because there was nothing provided in the child’s history that could
account for his injuries. A forensic pathologist testified that the child’s cause of death was
traumatic brain injury. The pathologist further testified that bleeding in the back of the eye was
an indication of injury, but “[t]he exact mechanism of how that happens is still somewhat
uncertain[.]” The pathologist opined that all of the child’s injuries resulted from impact, that
shaking was a potential mechanism and that if she were to attach a syndrome to this, it would be
“Shaken-Impact Syndrome.” Defendant presented no witnesses and he was found guilty of the
crimes charged. This Court affirmed defendant’s convictions on appeal. People v Shawn
Delano Brown, unpublished opinion per curiam of the Court of Appeals, issued January 24, 2012
(Docket No. 300939).

        In February 2017, the trial court found that defendant was denied his right to counsel for
his appeal by right when appellate counsel submitted defendant’s appeal brief without reviewing
a significant portion of the trial record. The neglected August 13, 2010 trial transcript included
testimony from the forensic pathologist regarding the cause of death and from the child’s
primary care physician. The court concluded appellate counsel could not have provided
meaningful appellate review of the trial court record without this transcript. In May 2017,
defendant moved in the trial court for a new trial or an evidentiary hearing under MCR 7.208(B).
The court subsequently denied defendant’s request and in August 2017, defendant filed a timely
motion to remand for a Ginther1 hearing with this Court that argued the trial court gave no
substantive reason for denying relief and for declining to hold an evidentiary hearing. We
granted the motion and retained jurisdiction. People v Brown, unpublished order of the Court of
Appeals, entered September 20, 2017 (Docket No. 337860). After holding the required hearing
in January 2018, the trial court denied defendant’s motion for a new trial. In August 2018,
defendant filed a Supplemental Brief for this Court’s review that challenged the trial court’s
original denial of his motion for expert funds, the effective assistance of his counsel to obtain a
trial expert, and the trial court’s denial of a new trial on remand after defendant’s evidentiary
hearing. These are the issues now before the Court.

                                II. EXPERT WITNESS FUNDS

                                 A. STANDARD OF REVIEW



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).



                                                -2-
       We review constitutional challenges, People v McCuller, 479 Mich 672, 681; 739 NW2d
563 (2007), and questions of statutory interpretation de novo, People v Anstey, 476 Mich 436,
442; 719 NW2d 579 (2006).

        We review the trial court’s decision on a motion for a new trial for an abuse of discretion.
People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). We also review the trial court’s
denial of expert funds for an abuse of discretion. People v Carson, 217 Mich App 801, 807; 553
NW2d 1 (1996), readopted in pertinent part by a special panel in People v Carson, 220 Mich
App 662, 678; 560 NW2d 657 (1996). “An abuse of discretion occurs when the court chooses an
outcome that falls outside the range of reasonable and principled outcomes.” People v Unger,
278 Mich App 210, 217; 749 NW2d 272 (2008).

                                          B. ANALYSIS

       Defendant argues that the trial court abused its discretion in denying his 2010 pretrial
motion for funds for an expert witness on three grounds: 1) The trial court’s evaluation of
defendant’s request under MCL 775.15 was an error of law; 2) The trial court erroneously
determined that defendant was not indigent; and 3) The trial court’s refusal to grant expert
witness funds interfered with defendant’s constitutional right to the effective assistance of
counsel.

       In 2010, courts reviewed a defendant’s request for public funds for an expert under MCL
775.15. That statute provided that,

       If any person accused of any crime or misdemeanor, and about to be tried therefor
       in any court of record in this state, shall make it appear to the satisfaction of the
       judge presiding over the court wherein such trial is to be had, by his own oath, or
       otherwise, that there is a material witness in his favor within the jurisdiction of the
       court, without whose testimony he cannot safely proceed to a trial, giving the
       name and place of residence of such witness, and that such accused person is poor
       and has not and cannot obtain the means to procure the attendance of such witness
       at the place of trial, the judge in his discretion may, at a time when the
       prosecuting officer of the county is present, make an order that a subpoena be
       issued from such court for such witness in his favor, and that it be served by the
       proper officer of the court. And it shall be the duty of such officer to serve such
       subpoena, and of the witness or witnesses named therein to attend the trial, and
       the officer serving such subpoena shall be paid therefor, and the witness therein
       named shall be paid for attending such trial, in the same manner as if such witness
       or witnesses had been subpoenaed in behalf of the people. [MCL 775.15].

The trial court also had at its disposal the decisions in People v Jacobsen, 448 Mich 639; 532
NW2d 838 (1995), and People v Tanner, 469 Mich 437; 671 NW2d 728 (2003). In order to be
entitled to public funds for an expert witness, Jacobsen interpreted MCL 775.15 to require
indigent defendants to “show a nexus between the facts of the case and the need for an expert.”
Id. at 641 (citation omitted). Later in Tanner, the Court added that a defendant needed to show
the expert would benefit the defense and held that it was insufficient for defendant to show a
mere possibility that the expert would be helpful. Id. at 442-443.


                                                -3-
        People v Kennedy, 502 Mich 206; 917 NW2d 355 (2018), overruled Jacobsen and
Tanner, and held that MCL 775.15 does not apply to an indigent defendant’s request for expert
funding. It held that the request was instead controlled by the law from Ake v Oklahoma. Under
Ake, courts were to determine entitlement to an expert using the reasonable probability standard
from Moore v Kemp, 809 F2d 702 (CA 11, 1987). The Ake Court held that by its express terms,
MCL 775.15 applied to the court’s assistance in subpoenaing witnesses for the defense and not
the grant of public funds to the defendant for expert witnesses. Kennedy, 502 Mich at 222. It
further found that the statute did not meet the constitutional standard from Ake that required the
assistance of an expert for uses beyond trial testimony and, additionally, for the preparation and
presentation of a defense. Id. at 223. It overruled Jacobsen and Tanner to the extent that they
held MCL 775.15 was applicable to the indigent defendant’s request for expert funds. Kennedy
also noted that neither Jacobsen nor Tanner considered Ake. Id. at 225. Looking forward, the
Court considered the standard to which defendant would be held in order to be successful in his
request for an expert. The Court adopted the standard from Moore v Kemp, supra. Under
Moore, an indigent “defendant must show the trial court that there exists a reasonable probability
both that an expert would be of assistance to the defense and that denial of expert assistance
would result in a fundamentally unfair trial.” 809 F2d at 712. According to Moore, to meet this
threshold,

       [A] defendant must demonstrate something more than a mere possibility of
       assistance from a requested expert; due process does not require the government
       automatically to provide indigent defendants with expert assistance upon demand.
       Rather ... a defendant must show the trial court that there exists a reasonable
       probability both that an expert would be of assistance to the defense and that
       denial of expert assistance would result in a fundamentally unfair trial. Thus, if a
       defendant wants an expert to assist his attorney in confronting the prosecution’s
       proof—by preparing counsel to cross-examine the prosecution’s experts or by
       providing rebuttal testimony—he must inform the court of the nature of the
       prosecution’s case and how the requested expert would be useful. At the very
       least, must inform the court of the nature of the prosecution’s case and how the
       requested expert would be useful. At the very least, he must inform the trial court
       about the nature of the crime and the evidence linking him to the crime. By the
       same token, if the defendant desires the appointment of an expert so that he can
       present an affirmative defense, such as insanity, he must demonstrate a substantial
       basis for the defense, as the defendant did in Ake. In each instance, the
       defendant’s showing must also include a specific description of the expert or
       experts desired; without this basic information, the court would be unable to grant
       the defendant’s motion, because the court would not know what type of expert
       was needed. In addition, the defendant should inform the court why the particular
       expert is necessary. We recognize that defense counsel may be unfamiliar with
       the specific scientific theories implicated in a case and therefore cannot be
       expected to provide the court with a detailed analysis of the assistance an
       appointed expert might provide. We do believe, however, that defense counsel is
       obligated to inform himself about the specific scientific area in question and to
       provide the court with as much information as possible concerning the usefulness
       of the requested expert to the defense’s case. [Kennedy, 502 Mich at 227 quoting
       Moore, 809 F2d at 712.].


                                               -4-
        At defendant’s 2010 motion hearing for funds for an expert, the court cited two reasons
for denying defendant’s motion. The first was that defendant’s request was untimely. The court
noted that it was obvious from the filing of the complaint that this case was going to involve
experts and it concerned the court that defendant was asking for one so late. The second reason
was that defendant failed to demonstrate that Dr. Laurence Simson would be helpful. The court
noted that this second reason would have applied even in the instance where defense counsel was
appointed. The court found that defendant’s request failed to demonstrate something more than
a mere possibility of assistance from the requested expert. Neither of these reasons suggest, as
defendant argues, that the court denied defendant’s request based on the fact that defense counsel
was retained. In 2018, on remand from this Court, the trial court upheld its 2010 decision. It
again noted that defendant failed to demonstrate anything more than a mere possibility of
assistance from an expert or that a material expert in his favor existed within the jurisdiction of
the court.

        The court’s 2018 opinion and order also analyzed defendant’s request for expert funds
under MCL 775.15 despite Kennedy having been decided at the time of the opinion’s drafting.
Despite the holding from Kennedy that requests like defendants are no longer to be decided
under MCL 775.15, Moore retained some of the same requirements of the statute. The Moore
standard eliminated the need for counsel “to provide the court with a detailed analysis of the
assistance an appointed expert might provide.” Moore, 809 F2d at 712. However, Moore does
ask a defendant to “demonstrate something more than a mere possibility of assistance from a
requested expert” and to “show the trial court that there exists a reasonable probability both that
an expert would be of assistance to the defense and that denial of expert assistance would result
in a fundamentally unfair trial.” Id. This trial court’s 2010 decision on the defendant’s motion
and 2017 opinion on remand, although it examined the issue under MCL 775.15, decided
defendant’s request for expert funds under principles maintained in Moore. Therefore, the trial
court’s evaluation of defendant’s request under MCL 775.15 was not an error of law.

        The trial court also did not abuse its discretion when it denied defendant’s motion for
expert witness funds.       Defendant’s motion contained 12 points and was without an
accompanying brief. The motion stated that the charge against the defendant concerned
unexplained injuries in the form of head trauma and that prosecution’s case rested largely on
technical testimony from medical experts. It stated that defendant “is in need of assistance of an
expert to counteract the testimony of prosecution experts” and “expects to be able to name the
doctor and the amount required at hearing.” At the July 26, 2010 motion hearing, defense
counsel stated that after meeting with other forensic pathologists, he was referred to Dr.
Simpson2. Defense counsel stated that the court was aware of Dr. Simpson from his previous
testimony for the prosecution. Counsel relied on Dr. Simpson’s curriculum vita and fee schedule
when he asked for $3,000 to cover the doctor’s retainer. Missing from defense counsel’s motion
and argument was whether this expert would be of assistance to the defense. There was no
demonstration of more than the mere possibility of assistance from the requested expert, which
was a requirement under MCL 775.15 and Moore. At the post-remand evidentiary hearing,
defense counsel confirmed that he had no expert to aid the defense when he testified that Dr.

2
    Simpson is also referred to as Simson by the parties.



                                                  -5-
Simpson ultimately agreed with the forensic pathologist’s findings and was not comfortable with
testifying against the forensic pathologist because he had trained her. Neither the court nor the
parties were oblivious to the important role an expert would play in defendant’s case. However,
under the facts as they were presented to the court, its decision to deny defendant’s motion was
not outside the range of reasonable and principled outcomes.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

                                 A. STANDARD OF REVIEW

        “Whether a defendant received ineffective assistance of trial counsel presents a mixed
question of fact and constitutional law.” People v Armstrong, 490 Mich 281, 289; 806 NW2d
676 (2011), citing People v Grant, 470 Mich 477, 481; 684 NW2d 686 (2004). We review the
trial court’s findings of fact for clear error. Armstrong, 490 Mich at 289; MCR 2.613(C),
6.001(D). “Clear error exists when the reviewing court is left with the definite and firm
conviction that a mistake has been made.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d
528 (1993). “Questions of constitutional law are reviewed by this Court de novo.” People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

        We review the trial court’s decision on a motion for a new trial for an abuse of discretion.
Cress, 468 Mich at 691. “An abuse of discretion occurs when the court chooses an outcome that
falls outside the range of reasonable and principled outcomes.” Unger, 278 Mich App at 217.

                                         B. ANALYSIS

        To prove ineffective assistance of counsel, defendant must show that “(1) counsel’s
performance was below an objective standard of reasonableness under professional norms and
(2) there is a reasonable probability that, if not for counsel’s errors, the result would have been
different and the result that did occur was fundamentally unfair or unreliable.” People v Odom,
276 Mich App 407, 415; 740 NW2d 557 (2007). “[E]ffective assistance of counsel is
presumed[.]” People v Schrauben, 314 Mich App 181, 190; 886 NW2d 173 (2016).
“[D]efendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel[.]” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

                     1. FAILURE TO SECURE FUNDS FOR AN EXPERT

        Defendant argues that trial counsel was ineffective for failing to make the proper showing
to secure funds for an expert. He further argues that counsel’s failure prejudiced him by denying
him an expert at trial. We agree.

         In People v Ackley, 497 Mich 381; 870 NW2d 858 (2015), the three-year-old daughter of
defendant’s girlfriend died while in defendant’s care. At trial, the defendant argued that the
child’s death was the result of her fall from the bed, while the prosecution presented experts who
testified that the child died from an abusive head injury that was caused by non-accidental
shaking, blunt force trauma or both. Defense counsel was initially given $1,500 to retain an
expert witness. He engaged one expert witness who specifically told him that he did not believe




                                                -6-
the defense theory was possible and gave him the name of another expert who would support
defendant. Defense counsel never contacted the other expert or any other expert. 3 The
defendant was found guilty. On appeal, he argued his trial counsel was ineffective for failing to
“meaningfully challenge the prosecution’s expert testimony regarding the cause of the child's
death[.]” Id. at 384-385. Defense counsel testified at the evidentiary hearing, that he only
contacted one expert who indicated that he was “not the best person” for the defense. Id. at 358.
The Court held “defense counsel’s failure to attempt to engage a single expert witness to rebut
the prosecution’s expert testimony,” and his failure “to consult an expert with the scientific
training to support the defendant’s theory of the case, fell below an objective standard of
reasonableness, and created a reasonable probability that this error affected the outcome of the
defendant’s trial.” Id. at 383. It further held that

       In this case involving such “substantial contradiction in a given area of expertise,”
       counsel’s failure to engage “expert testimony rebutting the state’s expert
       testimony” and to become “versed in [the] technical subject matter” most critical
       to the case resulted in two things: a defense theory without objective, expert
       testimonial support, and a defense counsel insufficiently equipped to challenge
       the prosecution's experts because he possessed only Dr. Hunter's reluctant and
       admittedly ill-suited input as his guide. [Id. at 393].

        Similarly, defense counsel here failed to engage or consult with an expert witness “versed
in [the] technical subject matter” to rebut the prosecution’s expert testimony. He spoke with a
friend whose expertise was vascular surgery and two local AHT experts who supported the
prosecution’s theory of the case. He made no further inquiry and failed, for example, to contact
the State Appellate Defender Office to find other experts. At the evidentiary hearing, defense
counsel testified that other than a lack of funds, he had no strategic reason for not calling an
expert. Defense counsel’s failure to identify and consult with an expert to support the
defendant’s theory of the case made him unprepared to seek medical expert funds from the court.

       The failure to properly articulate the basis for an expert and failure to consult, seek other
resources, or call an expert amounted to ineffective assistance of counsel and was outcome
determinative. The prosecution presented eight medical experts most of whom presented
testimony that was heavily laden with medical terminology and complex medical processes.
They collectively gave testimony that Shawn, Jr. had suffered non-accidental AHT and the
prosecution’s theory was that defendant was the baby’s only caretaker at the time of injury and
the baby was healthy up until the time of injury. Defense counsel’s cross-examination of the
witnesses was less than effective with counsel asking what certain medical terms meant in a
manner which seemed designed as much to educate himself as it was intended to persuade or
educate the jury. He posed multiple hypotheticals that were rejected by the experts and offered
no record basis for those hypotheses. In contrast, the experts presented at the remand hearing
and by affidavit offered alternative analyses of the child’s disease progression and its etiology.



3
 People v Ackley, unpublished per curiam opinion of the Court of Appeals, issued April 22,
2014 (Docket No. 318303).



                                                -7-
On appeal, defendant presents the affidavits of doctors Mark Shuman and Scheller. Dr. Scheller
also testified at defendant’s evidentiary hearing on remand. Dr. Shuman opined,

       [a]fter completing my review, I conclude that Shawn Jr. had a chronic subdural
       hematoma, most likely caused by a traumatic injury, which was present at least a
       week before his death on January 24, 2010. I also conclude that Shawn Jr.'s
       chronic subdural hematoma re-bled, which caused an increase in intracranial
       pressure, which resulted in a fatal restriction of the flow of blood and oxygen to
       his brain. A re-bleed could have been spontaneous or it could have been caused
       by a minor trauma, such as choking on formula or coughing. Whatever trauma
       occurred, it is not scientifically possible to definitively conclude whether the
       trauma was intentional or accidental, or exactly when it happened.

At the evidentiary hearing, Dr. Scheller testified Shawn, Jr. had a chronic subdural hematoma
that spontaneously re-bled causing bleeding on the surface of the brain, disruption in circulation,
“seizures, collapse, and ultimately his death.” Shawn, Jr.’s chronic subdural hematoma was
documented in medical records. This documentation, coupled with either doctor’s testimony,
would have provided support for the defense theory and given the jury another plausible option
to consider as to Shawn, Jr.’s cause of death. Beyond their trial testimony, these doctors could
have fully equipped a defense counsel with the medical understanding of the opinions of the
prosecution’s experts, and equip counsel to challenge their opinions and points of weakness.
There is a reasonable probability that had defendant been armed with an expert of his own, the
outcome of his trial would have been different. The trial court’s finding that defense counsel
performed reasonably was clearly erroneous.

        The prosecution has submitted to this Court a Consensus Statement on Abusive Head
Trauma in Infants and Young Children, Pediatric Radiology, Arabinda Kumar Choudhary, et al.
(April 2018), as supplemental authority. The prosecution argues that the Consensus Statement is
evidence that there is no controversy concerning the medical validity of the existence of shaken
baby syndrome or abusive head trauma. From this statement, the prosecution argues that
defendant cannot show that he was convicted based on scientific evidence that was
fundamentally flawed, irresponsible and misleading. The prosecution misunderstands the
defense argument. Defendant contends that he does not contest the existence of abusive head
trauma, only whether abuse is the only possible diagnosis in this case.

       The Consensus Statement is informative, but not dispositive of whether defendant should
be allowed to question the AHT diagnosis involving his son. Further, it does not close the debate
on whether the injuries suffered by a particular child are the result of AHT or some other
possible cause, nor does it solve who caused those injuries.4

         2. FAILURE TO STATE THE PROPER BASIS TO EXCLUDE EVIDENCE


4
 See for example, Keith A. Findley, et al, Feigned Consensus: Usurping the Law in Shaken
Baby Syndrome / Abusive Head Trauma Prosecutions, (University of Wisconsin Law School
Legal Studies Research Paper Series No. 1461) (available at https://ssrn.com/abstract=3328996).



                                                -8-
         “Decisions regarding what evidence to present and whether to call or question witnesses
are presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76; 601 NW2d
887 (1999). “Defense counsel’s failure to present certain evidence will only constitute
ineffective assistance of counsel if it deprived defendant of a substantial defense.” People v
Dunigan, 299 Mich App 579, 589; 831 NW2d 243 (2013). “ ‘A substantial defense is one that
might have made a difference in the outcome of the trial.’ ” People v Chapo, 283 Mich App 360,
371; 770 NW2d 68 (2009), quoting People v Kelly, 186 Mich App 524, 526; 465 NW2d 569
(1990).

        At trial, defense counsel wanted to play Reinstein’s recorded interview of defendant
during Reinstein’s testimony to impeach the testimony of Reinstein that defendant was “laid
back,” and to contradict other testimony presented by the prosecution that defendant was
apathetic to his son’s condition. Counsel stated, “Your Honor, at this time I’d like to play that
CD and I guess I need to admit it some way.” At first, the prosecution had no objection to the
recording, but after a recess stated that it was inadmissible hearsay under MRE 801(d)(2)
because it was not being offered against an opposing party. Defense counsel unsuccessfully
argued for admission under MRE 801(d)(2), MRE 803(24), and MRE 803(2). In its ruling to
exclude, the court explained to defendant that the audio recorded statement was not subject to
cross-examination whereas defendant was present and could testify to the statement and be
subject to cross-examination. The court held that the recording was hearsay offered for the truth
of the matters asserted and there was no exception to grant its admissibility. The court informed
the jury that the CD was inadmissible and would not be played. The jury was instructed not to
speculate what may or may not have been on the recording.

        Defense counsel was unprepared to admit the recording that was integral to his strategy to
present the defendant as a loving parent who could not harm his son. An argument could have
been made for admission of the recording in whole or in part under MRE 803(3). Under that
exception to the hearsay rule, “statement[s] of the declarant’s then-existing state of mind,
emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling,
pain, and bodily health)” can be admitted. MRE 803(3). Defense counsel had no plan for its
admission and unreasonably relied on the acquiescence of the prosecutor. Such performance was
deficient.

        In Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the
United States Supreme Court established a “reasonable probability” standard for determining
prejudice due to an attorney’s ineffective performance. Under that standard, defendant “need not
show that counsel’s deficient conduct more likely than not altered the outcome in the case,” but
rather must demonstrate “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.” Id. at 693-694. See also People v
Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018).

         We acknowledge that defendant’s response to Shawn, Jr.’s death would have changed his
character before the jury, but not the medical testimony. But, the relevant question is whether
the trial was “fundamentally unfair” or the jury’s verdict “unreliable.” The context of counsel’s
failure to admit the audiotape highlights the unfairness of defendant’s trial and the unreliability
of the verdict.


                                                -9-
        The prosecution presented the testimony of James Snider, a Children’s Protective
Services worker who interviewed defendant in the baby’s hospital room, where the unconscious
child lay, breathing on a ventilator. According to Snider, defendant was “pretty lighthearted”
during their conversation, “bouncing around on his feet, smiling, kind of laughing with us.”
Snider agreed with the prosecutor’s suggestion that at some point, he and defendant exchanged
“fist-bumps.” Although defendant occasionally interacted with his child, Snider claimed,
“[t]here wasn’t a lot of emotionality to it.” To counteract this devastating testimony the defense
called two witnesses: Nadine Brown, defendant’s mother, and Reinstein, who had informed
defendant of his son’s death in the conversation memorialized in the audiotape. Nadine testified
that she could tell that her son was “distraught and worried” about the baby’s condition, despite
that he usually did not “show emotions,” and never had. Counsel next called Reinstein and
successfully laid a foundation for the admission of the audiotape. However, as discussed, the
tape was initially admitted, then excluded by the court based on it being hearsay. The jury also
heard the court’s instruction that it was forbidden from speculating about the tape’s contents.
Thus, the jury heard one account of the defendant’s demeanor in this time of crises from his
mother, an arguable biased witness, and a completely different version of his emotional affect
from a perceived neutral observer. The tape was the unheard third “witness.”

        In evaluating prejudice we note that despite the number of prosecution witnesses
including experts and their unified position that defendant had deliberately shaken his baby so
violently as to cause a severe brain injury, the jury rejected that defendant had committed murder
and instead convicted him of voluntary manslaughter and second, rather than first-degree, child
abuse.

        The touchstone for prejudice is a reasonable probability of a different result. Counsel
failed to articulate the basis for admission of the tape showing the defendant’s affect upon
hearing what for most would be devastating news. Had the jury learned that defendant was
emotionally overcome on hearing of his son’s death, a reasonable probability exists that the jury
would have concluded that defendant lacked any intent to kill or seriously injure his child.

        Trial counsel’s twin errors of failing to articulate the basis for expert witness funding
coupled with defense counsel’s failure to secure admission of the videotape seriously undermine
our confidence in the outcome of this case. Defense counsel had no strategy for obtaining an
acquittal other than his superficially informed cross-examination and his largely unsuccessful
effort to prove that defendant was a good man. As discussed elsewhere in this opinion, other
evidence existed that the child’s brain injury was not caused by trauma. It is reasonably probable
that but for counsel’s errors an entirely different trial would have unfolded.

                           IV. ADDITIONAL CLAIMS OF RELIEF

                                 A. STANDARD OF REVIEW

       We review constitutional issues, Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767
(2003), and the interpretation and application of statutes de novo, People v Al-Saiegh, 244 Mich
App 391, 394; 625 NW2d 419 (2001).




                                              -10-
        “We review a trial court’s decision on a motion for relief from judgment for an abuse of
discretion and its findings of facts supporting its decision for clear error.” People v Swain, 288
Mich App 609, 628–629; 794 NW2d 92 (2010) (internal citation omitted). We also review for
an abuse of discretion the trial court’s decision on a motion for a new trial. Cress, 468 Mich at
691. “An abuse of discretion occurs when the court chooses an outcome that falls outside the
range of reasonable and principled outcomes.” Unger, 278 Mich App at 217. “A factual finding
is clearly erroneous if it leaves the Court with a definite and firm conviction that the trial court
made a mistake.” People v Steele, 292 Mich App 308, 313; 806 NW2d 753 (2011).

                                         B. ANALYSIS

                                   1. ACTUAL INNOCENCE

        Defendant argues that he is also entitled to relief because he is actually innocent.
“Generally, to relieve a defendant from a judgment of conviction, a defendant must prove ‘good
cause’ and ‘actual prejudice,’ MCR 6.508(D)(3), but if the trial court concludes that there is a
‘significant possibility’ that the defendant is innocent, the court may waive the ‘good cause’
requirement.” Swain, 288 Mich App at 639. To establish actual innocence, the defendant “must
show that it is more likely than not that no reasonable juror would have found [him] guilty
beyond a reasonable doubt.” Schlup v Delo, 513 US 298, 327; 115 S Ct 851; 130 L Ed 2d 808
(1995). Defendant’s claim of actual innocence is based on his determination of the validity of
the medical evidence used to convict him. He argues that he presented “compelling scientific
evidence that shows that the symptoms his son presented could have been the result of any
number of causes other than abuse.” In its opinion and order after remand, the trial court found
that Dr. Scheller’s testimony regarding an alternative diagnosis did not establish that no
reasonable juror would find the defendant guilty and held that actual innocence was not shown
by the mere possibility that the injuries resulted from another cause. We agree. Dr. Scheller’s
testimony, had it been admitted in this trial, would not have proved defendant’s innocence,
although it might have undermined the credibility of the testimony from the prosecution’s
experts. We too cannot say that based upon Dr. Scheller’s testimony that no reasonable juror
could have found the defendant guilty.

        Further, MCR 6.508 was modeled after federal habeas corpus law, People v Reed, 449
Mich 375, 379-380; 535 NW2d 496 (1995), and current habeas law does not recognize a
freestanding claim of actual innocence. See Herrera v Collins, 506 US 390, 400; 113 S Ct 853;
122 L Ed 2d 203 (1993) (“Claims of actual innocence based on newly discovered evidence have
never been held to state a ground for federal habeas relief absent an independent constitutional
violation occurring in the underlying state criminal proceeding.”).

                                          2. MCL 770.1

        Defendant also argues that he is entitled to relief under MCL 770.1 because the trial
errors in his case resulted in an “unfair fight.” MCL 770.1 provides that “[t]he judge of a court
in which the trial of an offense is held may grant a new trial to the defendant, for any cause for
which by law a new trial may be granted, or when it appears to the court that justice has not been
done, and on the terms or conditions as the court directs.” This is a different version of the
argument presented in Issue III regarding defendant being denied in one form or the other the


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assistance of a medical expert at trial. We have already addressed the issue of defendant’s claim
for funds for a medical expert and recommended that defendant receive a new trial on that basis.

                                 V. RELIEF FROM JUDGMENT

                                  A. STANDARD OF REVIEW

        “We review a trial court’s decision on a motion for relief from judgment for an abuse of
discretion and its findings of facts supporting its decision for clear error.” Swain, 288 Mich App
at 628–629 (internal citation omitted). A trial court abuses its discretion when it misapprehends
the law to be applied. Kalaj v Khan, 295 Mich App 420, 425; 820 NW2d 223 (2012). “A factual
finding is clearly erroneous if it leaves the Court with a definite and firm conviction that the trial
court made a mistake.” Steele, 292 Mich App at 313.

      The interpretation of a court rule is a question of law that is reviewed de novo. People v
Hawkins, 468 Mich 488, 497; 668 NW2d 602 (2003).

                                          B. ANALYSIS

       In August 2016, defendant filed a motion seeking reissuance of his judgment of sentence
and reinstatement of his direct appeal under Cronic or in the alternative, relief from judgment
under MCR 6.500. In February 2017, the trial court granted relief under Cronic, finding that
“counsel entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing”
thereby denying defendant his Sixth Amendment right to counsel which made “the adversary
process itself presumptively unreliable.” In its cross-appeal, the prosecution argues that US v
Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984), was inapplicable to
defendant’s case where defendant was not denied the complete assistance of appellate counsel,
and that the court should have reviewed defendant’s motion under MCR 6.508 and denied relief.

       “If the defendant is no longer entitled to appeal by right or by leave, the defendant may
seek relief pursuant to the procedure set forth in subchapter 6.500.” MCR 6.431(A)(4). “The
defendant has the burden of establishing entitlement to the relief requested.” MCR 6.508(D).
The defendant is not entitled to relief if the motion

       (3) alleges grounds for relief, other than jurisdictional defects, which could have
       been raised on appeal from the conviction and sentence or in a prior motion under
       this subchapter, unless the defendant demonstrates

       (a) good cause for failure to raise such grounds on appeal or in the prior motion,
       and

       (b) actual prejudice from the alleged irregularities that support the claim for relief.
       As used in this subrule, “actual prejudice” means that,

       (i) in a conviction following a trial, but for the alleged error, the defendant would
       have had a reasonably likely chance of acquittal[.] [MCR 6.508(D)(3)].




                                                -12-
“ ‘Good cause’ can be established by proving ineffective assistance of counsel.” People v
Kimble, 470 Mich 305, 314; 684 NW2d 669 (2004).

       Generally, claims of ineffective assistance of counsel are reviewed under the Strickland
standard, which this Court adopted in People v Pickens, 446 Mich 298; 521 NW2d 797 (1994),
and requires a reviewing court to determine “(1) whether counsel’s performance was objectively
unreasonable, and (2) whether the defendant was prejudiced by counsel’s defective
performance.” People v Mitchell, 454 Mich 145, 164; 560 NW2d 600 (1997). However, in
Cronic, 466 US at 659-662, the United States Supreme Court identified “three rare situations in
which the attorney’s performance is so deficient that prejudice is presumed.” People v Frazier,
478 Mich 231, 243; 733 NW2d 713 (2007). The first situation was when the defendant was
completely denied counsel at a critical stage of trial by either counsel being “totally absent” or
when counsel was “prevented from assisting the accused.” Cronic, 466 US at 659 n 25. The
second situation arises “when counsel entirely fail[ed] to subject the prosecution’s case to
meaningful adversarial testing[.]” Id. at 659. The third situation is a circumstance where,
“although counsel is available to assist the accused during trial, the likelihood that any lawyer,
even a fully competent one, could provide effective assistance is so small that a presumption of
prejudice is appropriate.” Id. at 659-660.

       In Bell v Cone, 535 US 685; 122 S Ct 1843; 152 L Ed 2d 914 (2002), the Supreme Court
defined the failure to subject the prosecution’s case to meaningful adversarial testing:

       When we spoke in Cronic of the possibility of presuming prejudice based on an
       attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s
       failure must be complete. We said “if counsel entirely fails to subject the
       prosecution’s case to meaningful adversarial testing.” Cronic, supra, at 659, 104
       S.Ct. 2039 (emphasis added). Here, respondent’s argument is not that his counsel
       failed to oppose the prosecution throughout the sentencing proceeding as a whole,
       but that his counsel failed to do so at specific points. For purposes of
       distinguishing between the rule of Strickland and that of Cronic, this difference is
       not of degree but of kind. [Bell, 535 US at 696-697].

In other words, “[t]he Cronic test applies when the attorney’s failure is complete, while the
Strickland test applies when counsel failed at specific points of the proceeding.” Frazier, 478
Mich at 244.

        The trial court determined that appellate counsel’s failure to secure the transcript of one
day of trial testimony that included significant medical expert testimony constituted a complete
failure to subject the prosecution’s case to adversarial testing. We disagree. Appellate counsel
did not obtain and review a transcript on appeal, but otherwise filed a timely brief that presented
two meritorious issues that challenged the defendant’s sentences regarding double jeopardy and
offense variable scoring. Appellate counsel’s failure to submit defendant’s brief without benefit
of the whole record is but one allegation of a specific appellate error. Defendant argues that
counsel failed to test the prosecution’s case on the point of medical testimony and not throughout
the entire appellate proceedings. Cronic does not require that defense counsel subject the
prosecution’s entire case to meaningful adversarial testing. Defendant fails to establish the
factual predicate of his claim where appellate counsel took some action to subject the


                                               -13-
prosecution’s case to meaningful adversarial testing. People v Hoag, 460 Mich 1, 6; 594 NW2d
57 (1999). Consequently, a showing of prejudice under Strickland was necessary and the trial
court’s finding that defendant was entitled to relief under Cronic and decision to forgo a
discussion of prejudice were erroneous. “However, this Court will not reverse a lower court
ruling when the correct result is reached for the wrong reason.” People v Washington, 99 Mich
App 330, 336 n 3; 297 NW2d 915 (1980). Defendant’s Cronic claim fails, but he is still entitled
to relief under MCR 6.508(D).

        The prosecution argues that defendant’s claim of relief under MCR 6.508(D)(3), also
fails where defendant cannot demonstrate good cause (or ineffective assistance of appellate
counsel) and actual prejudice. According to MCR 6.508(D)(3)(b)(i), “actual prejudice” means
that “in a conviction following a trial, but for the alleged error, the defendant would have had a
reasonably likely chance of acquittal[.]”

         The prosecution contends that appellate counsel was not ineffective for failing to raise the
additional issues of expert funding and the January 24 audio recording because counsel
strategically chose to raise other issues. “An appellate attorney’s failure to raise an issue may
result in counsel’s performance falling below an objective standard of reasonableness if that
error is sufficiently egregious and prejudicial.” People v Reed, 198 Mich App 639, 646; 499
NW2d 441 (1993), aff'd 449 Mich 375 (1995). Appellate counsel is not required to argue every
conceivable issue on appeal. Jones v Barnes, 463 US 745, 749; 103 S Ct 3308; 77 L Ed 2d 987
(1983). Appellate counsel’s selection of which issues to raise on appeal are matters of
professional judgment and presumed to be trial strategy that this Court will not second-guess.
People v Reed, 449 Mich 375, 391; 535 NW2d 496 (1995); Simko v Blake, 448 Mich 648, 658;
532 NW2d 842 (1995). Here, appellate counsel was in receipt of all other transcripts and
specifically chose not to address the issues of expert funding or the audio recording. This
strategic decision constitutes ineffective assistance where, as decided in Issue III, defendant was
prejudiced by the failure to obtain funds for a medical expert and the exclusion of the audio
recording, and appellate counsel overlooked these issues. Accordingly, defendant was entitled to
relief from judgment where he established both good cause and actual prejudice under MCR
6.508(D)(3).

        Affirmed in part, reversed in part and remanded for a new trial. We do not retain
jurisdiction.



                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Cynthia Diane Stephens




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