Opinion
No. 110823.
September 29, 1998.
Summary Dispositions September 29, 1998.
In lieu of granting leave to appeal, the judgment of the Court of Appeals is vacated, and the order in which the Court of Appeals denied the defendant's motion to remand is reversed. MCR 7.302(F)(1). The case is remanded to the Court of Appeals which, while retaining jurisdiction, is to remand this case to the Wayne Circuit Court for a hearing on defendant's claim of ineffective assistance of counsel. Jurisdiction is not retained.
Court of Appeals No. 189107.
Reconsideration denied March 19, 1999, there begin no majority of the court in favor of granting relief.
I would reconsideration and, on reconsideration, would vacate the order granting remand and deny defendant's application for leave to appeal. Defendant did not raise a claim of ineffective assistance in his motion for a new trial, but rather, sought to present additional evidence in an effort to persuade the trial court to reconsider its denial of a pretrial motion to supress his inculpatory statements. The trial court properly denied the motion because defendant failed to demonstrate by affidavit or an offer of proff that the evidence was newly discovered. See People v. Lewis, 305 Mich. 75, 78 (1943); People v. Messenger, 221 Mich. App. 171, 178 (1997). Defendant likewise failed to make a predicate showing of substance to his claim of incompetency. Cf. People v. Lucas, 393 Mich. 522, 528 (1975). This court need not have an evidentiary hearing because these critical facts were not in dispute. Id. at 528-529; People v. Williams, 391 Mich. 832 (9174).
On appeal, defendant altered his strategy, arguing for the first time that trial counsel's failure to elict his testimony a the suppression hearing, as well as that of two mental health professionals who treated him in the county jail, constituted ineffective assistance. Defendant did not present affadivits from the professionals or make an offer of proff regarding the facts he sought toestablish at the hearing. MCR 7.211(C)(1)(a)(ii); see Lucas, supra at 528. Defendant's motion amounted to a discovery request to discern whether he had a claim of ineffective assistance of counsel. Accordingly, the Court of Appeals did not abuse its discretion in denying defendant's motion under MCR 7.211(C)(1) because he failed to make and offer of proof that suggested a possibility that the additional evidence would have led to a different result at the suppression hearing. See People v. Pickins, 446 Mich. 298 (1944); Messenger, supa at 178-179. This Court now sanctions defendant's fishing expedition by directing that the Court of Appeals remanded this case for an evidentiary hearing.
WEAVER, C.J. I join in the dissent of Jusice CORRIGAN.
YOUNG, J. I would grant reconsideration and, on reconsideration, would grant leave to appeal.