Opinion
No. 110823.
March 19, 1999.
On order of the Court, the motion for reconsideration of this Court's order of September 29, 1998, is considered, and it is DENIED, there being no majority of the Court in favor of granting it.
I would grant 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 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 suppress his inculpatory statements. The trial court properly denied the motion because defendant failed to demonstrate by affidavit or an offer of proof 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). The court need not have held an evidentiary hearing because these critical facts were not in dispute. Id. at 528-529; People v. Williams, 391 Mich. 832 (1974).
On appeal, defendant altered his strategy, arguing for the first time that trial counsel's failure to elicit his testimony at 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 affidavits from the professionals or make an offer of proof regarding the facts he sought to establish 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 an 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. Pickens, 446 Mich. 298 (1994); Messenger, supra at 178-179. This Court now sanctions defendant's fishing expedition by directing that the Court of Appeals remand this case for an evidentiary hearing.
Weaver, C.J., joins in the dissent of Justice Corrigan.
Young, Jr., J., would grant reconsideration, and on reconsideration would grant leave to appeal.
Taylor, J., not participating.