Opinion
SC: 161609 COA: 344445
11-29-2021
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Jarell ROBINSON, Defendant-Appellant.
Order
By order of June 1, 2021, the prosecuting attorney was directed to answer the application for leave to appeal the May 21, 2020 judgment of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to remand is DENIED.
Cavanagh, J. (dissenting).
I respectfully dissent from the Court's order denying leave to appeal. It appears defendant has pursued an ineffective assistance of counsel claim to the extent possible, but has not yet had the opportunity to fully investigate and present the issue despite attempts to slow the appellate process. Rather than exacerbating the situation and forcing defendant to file a motion for relief from judgment, I would remand the case so defendant could pursue the issue with benefit of counsel.
Defendant was convicted of murder and related offenses for a robbery in which the complainant was shot and killed. Before trial, trial counsel filed an alibi notice that included witness Jerry Young and a phone number. However, Mr. Young was not called to testify at trial.
Appellate counsel filed a motion to adjourn oral argument in the Court of Appeals, notifying the court that he was pursuing alibis which were not presented to the trial court and that he had not yet obtained the affidavits necessary to make an offer of proof. However, the Court of Appeals denied the motion and proceeded to resolve the case without defendant's having the opportunity to present the issue.
Now, without the benefit of counsel, defendant has presented an affidavit from Mr. Young asserting that he was with defendant during all relevant times. Further, Mr. Young asserts that they were at a birthday party, which presents the opportunity for further corroboration of Mr. Young's claim. Many questions about this case remain, such as whether Mr. Young's story can be corroborated and, if it is, how that evidence could be reconciled with evidence presented at trial connecting defendant to this crime. However, a defendant does not need to satisfy the test that applies when determining whether a new trial is warranted just to obtain an evidentiary hearing. Obviously there must be some lower threshold to obtain an evidentiary hearing, given that such a hearing is how a defendant develops the necessary factual record. See People v. Hammock , 506 Mich. 870, 946 N.W.2d 546 (2020) ( CAVANAGH , J., concurring); People v. Milton , 506 Mich. 999, 951 N.W.2d 332 (2020) ( MCCORMACK , C.J., concurring). When many questions remain in a case, the prudent course is to hold a hearing and resolve those questions one way or another.
Because defendant has attempted to present this issue on direct appeal, I would remand this case to allow appellate counsel to fully investigate and present the issue. However, I note that because defendant has not had this opportunity, he may still present Mr. Young's affidavit and any corroborating evidence in a motion for relief from judgment.