Opinion
No. 104189.
June 28, 1996
Leave to Appeal Denied June 28, 1996:
Court of Appeals No. 146060.
I would grant leave to appeal.
The defendant was convicted of first-degree murder. I would grant leave to appeal to consider whether defendant's trial lawyer's failure to communicate with and call a key witness who could have corroborated defendant's claim that he was not in possession of the alleged murder weapon established that counsel's representation fell below an objective standard of reasonableness, and created a reasonable probability that the outcome would have been different.
I
The police found two fired, nine-millimeter bullets and five spent nine-millimeter (.38 caliber) shells at the scene of the crime. There was testimony that these bullets could have been shot from a MAC 11 gun. There was also testimony that defendant had owned both a MAC 11 (.38 caliber) and a MAC 10 (.45 caliber) gun. Critically, defendant claimed that he sold the MAC 11 in Arkansas before the shooting, and that the MAC 10 was stored in someone else's garage.
The prosecution entered into evidence the MAC 11 defendant had once owned. It had been recovered in Arkansas. There was also testimony that bullets fired from this gun were not inconsistent with the bullets found at the scene.
The defendant contends that his counsel was constitutionally deficient because he did not interview or call Lawrence Thompson, from Arkansas, who allegedly purchased the MAC 11 from defendant before the shooting occurred. The Court of Appeals remanded to the trial court for an evidentiary hearing.
At the hearing, defendant and trial counsel testified that defendant had informed trial counsel that he had sold the MAC 11 to Thompson months before the killing. Thompson testified to the same effect.
II
The trial court found that the failure to interview Thompson indicated that counsel had operated below the constitutionally required level of performance, but concluded that the error was harmless.
The Court of Appeals affirmed, and declared:
Counsel's failure to interview Lawrence Thompson before deciding not to call him as a witness did not amount to ineffective assistance of counsel. Even if the witness would have corroborated defendant's testimony regarding the sale of the gun, such testimony would not have provided a more substantial defense because that particular gun was never identified as the murder weapon. Under the circumstances of this case, counsel's decision was a matter of sound trial strategy, did not prejudice defendant, and thus, did not amount to ineffective assistance of counsel.
Although, because the barrel had been changed, the gun was not positively identified as the murder weapon, the clear implication through the course of the trial was that the gun introduced was the gun from which the fatal bullets were fired.
Having in mind the central role of the gun, the second contention of the Court of Appeals that Thompson's evidence would not have provided a substantial defense is not persuasive. Evidence that the defendant did not have a gun or access to a gun capable of firing the bullets that killed the victim would have been a strong defense. As it was, there was no evidence corroborating defendant's testimony that he did not have possession of the gun at the time of the killing. The testimony of a disinterested witness that the gun was in Arkansas at the time of the killing would have been strong evidence for the defense.
Trial counsel maintained that he did not call Thompson, or even interview him, because the gun that was introduced had not been shown to be the murder weapon. There was, however, nothing to be gained by failing to avail the defense of corroborating testimony of a disinterested witness that the alleged murder weapon was in Arkansas, not in the hands of the defendant, at the time of the killing.
It also appears that there was a reasonable probability that, but for counsel's errors, the result would have been different. People v Pickens, 446 Mich. 298 (1994). There was no eyewitness to the shooting. There was testimony of alleged admissions, but not from especially reliable witnesses. The strongest tie between the killing and the defendant was the weapon.
The defendant further contends that a new trial should be granted because, in closing arguments, the prosecutor highlighted the absence of Thompson: "[the defense has] subpoena powers . . . but he didn't request Thompson." The clear implication of this argument was that Thompson would have been called if he would indeed corroborate the defendant's testimony. Although there was a curative instruction, and that misstatement alone might not merit reversal, it magnifies the effect of counsel's error in falling to interview and call Thompson.
CAVANAGH, J. I concur in the dissenting statement of Justice LEVIN.
MALLETT, J. I would grant leave to appeal.