If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

UNPUBLISHED

June 23, 2022

v No. 353296

Macomb Circuit Court

ANTHONY JEROME DELEON, LC No. 2005-003245-FC

Defendant-Appellee.

ON REMAND

Before: CAVANAGH, P.J., and O’BRIEN and SWARTZLE, JJ.

PER CURIAM.

This case returns to this Court on remand from our Supreme Court, vacating this Court’s 

decision in People v DeLeon, unpublished per curiam opinion of the Court of Appeals, issued June 

10, 2021 (Docket No. 353296) (DeLeon II), and directing this Court to address “whether or how 

the procedural bars of MCR 6.508(D)(2) and (3)(a) affect the outcome of this case.” People v 

DeLeon, ___ Mich ___; 970 NW2d 325 (2022) (Docket No. 163380). We conclude that MCR 

6.508(D)(2) and (3)(a) did not preclude defendant from raising the ineffective assistance of counsel 

argument asserted in his motion for relief from judgment, but that he has failed to overcome the 

presumption that his trial counsel’s failure to call Dr. Herbert MacDonell to testify constituted 

sound trial strategy and failed to demonstrate a reasonable probability of a different result had Dr. 

MacDonell testified. Accordingly, we again reverse.

In People v DeLeon, unpublished per curiam opinion of the Court of Appeals, issued 

September 18, 2007 (Docket No. 269574) (DeLeon I), this Court recited the factual background 

as follows:

Defendant’s convictions arise from the April 1998 shooting death of his 

wife, Karen DeLeon, who died from a single gunshot wound to the head. Police 

found several bags packed with the woman’s clothing. Defendant claimed to be 

present at the time of the shooting and further claimed to hold his wife closely right 

after the shooting, but police found him clean and emotionless when they arrived 
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at the scene. Shortly after the shooting, the medical examiner certified the manner 

of death as “undeterminable.” A toxicology report indicated that the decedent had 

consumed a large, possibly fatal, amount of Butalbital. The police file was closed 

in June 1998, because the police determined that there was no direct evidence that 

the decedent’s death was anything other than a suicide. Much of the physical 

evidence was destroyed, including the decedent’s numerous prescription 

medications and the clothing she was wearing at the time of her death. The case 

was later reopened in 2002, after defendant assaulted his live-in fiancée by 

wrestling her to the floor and telling her he was going to kill her. The assault was 

precipitated in large part by the fiancée’s communication of her desire to end the 

relationship. In June 2005, defendant was charged with first-degree murder in 

connection with the decedent’s death.

Testimony indicates that, at least in retrospect, some witnesses believed that 

defendant acted suspiciously on the night his wife died. There was also evidence 

that the decedent had a history of prescription drug abuse and a previous suicide 

attempt. Although testimony at trial portrayed defendant as controlling and 

insensitive toward the decedent, no one ever saw him physically assault the 

decedent, and she never complained to anyone of physical abuse. Evidence of 

defendant’s 2002 assault of his fiancée was presented at defendant’s trial. [DeLeon 

I, unpub op at 1-2.]

The jury convicted defendant of first-degree premeditated murder, MCL 750.316(1)(a), and 

possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The 

trial court sentenced defendant to life imprisonment for the murder conviction and two years’ 

imprisonment for the felony-firearm conviction.

Defendant appealed by right and moved to remand for a Ginther1hearing, arguing, in part, 

that his trial attorney, Salvatore Palombo, rendered ineffective assistance of counsel by failing to 

call Dr. MacDonell to testify. Dr. MacDonell was the director of the Laboratory of Forensic 

Science in Corning, New York. Defendant asserted that Dr. MacDonell was “the foremost 

authority in the science of bloodstain pattern analysis” and that he had spent days waiting in the 

courthouse hallway, but was never called to testify before he returned to New York because of a

medical emergency involving his wife. Defendant maintained that there was no reasonable 

explanation for failing to call Dr. MacDonell to testify and that Palombo chose to call local 

witnesses before out-of-town witnesses who were present and waiting to testify. This Court denied 

defendant’s motion to remand “for failure to persuade the Court of the necessity of a remand” at 

that time.2

This Court affirmed defendant’s convictions. This Court determined, in relevant part, that 

Dr. MacDonell’s testimony “would have added little beyond rehashing the [gunshot] residue 

 

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

2 People v DeLeon, unpublished order of the Court of Appeals, entered February 15, 2007 (Docket 

No. 269574).
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report.” This Court also rejected defendant’s argument that Palombo should have called Dr. 

MacDonell to testify sooner, stating that “decisions about the order in which to present evidence 

and decisions about calling and questioning witnesses, generally are matters of trial strategy.” 

DeLeon I, unpub op at 4.

In October 2018 defendant moved for relief from judgment and a Ginther hearing, again 

asserting that Palombo rendered ineffective assistance of counsel. Specifically, defendant argued 

that Palombo’s representation to the trial court that Dr. MacDonell had to return to New York 

because of a medical emergency involving his wife was false. Defendant relied on Dr. 

MacDonell’s affidavit stating that he had waited all day at the courthouse on January 18 and 19, 

2006, but was not called to testify. Dr. MacDonell further averred:

In the late afternoon of the 19th Mr. Palombo advised affiant that the case 

was going so well he was not going to call him as a witness. Affiant was astounded 

because he was there two days ready to explain the gunshot residue results while 

Palombo put on local witnesses ahead of him.· Affiant had never had an attorney 

who had him in the courthouse ready to testify and then be told to go home. Affiant 

was astounded to say the least. Affiant later learned that Mr. Palombo told the court 

that he had to leave because of a family emergency. That is not at all true, affiant 

was told me [sic] to go home as he was no longer needed.

The trial court granted defendant’s motion for a Ginther hearing, and, following the 

hearing, granted defendant a new trial. The court acknowledged Palombo’s testimony that he 

decided not to call Dr. MacDonell to testify both because trial was going well and because Dr. 

MacDonell had to leave due to a family emergency. The court determined, however, that 

Palombo’s testimony contradicted his representation to the court during trial, which referenced 

only Dr. MacDonell’s family emergency, and defendant’s testimony that Palombo never discussed 

with him the matter of not calling Dr. MacDonell to testify. Thus, the court opined that Palombo’s 

performance fell below an objective standard of reasonableness. Further, the court determined 

that there existed a reasonable probability of a different outcome if Dr. MacDonell had testified.

The prosecution applied for leave to appeal on the basis that the trial court’s decision 

contravened the law-of-the-case doctrine because this Court determined in DeLeon I that defendant 

had not been denied the effective assistance of counsel. This Court granted the application and 

reversed the trial court’s decision.3 DeLeon II. Thereafter, our Supreme Court vacated this Court’s 

decision and remanded, directing this Court to address “whether or how the procedural bars of 

MCR 6.508(D)(2) and (3)(a) affect the outcome of this case.” People v DeLeon, ___ Mich ___; 

970 NW2d 325 (2022) (Docket No. 163380).

We review de novo as a question of law issues involving the interpretation of court rules. 

People v Blanton, 317 Mich App 107, 117; 894 NW2d 613 (2016). “The same principles of 

statutory interpretation govern when interpreting and applying a court rule.” People v Walters, 

266 Mich App 341, 346; 700 NW2d 424 (2005). Accordingly, “our analysis begins with the 

 

3

Judge Tukel dissented, stating that he would vacate the trial court’s order and remand for 

additional factfinding. DeLeon II (TUKEL, J., dissenting), unpub op at 3-5.
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language of the court rule.” Id. “If the plain and ordinary meaning of a court rule’s language is 

clear, judicial construction is not necessary.” People v Howell, 300 Mich App 638, 645; 834 

NW2d 923 (2013).

When the trial court decided defendant’s motion for relief from judgment on March 

11, 2020, MCR 6.508 provided, in relevant part, as follows:4

(D) The defendant has the burden of establishing entitlement to the relief 

requested. The court may not grant relief to the defendant if the motion

* * *

(2) alleges grounds for relief which were decided against the defendant in a 

prior appeal or proceeding under this subchapter, unless the defendant establishes 

that a retroactive change in the law has undermined the prior decision;

(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 . . . .

* * *

The court may waive the “good cause” requirement of subrule (D)(3)(a) if 

it concludes that there is a significant possibility that the defendant is innocent of 

the crime. [MCR 6.508(D).]

MCR 6.508(D)(2) did not preclude defendant from raising his ineffective assistance of 

counsel argument in his motion for relief from judgment because he did not allege grounds for 

relief that were decided against him in a prior appeal or motion under MCR Subchapter 6.500. 

Defendant’s motion for relief from judgment filed on October 23, 2018 was his first such motion 

filed in this case. In addition, this Court did not decide defendant’s argument against him in 

DeLeon I. In that appeal, defendant argued that Palombo rendered ineffective assistance of counsel 

by failing to call Dr. MacDonell to testify despite the fact that he was present and waiting in the 

hallway outside the courtroom. Defendant asserted that Palombo’s performance fell below an 

objective standard of reasonableness because he called local witnesses to testify before calling Dr. 

MacDonell to testify, which ultimately resulted in Dr. MacDonell having to return to New York 

without testifying because of a medical emergency involving his wife. Defendant did not assert 

 

4 Although MCR 6.508 was amended effective May 1, 2020, we must apply the version of the 

court rules in effect at the time that the trial court decided defendant’s motion. See In re 

Guardianship of Brosamer, 328 Mich App 267, 272 n 1; 936 NW2d 870 (2019) (“All references 

in this opinion to the statute are to the version in effect when the trial court issued its order.”)
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in DeLeon I that Palombo told Dr. MacDonell that he could leave because trial was going well and 

his testimony would not be needed. Accordingly, this Court did not address that issue in DeLeon 

I.

5

Likewise, MCR 6.508(D)(3)(a) did not preclude defendant from raising his argument in 

his motion for relief from judgment because the record fails to establish that he could have raised 

his argument on direct appeal or in a prior motion under MCR Subchapter 6.500. As previously 

stated, defendant’s motion for relief from judgment filed on October 23, 2018 was his first such 

motion. In addition, defendant asserted in both his motion for relief from judgment and in his 

motion to appoint counsel for purposes of filing his motion for relief from judgment that neither 

he nor his appellate attorney was aware during his direct appeal that Palombo had told Dr. 

MacDonell to return to New York because his testimony would not be needed. Defendant testified 

at the Ginther hearing that he first discovered that Palombo’s representation to the trial court that 

Dr. MacDonell had to return to New York because of a medical emergency involving his wife was 

untrue after Dr. MacDonell contacted his father at some point following defendant’s trial. 

Defendant testified as follows:

Q. When is the first time you learned that Dr. McDonald [sic] would not be 

a witness in the case?

A. He called my father at home after he got back from another case and he 

told my father:

I found out what happened to your son. And he says: I’m sorry. If 

I would have taken the stand, I probably could have gotten him an acquittal.

It is unclear when Dr. MacDonell contacted defendant’s father. At the Ginther hearing, defendant 

was not asked to clarify when that occurred, and Dr. MacDonell gave no indication in his affidavits 

regarding when he contacted defendant’s father.6 Although it appears unlikely that Dr. MacDonell 

would have contacted defendant’s father years after defendant’s trial concluded, the record fails to 

 

5 Because this Court did not decide in DeLeon I the ineffective assistance of counsel claim that 

defendant now asserts, the law-of-the-case doctrine, on which the prosecution relies, is 

inapplicable. The law-of-the-case “doctrine provides that an appellate court’s decision regarding 

a particular issue is binding on courts of equal or subordinate jurisdiction during subsequent 

proceedings in the same case.” People v Herrera, 204 Mich App 333, 340; 514 NW2d 543 (1994). 

The doctrine applies, however, “only if the facts remain substantially or materially the same.” 

People v Phillips, 227 Mich App 28, 31-32; 575 NW2d 784 (1997). Because defendant relies on 

Dr. MacDonell’s affidavit in which he denied that he had to return to New York because of a 

medical emergency and maintained that Palombo instead told him to leave because his testimony 

would not be needed, the facts at issue in defendant’s motion for relief from judgment were not 

substantially or materially the same as those at issue in DeLeon I.

6 Dr. MacDonell executed two virtually-identical affidavits, one dated October 20, 2016 and 

attached to defendant’s motion to appoint counsel for the purpose of filing a motion for relief from 

judgment, and one dated November 20, 2017 and attached to defendant’s motion for relief from 

judgment.
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contradict defendant’s assertion that he could not have raised his argument in his appeal of right. 

Moreover, nothing indicates that defendant or appellate counsel should have suspected that 

Palombo’s assertion regarding the reason for Dr. MacDonell’s return to New York was untrue or 

did not fully explain why he returned to New York without testifying. Accordingly, because the 

record fails to establish that defendant could have raised his argument on direct appeal, MCR 

6.508(D)(3) did not preclude him from raising the argument in his motion for relief from judgment. 

Alternatively, defendant established “good cause” under MCR 6.508(D)(3)(a) for his failure to 

raise his argument on direct appeal because neither he nor his appellate counsel had any reason to 

suspect that Palombo’s explanation regarding why Dr. MacDonell did not testify was untrue or not 

completely forthright.

Accordingly, we conclude that defendant overcame the procedural bars of MCR 

6.508(D)(2) and (3)(a) and was therefore able to raise his ineffective assistance of counsel 

argument in his motion for relief from judgment. As in DeLeon II, however, we conclude that 

defendant failed to overcome the presumption that Palombo’s decision not to call Dr. MacDonell 

to testify was a matter of sound trial strategy.

“A claim of ineffective assistance of counsel presents a mixed question of law and fact.” 

People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011). “A judge first must find the 

facts, and then must decide whether those facts constitute a violation of the defendant’s 

constitutional right to effective assistance of counsel.” People v LeBlanc, 465 Mich 575, 579; 640 

NW2d 246 (2002). We review a trial court’s findings of fact for clear error and review “de novo 

the ultimate constitutional issue arising from an ineffective assistance of counsel claim.” Brown, 

294 Mich App at 387.

In order to establish ineffective assistance of counsel, a defendant must show (1) that 

counsel’s representation fell below an objective standard of reasonableness and (2) that there exists 

a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been 

different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012) (citation omitted). 

“Effective assistance of counsel is presumed,” and a “[d]efendant must overcome a strong 

presumption that counsel’s performance constituted sound trial strategy.” People v Petri, 279 

Mich App 407, 410-411; 760 NW2d 882 (2008). “Decisions regarding what evidence to present 

and whether to call or question witnesses are presumed to be matters of trial strategy, and this 

Court will not substitute its judgment for that of counsel regarding matters of trial strategy.” 

People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).

Defendant has failed to overcome the presumption that Palombo’s decision not to call Dr. 

MacDonell to testify was a matter of sound trial strategy. As stated in DeLeon II, Palombo offered 

numerous reasons for opting not to present Dr. MacDonell’s testimony, including the fact that trial 

had proceeded well without the testimony, the prosecution had arranged for a well-respected 

Michigan State Police lieutenant to testify as a rebuttal witness to counter Dr. MacDonell’s 

testimony, the lieutenant was present in the building, the lieutenant’s testimony was the final 

evidence that the jury would hear before it began deliberating, and Palombo’s assistant informed 

him that Dr. MacDonell had to return to New York because of a medical emergency involving his 

wife.
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Further, defendant has failed to demonstrate a reasonable probability that, if Dr. MacDonell 

had testified, the result of the proceeding would have been different. Because Dr. MacDonell 

passed away before the Ginther hearing, the parties stipulated that he would have testified in 

accordance with his September 13, 2005 forensic report and October 18, 2005 addendum to his 

forensic report. In his forensic report and addendum, Dr. MacDonell was critical of Robert White’s

gunshot residue report and David Woodford’s report indicating that the handgun should have had 

more blood on it if Karen had committed suicide. Because Woodford passed away before trial, 

Melinda Jackson testified in his stead as an expert regarding analyzing surfaces for the presence 

of blood. Woodford was Jackson’s supervisor who trained her and worked with her for more than 

19 years. Woodford analyzed the handgun and observed only a small amount of blood on the 

cylinder. Oakland County Medical Examiner Dr. Ljubisa Dragovic testified on defendant’s behalf, 

however, that if the barrel of a gun is held tightly to a person’s skin, it creates a tight seal that will 

prevent any material from blowing back around the outside of the weapon. Palombo argued during 

closing argument that the tight seal between the gun and Karen’s head prevented blood from 

blowing back onto the weapon. Thus, Palombo offered a reasonable explanation for the lack of 

blood on the gun without Dr. MacDonell’s testimony.

Further, in his forensic report and addendum, Dr. MacDonell was critical of Robert White’s 

gunshot residue report. White was defendant’s own expert witness, however, who testified on 

defendant’s behalf as a gunshot residue expert, and Palombo sought the admission of White’s 

report, which the trial court granted. Because Dr. MacDonell’s testimony would have been critical 

of a fellow defense expert, defendant has failed to establish a reasonable probability that the result 

of the proceeding would have been different if Dr. MacDonell had testified.

Reversed.

/s/ Mark J. Cavanagh

/s/ Colleen A. O’Brien