Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr., Chief Justice

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein, Justices

Order 

April 24, 2015

149357

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v SC: 149357

COA: 312721

Wayne CC: 12-004553-FC

ASHLY DRAKE SMITH,

Defendant-Appellant.

_________________________________________/

On March 10, 2015, the Court heard oral argument on the application for leave to 

appeal the April 1, 2014 judgment of the Court of Appeals. On order of the Court, the 

application is again considered, and it is DENIED, because we are not persuaded that the 

question presented should be reviewed by this Court. 

KELLY, J. (dissenting).

I respectfully dissent from the majority’s decision to deny leave to appeal and 

instead would reverse the judgment of the Court of Appeals and remand this case for a 

new trial. Because trial counsel failed to conduct a reasonable investigation into 

defendant’s alibi defense, counsel’s decision not to present the defense at trial constituted 

ineffective assistance of counsel. 

Defendant was charged with several crimes, including armed robbery. The 

defense theory at trial was misidentification. Following a bench trial, defendant was 

convicted as charged. The Court of Appeals remanded the case to the trial court for a 

Ginther hearing,1 limited to the issue of whether trial counsel performed ineffectively by 

failing to adequately investigate or present an alibi defense. Five witnesses testified at 

the hearing: defendant, his trial counsel, and the three alibi witnesses who appeared the 

day of trial but were not called to testify. The trial court ultimately determined that trial 

counsel’s decision to not present the alibi testimony was reasonable and, regardless, that 

the failure to present the defense had no effect on the outcome of the proceeding. The 

Court of Appeals affirmed defendant’s convictions and sentences in a split, unpublished 

decision.2

 

1 See People v Ginther, 390 Mich 436 (1973).

2 People v Smith, unpublished opinion per curiam of the Court of Appeals, issued April 1, 

2014 (Docket No. 312721).
2

INEFFECTIVE ASSISTANCE

Both the Michigan and the United States Constitutions require that a criminal 

defendant be afforded the assistance of counsel.3

 In Strickland v Washington, 466 US 

668, 686 (1984), the United States Supreme Court stated that “the right to counsel is the 

right to the effective assistance of counsel.” (Quotation marks and citation omitted.) The

Court established a bifurcated test for ineffective-assistance claims:

First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so serious that 

counsel was not functioning as the “counsel” guaranteed the defendant by 

the Sixth Amendment. Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing that counsel’s 

errors were so serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable. [Id. at 687.]

In holding that the Michigan Constitution does not afford defendants greater protection 

than its federal counterpart, this Court adopted the Strickland test in People v Pickens, 

446 Mich 298, 338 (1994).

DEFICIENT PERFORMANCE

The Strickland Court recognized that “counsel has a duty to make reasonable 

investigations or to make a reasonable decision that makes particular investigations 

unnecessary.”4

 “In any ineffectiveness case, a particular decision not to investigate must 

be directly assessed for reasonableness in all the circumstances, applying a heavy 

measure of deference to counsel’s judgments.”5

 “[S]trategic choices made after less than 

complete investigation are reasonable precisely to the extent that reasonable professional 

judgments support the limitations on investigation,” but “strategic choices made after 

thorough investigation of law and facts relevant to plausible options are virtually 

unchallengeable[.]”6

Trial counsel met with defendant to discuss trial strategy for the first time the night 

before trial. That meeting lasted approximately 15 minutes, a fact not disputed by 

counsel. Defendant testified at the Ginther hearing that aside from this one meeting on 

the eve of trial, counsel had only spoken with him during court proceedings and in the 

bullpen of the jail. Counsel did not dispute that during these earlier encounters defendant 

 

3 Const 1963, art 1, § 20; US Const, Am VI.

4 Strickland, 466 US at 691.

5 Id.

6 Id. at 690-691.
3

informed her of his alibi defense, providing her with the names and contact information 

for potential alibi witnesses. Nevertheless, counsel did not file a notice of alibi witness, 

as she was statutorily required to do under Michigan law.7

 Filing a notice of alibi defense 

does not bind counsel to pursue that strategy. Rather, it simply evidences an “intention to 

claim that defense,” MCL 768.20(1), and provides an opportunity for counsel to conduct 

further investigation into the validity of the defense.

Further, trial counsel did not speak with any of the alibi witnesses until the day of 

trial and, as a result, counsel did not have sufficient time to consider the relative 

cohesiveness of their testimony or the manner in which their testimony could affect the 

credibility of the victim’s testimony. Had counsel met with the witnesses before trial, she 

could have determined the extent to which their testimony would have been advantageous 

to the defense. Instead, the decision to not present the alibi witnesses was based on a 

hurried meeting with them the day of the trial.8

 The decision to not elicit testimony from 

alibi witnesses was a product of inadequate research, which is not afforded a presumption 

of reasonableness under Strickland.

9

 Because trial counsel failed in her duty to conduct a 

reasonable investigation, her performance was constitutionally deficient.

Trial counsel agreed at the Ginther hearing that her decision not to raise an alibi 

defense was strategic and “based on the idea that this identification was so weak that by 

putting on the alibi witnesses you didn’t want to jeopardize the acquittal that you thought 

you were going to get.” However, this rationale further supports my opinion that trial 

counsel rendered a deficient performance. First, an alibi defense would have supported 

the misidentification defense that counsel presented at trial; if the victim’s identification 

of defendant was erroneous, then defendant was necessarily at some other place at the 

time the crime was committed. Second, if counsel believed that the prosecution’s casein-chief was so weak that an alibi witness was unnecessary, she could have tested this 

assumption by moving for a directed verdict after the prosecution rested pursuant to 

MCR 6.419(D). If the trial court had refused to grant the motion, trial counsel would 

have been able to then decide whether to present the alibi defense. As with the failure to 

file a notice of alibi defense, there would have been no negative consequences to the 

defense in moving for a directed verdict. Defendant had nothing to lose and everything 

to gain.

 

7 MCL 768.20. 

8 While not addressed by the courts below, defendant and one of the female witnesses 

testified at the Ginther hearing that trial counsel did not feel that the two female 

witnesses were dressed appropriately for court. Defendant testified that trial counsel said 

she would not call either of them because of their attire. 

9 See Strickland, 466 US at 690-691.
4

For these reasons, the trial court’s conclusion that counsel had made a “strategic 

decision” to not call the alibi witnesses is clearly erroneous. Although the trial court 

emphasized some inconsistencies in the witnesses’ statements, the majority of the 

inconsistencies existed between the testimony of the two female witnesses and the one 

male witness. The trial court did not seem to recognize that counsel could have decided 

to present only the testimony of the two female witnesses, whose testimony supported 

one another’s. In analyzing the inconsistencies among these three accounts, the trial 

court engaged in hindsight analysis, which is contrary to Strickland’s instruction that a 

reviewing court “must judge the reasonableness of counsel’s challenged conduct on the 

facts of the particular case, viewed as of the time of counsel’s conduct.”10 Because trial 

counsel’s decisions were not borne of adequate investigation at the time they were made, 

the trial court clearly erred by finding that counsel’s decisions were reasonable. 

PREJUDICE

In order to be entitled to relief under Strickland, a “defendant must show that there 

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.”11 This Court has also recognized 

that “ ‘[w]here there is relatively little evidence to support a guilty verdict to begin with 

(e.g., the uncorroborated testimony of a single witness), the magnitude of errors 

necessary for a finding of prejudice will be less than where there is greater evidence of 

guilt.’ ”12

In the present case, the evidence of defendant’s guilt was particularly weak. The 

only evidence against defendant was the testimony of the victim. There was no other 

evidence corroborating the victim’s eyewitness account. Further, the victim was forced 

to lie face down during the robbery, which was over within minutes. The defense also 

presented evidence that the victim held a racial bias toward defendant. On crossexamination, the victim admitted that he made remarks “in a racial context” regarding the 

defendant on Facebook after the robbery. Although the victim testified that he was “one 

hundred and ten percent” certain that defendant was the perpetrator, at other times his 

testimony was more equivocal. For instance, he also admitted that “the more I look back 

on it” after the robbery, “I convinced myself I did see what I seen.” 

The only evidence that supported a guilty conviction here was the uncorroborated 

testimony of a single witness. Therefore, a lesser magnitude of errors will suffice to 

 

10 Id. at 690.

11 Id. at 694.

12 People v Trakhtenberg, 493 Mich 38, 56 (2012), quoting Brown v Smith, 551 F3d 424, 

434-435 (CA 6, 2008).
5

establish prejudice. The trial court based its finding of no prejudice on the fact that the 

three witnesses could not account for defendant’s whereabouts for each minute of the 

evening the crime was committed. However, the trial court failed to understand that 

counsel could have minimized the inconsistencies of alibi witness testimony by calling 

only the two female witnesses. Furthermore, the two women testified that they were with 

defendant for the large majority of the evening and that defendant left their presence for, 

at most, 20 minutes. Given the distance between defendant’s apartment and the scene of 

the crime, 20 minutes would have been barely sufficient for defendant to have committed 

the crime. The two women also testified that they and defendant had all suffered from a 

stomach flu that night. This detail is significant because it establishes how these women 

were able to remember the events of that particular night, and it suggests that defendant 

would have been physically unable to commit the crime in a 20-minute period.

I believe that the trial court’s conclusion that counsel’s errors did not affect the 

outcome of the proceedings was clearly erroneous. The trial court’s determination was 

based on a misunderstanding of how an effective alibi defense could have been presented. 

The trial court did not understand that counsel need not have called all three witnesses, 

nor did the trial court understand the relevant timeline. Moreover, I do not believe that 

the trial court properly applied the standard that this Court outlined in People v

Trakhtenberg,

13 i.e., that the prejudice inquiry must necessarily take into account the 

strength or weakness of the prosecution’s case.

CONCLUSION

Given counsel’s dilatory and seemingly impassive preparation, I conclude that 

counsel’s performance was constitutionally deficient under Strickland and that her failure 

to prepare for trial prejudiced defendant. Therefore, I would reverse the judgment of the 

Court of Appeals and remand this case to the Wayne Circuit Court for a new trial.

 

13 Trakhtenberg, 493 Mich 38.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 April 24, 2015

s0421

6

Clerk

MCCORMACK and BERNSTEIN, JJ., join the statement of KELLY, J.