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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

February 7, 2017 

v Nos. 324992; 329217 

Wayne Circuit Court 

CARLOS MARQUIS LOVE, JR., LC No. 14-002709-FC 

 Defendant-Appellant. 

AFTER REMAND 

Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ. 

PER CURIAM. 

 This case returns to us after remand for a Ginther1 hearing. In our prior opinion we 

reversed the trial court’s order granting a new trial based on its conclusion that trial counsels’ 

actions during trial effectively amounted to a complete denial of counsel at a critical stage 

constituting structural error under United States v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 

2d 657 (1984).2

 The basis for its ruling was the fact that defendant’s primary trial counsel, 

without notice to the court, left mid-trial in order to try a case in another state, thereby leaving 

secondary counsel, whose practice was primarily contract negotiation and who had minimal trial 

experience and no experience with capital cases, in charge of the defense. 

 We concluded that the trial court incorrectly applied Cronic because defendant was 

represented throughout the trial. People v Love, unpublished opinion per curiam of the Court of 

Appeals issued July 21, 2016 (Docket Nos. 324992, 325107, & 329217), p 7-8. Defendant also 

argued that he was entitled to a new trial pursuant to Ginther and Strickland v Washington, 466 

US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). However, as we noted in our prior opinion: 

 

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

2 People v Love, unpublished opinion per curiam of the Court of Appeals issued July 21, 2016 

(Docket Nos. 324992, 325107, & 329217), p 25. 
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Given the trial court’s concern and understandable ire regarding Schulman’s 

unexpected mid-trial departure, these more specific Strickland concerns were 

either not addressed or received only cursory treatment at the hearing. . . . [W]e 

remand for a Ginther hearing to develop a factual record and to determine 

whether Schulman and/or Palmore-Bryant provided ineffective assistance of 

counsel. On remand, the trial court shall take additional testimony and shall make 

findings as to whether counsels’ performance was deficient, and, if so, whether it 

was so prejudicial as to merit a new trial. [Love, unpub op at 8.] 

 On remand, the trial court conducted an extensive evidentiary hearing and at its 

conclusion ruled that defendant was denied the effective assistance of counsel. We affirm. As 

our prior opinion sets forth, this case concerned multiple acts of criminal sexual conduct 

perpetrated upon the victim by several men in the bedroom of an apartment in which a party was 

being held. It is uncontested that defendant was at the party, but he denied participating in the 

assaults. His trial turned largely on the issue of identification. The assaults occurred in a dark 

room and, as noted, multiple assailants were involved. Within hours of the crime, the victim was 

shown a photographic line-up that included defendant’s picture, and she did not identify him as a 

perpetrator. Later, after looking at photos on Facebook, she concluded that he was among the 

perpetrators and thereafter identified him at a corporeal line-up. 

 At the Ginther hearing, defense presented testimony from Darrell Gleese, who was on 

defendant’s witness list, but was not called to testify at trial. At the hearing, Gleese testified that 

he was at the party, that he saw defendant there, and that defendant was intoxicated and asleep in 

the living room during the time the assaults occurred. He stated that he saw four or five men go 

into the bedroom where the victim was but defendant was not among them. He also testified that 

prior to trial he had spoken with attorney Schulman and advised him of the content of his 

potential testimony. 

 Attorney Palmore-Bryant testified that prior to trial she was aware that Gleese was an 

important witness for the defense and that she had spoken with him after the preliminary 

examination where she learned of his recollection of the party and obtained his phone number 

but did not request his address. She placed Gleese on the defense witness list,3

 spoke with him 

later by phone, and fully advised Schulman of Gleese’s expected testimony. When asked how 

she planned to subpoena Gleese without his address, she stated that she did not know how to do 

so and that Schulman told her that “because [Palmore-Bryant was] not familiar with the court 

procedures, that he would take care of those type of administrative things.” She testified that she 

thought Schulman had subpoenaed Gleese. By contrast, Schulman testified that he was not 

informed by Palmore-Bryant of Gleese’s likely testimony and that he never issued a subpoena 

for him. The trial record revealed that Schulman had advised the court that the prosecutor would 

be producing the four people on defendant’s witness list. Palmore-Bryant also testified regarding 

 

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 The defense witness list contained four names of which Gleese was the only one not listed on 

the prosecution’s witness list. 
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Schulman’s mid-trial departure stating that she expected him back in time to question the 

complainant and police officers and that she was not prepared to do so. 

 The trial court set forth the following findings and conclusions in its ruling: 

 The Court has now heard the second [Ginther] Hearing concerning Mr. 

Love's conviction in regard to this case. And, of course, the Court's guided by 

Strickland v Washington[,] 466 US 668, a 1984 case. And also the case of People 

v Frazier[,] 478 Mich 231[, a] 2007 case which indicate that counsel's 

performance in order to be held ineffective fell below an objective standard of 

reasonableness and that it was reasonably probable that had the standard been met 

by defense counsel that there would have been a different result in regard to that 

particular matter. 

* * * 

 Now, in this particular case, Mr. Darrell Gleese’s name was listed on the 

defendant's witness list. A minimal amount of investigation was conducted by 

Ms. Palmore-Bryant which purportedly included her taking a statement from Mr. 

Gleese. It wasn’t until I had actually asked Ms. Palmore-Bryant what the nature 

of this general statement that she made that his testimony was going to be 

favorable to the defense, that any explanation as to how that favorable testimony 

had it been given at the trial would have been of benefit to Mr. Love. And then 

she said that he had said to her that Mr. Love was asleep. That, to my knowledge, 

had never been brought out before. It may have, but I didn’t remember hearing it. 

So how many witnesses did Defendant Love have at the time of trial? 

Purportedly listed four, three of which were the prosecution’s witnesses and one 

being his, that being Mr. Gleese. 

 How important, therefore, would it have been for an attorney, regardless 

of whether or not it's a criminal case, a civil case, a divorce case, every attorney is 

obligated to file a witness list. Every attorney is obligated to render as effective 

assistance to his or her client as humanly possible. 

 With Ms. Palmore-Bryant knowing that Mr. Gleese’s testimony would be 

helpful to the defense of Mr. Love, explaining that he was asleep at the time of 

these terrible acts would have been of crucial importance to rendering an effective 

defense on his behalf. 

 Well, could Mr. Gleese’s testimony have been believed? There was 

nothing to impugn his credibility. There was no history of previous criminal 

behavior on his part. The only attack on his credibility conceivably would have 

been that his testimony may have been inconsistent with the testimony of the 

prosecution's witnesses presented during the course of the trial. But there was 

nothing to impugn him directly. 

 So what should an attorney have done under those circumstances, 

knowing full well that this is a crucial witness? That attorney should have 
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obtained any -- every conceivable way in which to contact that witness for trial, 

and given him even a subpoena at that particular juncture, gotten his address, 

telephone number, driver’s license number, date of birth, any reasonable contacts 

that could be utilized to communicate with that individual. Take a statement from 

him, a written statement from that person that he would sign so that the testimony 

would not be changed by that witness at the time of trial. And if that witness 

attempted to change that testimony, change his or her story, then the statement 

could be used to impeach that person’s credibility and then be treated as a hostile 

witness. 

 Ms. Palmore-Bryant did none of that. She just spoke to him and then 

allowed him to go upon his merry way knowing full well that that was the only 

witness that was going to be of help to her then client Mr. Love. 

 Ms. Palmore-Bryant's purported reliance of Mr. Schulman then following 

up with Mr. Gleese and preparation of trial is misplaced. How could Mr. 

Schulman prepare for trial if he was never given any information concerning the 

specific nature of Mr. Gleese's testimony. And not provided with contact 

information so that Mr. Gleese could be presented at the time of trial. 

 Mr. Schulman was the one who filed the defendant’s witness list, 

however. When an attorney files that witness list he or she must know what that 

witness is going to say at the time of trial and make darn well sure that that 

attorney has the contact information to make sure that that witness is going to be 

provided at the time of trial. Witness lists actually are supposed to include the 

address of the witness, not their phone number but their address as well, that’s the 

reason for it. That wasn't on the witness list. 

* * * 

 Both of them admitted on the record that their behavior fell below a 

reasonable standard concerning their profession in representing Mr. Love. Like I 

said, [such admissions are] frequently engaged in by other defense counsel in this 

building [at Ginther hearings]. But there was some substance, however, to the 

statements that they made in that neither one of them followed up with Mr. Gleese 

to make sure that he was going to testify at the time of trial. So there was a 

specific act on their part that fell below a reasonable standard of professionalism 

in regard to both attorneys. 

* * * 

 How could the defense attorneys have assumed that the prosecution had 

obtained statements from everybody including Mr. Gleese? That’s fanciful, 

especially in light of the fact that his contact information had never been provided 

to the prosecution. 

 Both attorneys indicated on the record that Mr. Gleese’s testimony would 

have been of benefit to Mr. Love if for no other reason than to call into question 
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the credibility of the prosecution’s witnesses as to whether or not Mr. Love had 

participated in the nefarious acts that ultimately occurred. 

* * * 

 So Mr. Gleese’s testimony was a crucial piece of evidence that the defense 

should have presented at the time of trial. And because of not having contact 

information concerning him, they were incapable of providing him and both 

attorneys indicated that his testimony would have been necessary, reliable, 

because there was no way to impeach his testimony and of benefit to Mr. Love. 

* * * 

 Now, if Mr. Gleese had given testimony in regard to this case, would the 

results of these proceedings have been different? There is a reasonable 

probability of that because he would have called into question the testimony of 

the prosecution’s witnesses and would have rendered Mr. Love incapability [sic] 

of engaging in the behavior with which he was accused if he was sound asleep on 

the couch, especially due to intoxication. 

 Of course, there’s other questions that could be raised if he took the stand 

concerning when specifically the nefarious acts had taken place, when the witness 

had seen that Mr. Love was sound asleep on the couch, etcetera, etcetera. So 

timing would have been important at the time that the trial took place concerning 

whether or not Mr. Gleese’s testimony was going to be believed or not. But his 

testimony as given to the Court clearly contradicts the testimony of the 

prosecution’s witnesses and give to Mr. Love a defense whereas before when the 

case was actually tried, he was abandoned by both lawyers. 

 The defense of both of these attorneys was abysmal, falling far below the 

standard of any attorney who would be representing a criminal defendant such as 

a case as this. And there being a reasonable probability that the results of the 

proceeding would have been different. 

 The determination whether a defendant has been deprived of the effective assistance of 

counsel presents a mixed question of fact and constitutional law. People v Trakhtenberg, 493 

Mich 38, 47; 826 NW2d 136 (2012). The court must first find the facts and then decide whether 

those facts constitute a violation of the defendant’s constitutional right to effective assistance of 

counsel. People v Cooper, 309 Mich App 74, 79; 867 NW2d 452 (2015). The trial court’s 

factual findings are reviewed for clear error, while its constitutional determinations are reviewed 

de novo. Trakhtenberg, 493 Mich at 47. Regard should be given to the trial court’s opportunity 

to assess the credibility of the witnesses who appeared before it. People v Dendel, 481 Mich 

114, 130; 748 NW2d 859, amended 481 Mich 1201 (2008), MCR 2.613(C), and MCR 6.001(D). 

A finding is clearly erroneous when, although there is evidence to support it, this Court, on the 

whole record, is left with a definite and firm conviction that a mistake was made. Dendel, 481 

Mich at 130. Failure to call a witness can constitute ineffective assistance of counsel if it 

deprives the defendant of a substantial defense. People v Hoyt, 185 Mich App 531, 537-538; 
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462 NW2d 793 (1990). “A substantial defense is one that might have made a difference in the 

outcome of the trial.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009) (internal 

quotations and citation omitted). 

 After a review of the trial record and the hearing transcript, we are not left with a definite 

and firm conviction that the trial court’s findings of fact were in error. While this Court will not 

second guess an attorney’s trial strategy, People v Eliason, 300 Mich App 293, 300; 833 NW2d 

357 (2013), modified on other grounds People v Carp, 496 Mich 440, 526-528; 852 NW2d 801 

(2014), it is clear that the failure to call Gleese was grounded in error and miscommunication, 

not strategic considerations, and that it deprived defendant of a substantial defense. At the 

hearing, neither of the defense attorneys could offer any basis in trial strategy for failing to call 

Gleese as a witness, and the prosecution has not articulated one. The trial court’s conclusion that 

this error, along with the others mentioned in its full opinion, fell below an objective standard of 

reasonable professional norms was not clearly erroneous. We similarly conclude that its 

judgment that there is a reasonable probability that, but for counsel’s error, the result of the 

proceedings would have been different was not clearly erroneous. The trial court was present 

throughout the trial and had a “special opportunity . . . to judge the credibility of the witnesses” 

and the other evidence. See MCR 2.612(C) and MCR 6.001(D). Gleese’s testimony was clearly 

exculpatory, amounting to alibi testimony, and no other witness provided testimony as to which 

Gleese’s testimony would have been cumulative. 

 Affirmed. 

/s/ Michael F. Gadola 

/s/ Deborah A. Servitto 

/s/ Douglas B. Shapiro