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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Plaintiff-Appellee, UNPUBLISHED February 7, 2017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: G ADOLA , P.J., and S ERVITTO and S HAPIRO , JJ.

P ER C URIAM

.
This case returns to us after remand for a Ginther 1 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 c ase in another state, thereby leaving secondary counsel, whose practice was primarily contract negoti ation 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 People v Love , unpublished opinion per curiam of the Court of Appeals issued July 21, 2016 (Docket Nos. 324992, 325107, & 329 217), p 7-8.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 n oted 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2 People v Love , unpublished opinion per curiam of the Court of Appeals issued July 21, 2016 (Docket Nos. 324992, 325107, & 329217), p 25.-2- Given the trial court’s concern and understandable ire regardin g 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 ass istance of counsel. On remand, the trial court shall take additional test imony 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 assist ance of counsel. We affirm. As our prior opinion sets forth, th is 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 identificat ion. The assaults occurred in a dark room and, as noted, multiple assa ilants 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 c oncluded that he was among the perpetrators and thereafter iden tified 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 tria l. At the hearing, Gleese testified that he was at the party, that he saw defendant there, and that defe ndant was intoxicated and asleep in the living room during the time the assaults occurred. He stat ed that he saw four or five men go into the bedroom where the victim was but defendant was not amo ng 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 defe nse witness list, 3 spoke with him later by phone, and fully advise d Schulman of Gleese’s expected testimony. When asked how she planned to subpoena Gleese w ithout 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 administra tive 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 tha t he never issued a subpoena for him. The trial record reveale d that Schulman had advised t he court that the prosecutor would be producing the four people on defe ndant’s witness list. Palm ore-Bryant also testified regarding

3 The defense witness list contained four names of which Gleese was the only one not listed on the prosecution’s witness list.-3- Schulman’s mid-trial departure stating that she expected him ba ck in time to question the complainant and police officers and that she was not prepared t o do so.

The trial court set forth the f ollowing findings and conclusio ns 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 objec tive standard of reasonableness and that it was reasonably probable that had the standard been met by defense counsel that there w ould have been a different resul t in regard to that particular matter.

* * *

Now, in this particular case, Mr. Darrell Gleese’s name was li sted on the defendant's witness list. A minimal amount of investigation wa s conducted by Ms. Palmore-Bryant which purporte dly included her taking a stat ement from Mr. Gleese. It wasn’t until I had actually asked Ms. Palmore-Bryan t what the nature of this general statement that she made that his testimony was going to be favorable to the defense, that a ny explanation as to how that f avorable 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. Tha t, to my knowledge, had never been brought out before. It may have, but I didn’t r emember hearing it. So how many witnesses did Defendant Love have at the time of tr ial? Purportedly listed four, three of which were the prosecution’s witnesses and one being his, that be ing 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 t o render as effective assistance to his or her cl ient as humanly possible.

With Ms. Palmore-Bryant knowing that Mr. Gleese’s testimony wo uld be helpful to the defense of Mr. Love, explaining that he was asle ep at the time of these terrible acts would have been of crucial importance to re ndering an effective defense on his behalf.

Well, could Mr. Gleese’s testimo ny have been believed? There was nothing to impugn his credibility. There was no history of pre vious criminal behavior on his part. The only attack on his credibility conce ivably would have been that his testimony may have been inconsistent with the tes timony of the prosecution's witnesses presented during the course of the tria l. 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 attorne y should have-4- obtained any -- every conceivable way in which to contact that witness for trial, and given him even a subpoena at that particular juncture, gott en his address, telephone number, driver’s license number, date of birth, any r easonable contacts that could be utilized to comm unicate with that individual. Ta ke a statement from him, a written statement from that person that he would sign so that the testimony would not be changed by that witn ess at the time of trial. And if that witness attempted to change that testimony, change his or her story, th en 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 an d then allowed him to go upon his merry way knowing full well that tha t was the only witness that was going to be of he lp to her then client Mr. Lov e.
Ms. Palmore-Bryant's purported reliance of Mr. Schulman then f ollowing up with Mr. Gleese and preparation of trial is misplaced. How could Mr. Schulman prepare for trial if he was never given any informatio n concerning the specific nature of Mr. Gleese's testimony. And not provided wi th contact information so that Mr. Gleese could be presented at the time o f trial.

Mr. Schulman was the one who filed the defendant’s witness lis t, however. When an attorney files that witness list he or she mu st 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 wit ness is going to be provided at the time of trial. W itness lists actually are supp osed to include the address of the witness, not their phone number but their addres s 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 b elow a reasonable standard concerning t heir profession in representing Mr. Love. Like I said, [such admissions are] fre quently engaged in by other defe nse counsel in this building [at Ginther hearings]. But there was some substance, however, to the statements that they made in tha t 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 standar d of professionalism in regard to both attorneys.

* * *

How could the defense attorneys have assumed that the prosecut ion had obtained statements from everybody including Mr. Gleese? That’ s fanciful, especially in light of the fact that his contact information ha d never been provided to the prosecution.

Both attorneys indicated on the record that Mr. Gleese’s testi mony would have been of benefit to Mr. Love if for no other reason than to call into question-5- 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 hi m and both attorneys indicated that his te stimony would have been necessary, reliable, because there was no way to impeach his testimony and of benefi t 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 r easonable probability of that because he would have called into question the testimony of the prosecution’s witnesses and would have rendered Mr. Love in capability [sic] of engaging in the behavior with w hich he was accused if he was sound asleep on the couch, especially du e to intoxication.

Of course, there’s other questi ons that could be raised if he took the stand concerning when specifically the n efarious 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 too k 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 testimo ny 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 fa r below the standard of any attorney who would be representing a criminal d efendant 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 defe ndant has been deprived of the effective assistance of counsel presents a mixed question of fact and constitutional la w. People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012). The court must first find th e facts and then decide whether those facts constitute a violation of the defendant’s constitut ional 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 fo r clear error, while its consti tutional 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 def inite and firm conviction that a mistake was made. Dendel , 481 Mich at 130. Failure to call a witness can constitute ineffect ive assistance of counsel if it deprives the defendant of a substantial defense. People v Hoyt , 185 Mich App 531, 537-538;-6- 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 tri al court’s findings of fact wer e 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 fa ilure to call Gleese was grounde d 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 pro secution has not articulated on e. 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 si milarly conclude that its judgment that there is a reasonable probability that, but for c ounsel’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 ju dge the credibility of the witnesses” and the other evidence. See MCR 2.612(C) and MCR 6.001(D). Gl eese’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