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

revision until final publication in the Michigan Appeals Reports.

-1-

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-Appellee/Cross-Appellant,

UNPUBLISHED

July 25, 2019

v No. 337860

Calhoun Circuit Court

SHAWN DELANO BROWN, LC No. 2010-001368-FC

Defendant-Appellant/CrossAppellee.

Before: GLEICHER, P.J., and STEPHENS and O’BRIEN, JJ.

PER CURIAM.

Defendant appeals his 2010 jury trial convictions for voluntary manslaughter, MCL 

750.321, and second-degree child abuse, MCL 750.136b, by way of the trial court’s 2017 order 

that granted his motion to reinstate his direct appeal due to ineffective assistance of appellate 

counsel. Defendant was previously sentenced as a third-habitual offender, MCL 769.11, to 100 

to 360 months’ imprisonment on the manslaughter conviction and 36 to 96 months’ 

imprisonment on the child abuse conviction. In defendant’s appeal, we reverse the defendant’s 

convictions and sentence and remand for a new trial. 

The prosecution cross-appeals the trial court’s March 10, 2017 Order Reissuing Judgment 

of Sentence that reissued defendant’s 2010 judgment of sentence and reinstated defendant’s 

direct appeal of right based on a determination that defendant received ineffective assistance of 

appellate counsel. In the prosecution’s cross-appeal, we affirm.

I. BACKGROUND

Defendant’s convictions stem from the death of his five-month old son. Defendant was 

the primary caretaker of his son while the child’s mother worked. On January 22, 2010, 

defendant told law enforcement and family members that while feeding his son, the child started 

choking. He patted him on the back, and the choking did not stop. He patted harder, and the 

child stopped breathing. Prior to this incident, the child was healthy. A family friend drove 

defendant and the child to the hospital. The child was later transported by ambulance to a 

children’s hospital. 
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Defense counsel, who was retained, filed a pretrial motion for funds for a court appointed 

expert to counter the testimony from the prosecution’s medical experts and to present an 

alternative cause for the child’s death. The court found that defense counsel’s motion, as written, 

was insufficient to justify the appointment of funds essentially to find out whether an expert 

would be necessary. The court ruled that it was not convinced that the court was required to 

expend funds for this purpose and it denied the motion.

At trial, radiologists and emergency physicians testified that the child suffered injury to 

his lungs, dilated pupils, retinal hemorrhaging, and subdural hematomas. Medical experts 

testified that the child’s injuries were consistent with both abusive head trauma (AHT) and nonaccidental head trauma because there was nothing provided in the child’s history that could 

account for his injuries. A forensic pathologist testified that the child’s cause of death was 

traumatic brain injury. The pathologist further testified that bleeding in the back of the eye was 

an indication of injury, but “[t]he exact mechanism of how that happens is still somewhat 

uncertain[.]” The pathologist opined that all of the child’s injuries resulted from impact, that 

shaking was a potential mechanism and that if she were to attach a syndrome to this, it would be 

“Shaken-Impact Syndrome.” Defendant presented no witnesses and he was found guilty of the 

crimes charged. This Court affirmed defendant’s convictions on appeal. People v Shawn 

Delano Brown, unpublished opinion per curiam of the Court of Appeals, issued January 24, 2012 

(Docket No. 300939).

In February 2017, the trial court found that defendant was denied his right to counsel for 

his appeal by right when appellate counsel submitted defendant’s appeal brief without reviewing 

a significant portion of the trial record. The neglected August 13, 2010 trial transcript included 

testimony from the forensic pathologist regarding the cause of death and from the child’s 

primary care physician. The court concluded appellate counsel could not have provided 

meaningful appellate review of the trial court record without this transcript. In May 2017, 

defendant moved in the trial court for a new trial or an evidentiary hearing under MCR 7.208(B). 

The court subsequently denied defendant’s request and in August 2017, defendant filed a timely 

motion to remand for a Ginther1 hearing with this Court that argued the trial court gave no 

substantive reason for denying relief and for declining to hold an evidentiary hearing. We 

granted the motion and retained jurisdiction. People v Brown, unpublished order of the Court of 

Appeals, entered September 20, 2017 (Docket No. 337860). After holding the required hearing 

in January 2018, the trial court denied defendant’s motion for a new trial. In August 2018, 

defendant filed a Supplemental Brief for this Court’s review that challenged the trial court’s 

original denial of his motion for expert funds, the effective assistance of his counsel to obtain a 

trial expert, and the trial court’s denial of a new trial on remand after defendant’s evidentiary 

hearing. These are the issues now before the Court.

II. EXPERT WITNESS FUNDS

A. STANDARD OF REVIEW

 1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-3-

We review constitutional challenges, People v McCuller, 479 Mich 672, 681; 739 NW2d 

563 (2007), and questions of statutory interpretation de novo, People v Anstey, 476 Mich 436, 

442; 719 NW2d 579 (2006). 

We review the trial court’s decision on a motion for a new trial for an abuse of discretion. 

People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). We also review the trial court’s 

denial of expert funds for an abuse of discretion. People v Carson, 217 Mich App 801, 807; 553 

NW2d 1 (1996), readopted in pertinent part by a special panel in People v Carson, 220 Mich 

App 662, 678; 560 NW2d 657 (1996). “An abuse of discretion occurs when the court chooses an 

outcome that falls outside the range of reasonable and principled outcomes.” People v Unger, 

278 Mich App 210, 217; 749 NW2d 272 (2008). 

B. ANALYSIS

Defendant argues that the trial court abused its discretion in denying his 2010 pretrial 

motion for funds for an expert witness on three grounds: 1) The trial court’s evaluation of 

defendant’s request under MCL 775.15 was an error of law; 2) The trial court erroneously 

determined that defendant was not indigent; and 3) The trial court’s refusal to grant expert 

witness funds interfered with defendant’s constitutional right to the effective assistance of 

counsel.

In 2010, courts reviewed a defendant’s request for public funds for an expert under MCL 

775.15. That statute provided that,

If any person accused of any crime or misdemeanor, and about to be tried therefor 

in any court of record in this state, shall make it appear to the satisfaction of the 

judge presiding over the court wherein such trial is to be had, by his own oath, or 

otherwise, that there is a material witness in his favor within the jurisdiction of the 

court, without whose testimony he cannot safely proceed to a trial, giving the 

name and place of residence of such witness, and that such accused person is poor 

and has not and cannot obtain the means to procure the attendance of such witness 

at the place of trial, the judge in his discretion may, at a time when the 

prosecuting officer of the county is present, make an order that a subpoena be 

issued from such court for such witness in his favor, and that it be served by the 

proper officer of the court. And it shall be the duty of such officer to serve such 

subpoena, and of the witness or witnesses named therein to attend the trial, and 

the officer serving such subpoena shall be paid therefor, and the witness therein 

named shall be paid for attending such trial, in the same manner as if such witness 

or witnesses had been subpoenaed in behalf of the people. [MCL 775.15].

The trial court also had at its disposal the decisions in People v Jacobsen, 448 Mich 639; 532 

NW2d 838 (1995), and People v Tanner, 469 Mich 437; 671 NW2d 728 (2003). In order to be 

entitled to public funds for an expert witness, Jacobsen interpreted MCL 775.15 to require 

indigent defendants to “show a nexus between the facts of the case and the need for an expert.” 

Id. at 641 (citation omitted). Later in Tanner, the Court added that a defendant needed to show 

the expert would benefit the defense and held that it was insufficient for defendant to show a 

mere possibility that the expert would be helpful. Id. at 442-443.
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People v Kennedy, 502 Mich 206; 917 NW2d 355 (2018), overruled Jacobsen and 

Tanner, and held that MCL 775.15 does not apply to an indigent defendant’s request for expert 

funding. It held that the request was instead controlled by the law from Ake v Oklahoma. Under 

Ake, courts were to determine entitlement to an expert using the reasonable probability standard 

from Moore v Kemp, 809 F2d 702 (CA 11, 1987). The Ake Court held that by its express terms, 

MCL 775.15 applied to the court’s assistance in subpoenaing witnesses for the defense and not 

the grant of public funds to the defendant for expert witnesses. Kennedy, 502 Mich at 222. It 

further found that the statute did not meet the constitutional standard from Ake that required the 

assistance of an expert for uses beyond trial testimony and, additionally, for the preparation and 

presentation of a defense. Id. at 223. It overruled Jacobsen and Tanner to the extent that they 

held MCL 775.15 was applicable to the indigent defendant’s request for expert funds. Kennedy

also noted that neither Jacobsen nor Tanner considered Ake. Id. at 225. Looking forward, the 

Court considered the standard to which defendant would be held in order to be successful in his 

request for an expert. The Court adopted the standard from Moore v Kemp, supra. Under 

Moore, an indigent “defendant must show the trial court that there exists a reasonable probability 

both that an expert would be of assistance to the defense and that denial of expert assistance 

would result in a fundamentally unfair trial.” 809 F2d at 712. According to Moore, to meet this 

threshold,

[A] defendant must demonstrate something more than a mere possibility of 

assistance from a requested expert; due process does not require the government 

automatically to provide indigent defendants with expert assistance upon demand. 

Rather ... a defendant must show the trial court that there exists a reasonable 

probability both that an expert would be of assistance to the defense and that 

denial of expert assistance would result in a fundamentally unfair trial. Thus, if a 

defendant wants an expert to assist his attorney in confronting the prosecution’s 

proof—by preparing counsel to cross-examine the prosecution’s experts or by 

providing rebuttal testimony—he must inform the court of the nature of the 

prosecution’s case and how the requested expert would be useful. At the very 

least, must inform the court of the nature of the prosecution’s case and how the 

requested expert would be useful. At the very least, he must inform the trial court 

about the nature of the crime and the evidence linking him to the crime. By the 

same token, if the defendant desires the appointment of an expert so that he can 

present an affirmative defense, such as insanity, he must demonstrate a substantial 

basis for the defense, as the defendant did in Ake. In each instance, the 

defendant’s showing must also include a specific description of the expert or 

experts desired; without this basic information, the court would be unable to grant 

the defendant’s motion, because the court would not know what type of expert 

was needed. In addition, the defendant should inform the court why the particular 

expert is necessary. We recognize that defense counsel may be unfamiliar with 

the specific scientific theories implicated in a case and therefore cannot be 

expected to provide the court with a detailed analysis of the assistance an 

appointed expert might provide. We do believe, however, that defense counsel is 

obligated to inform himself about the specific scientific area in question and to 

provide the court with as much information as possible concerning the usefulness 

of the requested expert to the defense’s case. [Kennedy, 502 Mich at 227 quoting 

Moore, 809 F2d at 712.]. 
-5-

At defendant’s 2010 motion hearing for funds for an expert, the court cited two reasons 

for denying defendant’s motion. The first was that defendant’s request was untimely. The court 

noted that it was obvious from the filing of the complaint that this case was going to involve 

experts and it concerned the court that defendant was asking for one so late. The second reason 

was that defendant failed to demonstrate that Dr. Laurence Simson would be helpful. The court 

noted that this second reason would have applied even in the instance where defense counsel was 

appointed. The court found that defendant’s request failed to demonstrate something more than 

a mere possibility of assistance from the requested expert. Neither of these reasons suggest, as 

defendant argues, that the court denied defendant’s request based on the fact that defense counsel 

was retained. In 2018, on remand from this Court, the trial court upheld its 2010 decision. It 

again noted that defendant failed to demonstrate anything more than a mere possibility of 

assistance from an expert or that a material expert in his favor existed within the jurisdiction of 

the court. 

The court’s 2018 opinion and order also analyzed defendant’s request for expert funds 

under MCL 775.15 despite Kennedy having been decided at the time of the opinion’s drafting. 

Despite the holding from Kennedy that requests like defendants are no longer to be decided 

under MCL 775.15, Moore retained some of the same requirements of the statute. The Moore

standard eliminated the need for counsel “to provide the court with a detailed analysis of the 

assistance an appointed expert might provide.” Moore, 809 F2d at 712. However, Moore does 

ask a defendant to “demonstrate something more than a mere possibility of assistance from a 

requested expert” and to “show the trial court that there exists a reasonable probability both that 

an expert would be of assistance to the defense and that denial of expert assistance would result 

in a fundamentally unfair trial.” Id. This trial court’s 2010 decision on the defendant’s motion 

and 2017 opinion on remand, although it examined the issue under MCL 775.15, decided 

defendant’s request for expert funds under principles maintained in Moore. Therefore, the trial 

court’s evaluation of defendant’s request under MCL 775.15 was not an error of law.

The trial court also did not abuse its discretion when it denied defendant’s motion for 

expert witness funds. Defendant’s motion contained 12 points and was without an 

accompanying brief. The motion stated that the charge against the defendant concerned 

unexplained injuries in the form of head trauma and that prosecution’s case rested largely on 

technical testimony from medical experts. It stated that defendant “is in need of assistance of an 

expert to counteract the testimony of prosecution experts” and “expects to be able to name the 

doctor and the amount required at hearing.” At the July 26, 2010 motion hearing, defense 

counsel stated that after meeting with other forensic pathologists, he was referred to Dr. 

Simpson2. Defense counsel stated that the court was aware of Dr. Simpson from his previous 

testimony for the prosecution. Counsel relied on Dr. Simpson’s curriculum vita and fee schedule 

when he asked for $3,000 to cover the doctor’s retainer. Missing from defense counsel’s motion 

and argument was whether this expert would be of assistance to the defense. There was no 

demonstration of more than the mere possibility of assistance from the requested expert, which 

was a requirement under MCL 775.15 and Moore. At the post-remand evidentiary hearing, 

defense counsel confirmed that he had no expert to aid the defense when he testified that Dr. 

 2 Simpson is also referred to as Simson by the parties.
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Simpson ultimately agreed with the forensic pathologist’s findings and was not comfortable with 

testifying against the forensic pathologist because he had trained her. Neither the court nor the 

parties were oblivious to the important role an expert would play in defendant’s case. However, 

under the facts as they were presented to the court, its decision to deny defendant’s motion was 

not outside the range of reasonable and principled outcomes.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

A. STANDARD OF REVIEW

“Whether a defendant received ineffective assistance of trial counsel presents a mixed 

question of fact and constitutional law.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 

676 (2011), citing People v Grant, 470 Mich 477, 481; 684 NW2d 686 (2004). We review the 

trial court’s findings of fact for clear error. Armstrong, 490 Mich at 289; MCR 2.613(C), 

6.001(D). “Clear error exists when the reviewing court is left with the definite and firm 

conviction that a mistake has been made.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 

528 (1993). “Questions of constitutional law are reviewed by this Court de novo.” People v 

LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

We review the trial court’s decision on a motion for a new trial for an abuse of discretion. 

Cress, 468 Mich at 691. “An abuse of discretion occurs when the court chooses an outcome that 

falls outside the range of reasonable and principled outcomes.” Unger, 278 Mich App at 217. 

B. ANALYSIS

To prove ineffective assistance of counsel, defendant must show that “(1) counsel’s 

performance was below an objective standard of reasonableness under professional norms and 

(2) there is a reasonable probability that, if not for counsel’s errors, the result would have been 

different and the result that did occur was fundamentally unfair or unreliable.” People v Odom, 

276 Mich App 407, 415; 740 NW2d 557 (2007). “[E]ffective assistance of counsel is 

presumed[.]” People v Schrauben, 314 Mich App 181, 190; 886 NW2d 173 (2016). 

“[D]efendant has the burden of establishing the factual predicate for his claim of ineffective 

assistance of counsel[.]” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

1. FAILURE TO SECURE FUNDS FOR AN EXPERT

Defendant argues that trial counsel was ineffective for failing to make the proper showing 

to secure funds for an expert. He further argues that counsel’s failure prejudiced him by denying 

him an expert at trial. We agree.

In People v Ackley, 497 Mich 381; 870 NW2d 858 (2015), the three-year-old daughter of 

defendant’s girlfriend died while in defendant’s care. At trial, the defendant argued that the 

child’s death was the result of her fall from the bed, while the prosecution presented experts who 

testified that the child died from an abusive head injury that was caused by non-accidental 

shaking, blunt force trauma or both. Defense counsel was initially given $1,500 to retain an 

expert witness. He engaged one expert witness who specifically told him that he did not believe 
-7-

the defense theory was possible and gave him the name of another expert who would support 

defendant. Defense counsel never contacted the other expert or any other expert. 3 The 

defendant was found guilty. On appeal, he argued his trial counsel was ineffective for failing to 

“meaningfully challenge the prosecution’s expert testimony regarding the cause of the child's 

death[.]” Id. at 384-385. Defense counsel testified at the evidentiary hearing, that he only 

contacted one expert who indicated that he was “not the best person” for the defense. Id. at 358. 

The Court held “defense counsel’s failure to attempt to engage a single expert witness to rebut 

the prosecution’s expert testimony,” and his failure “to consult an expert with the scientific 

training to support the defendant’s theory of the case, fell below an objective standard of 

reasonableness, and created a reasonable probability that this error affected the outcome of the 

defendant’s trial.” Id. at 383. It further held that 

In this case involving such “substantial contradiction in a given area of expertise,” 

counsel’s failure to engage “expert testimony rebutting the state’s expert 

testimony” and to become “versed in [the] technical subject matter” most critical 

to the case resulted in two things: a defense theory without objective, expert 

testimonial support, and a defense counsel insufficiently equipped to challenge 

the prosecution's experts because he possessed only Dr. Hunter's reluctant and 

admittedly ill-suited input as his guide. [Id. at 393].

Similarly, defense counsel here failed to engage or consult with an expert witness “versed 

in [the] technical subject matter” to rebut the prosecution’s expert testimony. He spoke with a 

friend whose expertise was vascular surgery and two local AHT experts who supported the 

prosecution’s theory of the case. He made no further inquiry and failed, for example, to contact 

the State Appellate Defender Office to find other experts. At the evidentiary hearing, defense 

counsel testified that other than a lack of funds, he had no strategic reason for not calling an 

expert. Defense counsel’s failure to identify and consult with an expert to support the 

defendant’s theory of the case made him unprepared to seek medical expert funds from the court.

The failure to properly articulate the basis for an expert and failure to consult, seek other 

resources, or call an expert amounted to ineffective assistance of counsel and was outcome 

determinative. The prosecution presented eight medical experts most of whom presented 

testimony that was heavily laden with medical terminology and complex medical processes. 

They collectively gave testimony that Shawn, Jr. had suffered non-accidental AHT and the 

prosecution’s theory was that defendant was the baby’s only caretaker at the time of injury and 

the baby was healthy up until the time of injury. Defense counsel’s cross-examination of the 

witnesses was less than effective with counsel asking what certain medical terms meant in a 

manner which seemed designed as much to educate himself as it was intended to persuade or 

educate the jury. He posed multiple hypotheticals that were rejected by the experts and offered 

no record basis for those hypotheses. In contrast, the experts presented at the remand hearing 

and by affidavit offered alternative analyses of the child’s disease progression and its etiology. 

 3 People v Ackley, unpublished per curiam opinion of the Court of Appeals, issued April 22, 

2014 (Docket No. 318303).
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On appeal, defendant presents the affidavits of doctors Mark Shuman and Scheller. Dr. Scheller 

also testified at defendant’s evidentiary hearing on remand. Dr. Shuman opined,

[a]fter completing my review, I conclude that Shawn Jr. had a chronic subdural 

hematoma, most likely caused by a traumatic injury, which was present at least a 

week before his death on January 24, 2010. I also conclude that Shawn Jr.'s 

chronic subdural hematoma re-bled, which caused an increase in intracranial 

pressure, which resulted in a fatal restriction of the flow of blood and oxygen to 

his brain. A re-bleed could have been spontaneous or it could have been caused 

by a minor trauma, such as choking on formula or coughing. Whatever trauma 

occurred, it is not scientifically possible to definitively conclude whether the 

trauma was intentional or accidental, or exactly when it happened. 

At the evidentiary hearing, Dr. Scheller testified Shawn, Jr. had a chronic subdural hematoma 

that spontaneously re-bled causing bleeding on the surface of the brain, disruption in circulation, 

“seizures, collapse, and ultimately his death.” Shawn, Jr.’s chronic subdural hematoma was 

documented in medical records. This documentation, coupled with either doctor’s testimony, 

would have provided support for the defense theory and given the jury another plausible option 

to consider as to Shawn, Jr.’s cause of death. Beyond their trial testimony, these doctors could 

have fully equipped a defense counsel with the medical understanding of the opinions of the 

prosecution’s experts, and equip counsel to challenge their opinions and points of weakness. 

There is a reasonable probability that had defendant been armed with an expert of his own, the 

outcome of his trial would have been different. The trial court’s finding that defense counsel 

performed reasonably was clearly erroneous. 

The prosecution has submitted to this Court a Consensus Statement on Abusive Head 

Trauma in Infants and Young Children, Pediatric Radiology, Arabinda Kumar Choudhary, et al. 

(April 2018), as supplemental authority. The prosecution argues that the Consensus Statement is 

evidence that there is no controversy concerning the medical validity of the existence of shaken 

baby syndrome or abusive head trauma. From this statement, the prosecution argues that 

defendant cannot show that he was convicted based on scientific evidence that was 

fundamentally flawed, irresponsible and misleading. The prosecution misunderstands the 

defense argument. Defendant contends that he does not contest the existence of abusive head 

trauma, only whether abuse is the only possible diagnosis in this case. 

The Consensus Statement is informative, but not dispositive of whether defendant should 

be allowed to question the AHT diagnosis involving his son. Further, it does not close the debate 

on whether the injuries suffered by a particular child are the result of AHT or some other 

possible cause, nor does it solve who caused those injuries.4

2. FAILURE TO STATE THE PROPER BASIS TO EXCLUDE EVIDENCE

 4 See for example, Keith A. Findley, et al, Feigned Consensus: Usurping the Law in Shaken 

Baby Syndrome / Abusive Head Trauma Prosecutions, (University of Wisconsin Law School 

Legal Studies Research Paper Series No. 1461) (available at https://ssrn.com/abstract=3328996).
-9-

 “Decisions regarding what evidence to present and whether to call or question witnesses 

are presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76; 601 NW2d 

887 (1999). “Defense counsel’s failure to present certain evidence will only constitute 

ineffective assistance of counsel if it deprived defendant of a substantial defense.” People v 

Dunigan, 299 Mich App 579, 589; 831 NW2d 243 (2013). “ ‘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), quoting People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 

(1990).

At trial, defense counsel wanted to play Reinstein’s recorded interview of defendant 

during Reinstein’s testimony to impeach the testimony of Reinstein that defendant was “laid 

back,” and to contradict other testimony presented by the prosecution that defendant was 

apathetic to his son’s condition. Counsel stated, “Your Honor, at this time I’d like to play that 

CD and I guess I need to admit it some way.” At first, the prosecution had no objection to the 

recording, but after a recess stated that it was inadmissible hearsay under MRE 801(d)(2) 

because it was not being offered against an opposing party. Defense counsel unsuccessfully 

argued for admission under MRE 801(d)(2), MRE 803(24), and MRE 803(2). In its ruling to 

exclude, the court explained to defendant that the audio recorded statement was not subject to 

cross-examination whereas defendant was present and could testify to the statement and be 

subject to cross-examination. The court held that the recording was hearsay offered for the truth 

of the matters asserted and there was no exception to grant its admissibility. The court informed 

the jury that the CD was inadmissible and would not be played. The jury was instructed not to 

speculate what may or may not have been on the recording.

Defense counsel was unprepared to admit the recording that was integral to his strategy to 

present the defendant as a loving parent who could not harm his son. An argument could have 

been made for admission of the recording in whole or in part under MRE 803(3). Under that 

exception to the hearsay rule, “statement[s] of the declarant’s then-existing state of mind, 

emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, 

pain, and bodily health)” can be admitted. MRE 803(3). Defense counsel had no plan for its 

admission and unreasonably relied on the acquiescence of the prosecutor. Such performance was 

deficient. 

In Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the 

United States Supreme Court established a “reasonable probability” standard for determining 

prejudice due to an attorney’s ineffective performance. Under that standard, defendant “need not 

show that counsel’s deficient conduct more likely than not altered the outcome in the case,” but 

rather must demonstrate “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.” Id. at 693-694. See also People v 

Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018).

We acknowledge that defendant’s response to Shawn, Jr.’s death would have changed his 

character before the jury, but not the medical testimony. But, the relevant question is whether 

the trial was “fundamentally unfair” or the jury’s verdict “unreliable.” The context of counsel’s 

failure to admit the audiotape highlights the unfairness of defendant’s trial and the unreliability 

of the verdict.
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The prosecution presented the testimony of James Snider, a Children’s Protective 

Services worker who interviewed defendant in the baby’s hospital room, where the unconscious 

child lay, breathing on a ventilator. According to Snider, defendant was “pretty lighthearted” 

during their conversation, “bouncing around on his feet, smiling, kind of laughing with us.” 

Snider agreed with the prosecutor’s suggestion that at some point, he and defendant exchanged 

“fist-bumps.” Although defendant occasionally interacted with his child, Snider claimed, 

“[t]here wasn’t a lot of emotionality to it.” To counteract this devastating testimony the defense 

called two witnesses: Nadine Brown, defendant’s mother, and Reinstein, who had informed 

defendant of his son’s death in the conversation memorialized in the audiotape. Nadine testified 

that she could tell that her son was “distraught and worried” about the baby’s condition, despite 

that he usually did not “show emotions,” and never had. Counsel next called Reinstein and 

successfully laid a foundation for the admission of the audiotape. However, as discussed, the 

tape was initially admitted, then excluded by the court based on it being hearsay. The jury also 

heard the court’s instruction that it was forbidden from speculating about the tape’s contents. 

Thus, the jury heard one account of the defendant’s demeanor in this time of crises from his 

mother, an arguable biased witness, and a completely different version of his emotional affect 

from a perceived neutral observer. The tape was the unheard third “witness.”

In evaluating prejudice we note that despite the number of prosecution witnesses 

including experts and their unified position that defendant had deliberately shaken his baby so 

violently as to cause a severe brain injury, the jury rejected that defendant had committed murder 

and instead convicted him of voluntary manslaughter and second, rather than first-degree, child 

abuse. 

The touchstone for prejudice is a reasonable probability of a different result. Counsel 

failed to articulate the basis for admission of the tape showing the defendant’s affect upon 

hearing what for most would be devastating news. Had the jury learned that defendant was 

emotionally overcome on hearing of his son’s death, a reasonable probability exists that the jury 

would have concluded that defendant lacked any intent to kill or seriously injure his child. 

Trial counsel’s twin errors of failing to articulate the basis for expert witness funding 

coupled with defense counsel’s failure to secure admission of the videotape seriously undermine 

our confidence in the outcome of this case. Defense counsel had no strategy for obtaining an 

acquittal other than his superficially informed cross-examination and his largely unsuccessful 

effort to prove that defendant was a good man. As discussed elsewhere in this opinion, other 

evidence existed that the child’s brain injury was not caused by trauma. It is reasonably probable 

that but for counsel’s errors an entirely different trial would have unfolded.

IV. ADDITIONAL CLAIMS OF RELIEF

A. STANDARD OF REVIEW

We review constitutional issues, Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767 

(2003), and the interpretation and application of statutes de novo, People v Al-Saiegh, 244 Mich 

App 391, 394; 625 NW2d 419 (2001).
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“We review a trial court’s decision on a motion for relief from judgment for an abuse of 

discretion and its findings of facts supporting its decision for clear error.” People v Swain, 288 

Mich App 609, 628–629; 794 NW2d 92 (2010) (internal citation omitted). We also review for 

an abuse of discretion the trial court’s decision on a motion for a new trial. Cress, 468 Mich at 

691. “An abuse of discretion occurs when the court chooses an outcome that falls outside the 

range of reasonable and principled outcomes.” Unger, 278 Mich App at 217. “A factual finding 

is clearly erroneous if it leaves the Court with a definite and firm conviction that the trial court 

made a mistake.” People v Steele, 292 Mich App 308, 313; 806 NW2d 753 (2011).

B. ANALYSIS

1. ACTUAL INNOCENCE

Defendant argues that he is also entitled to relief because he is actually innocent. 

“Generally, to relieve a defendant from a judgment of conviction, a defendant must prove ‘good 

cause’ and ‘actual prejudice,’ MCR 6.508(D)(3), but if the trial court concludes that there is a 

‘significant possibility’ that the defendant is innocent, the court may waive the ‘good cause’ 

requirement.” Swain, 288 Mich App at 639. To establish actual innocence, the defendant “must 

show that it is more likely than not that no reasonable juror would have found [him] guilty 

beyond a reasonable doubt.” Schlup v Delo, 513 US 298, 327; 115 S Ct 851; 130 L Ed 2d 808 

(1995). Defendant’s claim of actual innocence is based on his determination of the validity of 

the medical evidence used to convict him. He argues that he presented “compelling scientific 

evidence that shows that the symptoms his son presented could have been the result of any 

number of causes other than abuse.” In its opinion and order after remand, the trial court found 

that Dr. Scheller’s testimony regarding an alternative diagnosis did not establish that no 

reasonable juror would find the defendant guilty and held that actual innocence was not shown 

by the mere possibility that the injuries resulted from another cause. We agree. Dr. Scheller’s 

testimony, had it been admitted in this trial, would not have proved defendant’s innocence,

although it might have undermined the credibility of the testimony from the prosecution’s 

experts. We too cannot say that based upon Dr. Scheller’s testimony that no reasonable juror 

could have found the defendant guilty.

Further, MCR 6.508 was modeled after federal habeas corpus law, People v Reed, 449 

Mich 375, 379-380; 535 NW2d 496 (1995), and current habeas law does not recognize a 

freestanding claim of actual innocence. See Herrera v Collins, 506 US 390, 400; 113 S Ct 853; 

122 L Ed 2d 203 (1993) (“Claims of actual innocence based on newly discovered evidence have 

never been held to state a ground for federal habeas relief absent an independent constitutional 

violation occurring in the underlying state criminal proceeding.”).

2. MCL 770.1

Defendant also argues that he is entitled to relief under MCL 770.1 because the trial 

errors in his case resulted in an “unfair fight.” MCL 770.1 provides that “[t]he judge of a court 

in which the trial of an offense is held may grant a new trial to the defendant, for any cause for 

which by law a new trial may be granted, or when it appears to the court that justice has not been 

done, and on the terms or conditions as the court directs.” This is a different version of the 

argument presented in Issue III regarding defendant being denied in one form or the other the 
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assistance of a medical expert at trial. We have already addressed the issue of defendant’s claim 

for funds for a medical expert and recommended that defendant receive a new trial on that basis. 

V. RELIEF FROM JUDGMENT

A. STANDARD OF REVIEW

“We review a trial court’s decision on a motion for relief from judgment for an abuse of 

discretion and its findings of facts supporting its decision for clear error.” Swain, 288 Mich App 

at 628–629 (internal citation omitted). A trial court abuses its discretion when it misapprehends 

the law to be applied. Kalaj v Khan, 295 Mich App 420, 425; 820 NW2d 223 (2012). “A factual 

finding is clearly erroneous if it leaves the Court with a definite and firm conviction that the trial 

court made a mistake.” Steele, 292 Mich App at 313.

The interpretation of a court rule is a question of law that is reviewed de novo. People v 

Hawkins, 468 Mich 488, 497; 668 NW2d 602 (2003).

B. ANALYSIS

In August 2016, defendant filed a motion seeking reissuance of his judgment of sentence 

and reinstatement of his direct appeal under Cronic or in the alternative, relief from judgment 

under MCR 6.500. In February 2017, the trial court granted relief under Cronic, finding that 

“counsel entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing” 

thereby denying defendant his Sixth Amendment right to counsel which made “the adversary 

process itself presumptively unreliable.” In its cross-appeal, the prosecution argues that US v 

Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984), was inapplicable to 

defendant’s case where defendant was not denied the complete assistance of appellate counsel, 

and that the court should have reviewed defendant’s motion under MCR 6.508 and denied relief.

“If the defendant is no longer entitled to appeal by right or by leave, the defendant may 

seek relief pursuant to the procedure set forth in subchapter 6.500.” MCR 6.431(A)(4). “The 

defendant has the burden of establishing entitlement to the relief requested.” MCR 6.508(D). 

The defendant is not entitled to relief if the motion 

(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, 

and

(b) actual prejudice from the alleged irregularities that support the claim for relief. 

As used in this subrule, “actual prejudice” means that,

(i) in a conviction following a trial, but for the alleged error, the defendant would 

have had a reasonably likely chance of acquittal[.] [MCR 6.508(D)(3)].
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“ ‘Good cause’ can be established by proving ineffective assistance of counsel.” People v 

Kimble, 470 Mich 305, 314; 684 NW2d 669 (2004).

Generally, claims of ineffective assistance of counsel are reviewed under the Strickland

standard, which this Court adopted in People v Pickens, 446 Mich 298; 521 NW2d 797 (1994), 

and requires a reviewing court to determine “(1) whether counsel’s performance was objectively 

unreasonable, and (2) whether the defendant was prejudiced by counsel’s defective 

performance.” People v Mitchell, 454 Mich 145, 164; 560 NW2d 600 (1997). However, in 

Cronic, 466 US at 659-662, the United States Supreme Court identified “three rare situations in 

which the attorney’s performance is so deficient that prejudice is presumed.” People v Frazier, 

478 Mich 231, 243; 733 NW2d 713 (2007). The first situation was when the defendant was 

completely denied counsel at a critical stage of trial by either counsel being “totally absent” or 

when counsel was “prevented from assisting the accused.” Cronic, 466 US at 659 n 25. The 

second situation arises “when counsel entirely fail[ed] to subject the prosecution’s case to 

meaningful adversarial testing[.]” Id. at 659. The third situation is a circumstance where, 

“although counsel is available to assist the accused during trial, the likelihood that any lawyer, 

even a fully competent one, could provide effective assistance is so small that a presumption of 

prejudice is appropriate.” Id. at 659-660.

In Bell v Cone, 535 US 685; 122 S Ct 1843; 152 L Ed 2d 914 (2002), the Supreme Court 

defined the failure to subject the prosecution’s case to meaningful adversarial testing:

When we spoke in Cronic of the possibility of presuming prejudice based on an 

attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s 

failure must be complete. We said “if counsel entirely fails to subject the 

prosecution’s case to meaningful adversarial testing.” Cronic, supra, at 659, 104 

S.Ct. 2039 (emphasis added). Here, respondent’s argument is not that his counsel 

failed to oppose the prosecution throughout the sentencing proceeding as a whole, 

but that his counsel failed to do so at specific points. For purposes of 

distinguishing between the rule of Strickland and that of Cronic, this difference is 

not of degree but of kind. [Bell, 535 US at 696-697].

In other words, “[t]he Cronic test applies when the attorney’s failure is complete, while the 

Strickland test applies when counsel failed at specific points of the proceeding.” Frazier, 478 

Mich at 244.

The trial court determined that appellate counsel’s failure to secure the transcript of one 

day of trial testimony that included significant medical expert testimony constituted a complete 

failure to subject the prosecution’s case to adversarial testing. We disagree. Appellate counsel 

did not obtain and review a transcript on appeal, but otherwise filed a timely brief that presented 

two meritorious issues that challenged the defendant’s sentences regarding double jeopardy and 

offense variable scoring. Appellate counsel’s failure to submit defendant’s brief without benefit 

of the whole record is but one allegation of a specific appellate error. Defendant argues that 

counsel failed to test the prosecution’s case on the point of medical testimony and not throughout 

the entire appellate proceedings. Cronic does not require that defense counsel subject the 

prosecution’s entire case to meaningful adversarial testing. Defendant fails to establish the 

factual predicate of his claim where appellate counsel took some action to subject the 
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prosecution’s case to meaningful adversarial testing. People v Hoag, 460 Mich 1, 6; 594 NW2d 

57 (1999). Consequently, a showing of prejudice under Strickland was necessary and the trial 

court’s finding that defendant was entitled to relief under Cronic and decision to forgo a 

discussion of prejudice were erroneous. “However, this Court will not reverse a lower court 

ruling when the correct result is reached for the wrong reason.” People v Washington, 99 Mich 

App 330, 336 n 3; 297 NW2d 915 (1980). Defendant’s Cronic claim fails, but he is still entitled 

to relief under MCR 6.508(D).

The prosecution argues that defendant’s claim of relief under MCR 6.508(D)(3), also 

fails where defendant cannot demonstrate good cause (or ineffective assistance of appellate 

counsel) and actual prejudice. According to MCR 6.508(D)(3)(b)(i), “actual prejudice” means 

that “in a conviction following a trial, but for the alleged error, the defendant would have had a 

reasonably likely chance of acquittal[.]” 

The prosecution contends that appellate counsel was not ineffective for failing to raise the 

additional issues of expert funding and the January 24 audio recording because counsel 

strategically chose to raise other issues. “An appellate attorney’s failure to raise an issue may 

result in counsel’s performance falling below an objective standard of reasonableness if that 

error is sufficiently egregious and prejudicial.” People v Reed, 198 Mich App 639, 646; 499 

NW2d 441 (1993), aff'd 449 Mich 375 (1995). Appellate counsel is not required to argue every 

conceivable issue on appeal. Jones v Barnes, 463 US 745, 749; 103 S Ct 3308; 77 L Ed 2d 987 

(1983). Appellate counsel’s selection of which issues to raise on appeal are matters of 

professional judgment and presumed to be trial strategy that this Court will not second-guess. 

People v Reed, 449 Mich 375, 391; 535 NW2d 496 (1995); Simko v Blake, 448 Mich 648, 658; 

532 NW2d 842 (1995). Here, appellate counsel was in receipt of all other transcripts and 

specifically chose not to address the issues of expert funding or the audio recording. This 

strategic decision constitutes ineffective assistance where, as decided in Issue III, defendant was 

prejudiced by the failure to obtain funds for a medical expert and the exclusion of the audio 

recording, and appellate counsel overlooked these issues. Accordingly, defendant was entitled to 

relief from judgment where he established both good cause and actual prejudice under MCR 

6.508(D)(3). 

Affirmed in part, reversed in part and remanded for a new trial. We do not retain 

jurisdiction. 

/s/ Elizabeth L. Gleicher

/s/ Cynthia Diane Stephens