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451 Mich. 115

545 N.W.2d 637

People v Johnson

Michigan Supreme Court

Decided April 2, 1996

Michigan Supreme Court · decided 1996-04-02

Cited by 6 later decisions — most recently September 2010

4 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1996-04-02

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Cavanagh, J.

¶1(concurring). I agree with the majority’s analysis and its disposition of this case. However, I write separately to express my disagreement with the inclusion in the opinion of an unnecessary and potentially misleading statement.

¶2At the end of part rv, wherein the opinion restates all the elements a defendant must satisfy to establish a claim of ineffective assistance of counsel and concludes that “the defendant has satisfied each of these requirements” (emphasis added), the opinion states: “We do not hold that the failure to call supporting witnesses inherently amounts to ineffective assistance of counsel.” In the abstract, this statement is not inaccurate, but, in the context of the analysis preceding it, this statement emphasizes a factor not at all emphasized in the opinion’s actual analysis. The opinion is simply not susceptible of being read as this statement implies. Inclusion of this statement does not serve to clarify the opinion, but, rather, serves only to create the possibility that this opinion will be cited narrowly and inaccurately for the proposition contained in the statement.

¶3The opinion’s analysis and its ultimate conclusion rely on several factors other than defense counsel’s failure to call six witnesses who would have provided exculpatory evidence, most saliently the requirement that a defendant must show a reasonable probability that counsel’s errors affected the outcome of the trial. And with regard to the specific issue of these uncalled witnesses, the opinion expressly relies on the fact that, in his testimony at the evidentiary hearing, defendant’s trial attorney’s “explanation [con*127tained] no sign that counsel made a strategic decision not to call the six witnesses to testify regarding the events that occurred on the night of the shooting.”1Ante at 124.

¶4If the statement at issue here were deleted, part iv of the opinion would unambiguously and accurately summarize the opinion’s analysis and holding with regard to the ineffective assistance of counsel claim:

As indicated above, a defendant who asserts a denial of effective assistance must show that counsel’s performance was so deficient that counsel was not functioning as the “counsel" guaranteed the defendant by the Sixth Amendment, and that the deficient performance prejudiced the defense to the extent that the defendant was deprived of a fair trial with a reliable result. The defendant also must overcome the presumption that the challenged action was trial strategy. Further, the defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. On this record, we find that the defendant has satisfied each of these requirements. [Ante at 124.]

¶5I would add nothing further to this holding.

Levin, J.

¶6{separate opinion). The majority peremptorily affirms, pursuant to MCR 7.302(F)(1), the judgment of the Court of Appeals, which remanded this case to the circuit court for a new trial. I would deny leave to appeal, because I agree that the Court of *128Appeals did not err in reversing the judgment of conviction, and in remanding for a new trial. I join and concur in Justice Cavanagh’s comments concerning the statement in the majority opinion adverted to in his concurring opinion.

¶7 That the mere failure to call supporting witnesses is not, and could not be, the basis for a finding of ineffective assistance of counsel is also made clear earlier in the opinion:

¶8The issue is whether the defendant was denied effective assistance of counsel, and one must consider whether the actions of counsel were in pursuance of a trial strategy. [Ante at 122 (emphasis added).]

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