Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________ C hief Justice Justices Maura D. Cor rigan Michael F. Cavanagh
Opinion Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED MARCH 12, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
Cross-Appellee,
v No. 118774
WILLIAM EMERY LeBLANC,
Defendant-Appellee,
Cross-Appellant.
________________________________
PER CURIAM
A circuit court jury convicted the defendant of third
degree criminal sexual conduct, but the Court of Appeals
reversed on the ground that the defendant had been denied
effective assistance of trial counsel. Because the circuit
court’s findings of fact were not clearly erroneous and its
conclusions of law are correct, we agree with the circuit
court that the defendant's trial attorneys were not
ineffective. Accordingly, we reverse the judgment of the
Court of Appeals and reinstate the judgment of the circuit
court.
I
In early 1998, the defendant was charged with one count
of third-degree criminal sexual conduct for having sexual
intercourse with his wife’s daughter-- --his stepdaughter. MCL
750.520d(1)(a). The stepdaughter says that a number of sexual
assaults occurred, culminating on a Sunday afternoon in May
1997, when sexual relations occurred in the defendant’s truck,
as they parked on a rural road.
The defendant has consistently denied the charge. He
maintains that the criminal allegation is the complainant’s
revenge for parental discipline of an unruly teenager. At
trial, he supplemented that defense with alibi testimony,
seeking to demonstrate that he was working on the Sunday
afternoons when this assault might have occurred.
This matter was tried before a Leelanau Circuit Court
jury in the late summer of 1998. The jurors believed the
complainant, and thus found the defendant guilty as charged.
In October 1998, the court sentenced the defendant to term of
six to fifteen years in prison. Two months later, the court
denied the defendant’s motion for new trial.
After the defendant appealed, the Court of Appeals
granted his motion to remand,1 so that he could file another
1 Unpublished order, entered September 13, 1999 (Docket
No. 217281).
2
motion for new trial. On remand, the circuit court conducted
a Ginther2 hearing to determine whether the defendant had been
denied effective assistance by the two attorneys who
represented him at trial. After taking testimony from several
witnesses, the circuit court denied the motion.
Following the remand, the Court of Appeals reversed the
defendant’s conviction, agreeing with his contention that he
had been denied effective assistance.3
The prosecuting attorney has applied for leave to
appeal.4
II
In People v Mitchell, 454 Mich 145, 155-156; 560 NW2d 600
(1997), we explained the principles of law that govern an
inquiry whether there has been a denial of effective
assistance:
The benchmark case describing the standard for
claims of actual ineffective assistance of counsel
in Michigan is People v Pickens, [446 Mich 298,
318; 521 NW2d 797 (1994)], which held that the
right to counsel under the Michigan Constitution
does not justify a more restrictive standard than
that applied under the United States Constitution
and adopted the Supreme Court's test in Strickland
[v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed
2d 674 (1984)]. That test requires the greatest
level of factual inquiry into the actual conduct of
the defense and its effect on the outcome of the
2 People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922
(1973).
3
Unpublished opinion per curiam, issued February 20,
2001 (Docket No. 217281).
4 The defendant has also applied, seeking leave to appeal
as cross-appellant. We deny the defendant’s application.
3
trial. It places the burden on the defendant to
show, with regard to counsel's performance,
“that counsel made errors so serious that
counsel was not functioning as the
‘counsel’ guaranteed the defendant by the
Sixth Amendment . . . [and] 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. Unless a
defendant makes both showings, it cannot
be said that the conviction or death
sentence resulted from a breakdown in the
adversary process that renders the result
unreliable. [Id. at 687.]”
In applying this test, "a court must indulge a
strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance . . . ." Id. at 689. [C]ases decided
under the Strickland/Pickens test require the
defendant to "overcome the presumption that, under
the circumstances, the challenged action 'might be
considered sound trial strategy.'" Strickland at
689.
Accord, People v Toma, 462 Mich 281, 302-303; 613 NW2d 694
(2000).
III
In conducting an appellate review of the manner in which
these principles were applied by the circuit court and the
Court of Appeals, we begin by locating the proper standard for
such review. Whether a person has been denied effective
assistance of counsel is a mixed question of fact and
constitutional law. A judge first must find the facts, and
then must decide whether those facts constitute a violation of
the defendant’s constitutional right to effective assistance
of counsel.
4
As we have explained in other contexts, a trial court’s
findings of fact are reviewed for clear error. MCR 2.613(C),
6.001(D); cf. MCR 7.211(A)(3)(a). See, generally, Grievance
Administrator v Lopatin, 462 Mich 235, 247, n 12; 612 NW2d 120
(2000); In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d
407 (2000); McDougal v McDougal, 451 Mich 80, 87; 545 NW2d 357
(1996); Sparks v Sparks, 440 Mich 141, 151-152; 485 NW2d 893
(1992); Mazur v Blendea, 409 Mich 858; 294 NW2d 827 (1980).
Questions of constitutional law are reviewed by this
Court de novo. Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d
163 (2001); People v Dunbar, 463 Mich 606, 615; 625 NW2d 1
(2001); Blank v Dep’t of Corrections, 462 Mich 103, 112; 611
NW2d 530 (2000).
IV
In the present case, the Court of Appeals concluded that
a review of the record had persuaded it that “trial counsel’s
performance undermines confidence in the reliability of the
result. Mitchell, supra.” That conclusion rested on three
principal bases-- --failure to introduce testimony from a
defense expert, failure to conduct a proper voir dire of
prospective jurors, and failure to object to rebuttal
testimony. However, we conclude that in each instance the
circuit court, not the Court of Appeals, correctly resolved
the issue whether the defendant was denied effective
assistance.
5
A
Expert Testimony
The prosecution relied in part on the testimony of an
expert in treating teenage sexual abuse victims.5 The expert
testified that young victims often delay reporting the crime
because of embarrassment, concern for the family, and other
reasons. The import of her testimony was that the behavior of
the complainant in this case was consistent with the behavior
often exhibited by such victims.
Defense counsel had subpoenaed an expert who was prepared
to offer countering testimony. However, defense counsel did
not call her to testify at trial.6
At trial, the prosecution expert properly refrained from
offering an opinion regarding the defendant’s guilt.7
However, the Court of Appeals found her testimony to have been
quite significant, and criticized defense counsels' failure to
call the defense expert. Saying that the record belied the
claim that the decision not to call her was strategic, the
Court characterized defense counsels' preparation as
“inadequate,” and concluded, “our confidence in the
5 The defendant disputes her expertise.
6
It appears that both the prosecution expert and the
would-be defense expert had counseled the complainant in this
matter. However, defense counsel apparently did not seek to
review the records of the defense expert.
7 People v Beckley, 434 Mich 691, 727-729, 734, 744; 456
NW2d 391 (1990); People v Peterson, 450 Mich 349, 369; 537
NW2d 857 (1995).
6
reliability of the result has been undermined, Mitchell,
supra, and a new trial based on ineffective assistance is
warranted.”
The contrary conclusion of the circuit court was
explained in the opinion it issued after the remand
proceedings. The circuit court noted several minor matters
regarding which the would-be defense expert could have
challenged the prosecution expert, but concluded that these
were fairly inconsequential. The principal issue, obviously,
was whether the defense attorneys had committed a serious
mistake in deciding to forgo the testimony of the expert whom
they had subpoenaed. Concerning this question, the circuit
court stated:
When [one of the defense attorneys] testified
[at the remand hearing], he stated that his
approach in examining [the prosecution expert] was
to attack her credibility by showing that she was
part of the police team and that she had a
relationship counseling and treating the
complainant. Thus she would not be objective in
the juries’ eyes. He went on to testify that he did
not call [the defense expert] because in his
experience a battle of the experts in cases of this
type tends to favor of [sic] the prosecution.
Merely calling a defense expert on these issues
tells the jury that such experts are important and
are to be believed and actually tends to increase
in the [jurors’] eyes the importance of these
expert witnesses in [defense counsel’s] view. So he
decided not to call [an expert].
As a tactical decision, even in retrospect,
this Court cannot say that [defense counsel’s] plan
about expert witnesses was wrong. During trial on
August 26, 1998, under cross-examination by
[defense counsel], the victim was asked what [the
prosecution expert] had told her about the behavior
of sexual abuse victims, implying she had been
coached by [the expert]. He went on to bring out
7
by questioning the victim that [the expert] was
involved with the prosecution team in planning how
the trial was conducted. The defense team’s
approach to [the prosecution expert] was to show
that she was not objective and that therefore her
testimony to the jury could not be believed. This
is a legitimate and reasonable tactical decision by
an attorney as to how to handle the other side’s
expert witness.
This is a sound reading of the events that unfolded at
trial-- --certainly there is no clear error in the circuit
court’s findings of fact. One can posit theories under which
the defense might have been advanced by using the expert
testimony of the woman whom the attorneys had subpoenaed.
However, as explained in Mitchell, the inquiry is not whether
a defendant’s case might conceivably have been advanced by
alternate means.
As noted above, our task on appeal is to examine de novo
the constitutional issue whether, on facts properly found by
the circuit court, the defendant was denied effective
assistance. In the phrasing of Mitchell, we determine whether
“counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment” and that “the deficient performance
prejudiced the defense,” i.e., “counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. at 156, quoting Strickland,
466 US 687. On the present record, the decisions made by
defense counsel concerning use of an expert witness were well
8
within the bounds of sound professional representation,8 and
did not come close to depriving the defendant of a fair trial.
Again, the central issue in this case is a mixed question
of fact and law. We have found the circuit court’s findings
of fact not to be clearly erroneous, and we conclude, on those
facts, that the decisions regarding use of an expert witness
did not rise to the level of a constitutional violation.
B
Voir Dire
The defendant is a Native American, who was employed as
a police officer. During voir dire, defense counsel did not
ask the prospective jurors whether any of them harbored
prejudice against Native Americans or police officers.
The circuit court observed that “[u]nnecessary voir dire
about racial matters might have the effect of making race an
issue when it was not,” and concluded that, “[i]n this case,
defense counsels’ conscious decision not to inquire about race
during voir dire was sound trial strategy.” These conclusions
were supported with a detailed discussion of the testimony
presented by the defendant at the Ginther hearing.
Here, too, the Court of Appeals disagreed with the
conclusion reached by the circuit court. Acknowledging that
8 As indicated, the Court of Appeals implied that defense
counsel did not really make a reasoned decision, but
contrarily that poor preparation led to the failure to call
the defense expert. It is evident that the circuit court
credited the testimony of the defense attorneys at the remand
hearing, and we see no error in that determination.
9
“[t]he mere fact that a complainant and the victim are of
different races does not make race a bona fide issue,” the
Court nonetheless held that “inquiry into any potential bias
or prejudice against defendant was crucial where a conviction
was based, in large part, on the credibility of the
witnesses.” Thus, “[w]hile defendant was unable to
demonstrate that race was a bona fide issue in the case, we
conclude that the failure to inquire into bias or prejudice
based on occupation and race undermines the reliability of the
verdict.” The Court added that, “[b]ecause the jury’s verdict
was contingent on the credibility of defendant and the victim,
any bias or prejudice by the jury could have served as the
basis of the verdict.”
Again, we have been shown no clear error in the circuit
court’s findings of fact. In addition, our de novo
application of constitutional principles to those facts yields
the same result as that reached by the circuit court.
As the circuit court noted, the defendant failed to
produce evidence that failure to conduct voir dire on the
topic of race, even if a serious mistake, led to any prejudice
against the defense. At the Ginther hearing, a defense expert
on juries offered the opinion that the populace of northern
Michigan is prejudiced against Native Americans, although she
presented no corroborative studies. Her "investigation" was
limited to conversations with two attorneys (one who had
appeared for the defendant in connection with postconviction
10
proceedings in the present case, and one who had represented
the defendant’s tribe in treaty-related matters) and a
personal friend. The court aptly observed, “As a study of
juror prejudice in northern Michigan, this hardly suffices to
support her opinion.”
The expert talked about survey findings in Minnesota,
which evidently showed a degree of opposition in the non-
Indian community to the treaty-based rights of Indians to
engage in certain hunting, fishing, and gaming activities not
open to the general populace. In this regard, the circuit
court stated:
From her testimony, the court deduced that the
[Minnesota survey] questions related to the jurors’
opinions of special rights that were secured to
tribes pursuant to treaty, court decision, and
otherwise respecting hunting, fishing and casino
gambling. This case, however, had no aspect of
controversy over hunting, fishing rights, casino
gambling, or any other issue related to the rights
of tribes and their members. The fact that a
substantial number of Minnesota jurors, according
to [the expert’s] testimony, disapprove or have
reservations about the special rights of tribes and
their members to hunt and fish under historic
treaties as interpreted by the federal courts or
about the special rights of tribes to conduct
gambling operations does not equate with personal
prejudice against Indians. To conclude that those
answers make the jurors racially prejudiced would
be as foolish as concluding that former Michigan
Supreme Court Justice and now [United States Court
of Appeals for the Sixth Circuit] Judge James Ryan
is racist because he dissented in a recent case in
which the Sixth Circuit Court of Appeals held that
commercial fishing boats operated by tribal members
had the right to use municipal marinas in Leelanau
County. See [Grand Traverse Band v Dep’t of
Natural Resources], 141 F3d 635 (CA 6, 1998). That
a juror might express reservations about the
propriety of the rights in question would not
indicate that juror is racially prejudiced and
11
would be of little relevance unless the case grew
out of a situation involving those treaty rights.
Next, the court discussed testimony concerning some
specific incidents of racial bias against Native Americans in
northern Michigan. Here the court said that “it would be
ignoring the obvious to suggest that there is no prejudice
against Native Americans in northern Michigan or in any part
of Michigan for that matter.” However, the court went on to
say that, “[e]ven if this court could take judicial notice of
that fact, it would also have to take judicial notice of the
apparent widespread support in the public for Native
Americans.”
The court also discussed testimony concerning (a) the
close attention paid by the jury to the complainant’s
testimony, (b) the reaction of some jurors to a smudging
ceremony at the courthouse,9 and (c) a question at the
preliminary examination concerning whether anyone in the
audience resided in Peshawbestown.10 As the court noted, each
of these had a ready and benign explanation.
In its opinion of reversal, the Court of Appeals wrote:
[E]ven when requested, an inquiry into racial
prejudice is constitutionally required only where
race is a bona fide issue in this matter. Ristaino
9 Smudging is a Native American custom, in which herbs
are burned to create a cleansing smoke, for the purification
of persons, places, or objects. See, generally,
http://www.bmcc.org/Bimaadzwin/Traditions/smudging.htm.
10 Many members of the Grand Traverse Band of Ottawa and
Chippewa Indians reside in the Leelanau County community of
Peshawbestown.
12
v Ross, 424 US 589, 594; 96 S Ct 1017; 47 L Ed 2d
258 (1976).
Nothing in the record before us suggests that race was a
bona fide issue in the present case, as the Court of Appeals
itself acknowledged. While the defendant and the complainant
were of different racial backgrounds, that circumstance by
itself is not sufficient to conclude that race is a bona fide
issue in a case, requiring, as a constitutional matter,
particular inquiry at voir dire. Both sides tried this case
as a fact-specific dispute involving events that did or did
not occur within a particular family. Simply put, this case
was not about race.
The circuit court’s findings of fact are not clearly
erroneous, and we agree with its conclusions of law. On the
record of this case, the defense lawyers did not withhold
effective assistance of counsel when they did not inquire
during voir dire about bias against Native Americans.
There is also an issue about failure to inquire about
prejudice against police officers, but the circuit court
properly noted that the record contains no evidence of bias
against police officers in Leelanau County or among the
persons hearing this particular case. Again, the record does
not support the conclusion that the failure to inquire during
voir dire constituted ineffective assistance.
C
Rebuttal Testimony
A third ground on which the Court of Appeals found
13
ineffective assistance was defense counsels’ failure to object
to certain rebuttal evidence.
The issue arose in this manner: In support of his alibi,
the defendant testified that he was working on the dates when
the assault might have occurred. In the course of this
direct-examination testimony, he referred to the department
logs, which documented his daily activities as an officer. On
cross-examination, he was asked whether he had ever falsified
his daily logs. He denied doing so. On rebuttal, the
prosecutor called a department sergeant who testified, without
objection, that the defendant falsified his log one day in
July 1996 by recording a ninety-minute lunch break as though
it had lasted only sixty minutes.
The Court of Appeals held, in effect, that counsel was
obliged to object to this testimony:
MRE 608(b) provides that specific instances of
conduct of a witness, for the purpose of attacking
credibility, other than conviction of a crime, may
not be proved by extrinsic evidence. See also
Lagalo v Allied Corp (On Remand), 233 Mich App 514,
518; 592 NW2d 786 (1999). Once defendant denied
falsification of any daily log, the prosecutor was
“stuck” with that answer. Wischmeyer v Schanz, 449
Mich 469, 477-478; 536 NW2d 760 (1995).
Furthermore, there was no dispute, based on the
victim’s work schedule, that any alleged sexual
abuse would have occurred after, not during,
defendant’s work shift. Therefore, our confidence
in the reliability of the verdict in light of
defense counsel’s failure to object to this
specific instance of conduct, coupled with other
errors in the trial, require reversal.
The Court of Appeals also found error in failing to
object to other portions of the rebuttal testimony, including
14
matters that the Court characterized as “inconsequential” and
not proper impeachment.
In its opinion on remand, the circuit court characterized
the disputed rebuttal testimony as harmless, saying that
“[t]he only possible exception might be the [sergeant’s]
testimony . . . .” It analyzed that portion of the record in
this manner:
When the defendant testified at [trial], he
relied on the logs he maintained of his working
time as a police officer for the Grand Traverse
Band. He relied on those time logs to show that he
could not have picked the victim up at her place of
employment at [a restaurant] in Leland on the
likely day in question. The accuracy of his
employment time log was key to corroborating his
statement that he did not and could not have driven
the victim home from work, and stopped to commit
the offense, on that day. He specifically
testified that he never falsified his time logs.
It was in rebuttal to that testimony that the
prosecution offered [the sergeant] to testify that
in fact on a prior occasion he had caught the
defendant falsifying his time logs. By relying
upon his time logs to corroborate his statement
that he could not have committed the crime on the
day in question and by specifically testifying that
these time logs he never altered, the defendant
opened the door to this rebuttal evidence and it
was admissible.
In finding that the rebuttal testimony was improperly
admitted, and that counsel therefore was ineffective for
failing to object, the Court of Appeals relied, as noted
above, on MRE 608(b):
Specific instances of the conduct of a
witness, for the purpose of attacking or supporting
the witness' credibility, other than conviction of
crime as provided in Rule 609, may not be proved by
extrinsic evidence. They may, however, in the
discretion of the court, if probative of
15
truthfulness or untruthfulness, be inquired into on
cross-examination of the witness (1) concerning the
witness' character for truthfulness or
untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness
as to which character the witness being cross examined has testified. [Emphasis supplied.]
As the Court of Appeals correctly observed, it has long
been the law of this state that a cross-examining attorney
must accept the answer given by a witness regarding a
collateral matter. People v Hillhouse, 80 Mich 580, 585; 45
NW 484 (1890); Hamilton v People, 46 Mich 186, 188; 9 NW 247
(1881). However, the law in this realm has nuances, including
the rule, noted in People v Vasher, 449 Mich 494, 504; 537
NW2d 168 (1995), that impeachment can be proper on matters
“closely bearing on defendant's guilt or innocence.”
The present issue is whether defense counsels’ failure to
object constituted ineffective assistance. Our examination of
the record persuades us that there was no ineffective
assistance in this regard. First, as the circuit court
observed, the existence of the logs was an element of the
defendant’s own testimony on direct examination. Further, the
gist of his testimony was that these were essential police
records, accurately maintained. In light of the alibi
defense, it is far from clear that the defendant’s inaccurate
entry on another occasion was entirely a “collateral matter.”
Further, we must weigh the strategic decisions made by
16
the experienced attorneys11 who represented the defendant. If
counsel had objected to the prosecution's question about
alteration of the logs, the counter-productive effect might
have been to communicate to the jury that the defense was
seeking to hide significant inaccuracies in the logs
maintained by the defendant. By allowing the rebuttal
evidence (of a single occasion when the defendant stretched
his lunch thirty minutes), counsel let the jury learn that the
problem was slight. Counsel went on, during closing argument,
to use this testimony to the defendant’s advantage, noting
that the sergeant was “keeping an eye” on the defendant’s
record keeping. This is the sort of professional judgment and
careful advocacy, all done in the heat of trial, that we will
not second-guess at this distance.
Again, this subissue reveals no clearly erroneous
findings of fact by the circuit court. Our de novo review of
the constitutional question leads, for the reasons stated
above, to the conclusion that the defendant was not denied the
effective assistance of trial counsel.
D
Cumulative Error
The Court of Appeals closed its opinion with this:
The cumulative effect of a number of errors
may amount to error requiring reversal. People v
11 The defendant retained two attorneys, each of whom had
twenty-five years of experience. Each had worked both as a
prosecutor and a defense attorney, and had tried hundreds of
felonies.
17
Cooper, 236 Mich App 643, 659-660; 601 NW2d 409
(1999). After a thorough review of the record on
appeal, we conclude that the cumulative effect of
counsel’s errors undermines the confidence in the
reliability of the verdict and a new trial is
warranted. Id.; Mitchell, supra.
It is true that the cumulative effect of several errors
can constitute sufficient prejudice to warrant reversal where
the prejudice of any one error would not.12 However, for the
reasons stated above, this is not a case involving multiple
errors by counsel.
Rather, this is a case in which two experienced attorneys
provided a vigorous and effective defense for the accused.
After examining the full record of this case, we are mindful
of what we said in Mitchell:
In the real world, defending criminal cases is
not for the faint of heart. Lawyers must fulfill
ethical obligations to the court, zealously
advocate the client's best interests (which
12 People v Bahoda, 448 Mich 261, 292, n 64; 531 NW2d 659
(1995), clarifies the meaning of the phrase “cumulative
error.”
In making this determination, only actual
errors are aggregated to determine their cumulative
effect. United States v Rivera, 900 F2d 1462, 1471
(CA 10, 1990) (en banc) ("Impact alone, not
traceable to error, cannot form the basis for
reversal").
That is, individual claims of error either have merit or
they do not. A ruling or action that is almost wrong does not
become an error on the ground that, in the same case, other
rulings or actions were almost wrong, too. Thus, “cumulative
error,” properly understood, actually refers to cumulative
unfair prejudice, and is properly considered in connection
with issues of harmless error. Only the unfair prejudice of
several actual errors can be aggregated to satisfy the
standards set forth in People v Carines, 460 Mich 750, 774;
597 NW2d 130 (1999).
18
includes establishing that they, and not the
client, are in charge of making the professional
decisions), and protect themselves against
grievances and claims of malpractice. Lawyers will
inevitably make errors in the process, but, because
both cases and attorneys come in an infinite
variety of configurations, those errors can only
rarely be defined "with sufficient precision to
inform defense attorneys correctly just what
conduct to avoid." Strickland at 693. Thus, the
Sixth Amendment guarantees a range of reasonably
competent advice and a reliable result. It does
not guarantee infallible counsel. [454 Mich 170 171.]
V
For these reasons, we conclude that the defendant was not
denied effective assistance of counsel. Accordingly, we
reverse the judgment of the Court of Appeals and reinstate the
judgment of the circuit court. MCR 7.302(F)(1).
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
19
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
Cross-Appellee,
v No. 118774
WILLIAM EMERY LeBLANC,
Defendant-Appellee,
Cross-Appellant.
________________________________
CAVANAGH, J. (dissenting).
Although I might disagree with the Court of Appeals
conclusion, as other members of this Court do, that is not a
reason to issue a per curiam reversal. The Court of Appeals
applied the correct legal standard for ineffective assistance
claims to the facts and had a plausible basis in the record
for its conclusion that trial counsel was ineffective. I do
not think the unpublished decision of the Court of Appeals is
clearly erroneous and would deny leave.
KELLY , J., concurred with CAVANAGH , J.