In People v Gioglio, __ Mich __ (#143136, 9/21/2011) the Michigan Supreme Court reiterated that when claims of ineffective assistance present a mixed issue of fact and constitutional law, the trial court must first determine the facts and then decide whether those facts demonstrate a violation of the defendant’s constitutional right to the assistance of counsel. People v
Lewis (On Remand), 287 Mich App 356 (2010). “When a defendant asserts that his assigned lawyer is not adequate or diligent . . . the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion.” People v Ginther, 390 Mich 436 (1973). A trial court’s factual findings are reviewed for clear error and its ultimate determination de novo. People v Petri, 279 Mich App 407 (2008).).
If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client's evaluation of his performance.
Id. at 657 n 21, citing Jones v Barnes, 463 US 745 (1983) and Morris v Slappy, 461 1 (1983). In People v US Frazier, 478 Mich 231 (2007), the Michigan Supreme Court clarified how to apply the Cronic/Strickland standards: “[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.” In Frazier, the Supreme Court refused to apply Cronic and presume prejudice when the defense counsel advised defendant to waive his right to counsel at the police interrogation and failed to attend the interrogation with the defendant. at 244-245. Id.
In this case, because counsel’s failure to test the prosecution’s case was not complete, the analysis is under the
Strickland ineffective assistance of counsel test. The right to effective counsel is guaranteed by the and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20; United States Strickland, 466 686. To establish ineffective assistance of counsel, defendant must show that: (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, (2) there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different, and (3) the resultant proceedings were fundamentally unfair or unreliable. People v Toma, 462 US 281, 302 (2000); People v Pickens, 446 Mich 298 (1994). Unlike Cronic, the Strickland test addresses specific errors made by counsel, requiring defendant to show that not only was counsel’s performance deficient but also that the defective performance was prejudicial. Mich Strickland, 466 US at 6; Mitchell, 454 at 157. Mich
Effective assistance of counsel is presumed and defendant bears a heavy burden of proving otherwise. Rockey, 237
App at 76. Defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy. People v Mich Riley (After Remand), 468 Mich 135, 140 (2003). Decisions as to when to make an opening statement, what evidence to present, whether to call or question witnesses, and on what to focus in closing argument are presumed to be matters of trial strategy, People v Horn, 279 Mich App 31 (2008); People v Dixon, 263 Mich App 393 (2004), and declining to raise objections to procedures, evidence, or argument can also be sound trial strategy, People v Unger, 278 Mich App 210 (2008). “This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” People v Garza, 246 Mich App 251 (2001).