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A Better Partnership
July 26, 2017

MSC grants MOAA to consider whether defendant’s failure to prove plain error precludes finding of ineffective assistance of trial counsel

The Michigan Supreme Court granted mini-oral argument in People v. Randolph, No. 153309 to address two related issues. First, whether a defendant’s failure to prove plain error automatically precludes a finding of ineffective assistance of trial counsel. Second, whether the plain error’s prejudice standard (“affecting substantial rights”) announced in People v. Carines is the same as the ineffective assistance’s prejudice standard (“reasonable probability” of a different outcome) in Strickland v. Washington.
This case concerns a fatal shooting. The defendant was convicted of killing his girlfriend’s mother after evidence revealed that he fired several gunshots into the victim’s home and, as a result, shot the victim in the neck. The incident took place immediately after the defendant had been fighting with his girlfriend and had threated her family. The police took the defendant into custody, but the positive gunshot residue test was not enough to initially charge the defendant. However, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) found the murder weapon in the defendant’s house and arrested him for “violating a federal law against possession of ammunition by a felon.” At trial, the jury found the defendant guilty on several counts, including second-degree murder. The defendant appealed, arguing in part that his “trial counsel was ineffective, primarily because [the attorney] did not object to or seek to exclude all of the evidence defendant argues was not admissible.” 
The Court of Appeals affirmed the conviction and cited People v. Fike, holding that no trial counsel can be held responsible for failing to object to matters that would have been futile. The Court reasoned that there was no error from the trial court in refusing to introduce the evidence, and, therefore, defendant could not “show that he was prejudiced by counsel’s failure to object.” That is, the failure to object did not affect the defendant’s substantial rights because, regardless, the court would have overruled the objection. According to Carines’ third prong of plain error, an error infringes on substantial rights if the error affects the outcome of the case. Here, the defendant had failed to make such a showing.
Finally, regarding the inadmissibility of the gunshot residue test and the related hearsay arguments, the court held that “it [was] not reasonably probable that seeking to exclude the evidence or presenting an expert to counter it would have been any more successful than the avenue counsel chose.” Thus, again, finding no error, the Court of Appeals upheld the ruling of the trial court.

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