PEOPLE OF MI V DENNIS JAMES KINCADE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 21, 1997
Plaintiff-Appellee,
v
No. 190068
Recorder’s Court
LC No. 85-2809
DENNIS JAMES KINCADE,
Defendant-Appellant.
Before: Griffin, P.J., and Sawyer and O’Connell, JJ.
PER CURIAM.
Defendant appeals by leave granted the April 26, 1991 order of the Recorder’s Court denying
his motion for new trial based on ineffective assistance of counsel.1 We affirm.
This appeal stems from the 1985 shooting of an individual during a drug deal; defendant did not
dispute the fact that he shot and killed the victim, but instead argued that the shooting was in self
defense. Defendant was convicted of first-degree murder, MCL 750.316; MSA 28.548, and
possession of a frearm during the commission of a felony (felony-firearm), MCL 750.227b; MSA
i
28.424(2), and was sentenced to life in prison without parole for the murder conviction and two years in
prison for the felony-firearm conviction. In 1986, defendant filed with this Court a motion to remand for
an evidentiary hearing, arguing that he had been denied his constitutional right to the effective assistance
of trial counsel. Although this Court granted defendant’s motion, defendant, together with his appellate
counsel, decided to abandon the ineffective assistance claim. Thereafter, a claim of appeal was filed in
which defendant did not raise the ineffective assistance issue, and defendant’s convictions were affirmed
by this Court. People v Kincade, 162 Mich App 80; 412 NW2d 252 (1987).
Defendant then filed a motion for a new trial in the Recorder’s Court; the motion was denied.
Defendant filed a delayed application for leave to appeal from that order, which was denied by this
Court, Unpublished order of the Court of Appeals, decided November 22, 1988 (Docket No.
104129), and by the Supreme Court, 432 Mich 909 (1989). Defendant again filed a motion for a new
trial in the Recorder’s Court, which was denied, and an application for leave to appeal from denial of
that motion, which was also denied (Unpublished order of the Court of Appeals, decided March 15,
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1990 [Docket No. 121864]). However, the Supreme Court remanded the matter with instructions “to
provide a hearing on defendant’s claim that he should receive a new trial because he was denied
effective assistance of counsel. MCR 7.302(F)(1).” People v Kincaid, 436 Mich 883; 461 NW2d
372 (1990). Hearings were held in the Recorder’s Court on January 23 and 24 and April 26, 1991,
and the court again denied defendant’s motion for a new trial.
Defendant then filed a complaint in this Court for superintending control, and although the trial
court was ordered to provide defendant with a copy of its decision and a transcript of the proceedings,
the Court denied defendant’s request for superintending control. Contemporaneously with that
complaint, defendant filed an appeal as of right from the trial court’s decision, but this Court dismissed
the appeal for failure to file a final order. The Supreme Court then remanded the appeal to this Court
for consideration as on leave granted, People v Kincade, 439 Mich 1022; 485 NW2d 504; 486
NW2d 666 (1992). This Court then held that defendant was not entitled to an appeal as of right of the
appointment of appellate counsel. People v Kincaid (On Remand), 206 Mich App 477, 481-482;
522 NW2d 880 (1994). The Court stated, however, that defendant would be entitled to file a delayed
application for leave to appeal the trial court’s order denying his motion for a new trial. Id. at 483. The
Supreme Court denied leave to appeal that decision in People v Kincaid, 448 Mich 930; 534 NW2d
520 (1995), and defendant subsequently filed the delayed application. This Court granted leave after
hearing defendant’s motion for rehearing, and this appeal followed.
The issues before this Court arise from defendant’s claim of ineffective assistance of trial counsel
(due to counsel’s failure to go to the crime scene prior to cross-examining the prosecution’s witnesses)
and claim of ineffective assistance of appellate counsel (due to counsel’s decision not to act upon a
remand order by this Court granting him a Ginther2 hearing as part of his initial appeal as of right). The
trial court considered these issues in 1991 in relation to defendant motion for a new trial,3 but found that
defendant had failed to sustain his claims of ineffective assistance. After reviewing the record, we find
that defendant’s claims are meritless.
Defendant first argues that the trial court erred by failing to grant him relief from judgment; this
issue stems from defendant’s claim that he received ineffective assistance of trial counsel because trial
counsel failed to visit the crime scene. We disagree and hold that the trial court did not err because
defendant failed to demonstrate good cause for not raising this issue in his initial appeal and was unable
to show that he was prejudiced by counsel’s purported errors. MCR 6.508(D)(3).
To establish ineffective assistance of counsel, a defendant must show that “counsel’s
performance was below an objective standard of reasonableness under prevailing professional norms”
and that “there is a reasonable probability that, but for counsel’s error, the result of the proceedings
would have been different.” People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994).
Claims of ineffective assistance must be evaluated under an objective standard of reasonableness. Id. at
687-688. Effective assistance of counsel is presumed, and a defendant bears a heavy burden of
proving otherwise. Id. at 687. We believe that defendant has failed to meet this burden because he did
not show that counsel’s failure to investigate the crime scene was unreasonable or that the result of the
trial would have been altered had he visited the scene.
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At defendant’s 1991 Ginther hearing, defendant’s trial counsel testified that he did not visit the
scene of the crime because, in his professional opinion, the topography of the scene was not relevant to
the primary issue in the case (whether defendant shot the victim in self-defense). The trial court found
that counsel’s failure to visit the scene did not impede his ability to adequately present defendant’s claim
of self-defense and that, if counsel had visited the scene, it would not have altered the result at trial. We
believe that this conclusion is supported by the record. We find that trial counsel adequately advanced
defendant’s claim of self-defense, that his failure to visit the scene did not constitute a lack of
preparation for trial, and that the result of the trial would not have been altered if trial counsel had visited
the scene.
Defendant next argues that he received ineffective assistance of appellate counsel because
appellate counsel failed to pursue his claim of ineffective assistance of trial counsel. We disagree, and
hold that the trial court did not err in denying defendant’s motion for a new trial on this basis. To
establish a claim of ineffective assistance of appellate counsel, a defendant must show that counsel’s
performance was deficient, and, under an objective standard of reasonableness, that the error was so
serious that counsel was not functioning as an attorney as guaranteed under the Sixth Amendment.
People v Hurst, 205 Mich App 634, 640-641; 517 NW2d 858 (1994). To show that appellate
counsel was ineffective for failing to raise an issue on appeal, a defendant must overcome the
presumption that the failure to raise an issue was sound appellate strategy and must establish that the
deficiency was prejudicial. People v Reed, 198 Mich App 639, 646-647; 499 NW2d 441 (1993),
aff'd 449 Mich 375; 535 NW2d 496 (1995). Defendant has not done so.
First, defendant could not show that he was prejudiced by appellate counsel’s failure to raise
that issue, because, as we conclude above, his trial counsel was not ineffective. MCR 6.508(D)(3).
Second, the record indicates that appellate counsel made a strategic decision not to pursue defendant’s
nonmeritorious claim of ineffective assistance of trial counsel and that defendant agreed with that
decision. Thus, although appellate counsel may have failed to inform defendant of the remand order
from this Court, such failure was not error because he and defendant decided to abandon the ineffective
assistance claim. Finally, defendant mistakenly asserts on appeal that the order of remand constituted
evidence that his Court found his claim of ineffective assistance meritorious. To the contrary, such an
order of remand is only issued to permit a defendant to make a testimonial record as required by
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), and does not constitute an evaluation
of the merits of the claim by this Court.
Affirmed.
/s/ Richard Allen Griffin
/s/ David H. Sawyer
/s/ Peter D. O’Connell
1
The epic saga of the present application, but for the final act, is addressed in People v Kincade (On
Remand), 206 Mich App 477 (1994). That published decision provided the authorization for
defendant’s delayed application for leave to appeal.
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2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
Although the court treated defendant’s motion on remand as a motion for new trial, defendant would
have only been entitled to relief from judgment pursuant to MCR 6.501 et seq; Kincaid, supra at 482.
Therefore, these issues will be reviewed as if the trial court denied defendant relief from judgment.
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