PEOPLE OF MI V THERESA M KEMP
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 3, 2002
Plaintiff-Appellee,
v
No. 229609
Wayne Circuit Court
LC No. 99-012607
THERESA KEMP,
Defendant-Appellant.
Before: White, P.J., and Murphy and Fitzgerald, JJ.
WHITE, P.J. (concurring in part and dissenting in part).
I concur in the majority’s disposition of the newly discovered evidence issue. I also
agree with the conclusion that there was sufficient evidence to support the felony-firearm
conviction. I would, however, remand for a Ginther1 hearing on the ineffective assistance of
counsel issue.
It appears that counsel knew of the existence of Karen, the bar owner, but failed to
interview her. Counsel made an offer of proof at the conclusion of trial asserting that Karen
would have testified that she was in the bar on the night of the incident and that she observed a
bulge in the waistband of the victim that she believed to be a gun. Codefendant Cash, who was
alleged to be the shooter, denied having a gun, and no one except the victim saw Cash or
defendant with a gun. Cash testified that the victim produced the gun.
I conclude that defendant has made a sufficient showing that counsel’s performance fell
below an objective standard of reasonableness and that but for counsel’s error, there existed a
reasonable probability that the result would have been different, People v Pickens, 446 Mich
298; 521 NW2d 797 (1994), to warrant remand for a Ginther hearing.
/s/ Helene N. White
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-1-
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