PEOPLE OF MI V DWIGHT MONK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 11, 2004
Plaintiff-Appellee,
v
No. 242322
Wayne Circuit Court
LC No. 01-006688-01
DWIGHT MONK,
Defendant-Appellant.
Before: Cavanagh, P.J., and Gage and Zahra, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of first-degree murder, MCL
750.316(a), assault with intent to commit murder, MCL 750.83, felon in possession of a firearm,
MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b.
We reverse and remand for a new trial.
Defendant argues that a new trial is required because he did not receive the effective
assistance of counsel. We agree.
To establish ineffective assistance of counsel, a defendant must show (1) that the
attorney's performance was objectively unreasonable in light of prevailing professional norms
and (2) a reasonable probability that, but for the attorney's error, a different outcome reasonably
would have resulted. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001); People v
Harmon, 248 Mich App 522, 531; 640 NW2d 314 (2001). A reasonable probability is one
sufficient to undermine confidence in the outcome. Carbin, supra at 600. A defendant must
affirmatively demonstrate that counsel's performance was objectively unreasonable and so
prejudicial as to deprive him of a fair trial. People v Pickens, 446 Mich 298, 338; 521 NW2d
797 (1994); People v Ortiz, 249 Mich App 297, 311; 642 NW2d 417 (2001). A defendant
claiming ineffective assistance of counsel must overcome the strong presumption that the
attorney was exercising sound strategy. People v Knapp, 244 Mich App 361, 385; 624 NW2d
227 (2001).
Defendant’s ineffective assistance claim is predicated on his attorneys’ failure to produce
and subpoena three alibi witnesses. One of the witnesses apparently came to court on the day of
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trial, but defendant’s trial counsel failed to make contact with her and she never testified. The
other two witnesses were never subpoenaed or notified of the trial. All three witnesses testified
at a Ginther1 hearing that they would have testified at trial that defendant was with them, at his
home in Detroit, at the time the two victims were shot. Defendant’s trial counsel testified at the
Ginther hearing that he had expected his co-counsel to subpoena and produce the alibi witnesses.
The co-counsel testified that he was never formally retained as defendant’s trial counsel, and that
he never made a commitment to produce and subpoena the alibi witnesses.
These circumstances satisfy both prongs of the Pickens test. The failure to subpoena and
produce the alibi witnesses was objectively unreasonable, because defense counsel missed an
opportunity to present an alibi defense, which might well have been defendant’s only viable
defense available. Defendant established at the Ginther hearing the factual predicate for his
claim that these witnesses would have given favorable testimony supportive of an alibi defense.
Id. Defendant also established that the witnesses’ failure to attend trial was attributable to his
attorneys’ mistakes. Both attorneys knew of the witnesses. They filed alibi notices, and trial
counsel referred to them in his opening statement. There is no indication that either attorney
decided against calling them as a matter of strategy. On the contrary, when the witnesses were
not present for trial, trial counsel urged the trial court to allow more time for their arrival.
Because neither attorney produced the witnesses, defendant lost the opportunity to present an
alibi defense. There is no record support for the trial court’s suggestion that the witnesses failed
to appear because they did not want to testify. Even if this was true, however, one or both of
defendant’s attorneys performed deficiently by failing to serve subpoenas to compel their
attendance.
This analysis applies even if Shanae McGhee’s failure to testify was partly attributable to
her own failure to make contact with trial counsel on the second day of trial. Moreover,
defendant was still deprived of the alibi testimony of Lacresha Harris and Leon Jeffery, who
seemingly would have been more credible than McGhee, defendant’s girlfriend and the mother
of his children. Generally, counsel's decision whether to call a witness is presumed to be a
strategic one for which this Court will not substitute its judgment. People v Ackerman, 257 Mich
App 434, 455; 669 NW2d 818 (2003). However, this case does not involve an attorney’s
strategic decision not to call a witness, but rather the failure to produce and subpoena witnesses
after deciding to call them. Unintentional failure to produce or subpoena alibi witnesses cannot
be considered sound trial strategy. Knapp, supra.
The error also satisfies the prejudice requirement. Carbin, supra at 599-600. With the
witnesses, defendant could have presented a positive defense; without them, he could only try to
detract from Carlos Starks’ testimony. Although it is by no means certain that the jurors would
have found the alibi witnesses more credible than Starks, especially given their personal
associations with defendant, defendant nonetheless has established a reasonable probability of a
different outcome. A “reasonable probability” is a “probability sufficient to undermine
confidence in the outcome.” Carbin, supra at 600. Our confidence in this verdict is undermined
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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because the jurors heard only the prosecution’s case when it might have heard a credibility
contest between Starks and the alibi witnesses.
We are not persuaded by the prosecutor’s argument that defendant cannot show prejudice
because he could have testified to his own alibi and because identification was not an issue.
Defendant’s own testimony was not a reasonable substitute for the alibi witnesses’ testimony.
The option of testifying on his own behalf was one prong of the dilemma between presenting no
alibi defense, or giving only self-serving, uncorroborated testimony. Defendant recognized this
dilemma by complaining that he would look “stupid” in front of the jurors if he testified that he
was with three other people who were not there to support him. The Hobson’s choice between
remaining silent and appearing a liar did not protect defendant from prejudice. Nor can the
prosecution plausibly argue that there was no prejudice because Starks’ ability to identify
defendant was not at issue. There was evidence that the relationship between defendant and
Starks was contentious, and defendant’s identity as the perpetrator was still an issue. Defendant
was prejudiced by the lost opportunity to support his contention that Starks falsely accused him
out of personal animosity.
Accordingly, we reverse defendant’s conviction and remand for a new trial. Because this
issue is dispositive of defendant’s appeal, it is unnecessary to consider defendant’s remaining
issues.
Reversed and remanded. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Hilda R. Gage
/s/ Brian K. Zahra
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