PEOPLE OF MI V ARNDOLA CHARLES LEWIS (Concurring Opinion)
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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED December 3, 2019 Plaintiff-Appellee, v No. 342461 Wayne Circuit Court LC No. 17-001662-01-FC ARNDOLA CHARLES LEWIS, Defendant-Appellant. Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ. SHAPIRO, J. (concurring in part and dissenting in part). I dissent from the majority only as to the issue of ineffective assistance of counsel. The autopsy report and the testimony of Dr. Schmidt provided the primary proof rebutting the claim of self-defense. These were inadmissible pursuant to the Confrontation Clause absent testimony from the medical examiner who conducted the autopsy. See Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed2 d 177 (2004); People v Lewis, 490 Mich 921 (2011). Despite their inadmissibility, defense counsel failed to object. My colleagues suggest a strategic basis for the lack of objection but we have no way of knowing at this point whether counsel’s decision actually rested on such strategy. Moreover, the suggested strategic basis carries little weight in comparison to the possibility of excluding the autopsy and testimony altogether. I would therefore remand to the trial court for a Ginther1 hearing in order to determine what, if any, strategy actually lay behind the decision not to object and whether the prosecution had means to introduce this evidence without violating the Confrontation Clause. In all other respects, I concur. /s/ Douglas B. Shapiro 1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). -1-
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