People v. Deleon

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. ANTHONY JEROME DELEON, Defendant-Appellee.

No. 353296

Court of Appeals of Michigan

June 23, 2022

UNPUBLISHED

Macomb Circuit Court LC No. 2005-003245-FC

ON REMAND

Before: Cavanagh, P.J., and O'Brien and Swartzle, JJ.

PER CURIAM.

This case returns to this Court on remand from our Supreme Court vacating this Court's decision in People v DeLeon, unpublished per curiam opinion of the Court of Appeals, issued June 10, 2021 (Docket No. 353296) (DeLeon II), and directing this Court to address "whether or how the procedural bars of MCR 6.508(D)(2) and (3)(a) affect the outcome of this case." People v DeLeon, ^___ Mich ^___; 970 N.W.2d 325 (2022) (Docket No. 163380). We conclude that MCR 6.508(D)(2) and (3)(a) did not preclude defendant from raising the ineffective assistance of counsel argument asserted in his motion for relief from judgment, but that he has failed to overcome the presumption that his trial counsel's failure to call Dr. Herbert MacDonell to testify constituted sound trial strategy and failed to demonstrate a reasonable probability of a different result had Dr. MacDonell testified. Accordingly, we again reverse.

In People v DeLeon, unpublished per curiam opinion of the Court of Appeals, issued September 18, 2007 (Docket No 269574) (DeLeon I), this Court recited the factual background as follows:

Defendant's convictions arise from the April 1998 shooting death of his wife, Karen DeLeon, who died from a single gunshot wound to the head. Police found several bags packed with the woman's clothing. Defendant claimed to be present at the time of the shooting and further claimed to hold his wife closely right after the shooting, but police found him clean and emotionless when they arrived at the scene. Shortly after the shooting, the medical examiner certified the manner of death as "undeterminable." A toxicology report indicated that the decedent had consumed a large, possibly fatal amount of Butalbital. The police file was closed in June 1998, because the police determined that there was no direct evidence that the decedent's death was anything other than a suicide. Much of the physical evidence was destroyed, including the decedent's numerous prescription medications and the clothing she was wearing at the time of her death. The case was later reopened in 2002, after defendant assaulted his live-in fiancée by wrestling her to the floor and telling her he was going to kill her. The assault was precipitated in large part by the fiancée's communication of her desire to end the relationship. In June 2005, defendant was charged with first-degree murder in connection with the decedent's death.

Testimony indicates that, at least in retrospect, some witnesses believed that defendant acted suspiciously on the night his wife died. There was also evidence that the decedent had a history of prescription drug abuse and a previous suicide attempt. Although testimony at trial portrayed defendant as controlling and insensitive toward the decedent, no one ever saw him physically assault the decedent, and she never complained to anyone of physical abuse. Evidence of defendant's 2002 assault of his fiancée was presented at defendant's trial. [DeLeon I, unpub op at 1-2.]

The jury convicted defendant of first-degree premeditated murder, MCL 750.316(1)(a), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life imprisonment for the murder conviction and two years' imprisonment for the felony-firearm conviction.

Defendant appealed by right and moved to remand for a Ginther^[1] hearing, arguing, in part, that his trial attorney, Salvatore Palombo, rendered ineffective assistance of counsel by failing to call Dr. MacDonell to testify. Dr. MacDonell was the director of the Laboratory of Forensic Science in Corning, New York. Defendant asserted that Dr. MacDonell was "the foremost authority in the science of bloodstain pattern analysis" and that he had spent days waiting in the courthouse hallway, but was never called to testify before he returned to New York because of a medical emergency involving his wife. Defendant maintained that there was no reasonable explanation for failing to call Dr. MacDonell to testify and that Palombo chose to call local witnesses before out-of-town witnesses who were present and waiting to testify. This Court denied defendant's motion to remand "for failure to persuade the Court of the necessity of a remand" at that time.^[2]

This Court affirmed defendant's convictions. This Court determined, in relevant part, that Dr. MacDonell's testimony "would have added little beyond rehashing the [gunshot] residue report." This Court also rejected defendant's argument that Palombo should have called Dr. MacDonell to testify sooner, stating that "decisions about the order in which to present evidence and decisions about calling and questioning witnesses, generally are matters of trial strategy." DeLeon I, unpub op at 4.

In October 2018 defendant moved for relief from judgment and a Ginther hearing, again asserting that Palombo rendered ineffective assistance of counsel. Specifically, defendant argued that Palombo's representation to the trial court that Dr. MacDonell had to return to New York because of a medical emergency involving his wife was false. Defendant relied on Dr. MacDonell's affidavit stating that he had waited all day at the courthouse on January 18 and 19, 2006, but was not called to testify. Dr. MacDonell further averred:

In the late afternoon of the 19th Mr. Palombo advised affiant that the case was going so well he was not going to call him as a witness. Affiant was astounded because he was there two days ready to explain the gunshot residue results while Palombo put on local witnesses ahead of him.· Affiant had never had an attorney who had him in the courthouse ready to testify and then be told to go home. Affiant was astounded to say the least. Affiant later learned that Mr. Palombo told the court that he had to leave because of a family emergency. That is not at all true, affiant was told me [sic] to go home as he was no longer needed.

The trial court granted defendant's motion for a Ginther hearing, and, following the hearing, granted defendant a new trial. The court acknowledged Palombo's testimony that he decided not to call Dr. MacDonell to testify both because trial was going well and because Dr. MacDonell had to leave due to a family emergency. The court determined, however, that Palombo's testimony contradicted his representation to the court during trial, which referenced only Dr. MacDonell's family emergency, and defendant's testimony that Palombo never discussed with him the matter of not calling Dr. MacDonell to testify. Thus, the court opined that Palombo's performance fell below an objective standard of reasonableness. Further, the court determined that there existed a reasonable probability of a different outcome if Dr. MacDonell had testified.

The prosecution applied for leave to appeal on the basis that the trial court's decision contravened the law-of-the-case doctrine because this Court determined in DeLeon I that defendant had not been denied the effective assistance of counsel. This Court granted the application and reversed the trial court's decision.^[3] DeLeon II. Thereafter, our Supreme Court vacated this Court's decision and remanded, directing this Court to address "whether or how the procedural bars of MCR 6.508(D)(2) and (3)(a) affect the outcome of this case." People v DeLeon, ___ Mich ___; 970 N.W.2d 325 (2022) (Docket No. 163380).

We review de novo as a question of law issues involving the interpretation of court rules. People v Blanton, 317 Mich.App. 107, 117; 894 N.W.2d 613 (2016). "The same principles of statutory interpretation govern when interpreting and applying a court rule." People v Walters, 266 Mich.App. 341, 346; 700 N.W.2d 424 (2005). Accordingly, "our analysis begins with the language of the court rule." Id. "If the plain and ordinary meaning of a court rule's language is clear, judicial construction is not necessary." People v Howell, 300 Mich.App. 638, 645; 834 N.W.2d 923 (2013).

When the trial court decided defendant's motion for relief from judgment on March 11, 2020, MCR 6.508 provided, in relevant part, as follows:^[4]

(D) The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion

** *

(2) alleges grounds for relief which were decided against the defendant in a prior appeal or proceeding under this subchapter, unless the defendant establishes that a retroactive change in the law has undermined the prior decision;

(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates

(a) good cause for failure to raise such grounds on appeal or in the prior motion . . . .

** *

The court may waive the "good cause" requirement of subrule (D)(3)(a) if it concludes that there is a significant possibility that the defendant is innocent of the crime. [MCR 6.508(D).]

MCR 6.508(D)(2) did not preclude defendant from raising his ineffective assistance of counsel argument in his motion for relief from judgment because he did not allege grounds for relief that were decided against him in a prior appeal or motion under MCR Subchapter 6.500. Defendant's motion for relief from judgment filed on October 23, 2018 was his first such motion filed in this case. In addition, this Court did not decide defendant's argument against him in DeLeon I. In that appeal, defendant argued that...