STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 15, 2018
Plaintiff-Appellee,
v No. 329846
Wayne Circuit Court
LAWANDA KAY JENKINS, LC No. 15-004374-01-FH
Defendant-Appellant.
Before: CAMERON, P.J., and SERVITTO and GLEICHER, JJ.
PER CURIAM.
Defendant appeals as of right her bench trial conviction of assault with a dangerous
weapon (felonious assault), MCL 750.82. The trial court sentenced defendant to three years’
probation and 50 hours’ community service in lieu of nonmandatory costs and fees. We reverse
and remand for a new trial.
After conviction, defendant moved for a new trial on the basis that she was denied
effective assistance of counsel. An evidentiary hearing was held, pursuant to People v Ginther,
390 Mich 436; 212 NW2d 922 (1973), at which defendant claimed that her counsel’s
performance fell below an objective standard of reasonableness when he failed to conduct a basic
investigation that would have led to the discovery of a witness who would have corroborated
defendant’s testimony at trial. The trial court disagreed, and issued an opinion and order denying
defendant’s motion. On appeal, defendant again asserts that she was denied the effective
assistance of counsel.
“The determination whether a defendant has been deprived of the effective assistance of
counsel presents a mixed question of fact and constitutional law.” People v Lockett, 295 Mich
App 165, 186; 814 NW2d 295 (2012), citing People v LeBlanc, 465 Mich 575, 579; 640 NW2d
246 (2002). The trial court’s constitutional determinations are reviewed de novo while factual
determinations are reviewed for clear error. Lockett, 395 Mich App at 186, citing LeBlanc, 465
Mich at 579. “Clear error exists where the reviewing court is left with a definite and firm
conviction that a mistake has been made.” People v Callon, 256 Mich App 312, 321; 662 NW2d
501 (2003), citing People v Parker, 230 Mich App 337, 339; 584 NW2d 336 (1998).
“ ‘Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.’ ” People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009), quoting
People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). “This Court will not
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substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight.” People v Petri, 279 Mich App 407, 411;
760 NW2d 882 (2008) (quotations omitted).
To establish an ineffective assistance of counsel claim, a defendant must show
that (1) counsel’s performance was below an objective standard of reasonableness
under prevailing professional norms and (2) there is a reasonable probability that,
but for counsel’s error, the result of the proceedings would have been different.
People v Davenport, 280 Mich App 464, 468; 760 NW2d 743 (2008). A
defendant must also show that the result that did occur was fundamentally unfair
or unreliable. Id. [Lockett, 295 Mich App at 187.]
In this case, defendant contends she was denied effective assistance of counsel when her
attorney failed to investigate, discover, and, ultimately, subpoena a witness – Tawana McKnight
– who would have corroborated defendant’s testimony at trial. At the Ginther hearing,
defendant’s attorney, Robert Simmons, testified that defendant provided him with the name,
number, and address of a “Jawanda Jones” as a potential witness. Simmons attempted to contact
Jones at the telephone number provided but was told “that there was no Jawanda Jones at that
particular number.” The address he was provided for Jones was 20084 Greenview Avenue in
Detroit. That address is directly across the street from defendant’s home. According to
Simmons, after having been unable to locate Jones by telephone, he focused his investigative
efforts on evidence that would bolster defendant’s testimony.
Tawana McKnight testified at the Ginther hearing that she lived at 20084 Greenview
Avenue in Detroit and had lived there for two years. She testified that she was not “friendly”
with the people who lived on her block and had not had a conversation with defendant.
McKnight testified that on March 25, 2015 between noon and one p.m. she was sitting on her
porch while McKnight’s fiancé, Alvin Taylor, and a friend of approximately 12 years, Donald
Cunningham, were in McKnight’s driveway, working on her vehicle. McKnight heard defendant
saying “he got my purse.” Defendant was on her own porch. A gentleman then jumped into a
car in defendant’s driveway and starting backing into the street. Cunningham went into the street
with a crowbar. The car backing into the street tried to run Cunningham over so Cunningham
threw the crowbar at his window. The car took off down the street and Cunningham picked up
another heavy object like a brick or stone and threw it at the back window of the car, shattering
it. McKnight testified that if she had been subpoenaed to testify at trial as to what she had seen
on March 25, she would have gone to the trial and would have testified just as she had at the
Ginther hearing.
With respect to contact prior to trial, McKnight testified that she is a homemaker and is
generally at home. She testified that no one contacted her by telephone or by mail regarding this
case, but that someone, possibly Mr. Simmons, left a card at her home. McKnight testified that
though there was nothing on the card indicating that it was about the incident at hand, she called
the number on the card and left a message with someone, but no one called her back.
Defense counsel had McKnight’s proper address, having listed the address on his witness
list (albeit attributed to the wrong name) but made no attempt to contact her by mail or in person.
It would have taken little effort to obtain the proper name of the witness whose address was
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known to defense counsel. Simmons’s failure to secure McKnight, the across-the-street neighbor
who was known to have witnessed the event, as a witness fell below an objective standard of
reasonableness.
Moreover, there is a reasonable probability that counsel’s failure altered the outcome of
the case, as defendant was deprived of a substantial defense. “The failure to call witnesses only
constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense.”
People v Solloway, 316 Mich App 174, 189; 891 NW2d 255 (2016) (quotations omitted). “ ‘A
substantial defense is one that might have made a difference in the outcome of the trial.’ ”
People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009), quoting People v Kelly, 186
Mich App 524, 526; 465 NW2d 569 (1990).
The trial court found that Simmons’s failure to call McKnight as a witness did not
deprive defendant of a substantial defense because the substance of the defense was raised in the
direct examination of defendant. We disagree.
Defendant’s primary defense was that she, and not the complainant, was the victim in this
case. Defendant asserted that she had been the victim of a larceny perpetrated by the
complainant, and more importantly, that an unnamed man, and not defendant, had broken the
complainant’s windshield and rear window. While defendant testified to these facts, the only
other witness to testify at trial was the complainant. Simmons produced some physical evidence
attempting to discredit the complainant’s reason for showing up at defendant’s house, but the
matter essentially came down to a credibility contest between defendant and the complainant.
The testimony of McKnight, a disinterested third-party witness who was not friends with either
defendant or complainant, corroborated defendant’s version of the events that transpired and
pointed to defendant’s innocence. Defendant testified that she did not leave her porch during the
incident and did not touch the complainant’s car, but that a man did, after the complainant tried
to run him over with his car. McKnight also testified that defendant remained on her porch and
that McKnight’s long-time friend shattered the complainant’s car window after they heard
defendant say that the complainant took her purse. Lacking McKnight, an impartial witness’s,
testimony to corroborate defendant’s version of the events deprived defendant of a substantial
defense.
Reversed and remanded for a new trial. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
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