(dissenting). Following affirmance by the Court of Appeals of his convictions of first-degree murder, assault with intent to murder, attempted armed robbery and possession of a firearm during the commission of a felony,* 1 defendant Albert Reed filed a motion for postappeal relief from judgment. MCR 6.508.2 The judge who heard *407the motion found that Reed’s trial lawyer had been ineffective in failing to object to or request curative instructions for prosecutorial misconduct, that Reed’s first appellate lawyer had been ineffective in failing to raise those issues on direct appeal, and that those errors constituted a "miscarriage of justice.” The judge granted Reed’s motion for relief from judgment.
A divided panel of the Court of Appeals reversed,3 holding that the judge erred in finding that Reed had shown good cause, as required by MCR 6.508(D)(3)(a), on the basis of the failure of his first appellate lawyer to raise issues on Reed’s first appeal. The Court of Appeals did not consider on the merits the allegations of prosecutorial misconduct or the allegations or finding by the judge *408that the trial lawyer was ineffective. Nor did it consider whether Reed had shown "actual prejudice” as required by MCR 6.508(D)(3)(b).
This Court granted leave to appeal "limited to whether defendant has shown cause and prejudice as is required by MCR 6.508(D)(3).”4 I would find that Reed showed good cause for failing to raise issues on the first appeal. Unless the first appellate lawyer is Groucho Marx, his own ineffectiveness is not an issue that will be raised by him on direct appeal.
Because the Court of Appeals did not consider the allegations or findings of prosecutorial misconduct and trial lawyer ineffectiveness, and did not consider whether Reed showed actual prejudice, I would not and do not address those issues. This Court should not bypass the trial court and Court of Appeals by resolving issues not addressed by those courts. Because the judge’s findings on the actual prejudice issue are inadequate, this Court should remand to the trial court for further consideration.
i
Reed’s convictions stemmed from his role in what had apparently been a botched robbery , attempt that took place at the Trafile Light Lounge in the City of Detroit on March 24, 1982. Reed and a codefendant, Keith Sharp — who had been tried before Reed and found guilty, but not of murder— had been driven to the lounge by a friend of Sharp’s, who saw- that both were armed when they entered his automobile.
After he and Reed had been in the lounge for awhile, Sharp went over to the bar. His demeanor disturbed one of the bartenders, who went to the back room to inform her boss, the decedent bar *409owner, Lee Griffin, that a patron was causing a disturbance. Sharp went to the back room, where he was met at the swinging doors by Johnny Ray Moore, a friend of Griffin’s, who had been with him in the back room. Sharp announced a robbery and began shooting. He and Moore struggled for Sharp’s gun, a nine millimeter semiautomatic handgun. Moore was shot once in the chest. Their struggle led them to the bar area.
Griffin followed Moore out of the back room. When Moore appeared to have Sharp subdued, Sharp yelled for help. Griffin asked Moore to give him Sharp’s gun and to let Sharp up. Moore testified that as he turned to hand Sharp’s gun to Griffin, he heard three or four more shots, from a different gun, coming from behind him. He looked to see Reed standing over him, shooting at him. Reed shot Moore once in the arm and once in the chest. Griffin slumped over on Moore. Sharp got up, stepped on Moore’s chest, retrieved the nine millimeter handgun, and he and Reed left the bar.
No witness other than Moore saw Reed shoot a gun. Numerous nine millimeter casings and slugs were found in the bar, and one .38 caliber casing was found near the pool table. Reed had been standing near the pool table, according to Moore, and had been armed with a .38 caliber handgun according to the person who had driven Reed and Sharp to the bar. No slugs were recovered from Griffin’s body or from Moore, with the result that there is no evidence that any of the recovered casings or slugs matched either of the weapons.
Griffin died of his wounds. Moore was hospitalized with his injuries for five days, and still carries one of the bullets that entered his chest.
n
The judge found that the prosecutor committed *410misconduct that denied Reed a fair trial.5 Reed’s trial lawyer had failed to object, and failed to ask for curative instructions.6 Reed’s first appellate lawyer had failed to raise the issues of prosecutorial misconduct and ineffectiveness of the trial lawyer on direct appeal, on which the judge based her conclusion that the first appellate lawyer had not acted as reasonably competent counsel. Those errors, she said, "were serious enough to constitute a miscarriage of justice and should have been raised by appellate counsel despite trial counsel’s failure to object.”
The Court of Appeals disagreed with the judge, finding that Reed had not shown the good cause that MCR 6.508(D)(3)(a) requires for failing to raise issues that could have been raised on direct appeal. The Court of Appeals reasoned that, for Reed to show good cause for having failed to raise an issue that could have been raised on direct appeal, he had to show that his first appellate lawyer had been ineffective. The Court had held that the requirements of Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984),7 *411would apply to claims of ineffective assistance of appellate counsel.8
Following Jones v Barnes, 463 US 745; 103 S Ct 3308; 77 L Ed 2d 987 (1983),9 the Court of Appeals said that "appellate counsel’s failure to raise every conceivable issue does not constitute ineffective assistance of counsel..”10 The Court added:
Counsel must be allowed to exercise reasonable professional judgment in selecting those issues most promising for review. The fact that counsel failed to recognize or failed to raise a claim despite recognizing it does not per se constitute cause for relief from judgment.[11]_
*412Jones v Barnes is a federal habeas corpus case. The United States Supreme Court, in fashioning federal habeas corpus jurisprudence, is concerned with the principles of finality and comity. Since Michigan courts review only Michigan cases, we need not concern ourselves with comity.
The goal of promoting the finality of judgments is not served by encouraging appellate lawyers in criminal cases to outguess appellate benches by deciding which will be the winning issues that should be brought to the appellate court’s attention, and ignoring other meritorious issues.
Finality of judgments12 will best be promoted by holding appellate lawyers, whether retained or appointed, to standard 9 of the Minimum Standards for Indigent Criminal Appellate Defense Services, adopted by this Court in Administrative Order No. 1981-7, pursuant to MCL 780.712; MSA 28.1114(102). Standard 9 provides:
Counsel should assert claims of error which are supported by facts of record, which will benefit the defendant if successful, which possess arguable legal merit, and which should be recognizable by a practitioner familiar with criminal law and procedure who engages in diligent legal research.
Often what an appellate lawyer thought would be his best issue will be ignored by the appellate *413court. Reversal may be granted on what the lawyer thought was a losing issue.
The majority of the Court of Appeals chides Reed for raising unpreserved issues in his motion for relief from judgment.13 Neither of the issues raised in Reed’s appeal of right had been preserved by objection.
Ineffective assistance is not merely a "conceivable” issue, but one that may sometimes be objectively determined from the trial record. Where ineffective assistance is clearly established on the record, there is no need for an evidentiary hearing.14
in
The Court of Appeals, having found that Reed failed to show "good cause” for filing a MCR 6.508 motion, declined to discuss the issues concerning Reed’s trial that the judge discussed at some length and had found to be meritorious.
In the motion for relief from judgment, Reed’s present lawyer raised five issues.15 The judge found no merit in the first four issues,16 but found merit *414in the fifth issue, claiming that the trial lawyer and first appellate lawyer had rendered ineffective assistance. An assessment of the claim that the first appellate lawyer had been ineffective thus required an assessment of the trial lawyer’s performance.17
The trial lawyer failed to object to (1) the prosecutor’s repeatedly erroneously defining felony murder as ”a killing occurring during the course *415of a robbery,” (2) the prosecutor’s repeated use of the phrase "we know” as a preface to comments made during closing arguments, "which the defense asserts injected the prosecutor or his office in the fact-finding process,” and (3) the prosecutor’s use of "not caring” as the mental state required for the crime of assault with intent to murder.
The judge said that she was following the two-pronged test set forth in Strickland v Washington in measuring the effectiveness of the trial lawyer.
The prosecutor misstated the felony-murder rule stated by this Court18 by characterizing felony murder as a killing occurring during the course of an enumerated felony under the felony-murder statute.19 The judge said that there was no advantage to the defense in failing to object to a statement of the law that would lessen the prosecutor’s burden of proof on the felony-murder charge and increase the likelihood of conviction.
The judge similarly so found regarding the prosecutor’s repeated use of "not caring” as the mental state required for assault with intent to murder— as distinguished from actual intent to kill — and the trial lawyer’s failure to object to that misstatement. The erroneous statement similarly lessened the prosecutor’s burden of proof and increased the likelihood of conviction.20_
*416The judge found that the prosecutor’s repeated use of the preface "we know” during his closing argument "does not necessarily constitute misconduct or reflect that the prosecutor vouched for the guilt of the defendant.” It could have been a shortened way of saying "we all (jury and prosecutor) heard the testimony” given in court. The judge added that "the prosecutor’s remarks must be evaluated in light of the relationship they bear to the evidence admitted at trial.”21 Where such a preface was employed in recounting issues of fact not in controversy, there was no error.
The judge found error where the prosecutor used "we know” to preface a fact in dispute — the identity of the person who fired the fatal shot — to which the trial lawyer failed to object. The fatal shot was not recovered from the decedent’s body, and the caliber of the fatal bullet was never determined. Since the evidence showed that Reed had used a .38 caliber handgun, and that Sharp had used a nine millimeter semiautomatic handgun, there was no consensus concerning the gun that fired the fatal shot.
While Moore testified that Reed had shot both him and the decedent, two other witnesses testified that they saw Sharp struggling with Moore as shots rang out, not Reed. Other witnesses neither saw the shootings nor identified the shooters. The judge concluded that the use of "we know” to preface what she characterized as "the central issue in controversy” (the identity of the decedent’s shooter), where "the evidence [on that issue] conflicted,” could not "be said to be an innocent, fair summation of the testimony.” Such a preface appeared to the judge to "have lead the jury (who were the only fact finders) to ’suspend its own *417powers of critical analysis and judgment in deference to those of the prosecutor.’ ”22
Because the Court of Appeals did not assess the judge’s decision that the trial lawyer was ineffective, this Court should not address or rule on that issue.23
*418IV
The judge said that the prosecutor’s misstatements denied Reed due process, and his trial lawyer’s failure to object or request curative instructions meant that he did not perform "as a reasonably competent attorney or as counsel guaranteed by the Sixth Amendment.” She further stated that the appellate lawyer’s failure to raise prosecutorial errors and trial lawyer ineffectiveness constituted failure of the first appellate lawyer to act as a reasonably competent lawyer. Those errors, she said, "were serious enough to constitute a miscarriage of justice and should have been raised by appellate counsel despite trial counsel’s failure to object.”
Relief from judgment may be granted only when the defendant shows that he suffered "actual prejudice from the alleged irregularities that support the claim for relief.” " '[Ajctual prejudice’ means that ... in a conviction following a trial, but for the alleged error, the defendant would have had a reasonably likely chance of acquittal, MCR 6.508(D)(3)(b)(i), or, "in any case, the irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand regardless of its effect on the outcome of the case . . . .” MCR 6.508(D)(3)(b)(iii).
The judge may have found prejudice under MCR 6.508(D)(3)(b)(iii), in that she characterized the errors as "serious enough to constitute a miscarriage of justice” without regard for their effect on the outcome of the trial.
The 'majority of the Court of Appeals, having found that failure to raise certain alleged improprieties on direct appeal- did not constitute "good cause” under MCR 6.508(D)(3)(a), did not rule on *419whether the alleged errors caused Reed actual prejudice.
Reed argues that he showed actual prejudice under both subsections (i) and (iii). He argues that the evidence against him was not overwhelming, and that the prosecutorial errors asserted — the prosecutor having misstated the law and having repeatedly vouched for his case — are the type that lead a jury to suspend its own powers of analysis in deference to those of the prosecutor. Further evidence of actual prejudice is the judge’s finding that some of the errors were serious enough to have caused a miscarriage of justice under subsection (iii).
The prosecutor argues that there was neither good cause for failing to raise particular issues on direct appeal nor actual prejudice suffered by Reed.
The judge referred to neither of the MCR 6.508(D)(3)(b) definitions of actual prejudice (subsections [i] and [iii]) in granting Reed’s motion. The Court of Appeals did not address the actual prejudice issue.
This Court should vacate the decision of the Court of Appeals and remand to the trial court for further exposition on the actual prejudice issue.
Weaver, J., took no part in the decision of this case.Unpublished opinion per curiam, issued September 13, 1984 (Docket No. 74583).
MCR 6.500 et seq. provides for review of judgments in criminal cases no longer subject to direct appeal to the Court of Appeals or this Court. MCR 6.508(D) provides that the "defendant has the burden of establishing entitlement to the relief requested,” and that the court may not grant relief to the defendant if the motion alleges grounds *407for relief which were decided against the defendant in a prior appeal unless there has been a retroactive change in the law, and that the "court may not grant relief to the defendant if the motion”
(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, and
■ (b) actual prejudice from the alleged irregularities that support the claim for relief. As used in this subrule, "actual prejudice” means that,
(i) in a conviction following a trial, but for the alleged error, the defendant would have had a reasonably likely chance of acquittal;
(iii) in any case, the irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not he allowed to stand regardless of its effect on the outcome of the case;
The court may waive the "good cause” requirement of sub-rule (D)(3)(a) if it concludes that there is a significant possibility that the defendant is innocent of the crime.
198 Mich App 639; 499 NW2d 441 (1993).
445 Mich 882 (1994).
The judge found that the prosecutor had repeatedly misstated the felony-murder rule, characterizing felony murder as a killing occurring during the. course of a felony. He had also misstated the law regarding the specific intent required for a conviction of assault with intent to kill — that the defendant must have intended to kill the victim. Those errors had the effect of lessening the prosecution’s burden of proof. The judge also found that the prosecutor had used the phrase "we know” during his closing argument to characterize an important fact in dispute at the trial, thus putting the weight of the prosecutor’s office behind his argument.
In the appeal of right, Reed’s appointed appellate lawyer raised two issues: (1) the instruction by the court on the felony-murder rule had been overbroad and unclear in that it did not inform the jury that it could not infer intent to kill from intent to commit the underlying felony, and (2) introduction of evidence that Sharp had been tried and, inferably, convicted in a prior proceeding for his role in these events.
To establish ineffective assistance of counsel, Strickland requires that a defendant show that the lawyer committed errors that were so *411serious, under an objective standard of reasonableness, "that counsel was not functioning as an attorney as guaranteed under the Sixth Amendment. [T]he defendant must overcome the presumption that, under the circumstances, the challenged action also might be considered sound trial strategy.” In addition, the error must prejudice the defendant.
People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991).
The Court of Appeals said:
The process of "winnowing out weaker arguments on appeal and focusing on” those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. Jones v Barnes, supra at 751-752. [198 Mich App 648, n 8.]
Jones v Barnes relied on Stern, Appellate Practice in the United States (BNA, 1981), where, in § 7.22, p 283, it was observed:
Perhaps criminal cases are an exception to the general rule. Defense counsel, including and perhaps párticularly appointed counsel, deem it their obligation to raise every possible contention, in part to avoid being charged with not having fulfilled their duty to an indigent client. [Emphasis added.]
Although today’s decision is the first interpretation by this Court of MCR 6.508(D), in the five years since it was adopted, there has not been a flood of orders granting relief from judgment pursuant to this rule.
198 Mich App 646.
Id., pp 646-647. The Court of Appeals continued:
*412Thus, to permit proper review in cases where appellate counsel has pursued an appeal as of right and raised nonfrivolous claims, the defendant must make a testimonial record in the trial court in connection with a claim of ineffective assistance of appellate counsel. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
While trial is the "main event,” discretionary and direct appeal, and postconviction proceedings, including state and federal habeas corpus, have a well-established and historic role in the criminal justice system. See Murray v Carrier, 477 US 478, 516; 106 S Ct 2639; 91 L Ed 2d 397 (1986) (Brennan, J., dissenting).
198 Mich App 647.
In the instant case, the errors of the trial lawyer did not necessarily require an evidentiary hearing. The errors (see text preceding n 18) appear on the record.
(1) The prosecutor argued facts not in evidence by exhibiting a photograph of Sharp, in which he appeared younger than Reed, thus implying that Reed was the ringleader and an experienced criminal; (2) the prosecutor argued facts not in evidence by stating in opening argument that shells matching Sharp’s gun were found in the bar, when no such evidence was introduced at trial; (3) the prosecutor erred in placing Sharp’s conviction before the jury; (4) the trial court gave improper instructions on the elements of assault with intent to murder; and (5) the trial lawyer and former appellate lawyer rendered ineffective assistance as guaranteed by the Sixth Amendment.
Sharp appeared younger than Reed in a photograph displayed to the jury. The judge said that this would not, without other misconduct, "lead to an inference that the defendant was a bad man or experienced criminal,” even if that had been, in fact, what the *414prosecutor intended the jury to infer. Since there had been no other related misconduct at Reed’s trial — nothing in the nature of his having a prior record, of which there is no evidence, or references to other illegal acts committed by Reed, of which there is no evidence— the prosecutor having said that Sharp may have made mistakes because he was the younger of the two did not deprive Reed of a fair trial.
The prosecutor’s statement in opening argument that shells matching Sharp’s gun were found in the bar when no such evidence was presented at trial did not deprive Reed of a fair trial. The evidence, presented by numerous witnesses, that Sharp had been present and that he had been shooting his gun, was overwhelming.
Sharp’s conviction had been erroneously placed before the jury. Since this had been litigated on direct appeal, this issue was not appropriately before the judge in the motion for relief from judgment, and she properly noted that she could not grant relief on it.
The judge also disagreed with Reed’s contention that the judge’s instructions on the offense of assault with intent to commit murder were erroneous. The trial judge had instructed the jury that the requisite intent was intent to kill. There was no case law to support Reed’s contention that the instruction on manslaughter but not second-degree murder could have led the jury to infer that it could convict Reed of assault with intent to commit murder if it found that his intent in shooting Moore was to commit great bodily harm or was done with wilful and wanton disregard of the likelihood that death or great bodily harm would occur.
In Murray v Carrier, n 12 supra, p 483, Carrier had abandoned any claim of ineffective assistance of counsel. In the instant case, an issue is whether there was effective assistance of counsel. The United States Supreme Court said: "So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v Washington [466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984)], we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default” under state law. Murray v Carrier, supra, p 488. (Emphasis added.)
Murray v Carrier does not circumscribe this Court’s authority to decide what constitutes procedural default under Michigan law and procedure.
People v Aaron, 409 Mich 672; 299 NW2d 304 (1980).
Aaron requires that the prosecutor show malice in connection with the killing, in addition to the mental state necessary to commit the underlying felony. After Aaron, "felony murder” in Michigan is murder committed as a direct result of the commission or attempt to commit a felony, with one of the recognized forms of malice (intent to kill, intent to cause great bodily harm, or wanton and wilful disregard of the likelihood that the natural tendency of one’s acts will cause death or great bodily harm), not a killing that occurred during the course of a felony.
In People v Taylor, 422 Mich 554, 567; 375 NW2d 1 (1985), this Court held that the mental state .required to convict of assault with intent to murder was actual intent to kill. No lesser intent provides the requisite mental state.
The judge cited People v Cowell, 44 Mich App 623, 627; 205 NW2d 600 (1973).
The judge cited People v Humphreys, 24 Mich App 411, 418; 180 NW2d 328 (1970).
The judge’s characterization of the identity of the shooter of the fatal shot as the central issue in the trial might not be correct because Reed may have been subject to liability as an aider or abetter.
The prosecutor argues that the prosecutor did not commit misconduct at Reed’s trial, and Reed therefore was not prejudiced by any failure to object to statements made by the prosecutor during closing argument.
The prosecutor argues that all the instances of alleged prosecutorial misconduct in the form of misstatements of the law and prosecutorial vouching did not constitute misconduct when the statements are viewed in the context of the prosecutor’s entire closing argument.
The prosecutor argues that the prosecutor’s use of "we know” as a preface to many of his remarks during closing argument was not an instance of vouching where there was evidence to support his arguments. He disagrees with the judge’s characterization of the identity of the shooter as the central issue in controversy, because Moore’s testimony on that issue was undisputed — no other witness contradicted that statement, and most were not in a position to see who was shooting whom.
The prosecutor, when using "not caring” as a proper mental state for murder when recounting the felony-murder rule, was describing the third form of malice attendant to murder, that of wilful and wanton disregard of the natural likelihood that one’s actions would cause death or great bodily harm.
The prosecutor posits that, when viewed in its entirety, the prosecutor’s definition of the malice requisite to a finding of murder was adequate. Also, the judge gave proper instructions on the felony-murder rule.
Finally, the prosecutor argues that the prosecutor’s statement of the elements of the crime of assault with intent to murder, while erroneous, was cured by the instructions given by the judge. The prosecutor argues that the law at that time was in a state of flux with regard to the mental state requisite to a finding of assault with intent to murder, and notes that People v Taylor would not be decided until two years after the prosecutor made his closing argument at Reed’s trial.
Reed maintains that the judge correctly assessed the effect of the prosecutorial errors in his closing argument — that they lessened the prosecution’s burden of proof, and that there was no sound trial strategy for the trial lawyer having failed to object or request curative instructions.