People of Michigan v. Wilbert Joseph McKeever, 331594

Background

In July 2012 defendant McKeever assaulted victim Fawaz; during the altercation Craven (his girlfriend) took Fawaz’s wallet and money; video showed Craven taking and handing the money to McKeever, who discarded the wallet and left with Craven.
McKeever was convicted of unarmed robbery (MCL 750.530) and aggravated assault (MCL 750.81a); he admitted the assault but disputed that it was committed in the course of larceny.
On direct appeal this Court affirmed; the Michigan Supreme Court reversed part of that decision, holding McKeever did not abandon his ineffective-assistance claim and remanded for a Ginther evidentiary hearing to determine whether trial counsel was ineffective for failing to call Craven or whether the trial judge (off the record) precluded her testimony.
At the Ginther hearing the original trial judge and prosecutors had no recollection; Craven did not appear; trial counsel Barnett had no independent recollection and gave inconsistent statements about who decided whether Craven could testify.
The trial court on remand found that apparently a decision had been made at trial excluding Craven, but the judge could not determine the basis and denied McKeever’s motion for a new trial.
The Court of Appeals reversed and remanded for a new trial, concluding the remand required by the Supreme Court could not be meaningfully satisfied because the basis for any exclusion is unknowable (trial judge retired and has no recollection), and the error (if any) warranted a new trial under harmless-error analysis.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for failing to call Craven at trial	Prosecutor: evidence against McKeever was overwhelming; prior record and jury rejection of defense theory make any error harmless	McKeever: counsel failed to investigate/call Craven, and her testimony would likely have produced a different outcome on the robbery count	Court: Because the Supreme Court remand required determining this and the record cannot disclose why Craven did not testify (judge retired/no memory), a new trial is required; remand hearing cannot meaningfully resolve the issue
Whether the trial judge precluded Craven from testifying (off the record) and, if so, on what basis	Prosecutor: no record of such a ruling; prior appellate opinions found no court exclusion	McKeever: Supreme Court ordered inquiry into whether judge precluded Craven; absence of transcript leaves the issue unresolved	Court: Trial court found a ruling was apparently made but could not determine the basis; because the basis cannot now be discovered, the case cannot be meaningfully reviewed and a new trial is required
Whether Craven could testify at the Ginther evidentiary hearing by telephone	Prosecutor: MCR 6.006 governs criminal evidentiary hearings and does not permit telephonic testimony absent videoconferencing; telephone testimony not allowed	McKeever: requested telephonic testimony under MCR 3.210(A)(4) (domestic-relations rule)	Court: Telephonic testimony was not permitted; MCR 3.200 rules do not apply to criminal matters; the court correctly refused telephone testimony
Whether missing trial-transcript material (ruling excluding Craven) denied McKeever effective appellate review	Prosecutor: record adequate; errors (if any) subject to harmless-error review	McKeever: absence of transcript prevents appellate review of whether judge excluded witness and basis for exclusion	Court: Did not decide this separately because it ordered a new trial based on inability to comply with Supreme Court remand; concluded remanding for further factual development would be futile and reversed for new trial

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong ineffective-assistance test)
Trakhtenberg v. Wayne Cty., 493 Mich. 38 (2012) (clarifies counsel’s duty to investigate and review of ineffective-assistance claims)
Ginther v. Wayne Prosecutor, 390 Mich. 436 (1973) (authorizes evidentiary hearing to test ineffective-assistance claims)
Robinson v. People, 475 Mich. 1 (2006) (elements of aiding and abetting liability)
March v. People, 499 Mich. 389 (2016) (elements of larceny)
Lukity v. People, 460 Mich. 484 (1999) (standard for reversal based on evidentiary error)
Gonzalez-Raymundo v. People, 308 Mich. App. 175 (2014) (harmless-error standard for constitutional nonstructural errors)
Crane v. Kentucky, 476 U.S. 683 (1986) (right to present a defense is subject to harmless-error review)
Whitfield v. People, 425 Mich. 116 (1986) (applying harmless-error review to right-to-present-defense claims)
Miller v. People, 482 Mich. 540 (2008) (discussion of structural errors)
Duncan v. People, 462 Mich. 47 (2000) (structural error is narrow category)
Buie v. People, 491 Mich. 294 (2012) (court-rule interpretation principles)
Rahilly v. People, 247 Mich. App. 108 (2001) (statutory/ rule-interpretation inference from omissions)