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156161 - People v Wilbert Joseph McKeever

The People of the State of Michigan,

 

Toni Odette

 

Plaintiff-Appellant/Cross-Appellee,

 

v

(Appeal from Ct of Appeals)

 

 

(Wayne – Walker, S.)

 

Wilbert Joseph McKeever,

 

Chari Grove

 

Defendant-Appellee/Cross-Appellant.

 

Summary

A jury convicted defendant of unarmed robbery and assault for beating a man while defendant’s girlfriend took the man’s wallet. His defense was to admit that he was guilty of assault, but not robbery, because he had no part in taking anything from the victim. The girlfriend pled guilty before defendant’s trial but did not testify, though she later claimed to be willing to testify that defendant did not know she was going to take the wallet. Defendant’s trial counsel made statements on the record suggesting that he was precluded from calling the witness, though the trial court made no such statements on the record. The trial court conducted an evidentiary hearing to determine whether it was the court or counsel who was responsible for the girlfriend’s failure to testify, and whether counsel was ineffective for any such decision in that regard. Defense counsel was unable to secure the girlfriend’s presence at the hearing. The trial court denied defendant’s motion for a new trial, but the Court of Appeals reversed. The Supreme Court has directed oral argument on the prosecution’s application for leave to appeal to address: (1) whether defendant is entitled to a new trial based on either trial court error or ineffective assistance of counsel, where the defense witness that was not produced at trial also did not appear at the post-conviction evidentiary hearing; and (2) whether the witness’s failure to appear at the hearing is attributable to the defense under these circumstances. ​