People of Michigan v. Jose Israel Escalona-Martinez

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED August 11, 2022 Plaintiff-Appellee, v No. 357676 Ingham Circuit Court JOSE ISRAEL ESCALONA-MARTINEZ, LC No. 17-000663-FH Defendant-Appellant. Before: SWARTZLE, P.J., and RONAYNE KRAUSE and GARRETT, JJ. PER CURIAM. Defendant was convicted of domestic violence, third offense, MCL 750.81(5), for a July 3, 2012, incident in which he struck his ex-girlfriend. Defendant appealed his conviction, arguing that his trial attorneys were ineffective for failing to investigate and argue his alibi defense that he was in New York City the day of the incident. This court remanded to the trial court for a Ginther1 hearing, People v Escalona-Martinez, unpublished per curiam opinion of the Court of Appeals, entered February 11, 2021 (Docket No. 349974), and the trial court concluded on remand that defendant’s trial attorneys were effective. Defendant again argues that his trial attorneys were ineffective for failing to investigate and present his alibi defense. We affirm. On remand, defendant presented multiple witnesses who averred and testified that he was living in a homeless shelter in New York City in July 2012. None of the witnesses who testified at the Ginther hearing, however, could give unequivocal testimony that defendant was in New York City on July 3. Only one witness specifically testified that defendant was in the city on that date, but that witness had also testified that he was not sure if he even saw defendant on that date. In any event, the trial court concluded that, as a factual matter, none of the witnesses could recall seeing defendant at the critical time involved in this case. Defendant also testified at the hearing, claiming that he told both of his trial attorneys about his alibi and that he even provided a list of witnesses to his second attorney. 1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). -1- Both of defendant’s trial attorneys testified at the Ginther hearing. Defendant’s first attorney, Julie Loveless, testified that she represented defendant from August to October 2017. According to Loveless, defendant gave her three different stories about his alibi on July 3, 2012. First, that he was detained by immigration officials in Canada; second, that the victim actually assaulted him in New York that day; and third, that he was living at the homeless shelter. Only the third alibi is at issue now. Loveless called the homeless shelter three times and was told that the shelter did not have any records to verify defendant’s alibi. Defendant did not give her the names of any potential witnesses; he also did not tell her that his phone or bank records could help establish his alibi. Loveless stopped representing defendant in October 2017 due to medical reasons and she was replaced by Robert Palmer. According to Palmer, he was aware of Loveless’s investigation into defendant’s homeless- shelter alibi. Nevertheless, Palmer also …

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