Background
Michelle Lee Kitto and her boyfriend John Wodie were investigated for methamphetamine trafficking by a multi-jurisdictional narcotics task force. In December 2022, officers stopped their vehicle and discovered approximately 42 grams of methamphetamine. Defendant admitted to helping Wodie purchase and sell methamphetamine. At trial, the jury heard evidence of drugs found in their home, a recorded police interview in which defendant admitted involvement in drug sales, officer testimony, and messages and a letter from defendant acknowledging her guilt.
Before trial, defendant requested that her counsel call Wodie and Lull (the alleged methamphetamine supplier) as witnesses, believing they would testify that she had minimal involvement in drug transactions. After unsuccessfully moving to compel their subpoena, defense counsel informed the court he would not call either witness, fearing it would open the door to more damaging evidence. The jury convicted defendant on all five counts: possession with intent to deliver methamphetamine, two counts of possession within 1,000 feet of a school or library, conspiracy to possess with intent to deliver, and maintaining a drug house.
Defendant appealed, arguing her trial attorney was ineffective for failing to call Wodie and Lull as defense witnesses.
The Court’s Holding
The Michigan Court of Appeals affirmed the convictions, holding that defense counsel did not render ineffective assistance. To prevail on an ineffective assistance claim, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability the outcome would have been different but for counsel’s error. Trial counsel receives broad deference in strategic decisions.
The court found counsel had legitimate strategic reasons for not calling the witnesses. First, both Wodie and Lull could have asserted their Fifth Amendment privileges against self-incrimination, as their testimony would have required them to admit to serious drug crimes. Second, the testimony would not have been clearly exculpatory. Wodie’s prior statements to police were internally inconsistent—he initially claimed the methamphetamine belonged to him, then stated he found it on the road, then admitted he and defendant were addicts transporting it for personal use. Even his later affidavit that he alone engaged in trafficking after defendant’s arrest did not rule out joint involvement before arrest. Similarly, Lull’s police report showed he admitted to selling drugs to both Wodie and defendant, contradicting any claim he sold only to Wodie.
Third, calling these witnesses would have allowed prosecutors to present additional damaging evidence through impeachment and cross-examination—including evidence of defendant’s presence during Wodie’s trips to purchase methamphetamine and her involvement in sales from their home. Given the substantial evidence against defendant, including her own multiple admissions of guilt, the court concluded counsel’s strategy of avoiding these witnesses was reasonable trial tactics.
Key Takeaways
- Trial counsel receives substantial deference in strategic decisions; courts will not substitute their judgment absent a clearly unreasonable choice that undermines confidence in the outcome.
- Witnesses’ Fifth Amendment rights and inconsistent prior statements are legitimate tactical considerations; counsel is not ineffective for avoiding witnesses whose testimony would be unreliable or who might invoke self-incrimination.
- Opening the door to additional prosecutorial evidence through witness testimony can itself be sound trial strategy, even if the defendant believes witnesses would help their case.
- Defendants bear a heavy burden to prove ineffective assistance; bare assertions about what a witness “would have testified” are insufficient without clear factual support from the record.
Why It Matters
This decision reinforces the high bar for ineffective assistance of counsel claims and the broad discretion trial attorneys exercise in deciding which witnesses to present. It demonstrates that courts will not second-guess strategic choices to avoid calling witnesses, particularly when doing so risks opening doors to prosecutorial impeachment and additional damaging evidence. The opinion underscores that a reasonable trial strategy may include calculated silence when witnesses’ testimony would be unreliable, contradictory, or likely to invite more harm than benefit.
For defendants and practitioners, the ruling illustrates that merely asserting a witness would have provided exculpatory testimony is insufficient; the record must clearly support that the testimony would actually exonerate or significantly undermine the prosecution’s case. The court’s analysis of Wodie’s contradictory statements and Lull’s admissions selling to defendant despite initial claims otherwise shows how prior inconsistent statements can defeat claims of exculpatory testimony before trial even begins.