Background
In November 2022, the Gogebic Iron Area Narcotics Team (GIANT) began investigating Michelle Lee Kitto and her boyfriend John Wodie for selling methamphetamine from their home in Ironwood, Michigan. Acting on information from a confidential informant and GPS tracking, investigators learned that Kitto and Wodie were obtaining large quantities of methamphetamine from Nick Lull in Superior, Wisconsin. In December 2022, during a traffic stop upon their return from Wisconsin, police discovered approximately 42 grams of methamphetamine in their vehicle. Kitto admitted to helping Wodie purchase methamphetamine and to selling it.
At trial, Kitto wanted her attorney to call Wodie and Lull as defense witnesses, believing they would testify that she was uninvolved in the drug transactions. After unsuccessfully seeking to require the prosecution to subpoena them, defense counsel decided not to call either witness. The jury heard evidence of drug paraphernalia found in the home, a recorded police interview in which Kitto admitted involvement, testimony from GIANT investigators, and a jail message and court letter from Kitto acknowledging her guilt. The jury convicted Kitto on all five charges: possession with intent to deliver methamphetamine, two counts of possession within 1,000 feet of a school or library, conspiracy to commit possession with intent to deliver, and maintaining a drug house. She received 8 to 20 years imprisonment on the primary charges.
Kitto appealed, claiming her counsel was ineffective for failing to call Wodie and Lull. She argued that any reasonable attorney would have presented witnesses who could testify to her minimal involvement in the drug transactions.
The Court’s Holding
The Michigan Court of Appeals affirmed the convictions, holding that defense counsel’s decision not to call the witnesses constituted legitimate trial strategy entitled to deference. The court emphasized that trial counsel enjoys wide discretion regarding which evidence to present and which witnesses to call, and that appellate courts will not second-guess such decisions absent clear error or a showing that the strategy fell below objective standards of reasonableness.
The court identified several strategic reasons supporting counsel’s decision. First, calling Wodie or Lull would have required those witnesses to make self-incriminating admissions under the Fifth Amendment privilege against self-incrimination—Wodie would have had to admit to sole possession, sale, and distribution of methamphetamine, while Lull would have had to confess to drug trafficking. Second, the court found that the proposed testimony would not have been clearly exculpatory. Wodie’s own statements to police were inconsistent (claiming everything in the vehicle belonged to him, then later claiming he found the methamphetamine on the roadside), and his post-conviction affidavit—stating he engaged in ongoing drug operations without defendant’s knowledge—could not rule out prior joint trafficking. Similarly, Lull had admitted in his police report to selling drugs to both Wodie and defendant, not exclusively to Wodie.
Most critically, the court emphasized that calling either witness would have opened the door to prosecution cross-examination that could have introduced even more damaging evidence. The prosecution could have impeached Wodie with his inconsistent statements, questioned him about defendant’s presence during trips to Wisconsin, and elicited testimony about defendant’s involvement in home-based sales. Likewise, Lull could have been questioned about the frequency and nature of defendant’s participation in the drug purchases. Given the substantial evidence of Kitto’s guilt—including her own multiple admissions—counsel reasonably concluded that the risks of calling these witnesses far outweighed any potential benefit.
Key Takeaways
- Trial attorneys receive substantial deference in strategic decisions regarding witness presentation; appellate courts presume counsel was effective and impose a heavy burden on defendants challenging such decisions.
- Proposed testimony that would require a witness to make self-incriminating admissions does not constitute reliable exculpatory evidence and may support declining to call that witness.
- When a defendant’s own statements establish guilt and co-defendants’ testimony is internally inconsistent or equivocal, counsel may strategically opt not to call such witnesses to avoid giving prosecutors additional cross-examination opportunities.
- Defense counsel’s legitimate concern about prosecution cross-examination opening the door to additional evidence of guilt constitutes a valid strategic reason for declining to call defense witnesses.
Why It Matters
This decision provides important guidance on the deference owed to trial strategy decisions in ineffective assistance appeals. For criminal defense practitioners, it demonstrates that appellate courts will rarely disturb tactical decisions about witness presentation when counsel articulates a strategic rationale—even when a defendant disagrees with that choice. The court’s analysis underscores a practical reality: calling witnesses who are co-participants in alleged crimes often backfires because their testimony can be used to strengthen the prosecution’s case through impeachment and additional questioning rather than genuinely exonerate the defendant.
The opinion also highlights the procedural and constitutional obstacles to relying on co-defendants or associates for defense. The Fifth Amendment privilege against self-incrimination may prevent such witnesses from testifying at all, and even if they waive the privilege, their credibility is inherently suspect and their testimony vulnerable to prosecution cross-examination that can introduce facts not yet in evidence. For appellants challenging trial counsel’s decisions, the case illustrates why ineffective assistance claims based on matters of trial strategy face steep obstacles absent evidence of counsel’s complete abdication of responsibility or manifest conflict of interest.