People v. Dendel

¶1oconcurring). I concur with the majority’s conclusion that defendant was not denied the effective assistance of counsel because she failed to show that she was prejudiced by counsel’s performance. I write separately because, in my opinion, defendant also failed to satisfy the other requirement of an ineffective-assistance claim: to show that counsel’s performance was constitutionally deficient. Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Defense counsel Joseph Filip reasonably *136decided to advance the theory that the victim, Paul Michael Burley, died from injecting himself with insulin. Filip’s decision to pursue a suicide defense was not deficient because it logically flowed from defendant’s statements to the detectives and to counsel. In light of this defense, defense counsel did not need to challenge the testimony of the prosecution’s experts that Burley died of hypoglycemic shock caused by insulin.

¶2“ ‘[T]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.’ ” Johnston v Singletary, 162 F3d 630, 642 (CA 11, 1998) (citation omitted). A defense counsel’s decision regarding trial strategy is not demonstrably deficient if the defendant directed that strategy. Keith v Mitchell, 455 F3d 662, 672 (CA 6, 2006). “[The Sixth Amendment] speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant.” Faretta v California, 422 US 806, 820; 95 S Ct 2525; 45 L Ed 2d 562 (1975). In United States v Wellington, 417 F3d 284, 289 (CA 2, 2005), the Court of Appeals for the Second Circuit explained that the lawyer’s role is to advocate for his client and follow his client’s wishes if possible:

It is the “role of the lawyer [to be] a professional advisor and advocate,” Lefcourt v. United States, 125 F.3d 79, 86 (2d Cir.1997) (quoting In re Shargel, 742 F.2d 61, 62-63 (2d Cir.1984)), not to usurp his “ ‘client’s decisions concerning the objectives of representation,’ ” see Jones v. Barnes, 463 U.S. 745, 753 n. 6, 103 S.Ct. 3308, 77 L Ed.2d 987 (1983) (recognizing that, where ethically and legally possible, “ ‘ lawyer shall abide by a client’s decisions concerning the objectives of representation’ ”) (quoting ABA Model Rules of Prof 1 Conduct R. 1.2(a)); Wallace [v Davis, 362 F3d 914, 920 (CA 7, 2004)] (“By respecting [his client’s] wishes, counsel not only abided by ethical requirements (lawyers are agents, after all) but also furnished the quality of assistance that the *137Constitution demands.”) (emphasis in original); cf. Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (“The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed hy the Amendment, shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally.”).

¶3In Wellington, the Second Circuit rejected the defendant’s argument that his trial counsel was ineffective because, as a result of counsel’s following the defendant’s instructions, counsel pursued a strategy that, in the absence of the defendant’s instructions, might have constituted professional error. The Court explained:

[T]o the extent that defendant instructed his counsel to pursue a course of action that defendant now complains of, there was no abridgement — constructive or otherwise — of defendant’s Sixth Amendment right to effective assistance of counsel. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (“[A] defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently.”) (citations omitted) (emphasis in the original); see also Coleman v. Mitchell, 268 F.3d 417, 448 n. 16 (6th Cir. 2001) (“[C]ounsel was not ineffective for following the defendant’s clear and informed instruction.”)[1]; Frye v. Lee, 235 F.3d 897, 906-07 (4th Cir. 2000) (observing that if the Court were to hold that defense counsel “rendered *138ineffective assistance [by acceding to the defendant’s instructions not to present] . . . mitigation evidence, [the Court] would be forcing defense lawyers in future cases to choose between Scylla and Charybdis”); Autry v. McKaskle, 727 F.2d 358, 360-61 (5th Cir. 1984) (rejecting claim of ineffective assistance of counsel for failure to investigate and present evidence at sentencing phase where defendant had instructed his attorney not to fight the death penalty).... [Wellington, supra at 289.]

¶4By arguing that Burley had injected himself with insulin, Filip reasonably pursued a theory of defense that was consistent with defendant’s wishes and her previous statements to the police regarding Burley’s death. Specifically, defendant told the police detectives that Burley had injected himself with insulin. She also stated at a later interview: “That poor dear, he killed himself for me.” Defendant, the person who knew Burley’s physical capabilities the best, told a detective that despite Burley’s severely impaired vision and problems with holding things, he could inject himself with insulin. Before trial, defendant told Filip that Burley had killed himself by an insulin injection and that she wanted him to pursue this defense theory at trial. Defendant also testified that Burley had mental problems and that he had “talked suicide for 10, 15 years.” She testified that she had informed two of Burley’s doctors of his suicidal intentions. In light of defendant’s statements and wishes, it was reasonable for Filip to argue at trial that Burley had died by a self-administered insulin injection, rather than by a morphine overdose. This is especially so when Filip knew that the prosecution had two well-qualified expert witnesses, Dr. Bernardino Pacris and Dr. Michael Evans, whose anticipated testimony supported the theory that Burley died from an insulin overdose. As Filip testified *139at the Ginther2 hearing, his primary theory of defense, that Burley took his own life by taking insulin, did not require him to dispute the opinions of the prosecution’s experts. Thus, Filip’s decision not to present an expert was reasonable in light of his theory of defense.

¶5Second, even though defendant wanted Filip to pursue a defense theory that avoided challenging the conclusions of the prosecution’s experts, Filip nonetheless had consulted two doctors regarding the cause of Burley’s death. He first talked to a local general practitioner, who referred him to an endocrinologist,3 Dr. Halsey.4 Dr. Halsey’s views did not refute Dr. Pacris’s opinion that Burley died from an insulin overdose. Because consultation with two doctors revealed nothing that would cause Filip to question the conclusions of the prosecution’s experts, he reasonably ended the investigation at that point. He had no reason to believe that further investigation would lead to the discovery of an expert who might question Burley’s cause of death.

[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.... In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. [Strickland, supra at 690-691.]

¶6Defendant, in appellate hindsight, essentially faults Filip for failing to find the “right” expert. A defense *140attorney is not required to repeatedly consult experts until he finds one who will support a certain theory. “Although attorneys can always do more in preparation for a trial,” the failure to do so does not mean that they are ineffective. Mason v Mitchell, 320 F3d 604, 618 (CA 6, 2003).

¶7“Judicial scrutiny of counsel’s performance must be highly deferential” and should refrain from second-guessing counsel’s chosen trial strategy. Strickland, supra at 689 (emphasis added). “[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690 (emphasis added). “A reviewing court must not evaluate counsel’s decisions with the benefit of hindsight.” People v Grant, 470 Mich 477, 485; 684 NW2d 686 (2004), citing Strickland, supra at 689. Defense counsel’s strategic choices were constrained by defendant’s actions. Defendant has failed to show that, given what Filip knew at the time, Filip’s decision not to challenge the testimony of the prosecution’s experts that Burley had died from an insulin overdose was not a matter of sound trial strategy. See People v Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997), quoting Strickland, supra at 689 (stating that a defendant must “ ‘overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy” ’ ”). Because Filip’s representation was adequate at the time and under the circumstances known to him, it was sufficient to pass constitutional muster.

¶8In sum, I conclude in the majority opinion that defense counsel was not ineffective because his performance did not prejudice defendant, and four other justices support that conclusion. I separately conclude that counsel was not ineffective because his perfor*141manee was not constitutionally deficient for failing to produce an expert to refute the prosecution’s experts. Filip had no reason to challenge the testimony of the prosecution’s experts, given defendant’s theory of defense and her own prior statements to the police regarding the cause of death. Moreover, Filip sufficiently investigated other theories.

¶9Accordingly, I conclude that defendant has not established a Sixth Amendment ineffective-assistance claim.

¶14(dissenting). The majority reverses the Court of Appeals decision and reinstates defendant’s conviction after concluding that defendant failed to demonstrate that her trial counsel’s performance prejudiced her. Because there is a reasonable possibility that defendant is innocent and her counsel’s performance deprived her of her only viable defense, I believe she is entitled to a new trial. Accordingly, I dissent from the majority’s reinstatement of the guilty verdict.

¶15THE FACTS

¶16This case involves the death of a gravely ill man. At the time of his death, Paul Burley had been involved in a relationship with defendant, Katherine Dendel, since 1975. Burley had suffered from many illnesses including hepatitis B, hepatitis C, herpes, chronic obstructive pulmonary disease, throat cancer, an infection with human immunodeficiency virus (HIV), neuropathy, and epilepsy. Due to his poor health, Burley was frequently hospitalized and required constant care while at home, care that defendant provided.

¶17The day of Burley’s death began with a phone call to the police. At approximately 3:00 a.m., defendant called to report that Burley was running back and forth in the house with a knife. But by the time the police arrived, all was calm. Defendant told the police that she was not *142concerned that Burley would injure her, but was concerned that, given his impaired mental state, he might injure himself. Concluding that Burley was not a threat to himself or to anyone else at that time, the police took no action.

¶18Later in the morning, defendant left the house to perform errands. She also made inquiries about placing Burley in a nursing home. She had made numerous similar inquiries before. Defendant returned home, fed Burley his lunch, and performed other errands, including inquiring further about placing Burley in a nursing home. At approximately 5:00 p.m., she checked on Burley and found him in a comatose state. She telephoned Aida Winters, her friend, for assistance and moments later, having ascertained that Burley was dead, summoned the police. Defendant was hysterical and continued in that state while the police and ambulance workers took away Burley’s body.

¶19Initially, the Oakland County medical examiner, Dr. Bernardino Pacris, concluded that Burley died of natural causes. However, after he spoke with the police officers who were investigating the death, Dr. Pacris revisited his findings. He then concluded that the cause of death was £m insulin injection, although he found no needle mark. Burley did not have a prescription for insulin. It should be noted, however, that defendant was a diabetic. The process by which Dr. Pacris determined the cause of death was founded on an anatomical basis and the circumstances surrounding the death rather than on toxicological findings.

¶20Defendant was charged with first-degree murdér. At trial, Dr. Pacris and Dr. Michael Evans1 testified for the prosecution. Both Drs. Pacris and Evans concluded that *143the evidence supported a theory that Burley died of an insulin overdose. In closing argument, the prosecutor argued that, given Burley’s numerous physical ailments, he was unable to prepare insulin for administration and inject himself with it. The prosecution also attempted to show that the circumstances surrounding the death gave rise to a suspicion of murder.

¶21Defense counsel argued, on the other hand, that Burley either took his own life or died from natural causes. However, counsel did not present evidence to counter the prosecution’s medical experts, who concluded that Burley died of an insulin overdose. This was despite the fact that counsel had successfully petitioned for the appointment of an expert for the defense.

¶22Ultimately, the court convicted defendant of second-degree murder. Relying on the prosecution’s medical testimony, the court found that Burley died of an insulin overdose. The court credited the prosecution’s argument and found it not believable that the gravely ill Burley was physically capable of injecting himself with a lethal dose of insulin.

¶23Defendant appealed her conviction in the Court of Appeals. On its own motion, the Court appointed new counsel for her and remanded the case for a Ginther2 hearing to determine whether defendant had received effective assistance of counsel at trial. Among the witnesses at the hearing were defendant’s former counsel and a forensic pathologist, Dr. Laurence Simson,3 who was an expert witness brought in by defendant’s newly appointed appellate counsel.

¶24*144Defendant’s former counsel testified that he (1) never consulted an independent forensic pathologist, (2) never had the body tested for the presence of insulin, (3) spoke only briefly with his own general practitioner regarding the cause of death and was referred to an endocrinologist, Dr. Halsey, (4) spoke with Dr. Halsey but took no notes of the conversation, (5) did no research into Dr. Halsey’s expertise, (6) did not give either the general practitioner or the endocrinologist Burley’s medical records to review, and (7) did not speak to the physician who treated Burley during his last hospitalization.

¶25The forensic pathologist, Dr. Simson, testified that there was a lack of significant evidence that Burley died of an insulin overdose. Instead, he concluded that Burley died of a multiple-drug overdose. He based his conclusion on the fact that Burley had a lethal level of morphine in his system along with therapeutic levels of several other drugs.

¶26At the Ginther hearing, Dr. Pacris was questioned about his trial testimony that Burley died of an insulin overdose. He was asked if he had considered that a lethal dose of morphine was found in Burley’s body. He testified that he had based his conclusion that Burley did not die of a morphine overdose on his assumption that Burley had developed a tolerance to the drug. But he admitted that he had not checked to learn how much morphine Burley had been using.

¶27At the conclusion of the hearing, Judge Chad C. Schmucker, who also presided at the bench trial, found that defense counsel had not provided ineffective assistance. He found that counsel’s brief consultations with Drs. Burgess and Halsey were all that was required of him. He also concluded that, even if counsel’s performance had been deficient, defendant could not show prejudice.

¶28*145In a split, unpublished decision, the Court of Appeals reversed defendant’s conviction.4 The majority determined that, in light of the pivotal nature of the medical evidence, it was unreasonable for defense counsel to have consulted only briefly with the two doctors. It was unreasonable for him not to have furnished the physicians with documentation regarding Burley’s medical history or the circumstances surrounding his death. And because defense counsel’s deficient performance deprived defendant of a substantial defense, the majority held that there was a reasonable probability that it adversely affected the outcome of the trial.

¶29The dissenting judge emphasized the prejudice prong of the test for ineffective assistance of counsel. He found no reason to conclude that the trial judge had clearly erred in concluding that defendant could not show prejudice.

¶30The prosecution applied for leave to appeal in this Court. We heard oral argument on the application on October 3, 2007.5

¶31THE SUFFICIENCY OF DEFENSE COUNSEL’S LEGAL REPRESENTATION

¶32The standard for ineffective assistance of counsel is the same under both the Michigan and federal constitutions.6 A defendant must show that defense counsel’s performance was objectively unreasonable and that this performance prejudiced the defense.7 In this case, the *146majority reinstates defendant’s conviction after deciding that defendant cannot show prejudice.

¶33To demonstrate prejudice, one must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”8

¶34Here, the prosecution’s case hinged on the cause of death. The prosecution contended that defendant died of an insulin overdose, and it presented evidence to support this theory. The prosecutor argued that defendant was physically incapable of injecting himself with insulin. By failing to counter this theory, defense counsel left the finder of fact with two choices: It could find (1) that Burley killed himself by insulin overdose, a highly unlikely occurrence given his debilitated physical condition, or (2) that defendant killed Burley by administering a fatal dose of insulin. Thus, by failing to counter the prosecution’s theory of the cause of death, defense counsel left defendant with no viable defense.

¶35By contrast, defense counsel could have challenged the prosecution’s theory of the cause of death, providing the trier of fact with a meaningful choice. Evidence could have been presented that Burley died from a different cause, such as a multiple-drug overdose, as Dr. Simson concluded. This would have been particularly effective in light of the fact that Dr. Pacris did not immediately identify the cause of death as an insulin overdose. Dr. Pacris considered the possibility of an insulin overdose only after the police informed him that they suspected Burley might have died from an insulin injection. Furthermore, Dr. Pacris did not check into Burley’s use of morphine, despite the fact that Burley *147died with a large amount of morphine in his system. Importantly, unlike insulin, which is injected, morphine is available in pill form, and there was evidence that Burley had access to morphine pills.

¶36Burley could have self-administered a fatal dose of morphine, either accidentally or intentionally.9 Thus, had defense counsel challenged the cause of death, the finder of fact could have concluded that Burley died of a noncriminal act. Defendant’s appellate counsel demonstrated that trial counsel easily could have found an expert witness to refute the prosecution’s theory regarding the cause of death. It follows that the trial attorney’s failure to adequately investigate and pursue the viable theory that Burley died of a noncriminal act deprived defendant of a substantial defense.10

¶37Because defendant has shown that her trial counsel’s performance deprived her of a substantial defense, she has met her burden of showing prejudice, unless other evidence rendered this defense unbelievable.11 The *148record reveals that, had defendant presented Dr. Simson’s testimony at trial, the evidence would have supported either of two competing theories of the cause of death. As the majority points out, there was circumstantial evidence that tended to show a guilty mind. The majority discusses only this evidence. But it ignores the evidence that tends to show that Burley died of a noncriminal act.

¶38This evidence is that defendant and Burley had a relationship that had lasted nearly 30 years. During this period, Burley suffered from many illnesses, including an HIV infection. As Burley battled these ailments, defendant stood by his side, providing him with needed care. Defendant was not only Burley’s companion and caregiver during this period, she was his financial support. He had not been gainfully employed since the mid-1980s.12 Hers is hardly the behavioral profile of a cold-blooded killer.

¶39*149The evidence also tended to show that Burley’s mental health had deteriorated and that he was possibly abusing morphine and other drugs. In fact, defendant had to call the police on the day Burley died because he was brandishing a knife, arousing her concern that he might hurt himself. And there was evidence that defendant had hidden drugs from Burley to prevent him from overdosing himself. Also, she had contacted numerous sources in the period before Burley’s death in an attempt to get him the 24-hour, 7-day-a-week care he required.

¶40There are also innocent explanations for the acts to which the majority attributes sinister motives. Because defendant, not Burley’s family members, tended Burley toward the end of his life, it is not surprising that defendant was not eager to inform his family of his death. This is especially likely in light of the fact that, as defendant testified, she felt the family had turned its back on Burley.13

¶41Nor does the fact that defendant was exasperated with providing Burley constant care render her a murderer. And defendant’s decision to call a friend before summoning the police after discovering Burley in a comatose state is understandable. Defendant could have been overwhelmed by shock and sadness at discovering her longtime companion near death. It is even more reasonable to attribute an innocent explanation to this behavior when one considers that defendant had prearranged for the friend to assist her if Burley died. Nor was defendant’s decision to cremate Burley unusual, since cremation is a common alternative to burial *150in this country, especially for those who have suffered from debilitating ailments. Finally, the fact that defendant understood insulin’s effect on the body is not surprising in light of the fact that she is a diabetic.

¶42The nonmedical evidence surrounding the death could support a finding that Burley died of a noncriminal act. Accordingly, had defense counsel challenged the cause of death, the finder of fact would have been left with two reasonable alternatives: (1) to decide that the evidence showed that defendant killed Burley or (2) to conclude that Burley killed himself, intentionally or accidentally, possibly to spare his loving companion of nearly 30 years the burden of his continuing care. The strategy employed by defense counsel left defendant with no viable defense, whereas another strategy could have resulted in an acquittal. Hence, confidence in the outcome has been undermined sufficiently to require a new trial. Accordingly, I would affirm the Court of Appeals decision.

¶43The majority disagrees with me and reinstates defendant’s conviction. In so doing, the majority opinion seems to misapprehend defendant’s burden. It would seem to require defendant to prove that she is actually innocent of the crime in order to be entitled to relief. Even though defendant might be innocent, this is not the standard. The standard is “a probability sufficient to undermine confidence in the outcome.”14 Because defense counsel’s performance deprived defendant of a viable, reasonable, and believable defense, the standard was met in this case.

¶44CONCLUSION

¶45The Court of Appeals decision to vacate defendant’s conviction did not hang on what some people term “a *151legal technicality.” Instead, there is a very real possibility that defendant is innocent of the crime of which she has been convicted. Yet her counsel never gave the finder of fact a realistic option of returning a verdict of not guilty. By effectively conceding the cause of death, counsel deprived defendant of her only viable defense. The Court of Appeals correctly reversed defendant’s conviction and remanded the case for a new trial. I would affirm its judgment.