Opinion
No. 307747
2013-09-24
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CELITA SANFORD, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court
LC No. 11-006124-FC
Before: MURPHY, C.J., and MARKEY and RIORDAN, JJ. PER CURIAM.
Defendant appeals as of right her jury trial convictions of voluntary manslaughter, MCL 750.321, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to 41 months to 15 years' imprisonment for the voluntary manslaughter conviction, along with a two-year prison term for the felony-firearm conviction. We affirm.
Defendant argues that her trial counsel was ineffective for failing to call an expert on Battered Woman's Syndrome (BWS) and for failing to investigate a defense witness before calling her to the stand.
A claim of ineffective assistance of counsel concerns a mixed question of fact and constitutional law, which we review, respectively, for clear error and de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). To establish a claim of ineffective assistance of counsel, a defendant must "show that (1) . . . trial counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms and [that] (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." People v Horn, 279 Mich App 31, 37-38 n 2; 755 NW2d 212 (2008) (citation omitted). We are to presume that counsel provided effective assistance, and a defendant must overcome a strong presumption that counsel's assistance was sound trial strategy. People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). "Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of counsel regarding matters of trial strategy." People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). "Trial counsel is responsible for preparing, investigating, and presenting all substantial defenses." People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). Failure to call a witness or present evidence can constitute ineffective assistance of counsel only when it deprives the defendant of a substantial defense. People v Hoyt, 185 Mich App 531, 537-538; 462 NW2d 793 (1990). "'A substantial defense is one that might have made a difference in the outcome of the trial.'" Chapo, 283 Mich App at 371 (citation omitted).
Defendant first contends that trial counsel was ineffective because counsel failed to investigate BWS and to call an expert on BWS. We disagree.
At trial, defendant stated that she lived with the victim for six years and had dated him for 11 years. She testified regarding the victim's physically abusive behavior during their relationship. Indeed, multiple witnesses spoke of the victim's physical abuse of defendant. According to defendant, the victim, on the basis of previous demands made by defendant, was supposed to move out of defendant's house on the day of the shooting. And after the two engaged in an argument over a party that she refused to attend, the victim became angry, resulting in defendant's decision to pack his clothes. As defendant walked out of the kitchen, she heard a pop and saw some smoke from a gun. She believed that the victim had intentionally shot at her. The victim then tossed the gun in a bedroom and started assaulting defendant. She explained, "I said wow. I said, what the f**k; what the - what is wrong with you? He didn't say what was wrong. He started fighting me. He was fighting." Defendant testified that the victim began pulling her hair and that they ended up in the bedroom as the tussle developed. At some point, the victim also started to choke defendant, which frightened her given that she had passed out the last time he choked her. The victim then threw defendant on the ground and started looking for his gun that he had earlier discarded in the bedroom, but defendant found it first. Defendant claimed that she picked up the gun and started backing away from the victim, who then lunged toward her. Defendant heard a pop and then dropped the gun as the victim grabbed his side. Defendant later testified regarding why she shot the victim:
I shot him because I feared for my life being that he already shot once and then when he said, where the f**k is his gun, and I didn't know where it was, but when I saw him looking through the clothes and I found it first I feared for my life and I may not be here. It's a lot of women that didn't get to make it.
* * *
Well, when I found the gun and I picked it up and he was coming towards me and I'm backing back and I'm saying, no, I was scared for my life. I didn't know what was going to happen when he came my way being that he had already shot first[.]
* * *
I don't want to die. I didn't want him to die either, but I knew at that point it was one of us. I was already scared. He had already choked me. He had already fought me, threw me. I had no choice but to defend myself and I was very scared and I shot the gun.
Defendant testified that the victim's assault on her resulted in bruises to her neck, scratches on her face, and the loss of some hair. Defendant also testified that she did not have an opportunity or chance to retreat once the incident began to develop. Defense counsel argued in favor of acquittal based on self-defense.
The prosecutor focused on defendant's statements to others after the shooting, noting her failure to describe the incident in a manner consistent with defendant's trial testimony. Defendant informed one police officer that the victim initially had the gun and dropped it, causing it to discharge in a hallway, and that she then picked up the gun but accidently dropped it, causing it to discharge, with the bullet striking the victim. Defendant further indicated that the victim had refused to move out of her house despite her demands. Defendant also told the officer that she had caught the victim cheating on her, so she had nothing to say to him and wanted him out of her home. She informed a second officer that the victim had dropped the gun, that the gun discharged when dropped, with a bullet hitting a wall in the hallway, and that she subsequently picked up the gun, at which point it accidently discharged and the victim was shot. Defendant explained that she had not pointed the gun at the victim, nor had her hand been on the trigger. An evidence technician testified that the gun involved in the case had to be cocked before one could pull the trigger. He also identified a bullet mark in the hallway wall of defendant's home, which mark was located 31 inches above the floor. In closing argument, the prosecutor suggested that defendant shot the victim because of his cheating and because she wanted him out of the house. The jury acquitted defendant of the charge of second-degree murder and instead found her guilty of voluntary manslaughter.
In People v Christel, 449 Mich 578, 589; 537 NW2d 194 (1995), our Supreme Court indicated that BWS testimony has been used in two different contexts in criminal cases, one involving the use of such testimony to help evaluate the credibility of a victim or complainant, which matter Christel addressed, and one involving BWS testimony offered by a defendant to support a self-defense claim. The Court observed:
The Christel Court held that "expert testimony regarding the battered woman syndrome is admissible only when it is relevant and helpful to the jury in evaluating a complainant's credibility and the expert witness is properly qualified." Christel, 449 Mich at 579-580.
In most cases, the battered woman syndrome is offered by the defendant in a case of homicide in which the defendant is claiming self-defense. As one court has explained:
"[E]xpert scientific evidence concerning "battered-woman's syndrome" does not aid a jury in determining whether a defendant had or had not behaved in a given manner on a particular occasion; rather, the evidence enables the jury to overcome common myths or misconceptions that a woman who had been the victim of battering would have surely left the batterer. Thus, the evidence helps the jury to understand the battered woman's state of mind." [State v J Q, 130 NJ 554, 574; 617 A2d 1196 (1993).]
Although we do not express approval or disapproval of this use, we note that our Court of Appeals recently recognized that a majority of jurisdictions
favor the admissibility of expert testimony on the issue of the battered woman syndrome when offered as a means of self-defense. See People v Wilson, 194 Mich App 599, 603; 487 NW2d 822 (1992). [Christel, 449 Mich at 589.]
In Wilson, this Court stated that BWS testimony has been used "to explain how a battered spouse reacts to the batterer, to explain the reasonableness of the battered spouse's perception that danger or great bodily harm is imminent, and also to rebut the prosecution's inference that the defendant could have left rather than kill the spouse." Wilson, 194 Mich App at 604. In Wilson, the defendant "admit[ted] shooting the victim while he slept, but claim[ed] she acted in self-defense following forty-eight hours of abuse and death threats and years of battery." Id. at 601 (emphasis added).
Here, defendant proceeded on a straightforward theory of self-defense, which, given defendant's testimony, was a reasonable course of action. In court, defendant described a violent attack, wherein the victim discharged and discarded a gun, he started fighting defendant, choking her and pulling her hair, the victim then attempted to regain access to the weapon, he charged at defendant after she grabbed the gun, defendant was unable to retreat, and she shot the victim. This was not a case, assuming the truth of defendant's version of events, in which BWS testimony was needed to explain her reaction to the victim, to explain the reasonableness of her perception that danger or great bodily harm was imminent, or to rebut an inference that she could have retreated and left the scene rather than shoot the victim. A reasonable juror would likely have concluded that defendant acted in self-defense under the circumstances described by defendant in her trial testimony. However, given the voluntary manslaughter verdict and the rejection of the second-degree murder charge, and considering the instructions provided to the jury, the jurors evidently concluded that, although defendant did not act with malice, she intentionally shot the victim while acting in the heat of passion. See People v Mendoza, 468 Mich 527, 535; 664 NW2d 685 (2003) ("to show voluntary manslaughter, one must show that the defendant killed in the heat of passion, the passion was caused by adequate provocation, and there was not a lapse of time during which a reasonable person could control his passions"). We seriously question whether the presentation of testimony on BWS would have altered or countered the conclusion that defendant acted in the heat of passion.
As emphasized by the Supreme Court in its discussion of BWS in Christel, 449 Mich at 592, expert testimony is generally "needed when a [person's] actions or responses are incomprehensible to average people." Recently, our Supreme Court in People v Kowalski, 492 Mich 106, 124; 821 NW2d 14 (2012), discussed the appropriateness of and need for expert testimony in various instances, including cases involving BWS:
The common theme in these cases is that certain groups of people are known to exhibit types of behavior that are contrary to common sense and are not within the average person's understanding of human behavior. In these instances, an expert's specialized testimony may enlighten the jury so that it can intelligently evaluate an experience that is otherwise foreign.
Defendant's actions would not be incomprehensible under her description of the events that transpired and her theory of the case. If the victim attacked defendant in the manner that she claimed, her reaction in shooting him could not be deemed as being contrary to common sense, outside the average person's understanding of human behavior, or otherwise foreign. This case is not like Wilson, which involved a defendant who shot her husband as he lay sleeping. As we view BWS in the context of a defendant raising a self-defense claim, it would only be useful in assisting a jury where the victim was killed under circumstances that did not outwardly appear to present an imminent threat of great bodily harm or death. See Wilson, 194 Mich App at 604; see also MCL 780.972(1)(a) ("An individual . . . may use deadly force against another individual . . . if . . . [t]he individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.").
Assuming that trial counsel did not even contemplate BWS in preparing the defense as claimed by defendant on appeal, we cannot find, considering defendant's account entailing a direct physical attack immediately before the killing, that trial counsel's presentation of a straightforward self-defense claim, absent BWS testimony, fell below an objective standard of reasonableness. Indeed, employing BWS under the circumstances might have been viewed as being counterproductive on the question of self-defense, muddying the waters and suggesting that possibly defendant only had a "perceived inability to escape," rather than being confronted by an actual, inescapable, and imminent threat. Wilson, 194 Mich App at 603-604.
Defendant makes a lengthy argument that trial counsel's actions cannot be viewed as being a matter of trial strategy when counsel was allegedly completely unaware of BWS as a viable option to pursue. We believe that we have properly framed the question as whether counsel was ineffective for failing to contemplate BWS, instead of focusing solely on a traditional self-defense theory, taking into consideration the circumstances of the case and defendant's claims as to what transpired.
Defendant argues that BWS testimony could have explained to the jury why she initially told the police that the victim accidently discharged the gun, as victims of abuse often protect the batterers and defendant thought that the victim was still alive when she talked to police. However, defendant testified that the police officers were inaccurate and incomplete with respect to her actual statements, which statements, according to defendant, were more supportive of a self-defense claim. In explaining the inconsistencies, defendant never claimed that she was attempting to protect the victim; therefore, it was unnecessary for an expert to explain that battered women often take steps to protect their batterers.
Defendant also asserts that BWS testimony was necessary to defeat the prosecution's claim that she could have retreated by simply leaving the house, as the victims of batterers often feel that they have no choice but to kill rather than to leave their spouse. We find that this argument would have been inconsistent with defendant's version of events. Had defendant argued that, consistent with BWS, she felt it impossible to retreat based on the history of abuse, it would have somewhat negated her stance that she did not retreat because the factual circumstances of the physical attack entirely precluded any type of retreat. As a general observation regarding some of defendant's appellate arguments on BWS, the arguments are unavailing because they do not take into consideration defendant's account of the incident and her explanations, and trial counsel had to build the defense theory around and consistent with her account, not the prosecution's theory of events.
Defendant also maintains that BWS testimony would have bolstered her credibility, and countered the prosecution's attack against her credibility, by explaining why she had stayed in the relationship with the victim despite the years of abuse. The prosecution called into question the severity and existence of past abuse because defendant had remained with the victim, which argument was then used in turn to call into question the self-defense theory and whether she had actually been attacked on the day of the shooting. Additionally, defendant contends that BWS testimony was needed to explain, in the face of testimony by defendant's mother that she never observed abusive behavior, that batterers take great pains to hide their abusive conduct. Further, defendant argues that BWS testimony would have explained that batterers often escalate their violence when victims attempt to end relationships, as defendant tried to do in the case at bar. We do believe that there is some merit in these arguments; however, we find them insufficient to establish the requisite prejudice.
As Wilson and Christel make clear, any expert on BWS could not have testified regarding whether defendant actually suffered from or acted pursuant to BWS and could not have opined that she was actually battered. Christel, 449 Mich at 591; Wilson, 194 Mich App at 605. Rather, the testimony would have been limited to a description of BWS and the symptoms that manifest it. Christel, 449 Mich at 591; Wilson, 194 Mich App at 605. Moreover, as opposed to defendant's failure to call police during episodes of past abuse, defendant's credibility was mostly undermined by the inconsistency between her trial testimony and her statements to others following the shooting, along with her failure to provide relevant and important information in her statements that was included in her trial testimony. With respect to defendant's mother never witnessing the abuse, we believe that the jurors on their own were fully capable of recognizing that a batterer would try to hide his transgressions from others. Any expert testimony on the matter would have been inconsequential under the circumstances. We conclude likewise in regard to the argument that batterers often escalate their violence when there is an attempt by the woman to end a relationship.
Defendant next argues that trial counsel's assistance was ineffective when counsel failed to fully investigate a witness's bias before presenting her as a witness. Counsel has a duty to make an independent examination of the facts, circumstances, pleadings, and the laws involved in a case. People v Grant, 470 Mich 477, 486-487; 684 NW2d 686 (2004). This would include an obligation to pursue all relevant leads. Id. at 487. "A witness's bias is always relevant." People v McGhee, 268 Mich App 600, 637; 709 NW2d 595 (2005).
The witness at issue was an individual who previously had a long-term relationship with the victim. The witness testified that defendant broke up that relationship, that the victim was "a nice man," and that he did not have an "extra violent temper." She denied that the victim subjected her to "a** whippings" for 11 years, denied that she ever informed defendant about such abuse, and the witness denied that she had commented, outside of the courtroom, that she intended to take the stand and "lie and cry." Trial counsel elicited testimony to the contrary from other witnesses.
On appeal, defendant argues that the witness was biased against defendant, not because defendant broke up the witness's relationship with the victim, but because the witness, on behalf of her daughter, had filed a wrongful death suit against defendant prior to the trial, which suit arose out of the shooting. The victim was the father of the witness's daughter. Defendant contends that trial counsel should have discovered the information about the civil lawsuit before trial and that the lawsuit made the witness biased against defendant, as it was in the best interest of the witness, for purposes of the civil suit, to have defendant found guilty in the criminal trial. The only information in the record concerning this argument is found in the transcript of a hearing that covered both a motion for new trial and sentencing. Trial counsel indicated that she had just learned of the lawsuit after checking court records, that the suit had never previously been disclosed to counsel, and that the civil complaint had not yet been served. The trial court then cut counsel off because the matter had not been contained in the motion for new trial, and the issue was never subsequently raised.
On the limited record, and given that defendant herself was unaware of the suit as she had not been served, we initially question whether trial counsel's performance can be deemed deficient for failing to discover the lawsuit. Defendant contends that because wrongful death actions regularly arise out of homicide cases, and because trial counsel was aware of the familial connections, counsel should have searched court records before calling the witness to the stand. We find this argument a bit strained. Moreover, it appears that trial counsel, who was quite vigorous and thorough in representing defendant, was prepared for some defiance by the witness. Trial counsel was poised to ask the witness about a domestic violence police report she filed against the victim during their relationship, but the court excluded the evidence. And again, counsel was able to elicit testimony contradicting the witness's claims. Defendant testified that the witness told her, prior to the shooting, about the "a** whippings" she received during the 11-year relationship and that the witness asked defendant if she was also being abused by the victim. Another witness gave comparable testimony and also testified about the plan to "lie and cry" that the witness at issue had revealed outside the courtroom. Assuming trial counsel's performance fell below an objective standard of reasonableness, we simply cannot find, considering the impeachment evidence and the other evidence presented by the prosecution, that there is a reasonable probability that, but for counsel's presumed error, the result of the proceedings would have been different.
The prosecutor indicated at sentencing that trial counsel's representation of defendant was the best that he had seen in a long time.
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Affirmed.
William B. Murphy
Jane E. Markey
Michael J. Riordan