People of Michigan v. Scott Allen Debruyn

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

March 31, 2022

Plaintiff-Appellee,

v No. 352274

Ottawa Circuit Court

SCOTT ALLEN DEBRUYN, LC No. 19-043164-FC

Defendant-Appellant.

Before: K. F. KELLY, P.J., and SAWYER and GADOLA, JJ.

PER CURIAM.

Defendant was convicted after a jury trial of delivering a controlled substance causing

death, MCL 750.317a. The trial court sentenced defendant to 198 to 360 months’ imprisonment.

Defendant appealed as of right and moved for remand to the trial court for an evidentiary hearing

to determine whether he was entitled to a new trial on the basis that he was denied the effective

assistance of counsel. This Court granted the motion1 and remanded the matter to the trial court

for a Ginther2 hearing. At the conclusion of the evidentiary hearing on remand, the trial court

denied defendant’s motion for a new trial, finding that defendant was not denied the effective

assistance of counsel at trial. Returning to this Court after remand, defendant challenges the trial

court’s order denying his motion for a new trial. We affirm.

I. FACTS

Defendant’s conviction relates to the death of Camille Gesiakowski, who was found dead

in defendant’s motel room on the morning of April 12, 2017. At the time of her death,

1

People v DeBruyn, unpublished order of the Court of Appeals, entered December 17, 2020

(Docket No. 352274).

2

People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973) (“A defendant who wishes to

advance claims that depend on matters not of record can properly be required to seek at the trial

court level an evidentiary hearing for the purpose of establishing his claims with evidence as a

precondition to invoking the processes of the appellate courts . . .” ).

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Gesiakowski was 23 years old and defendant was 53 years old. The two had known each other

since Gesiakowski dated defendant’s son while a teenager. Sometime after that relationship ended,

Gesiakowski and defendant began a relationship and lived together for a time. At some point,

Gesiakowski began abusing opioids and other substances.

On April 7, 2017, less than one week before her death, Gesiakowski was released from jail

where she had served approximately 8 ½ months after violating probation for charges related to

drug use. Communications between Gesiakowski and defendant while she was in jail

demonstrated that the couple intended to meet upon her release from jail to use “oxy,” apparently

referring to the opioid oxycodone, and other drugs. In these communications, they repeatedly

discussed defendant’s efforts to obtain “oxy” for Gesiakowski; in one exchange Gesiakowski

stated that “I can’t wait to take some oxys,” and defendant replied that he had “some” and that he

had “good stuff.” In another exchange, when Gesiakowski stated that she wanted oxy, defendant

replied that he had “some of them” and that he could “get some oxys from Lona between now and

then.” Defendant also stated that they could “pick up a can or two later on,” apparently referring

to cans of compressed air, commonly known as air duster, manufactured for use in cleaning, but

sometimes misused for inhaling or “huffing” to produce a disorienting or euphoric effect.

When Gesiakowski was released from jail on April 7, 2017, defendant picked her up and

the two went to a Walmart store where defendant purchased two cans of air duster and two bottles

of wine. Upon learning that Gesiakowski had been released earlier than expected, Gesiakowski’s

sister, Celia, went to defendant’s house and discovered that Gesiakowski was unresponsive, lying

on a bed surrounded by pill bottles and a can of air duster. Celia also saw open alcohol bottles in

the house and guns standing against the wall. Celia was able to revive Gesiakowski, whom Celia

described as delirious, and transport her to their parents’ home.

Thereafter, Gesiakowski and defendant exchanged numerous messages in which they

discussed meeting to use drugs and defendant’s efforts to obtain “pills” and “duster.” Throughout

the extensive message exchange, defendant was insistent that the couple meet to spend time

together, while Gesiakowski was insistent that defendant obtain oxycodone as a condition of them

meeting. During the message exchange, defendant assured Gesiakowski that he had “another can

and stuff,” and that he was buying pills. Gesiakowski asked whether the pills were “oxys,” to

which defendant responded, “Yeah. I got more coming. Good.” Gesiakowski asked defendant to

drop some off to her, and repeatedly told defendant that she had a headache and that she needed

the pills. Defendant agreed to drop off a can of air duster and some wine. Later in the exchange,

Gesiakowski emphasized that she had a migraine and needed “pain pills.” Defendant responded

that he had “hooked up with Mike’s stuff,” and that he had gotten “a hold of Lona.”

Gesiakowski left her parents’ house on the evening of April 9, 2017, and joined defendant

at his house after defendant purchased two cans of air duster. On April 10, 2017, defendant

purchased another four cans of air duster at Walmart. That same day, defendant purchased 40

Percocet pills, a medication containing oxycodone and acetaminophen, from Lona Daniels and her

boyfriend, Michael Montgomery; each pill contained 10 milligrams of oxycodone and 325

milligrams of acetaminophen. According to Daniels, defendant paid her $400 for the 40 pills.

Montgomery testified similarly that on April 9, 2017, defendant texted Daniels looking for pills,

and Montgomery told Daniels that he would sell defendant 40 pills for $400. Montgomery traveled

with Daniels to Grand Haven to sell defendant the pills, and waited in the car while Daniels

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completed the transaction. He further testified that he had sold pills to defendant 20 or 30 times

in the past.

On April 11, 2017, Gesiakowski’s father, Blake, called the police and asked them to check

on the welfare of Gesiakowski at defendant’s house. The police went to the house, but did not

retrieve Gesiakowski. Blake then went to defendant’s house, but was unable to convince

Gesiakowski to come outside. Blake later returned to defendant’s house, but discovered that

defendant and Gesiakowski had left.

After leaving the house on April 11, 2017, defendant and Gesiakowski took a taxi to a

Walmart store, where defendant purchased additional cans of air duster. Defendant and

Gesiakowski then traveled to the Baymont Inn in Grand Haven, where defendant rented a room.

After learning where the couple had gone, Blake went to the Baymont Inn. Blake told the desk

clerk that Gesiakowski might be in danger, but the clerk said that there was nothing he could do.

Blake banged on the door of the motel room where the couple was staying until police arrived and

advised Blake that he would be arrested if he did not leave.

The next morning, on April 12, 2017, at approximately 6:00 a.m., defendant went to the

front desk of the Baymont Inn and told the desk clerk to call 911 because Gesiakowski was not

breathing. Although defendant had a cell phone in his possession, he did not call 911. While the

desk clerk called 911, defendant returned to his room. When police arrived, they saw defendant

in the parking lot, smoking a cigarette. Police found Gesiakowski dead in defendant’s room. The

room was extremely cold, and Gesiakowski’s body was cold to the touch. In the room, police

found four empty cans of air duster, but did not find any pills or empty pill bottles.

Defendant told police that he and Gesiakowski arrived at the motel the day before at 4:30

p.m. and that they “were just hanging out.” He told police that they went to bed at approximately

seven or eight p.m., but that Gesiakowski said that she did not feel well and repeatedly went to the

bathroom to vomit. At approximately 3:00 a.m., Gesiakowski again vomited in the bathroom and

again said that she did not feel well. When defendant awoke at approximately 6:00 a.m., he found

Gesiakowski was dead. Gesiakowski was found unclothed from the waist up; defendant reported

that she was wearing clothes earlier, but she had complained that she was very hot and had turned

the air conditioning to a very cold setting.

Prosecutors charged defendant with delivering a controlled substance causing death,

MCL 750.317a, alleging that defendant delivered oxycodone, a Schedule 2 controlled substance,

to Gesiakowski, who then died after consuming it. At trial, the prosecution introduced evidence

that Gesiakowski died of mixed-drug toxicity, caused by a combination of four of the substances

found in her system: oxycodone3 (a semisynthetic opioid pain reliever), tramadol (a synthetic

opioid pain reliever), fluoxetine (an antidepressant branded as Prozac), and difluoroethane (a

halogenated hydrocarbon used as an aerosol propellant in compressed air dusters). Regarding the

cause of death, the prosecution called as witnesses toxicologist Dr. Benedict Kuslikis, toxicologist

3

A conviction under MCL 750.317a requires delivery of a Schedule 1 or 2 controlled substance.

Among the toxins found to have contributed to Gesiakowski’s death from mixed-drug toxicity,

only oxycodone qualifies as a Schedule 1 or 2 controlled substance.

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Dr. Matthew McMullin, pathologist Dr. Matthew Carr, and forensic pathologist and chief medical

examiner Dr. David Start. The consensus of the prosecution’s experts was that all four substances

played a role in Gesiakowski’s death and that oxycodone, a Schedule 2 controlled substance, was

a substantial factor in Gesiakowski’s death. Dr. Start testified that oxycodone was the most

significant factor in her death, while Dr. Carr testified that, assuming Gesiakowski had not been

using oxycodone while in jail, the amount of oxycodone she consumed on April 11, 2017, was

alone enough to have caused her death.

The defense contended that the prosecution failed to demonstrate that defendant delivered

oxycodone to Gesiakowski and also failed to prove that oxycodone was a substantial cause of

Gesiakowski’s death. The defense further contended that serotonin syndrome, caused by the

interaction of tramadol and fluoxetine, or the effect of difluoroethane alone, had not been excluded

as causes of Gesiakowski’s death. The defense did not present an expert witness to support its

causation theories, but cross-examined the prosecution’s experts on the theories that serotonin

syndrome or difluoroethane caused Gesiakowski’s death.

At the conclusion of trial, the jury convicted defendant. Thereafter, defendant appealed to

this Court and moved for remand to the trial court for determination whether he was entitled to a

new trial on the basis that defense counsel provided ineffective assistance. Defendant contended

that counsel had been ineffective by failing to properly investigate the cause of Gesiakowski’s

death, and also failing to call an expert in toxicology and/or pathology to refute the opinions of the

prosecution’s experts and to support the defense theories of the cause of death.

This Court remanded to the trial court for an evidentiary hearing. During the hearing, the

trial court heard testimony from defendant’s trial attorneys, as well as defense experts Dr. Gerald

Shiener, a psychiatrist, and Dr. Randall Commissaris, Ph.D., qualified by the trial court as an expert

in the areas of pharmacology and toxicology, regarding the cause of Gesiakowski’s death. The

prosecution again called Dr. Kuslikis, Dr. Start, and Dr. Carr, who reiterated their opinions offered

at trial and responded to new matters raised by defendant’s experts. Following the hearing, the

trial court denied defendant’s motion for a new trial, finding that (1) defense counsel’s

performance did not fall below an objective standard of reasonableness, and that (2) presentation

of expert testimony, such as that presented by the defense at the Ginther hearing, would not have

affected the outcome of the proceedings. This matter now returns to this Court after remand.

II. DISCUSSION

Defendant contends that the trial court erred by finding that his trial counsel was not

ineffective and consequently denying his motion for a new trial. Defendant argues that, contrary

to the trial court’s findings, his trial attorneys performed below an objective standard of

reasonableness by failing to investigate and to obtain an expert in toxicology to refute the evidence

introduced by the prosecution regarding the cause of Gesiakowski’s death, and that this failure

resulted in prejudice to defendant. Defendant further argues that the trial court demonstrated a

misunderstanding of its role and the purpose of the Ginther hearing when it engaged in

impermissible fact-finding and allowed the prosecution to call expert witnesses at the hearing on

remand.

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A. STANDARD OF REVIEW

A claim of ineffective assistance of counsel is a mixed question of fact and law. People v

Ackley, 497 Mich 381, 388; 870 NW2d 858 (2015). We review the trial court’s findings of fact

for clear error and review de novo the ultimate constitutional question arising from a claim of

ineffective assistance. Id. When reviewing an ineffective assistance claim, this Court will not

substitute its judgment for counsel’s on matters of trial strategy, People v Unger, 278 Mich App

210, 243; 749 NW2d 272 (2008), nor will we use the benefit of hindsight to assess counsel’s

competence. People v Grant, 470 Mich 477, 485; 684 NW2d 686 (2004). However, counsel’s

performance is not insulated from review simply by calling it “trial strategy,” and we must consider

whether strategic choices were made without an adequate investigation. People v Trakhtenberg,

493 Mich 38, 52; 826 NW2d 136 (2012).

B. MCL 750.317A

Defendant was convicted of delivering a controlled substance causing death, prohibited by

MCL 750.317a, which provides:

A person who delivers a schedule 1 or 2 controlled substance, other than marihuana,

to another person in violation of section 7401 of the public health code, 1978 PA

368, MCL 333.7401, that is consumed by that person or any other person and that

causes the death of that person or other person is guilty of a felony punishable by

imprisonment for life or any term of years.

The elements of delivering a controlled substance causing death under MCL 750.317a are

(1) delivery to a person, (2) of a schedule 1 or 2 controlled substance other than marijuana, (3)

with intent to deliver a controlled substance as proscribed by MCL 333.7401, (4) consumption of

the controlled substance by a person, (5) resulting in the death of that person from the consumption

of the controlled substance. People v McBurrows, 504 Mich 308, 319; 934 NW2d 748 (2019).

MCL 750.317a is a general intent crime that does not require that the defendant intend that death

occur from the delivery of the controlled substance, but only that the defendant intend to deliver a

schedule 1 or 2 controlled substance. People v Plunkett, 485 Mich 50, 60; 780 NW2d 280 (2010).

The statute punishes “an individual’s role in placing the controlled substance in the stream of

commerce, even when that individual is not directly linked to the resultant death.” McBurrows,

504 Mich at 317, quoting Plunkett, 485 Mich at 60.

To hold a defendant criminally responsible, the trier of fact must find beyond a reasonable

doubt that the defendant’s conduct was a proximate cause of the harm to the victim. See People v

Feezel, 486 Mich 184, 201; 783 NW2d 67 (2010). The harm suffered by the victim may have

more than one cause, however. In People v Bailey, 451 Mich 657, 676; 549 NW2d 325 (1996),

amended 453 Mich 1204 (1996), our Supreme Court explained:

In assessing criminal liability for some harm, it is not necessary that the

party convicted of a crime be the sole cause of that harm, only that he be a

contributory cause that was a substantial factor in producing the harm. The criminal

law does not require that there be but one proximate cause of harm found. Quite

the contrary, all acts that proximately cause the harm are recognized by the law.

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If a certain act was a substantial factor in bringing about the

loss of human life, it is not prevented from being a proximate cause

of this result by proof of the fact that it alone would not have resulted

in death, nor by proof that another contributory cause would have

been fatal even without the aid of this act. [Id., quoting Perkins &

Boyce, Criminal Law (3d ed), p 783.]

Consistent with Bailey, the standard jury instruction related to delivery of a controlled substance

causing death states, in relevant part, that the prosecution is required to prove that consuming the

controlled substance caused the victim’s death, but that:

There may be more than one cause of death. The controlled substance delivered by

the defendant does not need to be the sole cause of [victim’s name]’s death. The

prosecutor is only required to prove that the controlled substance was a contributing

cause that was a substantial factor in the death of [victim’s name]. It does not matter

if there was another contributing cause to the death. [M Crim JI 12.2a(6).]

Thus, in this case, the prosecution was required to demonstrate that defendant delivered the

oxycodone to Gesiakowski, that he intended to deliver it, that she consumed it, and that her death

resulted from her consumption of the oxycodone, which is demonstrated if the evidence shows

that the oxycodone was a contributory cause that was a substantial factor in her death, regardless

of whether there were other contributory causes. See Bailey, 451 Mich at 677 (An intervening act

that causes harm to the victim will “only serve to cut off the defendant’s criminal liability when

the intervening act is the sole cause of harm.”).

C. INEFFECTIVE ASSISTANCE

Defendant contends that his trial attorneys performed below an objective standard of

reasonableness because they failed to investigate and to present an expert witness to refute the

evidence presented by the prosecution regarding the cause of Gesiakowski’s death, and that this

failure resulted in prejudice to defendant. We disagree.

A defendant’s right to counsel is guaranteed by the United States and the Michigan

Constitutions. US Const, Am VI; Const 1963, art 1, § 20. The right to counsel includes the right

to effective assistance of counsel. People v Smith, 336 Mich App 79, ___; 969 NW2d 548, 562

(2021). A defendant is entitled to have his counsel prepare, investigate, and present all substantial

defenses, which are defenses that might make a difference in the outcome of the trial, People v

Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009), but decisions about which defenses and

arguments to present are matters of trial strategy regarding which defense counsel must be afforded

broad discretion. People v Pickens, 446 Mich 298, 324-325; 521 NW2d 797 (1994). Specifically,

the decision whether to call witnesses is a matter of trial strategy. People v Payne, 285 Mich App

181, 190; 774 NW2d 714 (2009). There is a strong presumption that trial counsel’s decision-

making is the result of sound trial strategy, People v White, 331 Mich App 144, 149; 951 NW2d

106 (2020), and the defendant must overcome that strong presumption to demonstrate that counsel

was ineffective. See Trakhtenberg, 493 Mich at 52. “If counsel’s strategy is reasonable, then his

or her performance is not deficient.” People v Randolph, 502 Mich 1, 12; 917 NW2d 249 (2018).

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To establish ineffective assistance of counsel premised on the failure to call witnesses, a

defendant is required to demonstrate, as with any other claim of ineffective assistance of counsel,

that (1) defense counsel’s performance fell below an objective standard of reasonableness, and that

(2) there is a reasonable probability that, but for counsel’s deficient performance, there would have

been a different outcome. People v Jurewicz, 506 Mich 914 (2020), citing Trakhtenberg, 493

Mich at 51. A reasonable probability is one that is “sufficient to undermine confidence in the

outcome.” People v Zitka, 335 Mich App 324, 341; 966 NW2d 786 (2020), quoting Strickland v

Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

To overcome the presumption that counsel’s decision not to call an expert witness was a

legitimate trial strategy, the defendant must meet a heavy burden by establishing a record that

“ ‘excludes hypotheses consistent with the view that his trial court lawyer represented him

adequately.’ ” People v Mitchell, 454 Mich 145, 163; 560 NW2d 600 (1997), quoting Ginther,

390 Mich at 442-443. Counsel may decide not to call an expert for strategic reasons, such as when

cross-examination is determined to provide a sufficient means to expose defects in the opinions of

the prosecution’s experts. Harrington v Richter, 562 US 86, 111; 131 S Ct 770; 178 L Ed 2d 624

(2011). Although decisions regarding experts must be based on sufficient information and

constitute a matter of trial strategy only when they are made after thorough investigation, Ackley,

497 Mich at 390, a failed strategy does not equate to a deficient performance. White, 331 Mich

App at 149.

In this case, the prosecution introduced evidence at trial that defendant delivered

oxycodone to Gesiakowski in the form of Percocet, a prescription drug containing oxycodone and

acetaminophen, and that thereafter Gesiakowski died of mixed-drug toxicity caused by a

combination of four substances: oxycodone, tramadol, fluoxetine, and difluoroethane. Of these

four substances, only oxycodone is a schedule 2 drug, MCL 333.7214(a)(i), and thus only if that

drug was a contributory cause that was a substantial factor in Gesiakowski’s death was MCL

750.317a violated. At trial, the prosecution’s expert witnesses concurred that the combination of

all four substances caused Gesiakowski’s death, and that the oxycodone was a substantial factor

in causing her death.

Defendant contends that effective assistance required defense counsel to investigate

whether the oxycodone caused Gesiakowski’s death and to call a toxicologist and/or pathologist

at trial as an expert witness to refute the testimony of the prosecution’s witnesses. Contrary to

defendant’s argument, however, defense counsel did not fail to investigate the cause of

Gesiakowski’s death. Before trial, defense counsel consulted with Dr. Daniel Spitz, identified as

a forensic pathologist4 by the State Appellate Defender’s Office, regarding the role of oxycodone

4

Dr. Spitz also was identified as a toxicologist, but defense counsel thereafter learned that Dr.

Spitz was not a toxicologist. Toxicology is defined by the Society of Toxicology as “the study of

the adverse effects of chemical, physical, or biological agents on people, animals, and the

environment.” Toxicology Education Foundation, <http://www.toxedfoundation.org> (accessed

February 25, 2022). Toxicology evidence is used in homicide investigations to determine if the

victim consumed drugs and whether a drug or combination of drugs was fatal. 40 AmJur Trials

501, Forensic Pathology in Homicide Cases, Toxicological Evidence, § 34. A forensic pathologist

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in Gesiakowski’s death. Dr. Spitz offered an opinion unfavorable to the defense to the effect that

the amount of oxycodone Gesiakowski consumed, even without the other substances, would have

caused her death. Thereafter, defense counsel interviewed Dr. Kuslikis,5 a toxicologist identified

as a prosecution witness, whose opinion supported the prosecution’s theory that the cause of death

was mixed-drug toxicity including oxycodone, which was a substantial factor in Gesiakowski’s

death.

After investigating the role of oxycodone in Gesiakowski’s death, defense counsel

determined to cast doubt upon the prosecution’s theory that oxycodone was a substantial factor in

Gesiakowski’s death by cross-examination of the prosecution’s witnesses rather than calling a

defense expert on causation.6 At the Ginther hearing, defense counsel explained that through

cross-examination, they were able to use the prosecution’s toxicologist and medical examiner to

present defendant’s theories that the level of oxycodone in Gesiakowski’s blood was not extremely

high, and that more significant factors in her death were the likelihood of serotonin syndrome,

caused by the combination of tramadol and fluoxetine, and also difluoroethane from huffing air

duster. The record supports that defense counsel at trial were able to present these theories through

a thorough and knowledgeable cross-examination of the prosecution’s experts.

The record thus demonstrates that defense counsel investigated the cause of death by

consulting a forensic pathologist and interviewing a toxicologist testifying for the prosecution,

both of whom opined that oxycodone was a contributory cause that was a substantial factor in

Gesiakowski’s death, and defense counsel demonstrated command of the topic while cross-

examining the prosecution’s expert witnesses at trial; we therefore cannot conclude that defense

counsel failed to investigate causation. Similarly, we cannot conclude that defense counsel’s

strategy to present the defense theories through cross-examination of the prosecution’s experts was

objectively unreasonable. Counsel was not required to “shop around” until they found an expert

willing to offer them a favorable opinion. See Ackley, 497 Mich at 392. We conclude that the trial

court did not clearly err by determining that defense counsel’s performance did not fall below an

objective standard of reasonableness in their investigation of causation and determination of trial

strategy.

Defendant also argues that defense counsel was ineffective by failing to introduce expert

testimony that Gesiakowski could not have consumed the Percocet defendant allegedly provided

is a subspecialist in pathology whose area of special competence is the examination of deceased

persons to determine the cause and manner of death. See 40 AmJur Trials 501, Forensic Pathology

in Homicide Cases, Nature of Forensic Pathology, § 6. Forensic pathologists are qualified to opine

at trial regarding the cause and manner of a decedent’s death. Unger, 278 Mich App at 251-252.

5

40 AmJur Trials 501, Forensic Pathology in Homicide Cases, Forensic Pathology, § 4, suggests

that interviewing the prosecution’s expert witness before trial is an effective strategy for defense

counsel to gain understanding of the scientific intricacies of the case.

6

40 AmJur Trials 501, Forensic Pathology in Homicide Cases, Forensic Pathology, § 4, also

suggests that an effective cross-examination by defense counsel of the forensic pathologist who

performed the autopsy, ordinarily called as a prosecution witness, is a valid strategy that “can often

win the case for the defense.”

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because Gesiakowski’s blood tests did not indicate the presence of acetaminophen. At the Ginther

hearing, appellate defense counsel presented as an expert witness Dr. Randall Commissaris, Ph.D.,

whom the trial court qualified as an expert in both pharmacology and toxicology. Dr. Commissaris

opined that although the lab report indicates that Gesiakowski consumed oxycodone in the hours

before her death, she did not consume it in the form of Percocet because the toxicology screen did

not indicate the presence of acetaminophen in her blood.

In response, the prosecution recalled Dr. Kuslikis who testified that although the lab report

did not indicate the presence of acetaminophen in Gesiakowski’s blood, the report indicated that

acetaminophen was present in her urine. He explained that acetaminophen metabolizes up to twice

as fast as oxycodone and has a shorter “half-life,” and thus it was not unusual that the lab report

did not indicate acetaminophen in the blood, which is often present in a level too low to be

indicated in a lab report. He further explained that drugs in the blood are excreted by the kidneys

into the urine, and that the blood and urine levels of acetaminophen indicated in the lab report were

“absolutely” consistent with a person having consumed Percocet. Dr. Start, the chief medical

examiner, similarly testified that the lab report was not inconsistent with Gesiakowski having

consumed Percocet. Because a review of the record demonstrates that acetaminophen not being

indicated as present in the blood in the lab report did not establish that Gesiakowski did not

consume Percocet, it was not a theory that could have defeated the prosecution’s proof that

Gesiakowski consumed Percocet provided by defendant. Defense counsel therefore was not

ineffective for failing to present an expert witness to advance this theory.

Defendant further argues that defense counsel at trial was ineffective for failing to call an

expert witness to testify that Gesiakowski’s consumption of oxycodone was not a substantial factor

in her death because (1) she was opioid tolerant from frequent opioid use, (2) the elevated level of

fluoxetine and tramadol combined to cause serotonin syndrome and a fatal seizure, (3) huffing

difluoroethane caused a seizure or cardiac arrest resulting in death, (4) the absence of

Gesiakowski’s prescribed anti-seizure medication in the lab report indicates that she had failed to

take the medication and therefore was susceptible to seizure, and (5) post-mortem redistribution

may have occurred, which may cause more oxycodone to be observed in the blood after death than

was present in the blood at the time of death. We disagree that the record supports the viability of

these theories.

With regard to opioid tolerance, Dr. Commissaris testified that Gesiakowski was unlikely

to have died from consuming oxycodone because it was likely that she was opioid tolerant from

previous opioid use. He testified that oxycodone will have less effect on someone with tolerance

to the drug, that tolerance can arise relatively quickly, and that opioid tolerance will quickly

reemerge in a former opioid user when he or she resumes use of the drug. Dr. Commissaris

conceded, however, that he had no personal knowledge of Gesiakowski’s history of drug use, such

as her use of drugs while in jail or following her release. Because Dr. Commissaris’ speculation

regarding Gesiakowski’s potential for opioid tolerance was not supported by the facts of this case,

it is unpersuasive, and defendant was not prejudiced by counsel’s failure to present a defense expert

in toxicology to advance this theory.

With regard to the possibility of a fatal seizure, Dr. Commissaris opined that a seizure

appeared probable and could have been caused by (1) serotonin syndrome, resulting from the

interaction of fluoxetine and tramadol, (2) huffing difluoroethane, (3) the cessation of Keppra

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(antiseizure medication prescribed for Gesiakowski while in jail), or (4) some combination of these

factors. Dr. Commissaris noted that there was evidence that Gesiakowski felt hot on the night of

her death, which is a symptom of serotonin syndrome. Defendant argues that individually or

collectively this evidence demonstrates a reasonable probability of a different outcome had defense

counsel called an expert witness to advance the theory that Gesiakowski died of a seizure caused

by factors other than oxycodone. When questioned about mixed-drug toxicity, Dr. Commissaris

agreed that “mixed drug intoxication” was “very likely” the cause of death, but opined that only

tramadol, fluoxetine, and difluoroethane were related to seizures, and that oxycodone was the

“least likely contributor” to Gesiakowski’s death.

Dr. Commissaris’ testimony that Gesiakowski suffered a seizure is purely speculative,

however. Dr. Commissaris testified that Gesiakowski was at risk for a seizure, but there is no

evidence that she, in fact, suffered a seizure; Dr. Kuslikis explained that seizures rarely leave

evidence and that there was no evidence in this case that Gesiakowski suffered a seizure.

Moreover, Dr. Commissaris’ testimony does not demonstrate that oxycodone was not a

contributory cause that was a substantial factor in Gesiakowski’s death. See Ackley, 497 Mich

at 394. Dr. Commissaris suggested that the other substances combined to cause Gesiakowski to

have a seizure causing death; however, the evidence would need to demonstrate that the seizure

was the sole cause of harm to adequately contradict the prosecutor’s assertion that oxycodone was

a contributing cause that was a substantial factor in Gesiakowski’s death. See Bailey, 451 Mich at

677 (An intervening act that causes harm to the victim will “only serve to cut off the defendant’s

criminal liability when the intervening act is the sole cause of harm.”). Dr. Carr testified that even

if Gesiakowski suffered a seizure, mixed-drug toxicity caused her death and oxycodone was a

substantial factor in her death. Defense counsel therefore was not ineffective for failing to call an

expert witness to advance the theory that Gesiakowski suffered a seizure.

Dr. Commissaris also testified that post-mortem redistribution may have occurred and as a

result the level of oxycodone in Gesiakowski’s blood may have tested at a higher level after death

than the level that actually was in her blood at the time of death. However, Dr. Carr testified that

post-mortem redistribution was unlikely in this case because the autopsy was performed very

quickly after the victim’s death and that certain blood samples were taken from the victim’s

vitreous humor (eye), which is not susceptible to post-mortem redistribution. Further, Dr.

Commissaris’ testimony did not establish that if post-mortem redistribution had occurred it would

have affected the level of oxycodone in the blood to the extent that it was no longer considered a

substantial factor in Gesiakowski’s death. Again, defense counsel was not ineffective for failing

to call an expert witness to advance a theory that would not have negated the prosecution’s proofs.

Because we conclude that counsel’s performance did not fall below an objective standard

of reasonableness, we need not reach the question whether counsel’s decision not to call an expert

in toxicology to advance the suggested theories resulted in prejudice. We conclude, however, that

no such prejudice occurred. To establish prejudice, the defendant must demonstrate that, but for

counsel’s deficient performance, it is reasonably probable that a different result would have been

reached. Jurewicz, 506 Mich 914 (2020). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Zitka, 335 Mich App at 341, quoting Strickland, 466 US

at 688. Here, defendant has advanced no theory that would have defeated the prosecution’s case

if advanced by an expert witness at trial.

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We know certain things from the trial court record in this case. We know that the 23-year-

old victim repeatedly implored defendant to obtain oxycodone for her use. We know that

defendant obtained oxycodone in the form of 40 Percocet pills and that the next day defendant and

Gesiakowski retreated to the motel room where she was found dead the following morning. We

know that oxycodone was found in Gesiakowski’s blood post-mortem. We know that all of the

prosecution’s experts testified that the level of oxycodone in Gesiakowski’s blood stream, either

alone or in combination with other drugs, was sufficient to cause her death. And we know that

both of the experts defense counsel consulted before trial opined that the level of oxycodone in

Gesiakowski’s blood stream was sufficient to cause her death either alone or in combination with

the other drugs in her system. We are unable to conclude that had defendant presented largely

speculative alternate theories of the cause of Gesiakowski’s death, there would have been a

reasonable probability of a different outcome at trial.

Defendant also contends that the trial court misunderstood its role at the Ginther hearing

and erred by allowing the prosecution to call witnesses and by evaluating the credibility of

witnesses. In support of this argument, defendant cites People v Lemmon, 456 Mich 625, 627; 576

NW2d 129 (1998), for the proposition that a “trial judge does not sit as the thirteenth juror in ruling

on motions for a new trial.” Defendant’s reliance on Lemmon is misplaced. Lemmon considered

the trial court’s role when ruling on a motion for a new trial premised on the contention that the

verdict was against the great weight of the evidence. Id. By contrast, a Ginther hearing is an

evidentiary hearing at which the trial court serves as fact-finder. See People v LeBlanc, 465 Mich

575, 579; 640 NW2d 246 (2002) (“A judge first must find the facts, and then must decide whether

those facts constitute a violation of the defendant’s constitutional right to effective assistance of

counsel.”) Defendant also identifies no authority for the proposition that a prosecutor may not call

witnesses at a Ginther hearing. The purpose of a Ginther hearing is to determine whether

defendant was deprived of the effective assistance of counsel, and this generally includes receiving

testimony from witnesses relevant to that determination. See People v Morgan, 456 Mich 946

(remanding for a Ginther hearing with instructions to allow testimony from several specified

witnesses as well as “any other witness whose knowledge and credibility could have a

determinative effect” in deciding the defendant’s ineffective assistance claims). In presiding over

a Ginther hearing, the trial court’s role was precisely to find the facts and then decide whether

those facts constituted a violation of defendant’s right to the effective assistance of counsel. See

LeBlanc, 465 Mich at 579.

Affirmed.

/s/ Kirsten Frank Kelly

/s/ David H. Sawyer

/s/ Michael F. Gadola

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