People v. Pickens

Mallett, J.

(concurring in part and dissenting in part). The primary issue in these consolidated criminal cases is what standard should apply in determining if a criminal defendant’s conviction should be set aside on grounds of ineffective assistance of counsel. More precisely, we granted leave to consider if we should adopt the two-pronged test for ineffective assistance of counsel as set forth by *341 the United States Supreme Court in Strickland v Washington, 466 US 668 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984). Today, we adopt the Strickland test that requires a criminal defendant to show: (1) that counsel’s performance was deficient, falling below an objective standard of reasonableness, and (2) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. I write separately because I would hold that to show prejudice under the Michigan Constitution, the defendant must prove that there is a reasonable probability that his attorney’s incompetence deprived him of an otherwise available and likely meritorious defense.

Applying this test, I would reverse the decision of the Court of Appeals, affirming the conviction in People v Pickens, and affirm the Court of Appeals affirmance of the conviction in People v Wallace.

i

A

These consolidated cases place squarely before this Court the question what standard for determining ineffective assistance of counsel is to be applied in this state.

Before the United States Supreme Court’s decision in Strickland , Michigan Court of Appeals panels followed a bifurcated test for ineffective assistance that was alluded to in People v Garcia, 398 Mich 250 ; 247 NW2d 547 (1976). 1 This bifur *342 cated test allowed defendant a new trial on grounds of ineffective assistance of counsel if he could show: (1) that his trial counsel did not perform at least as well as a lawyer with ordinary training and skill in the criminal law, conscientiously protecting his client’s interests undeflected by conflicting considerations, or (2) that his trial counsel made a serious mistake, without which the defendant would have had a reasonably likely chance for acquittal. Id. at 264-266 .

Pursuant to the Garcia test, as long as a criminal defendant could show that his attorney’s performance fell below the professional norm, he need not show that he was prejudiced by his counsel’s ineffectiveness. Only when his counsel performed with otherwise ordinary skill, but made a serious mistake, did the defendant need to show that he was prejudiced by this mistake.

In Strickland , the United States Supreme Court held that to successfully claim ineffective assistance of counsel under the Sixth Amendment the defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense so that the trial could not be relied on as having produced a just result. This standard differs from that developed following Garcia , because pursuant to Strickland a defendant must always prove actual prejudice.

After Strickland , Court of Appeals panels have taken differing views on whether a showing of prejudice is required in order for a state conviction to be overturned and a new trial granted on grounds of ineffective assistance of counsel. 2 Today, I join with the majority and follow Strickland in *343 adopting a two-pronged test as the standard to be applied pursuant to the Michigan Constitution’s right to counsel provision, Const 1963, art 1, § 20, and due process guarantee, Const 1963, art 1, § 17.

1

To successfully claim ineffective assistance of counsel, a defendant must show that his attorney performed below an objective standard of reasonableness under prevailing professional norms. This is the first prong of the Strickland test. The Court elaborated that the defendant must overcome a "strong presumption” that his counsel’s conduct constituted reasonable trial strategy. Strickland at 689 . It also provided the following guidance for determining when counsel’s performance falls below the level required to ensure a reliable result at trial:

[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. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. [Id. at 690.]

The approach taken in Strickland for determination of thejreasonubleness of counsel’s conduct is consistent with Michigan precedent. In adopting the first prong of the Strickland test, the standard for incompetence set forth by this Court in Garcia, wherein we determined that defense counsel must perform at least as well as a lawyer with ordinary *344 training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations is reaffirmed. Garcia at 264 . Action appearing erroneous from hindsight does not constitute ineffective assistance if the action was taken for reasons that would have appeared at the time to be sound trial strategy to a competent criminal attorney. Id. at 266 .

2

Pursuant to Strickland, a showing of incompetency is not enough to successfully challenge a conviction on ineffective assistance of counsel grounds. Strickland further requires a defendant to show that his counsel’s errors prejudiced the defense so as to deprive the defendant of a fair trial.

The prejudice requirement has constitutional origins, deriving from the fair trial guarantee of the Due Process Clauses of the Fifth and Fourteenth Amendments. As noted in Strickland :

In a long line of cases that includes Powell v Alabama, 287 US 45 [ 53 S Ct 55 ; 77 L Ed 158 ] (1932), Johnson v Zerbst, 304 US 458 [ 58 S Ct 1019 ; 82 L Ed 1461 ] (1938), and Gideon v Wainwright, 372 US 335 [ 83 S Ct 792 ; 9 L Ed 2d 799 ] (1963), this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause ....

The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the *345 outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. [Id. at 684-685, 691-692.]

I read Strickland as basing the right to effective assistance on both the Sixth Amendment Right to Counsel Clause and on the Due Process Clauses. I view the right to effective assistance of counsel as involving two components. The first is procedural, the second substantive. The procedural component derives from the right to counsel provision and guarantees the right to a competent attorney. The substantive component has due process origins and provides a right to representation that leads to a fair trial. 3

A prejudice requirement is also consistent with the harmless error doctrine. Michigan recognizes this doctrine in various contexts. The Legislature has suggested its approval of the doctrine in MCL 769.26; MSA 28.1096, which requires that even upon a demonstration of an error by counsel, there also must be a showing of actual prejudice. Similarly, MCR 2.613(A) recognizes harmless error, defining the rule as follows:

An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice. [Emphasis added.]

In addition, this Court has voiced agreement *346 with Chapman v California, 386 US 18 ; 87 S Ct 824 ; 17 L Ed 2d 705 (1967), holding that constitutional errors committed during trial will not merit automatic reversal. Instead, reversal is warranted only where: (1) the error is so offensive to the maintenance of a sound judicial system that it never can be regarded as harmless, or (2) if not so basic, the error is not harmless beyond a reasonable doubt. People v Michael M Robinson, 386 Mich 551, 563 ; 194 NW2d 709 (1972).

In People v Mosko, 441 Mich 496, 502-503 ; 495 NW2d 534 (1992), this Court stated:

Rules of automatic reversal are disfavored, for a host of obvious reasons. The doctrine of harmless error has been adopted by the Legislature and by this Court, and has been applied by this Court in many different contexts. As this Court said in [People v] Beach [ 429 Mich 450, 491 ; 418 NW2d 861 (1988)], "We require a fair trial, not a perfect trial.”

Given the value this Court and our Legislature have given to the doctrine of harmless error, it would be inconsistent and make little sense to allow reversal of a conviction on ineffective assistance of counsel grounds without some showing of prejudice.

Furthermore, this Court has cited with approval Coleman v Alabama, 399 US 1, 9 ; 90 S Ct 1999 ; 26 L Ed 2d 387 (1970), wherein the United States Supreme Court applied a harmless error analysis to the denial of the right to counsel at a preliminary examination. People v Hall, 435 Mich 599, 605-606 ; 460 NW2d 520 (1990). In so doing, this Court has indicated a departure from the Michigan Court of Appeals decisions that rely on Beasley v United States, 491 F2d 687 (CA 6, 1974), in holding that the harmless error doctrine (or a *347 prejudice inquiry) does not apply where the attorney’s errors fail the "ordinary skill” test. To the extent that Garcia has been interpreted as not requiring a showing of prejudice when an attorney fails to perform at the level of ordinary skill possessed by a competent criminal attorney, it should be overruled.

B

While I find that a prejudice requirement has constitutional underpinnings, comports with the harmless error doctrine, and various policy reasons support such a requirement, I would not adopt Strickland’s definition of prejudice in its entirety because that standard is unduly burdensome.

In interpreting the Michigan Constitution, this Court is compelled neither to accept nor reject federal interpretations of parallel provisions of the United States Constitution. Instead, "[i]n each instance, what is required of this Court is a searching examination to discover what law 'the people have made.’ ” Sitz v Dep’t of State Police, 443 Mich 744, 759 ; 506 NW2d 209 (1993), citing People v Harding, 53 Mich 481, 485; 19 NW 155 (1884).

While the text of the state and federal due process and right to counsel provisions are virtually identical, this Court is free to uphold greater protections pursuant to Const 1963, art 1, §§ 17 and 20, for the citizens of this state if we find a principled basis in the history of our jurisprudence to do so. Sitz, supra at 763 .

Although the prosecution, citing People v Bellanca, 386 Mich 708 ; 194 NW2d 863 (1972), asserts that Michigan has interpreted the state constitutional right to counsel consonant with that set forth in the federal constitution, the Bellanca *348 decision addressed only the right to discovery and counsel at a preliminary examination. It does not stand for the general proposition that the state right to counsel is entirely coextensive with its federal counterpart.

In other cases, this Court has decided issues relating to counsel without citing federal authority. See People v Cavanaugh, 246 Mich 680 ; 225 NW 501 (1929), and People v Lundberg, 364 Mich 596, 599-602 ; 111 NW2d 809 (1961). Furthermore, although not commanding a full majority, in People v Wright, 441 Mich 140 ; 490 NW2d 351 (1992), three justices determined that Michigan’s Constitution afforded greater protection than did the United States Supreme Court’s interpretation of the federal constitution, where a suspect is denied knowledge of the presence of retained counsel and then waives his right to counsel. 4

Also, in People v Jackson, 391 Mich 323, 338-339 ; 217 NW2d 22 (1974), this Court acknowledged that it was announcing a rule applicable to the right to counsel at photographic show-ups that was more expansive than the United States Supreme Court had set forth on the same issue.

Thus,- there is historical authority to depart from Strickland and to establish our own standard regarding the applicable definition of prejudice.

The prejudice requirement set forth in Strickland requires a defendant to show that there is a reasonable probability that, but for counsel’s er *349 rors, the result of the proceeding would have been different. In the context of a criminal trial, the Strickland definition of prejudice requires the defendant to show that there is "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 US 695 .

This definition of prejudice places too much emphasis on the reliability of the outcome, instead of considering the defendant’s due process right to-have a meaningful opportunity to affect that outcome. 5

Other jurisdictions have also rejected the Strickland standard for determining prejudice. For example, the Massachusetts Supreme Court, while citing Strickland , defines the inquiry under the prejudice prong as whether counsel’s deficiencies caused "prejudice to the defendant’s case.” Commonwealth v White, 409 Mass 266, 275; 565 NE2d 1185 (1991). That court’s analysis continues to rely on the standard it developed before Strickland , allowing reversal if the attorney’s unprofessional errors "deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v Saferian, 366 Mass 89, 96; 315 NE2d 878 (1974).

Hawaii has also rejected Strickland’s prejudice test, noting that it has been criticized as unduly difficult for defendants. Hawaii instead requires a defendant to show that counsel’s errors or omissions " 'resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.’ ” State v Smith, 68 Hawaii 304, 309 ; 712 *350 P2d 496 (1986); State v Antone, 62 Hawaii 346 ; 615 P2d 101 (1980). Similarly, Alaska continues to rely on a pre-Strickland test for prejudice that requires the defendant to show that his attorney’s incompetence "contributed to the conviction.” Wilson v State, 711 P2d 547, 549 (Alas App, 1985); Jackson v State, 750 P2d 821, 824-825 (Alas App, 1988).

The approaches taken by these jurisdictions have in common a refusal to focus entirely on the effect an attorney’s errors have on the outcome. Instead, the various tests allow an inquiry into whether a defendant had a meaningful opportunity to have counsel’s assistance in presenting a defense. While this is an appropriate inquiry, it must be tempered by the policy concerns underlying the harmless error rule.

I believe that the proper balance is struck by the following proposed standard for prejudice. To successfully claim ineffective assistance of counsel, a defendant must show that his attorney’s incompetence has deprived him of an otherwise available and likely meritorious defense.

To meet this standard, a defendant must show either that his attorney’s errors precluded putting forth a likely meritorious defense altogether, or that the errors in presenting what would likely have been a meritorious defense were so serious that the defendant was in essence denied the right to have the assistance of counsel as envisioned by Const 1963, art 1, § 20.

The majority’s criticism of my proposed refinement to the Strickland prejudice prong reflects a basic misunderstanding of both Strickland and my proposed test. The majority contends that under my proposed test, "[c]onvictions would be overturned because convicted criminals could legally argue that defense counsel should have chosen other avenues of defense that, although tenable, *351 did not have a reasonable probability of affecting the jury’s verdict.” Ante at 325. It further contends that an attorney could be found ineffective for choosing the "better course.” Id. Such contentions ignore the first prong of the Strickland test. If indeed a defense attorney chose not to pursue a line of defense that did not have a reasonable probability of affecting the jury’s verdict, or was in fact the better course, the first prong of the Strickland test would not be satisfied. 6 Therefore, the issue of prejudice would not even be reached.

Further, the majority undertakes an excessive "original intent” analysis to criticize my proposed refinement of Strickland’s prejudice prong. The analysis is curious in two respects. First, because the concept of ineffective assistance is fairly recent, there is not a lot of history to draw upon in evaluating the appropriate test to apply in Michigan. There is no evidence that Strickland’s prejudice standard was thought of until 1984, when the Supreme Court invented it. It was not in the minds of the framers of the United States Constitution or the Michigan Constitution of 1963. Yet, the majority suggests that without sufficient historical jurisprudence, this Court must blindly adopt, verbatim, the test espoused by the United States Supreme Court.

Second, the majority implies that my proposed standard constitutes "the creation of rights from whole cloth.” Ante at 322. Rather, my proposed standard is merely a refinement of the Strickland test, which as demonstrated by the dissent is capable of differing interpretations. It is appropri *352 ate for this Court to refine and clarify United States Supreme Court jurisprudence in light of the past history and jurisprudence of this state. Indeed, it is our duty. The majority’s narrow application of Sitz severely constricts our ability to answer this calling.

ii

Having analyzed and described my proposed test, I now turn to the facts presented in these consolidated cases.

While I agree with the Court of Appeals that the performance of Mr. Pickens’ trial attorney was deficient, his claim cannot succeed because he has not shown that he was prejudiced by his counsel’s errors.

Attorney Greenberg indicated to Judge Moore that she intended to call the alleged alibi witness, Mr. Wright. Her own testimony at the Ginther hearing disclosed that she was aware of Wright’s potential alibi testimony nearly three months before trial. Her failure to file a timely notice of alibi and failure to move for an adjournment in order to correct her error establishes a level of performance falling below the professional norm.

However, Mr. Pickens has failed to establish the required showing of prejudice. He was not able to show at the evidentiary hearing that the failure to secure the alleged alibi witness’ testimony deprived him of an otherwise available and likely meritorious defense.

Although Mr. Wright was subpoenaed, he did not testify at the evidentiary hearing. Instead, for unexplained reasons, defense counsel waived the witness, stating that he had discussed the matter at length with Mr. Pickens. No evidence was ever presented at the evidentiary hearing to establish *353 that the alleged alibi witness would have indeed testified favorably to the defense at trial. Because there was no showing that an alibi defense, as might have been provided by Mr. Wright, would likely have been meritorious, the defendant has not shown prejudice. Therefore, the decision of the Court of Appeals should be reversed.

Mr. Wallace’s ineffective assistance claim likewise fails under my proposed test. Although he voices numerous complaints about his counsel’s performance, for purposes of analysis I will combine them into three categories.

First, defendant Wallace complains that his attorney failed to properly prepare and present an insanity defense. Second, and related to the first complaint, Mr. Wallace claims ineffective assistance because his attorney "failed to recognize, failed to investigate, failed to file the statutory notice and failed to prepare a diminished capacity defense . . . .”

Attorney Graziotti’s alleged deficient performance in preparing and presenting the insanity and diminished capacity defenses overlap to a large degree. I will therefore discuss these two categories together. Diminished capacity is a specialized form of the insanity defense. It focuses on the role of alcohol and substance abuse in the claimed mental illness. While attorney Graziotti abandoned the specific specialized défense, he was still able to present evidence of alcohol and substance abuse in developing the more general insanity defense.

The primary theory of the defense was that the defendant had committed the crime while insane and under provocation. Mr. Graziotti indicated to the court that he did not want the diminished capacity instruction because he felt that the first part of the instruction might dissuade the jurors *354 from finding the defendant insane. 7 While the record reveals that Mr. Graziotti could have done a better job of presenting the insanity defense, we cannot determine that his decision not to focus on the alcohol and substance abuse aspect of the insanity defense was not made for reasons of sound trial strategy. Therefore, I cannot conclude that in light of all the circumstances his performance was "outside the wide range of professionally competent assistance.” Strickland, 466 US 690 .

Furthermore, Mr. Wallace’s claim of ineffective assistance based on the alleged errors in his attorney’s handling of the insanity defense fails because prejudice has not been established.

Nothing new was adduced at the Ginther hearing to indicate that counsel’s poor presentation of the insanity defense deprived the defendant of a .likely meritorious defense. After reviewing the entire transcript of the Ginther hearing, I agree with the prosecutor’s statement that "the jury heard everything the experts had to say in this case; if there was more the jury should have heard, from Dr. Bhama, or from the prosecution’s experts, by way of cross-examination, this ’extra’ *355 information was never brought out at the Ginther hearing. In other words, Defendant has not established prejudice.”

Likewise, no prejudice resulted from attorney Graziotti’s failure to pursue diminished capacity. As already mentioned, lack of specific instructions regarding this defense did not preclude development of the theory that defendant’s long-term alcohol and substance abuse contributed to the temporary insanity he experienced at the time that he shot his wife. Because this theory was adequately presented by counsel, and rejected by the jury, a further instruction on diminished capacity would not have aided the defendant. 8

Finally, defendant complains of his counsel’s general incompetence and ignorance of the criminal law. He cites several specific shortcomings. For instance, Mr. Graziotti demonstrated a lack of familiarity with basic rules of procedure and basic rules of law. He had to consult written notes and reference material to answer questions put to him by appellate counsel on basic rules of evidence and procedure. He insisted to the jury and the court that second-degree murder was a specific intent crime. He asked the trial court who was supposed to bring a directed verdict motion, and what was the order of closing arguments. Mr. Graziotti’s explanations at the Ginther hearing for these specific examples of alleged incompetence at trial were that he was just trying to engage the court in conversation.

Defendant also complains about attorney Graziotti’s untruthfulness, either at the Ginther hearing, or during trial, regarding when he obtained *356 and reviewed a crucial prosecution expert’s report. At trial he stated that he did not know Mr. Kolito’s report would be used and had not studied it or discussed it with the defendant until the night before trial. However, when confronted with his trial statements at the evidentiary hearing he explained that he had gotten the report and had immediately studied it with defendant some eleven days before the trial and that his assertions to the court were merely an attempt to "try and lean on the court” for more time.

There is no need to discuss whether these instances of alleged incompetence deprived defendant of the "counsel” envisioned under the Sixth Amendment, Strickland, 466 US 687 . Again, the defendant has not shown that these complaints resulted in prejudice. As noted by the prosecution, "The trial judge properly instructed the jury on the elements of first- and second-degree murder; a motion for directed verdict would have surely been denied; and closing arguments proceeded in the order they were supposed to.” 9

Because defendant has not shown that his attorney’s performance deprived him of an otherwise available and likely meritorious defense, I would find that his ineffective assistance claim must fail.

Although this test is referred to as the "Garcia test,” this Court’s opinion in that case did not fully explain or give a rationale for what the exact test for ineffectiveness pursuant to Const 1963, art 1, § 20, should be. Instead, the Court merely explained that the defendant’s contention that he was denied a fair trial under either People v Degraffenreid, 19 Mich App 702 ; 173 NW2d 317 (1969), or Beasley v United States, 491 F2d 687, 696 (CA 6, 1974), was unfounded. Garcia at 264-266 .

Although, pursuant to Administrative Order No. 1990-6, all Michigan Court of Appeals panels and trial courts were bound by the Strickland test as adopted in the “first out” case, People v Tommolino, 187 Mich App 14 ; 466 NW2d 315 (1991), this Court had yet to definitively state that Strickland is the governing standard.

See Gilles, Effective assistance of counsel: The Sixth Amendment and the fair trial guarantee, 50 U Chi L R 1380 (1983).

Justices Levin and Mallett held that the right against self-incrimination, the right to remain silent, and the right to counsel afforded by Const 1963, art 1, § 17, include being informed by the police of attempted contact in person by retained counsel. Chief Justice Cavanagh concurred, but would have further required the police to take prompt and diligent steps to inform the suspect of his attorney’s attempts to contact him or would render subsequent statements by the suspect inadmissible as taken in derogation of the right to counsel. Justice Brickley concurred in the result, but found lack of a valid waiver on other grounds.

A standard that focuses only on the reliability of the outcome ignores the procedural element of the right to effective assistance, turning the right to effective assistance into a singular issue of harmless error. The right to effective assistance includes a right to have an attorney who is at least minimally competent to assist in presenting the defense.

Similarly, contrary to the majority’s suggestion, a "good” plea bargain accepted by a defendant on the sound advice of his attorney would not form the basis of a successful ineffective assistance claim because the first prong of the test would not be satisfied. An attorney who chooses a "good” strategy would meet the competency requirements of the first prong.

The jury instruction on diminished capacity is as follows:

(1) A person who is under the influence of voluntarily consumed [alcohol/(and/or) controlled substances] at the time of the alleged offense is not for that reason alone to be judged legally insane.

(2) However, a person may be mentally ill and intoxicated, with both conditions affecting his actions. It is for you to judge whether, under all of the circumstances, the defendant was mentally ill at the time of the offense, and then to apply the further tests of whether or not the defendant was legally insane. [CJI 7:8:02.]

At the Ginther hearing, Mr. Graziotti explained that because evidence was presented refuting that his client was intoxicated at the time of the shooting, he felt the instruction would be detrimental to his client’s case.

This is also true because a necessary component of the diminished capacity defense is that the defendant was mentally ill. The jury rejected such a finding when it rejected the guilty but mentally ill verdict.

I am sympathetic to the defendant’s claim that because of attorney Graziotti’s inadequacies, "he brought an aura of unprofessional-ism that reflected so badly on the Appellant and his defense.” However, the defendant has done no more to show prejudice than to make a bare allegation that "because of counsel’s serious mistakes, he was substantially prejudiced thereby and but for same may have had a strong likelihood of acquittal.” Id.