Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED MAY 28, 2008 PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 132042 KATHERINE SUE DENDEL, Defendant-Appellee.

BEFORE THE ENTIRE BENCH CORRIGAN, J. Defendant, an insulin-de pendent diabetic, was co nvicted of second-degree murder for injecting th e victim, her live-in partner, wi th a lethal dos e of insulin. The Court of Appeals revers ed her conviction and rema nded for a new trial after concluding that defense coun sel was ineffective for failing to produce an expert to refute the testimony of the prosecution’s experts that the victim died from an insulin overdose. We revers e the judgment of the Court of Appeals and reinstate defendant’s conviction. Defense counsel was not in effective under the test of Strickland v Washington , 466 US 668; 104 S Ct 2 052; 80 L Ed 2d 674 (1984), because defendant did not prove that she was prejudiced by her counsel’s failureto produce an expert witness. The Court of Appeals erred in holding that defense counsel could have presen ted an expert witness w ho would have refuted the testimony of the prosecution’s experts to the extent that defendant’s acquittal would have been reasonably pr obable. Further, the trial court correctly held that, in light of the strong circumstantial evidence of defendant’s guilt, it was not reasonably probable that the outcome wo uld have been different had a defense expert testified.
I. FACTUAL BACKGROUND Defendant and the victim, Paul Mi chael Burley, were in a long-term relationship and had lived together for y ears. Burley had been taking numerous medications for several serious illnesse s, including an in fection with human immunodeficiency virus (HIV), herpes, hepatitis B and C, epilepsy, ataxia, neuropathy, chronic obstructive pulmonary disease, severely impaired vision, dementia, lymphoma, and thro at cancer. Burley was not, however, diabetic. By defendant’s own account, Burley was a di fficult person to care for. Defendant was solely responsible for ma king sure that Burley took his medications and for tending to his everyday needs. Defendant’s relationship with Burley’s family was strained, partly by what she perceived as the family’s failure to help with Burl ey’s care. Before Burley’s death, defendant had told his sister that “if something happens to your brother, your family won’t know what hit you.” About one week befo re Burley’s death, defendant, frustrated with Bu rley’s demands, also told Burley’s sister, “I can’t

2take this” and “I feel like giving him a shot of insulin.” As an insulin-dependent diabetic, defendant had access to insulin and knew how to inject it. Defendant also knew how insulin meta bolizes and that no trace of insulin would remain in Burley’s blood after an insulin injection. Defendant had expressed h er frustration with caring fo r Burley to a Family Independence Agency (FIA) employee. Le ss than a week befo re Burley’s death, defendant e-mailed the FIA employee to seek help with caring for Burley. Defendant told the employee that she could not manage all of Burley’s demands on her own. During a subs equent telephone conversati on, defendant again stated that she was frustrated and c oncerned that the situation was deteriorating and that she no longer knew how to manage Burley. The FIA employee suggested that defendant have Burley evaluated at a me ntal-health facility or have him placed in respite or hospice care. 1 The FIA employee testifie d that defendant had never before expressed any problems with caring for Burley. During the week l eading up to Bu rley’s death, defenda nt sought help from the Department on Aging. The departme nt representative told defendant that she did not qualify for help because both she and Burley were not 60 years old. The representative suggested th at defendant instead cont act hospice services.

1 The FIA employee testified that as lo ng as Burley was competent, the FIA could not compel defendant to put Burley in a nursing home.

3Defendant replied that hospice services would not help because Burley was not yet near death. Defendant’s caregiving situation took another turn for the worse the day before he died. On March 14, 2002, a visiting nurse had been assigned to assist defendant and educate her in the proper me thods of care. She visited five times, but, on the day before Burley’s death, the nurse terminated her services because Burley had been uncooperativ e. When the nu rse told defendant that she was terminating her services, defendant becam e “quite tearful and upset.” Defendant told the nurse that she did not know how long she could continue caring for Burley. At 3:00 a.m. on the day of Burley’s death, defendant called 911, reporting that Burley had been hallucinating and running around with a butter knife. Defendant asked the police to come take Bu rley to a mental institution. When the police arrived, Burley was sitting calmly in a chair. He told th e officers that he was fine and that there was no problem. The police decided to leave Burley at home because he was not a threat to himsel f or others. One o fficer testified that defendant was visibly upset with Burley and the police. Defendant also later admitted that she was frustrated with the officers’ decision and that she was hoping for relief because sh e was at her “wit’s end.” Defendant contended that later that day she discovered Burley slumped over on the couch and unresponsive. She testified th at, because Burley was cold and covered with purple blotches, she th ought he might be dead. Rather than

4calling 911, however, she instead called a friend, who arrived an d contacted 911. While the police and emergen cy personnel were removing Burley’s body from the house, one of Burley’s sisters telephoned. Defenda nt answered th e phone, but quickly ended the conversation withou t telling her that Burley had died. During the next several da ys, defendant spoke with several of Burley’s siblings. She never informed them of his death, but instead false ly told them that he had been hospitalized. One of the victim’s sisters described a 74-minute conversation with defendant two days after Burley’s death. She testified that defendant was “very upbeat” an d “nonchalant” in her discussion of topics ranging from Burley’s health to antique jewelry. During this conversation, defendant laughed while describing an alleged in cident when Burley had wandered away from the apartment complex and become lost. Yet defendant never mentioned Burley’s death. Defendant wanted Burl ey’s body cremated with out an autopsy being performed. Although an autopsy was performed despite defendant’s wishes, defendant had Burley’s body cremated before his family l earned about his death. When a police detective incorrectly told defendant that the medical examiner had detected insulin in Burley ’s body, defendant called hi m a liar and explained that insulin could not be det ected in the human body after death because it breaks down and depletes naturally. After defendant’s arrest, she told police detectives that Burley had injected himself with insulin. Duri ng a later interview with a police detective, defendant

5said, “That poor dear, he killed himself for me.” She told the detective that despite Burley’s severely impaired visi on and problems with holding things, he could inject himself with insulin. 2 Defendant also told defense counsel that Burley had killed himself by an insulin injection and that she wanted him to pursue this theory of defense at trial. Defendant al so testified that Burley had mental problems and that he had “talked suicide fo r 10, 15 years.” She had informed two of Burl ey’s doctors of his suicidal intentions. Defendant was charged with first-degree murd er. The prosecution theorized at the bench trial th at defendant injected the vic tim with a lethal dose of insulin on April 2, 2002. The prosecution presented tw o expert witnesses, Dr. Bernardino Pacris 3 and Dr. Michael Evans, 4 who testified that the evidence supported the theory that Burley had died from an insulin injection rather than from natural causes or an overdose of one of his medications. 5 Defense counsel Joseph Filip argued that Burl ey had died either by inje cting himself with insulin

2 Defendant also suggested the unlikely scenario th at if Burley had not injected the insulin hims elf, perhaps someone had broken into her apartment, found her insulin a nd syringe, and given Burley the shot. 3 Dr. Pacris is an Oakla nd County medical examin er and a former Jackson County forensic pathologist who has been qualified as an exp ert witness in more than 100 trials. 4 Dr. Evans is the presid ent and chief executive offi cer of AIT Laboratories, the former state toxicologist for Indiana, and a professor of toxicology who has testified as an expert in 35 states. 5 We discuss Dr. Pacris’s and Dr. Evan s’s trial testimony in detail in part III(A) of this opinion.

6or from the side effects of numerous medications prescribed for him. Defense counsel did not present any expert te stimony to rebut th e testimony of the prosecution’s experts. The trial court found defendant guilty of the lesser-included offense of second-degree murder. Defendant moved fo r a new trial, arguing that Filip had deprived her of a fair trial by failing to conduct a reasonable investigation into the cause of Burley’s death. The trial court denied the motion. The Court of Appeals remanded for a Ginther 6 hearing to determine wh ether Filip had provided ineffective assistance. At the Ginther hearing, appellate defense counsel called Dr. Laurence Simson, 7 who testified that the evidence did not support th e view that defendant had died from an insulin overdose. Dr. Pacris defended his trial testimony that Burley had died of hypoglycem ic shock caused by insulin. 8 The trial court rejected defendant’s claim of ineffective as sistance of counsel. Instead, it found that defense counsel’s performance had be en objectively reasonable. The court concluded that defendant ha d not been prejudiced by Filip’s failure to call an expert forensic pathologist to rebut the opi nions of the prosecution’s experts. The

6 People v Ginther , 390 Mich 436; 21 2 NW2d 922 (1973). 7 Dr. Simson is a forensic pathology consultant and a fo rmer professor of pathology, an Ingham County pathologist , and a national consultant in forensic pathology to the Surgeon General of the United States Air Force. 8 We discuss Dr. Simson’s and Dr. Pacris’s Ginther hearing testimony in detail in part III(A) of this opinion.

7court explained why the outcome of the tr ial would not have been different if the defense had offered Dr. Simson’s testimony: And if the case was just, . . . the police had a dead body and you have Dr. Pacris and Dr. Simson, that would be one thing. It wasn’t that. If there was a lot of other testimony, of statements and other witnesses and other things th at pointed in that direction, it would have made the testimony of Dr . Evans and Dr. Pacris not as . . . clear. But I don’t know that I can say that there’s a reasonable probability that the outcome woul d have been di fferent. There was still—there was other evid ence, . . . admittedly all circumstantial, but there was a lot of other evidence. I am not convinced that that has been established, that it’s reas onably probable that the outcome would have been different . . . . A divided Court of Appeals reversed and remanded for a new trial. The majority summarized its holding as follows: Defense counsel’s fa ilure to consult with and present the testimony of appropriate medical experts to address the central issue in this case, the cause of Burley ’s death, was clearly deficient in light of prevailing pro fessional norms and, but for that deficiency, there is a reasonable probability that the outcome of defendant’s trial would have been different. [ People v Dendel, unpublished opinion per curiam, issued July 18, 2 006 (Docket No. 247391), p 3.] The Court of Appeals major ity explained that, despite Dr. Pacris’s testimony that Burley had died from insulin shock, Filip failed to consult a forensic pathologist or Burley’s doctors regarding the cause of Burley ’s death. The ma jority held that Filip’s failure to consult an informed expert who coul d have refuted Dr. Pacris’s conclusions essentially amounted to a concession that Burley had died from insulin shock. Because it was unlikely that Burley admini stered the insulin himself, in light of his physical limitations , the trial court was left to conclude that defendant administered th e insulin that caused Burley ’s death. The majority

8noted that the Ginther hearing had demonstrated that a qualified pathologist (Dr. Simson) would have (1) refu ted Dr. Pacris’s conclusion that Burley died from insulin shock and (2) provided an a lternative, noncriminal explanation for Burley’s death. The majority conclu ded: “Trial counsel’s failure deprived defendant of a substantial defense, and th ere is a reasonable probability that this would have made a difference in the outcome of the trial.” Dendel, supra at 4. Judge Wilder dissented, rejecting the c onclusion that defendant had been prejudiced by counsel’s performance. He relied on the trial court’s conclusion that even if Filip had introduced Dr. Simson’s testimony, the court would nonetheless have found defenda nt guilty in light of the weight of the evidence. This evidence supporting d efendant’s guilt included the following: defendant had the opportunity to inject the insulin, defendant admitte d being aware that no trace of insulin would be found in Burley’s blood after his death, defendant was under considerable stress in trying to care for Burley by herself, and d efendant not only failed to inform Burley’s family of his death, but sh e apparently hid it from the family. Judge Wilder also noted that nothing established that Dr. Simson was more credible than Dr. Pacris. Moreover, Dr. Simson concededly co uld not rule out insulin shock as the cause of death. Judge Wilder stated that the effect of expert testimony de pends on the fact-finder’s eval uation of credibility, and the fact-finder in this case had expressly det ermined that Dr. Simson’s testimony would not have changed the result of the trial.

9The prosecution appealed, arguing that the Court of Appeals had erred in holding that defendant wa s entitled to a new trial on the basis of ineffective assistance of counsel. This Court heard oral argument on wh ether to grant the application or take ot her peremptory action.
II. STANDARD OF REVIEW “Whether a person has been denied effective assistance of counsel is a mixed question of fact and co nstitutional law. A judge first must find the facts, and then must decide whet her those facts constitute a vi olation of the defendant’s constitutional right to effective assistance of counsel.” People v LeBlanc , 465 Mich 575, 579; 640 NW2d 2 46 (2002). This Court reviews a trial court’s factual findings for clear error and reviews de n ovo questions of constitutional law. Id.

III. ANALYSIS
In People v Carbin , 463 Mich 590, 599-600; 62 3 NW2d 884 (2001), this Court explained the test for determining whether a defendant ha s been denied the effective assistance of counsel: A defendant seeking a new tr ial on the ground that trial counsel was ineffective bears a hea vy burden. To justify reversal under either the federal or state c onstitutions, a convicted defendant must satisfy the two- part test articulated by the United States Supreme Court in Strickland v Washington , 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). See People v Pickens , 446 Mich 298, 302-303; 521 NW2d 797 (1994). “First, the defendant must show that counsel’s performance was defi cient. This requires showing that counsel made errors so seriou s that counsel was not performing as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland, supra at 687. In so doing, the defendant mu st overcome a strong presumption that counsel’s pe rformance constituted sound trial

10strategy. Id. at 690. “Second, the defe ndant must show that the deficient performance prej udiced the defense.” Id. at 687. To demonstrate prejudice, the defendan t must show the existence of a reasonable probability that, but for co unsel’s error, the result of the proceeding would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim. See People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999). [9] We conclude that defendant has failed to demonstrate that she was prejudiced by Filip’s performance. 10

9 The dissent accuses us of misunders tanding defendant’s burden under the prejudice prong of Strickland . Yet, ironically, it is the dissent, not us, that applies the wrong standard. The di ssent states: “Because defe ndant has shown that her trial counsel’s performance deprived her of a substantial defense, she has met her burden of showing prejudice, unless other evid ence rendered this defense unbelievable.” Post at 9. The dissent fails to recognize that to demonstrate prejudice, a defendant “must show the existence of a reasona ble probability that, but for counsel’s error, the result of th e proceeding would have been different.” Carbin, supra at 600. Instead, the dissent errone ously suggests th at prejudice is presumed if defendant was deprived of one of several theories of defense. Contrary to the dissent’s ass ertion, that a defense attorn ey performed d eficiently in presenting a viable defense does not automatically require the conclusion that there is a reasonable probability that the result of the pr oceeding would have been different absent counsel’s d eficient performance. Th e dissent does not explain why there is a reasonable pr obability that she would have been acquitted had defense counsel presented expert testimony to support the theory that Burley died of a morphine or multiple-drug overdose. Justice Kelly also mentions repeatedly that she thinks that defendant might be innocent. But the guilt or innocence of the accused is a matter to be decided by th e fact-finder, not the appellate courts. Defendant is not entitled to relief unless she satisfies Strickland ’s test for prejudice. 10 The dissent argues that Filip’s p erformance was deficient because he failed to present an expert to challenge the prosecution’s theory regarding the cause of death. The dissent’s argument is misplaced. The majority does not conclude that defendant failed to show th at counsel’s performance was deficient. (continued...)

11A. THE EXPERT TESTIMONY Dr. Pacris testified at trial that he performed an autopsy on Burley on April 3, 2002. Dr. Pacris initially concluded that Burl ey had died from natural causes. But because a police officer told Dr. Pacris that he suspected that Burley might have been injected with insulin, which can be fatal to a nondiabetic, Dr. Pacris sent Burley’s fluids to AIT Laboratories to be te sted for insulin, glucose, and C-peptide levels. The tests revealed that Burley’s glucos e level was zero and that his insulin and C-pep tide levels were normal. Dr. Pacris explained that, although the glucose levels in a person’ s bodily fluids drop immediately after the person dies, the complete l ack of glucose in Burley ’s vitreous fluids was consistent with a finding that Burley had been injected with insulin. 11 He found acute tubular necrosis in the kidneys and de ad cells in the proximal tubules of the brain, which are usually seen in people who have suffered hy poglycemic shock. Dr. Pacris ultimately conclude d that the cause of deat h was complications from

(...continued) Rather, the majority concl udes only that defendant was not denied the effective assistance of counsel, because she faile d to show that she was prejudiced by counsel’s performance. This aspect of the dissent’s argument appears directed at the concurrence, not the majority opinion. 11 An insulin injection cau ses a nondiabetic’s glucose level to drop to a dangerous level, depriving th e brain of necessary glucose. The person’s brain will then shut down, and the person will become comatose.

12hypoglycemia, which can be cau sed by an insulin injection. 12 In reaching this conclusion, he relied more on his anatom ical findings and the circumstances surrounding the death rather than on the toxicological findings. Specifically, he relied on microscopic hypoxic 13 changes in Burley’s b rain in concluding that Burley must have been comatose for at least 12 hours before he died at 4:00 p.m. on April 2, 2002. He tes tified that hypoxic changes to the brain, including red neurons on the hippocam pus, are only manifested if the person has been comatose for about 12 hour s. Because this conclusi on was inconsistent with defendant’s story that Burley had been a live and conscious at noon on that day, Dr. Pacris concluded that defendant’s story “doesn’t jive.” Dr. Evans also testified at trial for th e prosecution. He testified that if glucose had been present in Burley’s sy stem, it would have disproved death by insulin injection. The lack of any glucose in Burley’s vitreous fluids supported the theory that Burley had been injected w ith insulin. Further, although the level of morphine in Burley’s bl ood was very high, it might not be lethal to someone who had built up a tolerance for it.

12 Although Dr. Pacris did not find a needle mark on Burley’s body, he explained that insulin is injected by means of a hypodermic needle, which normally does not leave a visible mark on the body. 13 “Hypoxic” is defined as “[d]eno ting or characterized by hypoxia.” Stedman’s Medical Dictionary (26th ed). “Hypoxia” r efers to a “[d]ecrease below normal levels of oxygen in inspired gase s, arterial blood, or tissue . . . .” Id

.

13At the Ginther hearing, Dr. Simson disagreed with the conclusions of Dr. Pacris and Dr. Evans. He testified that Burley’s vitreous and blood glucose levels had been confused in the rep orts and in the testimony in troduced at trial. Dr. Simson opined that the pathological and toxicological findings did not support the view that Burley had died of hypoglycemic shock cau sed by an insulin overdose. He opined that because a person’s vitreous glucose level can drop to zero after he dies, the lack of glucose in Burley’s vitreous fl uids did not prove that he died of hypoglycemic shock. Dr . Simson further opined that the necrosis of the proximal tubules in Burley’s brai n and the acute tubular necrosis in the kidneys could be attributed to postmo rtem changes rather than hypoglycemic shock. That is, Dr. Simson responded to Dr. Pacris by arguing that the anatomical changes observed in Burley’s body may ha ve been attributable to decomposition, rather than an insulin overdos e. Dr. Simson also testified that the normal reddish-brown color of the kidneys was inconsistent with kidneys that had undergone hypoglycemic s hock. Dr. Simson opined that he would have concluded that Burley had died of a multiple-drug ove rdose, primarily caused by a high level of morphine. He explained that Burley’s morphine level at the autopsy was approximately three times th e therapeutic limit, meaning that his morphine level would have been even higher if, as Dr. Pacris testified, Burley had been comatose for 12 hours before his death. Dr. Simson conceded,

14however, that he had seen cases of much higher levels of morphine in the blood. 14 Dr. Simson also acknowledged that th e evidence was “not inconsistent with hypoglycemic shock” and th at he could not rule out the possibility that insulin overdose was the cause of death. Dr. Pacris defended his trial testim ony that Burley had died of hypoglycemic shock caused by insu lin. In response to Dr. Simson’s Ginther hearing testimony, Dr. Pacris first testifie d that, in reaching the conclusion that Burley died from an insulin injection, he had prin cipally relied on the changes observed in the brain and ki dneys, rather than Burley’s low glucose level. Dr. Pacris then testified that the necrosis of the proximal tubule s in Burley’s brain and the acute tubular necro sis in the kidneys could not be attributed to postmortem changes because there wa s no evidence th at the body was decomposing. 15 Dr. Pacris noted that the necrosi s in Burley’s brain had occurred solely in the third and fourth layers of the cortex and that the remainder of the cortex had not yet decomposed. This di fference indicated that the changes in the third and fourth layers of the cortex were not caused by ge neral decomposition,

14 The therapeutic level for morphine is 30 to 100 na nograms per milliliter of blood. The laboratory rep ort stated that Burley ha d a morphine level of 328 nanograms per milliliter. Dr. Simson testified that he ha d seen cases as high as 800 to 900 nanograms of mo rphine per milliliter. The laboratory report listed the lethal level of morphine at 200 to 2,300 nanograms per milliliter, indicating that there have been cases of morphine leve ls up to 2,300 nano grams per milliliter. 15 Dr. Pacris referred to the decompos ition of the body tissues as “autolysis.”

15as suggested by Dr. Simson, because some necrosis would have been found in the remainder of the cortex if the ch anges observed were due to general decomposition. Moreover, Dr. Pacri s noted that th ere are microscopic differences between cells that are simply decomposing a nd cells that have been altered before death by change s due to lack of glucose in the body. According to Dr. Pacris, the microscopic changes observed in Burley’s kidney s reflected a lack of glucose in the bl ood before death, rather than ge neral decay after death. In short, Dr. Pacris responded to Dr. Simson by arguing that the specific changes observed in Burley’s body were incompatib le with Dr. Simson’ s theory that the changes were caused simply by decompos ition. Moreover, Dr. Pacris explained that the normal reddish-bro wn color of the kidneys, which Dr. Simson had found important, was not inconsiste nt with Dr, Pacris’s micr oscopic finding that the kidneys had acute tubular necrosis caused by hypoglycemi c shock. Furthermore, Dr. Pacris testified that although Burley had a high level of morphine in his system, he could not have died from a morphine overdos e. He explained that death from a morphine overd ose is instantaneous. Th e person does not initially become comatose. A mor phine overdose was inconsistent with the hypoxic changes in Burley’s brain that indicat ed he had been comatose for 12 hours before death. Although Bu rley’s morphine level wa s three times th e therapeutic limit, this amount of morphine might not be fatal to a person who had developed a tolerance to the drug, as Burley had.

16After hearing the testimony of Dr. Si mson and Dr. Pacris, the trial court concluded that Dr. Simson’ s testimony would not have changed the outcome of the trial. By declining to conclude that Dr. Simson’s testimony had effectively refuted the testimony of Dr. Pacris, the tria l court implicitly held that Dr. Simson was not more credible than th e prosecution’s experts. “[R]egard shall be given to the special opportunity of th e trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.61 3(C). We review a trial court’s determination of credib ility for clear error. People v Knight , 473 Mich 324, 344; 701 NW2d 715 (2005). “A finding is clearly erroneous when, although there is evidence to support it, the reviewing cour t, on the whole record , is left with the definite and firm conviction that a mistake has been made.” Bynum v EASB Group, Inc , 467 Mich 280, 285; 651 NW2d 383 (2002). The Court of Appeals stated that Dr. Simson’s testimony would have “refuted [Dr. Pacris’s] conclusions that Bu rley died as a result of an insulin overdose . . . .” Dendel , supra at 4. Hence, the Court of Appeals implicitly concluded that the trial court had committed clear error by failing to find Dr. Simson more credible than Dr. Pacris and Dr . Evans. However, unlike the Court of Appeals panel, we see no reason to di sturb the trial court’s implicit finding on the credibility of the expert witnesses; the testimony do es not clearly demonstrate that one expert witness wa s more credible than another. Although Dr. Simson opined that the pathological and toxicolo gical findings did not support the view that Burley had died of hypoglycemic shock, Dr. P acris defended his position at

17the Ginther hearing by offering legitimate reas ons for his findings and for discounting Dr. Simson’s theo ry that the relevan t changes in Burl ey’s body were due simply to general deco mposition. Dr. Simson did no t respond to Dr. Pacris’s rebuttal of his testimony. It is also significant that Dr. Simson conceded the possibility that Burley had died from insulin overdose. Thus, Dr. Si mson did not conclusively refute Dr. Pacris’s testimony that Burley had died of an insulin overdose. We are not “left w ith the definite and firm conviction” that the trial court erred in finding that Dr. Simson wa s not more credible th an Dr. Pacris and
Dr. Evans. Further, defendant’s own statemen ts supported the theory of the prosecution’s experts regarding the cause of Burley’s death. After defendant’s arrest, she told both police detectives and defense counsel that Burley had injected himself with insu lin. These statements w ere inconsistent with Dr. Simson’s theory of death, but were co nsistent with the testimony of the prosecution’s experts that Burley had died of an insulin overdose. 16 For all these reasons, we have no cause to believe that if Dr. Simson had testified at trial, the trial court would have given more weight to his testimony

16 The dissent argues that the defense theory that Burley killed himself by an insulin injection is “a highly unlikely oc currence given his debilitated physical condition . . . .” Post at 7. Although this may or may not be true, defendant herself, who presumably knew Burley’s physical cap abilities better than anyone else, told the police detectiv es that Burley was physica lly able to inject himself with insulin and had in h er opinion done so. Thus, it was reasonable for defense counsel to argue that Burley had injected himself with insulin.

18than that of the pr osecution’s experts. We conc lude that defendant did not establish a “reasonable probability ” that the outcome of th e trial would have been different had Dr. Simson testified. Strickland, supra at 694 (emphasis added). 17
B. OTHER CIRCUMSTANTIAL EVIDENCE We also conclude that the trial c ourt did not err when it held at the Ginther hearing that, even if Filip had called an ex pert to rebut the testimony of Dr. Pacris and Dr. Evans, “there was a lot of other evidence” supp orting defendant’s conviction and that the outcome of the trial would have been the same. Even if Dr. Simson had testified, the strong ci rcumstantial evidence su pported the theory that defendant had given Burl ey an insulin injection. Burley was difficult to care for because of his mu ltiple health problems, which included dementia. D efendant was under a great d eal of stress as Burley’s sole caregiver. 18 Frustrated by Burley’s de mands, defendant had considered

17 As discussed, the trial court, whic h was the finder of fact at the bench trial, stated at the Ginther hearing that the outco me of the trial would not have changed if Dr. Simson had testified. B ecause we review de novo the trial court’s determination of prejudice, however, the fact-finder’s de termination on that issue at the Ginther hearing is not binding on the appella te courts. We underscore that the test for prejudice is an objective test and that appellate courts should not simply defer to the trial c ourt’s judgment regarding prej udice, even if the trial court was the fact-finder at the orig inal trial, as in this case. 18 The dissent supports its assertion that defendant does not have “the behavioral profile of a cold-blooded killer,” post at 10, by statin g that defendant financially supported Burley while he was ill. The dissent mischaracterizes the couple’s financial situation. In fact , defendant received $730 monthly from the FIA to care for Burley and Burley’s social security disability benefits of $530 monthly. As Burley’s caregiver, she was entitled to live in government-subsidized (continued...)

19giving him a shot of insulin, which sh e knew could be lethal and would be difficult to detect in a deceased person. When h er caregiving situation became worse, defendant unsuccessfully attempte d to obtain assistance in caring for Burley from several sources . Less than 24 hours before Burley’s death, defendant became “quite t earful and upset” when the nurse assisting defendant terminated her services because Burley had been uncooperative. Defendant admitted that she was at her “wit’s end” in the middle of th at night when the police declined to take Burl ey away after he caused a dist urbance. In light of the facts leading up to Burley’s death, the trier of fact c ould reasonably c onclude that this nighttime incident cause d defendant to finally snap and follow through with her idea to inject Burl ey with insulin. Th is finding would be consistent with Dr. Pacris’s testimony that hypoxic changes in Burley’s brain indicated that he had fallen into a coma from insu lin-induced hypoglycemic s hock at about 4:00 a.m., shortly after the police left.

(...continued) housing. Although Burley’s family and the FIA urged d efendant to place Burley into a nursing home, hospice care, or so me other program th at would furnish Burley with better medical care, defendant declined to do so, explaining to Burley’s sister that if she were to put Burley into a nursing home, she would lose her housing, the FIA be nefits, and Burley’s income. On the other hand, if Burley were to die, defendant would gain some financial secur ity: defendant was the sole beneficiary of six life insurance policies that she had taken out on Burley, worth approximately $25,000 at the time of Burl ey’s death. Thus, the evidence suggests that defendant may have had financial motivations for renderi ng care to Burley.

20The trier of fact could also infer that defendant’s acti ons after Burley’s death demonstrated her gu ilty state of mind and her attempt to cover up the crime. Defendant testified that when sh e suspected that Burl ey might be dead, she did not contact 911, but instead calle d a friend to come ov er. Defendant lied to Burley’s family about his condition and hid his death fro m the only persons who might have questioned the cause of death and recalled her threat to inject him with insulin. 19 Moreover, defendant manage d to have Burley’s body cremated before Burley’s family could question the cause of death. She had also wanted Burley’s body cremated with out an autopsy being performed, 20 but was unable to prevent the autopsy. Th is circumstantial evidence regarding defendant’s state of mind further supports the prosecution’s theory that defendant murdered Burley. Considering all this stro ng circumstantial eviden ce of defendant’s guilt, we hold that the trial court did not err in concluding that d efendant would have

19 The dissent suggests that defendant did not tell Burley’s family about his death because she, not Burl ey’s family members, had cared for Burley toward the end of his life. Although we cannot know with cert ainty defendant’s motives, defendant’s failure to inform Burley’s family of his death was sufficiently unusual to support an inferen ce that defendant acted with a guilty state of mind. 20 We do not disagree with the dissent’s assertion that a decision to cremate a loved one, by itself, is not unusual. But the deci sion to have a loved one cremated before the victim’s fami ly knows about the death and before an autopsy can be performed supports an inference of a guilty state of mind.

21been convicted of second -degree murder even if Dr . Simson had challenged the conclusions of the expert witnesses for the prosecution. 21
IV. CONCLUSION Defense counsel was not ineffective for fa iling to produce an expert at trial who would rebut the testimony of the prosec ution’s experts that Burley died from an insulin overdose. Defe ndant was not prejudiced by Filip’s failure to produce an expert witness because there is no indication that the trial cour t would have accepted the testimony of d efendant’s expert over that of the prosecution’s experts and there was other st rong circumstantial eviden ce to support defendant’s guilt. Therefore, we reverse the judgment of the Court of Appeals and reinstate the trial court’s verdict.
Maura D. Corrigan Clifford W. Taylor Elizabeth A. Weaver Robert P. Young, Jr. Stephen J. Markman

21 The dissent states: [H]ad defense counsel challenge d the cause of death, the finder of fact would have been left with two reasonable alternatives: (1) to decide that th e evidence showed that defendant killed Burley or (2) to conclude that Burley killed himself, intentionally or accidentally, possibly to spare his loving companio n of nearly 30 years the burden of hi s continuing care. [ Post at 11.] Yet Filip’s decision not to p resent an expert witness ch allenging the c onclusions of the prosecution’s expert witnesses regardi ng the cause of death left the fact-finder with the same reasonable alternatives. The only difference is th at Filip chose to argue that Burley killed hi mself with insulin, not morphine or some other drug. This was a viable defense that Filip energetically pursued.

22v S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
No. 132042 KATHERINE SUE DENDEL, Defendant-Appellee.

BEFORE THE ENTIRE BENCH CORRIGAN, J. ( concurring ). I concur with the majority’s conclusi on 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 separat ely because, in my opinion, defendant also failed to satisfy the other requirem ent of an ineffective-a ssistance claim: to show that counsel’s performance was constitu tionally deficient. Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Defense counsel Joseph Filip reasonabl y decided to advance the theory that the victim, Paul Michael Burley, died from injecting hi mself with insulin. Filip’s decision to pursue a suicide defense was not deficient because it logically flowed from defendant’s statements to the detectives a nd to counsel. In light of this defense, defense counsel did not need to cha llenge the testimony of the prosecution’s experts that Burley di ed of hypoglycemic s hock caused by insulin.“‘[T]he reasonableness of counsel’s actions ma y be determined or substantially influenced by the defendant’s own st atements or actions.’” Johnston v Singletary , 162 F3d 630, 64 2 (CA 11, 1998) (citation omitted). A defense counsel’s decision regarding trial st rategy is not demonst rably deficient if the defendant directed that strategy. Keith v Mitchell , 455 F3d 662, 672 (CA 6, 2006). “[The Sixth Amendm ent] speaks of the ‘assist ance’ 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 Cour t of Appeals for th e 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 [t o 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 (2 d 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.2 d 987 (1983) (recognizing that, where ethically and legally possible, “‘[a] lawyer shall abide by a client’s decisions concerning the objectives of rep resentation’”) (quoting ABA Model Rules of Prof’l Conduct R. 1.2(a)); Wallace [ v Davis , 362 F3d 914, 920 (CA 7, 2004)] (“By respecting [h is client’s] wishes, counsel not only abided by ethical requirements (lawyers are agents , after all) but also furnished the quality of assistance that the Constitution 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 by th e 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.”).

2In Wellington, the Second Circuit reject ed the defendant’s ar gument that his trial counsel was ineffective becau se, as a result of co unsel’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 in structed his coun sel to pursue a course of action that defendant now complains of, there was no abridgement—constructive or ot herwise—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 exp licitly tells his attorney not to file an appeal plainly cannot later co mplain 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) (obs erving that if the Court were to hold that d efense counsel “rendered ineffective assistance [by acceding to the defendant’s in structions not to present] . . . mitigati on 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 a ssistance of counsel for failure to investigate and present evid ence at sentencing phase where

1 In Coleman v Mitchell , 268 F3d 417, 448 (CA 6, 2001), the Court of Appeals for the Sixth Circuit held: If the record indicated a cle ar, informed assertion by Petitioner that he did not wish his counsel to present any mitigation evidence in Petitioner’s behalf, cas e law may have supported the district court’s conclusion th at counsel, merely respecting the informed wishes of a client, need not have investi gated or presented any evidence in connection with Petiti oner’s background at the penalty phase of the trial. [Emphasis added.]

3defendant had instructed his attorney not to fight the death penalty) . . . . [ Wellington, supra at 289.] By arguing that Burley ha d 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 detec tives 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 kne w Burley’s physical cap abilities the best, told a detective that despite Bu rley’s severely impaired vision and problems with holding things, he could inj ect himself with insulin. B efore trial, defendant told Filip that Burley had kille d himself by an insulin inje ction and that she wanted him to pursue this defense theo ry at trial. Defendant al so 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 suic idal 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 in jection, 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 support ed the theory that Burley died from an insulin overdose. As Filip testified at the Ginther 2 hearing, his primary theory

2 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

4of defense, that Burley took his own life by taking insu lin, 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 hi s theory of defense. Second, even though defendant want ed Filip to pursue a defense theory that avoided challenging the conclusions of the pr osecution’s experts, Filip nonetheless had consulted two doctors regard ing the cause of Burl ey’s death. He first talked to a local general practitioner, who referred him to an endocrinologist, 3 Dr. Halsey. 4 Dr. Halsey’s views di d 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 i nvestigation w ould lead to the discovery of an expert who might questi on Burley’s cause of death. [S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the lim itations on investigation. . . . In any ineffectiveness case, a par ticular decision not to investigate must be directly assessed for reasona bleness in all the circumstances, applying a heavy measure of d eference to counsel’s judgments. [ Strickland, supra at 690-691.]

3 Endocrinology is the study of the gl ands and hormones of the body and their related disorders. Thus, an endo crinologist would be familiar with insulin shock as a cause of death. 4 Dr. Halsey’s first name is not me ntioned in the transcript of the Ginther hearing.

5Defendant, in appellate hindsight, essentia lly faults Filip for failing to find the “right” expert. A defense attorney is no t required to repeatedly consult experts until he finds one who will support a certain theory. “Although a ttorneys can always do more in preparation for a trial,” the fa ilure to do so does not mean that they are ineffective. Mason v Mitchell , 320 F3d 604, 61 8 (CA 6, 2003). “Judicial scrutiny of coun sel’s performance must be highly deferential ” and should refrain from second-guessing c ounsel’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 rev iewing 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 constrai ned by defendant’s actions. Defendant has failed to show that, give n what Filip knew at the tim e, 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; 5 60 NW2d 600 (1997), quoting Strickland, supra at 689 (stating that a defendant must “‘ov ercome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy”’”). Because Filip’s representation was adequa te at the time and under the circumstances known to him, it was sufficient to pass constitutional muster.

6In 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 se parately conclude that counsel was not ineffective because his performance was not constitutionally deficient for failing to produce an expert to refute the prosecu tion’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 stat ements to the police regard ing the cause of death. Moreover, Filip suffi ciently investigated other theories. Accordingly, I conclude that defen dant has not esta blished a Sixth Amendment ineffective-assistance claim.

Maura D. Corrigan

7v S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
No. 132042 KATHERINE SUE DENDEL, Defendant-Appellee.

KELLY, J. ( 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 perform ance 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 reinsta tement of the guilty verdict.
T HE F ACTS This case involves the d eath of a gravely ill man. At the time of his death, Paul Burley had been involv ed in a relationship with defendant, Katherine Dendel, since 1975. Burley had suffered fro m many illnesses including hepatitis B, hepatitis C, herpes, chronic obstructive pulmonary disease, throat cancer, an infection with human immunodeficiency viru s (HIV), neuropathy, and epilepsy.Due to his poor health, Burley was freque ntly hospitalized and required constant care while at home, care th at defendant provided. The day of Burley’s d eath began with a phone ca ll to the police. At approximately 3:00 a.m., d efendant called to report that Burley was running back and forth in the house with a knife. But by the tim e the police arrived, all was calm. Defendant told the police that sh e was not concerned that Burley would injure her, but was concerned that, given hi s impaired mental st ate, he might injure himself. Concluding that Bu rley was not a threat to hims elf or to anyone else at that time, the police took no action. Later 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 ret urned home, fed Burl ey his lunch, and performed other errands, including inquirin g further about placi ng Burley in a nursing home. At approxim ately 5:00 p.m., she checke d on Burley and found him in a comatose state. She telephoned Ai da Winters, her friend, for assistance and moments later, having ascertained that Burley was dead, su mmoned the police. Defendant was hysterical and continued in that state while the police and ambulance workers took away Burley’s body. Initially, the Oakland Co unty medical examiner, Dr. Bernardino Pacris, concluded that Burley died of natural causes. Howev er, after he spoke with the police officers who were investigating the death, Dr. Pacris revisited his findings. He then concluded that the cause of deat h was an insulin inj ection, although he

2found no needle mark. Burley did not have a prescription fo r insulin. It should be noted, however, that defendant was a di abetic. 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 toxi cological findings. Defendant was charged with first-deg ree murder. At trial, Dr. Pacris and Dr. Michael Evans 1 testified for the prosecution. Both Drs. Pacris and Evans concluded that the evidence supported a th eory that Burley di ed of an insulin overdose. In closing arg ument, the prosecutor argue d that, given Burley’s numerous physical ailments , he was unable to prepare insulin for ad ministration and inject himself with it. The prosecu tion also attempted to show that the circumstances surrounding the death gave rise to a suspicion of murder. Defense counsel argued, on the other hand, that Bu rley either took his own life or died from natural causes. Howev er, counsel did not present ev idence to counter the prosecution’s medical experts, who concluded that Bu rley died of an insulin overdose. This was despite the fact that counsel had successfully petitioned for the appointment of an expert for the defense. Ultimately, the court convicted d efendant of second-degree murder. Relying on the prosecution’s me dical testimony, the court found that Burley died of an insulin overdose. The court cred ited the prosecution’s argument and found it

1 Dr. Evans was a professor of toxico logy and is the president and chief executive officer of AIT Laboratories.

3not believable that the grav ely ill Burley was physica lly capable of injecting himself with a lethal dose of insulin. Defendant appealed her conviction in the Court of Appeals. On its own motion, the Court appointed new counse l for her and remanded the case for a Ginther 2 hearing to determine whether defenda nt had received effective assistance of counsel at trial. Among the witnesse s at the hearing were defendant’s former counsel and a forensic pathologist, Dr. Laurence Simson, 3 who was an expert witness brought in by d efendant’s newly appointe d appellant counsel. Defendant’s former counsel testifie d that he (1) never consulted an independent forensic pathologist, (2) never had the body tested fo r the presence of insulin, (3) spoke only briefly with his own general prac titioner regarding the cause of death and was referred to an endo crinologist, Dr. Halsey, (4) spoke with Dr. Halsey but took no notes of the co nversation, (5) did no research into Dr. Halsey’s expertise, (6) did not give either the ge neral practitioner or the endocrinologist Burley’s me dical records to review, and (7) did not speak to the physician who treated Burley dur ing his last hospitalization. The forensic pathologist, Dr. Simson, testified that there was a lack of significant evidence that Bu rley died of an insulin overdose. Instead, he

2 People v Ginther , 390 Mich 436; 21 2 NW2d 922 (1973). 3 Dr. Simson is a forensic patholog y consultant, a former professor of pathology, an Ingham County pathologist , and a national consultant in forensic pathology to the Surgeon General of the United States Air Force.

4concluded that Burley died of a multiple-drug overdose. He based his conclusion on the fact that Burley had a lethal leve l of morphine in his system along with therapeutic levels of several other drugs. At the Ginther hearing, Dr. Pacris was questi oned about his trial testimony that Burley died of an insu lin overdose. He was asked if he had considered that a lethal dose of morphine was found in Burl ey’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 th e drug. But he admitted that he had not chec ked to learn how much morphi ne Burley had been using. At the conclusion of th e hearing, Judge Chad C. Schmucker, who also presided at the bench trial, found that defense counse l had not provided ineffective assistance. He found that counsel’s bri ef consultations with Drs. Burgess and Halsey were all that was required of him. He also concluded that, even if counsel’s performance had b een deficient, defendant could not show prejudice. In a split, unpublished decision, the Court of Appeals rev ersed defendant’s conviction. 4 The majority determined that, in light of the pivotal nature of the medical evidence, it was unreas onable for defense counsel to have consulted only briefly with the two doctors. It was unreas onable for him not to have furnished the physicians with documentation regardin g Burley’s medical history or the

4 People v Dendel, unpublished opinion per curi am, issued Ju ly 18, 2006 (Docket No. 247391).

5circumstances surrounding his death. And because defense counsel’s deficient performance deprived defendant of a subs tantial defense, the ma jority held that there was a reasonable probability that it adversely affect ed the outcome of the trial. The dissenting judge emphasized th e prejudice prong of the test for ineffective assistance of couns el. He found no reason to conclude that the trial judge had clearly erred in concluding that defenda nt could not show prejudice. The prosecution applied for leave to app eal in this Court. We heard oral argument on the application on October 3, 2007. 5
T HE S UFFICIENCY OF D EFENSE C OUNSEL ’ S L EGAL R EPRESENTATION The standard for ineffec tive 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 un reasonable and that this performance prejudiced the defense. 7 In this case, the majo rity reinstates defendant’s conviction after deciding that d efendant cannot show prejudice. To demonstrate prejudice, one must es tablish “a reasonable probability that, but for counsel’s unprofessional errors, th e result of the pro ceeding would have

5 477 Mich 1012 (2007). 6 People v Pickens , 446 Mich 298, 326; 521 NW2d 797 (1994). 7 Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

6been different. A reasonable probability is a pr obability sufficien t to undermine confidence in the outcome.” 8 Here, the prosecution’s case hinged on the cause of death. The prosecution contended that defenda nt died of an insulin overdose, and it presented evidence to support this theory. Th e prosecutor argued that d efendant was physically incapable of injecting himsel f with insulin. By failing to counter this theory, defense counsel left the finder of fact w ith 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 kille d Burley by administering a fatal dose of insulin. Thus, by failing to counter the prosecutio n’s theory of the cause of death, defense counsel left defendant with no viable defense. By contrast, defense counsel coul d 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. Sims on 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 ove rdose only after the police informed him that they suspected Burley might have died from an insu lin injection. Furthermore, Dr. Pacris did not check into Burley’s use of morphine, despite the fact that Burley

8 Id. at 694.

7died 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. Burley 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 c ould have concluded that Burl ey died of a noncriminal act. Defendant’s appellate counsel demons trated that trial counsel easily could have found an expert witne ss to refute the prosecution’s theory regarding the cause of death. It follows that the trial atto rney’s failure to adequa tely investigate and pursue the viable theo ry that Burley died of a noncriminal act deprived defendant of a substantial defense. 10

9 At oral argument, I specifically in quired whether it is easier to self

administer morphine than it is to self-administer insulin . My concern was this: If it is unreasonable to concl ude that defendant self-administered a fatal dose of insulin, why would it be reasona ble to conclude that he self-administered a fatal dose of morphine? The answer that defenda nt’s counsel gave was that it is much easier to administer morphine because, unlike insulin, Burley’s “morphine was pills, and there was testimony that [Burley] had a large number of pills available to him and that he had access to those pills.” It is this difference that makes a self

administered overdose of morphine believa ble but a self-administered overdose of insulin by a man in Burley ’s condition unbelievable. 10 The majority critici zes me for explaining how trial counsel’s performance was deficient. It claims that this portion of my argument is “misplaced.” Ante at 11 n 10. I disag ree. In this case, the two prongs of the test for ineffective assistance of co unsel are inextricably linke d. I cannot explain how defendant was prejudiced without explaining how defen se counsel’s performance was deficient.

8Because defendant has shown that her trial counsel’s performance deprived her of a substantial defense, she has me t her burden of showing prejudice, unless other evidence ren dered this defense unbelievable. 11 The record reveals that, had defendant presented Dr. Simson’s testim ony at trial, the evidence would have supported either of two competing theories of the cause of death. As the majority points out, there was circumsta ntial evidence that tended to show a guilty mind. The majority discusses only this evidence. Bu t it ignores the ev idence that tends to show that Burley di ed of a noncriminal act. This evidence is that defendant and Burley had a relationship that had lasted nearly 30 years. Du ring this period, Burley suffered from many illnesses, including an HIV infection. As Burley battled these ai lments, defendant stood by his side, providing him w ith needed care. Defendant was not only Burley’s companion and caregiver during th is period, she was his financial support. He had

11 The majority claims that I appl y the wrong standard by presuming prejudice. I do no such thing. In order to meet her burden of showing prejudice, defendant had to show that defense co unsel’s deficient performance undermined confidence in the outcome. Accordingly, if defendant shows that counsel’s performance deprived her of a viable defense, she has shown prejudice. This is because a viable defense equates to a reasonable chance at acquittal. Thus, I do not presume prejudice. Rather, I cons ider whether her counsel’s performance deprived defendant of a viable defense. If so, a new trial is required because there is a “reasonable probability th at, but for counsel’s unpro fessional errors, the result of the proceeding would have been different.” Strickland, 466 US at 694. On the other hand, if the defense defendant was deprived of was unbelievable, she would not be entitled to a new trial beca use she could not show prejudice.

9not been gainfully employed since the mid-1980s. 12 Hers is hardly the behavioral profile of a cold-blooded killer. The evidence also tende d to show that Burley ’s mental health had deteriorated and that he wa s 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 dr ugs from Burley to prevent him from overdosing himself. Also , she had contacte d numerous sources in the period before Burley’s deat h in an attempt to get him the 24-hour, 7 da y-a-week care he required. There are also innocent explanations for the acts to wh ich the majority attributes sinister motives. Because d efendant, not Burley’s family members, tended Burley toward the end of his life, it is not surp rising that defendant was not eager to inform his family of his death. This is especial ly likely in light of the fact that, as defendant testified, she felt th e family had turned its back on Burley. 13

12 The majority suggests that I ignore evidence that defenda nt may have had an improper motive in caring for Burley. That is not true. I recognize that the circumstantial evidence poi nted in different directions. I focus on the evidence that tended to show that Burley died of a noncriminal act b ecause the majority fails to address this evid ence at all. This is erro r because, when considering whether defendant was prejudiced, it is necessary to consider the totality of the circumstances surrounding Burley’s death. 13 There was evidence that Bu rley’s family intenti onally avoide d him after he contracted an HIV infection. For exam ple, he was no longer invited to family gatherings, such as Easter celebrat ions and Super Bowl parties.

10Nor does the fact that defendant was exasperated with providing Burley constant care render her a murderer. An d defendant’s decision to call a friend before summoning the police after discoveri ng Burley in a co matose state is understandable. Defendant could have b een overwhelmed by shock and sadness at discovering her longtime co mpanion near death. It is even more reasonable to attribute an innocent explanation to th is behavior when one considers that defendant had prearranged for the friend to assist her if Burl ey died. Nor was defendant’s decision to cremate Burley unusual, since cremation is a common alternative to burial in this country, especially fo r those who have suffered from debilitating ailments. Finally, the fact th at defendant understood insulin’s effect on the body is not surprising in light of the fact that she is a diabetic. The nonmedical evidence surrounding the death could support a finding that Burley died of a noncriminal act . Accordingly, ha d defense counsel challenged the cause of death, the finder of fact would have been left with two reasonable alternatives: (1) to decide th at the evidence show ed that defendant killed Burley or (2) to conclude that Burley killed himself, intentionally or accidentally, possibly to spare his loving co mpanion of nearly 30 years the burden of his continuing care. The strategy employed by defens e counsel left defendant with no viable defense, whereas anoth er strategy could have resulted in an acquittal. Hence, confiden ce in the outcome has been undermined su fficiently to require a new trial. Accord ingly, I would affirm the C ourt of Appeals decision.

11The majority disagrees with me and reinstates defendant’s conviction. In so doing, the majority opi nion seems to misapprehend defendant’s burden. It would seem to require defendant to prove th at she is actually innocent of the crime in order to be entitled to re lief. Even though defendant might be innocent, this is not the standard. The standard is “a probability suffici ent to undermine confidence in the outcome.” 14 Because defense counsel’s performance deprived defendant of a viable, reasonable, and belie vable defense, the standard was met in this case.
C ONCLUSION The Court of Appeals decision to vacate defendant’s conviction did not hang on what some people term “a legal t echnicality.” 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. Marilyn Kelly Michael F. Cavanagh

14 Strickland , 466 US at 694.

12