-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 16, 2015

v No. 318572 Macomb Circuit Court MICHAEL JOSEPH LOUKAS, LC No. 2012-003522-FH

Defendant-Appellant.

Before: H OEKSTRA , P.J., and J ANSEN and M ETER , JJ.

P ER C URIAM

.
Defendant was convicted after a jury trial of first-degree hom e invasion, MCL 750.110a(2)(b). He was sentenced a s a habitual offender, fourt h offense, MCL 769.12, to serve a prison term of to 20 years to 40 year s. Defendant appeals by r ight, and we affirm.

I. FACTS
Katieva Shipp testified that around 11:00 a.m. or 11:30 a.m. o n June 29, 2012, she and her daughter were lying in bed when she heard the sound of “cha nge” and “flip-flops” coming from the living room area of her home. Shipp testified that sh e got out of bed, picked up a vase that was on the side of her dresser, and “peeked around the cor ner.” She testified that she saw a man standing by her bathroom door, they looked at each other, s he screamed, and the man ran away. A neighbor called the pol ice, and Shipp talked to the di spatcher. Shipp told the dispatcher that the suspect wore a turquoise tank top, shorts, flip-flops, and had long hair. Center Line Police Department Detective Curt Winn, who was dispatched to th e scene, testified that he observed a man, defendant, wearing a turquoise tank top standin g and then walking on the grass outside of Shipp’s property. In court, Shipp identified defend ant as the man she saw inside her house.

II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied effective assistance of co unsel where his trial attorney failed to investigate and present the defense of invol untary intoxication. Defendant-2- sought remand for the purpose of holding a Ginther 1 hearing on this issue, and we granted the motion. People v Loukas , unpublished order of the Court of Appeals, entered August 21, 2014 (Docket Nos. 318572). On remand, after an evidentiary hearing, the court concluded there was no evidence that defendant took any drugs. The trial court als o concluded that even if defendant presented the defense of involunt ary intoxication, it would mor e than likely have failed because defendant voluntarily took Thorazi ne after reading about its po ssible side effects.

“Whether a person has been denied effective assistance of coun sel is a mixed question of fact and constitutional law.” People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). “A judge first must find the facts, and then must decide whether t hose facts constitute a violation of the defendant’s constitutional ri ght to effective assistance of counsel.” Id . “This Court reviews a trial court’s factual findings f or clear error and reviews de n ovo questions of constitutional law” People v Dendel , 481 Mich 114, 124; 748 NW2d 859, amende d on other grounds 481 Mich 1201 (2008). “A finding is clearly erroneous when, although there i s evidence to support it, the reviewing court, on the whole r ecord, is left with the definite and firm conviction that a mistake has been made.” Id . at 130.
“To prove that defense counsel was not effective, the defendan t must show that (1) defense counsel’s performance was so deficient that it fell bel ow an objective standard of reasonableness and (2) there is a reasonable probability that d efense counsel’s deficient performance prejudiced the defendant.” People v Heft , 299 Mich App 69, 80- 81; 829 NW2d 266 (2012). “The defendant was prejudiced if, but for defense coun sel’s errors, the result of the proceeding would have been different.” Id . at 81. “A defendant may meet this burden even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” People v Trakhtenberg , 493 Mich 38, 56; 826 NW2d 136 (2012) (internal quotation marks and citation omitted).

Defendant’s trial counsel admitted at the Ginther hearing that she “had no strategic reason not to raise the defense.” Counsel admitted that she ne ver actually researched the involuntary intoxication defense, instead relying on her recoll ection of its parameters. She indicated that her understanding of the defense was that it app lied where a person did not knowingly consume a substance. This is inaccurate. The defens e actually requires voluntary consumption. See MCL 768.37. 2 Defendant testified that he took Thorazine on the day in

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).
2 The statute provides as follows: (1) Except as provided in subsection (2), it is not a defense to any crime that the defendant was, at that time, under the influence of or impaired by a voluntarily and knowingly consumed alcoholic liquor, drug, incl uding a controlled substance, other s ubstance or compound, or combinati on of alcoholic liquor, drug, or other su bstance or compound.

(2) It is an affirmative defense to a specific intent crime, f or which the defendant has the burden of proof by a preponderance of the evi dence, that he or she voluntarily consumed a lega lly obtained and properly used m edication or-3- question, and he produced his prescriptions. Thus, he presente d evidence that he voluntarily consumed a legally obtained med ication, as required by the into xication defense.
An expert knowledgeable about the use and effects of Thorazine explained that aside from its intended effect, Thorazine has “quite a few other effe cts,” including “anticholinergic effects” such as “a lot of sedation” and “an effect on the memo ry.” The expert also testified that Thorazine has “an effect on orientation and the ability to thin k straight.” She opined that there would be no reason for a patient to expect to experience a side effect in the absence of advice from a doctor. Defendant testified that he read of the side ef fects of Thorazine, but did not expect them to occur. He denied that his doctor talked with hi m about the side effects of Thorazine when he prescribed it. Accordingly, the trial court erred when it determined that defendant did not present evidence to establish th e elements of the intoxication defense.
Nonetheless, defendant cannot establish the requisite prejudic e. Defendant argues that there might have been a different outcome had the jury heard th at he took Thorazine for the first time and heard about its side effects. A different outcome wou ld be possible if the jury found defendant to be credible and believed his testimony. However, as plaintiff argues, had defendant taken the stand and testified about his alleged intoxication, h e would have opened the door to evidence about his prior convictions for breaking and entering under MRE 404(b). Such evidence would be highly inculpatory.

III. THE CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE
Defendant argues that the trial court denied his constitutiona l right to present a defense in an off-the-record ruling that forbid his trial counsel from pre senting the intoxication defense. This Court reviews de novo whether defendant suffered a depriva tion of his constitutional right to present a defense. People v Steele , 283 Mich App 472, 480; 769 NW2d 256 (2009).

“There is no question that a criminal defendant has a state an d federal constitutional right to present a defense.” People v Hayes , 421 Mich 271, 278; 364 NW2d 635 (1984). However, “[a]lthough the right to present a defense is a fundamental ele ment of due process, it is not an absolute right.” Id . at 279. “The accused must still comply with established rule s of procedure and evidence designed to assure both fairness and reliability i n the ascertainment of guilt and innocence.” Id . (internal quotation marks and citation omitted).
There was contradictory testimony at the Ginther hearing regarding whether the trial court made an off-the-record ruling forbidding defense counsel from presenting the intoxication defense. The prosecutor cited a motion he made to support his assertion that the court forbade defense counsel from raisi ng the intoxication defense:
Your Honor, while we’re killing time, I was going to make a mo tion in limine just to double check, because of the way the case was tr anspired up until today, and then the statements at right before we broke for lun ch, it was my

other substance and did not know and reasonably should not have known that he or she would become intoxicated or impaired.-4- understanding that counsel always had a, was going to proceed w ith the defense, the affirmative defense of intoxication. Given the way we wrap ped up this morning, and the people calling two witnesses, and the defense not calling witnesses, I’d ask that if in some way counsel wants to get int o that defense through the officer in charge, as he testifies, that would be i mproper questions on his part. So if she’s consistent with the way she wanted to de fend this case leading up until today, at least the representations to the peo ple, I don’t know how she’s going to do that with the two witnesses that we’re callin g and calling no witnesses.

The prosecutor asked defense counsel if she remembered him maki ng the motion at trial, and counsel indicated that she did remember it. The prosecutor als o asked defense counsel if he had provided an accurate summary of what happened at trial, and def ense counsel replied that it was
correct.
Immediately after the prosecutor made his motion in limine, th e following exchange occurred:

Defense counsel : I don’t know what he’s t alking about, Your Honor.

The court : I don’t think there’d be expe rt opinion, but she could certa inly question as to his state of mind.

Prosecutor : Exactly.

The court : Okay.

Defense counsel : And I’ve already, I don’t know what he’s talking about. He, we talked about it yesterday, he brought it up this morning , I said it’s not an issue. If it was, I’d raise it with the prosecutor and the cou rt.

The court : I guess we’ll go wit h it’s not an issue.

Defense counsel : And I already told him tha t. So, I mean, I think he should probably get past it. It’s not happening.

The court : Okay. It was brought up yesterday in chambers.

Defense counsel : Exactly, and I, he brought it up before we went to lunch, and I told him—

The court : Okay. Well, now—

Defense counsel : Well, I, I think if we could check the record, I think I told him that it was not going to be part of my case.

The court : Okay. We’re clear then.-5- Prosecutor : Very good. Thank you, Judge.

Defense counsel : Crystal.

The prosecutor’s motion and the subsequent discussion do not d irectly evidence any ruling by the court regarding th e involuntary intoxication defe nse. At best, the discussion shows that the parties discussed the i ntoxication defense in judicial chambers, and the court might have made a ruling at that time. However, if the court made a rulin g forbidding defense counsel from raising the intoxication defense as the prosecutor claimed, the n it is unclear why the prosecutor thought that counsel “was going to proceed with the . . . affir mative defense of intoxication.” Additionally, defense counsel lat er testified that her understa nding of the judge’s off-the-record ruling was that evidence of defe ndant’s medication would not be allowed because she failed to lay a foundation for it. Thus, th ere is no evidence that the t rial court denied defendant the right to present his defense.

Affirmed.

/s/ Joel P. Hoekstra /s/ Kathleen Jansen /s/ Patrick M. Meter