If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

August 26, 2021

v No. 350891

Washtenaw Circuit Court

CARLA KAY COLE, LC No. 18-000830-FC

Defendant-Appellant.

Before: SAWYER, P.J., and STEPHENS and RICK, JJ.

PER CURIAM.

Defendant, Carla Kay Cole, appeals by right her jury conviction of first-degree murder 

(premeditated), MCL 750.316(1)(a); and assault with intent to do great bodily harm less than 

murder (AWIGBH), MCL 750.84.1 The trial court sentenced defendant to serve life imprisonment 

for first-degree murder and 38 months to 10 years’ imprisonment for AWIGBH. Defendant argues 

that there was insufficient evidence to support the premeditation element required for first-degree 

murder. Defendant further argues that she was denied effective assistance of counsel when her 

trial counsel failed to present a self-defense argument, denied defendant her constitutional right to 

testify, and failed to obtain an expert witness on post-traumatic stress disorder. We affirm.

This appeal arises from the stabbing death of the victim, Crystal Ludwig, that occurred 

shortly after midnight on June 19, 2018. Louis Burbanks, the victim’s boyfriend, was a long-time 

friend of Dana Barnes, who was defendant’s boyfriend. Barnes contacted the victim and invited 

him out for drinks. Barnes and defendant picked up Burbanks and the victim from their hotel. 

Various conflicts took place over the evening between Burbanks and the victim, and between 

defendant and the victim. After leaving the bar, a conflict ensued in defendant’s car, resulting in 

the victim being stabbed several times. The victim died from the injuries she sustained in the 

stabbing.

 

1 The jury found defendant not guilty of assault with a dangerous weapon, MCL 750.82; and assault 

with intent to murder, MCL 750.83.
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I. SUFFICIENCY OF EVIDENCE

Defendant’s first-degree murder conviction was supported by sufficient evidence of 

premeditation and deliberation.

Challenges to the sufficiency of the evidence are reviewed de novo. People v Meissner, 

294 Mich App 438, 452; 812 NW2d 37 (2011). “We view the evidence in the light most favorable 

to the prosecution to determine whether a rational trier of fact could have found the essential 

elements of the crime to have been proved beyond a reasonable doubt.” Id. “The standard of 

review is deferential: a reviewing court is required to draw all reasonable inferences and make 

credibility choices in support of the jury verdict.” People v Nowack, 462 Mich 392, 400; 614 

NW2d 78 (2000).

As a threshold matter, defendant argues that the trial court erred by denying her motion for 

a directed verdict on the first-degree murder charge because the prosecution did not present 

sufficient evidence to support premeditation and deliberation.

A trial court assesses the merits of a directed verdict motion through 

consideration of the evidence presented by the prosecution in a light most favorable 

to the prosecution, to determine whether a rational trier of fact could find that the 

elements of a crime were proven beyond a reasonable doubt. [People v Jolly, 442 

Mich 458, 466; 502 NW2d 177 (1993).]

The standards for evaluating the evidence in a motion for a directed verdict are the same as those 

involving a challenge to the sufficiency of the evidence. See People v Hampton, 407 Mich 354, 

366-368; 285 NW2d 284 (1979).

Due process requires a criminal conviction to be supported by sufficient evidence, and 

precludes irrational jury verdicts. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748 (1992), see 

also Jackson v Virginia, 443 US 307, 315; 99 S Ct 2781; 61 L Ed 2d 560 (1979).

[W]hen determining whether sufficient evidence has been presented to sustain a 

conviction, a court must view the evidence in a light most favorable to the 

prosecution and determine whether any rational trier of fact could have found that 

the essential elements of the crime were proven beyond a reasonable doubt. [Wolfe, 

440 Mich at 515.]

Appellate courts must not interfere with the role of the jury. Id. at 514. “ ’Juries, not appellate 

courts, see and hear witnesses and are in a much better position to decide the weight and credibility 

to be given to their testimony.’ ” Id. at 514-515, quoting People v Palmer, 392 Mich 370, 375-

376; 220 NW2d 393 (1974). “The scope of review is the same whether the evidence is direct or 

circumstantial.” Nowack, 462 Mich at 400. “Circumstantial evidence and reasonable inferences 

arising from that evidence can constitute satisfactory proof of the elements of a crime.” People v 

Carines, 460 Mich 750, 757; 597 NW2d 130 (1999) (quotation marks and citation omitted).

First-degree murder is “[m]urder perpetrated by means of poison, lying in wait, or any 

other willful, deliberate, and premeditated killing.” MCL 750.316(1)(a). “The elements of first-
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degree murder are (1) the intentional killing of a human (2) with premeditation and deliberation.” 

People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). “Premeditation and 

deliberation may be established by an interval of time between the initial homicidal thought and 

the ultimate action, which would allow a reasonable person time to subject the nature of his or her 

action to a ‘second look.’ ” People v Oros, 502 Mich 229, 242; 917 NW2d 559 (2018).

The elements of premeditation and deliberation may be inferred from the 

circumstances surrounding the killing. Premeditation may be established through 

evidence of the following factors: (1) the prior relationship of the parties; (2) the 

defendant’s actions before the killing; (3) the circumstances of the killing itself; 

and (4) the defendant’s conduct after the homicide. [People v Anderson, 209 Mich 

App 527, 537; 531 NW2d 780 (1995), distinguished on other grounds, People v 

Elliott, 295 Mich App 623; 815 NW2d 575 (2012).]

Application of the Anderson factors and the second-look requirement to these facts support 

an inference that the killing was premediated and deliberate.

Although the defendant and the victim did not know each other before the night of the 

killing, the evidence indicates that defendant developed significant animosity toward the victim 

during their brief time together. Defendant accused the victim of making sexual advances toward 

her boyfriend. These accusations on the part of defendant are supported only by Burbanks’s 

testimony. However, both Burbanks and Barnes testified that some kind of altercation took place 

in defendant’s car between defendant and the victim as they were leaving the bar. This altercation 

is also seen on the surveillance video. Therefore, although defendant and the victim had no prior 

relationship before the night of the killing, defendant’s actions before the killing are marked by 

increasing hostility toward the victim.

The evidence related to the circumstances of the killing establishes that defendant stopped 

the car after the victim pulled her hair. It is unclear how the altercation between the two moved 

from a verbal confrontation to a physical one, but the evidence supports that this did happen. 

Defendant stopped the car, and opened the rear driver’s-side door of the car. Evidence was 

admitted that indicates that before exiting from the driver’s seat, defendant pulled a knife from her 

purse: Barnes testified that defendant had previously told him that she carried a knife in her purse 

for protection. When defendant opened the rear driver’s-side door, she cut Burbanks on the hand 

and stabbed the victim in the leg. Defendant then returned to the driver’s seat momentarily, and 

then proceeded around to the passenger side of the car, and stabbed the victim one more time, this 

time in the chest. This was a fatal wound.

After stabbing the victim this final time, defendant returned to the driver’s seat of her 

vehicle. Barnes returned to the passenger seat, and the two drove off, leaving the victim with 

Burbanks. Defendant did not call 911, or otherwise alert any authorities about what had happened. 

She returned home and engaged in an argument with Barnes over what had happened, eventually 

telling him to pack his belongings and leave her house. Defendant told Barnes, “I think I probably 

stabbed her.”

Defendant was openly hostile toward the victim, leading to an escalating physical 

confrontation. During the ensuing melee, defendant paused in the driver’s seat before getting out 
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again to fatally stab the victim. This pause gave defendant an opportunity to take a second look, 

regardless of how long the pause lasted. See Oros, 502 Mich at 242. This was the critical event. 

Even though the surveillance video shows that this time period was five seconds, it allowed 

defendant the opportunity to take a second look. Therefore, there is sufficient evidence to support 

an inference that defendant’s killing of the victim was premeditated and deliberate. See Oros, 502 

Mich at 242; Anderson, 209 Mich App at 537. How to weigh the witnesses’ testimonies and the 

admitted evidence was a matter for the jury to decide. See Palmer, 392 Mich at 375-376.

In conclusion, because there was sufficient evidence that defendant’s killing of the victim 

was premeditated and deliberate, the elements of first-degree murder were supported by sufficient 

evidence to both justify denying defendant’s motion for a directed verdict and to support the jury’s 

finding that defendant was guilty of first-degree murder beyond a reasonable doubt.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant raises three separate arguments, claiming that defense counsel failed to provide 

effective representation. We disagree with all three arguments, as discussed in detail below.

“The question whether defense counsel performed ineffectively is a mixed question of law 

and fact; this Court reviews for clear error the trial court’s findings of fact and reviews de novo 

questions of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). 

Although defendant has preserved the issue by filing a motion for remand in this Court, because 

we denied the motion and no evidentiary hearing has been held, review is limited to errors apparent 

on the lower court record. See People v Abcumby-Blair, ___ Mich App ___, ___; ___ NW2d ___ 

(2020) (Docket No. 347369, issued 12/22/2020); slip op at 8.

A criminal defendant has a constitutional right to the effective assistance of counsel. US 

Const, Am VI. A defendant who is denied this right is entitled to reversal of the conviction. 

Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A claim of 

ineffective assistance of counsel has two components. First, the defendant must show that defense 

counsel’s performance “fell below an objective standard of reasonableness.” Id. at 688. Second, 

“any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute 

ineffective assistance under the Constitution.” Id. at 692; see People v Pickens, 446 Mich 298, 

318; 521 NW2d 797 (1994). Counsel is not required to advance a meritless position. People v 

Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

A. SELF-DEFENSE

Because the evidence in this case does not support a finding that defendant acted in selfdefense when she killed the victim, defense counsel’s decision not to pursue a self-defense 

argument was not ineffective assistance of counsel.

As a general rule, the killing of another person in self-defense by one who is free 

from fault is justifiable homicide if, under all the circumstances, he honestly and 

reasonably believes that he is in imminent danger of death or great bodily harm and 

that it is necessary for him to exercise deadly force. [People v Riddle, 467 Mich 

116, 119; 649 NW2d 30 (2002) (citation omitted).]
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“[T]he touchstone of any claim of self-defense, as a justification for homicide, is necessity.” Id. 

at 127. In Riddle, our Supreme Court explained the situations in which the general principle of 

necessity does not apply. Id. at 129. Relevant to this case, there is no duty to retreat from a sudden, 

violent attack. Id. A violent and sudden attack removes the ability to retreat. Id. at 129-130.

Further, our Legislature has codified the circumstances in which a person may use deadly 

force in self-defense without having the duty to retreat. MCL 780.972(1)(a) reads as follows:

(1) An individual who has not or is not engaged in the commission of a 

crime at the time he or she uses deadly force may use deadly force against another 

individual anywhere he or she has the legal right to be with no duty to retreat if . . . :

(a) The individual honestly and reasonably believes that the use of deadly 

force is necessary to prevent the imminent death of or imminent great bodily harm 

to himself or herself . . . .

Defendant claims that her killing of the victim was in response to a sudden, violent attack, 

and was, therefore, justifiable as self-defense. Defendant’s claim is not supported by the evidence. 

Defendant and the victim had only met the night of the killing. They were arguing at the bar. 

According to Burbanks’s testimony, as they left, defendant accused the victim of making sexual 

advances toward her boyfriend. The argument continued in the car as they were leaving, and the 

victim pulled defendant’s hair as she was driving. At that point, defendant stopped the car.

After she stopped the car, defendant was able to disengage from the victim’s hair pulling, 

which is evident from the fact that defendant got out of the car. At that point, it could be argued 

that the victim presented no danger to defendant. They were separated, and there were two other 

individuals present who could have helped to keep them separated. Defendant also had the option 

at this point to call someone else, like the police, for help. The victim posed no danger, and there 

is no indication in the record that the victim was armed.

Instead, defendant chose to open the back door of the car and stab the victim in the leg, 

also injuring Burbanks in the process. She then returned momentarily to the driver’s seat. She 

then got out, walked around the car, and fatally stabbed the victim in the chest. These actions are 

not consistent with an argument of necessity because defendant had disengaged from the victim’s 

attack and was no longer in harm’s way. Whatever the nature of the attack that the victim was 

mounting, defendant had moved away, and it was not necessary to re-engage with the victim to 

defend herself.

Further, the victim’s attack could not be fairly described as a sudden, fierce, and violent 

attack. The victim pulled defendant’s hair when she was driving. Any possibility that this action 

could have caused death or great bodily harm to defendant ended when defendant stopped the car.

Defense counsel was faced with two imperfect defense strategies—either try to convince 

the jury that Burbanks was the person who stabbed the victim or present evidence to try to convince 

the jury that defendant acted in self-defense. The two choices are mutually exclusive; it would 

defy credibility to attempt to claim both. In formulating a strategy, defense counsel chose the 

alternative-killer option, apparently perceiving it to have the greatest chance of success. This was 
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a matter of trial strategy, and we cannot, with the benefit of hindsight, second-guess defense 

counsel’s strategic choice. See People v Heft, 299 Mich App 69, 83; 829 NW2d 266 (2012) (“We 

give defense counsel wide discretion in matters of trial strategy because counsel may be required 

to take calculated risks to win a case.”).

Even though defense counsel’s choice of strategy was ultimately unsuccessful, defense 

counsel’s choice was reasonable under the circumstances. Burbanks had a demonstrated history 

of domestic violence, including incidents involving the victim. They had been fighting on the 

night in question, and there was testimony that this included a physical altercation. Therefore, it 

was possible that doubt could have been raised with the jury that Burbanks was the person who 

killed the victim and not defendant. Given the choices available, defense counsel’s decision to 

pursue this strategy, and abandon a self-defense strategy that was almost certain to fail in light of 

the evidence, did not fall below prevailing professional norms.

B. RIGHT TO TESTIFY

Defendant was not denied effective assistance of counsel because of the strategic decision 

that she not testify at trial.

Defendant did not testify at trial. The trial court did not record an explicit waiver of the 

right to testify by defendant. During the presentence investigation, defendant provided a written 

statement: “I wanted to testify but my attorney did not allow it. I was not happy with my attorney 

that my family had selected. I was in jail 13 months due to all of the delays.” At her sentencing 

hearing, defendant told the trial court “I wanted the chance to testify, to tell my side of the story.” 

She also commented that she suffered from post-traumatic stress disorder (PTSD) and that this 

helped explain her actions. Defense counsel told the sentencing judge that counsel at trial had 

decided not to have her testify as a matter of trial strategy.

A criminal defendant has a constitutional right to testify in her own defense. People v 

Bonilla-Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). “Although counsel must advise a 

defendant of this right, the ultimate decision whether to testify at trial remains with the defendant.” 

Id. When a defendant “decides not to testify or acquiesces in his attorney’s decision that he not 

testify, the right will be deemed waived.” People v Simmons, 140 Mich App 681, 685; 364 NW2d 

783 (1985) (quotation marks and citation omitted).

When defense counsel advises a defendant not to testify, a defendant must overcome the 

presumption that counsel’s advice was sound trial strategy to prove ineffective assistance of 

counsel. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). “[D]ecisions 

regarding what evidence to present and whether to call or question witnesses are presumed to be 

matters of trial strategy, which [this Court] will not second-guess with the benefit of hindsight.” 

People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (quotation marks and citation 

omitted).

In this case, defendant did not tell the court she wanted to testify during the trial and, 

therefore, waived that right. See Simmons, 140 Mich App at 685. Regardless, defendant has not 

shown that defense counsel’s decision to keep her from testifying was unsound. As discussed 

earlier, defense counsel’s strategy was based on a theory that defendant did not kill the victim, but 
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rather, that Burbanks did. Defendant’s statement to the trial court at sentencing contains what 

could be read as an admission—that defendant reacted to being assaulted because of her PTSD 

condition. Regardless of whether defense counsel would have any success convincing a jury that 

defendant did not kill the victim, having her testify and subjecting her testimony to crossexamination would have risked her making a statement similar to the statement at sentencing 

during the trial. Therefore, defense counsel’s representation and advice did not fall below an 

objective standard of reasonableness. See Strickland, 466 US at 488.

Defense counsel’s decision not to call defendant to testify did not prejudice the outcome of 

the trial. Defendant’s statement at sentencing indicated that she intended to make some variation 

of a self-defense argument, incorporating her PTSD condition. However, the evidence—

particularly the surveillance video showing the parties’ movements during the assault—does not 

support this argument as discussed earlier. Defendant also confirms in her brief that self-defense 

is the argument that she would have advanced. Therefore, preventing defendant from testifying 

on the basis of this theory did not prejudice the outcome of the trial. Defendant was not denied 

the effective assistance of counsel by counsel’s advice that she not testify.

C. FAILURE TO OBTAIN EXPERT WITNESS ON PTSD

Defendant argues that defense counsel’s failure to call an expert witness on PTSD deprived 

her of a substantial defense and, therefore, constituted ineffective assistance of counsel. This 

argument lacks merit.

“An attorney’s decision whether to retain witnesses, including expert witnesses, is a matter 

of trial strategy. A defendant must meet a heavy burden to overcome the presumption that counsel 

employed effective trial strategy.” People v Payne, 285 Mich App 181, 190; 774 NW2d 714 

(2009) (quotation marks and citations omitted). Defendant must offer proof “that an expert witness 

would have testified favorably if called by the defense.” People v Ackerman, 257 Mich App 434, 

455; 669 NW2d 818 (2003).

Defendant claims that she was diagnosed with PTSD as a result of being assaulted in 1991. 

Defendant’s claim that defense counsel was ineffective for failing to call an expert on PTSD is 

related to the claim that defense counsel was ineffective for failing to pursue the defense of selfdefense discussed earlier.

A claim of self-defense at common law required an honest and reasonable 

belief of an imminent danger of death or great bodily harm. The Self-Defense Act, 

MCL 780.971 et seq., . . . require[s] an honest and reasonable belief of imminent 

death or harm. MCL 780.972. A defendant’s history and psychological makeup 

may be relevant to explain the reasonableness of a defendant’s belief that he or she 

was in inescapable danger. And reasonableness depends on what an ordinarily 

prudent and intelligent person would do on the basis of the perceptions of the actor. 

A defendant’s psychological idiosyncrasies may, at least in theory, be relevant to 

the reasonableness of the defendant’s belief that he or she was in danger. [People 

v Orlewicz, 293 Mich App 96, 102; 809 NW2d 194 (2011) (some citations 

omitted).]
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Defendant cites Orlewicz to suggest that defendant’s PTSD condition could explain her 

actions as a reasonable reaction to the victim’s pulling of her hair. But defendant leaves out or 

misinterprets a critical portion of the quoted section of Orlewicz, “reasonableness depends on what 

an ordinarily prudent and intelligent person would do on the basis of the perceptions of the actor.” 

Id. (emphasis added). An ordinarily prudent and intelligent person is unlikely to respond to hair 

pulling with a knife attack.

For the defense to bring a witness on PTSD would have amounted to an admission that 

defendant was the person who stabbed the victim. Such an admission was in direct conflict with 

defense counsel’s trial strategy, which was to implicate Burbanks as the person who stabbed the 

victim. Therefore, calling an expert witness on PTSD would not only be irrelevant in light of

defense counsel’s chosen strategy, it would be detrimental to the defense. Further, defendant has 

not provided an offer of proof that an expert witness would have testified favorably regarding 

defendant’s PTSD condition. See Ackerman, 257 Mich App at 455. For this reason, and because 

of the problems with the self-defense argument as stated earlier, defendant’s argument that defense 

counsel was ineffective for failing to call a witness on PTSD lacks merit.

Affirmed.

/s/ David H. Sawyer

/s/ Cynthia Diane Stephens

/s/ Michelle M. Rick