People v. Pickens, Docket Nos. 95720

Citation446 Mich. 298,521 N.W.2d 797
Decision Date01 December 1993
Docket Number91434,Docket Nos. 95720,Nos. 9-10,s. 9-10
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dwayne PICKENS, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ralph WALLACE, Defendant-Appellee. Calendar,
CourtSupreme Court of Michigan
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Joseph A. Puleo and Thomas M. Chambers, Asst. Pros. Attys., Detroit, for the People
OPINION

RILEY, Justice.

At issue in these consolidated cases is whether the Michigan constitutional guarantee of the effective assistance of counsel provides a criminal defendant with greater protections than its federal counterpart. We hold that the intention underlying the Michigan Constitution does not afford greater protection than federal precedent with regard to a defendant's right to counsel when it involves a claim of ineffective assistance of counsel. Thus, to find that a defendant's right to effective assistance of counsel was so undermined that it justifies reversal of an otherwise valid conviction, a defendant must show that counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced the defendant as to deprive him of a fair trial. Accordingly, we affirm the judgment of the Court of Appeals in People v. Wallace and reverse the judgment of the Court of Appeals in People v. Pickens because neither defendant is capable of showing that he was denied effective assistance of counsel.

Also at issue in Wallace is whether the denial of independent defense neurological tests by the trial court mandates reversal of defendant's conviction. While the trial court violated M.C.L. § 768.20a(3); M.S.A. § 28.1043(1)(3) by denying defendant's request for the tests, we affirm the conviction because the error was harmless under the circumstances.

Furthermore, we find that the admission of statements made by Wallace and others regarding the shooting and his past behavior as testified to by the prosecutor's rebuttal witness was not error because the statements were relevant to rebut Wallace's claim of insanity and were not unfairly prejudicial.

Hence, we affirm the judgment of the Court of Appeals in Wallace and reverse the judgment of the Court of Appeals in Pickens.

I
A

Defendant Dwayne Pickens was charged with selling less than fifty grams of cocaine to an undercover police officer in the City of Detroit. During his opening argument at trial, defense counsel indicated that Eric Wright would testify that Pickens had been with him the day in question and had not delivered cocaine. The trial court, however, barred the introduction of the alibi witness because defense counsel had failed to file a notice of alibi as required by M.C.L. § 768.20(1); M.S.A. § 28.1043(1). 1 Pickens was convicted as charged by the jury and sentenced to four to twenty years imprisonment. On appeal, he argued, inter alia, that he had been denied effective assistance of counsel because his counsel failed to file a notice of alibi and had not moved for an adjournment to correct the error. The Court of Appeals remanded for an evidentiary hearing pursuant to People v. Ginther, 390 Mich. 436, 442-444, 212 N.W.2d 922 (1973).

At the Ginther hearing, Pickens' trial counsel testified that her records did not show that she had failed to file a notice of an alibi defense. She indicated that she intended to call Wright to testify at trial as an alibi witness and that she had discussed that possibility with him and Pickens before trial. She could not recall if Wright appeared on the first day of trial, but remembered that he had been subpoenaed by her investigator and did not appear on the second day. She speculated that she did not move for an adjournment because the trial court's ruling precluding Wright was so definite. Following this pattern, Pickens' appellate counsel also waived production of Wright at the Ginther hearing. The record does not provide any explanation for his failure to testify at trial or the Ginther hearing.

After remand, the Court of Appeals found that Pickens was prejudiced by his trial attorney's failure to timely file a notice of an alibi defense or to move for an adjournment. 2

This Court granted leave to appeal and consolidated the case with People v. Wallace, 509 N.W.2d 152.

B

On August 4, 1986, defendant Ralph Wallace shot and killed his estranged wife as she sat across from him at a bar. After a preliminary examination, he was bound over for trial, and he personally retained defense counsel.

Counsel gave notice of Wallace's intent to raise an insanity defense, and the court granted the defense motion for an independent psychiatric evaluation. The court, however, later denied Wallace's request for additional neurological tests, including a CAT scan, that had been recommended by Dr. Rajendra K. Bhama, the independent psychiatric evaluator. In denying Wallace's motion for independent testing, the court reasoned that the trial should not be delayed to permit independent testing when identical tests had already been performed. 3 The court suggested that Dr. Bhama obtain the previous test results.

At trial, the prosecution argued that Wallace premeditated the murder of his wife. Various prosecution witnesses testified that Wallace threatened to kill her at least twice before the fatal shooting. 4 Witnesses to the slaying testified that Wallace, sitting across a table from his wife, shot her and, after pausing for almost a minute, fired again after she had fallen and appeared alive. He then stated that the victim was "only his wife" andplaced the gun on the counter. After announcing to the crowd not to worry, he went to the restroom and his car, and returned to wait for the police. An officer testified that Wallace spoke coherently, appeared sober, and admitted shooting his wife. 5

Defense counsel countered that Wallace was mentally ill at the time of the shooting and acted in the heat of passion. Wallace's employer testified that on the day of the murder, Wallace appeared at work explaining that his plans to go fishing had gone awry. After witnessing Wallace ranting and raving with a flushed face, he sent him home. His employer also admitted providing him tranquilizers and antidepressant drugs before the day of the shooting. Other defense witnesses testified that Wallace and his wife often argued, and that on the day of the slaying he was despondent about his children.

Wallace denied intending to murder his wife. He testified that he took a tranquilizer provided by his employer after arriving home from work. He then drank two beers at a tavern and two at home before his wife called. They met at a bar to continue a discussion about his wish to take their six-year-old daughter fishing. He did not recall taking the gun, but admitted that he probably did because it was night and he feared his wife's family, describing earlier altercations with her brother. He testified that at the bar his wife described sexual experiences with her new lover and demanded her wedding rings back. While he did not recall shooting his wife, he described seeing two enlarged moving images of her on the wall that appeared to be floating away. He felt as if he were going to explode.

Defendant's main witness for purposes of the insanity defense was his independent psychiatric examiner, Dr. Bhama, who concluded that he suffered from neurocortical damage and cerebellum dysfunction. 6 He theorized that on the day of the shooting, Wallace suffered from mental illness and disorder of thought and judgment. He also stated that Wallace lacked the substantial capacity of appreciating the wrongfulness of his conduct. He concluded that Wallace was legally insane at the time of the shooting.

The prosecution presented two expert rebuttal witnesses: Dr. Dexter Fields, chief psychiatrist at the Recorder's Court Psychiatric Clinic, and Ronald Kolito, senior clinical psychologist at the clinic. Dr. Fields disagreed with the diagnosis of organic brain syndrome, opining that Wallace was in touch with reality and that anxiety could have caused him to believe that his wife was larger than usual.

Kolito testified that Wallace was not psychotic or mentally ill at the time of the shooting. He buttressed his conclusion by testifying about comments made by Wallace about the day of the shooting, as well as observations of Wallace's co-worker about his behavior. 7 Defense counsel objected to much of his testimony as misleading and impermissible hearsay. After giving the jury curative instructions, the trial court admitted the testimony, reasoning that it provided the underlying facts of an expert's opinion. 8

The jury found Wallace guilty of first-degree murder and of possession of a firearm during the commission of a felony. After denying a motion for new trial, the court sentenced him to the mandatory term of life plus two years for the felony-firearm conviction.

Wallace appealed, and the Court of Appeals granted a remand for a Ginther hearing on his claim of ineffective assistance of trial counsel. The Court denied the motion for a new trial and subsequent motions to remand. This Court granted leave to appeal to consider: (1) whether Wallace was denied the effective assistance of counsel, (2) whether the trial court erred when it denied his motion for neurological tests, and (3) whether the trial court erred in admitting the disputed rebuttal testimony.

II

At issue in these consolidated cases is the...

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