639 N.W.2d 291 (Mich.App. 2001), 221758, People v. Kevorkian

Docket Nº:221758.
Citation:639 N.W.2d 291, 248 Mich.App. 373
Opinion Judge:WHITBECK, J.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack KEVORKIAN, Defendant-Appellant.
Attorney:[248 Mich.App. 374] Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Anica Letica, Assistant Prosecuting Attorney, for the people. Morganroth & Morganroth (by Mayer Morganroth, Jeffrey...
Judge Panel:Before HOEKSTRA, P.J., and SAAD and WHITBECK, JJ.
Case Date:November 20, 2001
Court:Court of Appeals of Michigan
 
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639 N.W.2d 291 (Mich.App. 2001)

248 Mich.App. 373

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Jack KEVORKIAN, Defendant-Appellant.

No. 221758.

Court of Appeals of Michigan

November 20, 2001

Submitted Sept. 11, 2001, at Detroit.

Released for Publication Feb. 5, 2002.

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[248 Mich.App. 374] Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Anica Letica, Assistant Prosecuting Attorney, for the people.

Morganroth & Morganroth (by Mayer Morganroth, Jeffrey B. Morganroth, and Jason R. Hirsch), for the defendant on appeal.

Before HOEKSTRA, P.J., and SAAD and WHITBECK, JJ.

WHITBECK, J.

A jury convicted defendant of second-degree murder 1 and delivering a controlled substance. 2 The trial court sentenced him to concurrent prison terms of ten to twenty-five years for the murder conviction and seven years for the controlled substance conviction. Defendant appeals as of right and we affirm.

I. Overview

This case is about death; in particular, the death of former racecar driver Thomas Youk in September 1998. Youk was fifty-two years old and had amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's disease. Defendant twice videotaped himself interacting with Youk. In the first videotape, defendant went to Youk's home to discuss his condition. In [248 Mich.App. 375] the second videotape, defendant administered a lethal drug to Youk. Defendant later was a guest on the television news show 60 Minutes, during which segments from both videotapes were shown. The jury saw the videotapes and the 60 Minutes interview at defendant's trial. Nevertheless, defendant attempted to persuade the jury not to convict him because the murder he was charged with committing was, in his view, a "mercy killing."

Given this factual setting, this appeal presents a fascinating paradox. Though he made an impassioned plea to the jury to adopt his views on euthanasia, in this appeal defendant has given almost no attention

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to his claim that this homicide had a legal justification or excuse. Indeed, exactly seven of the fifty pages in his brief to this Court address euthanasia. Even during oral arguments, defendant's appellate counsel made not a single reference to this issue.

Nevertheless, euthanasia is at the core of this case. But for defendant's self-described zealotry, Thomas Youk's death would, in all probability, not have been the subject of national attention, much less a murder trial. Defendant, in what is now apparently something of an afterthought, asks us to conclude that euthanasia is legal and, therefore, to reverse his conviction on constitutional grounds. We refuse. Such a holding would be the first step down a very steep and very slippery slope. To paraphrase the United States Supreme Court in Washington v. Glucksberg, 3 it would expand the right to privacy to include a right to commit euthanasia and thus place the issue outside the arenas of public debate and legislative action. Such a [248 Mich.App. 376] holding would also involve the judiciary in deciding questions that are simply beyond our capacity. Succinctly put, there is no principled basis for us to legalize euthanasia.

Defendant's other issues are more mundane and we describe the relevant facts in more detail in the appropriate discussion sections. First, defendant asserts that his trial attorney, David Gorosh, did not provide him with his constitutional right to effective representation. However, defendant has failed to demonstrate that Gorosh performed deficiently at any time he actually acted as counsel. Defendant also failed to prove that Gorosh, while acting as standby counsel, took control of the case or did anything to destroy the jury's perception that defendant was representing himself. Even assuming for the sake of argument that a claim alleging ineffective assistance of standby counsel is legally cognizable, defendant still has not proved that Gorosh acted deficiently and prejudicially. Defendant chose--almost certainly unwisely but nevertheless knowingly, intelligently, voluntarily, and unequivocally--to represent himself. He cannot now assign the blame for his conviction to someone who did not act as his trial counsel.

Second, defendant claims that the prosecutor improperly referred to defendant's decision to exercise his right to remain silent, thereby denying him his rights under the Fifth Amendment. The remarks at issue were the prosecutor's proper objections to defendant's repeated and improper attempts to inject into his closing argument facts that were not in evidence. As such, the prosecutor's remarks were not direct and unequivocal references to defendant's failure to testify, and therefore, the making of those remarks did not constitute misconduct.

[248 Mich.App. 377] Third, defendant claims that the trial court erred in excluding the testimony of Terrence and Melody Youk, Thomas' brother and sister-in-law. However, defendant misreads the applicable standards with respect to res gestae witnesses and then fails entirely to demonstrate how the proposed testimony would have been relevant. Thus, even on this narrow evidentiary issue, defendant's arguments have no merit.

II. The Death Of Thomas Youk

A. The September 15, 1998, Videotape

On September 15, 1998, at 9:55 p.m., defendant went to Youk's home to discuss

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Youk's condition. As the videotape of this discussion revealed, defendant stated that he was recording their interaction in "connection with a request from Thomas [Youk] for help in ... ending his suffering." Youk then described his condition. He recalled that his symptoms of ALS first became obvious to him in 1994 and that he had been confined to a wheelchair since 1997. By September 1998, Youk said, he could not move his left arm or his legs, he had minimal use of his right arm, he had difficulty swallowing and breathing, he was fed through a tube, and he was forced to use a machine to help him breathe. Youk stated that, at the time, he could not do anything for himself, that he had discussed "his wishes" with his mother, brothers, and wife, and that they "understand why. It's my decision."

Defendant then told Youk that he needed to sign a form indicating that he was consenting to a "direct injection instead of using the device, the machine." Defendant asked Youk if he wished to donate his [248 Mich.App. 378] organs, and Youk declined. Defendant then read the consent form, which stated in part:

I, Thomas Youk, the undersigned, entirely voluntarily, without any reservation, external persuasion, pressure, or duress, and after prolonged and thorough deliberation, hereby consent to the following medical procedure of my own choosing, and that you have chosen direct injection, or what they call active euthanasia, to be administered by a competent medical professional, in order to end with certainty my intolerable and hopelessly incurable suffering.

The meeting ended at 10:15 p.m.

B. The September 16, 1998, Videotape

On September 16, 1998, at 9:49 p.m., defendant again videotaped himself and Youk at Youk's home. Youk stated that he "wanted to go through with this" and signed the consent form. Defendant remarked that he would inject Youk in the vein because "it's quicker," and stated, "now I'm going to put on a cardiogram so we know when your heart is stopped, okay." Defendant established a connection between Youk and the electrocardiogram. Defendant injected Youk with Anectine and Seconal before injecting Youk with potassium chloride. During this time, defendant provided a commentary on what was occurring:

Sleepy Tom? Tom are you asleep? And now we'll inject the Anectine. You asleep Tom? Tom? You asleep? He's asleep. Now the Potassium Chloride. This machine is recording for some reason so I'm pulling it by hand until the heart stops. It's been, it's been about two minutes since I injected the, ah, seconal, and one minute since I injected the--. Now we're getting agonal complexes and that's about the, the Potassium Chloride will stop the heart, so. Now there's a straight line. A straight line and the cardiogram will be turned off. His heart is stopped.

C. Cause Of Death

The police were dispatched to Youk's house on September 17, 1998, at 1:30 a.m. They found Youk lying on his bed, dead. The police also found a Federal Express receipt with defendant's name at the scene. Officials conducted Youk's autopsy at 10:00 a.m. the same day. The medical examiner listed the manner of death as homicide and the cause of death as intravenous injection of substances. During the autopsy, the medical examiner found two "fresh" needle marks on Youk's left and right wrists that had been covered with makeup. The autopsy protocol stated that the cause of death was "poisoning by intravenous injection of substances."

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Oakland County Medical Examiner Ljubisa J. Dragovic, an expert in neuropathology and pathology who later testified for the prosecution at defendant's trial, witnessed the autopsy. Dr. Dragovic found three significant drugs in Youk's bodily fluids. First, Youk had a high level of the barbiturate Seconal, also known as Secobarbital, in his blood. Seconal is a Schedule 2 controlled substance 4 typically used to induce sleep. Dr. Dragovic believed that the amount of Seconal in Youk's blood would have killed him in a few hours. Second, Dr. Dragovic found Anectine, a paralyzing muscle relaxant, present in Youk's body in an amount that could have killed Youk within five to eight minutes by causing brain death. However, Dr. Dragovic determined that it was the third drug, potassium chloride, that defendant injected into Youk that caused his death. As...

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