People v. Dendel

• Decision Date: 28 May 2008
• Docket Number: Docket No. 132042.
• Citation: 748 N.W.2d 859,481 Mich. 114
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Katherine Sue DENDEL, Defendant-Appellee.
• Court: Michigan Supreme Court

748 N.W.2d 859

481 Mich. 114

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Katherine Sue DENDEL, Defendant-Appellee.

Docket No. 132042.

Supreme Court of Michigan.

May 28, 2008.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Henry C. Zavislak, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

State Appellate Defender (by Valerie R. Newman) for the defendant.

CORRIGAN, J.

Defendant, an insulin-dependent diabetic, was convicted of second-degree murder for injecting the victim, her live-in partner, with a lethal dose of insulin. The Court of Appeals reversed her conviction and remanded for a new trial after concluding that defense counsel 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 reverse the judgment of the Court of Appeals and reinstate defendant's conviction. Defense counsel was not ineffective under the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because defendant did not prove that she was prejudiced by her counsel's failure to produce an expert witness. The Court of Appeals erred in holding that defense counsel could have presented an expert witness who would have refuted the testimony of the prosecution's experts to the extent that defendant's acquittal would have been reasonably probable. 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 would have been different had a defense expert testified.

I. FACTUAL BACKGROUND

Defendant and the victim, Paul Michael Burley, were in a long-term relationship and had lived together for years. Burley had been taking numerous medications for several serious illnesses, including an infection with human immunodeficiency virus (HIV), herpes, hepatitis B and C, epilepsy, ataxia, neuropathy, chronic obstructive pulmonary disease, severely impaired vision, dementia, lymphoma, and throat cancer. Burley was not, however, diabetic. By defendant's own account, Burley was a difficult person to care for. Defendant was solely responsible for making 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 Burley'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 before Burley's death, defendant, frustrated with Burley's demands, also told Burley's sister, "I can't take 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 metabolizes and that no trace of insulin would remain in Burley's blood after an insulin injection.

Defendant had expressed her frustration with caring for Burley to a Family Independence Agency (FIA) employee. Less than a week before 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 subsequent telephone conversation, defendant again stated that she was frustrated and concerned 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 mental-health facility or have him placed in respite or hospice care.¹ The FIA employee testified that defendant had never before expressed any problems with caring for Burley.

During the week leading up to Burley's death, defendant sought help from the Department on Aging. The department representative told defendant that she did not qualify for help because both she and Burley were not 60 years old. The representative suggested that defendant instead contact hospice services. Defendant 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 methods of care. She visited five times, but, on the day before Burley's death, the nurse terminated her services because Burley had been uncooperative. When the nurse told defendant that she was terminating her services, defendant became "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 Burley to a mental institution. When the police arrived, Burley was sitting calmly in a chair. He told the 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 himself or others. One officer 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 she was at her "wit's end."

Defendant contended that later that day she discovered Burley slumped over on the couch and unresponsive. She testified that, because Burley was cold and covered with purple blotches, she thought he might be dead. Rather than calling 911, however, she instead called a friend, who arrived and contacted 911. While the police and emergency personnel were removing Burley's body from the house, one of Burley's sisters telephoned. Defendant answered the phone, but quickly ended the conversation without telling her that Burley had died.

During the next several days, defendant spoke with several of Burley's siblings. She never informed them of his death, but instead falsely 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" and "nonchalant" in her discussion of topics ranging from Burley's health to antique jewelry. During this conversation, defendant laughed while describing an alleged incident when Burley had wandered away from the apartment complex and become lost. Yet defendant never mentioned Burley's death.

Defendant wanted Burley's body cremated without an autopsy being performed. Although an autopsy was performed despite defendant's wishes, defendant had Burley's body cremated before his family learned about his death. When a police detective incorrectly told defendant that the medical examiner had detected insulin in Burley's body, defendant called him a liar and explained that insulin could not be detected 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. During a later interview with a police detective, defendant said, "That poor dear, he killed himself for me." She told the detective that despite Burley's severely impaired vision 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 also testified that Burley had mental problems and that he had "talked suicide for 10, 15 years." She had informed two of Burley's doctors of his suicidal intentions.

Defendant was charged with first-degree murder. The prosecution theorized at the bench trial that defendant injected the victim with a lethal dose of insulin on April 2, 2002. The prosecution presented two expert witnesses, Dr. Bernardino Pacris³ 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 Burley had died either by injecting himself with insulin or from the side effects of numerous medications prescribed for him. Defense counsel did not present any expert testimony to rebut the testimony of the prosecution's experts.

The trial court found defendant guilty of the lesser-included offense of second-degree murder. Defendant moved for 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 Ginther⁶ hearing to determine whether 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 the view that defendant had died from an insulin overdose. Dr. Pacris defended his trial testimony that Burley had died of hypoglycemic shock caused by insulin.⁸ The trial court rejected defendant's claim of ineffective assistance of counsel. Instead, it found that defense counsel's performance had been objectively reasonable. The court concluded that defendant had not been prejudiced by Filip's failure to call an expert forensic pathologist to rebut the opinions of the prosecution's experts. The court explained why the outcome of the trial 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 that pointed in that direction, it would have made the testimony of Dr. Evans and Dr. Pacris not as ... clear. But I don't...