                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 6, 2017
               Plaintiff-Appellee,

v                                                                    No. 327296
                                                                     Kalamazoo Circuit Court
BRIAN KEITH ROBERTS,                                                 LC No. 2014-000714-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

        This case arises from the death of defendant’s young son on January 2, 2014, after the
child suffered a severe head injury on New Year’s Eve, December 31, 2013. Defendant was
convicted by a jury of first-degree felony murder, MCL 750.316(1)(b), and first-degree child
abuse, MCL 750.136b(2), in connection with his son’s death.1 The trial court sentenced him as a
third-offense habitual offender, MCL 769.11, to life imprisonment without the possibility of
parole for his felony-murder conviction and 30 to 50 years’ imprisonment for his first-degree
child abuse conviction. On appeal, defendant argues, among other issues, that he was denied the
effective assistance of counsel because his trial counsel failed to properly investigate the medical
controversy surrounding abusive head trauma in young children and failed to secure expert
testimony in support of the defense theory that his son’s head injury was the result of a tragic
accident rather than intentional abuse. Because we agree that counsel’s performance under the
circumstances fell below an objective standard of reasonableness and prejudiced defendant, we
vacate defendant’s convictions and remand for a new trial.


1
  Defendant was also convicted of second-degree murder, MCL 750.317, in connection with the
death of his son. Below, defendant asked the trial court to vacate his second-degree murder
conviction on double jeopardy grounds, but the trial court refused, opting instead not to impose a
sentence for this conviction. It is a violation of double jeopardy to convict someone of multiple
murder counts arising from the death of a single murder victim. People v Clark, 243 Mich App
424, 429; 622 NW2d 344 (2000). Although we otherwise vacate all of defendant’s convictions
on ineffective assistance grounds, we note that the trial court should have earlier vacated
defendant’s second-degree murder conviction under the circumstances, rather than simply
choosing not to impose a sentence for that conviction.


                                                -1-
                              I. BACKGROUND OF THE CASE

                                       A. BASIC FACTS

        Defendant’s son was two years old when he died. At trial, testimony revealed that
defendant began caring for his son in late September 2013, after the child’s mother lost custody
of him due to drug addiction. In early September 2013, while the child was living with a relative
of his mother, the child underwent a CT scan because he had macrocephaly, or an abnormally
large head. The CT scan was performed on September 11, 2013; a follow-up MRI was ordered,
but the MRI was never performed.

       On December 31, 2013, defendant and his girlfriend, Veronica Witherspoon, along with
defendant’s son and Witherspoon’s five children, went to spend the night at a home that
Witherspoon had recently rented. Testimony at trial revealed that the older children were
playing upstairs while defendant, Witherspoon, and Witherspoon’s newborn baby were
downstairs. There was also testimony that one of the older children yelled that defendant’s son
had wet himself. About 10 minutes later, defendant asked Witherspoon where his son’s clothes
were, and she responded. Defendant then called for his son to come downstairs to be changed.

       Witherspoon testified that she was cleaning up in the kitchen and was facing the sink
when she heard one or two thumps. Witherspoon said that when she turned around, she saw
defendant holding his son up under the child’s armpits and asking, “[W]hat’s wrong with him?”
According to Witherspoon, defendant looked pale and scared and the child’s head was clenched
back, his eyes looked “dizzy,” and he was spitting up. Witherspoon said she told defendant the
child was having a seizure and instructed him to lay the child down, which he did. Defendant
began to perform CPR and told Witherspoon to call “911.”

         Emergency medical responders were driving nearby when the call came in and responded
to the house within minutes. When they arrived, the child was not breathing and had no pulse.
Although paramedics were able to restart the child’s heart, he never regained consciousness.
Officers who responded to the scene asked defendant what happened and he told them that his
son fell down the stairs. The child was taken to the hospital, where a CT scan performed in the
emergency room revealed bleeding in the subdural or subarachnoid spaces surrounding his brain.
Dr. Robert Beck, the pediatrician who took over the child’s care at 8:00 a.m. on January 1, 2014,
testified that the child also had “very obvious retinal hemorrhages.” Beck related that a CT scan
from earlier in the morning showed evidence of “older fluid collections” around the child’s
brain, which he agreed was consistent with an older head trauma. On January 2, 2014, doctors
determined that the child was brain dead and he was removed from life support.

        Detective Kristin Cole testified that she interviewed defendant following the incident.
She stated that defendant first told her his son fell down a couple stairs. However, she informed
defendant that the medical reports showed that the child could not have suffered the head injuries
he did from falling down a few stairs. Cole stated that defendant eventually admitted that he
caused his son’s fall. Defendant told her that his son made it down the steps. Defendant
explained that he sat on the second or third step with his son facing him. He then grabbed the
child’s ankles and pulled them out, “intending for him to land on his butt so that [he] could


                                               -2-
change him out.” Instead of landing on his butt, however, defendant explained that the child
“went straight back and hit his head on the carpet.”

                                           B. TRIAL

        The prosecution charged defendant with first-degree felony murder, second-degree
murder, and first-degree child abuse arising from his son’s death. At trial, the prosecution’s
theory was that defendant handled the child in a violent and angry manner because the child had
wet himself. The prosecution also contended that the child’s head injuries could only have been
intentionally inflicted or inflicted with wanton and willful disregard of the life-endangering
consequences of the act based on its experts’ conclusions regarding the amount of force
necessary to cause the injuries and the short time in which the child became symptomatic. To
this end, the prosecution presented the expert testimony of Dr. Beck, Dr. Brandy Shattuck, a
forensic pathologist, and Dr. Rudolph Castellani, a neuropathologist.

        Dr. Beck opined that head injuries like those sustained by defendant’s son would only be
seen “in children who are riding bicycles hit by cars, who are in car seats and T-boned at high
speeds, in car seats appropriately restrained but involved in high-speed rollovers, [and]
acknowledged shaken episodes.” He further testified that “retinal hemorrhages are child abuse
unless you can prove through a witnessed account some mechanism of injury that could have
caused it.” When asked by the prosecutor whether the child’s injuries could be consistent with
his legs being “taken up” and the child being “thrown down,” Beck stated that it “could be a
scenario,” but explained that it would be “the type of maneuver that I do when I do my ten pound
sledge hammer cracking rock . . . for my driveway.” On cross-examination, defendant’s
attorney, Eusebio Solis, asked Beck whether the child’s injuries could have been caused if he
was in a standing position and his ankles were “grabbed to put him on his butt but he goes all the
way back” in a “whiplash motion and he strikes his head.” Beck agreed that such a scenario
could be a mechanism of injury, but stated that it boiled down to “the speed and the force at
which the head hits.”

         Dr. Shattuck concluded that the child’s injuries were “non-accidental” and characterized
the force required to cause the injuries as “violent or angry or aggressive types of force” that
were “the equivalent of a car accident[.]” When asked by the prosecutor whether the child’s
injuries could have been caused by “grabbing [his] ankles, pulling him down,” Shattuck stated
that it depended on “how much force you [use to] pull him,” noting that the force would “ha[ve]
to be significant.” Shattuck further testified that the child’s September 2013 CT scan did not
reveal “evidence of a bleed,” so the older blood around the child’s brain must have occurred after
the September 2013 CT scan and before the incident in question.

        On cross-examination, Shattuck conceded that she did not know exactly how much force
would be necessary to cause the child’s injuries, but emphasized again that the force would have
to be “significant.” Solis asked whether the child’s injuries could have occurred by defendant
pulling on his legs and the child falling back, to which Shattuck stated, “As long as it was a
significant force, it wouldn’t be a minor pull.” When Solis asked why Shattuck characterized the
force necessary to inflict the injuries as violent, angry, and aggressive, Shattuck explained that
“when people are not in an accident, like a car accident, to get to that level of force, there’s
usually some type of emotion behind it.” Shattuck stated that she listed the manner of death as a

                                               -3-
homicide because she believed someone else caused the child’s injuries, but she agreed that she
could not determine the actor’s intent.

        Dr. Castellani testified that the child’s injuries were indicative of “inflicted trauma.” He
explained that subdural hemorrhages in a young child are indicative of abuse if “there’s not a
motor vehicle accident or some major trauma to explain it,” and additionally stated that retinal
and subarachnoid hemorrhages were also highly suspicious of abuse. He concluded that the
child’s injuries were inflicted because there was “simply no other explanation that’s credible[.]”
On cross-examination, Castellani agreed that it would be possible to inflict such injuries by
pulling a child’s legs out from under him and causing the child to strike his head in a whiplash
like motion. He stated, however, that this was “highly unlikely” because, although “the whole
force issue is a little bit of guesswork,” the “level of force required to cause a complete
neurological and cardiovascular shutdown” would be “substantial.”

        At trial, Solis conceded that the evidence showed that defendant caused his son’s fall, but
argued that defendant inadvertently caused his son to strike his head and that the child’s death
was a tragic accident. The defense did not produce its own expert witness, although funds were
approved for that purpose. Instead, Solis pointed out the inconsistencies in the prosecution’s
case and argued that it had not proved beyond a reasonable doubt that defendant possessed the
requisite intent. He emphasized that not one medical expert testified that the child’s injuries
were, to a medical certainty, caused by child abuse because doctors do not determine intent.
Intent, he reminded the jury, is the difference between a crime and a tragic accident. The jury
rejected defendant’s theory and found him guilty as described.

                                    C. GINTHER HEARING

        In May 2015, defendant appealed his convictions as of right in this Court. He argued on
appeal that Solis did not provide effective representation because he failed to familiarize himself
with the medical controversy surrounding diagnoses of abusive head trauma in children and
failed to call a medical expert who could have testified favorably for the defense. In February
2016, defendant asked this Court to remand the case to the trial court for an evidentiary
hearing—commonly referred to as a Ginther hearing after our Supreme Court’s decision in
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973)—to develop a factual record concerning
his defense counsel’s conduct at the trial, and for the opportunity to move for a new trial on the
grounds addressed in his appeal. We granted defendant’s motion and remanded the case to the
trial court so that defendant could move for a new trial, and ordered the trial court to conduct an
evidentiary hearing and rule on the motion. People v Roberts, unpublished order of the Court of
Appeals, entered May 3, 2016 (Docket No. 327296).

        At the Ginther hearing, Solis testified that he had never handled a case involving abusive
head trauma. He admitted that he had told defendant’s appellate counsel that he was not familiar
with the medical controversy surrounding abusive head trauma in children, but clarified that he
“did not see that controversy as a viable defense.” Solis explained that in 30 years of practice, he
had “never seen a successful short fall defense.” Solis testified that it was “correct” that the key
issue in the case was the amount of force propelling the child’s fall, but he stated that he was
unaware of any expert who would testify that the child’s injuries could have been caused by a
less forceful incident.

                                                -4-
        Regarding his trial preparation and investigation, Solis explained that he researched
macrocephaly and consulted with a pediatrician who specialized in child abuse, Dr. Stephen
Guertin, to determine whether the child’s macrocephaly might have made him more susceptible
to injury, to get an “assessment of the evidence,” and to obtain “a referral of any expert who
would say a short fall would cause that injury.” Solis stated that Guertin provided him with
“articles that talked about children who were injured through falls.” With regard to the child’s
injuries in this case, Guertin told Solis that one could not “rule out accident,” but Guertin opined
that the child’s other injuries were consistent with abuse, which is why, Solis said, he chose not
to call Guertin at trial.

        Solis also consulted with the prosecution’s pathologist, Dr. Shattuck. Based on his
discussions with Shattuck, Solis testified that he believed he could get the prosecution’s
witnesses to concede that “this is not an exact science” and that “we can’t determine and we
can’t rule out, even though they said it was remote, that it could have been caused the way
[defendant] said.” Solis said he went over the articles he received from Guertin with Shattuck,
and she stated that the articles were not comparable because the incidents described were not
witnessed and the children did not die. Solis agreed that, at trial, Shattuck testified that the
child’s injuries were not accidental, although she conceded that pulling the child’s legs out from
under him could generate sufficient force to cause the injuries.

         When asked how he formulated his defense theory, Solis stated that defendant’s
admissions established that he caused the child’s injuries, but there was no evidence that
defendant was angry or that he targeted or abused his son leading up to the incident. Solis
testified that the circumstances were “indicative of an accidental injury versus an intentional
injury,” so he cross-examined the prosecution’s experts regarding the amount of force necessary
to cause the injuries and whether they could have been caused by a whiplash like motion. As for
the evidence that the child had an older bleed, Solis said he felt the evidence would show that the
child never exhibited a change in behavior and defendant did not have a history of abusing his
son, so he could argue that the old injury was accidental.

        At the Ginther hearing, Dr. Ljubisa Dragovic, a forensic pathologist and medical
examiner, testified that he reviewed the report and documentation for the child’s autopsy.
Dragovic opined that the autopsy should have included more sampling because the preexisting
subdural hemorrhage might have played a role in his subsequent head trauma. He testified that
there was nothing about the presence of a subdural hemorrhage that suggests an injury was
intentionally inflicted; rather, such an injury could occur with “any fall.” In Dragovic’s opinion,
the medical results were consistent with defendant’s version of events, and it was “nonsense” to
say that the force necessary to cause the child’s injuries was comparable to the force involved in
a car accident because there was no scientific basis for such a conclusion. He testified that the
child’s preexisting head trauma may have presented a greater opportunity for reinjury with less
force, and there was no basis to determine what caused the prior hemorrhage, except to say that it
was caused by the child’s head moving and striking an unyielding surface. Dragovic similarly
stated that retinal hemorrhages do not, by themselves, indicate child abuse. He further explained
that the existence of a prior subdural hemorrhage along with a new one does not indicate abuse.
Nor does the immediacy of the child’s unresponsiveness indicate abuse. Dragovic concluded
that there was no objective evidence in the autopsy report that would allow the conclusion that
the child’s death was a homicide.

                                                -5-
         Dr. Julie Mack, a diagnostic radiologist, testified that she reviewed the child’s CT scan
performed in September 2013 and the two scans performed on January 1, 2014. Mack explained
that there is not necessarily a correlation between the extent of a subdural hemorrhage and the
degree of impact or force that caused it. Regarding the child’s September 2013 CT scan, Mack
testified that it showed prominent fluid outside of the child’s brain, and the only way to
determine whether the excess fluid was normal would have been to have an MRI, which the
radiologist recommended, but it was never done. Mack said that the September 2013 CT scan
was insufficient to rule out the possibility that the child had small subdural fluid collections
outside of his brain, explaining that if there was extra fluid, the bridging veins would be more
susceptible to injury with less force. Mack said that the CT scan taken at 12:56 a.m. on January
1, 2014, revealed evidence of a blood clot in the child’s sinus that could have been old, in which
case it could indicate that the child’s brain was compromised before the injury at issue. Mack
said that if this was the case, a lesser injury—one that a normal child would have survived
“without even turning a hair”—might topple the brain.

        Mack testified that the CT scan taken at 5:07 a.m. on January 1, 2014, showed that the
child’s brain had become so swollen that it almost completely collapsed the ventricles. She
explained that if a sinus blood clot had interfered with drainage, every time the heartbeat filled
the blood vessels in the child’s brain it could cause swelling. Mack stated that, had she been
called to testify at trial, she would have said that the child’s injuries could have been caused
without significant trauma. She conceded that there was a bleed caused by an impact; she
merely disagreed that the indications of the old bleed with the new bleed were suggestive of
abuse. She further emphasized that there is no way to determine whether an injury was
intentionally inflicted from a CT scan.

        Following the hearing, the trial court entered an opinion and order rejecting defendant’s
ineffective assistance claim and denying his motion for a new trial. The case then returned to
this Court. On appeal, defendant argues that Solis should have conducted a more thorough
investigation of the medical controversy surrounding abusive head trauma in children and should
have obtained an expert witness to testify in support of the defense theory.

                                 II. STANDARD OF REVIEW

        Whether a defendant’s trial counsel was ineffective involves a mixed question of fact and
constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). When the
trial court has conducted a Ginther hearing to determine whether a defendant was denied the
effective assistance of counsel, we will review the trial court’s factual findings for clear error.
Id. Appellate courts review de novo the legal question of whether an attorney’s acts or
omissions fell below an objective standard of reasonableness under prevailing professional
norms and prejudiced a defendant’s trial. Id. This Court reviews for an abuse of discretion a
trial court’s decision whether to grant a motion for a new trial. People v Miller, 482 Mich 540,
544; 759 NW2d 850 (2008). A trial court abuses its discretion when it chooses an outcome
falling outside the range of principled outcomes. Id.




                                                -6-
                                         III. ANALYSIS

        To establish a claim of ineffective assistance of counsel, a defendant must show both that
counsel’s representation fell below an objective standard of reasonableness under prevailing
professional norms and that, absent counsel’s unprofessional errors, there is a reasonable
probability that the result of the proceedings would have been different. Strickland v
Washington, 466 US 668, 688, 694; 104 St Ct 2052; 80 L Ed 2d 674 (1984). Under the first
prong, a defendant must identify those acts or omissions that he contends were not the result of
reasonable professional judgment. Id. at 690. The reviewing court must then determine whether
the identified acts or omissions were outside the wide range of professionally competent
assistance under the totality of the circumstances. Id. Regarding the second prong, “[a]
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694. This determination must also be made considering the totality of circumstances. Id. at 695.

         A defense lawyer must be afforded broad discretion in the handling of cases, which
includes the discretion to take a calculated risk and select one defense over another as a matter of
trial strategy. People v Pickens, 446 Mich 298, 325; 521 NW2d 797 (1994). “Yet a court cannot
insulate the review of counsel’s performance by calling it trial strategy. Initially, a court must
determine whether the ‘strategic choices [were] made after less than complete investigation,’ and
any choice is ‘reasonable precisely to the extent that reasonable professional judgments support
the limitations on investigation.’ ” People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136
(2012), quoting Strickland, 466 US at 690-691 (brackets in Trakhtenberg).

        On appeal, defendant maintains that his case is comparable to People v Ackley, 497 Mich
381; 870 NW2d 858 (2015). In Ackley, a three-year-old child died while in the defendant’s care.
According to the defendant, the child had been sleeping alone in her room before he found her
unresponsive on the floor by her bed. Id. at 384. The prosecution’s theory of the case was that
the defendant killed the child by blunt force or shaking, while the defendant maintained that she
died as the result of an accidental fall. Id. At a Ginther hearing following the defendant’s
convictions of first-degree felony murder and first-degree child abuse, defense counsel testified
that he contacted a forensic pathologist who informed him that “there was a marked difference of
opinion within the medical community about diagnosing injuries that result from falling short
distances, on the one hand, and shaken baby syndrome (SBS) or, as it is sometimes termed,
abusive head trauma (AHT), on the other hand.” Id. at 385. The pathologist told defense
counsel that he was on the wrong side of the debate to assist the defense, and referred defense
counsel to another physician. Id. Defense counsel never contacted the physician and did not
otherwise research the medical diagnoses at issue. Id. at 386. The parties also stipulated to the
admission of an affidavit from a forensic pathologist who opined that the child’s head injuries
were likely caused by an accidental, mild impact. Id. at 387.

         On appeal, the Michigan Supreme Court concluded that defense counsel performed
deficiently “by failing to investigate and attempt to secure an expert witness who could both
testify in support of the defendant’s theory that the child’s injuries were caused by an accidental
fall and prepare counsel to counter the prosecution’s expert medical testimony.” Id. at 389. The
Court explained that counsel’s decision to consult only a pathologist who opposed the defense
theory was unreasonable in light of the prominent controversy in the medical community over
diagnoses of abusive head trauma and because there was no evidence that counsel was familiar

                                                -7-
with the controversy. Id. at 391-392, 394. The Court concluded that defense counsel’s
performance prejudiced the defendant because expert testimony “was not only integral to the
prosecution’s ability to supply a narrative of the defendant’s guilt, it was likewise integral to the
defendant’s ability to counter that narrative and supply his own.” Id. at 397.

                               A. COUNSEL’S PERFORMANCE

         In this case, in order to establish the charge of felony murder, the prosecution had to
prove that defendant committed second-degree murder and that he did so during the commission
of first-degree child abuse. See MCL 750.316(1)(b). A person commits first-degree child abuse
if he or she “knowingly or intentionally causes serious physical . . . harm to a child.” MCL
750.136b(2). There is no reasonable dispute that defendant performed an act that caused his son
to fall and that the child suffered serious physical harm as a result. See MCL 750.136b(1)(f).
Accordingly, the primary issue at trial was whether defendant intended to cause the child serious
physical harm when he pulled on the child’s ankles, or whether he knew that serious physical
harm would be the result. See People v Maynor, 470 Mich 289, 295; 683 NW2d 565 (2004).

        Similarly, in order to establish that defendant committed second-degree murder, the
prosecution had to show that defendant acted with the intent to kill the child, intended to cause
great bodily harm, or acted in “wanton and willful disregard of the likelihood that the natural
tendency of [his] behavior [was] to cause death or great bodily harm.” People v Aaron, 409
Mich 672, 728; 299 NW2d 304 (1980). As the prosecutor conceded at trial, there was no
evidence that defendant intended to kill the child. So the primary issue was whether defendant
intended to cause great bodily harm or acted with wanton and willful disregard of the likelihood
that the child would suffer death or great bodily harm.

        Because there was no direct evidence that defendant possessed the mental state required
to prove either second-degree murder or first-degree child abuse, the prosecutor had to rely on
circumstantial evidence to establish defendant’s state of mind at the time he pulled on the child’s
ankles. See People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008). A reasonable
defense lawyer confronted with this scenario would know that evidence concerning the force
required to cause the child’s head injuries would be imperative to proving defendant’s guilt.
Likewise, a reasonable attorney would understand that the prosecution’s case must depend
heavily on expert testimony to establish that the child’s head injuries could not have occurred
unless defendant acted with sufficient force to cause the child to strike his head violently, thereby
demonstrating intentionality, knowledge, or wanton and willful disregard of the likelihood that
the child would suffer great bodily injury.2 At the Ginther hearing, Solis testified that he knew a



2
  Again, to that end, the prosecution presented the expert testimony of Dr. Beck, who opined that
the child’s head injuries would only have been seen “in children who are riding bicycles hit by
cars, who are in car seats and T-boned at high speeds, in car seats appropriately restrained but
involved in high-speed rollovers, [and] acknowledged shaken episodes;” the testimony of Dr.
Shattuck, who characterized the force required to cause the injuries as “violent or angry or
aggressive types of force,” equivalent to a “car accident;” and Dr. Castellani, who testified that

                                                -8-
key issue at trial would involve the amount of force propelling the child’s fall. Yet Solis did not
attempt to secure an expert witness who could testify that the child’s head injuries resulted from
a lesser force than that involved in a car accident, or which could be described as something less
than “violent,” or who could otherwise prepare Solis to counter the prosecution’s expert medical
testimony.

        Although Solis performed some investigation before trial by researching macrocephaly
and consulting with Geurtin and Shattuck, his investigation did not focus on the most important
issue of the case—the force with which defendant would have had to act to inflict the child’s
injuries. The record indicates that Solis failed to investigate this issue and that he was unfamiliar
with the medical controversy concerning the amount of force required to inflict the type of
injuries involved in this case.3 See Findley et al., Shaken Baby Syndrome, Abusive Head
Trauma, and Actual Innocence: Getting It Right, 12 Hous J Health L & Policy 209, 214 (2012)
(explaining that “it is no longer generally accepted . . . that massive force—typically described as
the equivalent of a multi-story fall or car accident—is required” to produce subdural hemorrhage,
retinal hemorrhage, and brain damage, also referred to as the “triad,” in young children); see also
Trakhtenberg, 493 Mich at 54 n 9 (“[A] defense attorney may be deemed ineffective, in part, for
failing to consult an expert when counsel had neither the education nor the experience necessary
to evaluate the evidence and make for himself a reasonable, informed determination as to
whether an expert should be consulted or called to the stand . . . .”) (quotation marks and
citations omitted).

         “While an attorney’s selection of an expert witness may be a paradigmatic example of
trial strategy, that is so only when it is made after thorough investigation of the law and facts in a
case.” Ackley, 497 Mich at 391 (citations, quotation marks, emphasis, and brackets omitted). In
this case, Solis did not demonstrate sufficient understanding of the pertinent medical controversy
concerning the amount of force required to inflict the type of injuries involved to legitimize his
decision not to attempt to secure expert testimony in support of the defense theory. In cases, like
this one, that involve a “substantial contradiction in a given area of expertise,” an attorney’s
failure to engage expert testimony to rebut the prosecution’s experts and to become versed in the
“technical subject matter most critical to the case” results in “a defense theory without objective,
expert testimonial support,” and an attorney who is “insufficiently equipped to challenge the
prosecution’s experts.” Id. at 392 (quotation marks and citation omitted). Under the
circumstances, we conclude that Solis’s representation fell below an objective standard of
reasonableness.




the child’s injuries were indicative of “inflicted trauma” because there was “simply no other
explanation . . . than an inflicted injury upon the child.”
3
  Again, at the Ginther heading, Solis admitted that he told defendant’s appellate counsel that he
was not familiar with the medical controversy surrounding abusive head trauma in children,
clarifying that he “did not see that controversy as a viable defense.”


                                                 -9-
                                         B. PREJUDICE

        We further conclude that, absent Solis’s deficient performance, there is a reasonable
probability that the outcome of defendant’s trial would have been different. Strickland, 466 US
at 694. As discussed above, the prosecution conceded at trial that there was no direct evidence
that defendant intended to kill his son when he pulled his ankles and caused him to fall.
Accordingly, in order to establish second-degree murder, the prosecution had the daunting task
of convincing a jury that defendant grabbed his son’s ankles with the intent to cause him to fall
and suffer great bodily injury or did so with wanton and willful disregard of the fact that the
natural tendency of the act would be to cause death or great bodily harm. Aaron, 409 Mich at
728. Likewise, to prove first-degree child abuse, the prosecution had to prove that defendant
intended to cause serious physical harm or knew that the result of his actions would be to cause
serious physical harm. Maynor, 470 Mich at 295.

        To that end, the prosecutor repeatedly elicited testimony from her experts suggesting that
the child’s injuries could not have been caused by anything less than a significant force, akin to a
car accident. Although Beck and Shattuck appeared to concede that defendant could have
caused his son’s injuries by grabbing the child’s ankles and causing him to fall and strike his
head, their testimony suggested that the child did more than lose his balance. It permitted an
inference that the child was thrown backwards by an angry and violent jerking of his feet.
Likewise, Castellani’s testimony suggested that even that version of events was false. His
testimony suggested that defendant must have done something even more forceful and violent—
and presumably intentional—to cause his son’s injuries.

         Although Solis was able to get each of these witnesses to concede to some degree on
cross-examination that the child could have suffered the injuries in the manner described by
defendant, they all maintained that the injuries could only have occurred if defendant pulled the
child down with significant force. The testimony by these experts strongly suggested that the
child’s injuries on the day at issue were the result of defendant’s intentional abuse. Solis
testified that he spoke with Guertin after Guertin reviewed the autopsy photographs of the child’s
brain. According to Solis, Guertin opined that one could not rule out an accident, but he did not
provide an opinion about the “cause and origin” of the child’s head injuries and did not explain
why he would not rule out an accident. The lack of clear explanation underlying Guertin’s
opinion necessitated additional inquiry by Solis. Had Solis been better informed about the
abusive head trauma controversy, he might have been able to elicit greater concessions from
these experts or might have exposed the weaknesses in their opinions to the jury. Moreover, had
he called his own expert or experts to testify that the child could have suffered the catastrophic
injuries he did by losing his balance and striking his head, apart from a substantial or violent pull
by defendant, the jury might have been persuaded that the prosecution failed to prove that
defendant had a culpable state of mind when he grabbed his son’s ankles and pulled him down.
See, e.g., Ackley, 497 Mich at 394-397.




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       For these reasons, we conclude that defendant received ineffective assistance of counsel
because Solis failed to adequately investigate and attempt to secure expert assistance in the
preparation and presentation of his defense. Accordingly, we vacate defendant’s convictions and
remand the case for a new trial. We do not retain jurisdiction.



                                                          /s/ Cynthia Diane Stephens
                                                          /s/ Douglas B. Shapiro
                                                          /s/ Michael F. Gadola




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