                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 17, 2017
               Plaintiff-Appellee,

v                                                                    No. 328925
                                                                     Oscoda Circuit Court
CARL WAYNE BRUCE,                                                    LC No. 14-001354-FC

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                    No. 329484
                                                                     Oscoda Circuit Court
RACHEL LYNN BRUCE,                                                   LC No. 14-001355-FC

               Defendant-Appellant.


Before: CAVANAGH, P.J., and METER and M. J. KELLY, JJ.

METER, J. (concurring in part and dissenting in part).

        I concur in the majority’s conclusions that (1) the prosecution presented sufficient
evidence to sustain the convictions, (2) defendants have not demonstrated ineffective assistance
of counsel with regard to the plea negotiations, and (3) Carl Bruce’s counsel provided ineffective
assistance in allowing Rachel Bruce’s statements to be used against him. In light of this third
conclusion, I agree that Carl is entitled to a new trial. I disagree, however, with the majority’s
conclusion that Rachel is entitled to appellate relief with regard to the expert-witness issue.

        Dr. Dragovic stated at the evidentiary hearing that “whether [the victim] actually died of
malnutrition, or he just appeared malnourished and emaciated, is something that one would like
an answer to, but there was no post-mortem examination done. There was no autopsy performed
to define any conditions more properly, and sort of interrelate them to the findings on the outside
of the body of the deceased.” Rachel’s attorney asked, “So do you agree with Investigator
Ross’s opinion?” Dr. Dragovic answered, “I cannot either agree or disagree, because the
malnutrition is an observation.” He further testified that he “[could not] say that [the victim] was

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not malnourished,” but stated that he would like to have had more information regarding the
precise cause of death. While he testified that he could not, with certainty, make a conclusion
regarding the cause of the malnutrition (explaining that sometimes malnutrition can result from
diseases within the body), he also testified that he could not say whether listing “malnutrition,
dementia and neglect” as the cause of death was right or wrong. He reiterated that he had “no
opinion” about the cause of death.

        Ross testified at trial that “malnutrition seems to be the main cause” of the victim’s death
but that she did not know “the actual physical component of his death.” She stated, “And so
malnutrition is the closest that we can come to the actual cause of death.” She later indicated
that the cause of death was “lack of food and lack of water.”

        I cannot agree with the majority that the absence of Dr. Dragovic’s testimony so
undermined the reliability of the verdict such that Rachel has established ineffective assistance of
counsel. As noted by the trial court, Dr. Dragovic did not provide a definitive refuting opinion
regarding Ross’s testimony. Moreover, Ross acknowledged that she was not a doctor and, very
significantly, she stated that “malnutrition is the closest that we can come to the actual cause of
death.” As such, the jury was made aware of the limitations of Ross’s testimony, even in the
absence of testimony by Dr. Dragovic. In addition, Dr. Dragovic clearly and unambiguously
stated that he could not determine the cause of death. Under the circumstances, Rachel was not
deprived of a substantial defense due to counsel’s negligence with regard to the expert-witness
issue. See People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009) (in general, the
failure to call a witness constitutes ineffective assistance only if it deprives the defendant of a
substantial defense). Given all the evidence presented, which was ample in support of her
convictions, including the conviction for first-degree felony-murder, Rachel has not
demonstrated a reasonable probability that Dr. Dragovic’s testimony would have changed the
outcome of the trial. See id. at 188-189.

       I would affirm Rachel’s convictions1 but reverse Carl’s convictions.



                                                             /s/ Patrick M. Meter




1
 I reject the further arguments raised by Rachel that were deemed moot by the majority in light
of their ruling on the expert-witness issue.


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