                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      February 11, 2016
               Plaintiff-Appellee,

v                                                                     No. 324107
                                                                      Oakland Circuit Court
CAROL SUE KUSK,                                                       LC No. 14-249495-FH

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and MARKEY and M. J. KELLY, JJ.

PER CURIAM.

       Defendant appeals as of right from her conviction of domestic assault, MCL 750.81(2),
for which the trial court sentenced her to serve 93 days in jail, with credit for 13 days served.
The jury found defendant not guilty of felonious assault, MCL 750.82, and possessing a firearm
when committing or attempting to commit a felony (felony-firearm), MCL 750.227b. We
reverse, and remand this case to the trial court for further proceedings.

                                             I. FACTS

        This case arose from a disagreement between defendant and the victim, who was living in
defendant’s basement with two of her children, which lead to a series of physical altercations one
evening. Aside from that fact, there is very little about which defendant and the victim can
agree.1 While living in defendant’s basement, the victim did not pay rent or have a lease of any
kind. However, the victim was expected to be respectful and follow certain rules, among them
not to come upstairs without an invitation, and not to have male visitors after 10:00 p.m. It is
undisputed that the victim had a male friend on the premises the night of the altercations. The
victim testified that defendant sent her a text message indicating that the man needed to leave,
and also that the victim needed to move out of the home in the next 30 days. The victim


1
  At trial, both the victim and defendant testified as to the order and severity of events that night.
We have attempted to give what we believe is a complete portrayal of what occurred on the night
in question, comprised of testimony from both parties. We note that the dissent seems to
mention and rely heavily on testimony given by the victim, with little mention of defendant’s
account of what occurred.


                                                 -1-
explained that she went upstairs to discuss the text because it was not yet 10:00 p.m., and the
news that she needed to move out upset her. It was at this point that a melee ensued. However,
each combatant asserted that the other started the fight. According to defendant, she told the
victim to go back downstairs because she had not been invited upstairs, at which point the victim
hit her in the head. “She grabbed my hair along with my ear,” defendant testified, “pulled my
earring out, and just held me down and started beating me in my head and back.” After the two
were separated, defendant demanded that the victim move out in the next 10 minutes.

        According to the victim, when she came back upstairs to get some laundry, defendant
was holding a gun, and that as she was on her way back downstairs, defendant followed her and
pointed the gun at her. Defendant did not deny holding a gun, but explained that she retrieved it
only after the victim had assaulted her again. Defendant testified that the victim struck her in the
face causing the defendant to hit her head against the corner of a wall. As her husband was
holding defendant the victim grabbed defendant’s hair and struck her again, resulting in the
defendant’s black eye. Defendant stated that the victim was also yelling that she was going to
kill defendant. According to defendant, it was at this point that she retrieved her lawfully
registered firearm, out of fear for her safety and the resulting need to protect herself from the
victim. However, defendant was clear that she did not retrieve the gun until after the victim had
returned to the basement and that at no point in the evening were the victim, the gun and
defendant in the same room at the same time. Defendant said that her husband took the gun from
her and she never had it in her possession again that evening.

        The victim explained that defendant then came downstairs, unarmed, and physically
attacked her and “that’s why I did hit her multiple times because [defendant] kept on attacking
me.” Defendant testified that the victim again came up from the basement and again assaulted
her. “She grabbed me by the hair and started punching me again and that’s when I pulled her
hair,” defendant explained.

        At trial, defense counsel repeatedly characterized defendant’s position throughout the
series of physical brawls as a defensive one. In his opening statement, counsel said that “[the
victim] lost it. She came upstairs and she smacked my client. They got into a physical
altercation following that.” He also told the jury, “You’ll hear unequivocally on this evening
when the fight started [what the victim] did in response to being told that she had to move.” In
his closing argument, defense counsel argued as follows:

               There’s no question that there was a fight here. You’ve seen pictures of
       [the victim’s] hands. You’ve seen pictures of [defendant’s] eye. Who looks like
       they got the worst of the fight? Basically, this is a simple question. Who do you
       believe started that? Because once you determine who started it, the other one
       who engaged is clearly trying to defend herself.

               So do you believe that while [defendant] was sitting in her living room
       and she sent a text telling someone to get out in 30 days she’s inviting her to come
       up and fight? Or do you believe that [the victim] goes upstairs pissed, screams at
       her, then grabs her hand, then blackens her eye damaging her fist in the process?
       Which one do you think is more believable?


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Defense counsel later asked, “Does the evidence show beyond a reasonable doubt that a [sic]
unprovoked attack was initiated by [defendant] on [the victim] who lived in the same house[?]”

       The trial court instructed the jury on felonious assault, domestic assault, and felony-
firearm. The court set forth the elements of domestic assault as follows:
              First, that the defendant assaulted and/or assaulted and battered [the
       victim].

               A battery is the forceful, violent, or offensive touching of a person or
       something closely connected with him or her. The touching must have been
       intended by the defendant, that is, not accidental, and it must have been against
       [the victim’s] will.

               An assault is an attempt to commit a battery or an act that would cause a
       reasonable person to fear or apprehend an immediate battery. The defendant must
       have intended either to commit a battery or to make [the victim] reasonably fear
       an immediate battery. An assault cannot happen by accident. At the time of an
       assault, the defendant must have had the ability to commit a battery, or must have
       appeared to have the ability, or must have thought she had the ability.

             Second, at the time [the victim] was a resident or former resident of the
       same household as the defendant.

                                         II. ANALYSIS

        The sole issue on appeal is whether defendant was denied the effective assistance of
counsel on the basis of a failure to request a jury instruction regarding self-defense. A claim of
ineffective assistance of counsel presents a mixed question of fact and law. People v LeBlanc,
465 Mich 575, 579; 640 NW2d 246 (2002). Where there was no motion below for a new trial on
the ground of ineffective assistance, People v Wilson, 242 Mich App 350, 352; 619 NW2d 413
(2000), or request for an evidentiary hearing to develop the issue, People v Ginther, 390 Mich
436, 443; 212 NW2d 922 (1973), as is the case here, this Court’s review is limited to mistakes
apparent on the existing record. See People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342
(2004).

        “A defendant seeking a new trial on the ground that trial counsel was ineffective bears a
heavy burden.” People v Carbin, 463 Mich 590, 599; 623 NW2d 884 (2001). For a defendant to
show that he or she was so deprived of the effective assistance of counsel “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.” People v Pickens, 446 Mich 298, 338; 521 NW2d
797 (1994). “The proper measure of attorney performance remains simply reasonableness under
prevailing professional norms.” Strickland v Washington, 466 US 668, 688; 104 S Ct 2052; 80 L
Ed 2d 674 (1984); see also People v Riley, 468 Mich 135, 140; 659 NW2d 611 (2003).
However, “counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 US at

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690. Accordingly, a defendant pressing a claim of ineffective assistance of counsel “must
overcome a strong presumption that counsel’s assistance constituted sound trial strategy.”
People v Henry, 239 Mich App 140, 146; 607 NW2d 767 (1999). To show prejudice, “the
defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 US at 694.

        In this case, the prosecutor, and our dissenting colleague, maintain that trial counsel
decided not to request a self-defense instruction for strategic reasons related to combating the
felony charges; suggesting that a self-defense instruction would have been incompatible with the
defense’s position that defendant never pointed her gun at her aggressor or anyone else. Indeed,
trial counsel may have chosen to focus more on the felonies involving defendant’s use of her
gun, and if so that strategy was clearly successful regarding the felony counts.

        However, trial counsel clearly attempted to establish that defendant was in a defensive
position throughout the entire confrontation, as indicated in defense’s opening statement and
closing argument mentioned above. We believe that inclusion of self-defense assertions by
defense counsel at both ends of the trial rebut the idea that defense counsel avoided the jury
instruction for fear of placing too much emphasis on an allegedly weaker claim of self-defense.
Moreover, who the aggressor truly was is wholly independent from the factual question of
whether defendant later pointed her gun at the victim. It seems unlikely that the jury would have
been unable to distinguish the issues of who started the first fight, during which defendant had no
gun, and whether defendant, having retrieved her gun in connection with a resumption of
physical hostilities, pointed it at the victim.2 Moreover, defense counsel could have underscored
that distinction by asking for a self-defense instruction tailored specifically to the misdemeanor
domestic assault charge. Because it is undisputed that the gun was not present during the first
skirmish, emphasizing that defendant did not point the gun at anyone would have had no bearing
on anything that took place during that first round of fighting. Regarding this first barrage of
fisticuffs, self-defense was the only defense presented; therefore, omission of a corresponding
jury instruction as a trial strategy is incomprehensible. In fact, defense counsel would have done
well to put self-defense forward for the jury’s consideration in the felony counts as well, in case
the jury had concluded that defendant did in fact point the gun at the victim. For these reasons,
we must conclude that defense counsel’s failure to request a self-defense instruction was not part
of trial strategy and was therefore an aspect of performance that fell below an objectively
reasonable standard.

       That defendant suffered prejudice from the error is apparent. It is certainly possible that
the jury ultimately believed that defendant started the fight and retrieved her gun without a



2
  We disagree with the dissent’s notion that a self-defense instruction leading to defendant’s
acquittal of domestic violence would somehow cause a conviction under one or both of the
felonies, and that this was the fear of defense counsel and his reason for omission of the
instruction. We find it entirely possible, and even probable, that had the instruction been
provided to the jury, defendant would have been acquitted of all charges.


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justifiable self-defense purpose, but simply never pointed it at the victim. However, the case was
largely a credibility contest between defendant and the victim,3 who both testified, and the jury’s
determinations of not guilty on the two felony counts weigh strongly in favor of a more likely
conclusion that the jury found defendant to be the more credible of the two individuals. It is
undisputed that there was a fight during which defendant pulled the victim’s hair; defendant
admitted this on the stand, thereby confessing to committing a domestic assault. However, the
jury instructions as given did not allow for a finding of not guilty of domestic assault by reason
of self-defense. Because of the defendant’s confession on the stand, coupled with the jury’s
inability to consider self-defense, the jury really had no choice but to find defendant guilty of
domestic assault. Under these circumstances, there certainly is a reasonable probability that the
outcome of the case would have been different had a self-defense instruction been requested and
provided to the jury.

                                       III. CONCLUSION

        For these reasons, we conclude that defendant has put forth a meritorious claim of
ineffective assistance of counsel. We therefore reverse her conviction of domestic assault and
remand this case to the trial court for further proceedings consistent with this opinion. We do not
retain jurisdiction.

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Jane E. Markey




3
  The dissent asserts that “[defendant] was not a particularly good witness” and states that she
was hostile on the stand and admitted that she had been drinking at the time of the incident.
However, the dissent fails to include similar discrediting characteristics regarding the victim.
For instance, the victim’s statements admitting her own drinking that night, her contradictory
testimony there were four fights, later changed to only three, and most alarming was her
extensive testimony on direct exam regarding the text message and how it was the start of the
altercation, including what it said and when she received it, contradicted on cross exam by the
victim’s statement: “I don’t actually – didn’t remember getting that text message until the day
that we went to court.” If the defendant is characterized as “not a particularly good witness,” the
victim may be characterized as a flat out bad one.


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