            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 25, 2019
               Plaintiff-Appellee / Cross-
               Appellant,

v                                                                    No. 337860
                                                                     Calhoun Circuit Court
SHAWN DELANO BROWN,                                                  LC No. 2010-001368-FC

               Defendant-Appellant / Cross-
               Appellee.


Before: GLEICHER, P.J., and STEPHENS and O’BRIEN, JJ.

O’BRIEN, J. (concurring in part and dissenting in part)

       I concur with most of the majority opinion. I only disagree that defendant’s trial counsel
was ineffective. I therefore respectfully dissent to that portion of the majority’s opinion.

        “In order to obtain a new trial, a defendant must show that (1) counsel’s performance fell
below an objective standard of reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been different.” People v
Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). Effective assistance is “strongly
presumed,” People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012), and the defendant
bears the burden of proving otherwise, People v Hampton, 176 Mich App 383, 385; 439 NW2d
365 (1989). Counsel’s performance cannot be judged with the “benefit of hindsight.” People v
Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008).

        I disagree with the majority that this case is similar to People v Ackley, 497 Mich 381;
870 NW2d 858 (2015). In Ackley, defense counsel was initially given funds to retain an expert
witness. Id. at 389-390. He engaged only one expert who told him that he “credited the
prosecution’s . . . theory and disagreed with defense’s theory,” but “advised counsel to consult”
with Dr. Shuman “who not only was on the defendant’s side of the [relevant] debate generally,
but was significantly more likely to agree with the defendant’s claim that the child’s death in this
case must have been accidental.” Id. at 390. The expert said that Dr. Shuman was “more
qualified” and “the best expert in these types of situations.” Id. Defendant’s counsel in Ackley



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ignored this advice to consult with Dr. Shuman, which the Ackley Court held was objectively
unreasonable. Id. at 390-392. The Court explained that “counsel’s sparse efforts” failed to
satisfy “his duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Id. at 391 (quotation marks and citation omitted).

        In contrast, defense counsel here filed a motion for funds for the appointment of an expert
and the motion was denied. Defense counsel, without funds, attempted to secure funds for an
expert from defendant’s family and friends. When that failed, defense counsel used his retainer
funds to pay the consultation fees for two local experts that he found after asking other lawyers
and forensic pathologists for names of doctors who could be helpful. Those two experts,
however, told defense counsel that, after reviewing the medical records, they agreed with the
prosecution’s expert. Neither expert directed counsel to an expert who could testify favorably
for defendant, nor did either expert suggest that, with more searching, defense counsel could find
such an expert. On this record, I would hold that because (1) defense counsel consulted with two
experts who both told him that they agreed with the prosecution’s expert and (2) neither expert
provided information that would alert defense counsel to the possibility that a different expert
would provide favorable testimony, defense counsel satisfied his duty to make reasonable
investigations. While defense counsel did not continue looking for an expert after consulting
with the first two, he was not required to continue shopping for an expert until he found one who
could offer favorable testimony. See id. at 392.

         Further, unlike in Ackley, defense counsel here was versed in the technical subject matter
critical to the case. Before trial, defense counsel spent much time familiarizing himself with the
medical issues that would be relevant at trial. He contacted a vascular surgeon that he knew to
educate himself about the medical terminology and help with some interpretation of the medical
records. He also independently researched the medical issues at the University of Michigan’s
medical school library. Lastly, he spent time interviewing the prosecution’s experts and
ultimately determined that one of them—Dr. Beck—was helpful to his client’s case. At trial,
defense counsel elicited testimony from Dr. Beck that was, in fact, beneficial to defendant’s case.
This in turn supports that defense counsel was sufficiently equipped to challenge the
prosecution’s experts, like the trial court found. And as a result of counsel’s efforts, defendant
was not convicted of murder as charged, but of the less serious crimes of voluntary manslaughter
and second-degree child abuse.

        Based on defense counsel’s efforts attempting to secure an expert and educate himself on
the subject matter critical to this case, I would conclude that defense counsel provided
objectively reasonable assistance, despite that he ultimately did not call an expert witness at trial.

        The majority concludes that defense counsel was also ineffective because he failed to get
the recording of Reinstein’s interview with defendant admitted into trial. According to the
majority, “[d]efense counsel had no plan for its admission and unreasonably relied on the
acquiescence of the prosecutor.” Yet as the majority acknowledges, defense counsel argued for
the recoding’s admission under three different rules of evidence. The majority also believes that
defense counsel’s performance was deficient because “[a]n argument could have been made for
admission of the recording” under a fourth rule of evidence—MRE 803(3). Yet the majority
does not conclude that the evidence would have in fact been admissible under this rule. See
People v Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015) (explaining that defense

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counsel’s failure “advance a meritless argument . . . does not constitute ineffective assistance of
counsel”). Regardless, in my opinion, neither defense counsel’s repeated attempts to have the
evidence admitted nor his failure to advance a fourth argument that could have been made for its
admission amounted to an objectively unreasonable performance.

        For these reasons, I respectfully dissent to the portion of the majority’s opinion holding
that defense counsel provided ineffective assistance.



                                                            /s/ Colleen A. O’Brien




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