Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  November 16, 2018                                                                  Stephen J. Markman,
                                                                                                Chief Justice

                                                                                           Brian K. Zahra
                                                                                   Bridget M. McCormack
  156223                                                                                 David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                          Kurtis T. Wilder
                                                                                    Elizabeth T. Clement,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                   Justices
            Plaintiff-Appellant,
  v                                                       SC: 156223
                                                          COA: 327296
                                                          Kalamazoo CC: 2014-000714-FC
  BRIAN KEITH ROBERTS,
            Defendant-Appellee.

  _________________________________________/

         On October 9, 2018, the Court heard oral argument on the application for leave to
  appeal the June 6, 2017 judgment of the Court of Appeals. On order of the Court, the
  application is again considered, and it is DENIED, because we are not persuaded that the
  question presented should be reviewed by this Court.

         MARKMAN, C.J. (dissenting)

         I respectfully dissent from this Court’s order denying leave to appeal. Defendant
  argues that defense counsel performed deficiently because he did not present expert
  testimony to counter that presented by the prosecutor concerning the two-year-old
  victim’s abusive head trauma (AHT) and that this deficiency was prejudicial to his
  defense, resulting in the ineffective assistance of counsel. For the reasons set forth in
  Justice ZAHRA’s dissent, I disagree that defense counsel performed deficiently and write
  separately to assert that defendant is not entitled to a new trial for the additional reason
  that he has failed to show prejudice.1


  1
    “ ‘To justify reversal under either the federal or state constitutions, a convicted
  defendant must satisfy the two-part test articulated by the United States Supreme Court in
  [Strickland v Washington, 466 US 668 (1984)].’ ” People v Dendel, 481 Mich 114, 124-
  125 (2008), amended 481 Mich 1201 (2008), quoting People v Carbin, 463 Mich 590,
  600 (2001). “First, the defendant must show that counsel’s performance was deficient.”
  Dendel, 481 Mich at 125 (quotation marks and citations omitted). “Second, the
                                                                                          2


       “ ‘To demonstrate prejudice, the defendant must show the existence of a
reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different.’ ” People v Dendel, 481 Mich 114, 125 (2008), amended 481 Mich
1201 (2008), quoting People v Carbin, 463 Mich 590, 600 (2001). “ ‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’ ” Dendel,
481 Mich at 125, quoting Strickland v Washington, 466 US 668, 694 (1984). “Strickland
asks whether it is ‘reasonably likely’ the result would have been different.” Harrington v
Richter, 562 US 86, 111 (2011), quoting Strickland, 466 US at 696. “This does not
require a showing that counsel’s actions ‘more likely than not altered the outcome,’ but
the difference between Strickland’s prejudice standard and a more-probable-than-not
standard is slight and matters ‘only in the rarest case.’ ” Id. at 111-112, quoting
Strickland, 466 US at 693, 697.

        At trial, defense counsel asserted that defendant accidentally caused the fatal
injuries by pulling the child’s ankles when the child was standing, which resulted in the
child losing his balance and striking his head on the floor. In contrast, the prosecutor
asserted that defendant intentionally caused the injuries by handling the child violently--
either by shaking the child or causing his head to forcefully strike the floor, or both.
Thus, because the parties did not dispute that defendant caused the injuries, the critical
factual dispute at trial concerned whether he possessed the requisite intent for the charges
of second-degree murder and felony murder with the predicate felony of first-degree
child abuse. “The intent necessary for second-degree murder is the intent to kill, the
intent to inflict great bodily harm, or the willful and wanton disregard for whether death
will result.” People v Robinson, 475 Mich 1, 14 (2006). “[T]o be convicted of first-
degree child abuse, a person [must have] ‘knowingly or intentionally cause[d] serious
physical harm or serious mental harm to a child.’ ” People v Maynor, 470 Mich 289, 295
(2004). First-degree child abuse may be the predicate felony for felony murder. See id.
at 293.

       Defendant cannot show prejudice because there existed strong evidence that he
possessed the requisite intent for second-degree murder and felony murder with the
predicate felony of first-degree child abuse, thus sustaining the jury’s verdicts for those
offenses.2

defendant must show that the deficient performance prejudiced the defense.”              Id.
(quotation marks and citations omitted).
2
  The Court of Appeals correctly noted that “[i]t is a violation of double jeopardy to
convict someone of multiple murder counts arising from the death of a single murder
victim,” People v Roberts, unpublished opinion per curiam of the Court of Appeals,
issued June 6, 2017 (Docket No. 327296), p 1 n 1, so the second-degree murder
conviction should be vacated here.
                                                                                            3


        First, defendant altered his story about the fatal injuries multiple times. He
initially told the detective that he had witnessed the child falling down the stairs, and then
he told the detective that he had not witnessed the child falling down the stairs and only
assumed that such a fall had occurred because he heard a thumping sound. Thereafter,
following his arrest a few months after the fatal incident, he told the detective that he had
caused the fatal injuries by pulling the child’s ankles, intending that the child land on his
butt but instead causing the child to lose his balance and strike his head on the floor. In
my judgment, these conflicting statements go beyond innocent lapses of memory and
reflect a desire to conceal incriminating facts from law enforcement. That is, defendant’s
inability consistently to reiterate two critical facts surrounding the fatal incident--
whether he saw them occur or caused them to occur, or both-- is affirmatively indicative
of guilt. See People v Unger, 278 Mich App 210, 225-226 (2008), quoting People v
Cowell, 44 Mich App 623, 625 (1973) (“ ‘[C]onflicting statements tend to show a
consciousness of guilt . . . .’ ”).

        Second, a witness testified that in November 2013, about one month before the
fatal incident, she heard defendant tell the child, “[S]it your bitch ass down for [sic] you
get fucked up. I’m about to beat your ass if you don’t sit down.” Defendant’s conduct
was so shocking to her that when she learned about the child’s death, she went
“downtown” to share her information with the police because she believed that she
“coulda prevent[ed] this from happening if [she] woulda just said something then . . . .”
Such threatening statements to the child tend to show guilt in this child-abuse case. See
People v VanderVliet, 444 Mich 52, 81 n 37 (1993), quoting Imwinkelried, Uncharged
Misconduct Evidence, § 5:10, p 26 (“The courts often admit uncharged misconduct in
child abuse cases when the defendant claims that he or she accidentally injured the
child. . . . If the defendant claims that she intended to merely discipline her child,
evidence of uncharged misconduct may be admissible to establish the defendant’s intent
to injure the child.”).

       Third, there was general agreement among the doctors who testified at trial-- and
at the Ginther3 hearing as well-- that the child had suffered two “subdural hemorrhages,”
which are essentially internal injuries adjacent to the brain.4 One subdural hemorrhage

3
    People v Ginther, 390 Mich 436 (1973).
4
    As a neuropathologist explained at trial:
                 [T]here are actually veins that cover the surface of the brain. . . .
         And so you have these veins that basically sit out here between the dura on
         the top and the brain underneath . . . . And often with impact, literature
         says it doesn’t have to be impact, but often with impact, you’ll have rupture
         of these veins that sit on the surface of the brain. And the rupture of those
         veins are what results in this hemorrhage over the surface of the brain that
                                                                                           4

was apparently suffered weeks before the fatal incident, and the second subdural
hemorrhage was suffered as part of the fatal incident. There was also general agreement
that subdural hemorrhages are caused by the application of force to the head.
Importantly, the child was in defendant’s custody for most of time during which the
weeks-old subdural hemorrhage could have occurred. Perhaps one subdural hemorrhage,
by itself, could have been caused by an accidental fall, as defendant’s experts at the
Ginther hearing testified. However, logic would suggest that two subdural hemorrhages
indicated either a notable coincidence or, more likely given the other evidence, a pattern
of abuse by defendant.

       The incriminating evidence cited above was in addition to the opinion testimony
from prosecutor’s experts that the fatal injuries suffered by the child were indicative of
intentionally inflicted abuse. And as the trial court stated in its opinion and order denying
the motion for a new trial, defendant’s experts only testified at the Ginther hearing that
defendant’s innocent explanation for the fatal injuries was “a possibility.” It strikes me
as unwarranted to grant defendant a new trial on the basis of such vague and tentative
assertions.5 Anything is “possible”; it is only by engaging in a reasoned process of
elimination of one or more alternative possibilities that a jury is able to find guilt beyond
a reasonable doubt when a defendant offers an innocent explanation for allegedly
criminal conduct. Here, even if the experts offered by defendant at the Ginther hearing
had testified at trial and the jury had found them credible, the jury would have been left
with weighing the “possibility” that there was an innocent explanation for the fatal
injuries against the prosecutor’s substantial evidence that those injuries had been
intentionally inflicted, in addition to the contrary nonexpert testimony. On this record, I
discern no basis for concluding that it is “reasonably likely” that the allegedly deficient
performance by defense counsel, i.e., the failure to present such testimony from the two
Ginther hearing experts at trial, was prejudicial to defendant.

       Accordingly, I conclude that defendant failed to show prejudice because the
circumstantial evidence that he possessed the requisite criminal intent for the charges of
which he was convicted was substantial. Thus, for the reasons both set forth above and in
Justice ZAHRA’s dissent, I believe that the trial court did not err by denying defendant’s

       we call subdural. And that’s basically the accepted mechanism for subdural
       hemorrhage.
5
  Indeed, this testimony was not as helpful as the testimony offered at the Ginther hearing
recently assessed in People v Ackley, 497 Mich 381 (2015), in which we concluded that
the defendant was entitled to a new trial because he was denied the effective assistance of
counsel by counsel’s failure altogether to secure expert testimony concerning AHT. In
Ackley, the favorable assertion offered by the defendant’s expert after trial was that the
head injuries “were caused by a likely accidental ‘mild impact.’ ” Id. at 387 (emphasis
added).
                                                                                          5

motion for a new trial and that the Court of Appeals erred by ruling to the contrary.
Consequently, I would reverse the judgment of the Court of Appeals and reinstate the
trial court’s order denying defendant’s motion for a new trial.

         WILDER, J., joins the statement of MARKMAN, C.J.

         ZAHRA, J. (dissenting)

       I respectfully dissent from the Court’s decision to deny the prosecution’s
application. In my view the Court of Appeals failed to provide the trial court’s findings
any measure of deference and improperly relied on this Court’s decision in People v
Ackley.6 Unlike this Court’s decision in Ackley, where the expert himself expressly
informed defense counsel that “ ‘you don’t want me as your defense expert,’ ”7 or Hinton
v Alabama, where defense counsel himself deemed an expert inadequate, 8 or Ceasor v
Ocwieja, where defense counsel wanted to call an expert at trial but failed to petition the
court for fees,9 there is no indication that defense counsel believed Dr. Stephen Guertin to
be unduly biased, inadequate, or unavailable. In fact, all indications suggest the
opposite.10 The United States Supreme Court has made clear that

6
    People v Ackley, 497 Mich 381 (2015).
7
    Id. at 386.
8
 Hinton v Alabama, 571 US 263, 275 (2014) (holding that “the unreasonable failure to
understand the resources that state law made available to [defense counsel]—that caused
counsel to employ an expert that he himself deemed inadequate”—was an “inexcusable
mistake of law”).
9
    Ceasor v Ocwieja, 655 Fed Appx 263, 273, 285 (2018).
10
   Defendant’s new assertion that Dr. Guertin was “unqualified” to render an opinion on
child abuse strains common sense. Indeed, the Court of Appeals properly rejected this
very claim in People v Ackley, unpublished per curiam opinion of the Court of Appeals,
issued August 2, 2018 (Docket No. 336063), p 4, lv pending (Docket No. 158455):

                As an initial matter, while Dr. Guertin was not a forensic
         pathologist, it defies sense to conclude that a doctor with extensive
         experience treating trauma victims would lack insight into what kinds of
         traumas tend to lead to what kinds of injuries. Expertise in pediatric
         intensive care inescapably has considerable crossover into the medical
         treatment portion of expertise in child abuse. Dr. Guertin was the Director
         of the Children’s Center at Sparrow Hospital, Director of the Pediatric
         Intensive Care Unit, and a physician member of [the] Child Safety
         Program. He is also a member of two Child Death Review teams from both
                                                                                           6

         the inadequate assistance of counsel . . . does not consist of the hiring of an
         expert who, though qualified, was not qualified enough. The selection of
         an expert witness is a paradigmatic example of the type of “strategic
         choic[e]” that, when made “after thorough investigation of [the] law and
         facts,” is “virtually unchallengeable.” We do not today launch federal
         courts into examination of the relative qualifications of experts hired and
         experts that might have been hired.[11]

         Here, the trial court found that during

         discussions with Dr. Guertin, [defense counsel] weighed the advantage of
         presenting the expert pediatrician, who apparently would have given
         testimony that the fatal injuries Nehemiah suffered could have been
         accidental, against further testimony that may have revealed that Nehemiah
         had otherwise suffered physical abuse in other areas of his body. In
         balancing the impact of each, trial counsel concluded that it would be
         sagacious to avoid the topic of possible other physical abuse altogether in
         favor of obtaining at least the minimal concession from one or more of the
         government’s witnesses that an accident might have caused the injuries.

       The Court of Appeals’ opinion does not mention any of the above facts the trial
court relied upon to evaluate defense counsel’s performance. Rather, the panel
substituted its own judgement and found that “[defense counsel] did not demonstrate
sufficient understanding of the pertinent medical controversy concerning the amount of




         Eaton and Ingham County for almost twenty years. He sees about two
         hundred to two hundred fifty children a year who are referred because of
         the possibility of abuse or neglect, and he is a practicing physician who sees
         actual patients. He testified that he attended autopsies and performed death
         reviews. Clearly, Dr. Guertin did not need to be qualified as an expert in
         child abuse to be able to render expert testimony concerning the genesis of
         certain injuries.

While I normally would not cite a case currently pending review from this Court,
defendant Ackley does not challenge Dr. Guertin’s qualifications in his application to this
Court.
11
     Hinton, 571 US at 274-275 (citation omitted; emphasis added).
                                                                                                                 7

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.”12 Thus, the panel
not only failed to review for clear error the trial court’s findings of fact, but also failed to
appreciate that “[j]udicial scrutiny of counsel’s performance must be highly deferential”
and “must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance . . . .”13 Indeed, as explained in Strickland v
Washington, “[t]hese standards require no special amplification in order to define
counsel’s duty to investigate, the duty at issue in this case.”14

          MARKMAN, C.J., and WILDER, J., join the statement of ZAHRA, J.




12
   People v Roberts, unpublished per curiam opinion of the Court of Appeals, issued June
6, 2017 (Docket No. 327296), p 9.
13
     Strickland v Washington, 466 US 668, 689 (1984).
14
     Id. at 690.




                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           November 16, 2018
          s1113
                                                                               Clerk
