                          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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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. 2014-249495-FH

               Defendant-Appellant.


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

M. J. KELLY, J. (dissenting).

       Because I believe that defendant was not deprived of the effective assistance of counsel, I
respectfully dissent.

        Before the selection of the jury, the prosecutor moved to amend the general information
to add a count of felony firearm. Defendant objected and the court granted the motion.
Immediately prior to the motion, the court asked defense counsel, “Your client understands that
if the prosecutor amends and she’s found guilty, she’s going to spend a minimum of two years in
state prison?” Defense counsel and defendant acknowledged this on the record, in addition to
her rejection of the prosecutor’s plea offer.

        The case thus proceeded to trial with defendant facing three counts: two felonies
(felonious assault and felony firearm) and one misdemeanor (domestic assault). In his opening
statement, it was clear that defense counsel focused his defense on the far more serious charges
involving the gun:

               The boyfriend will tell you that when he saw her -- my client with a gun
       he was in the process of moving Lindsey, her belongings, and her children out.
       He wasn’t in the living room, he saw her in the living room; Lindsey was nowhere
       near the place.

               In order to threaten somebody with an object you obviously have to be in
       the same place. He’s going to testify he saw the gun in her hand. It was pointed
       straight down at the floor. She wasn’t waiving it around. She wasn’t making any
       threats with the gun. Most importantly, she wasn’t pointing it at anybody. It’s
       that simple.


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       Likewise, most of his closing argument was devoted to challenging the felonies.

        The majority is correct in that we are limited in this review to mistakes apparent on the
record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). But where I believe
the majority is in error is that they do not give enough deference to the range of possible reasons
that defense counsel may have had for proceeding as he did. As we stated in People v Gioglio
(On Remand), 296 Mich App 12, 21-23; 815 NW2d 589 (2012), remanded for resentencing 493
Mich 864, courts must indulge a strong presumption that defense counsel acted reasonably:

       The Strickland test recognizes that the “benchmark for judging any claim of
       ineffectiveness must be whether counsel’s conduct so undermined the proper
       functioning of the adversarial process that the trial cannot be relied on as having
       produced a just result.” [Strickland v Washington, 466 US 668, 686; 104 S Ct
       2052; 80 L Ed 2d 674 (1984)]. To establish a claim of ineffective assistance of
       counsel, the defendant must show that “counsel’s representation fell below an
       objective standard of reasonableness” under prevailing professional norms and
       that there is a “reasonable probability that, but for counsel's unprofessional errors,
       the result of the proceeding would have been different.” Id. at 688, 694.

                The first prong of this test requires the defendant to identify those acts or
       omissions of counsel that the defendant alleges were not the result of reasonable
       professional judgment. Id. at 690. The reviewing court must then determine
       whether “in light of all the circumstances, the identified acts or omissions were
       outside the wide range of professionally competent assistance.” Id. Because
       there are countless ways to provide effective assistance in any given case, in
       reviewing a claim that counsel was ineffective courts must “indulge a strong
       presumption that counsel’s conduct falls within the wide range of reasonable
       professional assistance.” Id. at 689. Reviewing courts are not only required to
       give counsel the benefit of the doubt with this presumption, they are required to
       affirmatively entertain the range of possible” reasons that counsel may have had
       for proceeding as he or she did. Cullen v Pinholster, 563 US ___; 131 S Ct 1388,
       1407; 179 L Ed 2d 557 (2011). That inquiry is objective; although the reviewing
       court may not engage in a post hoc rationalization of the counsel’s decision-
       making that contradicts the available evidence, neither may courts insist that
       counsel confirm every aspect of the strategic basis for his or her actions.
       Harrington v Richter, 562 US ___; 131 S Ct 770, 790; 178 L Ed 2d 624 (2011).
       Accordingly, a reviewing court must conclude that the act or omission of the
       defendant’s trial counsel fell within the range of reasonable professional conduct
       if, after affirmatively entertaining the range of possible reasons for the act or
       omission under the facts known to the reviewing court, there might have been a
       legitimate strategic reason for the act or omission. Pinholster, 563 US at ___; 131
       S Ct at 1407; see, e.g., People v Vaughn, 291 Mich App 183, 197; 804 NW2d 764
       (2010) (explaining that there were several valid reasons why the defendant’s trial
       counsel might not have objected to the trial court’s decision to close the
       courtroom during jury voir dire and concluding on that basis that the defendant
       had failed to overcome the presumption that his trial counsel’s decision was a
       matter of sound trial strategy).

                                                -2-
        Defense counsel was successful in gaining acquittals of the two felonies that would have
landed his client in prison. His client was not a particularly good witness. It was apparent from
the record that she was hostile at times, admitted she had been drinking, accused not only the
victim, but every investigating police officer of being a liar and apparently was threatening to sue
the officers during her arrest. It may well be that defense counsel chose not to place more
emphasis on self-defense for fear that, if the jury acquitted her of domestic violence, they might
have convicted her of the more serious charges. There was also testimony from the victim that
defendant attacked her on three separate occasions and that, although defendant testified that she
was defending herself in the first round, she denied that the subsequent rounds ever occurred.
There was also testimony that defendant was the initial aggressor. Under the circumstances,
defense counsel might reasonably have determined that too much emphasis on a weaker claim of
self-defense could jeopardize his efforts to refute the more serious charges. See People v Wise,
134 Mich App 82, 97-99; 351 NW2d 255 (1984) (stating that it may be legitimate trial strategy
to admit that the defendant committed a less serious crime).

        It may well be that other defense counsel would have chosen to ask for an instruction on
self-defense in this case. But on this record, I cannot say that the decision of counsel in this
action fell below an objective standard of reasonableness and that there was not a strategic
reason for doing so. Consequently, I would affirm.

                                                             /s/ Michael J. Kelly




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