                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 16, 2015
              Plaintiff-Appellee,

v                                                                  No. 318572
                                                                   Macomb Circuit Court
MICHAEL JOSEPH LOUKAS,                                             LC No. 2012-003522-FH

              Defendant-Appellant.


Before: HOEKSTRA, P.J., and JANSEN and METER, JJ.

PER CURIAM.

        Defendant was convicted after a jury trial of first-degree home invasion, MCL
750.110a(2)(b). He was sentenced as a habitual offender, fourth offense, MCL 769.12, to serve a
prison term of to 20 years to 40 years. Defendant appeals by right, and we affirm.

                                           I. FACTS

        Katieva Shipp testified that around 11:00 a.m. or 11:30 a.m. on June 29, 2012, she and
her daughter were lying in bed when she heard the sound of “change” and “flip-flops” coming
from the living room area of her home. Shipp testified that she got out of bed, picked up a vase
that was on the side of her dresser, and “peeked around the corner.” She testified that she saw a
man standing by her bathroom door, they looked at each other, she screamed, and the man ran
away. A neighbor called the police, and Shipp talked to the dispatcher. Shipp told the dispatcher
that the suspect wore a turquoise tank top, shorts, flip-flops, and had long hair. Center Line
Police Department Detective Curt Winn, who was dispatched to the scene, testified that he
observed a man, defendant, wearing a turquoise tank top standing and then walking on the grass
outside of Shipp’s property. In court, Shipp identified defendant as the man she saw inside her
house.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant argues that he was denied effective assistance of counsel where his trial
attorney failed to investigate and present the defense of involuntary intoxication. Defendant




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sought remand for the purpose of holding a Ginther1 hearing on this issue, and we granted the
motion. People v Loukas, unpublished order of the Court of Appeals, entered August 21, 2014
(Docket Nos. 318572). On remand, after an evidentiary hearing, the court concluded there was
no evidence that defendant took any drugs. The trial court also concluded that even if defendant
presented the defense of involuntary intoxication, it would more than likely have failed because
defendant voluntarily took Thorazine after reading about its possible side effects.

        “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “A
judge first must find the facts, and then must decide whether those facts constitute a violation of
the defendant’s constitutional right to effective assistance of counsel.” Id. “This Court reviews a
trial court’s factual findings for clear error and reviews de novo questions of constitutional law”
People v Dendel, 481 Mich 114, 124; 748 NW2d 859, amended on other grounds 481 Mich 1201
(2008). “A finding is clearly erroneous when, although there is evidence to support it, the
reviewing court, on the whole record, is left with the definite and firm conviction that a mistake
has been made.” Id. at 130.

        “To prove that defense counsel was not effective, the defendant must show that (1)
defense counsel’s performance was so deficient that it fell below an objective standard of
reasonableness and (2) there is a reasonable probability that defense counsel’s deficient
performance prejudiced the defendant.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266
(2012). “The defendant was prejudiced if, but for defense counsel’s errors, the result of the
proceeding would have been different.” Id. at 81. “A defendant may meet this burden even if
the errors of counsel cannot be shown by a preponderance of the evidence to have determined the
outcome.” People v Trakhtenberg, 493 Mich 38, 56; 826 NW2d 136 (2012) (internal quotation
marks and citation omitted).

        Defendant’s trial counsel admitted at the Ginther hearing that she “had no strategic
reason not to raise the defense.” Counsel admitted that she never actually researched the
involuntary intoxication defense, instead relying on her recollection of its parameters. She
indicated that her understanding of the defense was that it applied where a person did not
knowingly consume a substance. This is inaccurate. The defense actually requires voluntary
consumption. See MCL 768.37.2 Defendant testified that he took Thorazine on the day in


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
    The statute provides as follows:
                 (1) Except as provided in subsection (2), it is not a defense to any crime
         that the defendant was, at that time, under the influence of or impaired by a
         voluntarily and knowingly consumed alcoholic liquor, drug, including a
         controlled substance, other substance or compound, or combination of alcoholic
         liquor, drug, or other substance or compound.

                (2) It is an affirmative defense to a specific intent crime, for which the
         defendant has the burden of proof by a preponderance of the evidence, that he or
         she voluntarily consumed a legally obtained and properly used medication or


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question, and he produced his prescriptions. Thus, he presented evidence that he voluntarily
consumed a legally obtained medication, as required by the intoxication defense.

        An expert knowledgeable about the use and effects of Thorazine explained that aside
from its intended effect, Thorazine has “quite a few other effects,” including “anticholinergic
effects” such as “a lot of sedation” and “an effect on the memory.” The expert also testified that
Thorazine has “an effect on orientation and the ability to think straight.” She opined that there
would be no reason for a patient to expect to experience a side effect in the absence of advice
from a doctor. Defendant testified that he read of the side effects of Thorazine, but did not
expect them to occur. He denied that his doctor talked with him about the side effects of
Thorazine when he prescribed it. Accordingly, the trial court erred when it determined that
defendant did not present evidence to establish the elements of the intoxication defense.

       Nonetheless, defendant cannot establish the requisite prejudice. Defendant argues that
there might have been a different outcome had the jury heard that he took Thorazine for the first
time and heard about its side effects. A different outcome would be possible if the jury found
defendant to be credible and believed his testimony. However, as plaintiff argues, had defendant
taken the stand and testified about his alleged intoxication, he would have opened the door to
evidence about his prior convictions for breaking and entering under MRE 404(b). Such
evidence would be highly inculpatory.

              III. THE CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE

        Defendant argues that the trial court denied his constitutional right to present a defense in
an off-the-record ruling that forbid his trial counsel from presenting the intoxication defense.
This Court reviews de novo whether defendant suffered a deprivation of his constitutional right
to present a defense. People v Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009).

        “There is no question that a criminal defendant has a state and federal constitutional right
to present a defense.” People v Hayes, 421 Mich 271, 278; 364 NW2d 635 (1984). However,
“[a]lthough the right to present a defense is a fundamental element of due process, it is not an
absolute right.” Id. at 279. “The accused must still comply with established rules of procedure
and evidence designed to assure both fairness and reliability in the ascertainment of guilt and
innocence.” Id. (internal quotation marks and citation omitted).

       There was contradictory testimony at the Ginther hearing regarding whether the trial
court made an off-the-record ruling forbidding defense counsel from presenting the intoxication
defense. The prosecutor cited a motion he made to support his assertion that the court forbade
defense counsel from raising the intoxication defense:

              Your Honor, while we’re killing time, I was going to make a motion in
       limine just to double check, because of the way the case was transpired up until
       today, and then the statements at right before we broke for lunch, it was my

       other substance and did not know and reasonably should not have known that he
       or she would become intoxicated or impaired.


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       understanding that counsel always had a, was going to proceed with the defense,
       the affirmative defense of intoxication. Given the way we wrapped up this
       morning, and the people calling two witnesses, and the defense not calling
       witnesses, I’d ask that if in some way counsel wants to get into that defense
       through the officer in charge, as he testifies, that would be improper questions on
       his part. So if she’s consistent with the way she wanted to defend this case
       leading up until today, at least the representations to the people, I don’t know how
       she’s going to do that with the two witnesses that we’re calling and calling no
       witnesses.

The prosecutor asked defense counsel if she remembered him making the motion at trial, and
counsel indicated that she did remember it. The prosecutor also asked defense counsel if he had
provided an accurate summary of what happened at trial, and defense counsel replied that it was
correct.

       Immediately after the prosecutor made his motion in limine, the following exchange
occurred:

              Defense counsel: I don’t know what he’s talking about, Your Honor.

              The court: I don’t think there’d be expert opinion, but she could certainly
       question as to his state of mind.

              Prosecutor: Exactly.

              The court: Okay.

               Defense counsel: And I’ve already, I don’t know what he’s talking about.
       He, we talked about it yesterday, he brought it up this morning, I said it’s not an
       issue. If it was, I’d raise it with the prosecutor and the court.

              The court: I guess we’ll go with it’s not an issue.

              Defense counsel: And I already told him that. So, I mean, I think he
       should probably get past it. It’s not happening.

              The court: Okay. It was brought up yesterday in chambers.

               Defense counsel: Exactly, and I, he brought it up before we went to lunch,
       and I told him—

              The court: Okay. Well, now—

               Defense counsel: Well, I, I think if we could check the record, I think I
       told him that it was not going to be part of my case.

              The court: Okay. We’re clear then.


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               Prosecutor: Very good. Thank you, Judge.

               Defense counsel: Crystal.

        The prosecutor’s motion and the subsequent discussion do not directly evidence any
ruling by the court regarding the involuntary intoxication defense. At best, the discussion shows
that the parties discussed the intoxication defense in judicial chambers, and the court might have
made a ruling at that time. However, if the court made a ruling forbidding defense counsel from
raising the intoxication defense as the prosecutor claimed, then it is unclear why the prosecutor
thought that counsel “was going to proceed with the . . . affirmative defense of intoxication.”
Additionally, defense counsel later testified that her understanding of the judge’s off-the-record
ruling was that evidence of defendant’s medication would not be allowed because she failed to
lay a foundation for it. Thus, there is no evidence that the trial court denied defendant the right
to present his defense.

       Affirmed.



                                                            /s/ Joel P. Hoekstra
                                                            /s/ Kathleen Jansen
                                                            /s/ Patrick M. Meter




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