Opinion
No. 348132
08-20-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ADAM MICHAEL BALCER, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Tuscola Circuit Court
LC No. 18-014534-FC Before: MARKEY, P.J., and K. F. KELLY and TUKEL, JJ. PER CURIAM.
Defendant appeals by right his jury trial convictions of two counts of first-degree premeditated murder, MCL 750.316(1)(a), one count of first-degree felony murder, MCL 750.316(1)(b), one count of unlawful imprisonment, MCL 750.349b, three counts of tampering with evidence, MCL 750.483a(6)(b), three counts of felon in possession of a firearm, MCL 750.224f, one count of felon in possession of ammunition, MCL 750.224f(6), and six counts of possession of a firearm during the commission of a felony (felony-firearm) MCL 750.227b. Defendant was sentenced to life in prison without the possibility of parole for the first-degree murder convictions. On appeal, defendant argues that his trial counsel was ineffective for raising a defense of diminished mental capacity, which is no longer a viable defense in Michigan, and for failing to consult with or call expert witnesses. Defendant also contends that People v Carpenter, 464 Mich 223; 627 NW2d 276 (2001), which annulled the defense of diminished capacity, was wrongly decided and should be overruled. We affirm.
I. BACKGROUND
Defendant's convictions stem from the murders of his landlord, Wendy Brodick, and her stepson, Peter Brodick, Jr. Shortly before the homicides, Wendy had served defendant with eviction papers. Defendant was extremely angry about the eviction, and he told Jonathan Rice, his friend and business partner, that "he was gonna whack that bitch." Defendant additionally told Rice that he hated Peter and that if Peter got in the way, defendant would "smoke him too." On the morning of the murders, March 30, 2018, defendant did a search on his cell phone regarding the nature of the injuries one would sustain if shot with a .22 caliber firearm. Later, defendant walked to Wendy's home, where Peter also resided, carrying a .22 caliber revolver, which he claimed that he always carried on his person. Defendant testified that he went to her house because he planned to go with her to load some wood in her truck, which he could then sell for rent money to pay Wendy. Defendant and Wendy left her home in the truck, and the two soon became embroiled in an argument. According to defendant, he asked Wendy to stop the truck, which she did, and defendant then began to exit the vehicle. Defendant testified that Wendy said something that made him angry and that he reached back into the truck and shot her in the cheek and the back of the neck. We note that in his statement to the police, defendant asserted that he shot Wendy while she was still driving the truck.
Defendant and Rice were in the business of tearing down old barns and selling the wood from the structures.
Defendant pushed Wendy's body into the passenger seat of the truck, and he drove her to a farm where he was tearing down a barn as part of his business venture. Defendant concealed Wendy's body under debris near the barn. Defendant then drove back to Wendy's house and confronted Peter, telling Peter that he had killed Wendy. Defendant claimed that Peter began yelling, that a tussle ensued between the two, and that the gun went off during the scuffle. Peter was shot in the left temple. Defendant covered Peter's body with jackets and left the house.
Defendant returned to his own home. Soon thereafter, Rice drove up to defendant's house in his truck, having just completed a delivery of wood. When Rice arrived, defendant was outside pouring gasoline into a lit burn barrel. Rice noticed that defendant was wearing different clothes from those he had been wearing earlier in the day. Rice also observed that defendant had a knot on his cheek that looked "like he had been punched." Almost immediately, defendant showed Rice the revolver and told him "it's dirty, it has one on it, it has to go." Believing something was wrong, Rice began to leave, and defendant opened Rice's passenger door and placed his blood-stained work boots on the floor. Defendant asked Rice to "get rid of them." Rice left and went back to his house. Once Rice was gone, defendant took his girlfriend's vehicle and drove to a nearby pond. Defendant buried the .22 caliber revolver in some mud next to a log near the pond. Suspecting that defendant had killed Wendy, Rice visited a family member who was in law enforcement and told him what had happened. This ultimately led to the discovery of the bodies and defendant's arrest. After several interrogations, defendant admitted to the killings.
During the trial, defense counsel was able to elicit testimony about defendant's purported bipolar disorder and that he had stopped taking his medication for it before the shootings. Defendant testified that he struggled with bipolar disorder, experiencing ups and downs and severe depression. Defendant explained that he would go through periods where he felt invincible, which would last days to weeks. Defendant's girlfriend testified that before the murders, she noticed changes in defendant as a result of nightmares and lack of sleep. According to her, defendant was "always really fidgety and moved around a lot . . . ."
The jury convicted defendant as indicated above, and he now appeals.
II. ANALYSIS
A. STANDARDS OF REVIEW
"A claim of ineffective assistance of counsel is a mixed question of law and fact." People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). "A trial court's findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo." Id. When a defendant fails to preserve a claim of ineffective assistance of counsel by not seeking a Ginther hearing in the trial court, this Court's "review is limited to mistakes apparent on the record." Id.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
B. DISCUSSION
Defendant first argues that trial counsel was ineffective for raising a diminished capacity defense, which, as he correctly points out, is impermissible under Carpenter. In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), our Supreme Court recited the governing principles applicable to a claim of ineffective assistance of counsel:
To justify reversal under either the federal or state constitutions, a convicted defendant must satisfy [a] two-part test . . . . First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not performing as the counsel guaranteed by the Sixth Amendment. In so doing, the defendant must overcome a strong presumption that counsel's performance constituted sound trial strategy. Second, the defendant must show that the deficient performance prejudiced the defense. 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim. [Quotation marks and citations omitted.]
An attorney's performance is deficient if the representation falls below an objective standard of reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). "[T]his Court will not substitute its judgment for that of counsel regarding matters of trial strategy." People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). We cannot, however, insulate the review of counsel's performance by simply calling it trial strategy. People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). Initially, this Court must determine whether strategic choices were made after less than complete investigation, with any choice being reasonable only to the extent that reasonable professional judgment supported the limitations on investigation. Id.; see also People v Ackley, 497 Mich 381, 389; 870 NW2d 858 (2015).
In Carpenter, 464 Mich at 236, our Supreme Court rejected the continuing viability of the defense of diminished mental capacity, holding:
[W]e agree with the prosecution that our Legislature, by enacting the comprehensive statutory framework described above, has already conclusively determined when mental incapacity can serve as a basis for relieving one from criminal responsibility. We conclude that, through this framework, the Legislature has created an all or nothing insanity defense. Central to our holding is the fact that the Legislature has already contemplated and addressed situations involving persons who are mentally ill or retarded yet not legally insane. As noted above, such a person may be found "guilty but mentally ill" and must be sentenced in the same manner as any other defendant committing the same offense and subject to psychiatric evaluation and treatment. MCL 768.36(3). Through this statutory provision, the Legislature has demonstrated its policy choice that evidence of mental incapacity short of insanity cannot be used to avoid or reduce criminal responsibility by negating specific intent.Accordingly, a defense of diminished capacity is no longer viable in Michigan. See People v Yost, 278 Mich App 341, 354; 749 NW2d 753 (2008) ("Before the decision in Carpenter, a defendant who was otherwise legally sane could present evidence of some mental abnormality to negate the specific intent required to commit a particular crime.").
In Yost, id., this Court stated that "[t]he key component of the diminished-capacity defense is the evidence that the defendant could not form the requisite intent to commit the crime." This Court explained, however, that "[a]lthough a defendant may no longer present evidence of diminished capacity to negate the intent element of a crime, there are circumstances where a defendant's mental capacity may make a fact that is of consequence to the determination of the action more or less probable without such evidence being offered to negate the specific-intent element of the charged offense." Id. at 355-356.
In his opening statement, defense counsel indicated that the evidence would not show premeditation by defendant in committing the killings and that the evidence would instead reveal that defendant acted out of impulse. Counsel did state that the evidence would reflect that defendant suffered from bipolar disorder and because he had not been taking his medicine, his thought process was abnormal. Defense counsel did not indicate that defendant's bipolar disorder prevented him from forming the intent to kill. Nor did counsel clearly articulate that defendant's bipolar disorder prevented him from committing the murders with premeditation, although that proposition was implied. During her closing argument, defense counsel mentioned a failure to establish premeditation, but she did not directly link it to defendant's bipolar disorder. And there was no argument that defendant's bipolar disorder prevented him from forming the requisite intent to kill. Indeed, defense counsel specifically noted that during defendant's testimony, defendant denied that he committed the murders because of his bipolar disorder.
Defendant was represented by two attorneys at trial, one of whom handled the opening statement and the other presented the closing argument.
On the existing record, while there was testimony about defendant's mental health and the subject of his bipolar disorder was touched on during opening statements and closing arguments, we cannot say that defendant actually or plainly presented a diminished capacity defense to the jury. But it is clear that defense counsel went to trial with the intent to present a diminished capacity defense on the element of premeditation. During discussions outside the presence of the jury, defense counsel specifically informed the court that defendant's mental condition went to the issue of premeditation. Counsel claimed that defendant committed the murders on sudden impulse caused by his bipolar disorder. And when the trial court and the parties discussed the jury instructions, the court rejected defense counsel's attempt to retain language in a jury instruction that would have effectively allowed the jury to consider diminished mental capacity. See M Crim JI 16.23 (notes caution that certain portion of instruction should not be given in light of Carpenter).
Regardless, assuming that counsel's performance was deficient for presenting, or wishing to present, the defense of diminished capacity, we conclude that defendant has not demonstrated the existence of a reasonable probability that but for counsel's assumed error, the results of the trial would have been different. Carbin, 463 Mich at 600. Defendant would not have been acquitted had diminished capacity not been raised. Eliciting testimony about defendant's bipolar disorder certainly did not harm or prejudice defendant. We surmise that if anything it may have evoked some sympathy. The evidence of defendant's guilt, however, was overwhelming.
We are operating on the assumption that the bar against arguing diminished capacity encompasses the element of premeditation and not just intent. We do not decide that specific issue. --------
Defendant also argues that trial counsel was ineffective for failing to consult with or present testimony from an expert with respect to defendant's mental condition. Defendant contends that calling an expert "was the only real strategy" available in this case. Defendant asserts that the prosecution had pointed to defendant's conduct after the murders as showing that he had acted with a depraved heart. Defendant claims that an expert witness would have been able to explain his post-offense behavior as being entirely normal for a person with bipolar disorder, thereby negating the prosecution's theory. Defendant maintains that use of an expert for such a purpose would not run afoul of Carpenter. See Yost, 278 Mich App at 355-356. We again conclude that defendant cannot demonstrate the requisite prejudice even if counsel were ineffective. The evidence of defendant's conduct before and during the murders was powerful with respect to showing a depraved heart, malice, and premeditation, including the cell phone search on the harm that can be inflicted with a .22 caliber weapon, the vicious death threats communicated to Rice, and the bullet wounds to Wendy's face and neck and Peter's left temple. Assuming that defendant would have been able to actually procure an expert to testify that bipolar disorder could explain his post-offense behaviors and negate a conclusion that the conduct revealed a depraved heart, which we question, we believe the results of the trial would not have been any different. Reversal is unwarranted.
Finally, defendant argues that Carpenter was wrongly decided, i.e., that it infringes on a defendant's due process right to present a defense. We, however, are bound by Carpenter. Any decision to revisit the decision lies solely with the Michigan Supreme Court. People v Anthony, 327 Mich App 24, 44; 932 NW2d 202 (2019) (the Court of Appeals is bound to follow a decision by the Supreme Court except when a decision has clearly been overruled or superseded by the Supreme Court).
We affirm.
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel