People of Michigan v. Alex Jay Adamowicz

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 3, 2020
Plaintiff-Appellee,
v No. 330612
Oakland Circuit Court
ALEX JAY ADAMOWICZ, LC No. 2014-251162-FC
Defendant-Appellant.
ON REMAND
Before: STEPHENS, P.J., and K. F. KELLY and MURRAY, JJ.
PER CURIAM.
This case is before us on remand from the Michigan Supreme Court to address (1) whether
the prosecutorial errors of (a) “asking the jury to consider the defendant’s ‘moral duty’ to retreat
from his own dwelling in relation to his self defense claim,” and (b) “eliciting testimony and
presenting argument regarding the defendant’s retrospective assessment of his ability to retreat,
where it was undisputed that the defendant had no duty to retreat,” constituted plain error affecting
substantial rights, and (2) “whether the defendant was deprived of his right to the effective
assistance of counsel with respect to the failure to call an expert witness and the failure to object
to the prosecutor’s errors identified above.” People v Adamowicz, 503 Mich 880, 880; 918 NW2d
532 (2018).
In answering these questions, we conclude that the prosecution’s errors did not constitute
plain error affecting defendant’s substantial rights, and the trial court properly concluded that
defendant did not receive ineffective assistance of counsel.
I. FACTS AND PROCEDURAL HISTORY
The facts of this case were provided in a previous opinion by this Court as follows:
This case arises from the death of John Watson at the Tivoli Apartments in
Walled Lake. Watson and defendant lived in the same building. In the early
morning hours of April 12, 2014, Watson entered defendant’s apartment to drink
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and smoke “weed.” According to defendant, Watson became agitated. When
defendant asked Watson to leave and threatened to call the police, an altercation
ensued, which ended with defendant cutting Watson’s throat. Watson died from
the injury.
Defendant covered Watson’s body with blankets, and moved him from the
couch to a closet in the apartment. He also attempted to clean the blood spatter
from the walls and the couch. Defendant continued to live in the apartment until
May 11, 2014, when defendant’s mother, Marie Holley, discovered Watson’s body.
That day, the two drove to the Wixom Police Station. While at the station,
defendant spoke with Walled Lake Police Detective Andrew Noble and confessed
to killing Watson, but maintained that he did so in self-defense. [People v
Adamowicz, unpublished per curiam opinion of the Court of Appeals, entered June
22, 2017 (Docket No. 330612), p 1 (footnote omitted), rev’d and vacated in part
503 Mich 880 (2018).]
Defendant was convicted by a jury of first-degree murder, MCL 750.316(1)(a), and sentenced to
life imprisonment without parole. Id. This Court previously affirmed his conviction and sentence.
Id. at 1, 10.
Defendant filed an application for leave to appeal in the Michigan Supreme Court, which
vacated the part of this Court’s opinion regarding ineffective assistance of counsel, and directed
this Court to remand the matter to the trial court for an evidentiary hearing under People v Ginther,
390 Mich 436; 212 NW2d 922 (1973). Adamowicz, 503 Mich at 880. The Supreme Court also
vacated the portion of this Court’s opinion regarding prosecutorial error, determining that errors
were made, and directing this Court to review the issue for plain error affecting substantial rights
upon remand. Id.
This Court entered an order remanding the matter to the trial court for a Ginther hearing.
People v Adamowicz, unpublished order of the Court of Appeals, entered November 21, 2018
(Docket No. 330612). The trial court held a Ginther hearing over the course of four days in the
spring of 2019, with oral arguments heard on December 4, 2019. On March 9, 2020, the trial court
entered an order concluding that (1) “[d]efense counsel’s decision not to call an expert was an
objectively reasonable part of the [d]efendant’s defense strategy and even if an expert had been
called, because such testimony was not credible, there was no reasonable probability that the result
of the proceeding would have been changed,” and (2) “[d]efense counsel’s decision not to object
to the prosecutor’s errors of asking the jury to consider the [d]efendant’s ‘moral duty’ to retreat
from his own dwelling in relation to his self-defense claim and eliciting testimony and presenting
argument regarding the [d]efendant’s retrospective assessment of his ability to retreat was
objectively reasonable; even if [d]efense counsel had objected to the prosecutor’s errors, there was
no reasonable probability that the results of the proceeding would have changed.” This Court has
reviewed the transcripts of the hearing, the exhibits entered at the hearing, as well as the parties’
supplemental briefs.
II. PROSECUTORIAL ERROR
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Claims of prosecutorial error are reviewed on a case-by-case basis. People v Orlewicz, 293
Mich App 96, 106; 809 NW2d 194 (2011). “[A]ny challenged remarks are reviewed in context.”
Id. “The test for prosecutorial misconduct is whether the defendant was deprived of a fair trial.”
Id.In this Court’s previous opinion, we determined “even assuming, without deciding, that
the prosecutor erred by eliciting the testimony, defendant fails to demonstrate that the error
affected the outcome of his trial.” Adamowicz, unpub op at 6. The Supreme Court determined
that the prosecutor eliciting testimony and making argument regarding defendant’s “moral duty”
to retreat and defendant’s retrospective ability to retreat was in error because it was inconsistent
with the Self-Defense Act (SDA), MCL 780.971 et seq., and remanded to this Court for
reconsideration of whether the errors constituted plain error affecting substantial rights.
Adamowicz, 503 Mich at 880.
“To avoid forfeiture under the plain error rule, three requirements must be met: 1) error
must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). The third
requirement requires a showing of prejudice, “i.e., that the error affected the outcome of the lower
court proceedings.” Id. The defendant bears the burden to establish prejudice. Id. If a defendant
satisfies these requirements, it is within the discretion of this Court whether to reverse. Id.“Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually
innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings independent of the defendant’s innocence.” Id. at 763-764 (quotation
marks and citation omitted).
Although the prosecutor committed plain error in eliciting testimony and making argument
regarding defendant’s “moral duty” to retreat and defendant’s retrospective assessment of his
ability to retreat, we cannot conclude that defendant has met his burden of establishing that these
plain errors affected his substantial rights, i.e., affected the outcome of the lower court proceedings.
Id. at 763. Although the prosecutor argued in his closing argument that defendant had a “moral
duty” to retreat, he also clearly stated that, by law, defendant had no duty to retreat. The prosecutor
stated that he introduced the evidence regarding defendant’s ability to flee to challenge whether
defendant honestly and reasonably believed that he needed to use deadly force. Moreover, the
court gave a jury instruction providing that a person has no duty to retreat when attacked at home.
“Curative instructions are sufficient to cure the prejudicial effect of most inappropriate
prosecutorial statements, and jurors are presumed to follow their instructions.” People v Unger,
278 Mich App 210, 235; 749 NW2d 272 (2008) (citations omitted).
Moreover, the evidence at trial was more than sufficient to establish the elements of
first-degree murder—“(1) the intentional killing of a human (2) with premeditation and
deliberation.” People v Bass, 317 Mich App 241, 265-266; 893 NW2d 140 (2016) (citation
omitted). The defendant’s actions before and after a crime may be considering when determining
premeditation. Id. at 266. Defendant slit Watson’s throat, concealed the body for several weeks,
tried to clean up the scene, made online searches regarding drinking bleach and rat poison, and
testified that he wanted to “get back at” Watson. We therefore cannot conclude that the “forfeited
error resulted in the conviction of an actually innocent defendant,” Carines, 460 Mich at 763, and
reversal is not warranted.
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III. INEFFECTIVE ASSISTANCE OF COUNSEL
The Supreme Court determined that the development of a factual record was required for
defendant’s claim of ineffective assistance of counsel, and directed this Court to remand the matter
to the trial court for a Ginther hearing. Adamowicz, 503 Mich at 880, citing MCR 7.305(C)(8) and
MCR 7.211(C)(1)(a)(ii). At the conclusion of the evidentiary hearing, the trial court considered
whether defendant was denied the effective assistance of counsel by defense counsel’s failure to
call an expert witness and failure to object to the prosecutorial errors noted above. The trial court
determined that defendant did not receive ineffective assistance of counsel in either regard.
This issue is now preserved subsequent to the Ginther hearing. People v Cooper, 309 Mich
App 74, 79; 867 NW2d 452 (2015). Whether the defendant is denied effective assistance of
counsel is a mixed question of fact and law. Id. “A judge must first 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. (quotation marks and citation omitted). The trial court’s factual
findings are reviewed by this Court for clear error, and constitutional determinations are reviewed
de novo. Id. The test for determining ineffective assistance of counsel is as follows:
There is a presumption that counsel was effective, and a defendant must
overcome the strong presumption that counsel’s challenged actions were sound trial
strategy. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). To
establish a claim of ineffective assistance of counsel, “ ‘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.’ ” People v Carbin, 463 Mich 590, 600; 623 NW2d 884
(2001), quoting Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L
Ed 2d 674 (1984). Furthermore, “[w]hether defense counsel’s performance was
deficient is measured against an objective standard of reasonableness.” People v
Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). Thus, to prevail, a
defendant must show that “counsel’s representation fell below an objective
standard of reasonableness,” Strickland, 466 US at 687-688, and he must show that
he was prejudiced by counsel’s performance, which can be shown by proving that
there is a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at 694. This Court “will
not substitute [its] judgment for that of counsel on matters of trial strategy, nor will
[this Court] use the benefit of hindsight when assessing counsel’s competence.”
[Unger, 278 Mich App at 242-243]. The defendant “bears the burden of
demonstrating both deficient performance and prejudice[;] the defendant [also]
necessarily bears the burden of establishing the factual predicate for his claim.”
Carbin, 463 Mich at 600. [Cooper, 309 Mich App at 80.]
A. FAILURE TO CALL EXPERT WITNESS
The trial court determined that defense counsel’s decision not to call an expert about
defendant’s alleged posttraumatic stress disorder (PTSD) was an objectively reasonable part of the
defense strategy given the circumstances of the murder, the criminal responsibility report from the
Forensic Center and other data, defendant’s own assertion that he was not insane and that self-
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defense was his best defense, and because introduction of this defense would have resulted in
prejudicial evidence toward defendant. Moreover, the trial court determined that had an expert
been called, the expert’s testimony would not have been credible, and there was no reasonable
probability that the result of the proceeding would have changed. We conclude that the trial court’s
findings of facts are not clearly erroneous, and defendant’s constitutional right to effective
assistance of counsel was not infringed. Cooper, 309 Mich App at 79-80.
“An attorney’s decision whether to retain witnesses, including expert witnesses, is a matter
of trial strategy.” Payne, 285 Mich App at 190. “[T]he failure to call a witness can constitute
ineffective assistance of counsel only when it ‘deprives the defendant of a substantial defense.’ ”
Id. (citation omitted). “A trial strategy is not ineffective simply because it ultimately does not
succeed.” People v White, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 346901);
slip op at 3. “A strategy is also not ineffective because it entails taking calculated risks, especially
if the range of available options for the defense is meagre.” Id.
It was a reasonable matter of strategy for defense counsel to rely on self-defense rather than
defendant’s alleged PTSD. Defendant testified at trial that he and Watson got into a physical
altercation including a baseball bat before defendant ultimately obtained the knife and stabbed
Watson in the throat. He did not indicate any history of mental illness during intake in jail.
Defense counsel originally requested an evaluation by the Forensic Center to determine
defendant’s criminal responsibility, which was completed by court order. Dr. Richard Rickman
evaluated defendant, and although defendant disclosed a suicide attempt at age 18 and being
prescribed antidepressants and medication for attention deficit hyperactivity disorder (ADHD),
defendant told Dr. Rickman that he was not insane, and that self-defense was his best trial strategy.
Dr. Rickman concluded that defendant did not meet the statutory criteria for insanity at the time
of the defense. Defendant did not even assert that he had PTSD until after he was convicted by
the jury. Thus, it was reasonable trial strategy for defense counsel to chose not to call an expert
witness regarding PTSD. Payne, 285 Mich App at 190.
The trial court also determined that if defense counsel called an expert witness, the
prosecution would call a rebuttal witness, resulting in the admission of evidence prejudicial to
defendant. Dr. Mark S. Kane was retained by defendant to testify at the evidentiary hearing.
Although he concluded that defendant suffered from PTSD, he also opined that defendant had
schizoid personality issues and a drug problem. Dr. Kane’s report included that individuals with
schizoid personality have low moral and ethical standards, and are aggressive, amoral, and
antisocial. This evidence would have been damaging to the defense. Therefore, the trial court did
not clearly err in determining that defense counsel’s performance did not fall below an objective
standard of reasonableness. Id. at 188.
Regarding the second prong of Strickland, the trial court determined that even if defense
counsel had called Dr. Kane to testify, Dr. Kane’s testimony was not credible, and therefore, there
was no reasonable probability that the result of defendant’s trial would have been different. The
trial court noted that Dr. Kane was “straining credibility to paint the [d]efendant in a sympathetic
light,” was “hyper-technical,” “glossed over material facts” of the murder, and his testimony “flies
in the face of common sense and the experiences of life.” The court therefore rejected Dr. Kane’s
opinion, and opined that a jury would do the same. The trial court is best suited to make
determinations regarding witness credibility, and this Court defers to such determinations. People
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v Vaughn, 186 Mich App 376, 380; 465 NW2d 365 (1990). After reviewing Dr. Kane’s testimony
at the evidentiary hearing, we cannot conclude that the trial court clearly erred in making this
determination. Payne, 285 Mich App at 190. Therefore, defendant has failed to establish the
prejudice prong of the Strickland analysis, and defendant was not denied ineffective assistance of
counsel based on defense counsel’s failure to call an expert witness to testify at trial. Strickland,
466 US at 687-688, 694.
B. FAILURE TO OBJECT TO PROSECUTORIAL ERRORS
The trial court determined that defense counsel’s failure to object to the prosecutorial errors
of asking the jury to consider defendant’s “moral duty” to retreat as well as eliciting testimony
regarding defendant’s retrospective assessment of his ability to retreat was objectively reasonable,
and nonetheless, had defense counsel objected, there was no reasonable likelihood that the results
of the proceeding would have changed.
Decisions regarding the admission of evidence are generally one of trial strategy. See
People v Armstrong, 490 Mich 281, 290-291; 806 NW2d 676 (2011) (failing to pursue admission
of cell phone records was not a matter of sound trial strategy). Defense counsel, Edward Bajoka,
testified as to several reasons why he chose not to object at trial. He thought he could address the
issues in cross-examination and closing argument, he believed the court would give the proper jury
instruction indicating defendant had no duty to retreat, he typically did not object during closing
argument so to not cast himself in a bad light for the jurors, and he feared that an objection would
highlight the prosecution’s arguments. Therefore, the trial court did not clearly err in determining
that defense counsel’s performance in failing to object was objectively reasonable. Payne, 285
Mich App at 188.
Additionally, the trial court properly determined that had defense counsel objected, there
was no reasonable probability that the result of the proceeding would have changed. As noted
above, the evidence clearly established the elements for first-degree murder, and the trial court
delivered the proper jury instruction indicating that defendant had no legal duty to retreat.
Therefore, defendant failed to establish that but for trial counsel’s failure to object, the outcome of
the proceedings would have been different. Strickland, 466 US at 694.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Christopher M. Murray
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