PEOPLE OF MI V NANCY LOUISE ABERNATHY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 17, 1999
Plaintiff-Appellee,
v
No. 204507
Kent Circuit Court
LC No. 95-003102 FC
NANCY LOUISE ABERNATHY,
Defendant-Appellant.
Before: McDonald, P.J., and Sawyer and Collins, JJ.
PER CURIAM.
Defendant appeals as of right from her jury convictions of first-degree, premeditated murder,
MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL
750.227b; MSA 28.424(2), for the shooting death of her daughter-in-law. Defendant was sentenced
to mandatory life imprisonment for the first-degree murder conviction and a consecutive two-year term
for the felony-firearm conviction. We affirm.
I
First, defendant claims that s was denied a fair trial due to defense counsel’s decision to
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present two purportedly inconsistent defenses at trial: one, that the murder was committed by an
unknown intruder, and two, that if defendant did commit the murder she was not guilty by reason of
insanity. Defendant asserts that, while defense counsel would not have been ineffective if he had chosen
one defense or the other, she was prejudiced by the presentation of both defenses.
We agree with the trial court’s observation, in its denial of defendant’s motion for a new trial on
this basis, that the instant case represents the “flip side” of People v LaVearn, 448 Mich 207; 528
NW2d 721 (1995), in which the Supreme Court held that trial counsel was not ineffective for choosing
between two weak defense strategies, neither of which had a significant likelihood of success, and in
which it was not shown that counsel’s choice of defense significantly affected the outcome of the trial.
Here, defendant argues that defense counsel is ineffective for choosing not one of two options, but both
of two options. We agree with the trial court’s conclusion that the two defenses presented here were
not, in fact, inconsistent given the unique facts in this case. Where the murder weapon was never
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recovered and where, absent defendant’s admissions, the evidence of her guilt was mostly
circumstantial, it was possible that the jury would find the physical evidence insufficient to show
defendant’s guilt. Furthermore, given defendant’s mental health history, it was possible for the jury to
reject defendant’s admissions based on a finding that she was insane and find that defendant did not
murder the victim. Defendant has not shown that counsel was deficient in choosing to present both
defenses and has not shown the requisite prejudice, i.e., that the choice of one or the other defense
would have had a reasonable probability of affecting the outcome of the trial. Strickland v
Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446
Mich 298, 302-303; 521 NW2d 797 (1994).
Defendant also did not present any facts which, if established at a hearing, would have
demonstrated the requisite prejudice to prevail on her claim of ineffective assistance of counsel.
Therefore, defendant has not shown that she was prejudiced as a result of the trial court’s denial of her
request for an evidentiary hearing. It is apparent that defense counsel’s decision to present the two
simultaneous defenses was a soundly based tactical and strategic decision which, although ultimately
unsuccessful, did not fall below an objective standard of reasonableness and did not constitute the
ineffective assistance of counsel. Strickland, supra; Pickens, supra.
II
Second, defendant claims that the trial court erred when it refused to instruct the jury on the
crimes of voluntary and involuntary manslaughter. We disagree.
Voluntary and involuntary manslaughter are cognate lesser included offenses of murder. People
v Pouncey, 437 Mich 382, 388; 471 NW2d 346 (1991); People v Heflin, 434 Mich 482, 497; 456
NW12d 10 (1990); People v Beach, 429 Mich 450, 476-478; 418 NW2d 861 (1988). When a
cognate lesser included offense instruction is requested, the court must examine the evidence presented
at trial to determine if it would support conviction of the lesser offense. People v Bailey, 451 Mich
657, 669-670; 549 NW2d 325 (1996); Pouncey, supra at 387; Beach, supra at 463-465, 480. A
theory based on speculation, rather than evidence on the record, is insufficient to support a request for a
cognate lesser included offense instruction. Bailey, supra at 673, 681; Beach, supra at 479-480.
Defendant offers nothing more than sheer speculation that it was possible that she intentionally
killed the victim but did so in the heat of passion. See Pouncey, supra at 388-390. However, the
standard involves a determination whether the evidence presented on the record would support a
conviction on the requested cognate lesser included offense. Beach, supra at 479-480; Bailey, supra
at 679-682. The necessary evidence was not presented in this case to support the requested instruction
on voluntary manslaughter.
Similarly, defendant’s argument regarding involuntary manslaughter consists of pure speculation
that, based upon her past behavior of making threats but not carrying them out, she may have
accidentally carried out a threat to kill the victim. However, where there was no evidence presented of
an accidental killing, the trial court did not err in declining defendant’s request that the jury be instructed
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on this offense. Beach, supra at 479-480. See also People v Mills, 450 Mich 61, 81-82; 537 NW2d
909, modified 450 Mich 1212 (1995).
III
Third, defendant claims that the trial court erred in refusing to suppress various statements made
by her. We conclude that the challenged statements were all properly admitted at trial.
Generally, all relevant evidence is admissible, MRE 402, People v Starr, 457 Mich 490, 497;
577 NW2d 673 (1998), and the prosecution may offer all relevant evidence, subject to MRE 403, on
every element of the crime charged. Mills, supra at 71.
In the instant case, the intent of defendant was directly at issue because it was an element of the
charged offense of first-degree, premeditated murder. MCL 750.316; MSA 28.548. The challenged
statement made to Lisa Carpenter was relevant and material to show defendant’s long established
motive, intent and plan to kill the victim. MRE 401, MRE 803(3). See Mills, supra; People v Fisher,
449 Mich 441, 452-453; 537 NW2d 577 (1995). The statement was not unfairly prejudicial pursuant
to MRE 403 merely due to the passage of time because the statement was consistent with subsequent,
similar statements made by defendant regarding her intense dislike of the victim and her intent to kill her.
The court did not abuse its discretion in admitting defendant’s statement to Carpenter.
In addition, we agree with the trial court’s determination that defendant’s statements to the
police and to Tonya Bier and Cecilia Logins were not involuntary. In our examination of the
voluntariness of statements, we are to examine the entire record and make an independent determination
but are to give deference to the trial court’s assessment of the weight of the evidence and the credibility
of the witnesses. People v Sexton, 458 Mich 43, 68; 580 NW2d 404 (1998); People v Cheatham,
453 Mich 1, 29-30 (Boyle, J), 44 (Weaver, J); 551 NW2d 355 (1996). After engaging in such a
review, we agree with the trial court that defendant’s statements were not involuntary, were reliable, and
were relevant and admissible at trial.
Affirmed.
/s/ Gary R. McDonald
/s/ David S. Sawyer
/s/ Jeffrey G. Collins
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