PEOPLE OF MI V JERMAINE MICHAEL WILLIAMS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 2, 2001
Plaintiff-Appellee,
v
No. 218924
Wayne Circuit Court
Criminal Division
LC No. 98-003739
JERMAINE MICHAEL WILLIAMS,
Defendant-Appellant.
Before: Bandstra, C.J., and Whitbeck and Owens, JJ.
WHITBECK, J. (dissenting).
I respectfully dissent from my colleagues’ implicit determination that the available record
is adequate to decide the troubling ineffective assistance of counsel claim in this case.1 I also
respectfully dissent from their explicit, substantive determination on the basis of this record that
defendant Jermaine Williams has not demonstrated the prejudice necessary to prove that he was
denied his constitutional right to effective assistance of counsel.2 Because I believe that this may
be the dispositive issue in this case, I cannot concur in the remainder of the majority opinion or
the outcome.
What concerns me most about this case is that Williams’ trial counsel failed to present an
insanity defense. A reasonably prudent attorney, aware that Williams was living in a group
home, even if not because of a mental illness as defined by the Legislature,3 would have at least
investigated the possibility of presenting expert testimony concerning Williams’ sanity. Given
the heinous facts of this case, Williams’ comments about voices telling him to commit the crimes
should have made defense counsel pursue this defense vigorously because it was one of the only
viable trial strategies available. Yet, there is absolutely no evidence in the record that defense
counsel made any effort to determine whether an expert would testify on behalf of Williams
concerning his sanity at the time of the crime.
1
US Const, Am VI; Const 1963, art 1, § 20.
2
Id.
3
See MCL 330.1400(g).
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Defense counsel’s comments on the record make it plain that he simply did not know
much, if anything, about how the insanity defense works, much less that it was an affirmative
defense. Even when made aware that it was an affirmative defense, it never occurred to defense
counsel that he had to prepare and present that defense. Though clearly unprepared to present
this defense at trial, defense counsel did not even ask for a continuance so he could find an
expert who would testify directly concerning the issue for the defense. Instead, defense counsel
allowed the prosecution’s psychiatric expert to testify without any contradictory testimony.
Defense counsel also stipulated to several issues that bordered on, though they did not resolve,
questions concerning Williams’ mental status. If ever there were a case of deficient
performance, this appears to me to be it.
While the majority and I can ultimately agree that this was deficient performance, we part
company when it comes to determining whether this deficient performance prejudiced Williams
to the extent that it denied him a fair trial and therefore requires reversal.4 Simply put, I do not
know how we can decide whether this obviously ineffective attorney caused Williams prejudice
on the basis of the current record. It is routine for this Court to conclude that, when there is
“overwhelming” evidence of guilt, a defendant is not entitled to reversal, having failed to prove
prejudice.5 However, the very strength of the physical evidence presented to the jury in this case
made insanity that much more critical as a defense. This evidence of insanity would have served
as mitigating evidence, of which there was virtually none at trial.
To the extent that the majority works around this prejudice issue by suggesting that
Williams’ statements to the prosecution’s psychiatric expert do not make him seem insane, I
suggest that this misses the point. Certainly, without impugning the expert’s integrity, I can see
the logic in having the prosecution’s expert have opinions that support the prosecution. What
this testimony does not answer is whether there was another expert opinion on the matter of
Williams’ sanity that could have, and should have, been introduced at trial in order to refute the
prosecution’s expert. Nor can I find it dispositive that, when Williams confessed his crimes to
the staff at the home where he was living, he expressed a certain amount of self-concern.
Williams made these statements after committing the sexual assault, which should cast some
doubt on the value of this evidence in determining his sanity at the time of the sexual assault.
True, an expert evaluating Williams’ sanity at the time he committed this crime would also have
to rely on statements made after the crime. However, the critical point is that we, as appellate
jurists, utterly lack the expertise to conclude independently whether these comments are
consistent or inconsistent with sanity, much less that they comprise any significant portion of the
information an expert would need to determine whether Williams was insane. We are not mental
4
See People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994) (“[T]o find that a
defendant's right to effective assistance of counsel was so undermined that it justifies reversal of
an otherwise valid conviction, a defendant must show that counsel's performance fell below an
objective standard of reasonableness, and that the representation so prejudiced the defendant as
to deprive him of a fair trial.”).
5
See, e.g., People v Ramsdell, 230 Mich App 386, 407; 585 NW2d 1 (1998); People v
Wyngaard, 226 Mich App 681, 685; 575 NW2d 48 (1997), rev’d on other grounds 462 Mich 659
(2000).
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health professionals. We are not in a position to render an expert opinion on the basis of this sort
of isolated comments taken from the cold record in this case.
I hasten to add that I have no way of determining whether any expert would have
concluded that Williams was insane at the time he committed the offenses. If no expert would
conclude that he was insane at the time he committed the crime, then Williams cannot
demonstrate prejudice; the insanity defense would not have been available and, therefore,
defense counsel had no reason to present a meritless defense.6 If this is true, Williams would not
be entitled to a new trial even though his trial counsel was ineffective. However, if an expert had
been able to testify in support of the insanity defense, then I would consider this a case meriting
reversal and a new trial.
Because the record does not resolve this dilemma in any way, I would have preferred to
handle this case differently than the majority. Rather than affirming or reversing on the basis of
this record, I would have remanded this case for a Ginther7 hearing while retaining jurisdiction.
I would have instructed the trial court to give Williams an opportunity to secure and present
expert testimony supporting his claim that he was entitled to an insanity defense and, therefore,
his trial counsel was ineffective for failing to present this evidence. Though it should be
apparent from the transcript of the Ginther hearing itself, the trial court would then make
findings of fact regarding whether an insanity defense was cognizable given the expert
testimony. I would then rely on the record created in the Ginther hearing to examine the
prejudice prong of the ineffective assistance of counsel analysis. Only if I could determine that
Williams was not denied a fair trial because of prejudice stemming from defense counsel’s
ineffective assistance would I reach the other issues in this case.
/s/ William C. Whitbeck
6
See, generally, People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).
7
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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