PEOPLE OF MI V ADIL TOMA
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 4, 1998
Plaintiff-Appellant/Cross-Appellee,
v
No. 203029
Oakland Circuit Court
LC No. 94-134322 FC
ADIL TOMA,
Defendant-Appellee/Cross-Appellant.
Before: Neff, P.J., and O’Connell and Young, Jr., JJ.
PER CURIAM.
Plaintiff appeals by leave granted the trial court’s order reversing defendant’s convictions for
first-degree felony murder, MCL 750.316(1)(b); MSA 28.548(1)(b), and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b; MSA 28.424(2), on the basis that
defendant received ineffective assistance of counsel at trial. We affirm.
Defendant’s convictions stemmed from the shooting death of Steven Burge. Burge’s girlfriend
at the time, Margo McPherson, and her two children, had twice lived with defendant for short periods.
Evidence showed that defendant had made romantic advances toward McPherson, which she claimed
to have rebuffed. McPherson and her children moved from defendant’s home and into an apartment,
where Burge joined them shortly thereafter.
At trial, the prosecution presented evidence that defendant engaged in a pattern of stalking
McPherson, then, on November 29, 1993, at approximately 10:30 p.m., broke through the front door
of McPherson’s apartment. According to the prosecution’s theory, a struggle ensued, and defendant
shot Burge in the head and poured gasoline over his body. The prosecution presented testimony from
neighbors who stated that they had come to Burge’s aid, and who identified defendant as the gunman.
Witnesses also saw defendant’s car drive away from the scene.
Defendant maintains that McPherson had driven him to her apartment and attempted to
pressure him to help her pay a $3,000 debt for illegal drugs. According to defendant, the neighbors
who had identified defendant as the gunman had participated with others in the attempted “shakedown,”
-1
the neighbors were armed with guns, and one of them in fact fired the shot that killed Burge during the
melee that ensued after defendant refused to comply with McPherson’s demands for money.
After the jury convicted defendant of first-degree felony murder and felony-firearm, this Court
granted defendant’s motion to remand to enable the trial court to determine whether defendant was
denied effective assistance of counsel. People v Toma, unpublished order of the Court of Appeals,
entered September 25, 1996 (Docket No. 184936). Upon taking testimony at defendant’s Ginther1
hearing, the trial court reversed defendant’s convictions and granted his motion for a new trial because it
found that he had been convicted without effective assistance of counsel.
Dispositive of this appeal is the court’s finding that defense counsel failed to clarify defendant’s
testimony concerning the events leading up to Burge’s murder. Defendant, who speaks Arabic but has
a very limited command of English, spoke through an interpreter at trial. The interpreter repeatedly
mispronounced the names of the persons defendant alleged to have been involved in the fracas leading
to Burge’s murder, and otherwise presented a confusing and incomplete rendition of defendant’s
testimony. On appeal, the prosecutor argues that the trial court erred in granting defendant a new trial
because defendant failed to establish that he was seriously prejudiced by his attorney’s mistakes. We
disagree.
We review a decision to grant a new trial for an abuse of discretion. People v Herbert, 444
Mich 466, 477; 511 NW2d 654 (1993). An abuse of discretion occurs only where a court’s action is
so violative of fact and logic as to constitute perversity of will or defiance of judgment. People v Laws,
218 Mich App 447, 456; 554 NW2d 586 (1996).
The federal and state constitutions guarantee a criminal defendant the right to the assistance of
counsel. US Const, Am VI; Const 1963, art 1, § 20. The constitutional right to counsel is a right to
effective assistance of counsel. United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed
2d 657 (1984); People v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996). To establish
ineffective assistance of counsel, defendant must establish that counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms. People v Daniel, 207 Mich
App 47, 58; 523 NW2d 830 (1994). Defendant must further show that there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been different, and that
the attendant proceedings were fundamentally unfair or unreliable. People v Poole, 218 Mich App
702, 717-718; 555 NW2d 485 (1996).
Our review of the trial transcript, and of the evidence presented at the Ginther hearing,
persuades us that the trial court correctly determined that defense counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms. The rambling translation of
defendant’s testimony failed to present the jury with a fair opportunity to understand defendant’s version
of events or assess defendant’s credibility. Counsel’s failure to take measures to present defendant’s
side of the story in clear terms for the jury’s consideration was a mistake so serious as to constitute a
failure to function as an attorney as guaranteed by the Sixth Amendment. See People v Reed, 198
Mich App 639, 646; 499 NW2d 441 (1993), aff’d 449 Mich 375; 535 NW2d 496 (1995) . Nor can
the failure to present defendant’s explanation of the events at issue be considered sound trial strategy in
-2
this instance, where defendant’s testimony offered the only direct rebuttal of the prosecution’s theory.
See id. at 647.
The prosecution argues that the evidence of defendant’s guilt was so overwhelming, and
defendant’s protestations of innocence so implausible, as to render any deficiencies on defense
counsel’s part nonprejudicial to defendant. Although we agree that the prosecution presented a strong
case for defendant’s guilt,2 we cannot go so far as to presume guilt where the jury was deprived of a
chance to fully comprehend defendant’s exculpatory testimony due to counsel’s ineffectiveness.
Credibility of a witness is for the jury to adjudge. People v DeLisle, 202 Mich App 658, 662; 509
NW2d 885 (1993). In this case, we find no abuse of discretion in the trial court’s determination that
defendant’s conviction and accompanying mandatory life sentence cannot stand where defense counsel
failed to present defendant’s exculpatory testimony in a way that allowed the jury to comprehend and
consider it fully.
We also find error requiring a new trial in the admission at trial of certain testimony of the
forensic psychologist, who interviewed defendant pursuant to notice that defendant intended to
interpose an insanity defense. Defendant ultimately chose not to pursue the insanity defense at trial, but
the court, over objection, allowed the forensic psychologist to testify to inconsistent statements
defendant made during his examination regarding his actions on the night of Burge’s murder. This
testimony was clearly inadmissible, according to the provisions of the statute setting forth the procedures
for presenting an insanity defense:
Statements made by the defendant to personnel of the center for forensic
psychiatry, to other qualified personnel, or to any independent examiner during an
examination shall not be admissible or have probative value in court at the trial of the
case on any issues other than his or her mental illness or insanity at the time of the
alleged offense. [MCL 768.20a(5); MSA 28.1043(1)(5).]
Where a defendant chooses not to pursue an insanity defense at trial, and his mental state is not
otherwise at issue, statements made in the course of a court-ordered psychiatric examination are not
admissible as substantive evidence of guilt or for impeachment. People v Jacobs, 138 Mich App 273,
276-278; 360 NW2d 593 (1984). We caution the trial court on retrial not to repeat the mistake of
allowing such testimony.
Because we are affirming the trial court’s decision to grant a new trial on the grounds discussed
above, we need address neither the prosecutor’s other issues on appeal, nor defendant’s issues on
cross appeal.
Affirmed.
/s/ Janet T. Neff
/s/ Peter D. O’Connell
/s/ Robert P. Young, Jr.
-3
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
We concur with the prosecution that the facts linking the defendant to this crime are overwhelming.
The facts of this case indicate that the assailant wore a Halloween mask and doused the victim with
gasoline. Hair samples matching those found in the mask and a hat located at the scene were obtained
from defendant, and defendant’s fingerprint was found on a piece of tape attached to the mask. Police
also found blood matching the victim’s blood type on the boots defendant was wearing when he was
arrested. In addition, the assailant left a gasoline can at the scene. Uncontradicted evidence established
that, at the time of his arrest, defendant’s car and a hat he was wearing smelled strongly of gasoline, and
the hat found at the scene also tested positive for gasoline. Finally, an officer who was transporting
defendant after an attempted arraignment testified that defendant volunteered the following: “They count
five. They say I killed five people. I only killed one.” However, we emphasize, even where the
evidence of guilt is overwhelming, defendant is still entitled to present exculpatory testimony in a manner
that is comprehensible to the jury.
-4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
