People of Michigan v. Terry Lee Ceasor ( 2021 )

Order Michigan Supreme Court
Lansing, Michigan
March 5, 2021 Bridget M. McCormack,
Chief Justice
159948 Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
PEOPLE OF THE STATE OF MICHIGAN, Elizabeth M. Welch,
Plaintiff-Appellee, Justices
v SC: 159948
COA: 338431
St. Clair CC: 05-000220-FH
TERRY LEE CEASOR,
Defendant-Appellant.
____________________________________/
On January 7, 2021, the Court heard oral argument on the application for leave to
appeal the May 23, 2019 judgment of the Court of Appeals. On order of the Court, the
application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal,
we REVERSE the judgment of the Court of Appeals, VACATE the defendant’s
conviction and sentence, and REMAND this case to the St. Clair Circuit Court for further
proceedings not inconsistent with this order. By failing to request public funds for an
expert based on a mistaken belief that the defendant did not qualify for those funds
because he had retained counsel, counsel performed deficiently. See Hinton v Alabama,
571 US 263, 273 (2014) (“[I]t was unreasonable for [the defendant’s lawyer] to fail to
seek additional funds to hire an expert where that failure was based not on any strategic
choice but on a mistaken belief that available funding was capped at
$1,000.”). Moreover, for the reasons set forth by the United States Court of Appeals for
the Sixth Circuit in Ceasor v Ocwieja, 655 F Appx 263, 286 (CA 6, 2016), we conclude
that the defendant can show prejudice. See id. (“[N]o amount of cross-examination or lay
witness testimony could have rebutted Dr. Gilmer-Hill’s medical opinions that these
injuries were medically consistent with abuse and inconsistent with an accidental fall.
Thus, we acknowledge, as the Ackley court did, that in many [shaken baby syndrome]
cases ‘where there is no victim who can provide an account, no eyewitness, no
corroborative physical evidence and no apparent motive to [harm], the expert is the
case.’ ”), quoting People v Ackley, 497 Mich 381, 397 (2015) (quotation marks and
citation omitted).
CLEMENT, J. (concurring).
I concur in the order reversing the Court of Appeals because I agree that counsel
was ineffective. Namely, I do not believe it would have been a novel argument for
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counsel to contend that defendant qualified for public funds for an expert under MCL
775.15, the statute in use at the time, when the statutory language clearly applies to him.
It is true, as Justice WELCH recounts, that “defense counsel’s performance cannot
be deemed deficient for failing to advance a novel legal argument.” People v Reed, 453
Mich 685, 695 (1996). Here, counsel failed to request public funds for an expert because
he believed that defendant did not qualify for those funds since he had retained his own
counsel. MCL 775.15, the statute that governed requests for public funds for an expert at
the time, reads:
If any person accused of any crime or misdemeanor, and about to be
tried therefor in any court of record in this state, shall make it appear to the
satisfaction of the judge presiding over the court wherein such trial is to be
had, by his own oath, or otherwise, that there is a material witness in his
favor within the jurisdiction of the court, without whose testimony he
cannot safely proceed to a trial, giving the name and place of residence of
such witness, and that such accused person is poor and has not and cannot
obtain the means to procure the attendance of such witness at the place of
trial, the judge in his discretion may, at a time when the prosecuting officer
of the county is present, make an order that a subpoena be issued from such
court for such witness in his favor, and that it be served by the proper
officer of the court. And it shall be the duty of such officer to serve such
subpoena, and of the witness or witnesses named therein to attend the trial,
and the officer serving such subpoena shall be paid therefor, and the
witness therein named shall be paid for attending such trial, in the same
manner as if such witness or witnesses had been subpoenaed in behalf of
the people.
Clearly, the statutory language says nothing about an individual with retained counsel
being ineligible for public funds to retain an expert.
There is no reason to doubt that counsel testified truthfully when he said he had
never seen a court award public funds for an expert when a defendant had retained his or
her own attorney. It is unsurprising that, generally, a defendant who can pay to retain
counsel would not be able to show that he or she is “poor and has not and cannot obtain
the means to procure the attendance of [a material] witness,” as the statute requires.
However, that is not the case when the defendant can afford to retain counsel only
because a third party has offered to pay for him or her to do so. I recognize that counsel
in the instant case took considerable steps to help defendant, even forgoing his own fee to
help defendant raise the needed funds for an expert. However, I cannot conclude that
holding a mistaken belief regarding the application of a statute—a belief wholly
unsupported by the statutory text—is anything but deficient performance. Therefore, I
3
concur in the Court’s order reversing the judgment of the Court of Appeals and
remanding to the trial court for further proceedings.
WELCH, J. (dissenting).
I agree with the majority that the prejudice in this matter is undisputed given the
nature of the case and the evidence presented. The issue in this case is whether trial
counsel in 2005 rendered ineffective assistance to defendant in violation of the Sixth
Amendment to the United States Constitution when he did not request funds from the
circuit court under MCL 775.15 for the purpose of hiring an expert witness. 1 I
respectfully dissent because in 2005, the time that the trial occurred in this matter, the law
was not clear that defense counsel could, let alone was obligated to, request expert-
witness funds for clients who were not appointed counsel by the state. The only
information available from the record is that during that time, St. Clair County defense
attorneys generally understood that public funding for expert-witness fees was not
available to clients who had not been declared indigent and who were represented by a
retained attorney.
In People v Arquette, 202 Mich App 227, 230 (1993), the primary case cited by
the defendant as the reason defense counsel should have known to request expert-witness
fees for his client, the Court of Appeals noted that “[this] would be a different case if
defendant had retained an attorney and then declared indigence.”2 Therefore, that case
could not have put trial counsel on notice that retained clients, such as the defendant in
1
Trial counsel’s assistance is constitutionally ineffective only if counsel engaged in
deficient performance that resulted in prejudice. Strickland v Washington, 466 US 668,
687-688 (1984). Deficient performance is assessed “on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Id. at 690 (emphasis added). I dissent
because counsel’s performance was not deficient.
2
In Arquette, the defendant was declared indigent but then retained an appellate attorney
(paid for by a relative) who replaced his court-appointed appellate attorney. The court
administrator refused to provide the defendant trial transcripts at public expense because
he had, at that time, a retained attorney. The Court of Appeals concluded that, given his
previously declared indigent status, the defendant could receive the transcript at public
expense—but it also observed that the analysis would be different if the defendant had
first retained an attorney and later been declared indigent (i.e., the public funds would not
have been available in that situation). In the instant case, defendant was represented by
his own retained trial attorney and was never declared indigent—exactly the scenario in
which the Court of Appeals in Arquette indicated that public funds would not have been
available to a defendant.
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this case, were eligible to receive funding from the state to cover expert-witness fees.3
As the Court of Appeals noted in this case, such a request would have been a novel idea
at that time. People v Ceasor, unpublished per curiam opinion of the Court of Appeals,
issued May 23, 2019 (Docket No. 338431), p 10; see also People v Reed, 453 Mich 685,
695 (1996) (holding that counsel cannot be deemed ineffective for failing to advance a
novel legal argument).
Thus, I do not believe counsel’s performance in failing to request public funds
from a St. Clair County trial court for an expert witness in 2005 fell below the then-
applicable “objective standard of reasonableness.” See People v Trakhtenberg, 493 Mich
38, 51 (2012).
ZAHRA, J., joins the statement of WELCH, J.
MCCORMACK, C.J., did not participate because of her prior involvement in this
case as counsel for a party.
3
The three main precedents that governed this area of law in 2005—this Court’s
decisions in People v Jacobsen, 448 Mich 639 (1995), and People v Tanner, 469 Mich
437 (2003), and the Court of Appeals’ decision in People v Miller, 165 Mich App 32(1987)—all were cases applying MCL 775.15 to indigent defendants with court-
appointed counsel.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 5, 2021
t0302
Clerk