Ineffective assistance of counsel; Abandonment of a self-defense claim; Failure to object to M Crim JI 16.8 (voluntary manslaughter)

The court concluded that even if defense counsel had not abandoned the defense of self-defense, there was “not a reasonable probability that the jury would have accepted” it. The court also held that “defense counsel was not ineffective for failing to object to M Crim JI 16.8.” Defendant was convicted of second-degree murder. She contended that “defense counsel was ineffective in the way in which he raised and then abandoned the defense of self-defense at trial.” But the court found that it was “reasonable for defense counsel to adjust his strategy throughout the trial in response to changing circumstances. Although defense counsel’s strategy was not successful, that does not render his performance deficient.” The court added that, “even assuming that defense counsel’s performance in withdrawing the defense was deficient, defendant” did not establish “prejudice. Simply put, even had defense counsel not withdrawn the defense—and had advocated for its application—there is not a reasonable probability that the jury would have rendered a different verdict.” There was no evidence showing “that any of the elements of self-defense were satisfied. Defendant never testified, nor was there any evidence about her state of mind. Additionally, the evidence clearly established that the victim was an unarmed, 63-year old man. There was nothing to suggest that [he] posed a significant danger to then 20-year-old defendant or others, let alone that the circumstances made it ‘necessary’ to resort to lethal force.” In addition, “defendant was the initial aggressor.” The court also rejected her argument that the reading of both M Crim JI 16.8 and 16.9 “could have left the jury with the impression that it had to find both malice and the factors that negate malice to convict” her of the voluntary manslaughter lesser included offense. It noted that the “instructions do not use the word ‘malice’” and concluded that the “instructions when read together are not inconsistent.” The trial court did not err in providing both instructions. Affirmed.