Motion for relief from judgment; MCR 6.508(D)(3); Good cause; Ineffective assistance of trial & appellate counsel; Felony murder jury instructions; Aiding & abetting; Failure to request a specific unanimity instruction; People v Cooks; People v Smielewski; Opinion testimony from a first responder & a paramedic; Interplay between MRE 701 & 702; People v Dobek

Rejecting defendant’s ineffective assistance of trial and appellate counsel claims, the court affirmed the denial of her motion for relief from judgment. She was convicted of first-degree felony murder, torture, first-degree child abuse, and possession of marijuana in a joint trial with her husband for the death of her three-year-old stepdaughter, P. Defendant asserted that her trial counsel was ineffective as to the felony murder jury instructions. The court first found that her claims an “instruction created a judicial presumption that she had already been determined to have caused death and that this fault allowed her to be convicted of this crime without a jury finding of causation are refuted by the plain and clear language of the instructions.” The trial court clearly stated that the prosecution had the burden to prove that defendant caused P’s death “beyond a reasonable doubt and, also, that defendant had to have, either directly or by aiding and abetting, caused” her death. Defendant also asserted that M Crim JI 16.4b should have been given. The court concluded that because the unrebutted evidence showed there was no dispute as to what act caused P’s death, defendant could not “show how she was denied a fair trial by failing to specify the alleged act causing [P’s] death in the jury instructions themselves because the jury was plainly aware of this. The jury instructions, taken as a whole, ‘fairly presented the issues to be tried and sufficiently protected the defendant’s rights.’” Any objection to them by trial counsel would have been futile. The court also held that no special unanimity instruction was warranted, so trial counsel was not ineffective for failing to request one. As to the testimony of a paramedic and assistant fire chief/first responder, given their extensive experience, they “were qualified to opine on how [P’s] condition was distinguishable from the other patients to whom they have responded.” Thus, even if trial counsel had objected that their testimony was inadmissible under MRE 701, it would have been admissible under MRE 702. Finally, appellate counsel was not ineffective for failing to raise meritless arguments on direct appeal.