People v. Pickens

521 N.W.2d 797, 446 Mich. 298

• Court: Michigan Supreme Court
• Decided: August 25, 1994
• Docket: Docket Nos. 91434, 95720, (Calendar Nos. 9-10)
• Status: Published

Opinions

Riley, J.

At issue in these consolidated cases is whether the Michigan constitutional guarantee of the effective assistance of counsel provides a criminal defendant with greater protections than its federal counterpart. We hold that the intention underlying the Michigan Constitution does not afford greater protection than federal precedent with regard to a defendant’s right to counsel when it involves a claim of ineffective assistance of counsel. Thus, to 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. Accordingly, we affirm the judgment of the Court of Appeals in People v Wallace and reverse the judgment of the Court of Appeals in People v Pickens because neither defendant is capable of showing that he was denied effective assistance of counsel.

Also at issue in Wallace is whether the denial of independent defense neurological tests by the trial court mandates reversal of defendant’s conviction. While the trial court violated MCL 768.20a.(3); MSA 28.1043(1)(3) by denying defendant’s request for the tests, we affirm the conviction because the error was harmless under the circumstances.

Furthermore, we find that the admission of statements made by Wallace and others regarding the shooting and his past behavior as testified to by the prosecutor’s rebuttal witness was not error because the statements were relevant to rebut Wallace’s claim of insanity and were not unfairly prejudicial.

Hence, we affirm the judgment of the Court of Appeals in Wallace and reverse the judgment of the Court of Appeals in Pickens.

i

A

Defendant Dwayne Pickens was charged with selling less than fifty grams of cocaine to an undercover police officer in the City of Detroit. During his opening argument at trial, defense counsel indicated that Eric Wright would testify that Pickens had been with him the day in question and had not delivered cocaine. The trial court, however, barred the introduction of the alibi witness because defense counsel had failed to file a notice of alibi as required by MCL 768.20(1); MSA 28.1043d).¹

Pickens was convicted as charged by the jury and sentenced to four to twenty years imprisonment. On appeal, he argued, inter alia, that he had been denied effective assistance of counsel because his counsel failed to file a notice of alibi and had not moved for an adjournment to correct the error. The Court of Appeals remanded for an evidentiary hearing pursuant to People v Ginther, 390 Mich. 436, 442-444; 212 NW2d 922 (1973).

At the Ginther hearing, Pickens’ trial counsel testified that her records did not show that she had failed to file a notice of an alibi defense. She indicated that she intended to call Wright to testify at trial as an alibi witness and that she had discussed that possibility with him and Pickens before trial. She could not recall if Wright appeared on the first day of trial, but remembered that he had been subpoenaed by her investigator and did not appear on the second day. She speculated that she did not move for an adjournment because the trial court’s ruling precluding Wright was so definite. Following this pattern, Pickens’ appellate counsel also waived production of Wright at the Ginther hearing. The record does not provide any explanation for his failure to testify at trial or the Ginther hearing.

After remand, the Court of Appeals found that Pickens was prejudiced by his trial attorney’s failure to timely file a notice of an alibi defense or to move for an adjournment.²

This Court granted leave to appeal, 443 Mich 884 (1993), and consolidated the case with People v Wallace, 443 Mich 883 (1993).

B

On August 4, 1986, defendant Ralph Wallace shot and killed his estranged wife as she sat across from him at a bar. After a preliminary examination, he was bound over for trial, and he personally retained defense counsel.

Counsel gave notice of Wallace’s intent to raise an insanity defense, and the court granted the defense motion for an independent psychiatric evaluation. The court, however, later denied Wallace’s request for additional neurological tests, including a cat scan, that had been recommended by Dr. Rajendra K. Bhama, the independent psychiatric evaluator. In denying Wallace’s motion for independent testing, the court reasoned that the trial should not be delayed to permit independent testing when identical tests had already been performed.³ The court suggested that Dr. Bhama obtain the previous test results.

At trial, the prosecution argued that Wallace premeditated the murder of his wife. Various prosecution witnesses testified that Wallace threatened to kill her at least twice before the fatal shooting.⁴ Witnesses to the slaying testified that Wallace, sitting across a table from his wife, shot her and, after pausing for almost a minute, fired again after she had fallen and appeared alive. He then stated that the victim was "only his wife” and placed the gun on the counter. After announcing to the crowd not to worry, he went to the restroom and his car, and returned to wait for the police. An officer testified that Wallace spoke coherently, appeared sober, and admitted shooting his wife.⁵

Defense counsel countered that Wallace was mentally ill at the time of the shooting and acted in the heat of passion. Wallace’s employer testified that on the day of the murder, Wallace appeared at work explaining that his plans to go fishing had gone awry. After witnessing Wallace ranting and raving with a flushed face, he sent him home. His employer also admitted providing him tranquilizers and antidepressant drugs before the day of the shooting. Other defense witnesses testified that Wallace and his wife often argued, and that on the day of the slaying he was despondent about his children.

Wallace denied intending to murder his wife. He testified that he took a tranquilizer provided by his employer after arriving home from work. He then drank two beers at a tavern and two at home before his wife called. They met at a bar to continue a discussion about his wish to take their six-year-old daughter fishing. He did not recall taking the gun, but admitted that he probably did because it was night and he feared his wife’s family, describing earlier altercations with her brother. He testified that at the bar his wife described sexual experiences with her new lover and demanded her wedding rings back. While he did not recall shooting his wife, he described seeing two enlarged moving images of her on the wall that appeared to be floating away. He felt as if he were going to explode.

Defendant’s main witness for purposes of the insanity defense was his independent psychiatric examiner, Dr. Bhama, who concluded that he suffered from neurocortical damage and cerebellum dysfunction.⁶ He theorized that on the day of the shooting, Wallace suffered from mental illness and disorder of thought and judgment. He also stated that Wallace lacked the substantial capacity of appreciating the wrongfulness of his conduct. He concluded that Wallace was legally insane at the time of the shooting.

The prosecution presented two expert rebuttal witnesses: Dr. Dexter Fields, chief psychiatrist at the Recorder’s Court Psychiatric Clinic, and Ronald Kolito, senior clinical psychologist at the clinic. Dr. Fields disagreed with the diagnosis of organic brain syndrome, opining that Wallace was in touch with reality and that anxiety could have caused him to believe that his wife was larger than usual.

Kolito testified that Wallace was not psychotic or mentally ill at the time of the shooting. He buttressed his conclusion by testifying about comments made by Wallace about the day of the shooting, as well as observations of Wallace’s coworker about his behavior.⁷ Defense counsel objected to much of his testimony as misleading and impermissible hearsay. After giving the jury curative instructions, the trial, court admitted the testimony, reasoning that it provided the underlying facts of an expert’s opinion.⁸

The jury found Wallace guilty of first-degree murder and of possession of a firearm during the commission of a felony. After denying a motion for new trial, the court sentenced him to the mandatory term of life plus two years for the felony-firearm conviction.

Wallace appealed, and the Court of Appeals granted a remand for a Ginther hearing on his claim of ineffective assistance of trial counsel. The Court denied the motion for a new trial and subsequent motions to remand. This Court granted leave to appeal to consider: (1) whether Wallace was denied the effective assistance of counsel, (2) whether the trial court erred when it denied his motion for neurological tests, and (3) whether the trial court erred in admitting the disputed rebuttal testimony.

ii

At issue in these consolidated cases is the application of the Michigan Constitution’s guarantee of the right to counsel to a claim of ineffective assistance of counsel. Our Court of Appeals has interpreted our decision in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), as requiring the reversal of a criminal conviction when defense counsel failed to perform as well as a reasonably competent attorney, even if the defendant was not prejudiced by such representation. See, e.g., People v White, 142 Mich App 581, 588-589; 370 NW2d 405 (1985). In Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), however, the United States Supreme Court found that to prove a claim of ineffective assistance of counsel mandating reversal of a conviction the Sixth Amendment requires not only that counsel’s performance fell below an objective standard of reasonableness, but also that the representation so prejudiced the defendant as to deprive him of a fair trial.

At issue in the instant case is whether the Michigan Constitution requires the reversal of a criminal conviction when defense counsel’s ineffective assistance did not so prejudice a defendant as to deprive him of a fair trial.

Michigan law has long held that "[i]t is a maxim that the object of construction, as applied to a written Constitution, is to ultimately ascertain and give effect to the intent of the people in adopting it.” Kearney v Bd of State Auditors, 189 Mich 666, 671; 155 NW 510 (1915). This is so because when interpreting the law "it is the intent of the lawgiver that is to be enforced.” 1 Cooley, Constitutional Limitations (8th ed), p 125 (emphasis in original). Because "the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people ... in the sense most obvious to the common understanding . . . Id. at 143. Often, "to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered.” Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), quoting Cooley, Constitutional Limitations (6th ed), p 81.

Because a "constitutional limitation must be construed to effectuate, not to abolish, the protections sought by it to be afforded,” failure to adhere to the purpose and history undergirding the document "is to make the constitutional safeguard no more than a shabby hoax, a barrier of words, easily destroyed by other words.” Lockwood v Comm’r of Revenue, 357 Mich 517, 557, 556; 98 NW2d 753 (1959). In other words, without understanding both the origin and purpose of a constitutional provision, this Court cannot properly protect the mandate of the people because words stripped of their context may be manipulated and. distorted into unintended meanings. See, e.g., Carmen v Secretary of State, 384 Mich 443, 452; 185 NW2d 1 (1971).⁹

As a guarantee of liberty, the phrase "assistance of counsel,” by necessity, will not be defined in great detail in the constitution. Nevertheless, it is one of many terms that has "acquired a well-understood meaning, which the people must be supposed to have had in view in adopting them. We cannot understand these provisions unless we understand their history; and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense.” 1 Cooley (8th ed), supra at 132. Hence, we must examine the historical and common-law origins of the provision to properly understand its content.

Michigan has long recognized that "[p]erhaps the privilege most important to the person accused of crime, connected with his trial, is that to be defended by counsel.” 1 Cooley (8th ed), supra at 696. See also Const 1963, art 1, § 20 ("[i]n every criminal prosecution, the accused shall have . . . assistance of counsel for his defense . . .”).¹⁰

Moreover, Michigan law has well established that "it is a duty which counsel so designated owes to his profession, to the court engaged in the trial, and to the cause of humanity and justice, not to withhold his assistance nor spare his best exertions, in the defense of one who has the double misfortune to be stricken by poverty and accused of crime.” 1 Cooley (8th ed), supra at 700. More specifically, a court is obliged to intervene when defense counsel "accept[s] the confidence of the accused, and then betray[s] it by a feeble and heartless defense.” Id. at 704. In other words, Michigan law has long required that defense counsel present a reasonable defense. Because this test is no more protective than the federal standard,¹¹ we need not determine the exact contours of the Michigan guarantee._

3

The issue in the instant case, however, is: under what circumstances does the failure to perform that duty mandate reversal of a defendant’s conviction? Under federal law, the purpose of the right to counsel "is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Strickland, supra at 691-692. To find prejudice, a court must conclude that there is "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.¹²

Our Court of Appeals, however, has interpreted this Court’s decision in Garcia as requiring the reversal of a conviction even if defense counsel’s ineffective assistance did not prejudice the defendant. While we recognize that the opinion is less than a model of clarity and might be so interpreted, such a procedure is not mandated by federal law. Garcia essentially relied on Sixth and Fourteenth Amendment jurisprudence, and did not formulate the standard from the intentions, history, or common law undergirding the Michigan Constitution.¹³ Garcia, therefore, does not stand for the proposition that the Michigan Constitution was intended to grant stronger protections than federal authority with regard to the standards applied to the issue of ineffective assistance of counsel.

Indeed, Michigan constitutional law has long held that "[e]rrors which cannot possibly create any prejudice to the rights of one charged with crime ought not to, and cannot, operate as a ground for a new trial.” People v Wade, 101 Mich 89, 91; 59 NW 438 (1894).¹⁴ As Justice Cooley explained, "[i]t is possible to be so nice in such matters as to render a legal conviction of crime practically impossible; and while the court should see to it on the one hand that no wrong shall be done the defendant, so on the other they are not to set aside a conviction obtained on a fair trial . . . Strang v People, 24 Mich 1, 10 (1871). In other words, "[w]e require a fair trial, not a perfect trial.” People v Beach, 429 Mich 450, 491; 418 NW2d 861 (1988).

Hence, under Michigan law, counsel’s ineffective assistance must be found to have been prejudicial in order to reverse an otherwise valid conviction. Thus, we reject defendants’ contention that the Michigan Constitution mandates reversal of their convictions because of the ineffective assistance of counsel without a showing of prejudice, and overrule those Court of Appeals cases which so hold.

The next crucial issue, however, is the standard by which a defendant may prove that he was prejudiced by ineffective assistance of counsel. The United States Supreme Court has held that a "defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra at 694. Nevertheless, at strong variance with Michigan and federal authority, Justice Mallett would hold "that to show prejudice under the Michigan Constitution, the defendant must prove that there is a reasonable probability that his attorney’s incompetence deprived him of an otherwise available and likely meritorious defense.” Post at 341. Noting that we have "decided issues relating to counsel without citing federal authority,” and that the Court has at times interpreted the right to counsel to afford greater protections than the federal constitution, Justice Mallett concludes that "there is historical authority to depart from Strickland and to establish our own standard regarding the applicable definition of prejudice.” Post at 348.

The Michigán and federal constitutions, of course, may have different meaning. "As a matter of simple logic, because the texts were written at different times by different people, the protections afforded may be greater, lesser, or the same.” Sitz v Dep’t of State Police, 443 Mich 744, 761; 506 NW2d 209 (1993).¹⁵ The question of state constitutional adjudication, however, is not whether this Court may interpret our constitution differently than the federal constitution, the issue is whether we must. Unless the constitutional authority exists to interpret the constitution differently, we must not. On the other hand, if constitutional authority directs an interpretation different than federal precedent, we must do so.

In accordance with our time-honored rules of constitutional construction, to justify an expansion of the Michigan Constitution beyond federal protections for identically worded phrases and provisions, such protections must be deeply rooted in the document. This Court may not engraft on to constitutional text "more 'enlightened’ rights than the framers intended.” Id. at 759. In fact, this Court has been reluctant to find greater protections of individual rights in identically phrased state constitutional provisions without a compelling reason.¹⁶

Thus, to determine whether the Michigan Constitution provides different or greater protection than the federal constitution, we may examine a variety, but limited, number of pertinent sources. As always, when interpreting a constitutional provision, we begin by examining its specific language. In fact, Michigan constitutional provisions often differ significantly than their federal counterparts.¹⁷ Indeed, differences in language often reflect an intention to deviate from federal law and have an extensive history revealing that intent — case law, statutory, or reflected in the convention debates.¹⁸ In the instant case, there exists no textual difference with regard to the right to assistance of counsel between the federal and Michigan provisions. Each uses the same words in the same manner. While this is strong evidence that the provisions grant similar protections, we must also search elsewhere to determine if the contours of the Michigan guarantee are at variance with federal precedent.

Thus, we may examine the circumstances surrounding the adoption of the provision to aid in elucidating the intent underlying the provision. The circumstances surrounding this particular provision provide no evidence to support a finding that at the time of its ratification it was conceived that the constitution would be construed to adopt protections stronger than Strickland. The historical understanding of the provision before the 1963 Constitution did not include such a standard. Neither the Address to the People nor the Constitutional Convention debates suggest that a heightened standard was understood to be incorporated by the constitution. No evidence has been revealed offering insight into why ratifiers or framers may have envisioned such a standard to have been included in the constitution. Unlike other provisions, the right to assistance of counsel was not heavily debated, there were no alterations to its wording, and no controversies engendered regarding its meaning. No crisis of constitutional dimensions existed involving the right. If the convention or ratifiers had intended to alter the meaning of this provision, we can presume "they would have done so by express words . . . .” People ex rel Kennedy v Gies, 25 Mich 83, 88 (1872) (emphasis in original). They did not.

The Court has outlined other pertinent factors that might signify that an alternative interpretation of the Michigan Constitution, when compared with the federal constitution, was intended:

• [S]tate constitutional and common-law history

• [S]tate law preexisting adoption of the relevant constitutional provision

• [Structural differences between the state and federal constitutions

• [M]atters of peculiar state or local interest. [People v Collins, 438 Mich 8, 31, n 39; 475 NW2d 684 (1991); Sitz, supra at 763, n 14.]

In the instant case, there exists no structural differences with regard to the right to assistance of counsel between federal and Michigan provisions. Moreover, no peculiar state or local interests exist in Michigan to warrant a different level of protection with regard to the right to counsel in the instant case. Both the federal and state provisions originated from the same concerns and to protect the same rights. Furthermore, Michigan does not have a unique history with regard to the origin of the right to counsel. Michigan statutory law before the adoption of the constitution did not mandate the reversal of convictions because defense counsel may have deprived a defendant of an otherwise available and likely meritorious defense.

Nor does constitutional or common-law history suggest that the design of the Michigan Constitution was to grant greater protections than Strickland. Strong deference is due contemporaneous and longstanding interpretations of the constitution because they most likely reflect its original understanding. McPherson v Secretary of State, 92 Mich 377, 383; 52 NW 469 (1892), aff’d 146 US 1; 13 S Ct 3; 36 L Ed 869 (1892). In other words, we should not disregard lightly the "jurisprudential history of this Court . . . .” Sitz, supra at 758. No Michigan case before the ratification of the 1963 Constitution had adopted Justice Mallett’s novel interpretation of the right to counsel. Indeed, our jurisprudential history, until Garcia, narrowly construed the right to counsel.¹⁹ See, e.g., In re Elliot, 315 Mich 662; 24 NW2d 528 (1946), and authorities cited therein. Most precedent grappling with the issue of the standard of ineffective assistance of counsel did not articulate a standard and applied a very lenient one. See, e.g., People v Boyce, 314 Mich 608, 610; 23 NW2d 99 (1946); People v Lundberg, 364 Mich 596, 599-602; 111 NW2d 809 (1961).²⁰ In fact, recently after the adoption of the 1963 Constitution, the Michigan Court of Appeals adopted the permissive "farce and mockery of justice” standard that, at that time, had been adopted by the federal courts. See, e.g., People v Davison, 12 Mich App 429, 434; 163 NW2d 10 (1968). This reluctance to reverse convictions based on all but the most egregious errors of counsel is in complete accord with our long history of denying relief to convicted defendants in the absence of actual prejudice. See, e.g., Strang, supra at 9-10; Wade, supra at 91; People v Hahn, 214 Mich 419, 427; 183 NW 43 (1921); People v Horton, 224 Mich 139, 142; 194 NW 486 (1923). Michigan precedent, therefore, not only fails to support the proposition that the Michigan Constitution requires a stronger standard of protection than Strickland, but compels the opposite conclusion.

The inapplicability of Michigan precedent in the instant case is clearly revealed by the citations of authority to justify an alternative standard. Alaska, Hawaii, and Massachusetts have not been known to adjudicate Michigan constitutional claims, nor is our fundamental document modeled after theirs. Michigan has a very distinct constitutional history, given content by its own constitutional conventions and ratifications in 1835, 1850, 1908, and 1963 and the adjudications arising from them. With all respect, the fact that courts in Hawaii and Alaska, which were admitted as states well over a century after the ratification of Michigan’s first constitutional provision on the subject, have interpreted their independent constitutional provisions differently than the United States and Michigan Supreme Courts, proves little. Similarly, while Massachusetts has a long history of constitutional adjudication, it is separate and distinct from our own.

Moreover, those jurisdictions provide weak support for the alternative test. The Alaskan appellate courts, for instance, have recognized that, like Garcia, their test of ineffective assistance of counsel is based,-at least in part, "upon an analysis of federal constitutional law and that it is possible that the Alaska Supreme Court may wish to reconsider the prejudice test . . . .” Wilson v State, 711 P2d 547, 549, n 1 (Alas App, 1985).

In Commonwealth v White, 409 Mass 266, 272; 565 NE2d 1185 (1991), quoting Commonwealth v Saferian, 366 Mass 89, 96; 315 NE2d 878 (1974), the Massachusetts Supreme Court, stated that prejudice will be found when "counsel’s conduct . . . 'has likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” That court, however, consistently evaluated the effect of alleged attorney misconduct upon the outcome of the case as determined by the jury. White, supra at 275-277.²¹ White, therefore, is scarce support for deviating from Strickland.²²

The contention that a more protective standard than Strickland is justified does find some support in State v Smith, 68 Hawaii 304, 309; 712 P2d 496 (1986), in which the court ruled that it would adhere to its prior holding in State v Antone, 62 Hawaii 346, 348-349; 615 P2d 101 (1980), that ineffective assistance of counsel could be found if the errors of defense counsel " 'resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.’ ”²³ Unfortunately, the decision is devoid of any discussion of why such a standard fails to meet scrutiny under the Hawaii Constitution.

Not unlike Smith, Justice Mallett reasons that deviation is justified because the Strickland standard for prejudice is "unduly burdensome” and that it "places too much emphasis on the reliability of the outcome, instead of considering the defendant’s due process right to have a meaningful opportunity to affect that outcome.” Post at 347, 349.

Yet, this Court is to avoid the "unprincipled creation of state constitutional rights that exceed their federal counterparts.” Sitz, supra at 763.²⁴ Thus, the scope of the constitutional provision is not an issue of policy to be decided by a court of law, but is to be determined by proper constitutional authority.²⁵

Adherence to time-honored principles of constitutional construction is essential to prevent the unwarranted creation of Michigan constitutional rights. By examining the constitutional text, the structure of our constitution, the circumstances surrounding its adoption, Michigan jurisprudence, and matters of peculiar or local interest, we ensure that constitutional guarantees maintain their vitality without permitting the creation of rights from whole cloth. While this is often a delicate matter, to hold otherwise grants the Court the license to create constitutional law without a principled basis and in derogation of the constitutional order in which the people, not this Court, create the fundamental law.²⁶ If the constitution is unwise, it is for the people to amend it.²⁷

Reliance upon Michigan precedent based upon federal cases interpreting federal law, however, is not such authority. While leaving aside the propriety of those prior decisions, no Michigan precedent justifies the expansion of the guarantee in the instant case. Only Michigan jurisprudence that interprets Michigan law may be utilized to find a principled basis to expansively interpret the Michigan Constitution, and no such authority exists to justify a standard more protective than Strickland. Similarly, reliance upon foreign authority that has no bearing upon Michigan jurisprudence does not provide a principled basis to discover the intention underlying the Michigan Constitution. As Chief Justice Cavanagh has observed in a similar context, "[w]here the historical case law” supporting a proposed formulation "constitutes an 'arid wasteland,’ . . . that would seem to be a strong indication that [the formulation] cannot properly be recognized . . . .” Li v Feldt (After Second Remand), 439 Mich 457, 468; 487 NW2d 127 (1992). Indeed, "[t]he very aridity of the historical case law in this area actually makes it easier to apply” the constitution. Id. at 467.²⁸

On the other hand, if the historical origins of the provision at issue reveal that the intention, design, or purpose of our constitutional provision was to mandate a different result, then we must follow that calling.²⁹ If, for instance, the common-law origins of the provision or the Address to the People evidenced stronger protection than that granted by the federal courts, we would be bound to grant it. In Sitz, for instance, the Court legitimately found that Michigan historical jurisprudence had interpreted a Michigan constitutional clause that, although identically phrased, embodied different principles of law than its federal counterpart. The precedent cited in Sitz involved Michigan case law interpreting the Michigan Constitution. Historical jurisprudence revealed that the Michigan provision intended to provide stronger protection than its federal counterpart with regard to the search and seizure of automobiles on the open highway without individualized suspicion. In the instant case, however, there is no such evidence.³⁰

Furthermore, the adoption of the standard formulated by Justice Mallett would severely undermine the judicial process envisioned by the constitution. Every criminal defense attorney must make strategic and tactical decisions that affect the defense undertaken at trial. Most criminal defense attorneys have a variety of options from which to choose that affect, if not determine, how the jury understands and comprehends the case. Many of these options in a particular case may be contradictory, confusing, incredible, or simply poor. The role of defense counsel is to choose the best defense for the defendant under the circumstances. Strickland permits the defense attorney to do so because, unless the attorney abandons a defense that had a reasonable probability of affecting the jury verdict, the attorney may choose the best defense. Defense counsel must be afforded "broad discretion” in the handling of cases, which often results in "taking the calculated risks which still do sometimes, at least, pluck legal victory out of legal defeat.” Lundberg, supra at 600, 601. A - standard more protective than Strickland, however, would ensure that many decisions by defense counsel would be subject to attack after a criminal conviction. Convictions would be overturned because convicted criminals could legally argue that defense counsel should have chosen other avenues of defense that, although tenable, did not have a reasonable probability of affecting the jury’s verdict. In other words, a criminal defense attorney under such a formulation could be found to have provided ineffective assistance of counsel because he chose the better course.³¹

Furthermore, almost all criminal convictions would come under appellate and subsequent civil scrutiny, not only for fundamental deprivations of constitutional rights, but also because of the judicial imposition of an amorphous standard untested by our courts. Not only is such a result an unjustified departure in Michigan constitutional law, but it would engage Michigan courts in an endless quagmire of determining just what is meant by the standard. Instead of relying upon the well-established precedent developed under Strickland, our courts would be forced to struggle to craft appropriate rulings under a novel' standard never evaluated by Michigan courts. As Judge Learned Hand warned, judgments would come under constant attack, and courts "would become Penelopes, forever engaged in unravelling the webs they wove.” Jorgensen v York Ice Machinery Corp, 160 F2d 432, 435 (CA 2, 1947).

We are persuaded that, as Justice Brickley has cautioned, we should not find that the Michigan Constitution grants greater protection than the federal constitution with regard to identically worded provisions unless there is a compelling reason founded in history and the intentions of the document to do so. Nash, supra at 214. Absent from Justice Mallett’s opinion is the searching analysis found in Nash, Sitz, or similar cases. No historical documentation suggests that the constitution was intended to provide any more protective meaning to the Michigan Constitution when compared to the federal constitution with regard to the right to the effective assistance of counsel. That this provision does not mandate such a procedural morass is evident from the very uniqueness of the test in Michigan jurisprudence. Michigan courts, therefore, should not be forced to labor under an unprincipled and Court-imposed rule of law, contrary to the first principles of justice and the constitution.

Having determined the test to be applied in determining ineffective assistance of counsel claims, we now examine the facts presented in these consolidated cases.

In Pickens, defense counsel’s failure to properly file notice of an alibi was inexcusable neglect. Her own testimony at the - Ginther hearing disclosed that she w;as aware of Wright’s potential alibi testimony nearly three months before trial, yet she failed to file a timely notice or move for an adjournment to correct her error. Hence, her performance fell below the professional norm.

Nevertheless, Pickens has failed to establish the required showing of prejudice. Although the alibi witness was subpoenaed, he did not testify at the evidentiary hearing. Instead, for unexplained reasons, Pickens waived his production. Accordingly, no evidence has been presented to establish that the alibi witness would have testified favorably at trial. In other words, Pickens failed to establish that the alibi witness’ testimony would have altered the result of the proceeding. Because Pickens cannot show that there was a reasonable probability that the evidence would undermine confidence in the outcome of the trial, the decision of the Court of Appeals is reversed.

2

Similarly, Wallace contends that his constitutional right to effective assistance of counsel was denied because his attorney failed to properly prepare and present an insanity defense, utterly failed to present a diminished capacity defense, and generally was incompetent.

The primary defense theory was that Wallace killed his wife because he was insane and provoked. While the record reveals that defense counsel may have more strongly presented the insanity defense, the record just as clearly reveals that the jury’s decision to convict was based on the evidence — not counsel’s performance.³² As noted by the trial court when ruling on the ineffective assistance claim at the Ginther hearing:

The case was a very difficult case, at best, because of two things. One, the facts of the case indicated that eye-witnesses observed Mr. Wallace not only shoot his wife in the bar, but lean over and shoot her as she lay on the floor under a table in the bar, and then walk over to the bar and put the gun down on the bar and say, "Oh, it’s just my wife,” as though "you all don’t have anything to worry about, it’s just my wife.” In other words, "She’s so insignificant I had a right to kill her and she needed killing, anyway.”

Now that’s a very difficult fact for any attorney to have to deal with and present to 12 rational people and expect them to say, "Oh, well, he’s not guilty.” That is a very difficult set of facts to deal with, number one.

[T]hen he had his client, who had a history of treatment with Dr. Bhama, and since Dr. Bhama was the person who had dealt with Mr. Wallace over a period of time, he was pretty much stuck with Dr. Bhama in terms of his expert as it related to Mr. Wallace’s mental problems.

Furthermore, the Ginther hearing failed to reveal how a more seasoned attorney would have salvaged the insanity defense. Review of the Ginther hearing reveals that the jury was presented with a large array of expert testimony regarding the insanity defense. Wallace was unable to present additional evidence not presented to the jury that would have altered the outcome of the case. Thus, any ineffective assistance of counsel with regard to the presentation of the insanity defense does not justify reversal of the conviction.

Wallace also contends that counsel’s choice not to pursue a diminished capacity defense constituted ineffective assistance of counsel. At the Ginther hearing, defense counsel explained that he purposefully rejected utilizing a diminished capacity defense because the first section of the diminished capacity instruction might have dissuaded the jurors from finding Wallace insane.³³ Furthermore, counsel explained that because evidence was presented refuting that his client was intoxicated at the time of the shooting, a diminished capacity defense instruction would have been detrimental to his client’s defense.

As a Court far removed from the passion, dust, and grit of the courtroom, we must be especially careful not to second-guess or condemn with hindsight the decisions of defense counsel. A defense attorney must enjoy great discretion in the trying of a case — especially with regard to trial strategy and tactics. See, e.g., Lundberg, supra at 600. After all, the attorney witnessed or conducted voir dire, understood the credibility and demeanor of witnesses and his client, grappled with the evidence and testimony, and sensed the prosecutor’s strategy. We only have the cold record.

In the instant case, defense counsel’s strategic choice to focus on the insanity defense while downplaying the impaired capacity defense should not be presumed error simply because it was unsuccessful. The evidence of Wallace’s guilt was truly overwhelming — Wallace shot his wife point blank at least twice before a room of witnesses and shrugged her death off as if he had squashed a bug. The difficulties of the case made any trial extraordinarily difficult for defense counsel, and counsel carefully determined the best defense available. We cannot conclude, therefore, that in light of all the circumstances his performance was "outside the wide range of professionally competent assistance.” Strickland, 466 US 690.

Nor does Wallace show that he was prejudiced by counsel’s failure to pursue the diminished capacity defense. The lack of specific instructions regarding this defense did not preclude development of the theory that Wallace’s long-term alcohol and substance abuse contributed to the alleged temporary insanity he experienced at the time that he shot his wife. Hence, because this theory was adequately presented by counsel, and rejected by the jury, a further instruction on diminished capacity would not have aided the defendant. This is also true because a necessary component of the diminished capacity defense is that the defendant was mentally ill. The jury rejected such a finding when it rejected the guilty but mentally ill verdict. Hence, Wallace was not prejudiced by counsel’s choice not to pursue the diminished capacity defense.

c

Finally, Wallace assails counsel’s general competence. At times, counsel demonstrated a lack of familiarity with basic rules of procedure and basic rules of law. He consulted written notes and reference material to answer questions put to him by appellate counsel on rules of evidence and procedure, and insisted to the jury and the court that second-degree murder was a specific intent crime. He also asked the trial court who was to bring the directed verdict motion, and the order of closing arguments. He, however, explained at the Ginther hearing that many of these actions were attempts to gain favor from the court. Furthermore, none of these claimed errors prejudiced Wallace. After all, the trial court properly instructed the jury, a motion for directed verdict would have certainly failed, and closing arguments proceeded in the correct order.³⁴

While counsel’s performance was disturbing at times, the trial court’s conclusion when denying the motion for new trial on the ground of ineffective assistance of counsel is unassailable:

Under the circumstances, I have to agree that at times [defense counsel] did appear to be confused in terms of the way in which the case was being presented. In looking at the total facts of the case, though, the only conclusion that I could come to at the time was that the confusion was being caused by the factual situation, the complexity of the defense that he was trying to present, and the other problems that were attendant to representing Mr. Wallace ....

And under the circumstances, I cannot say that Mr. Wallace’s retained counsel represented him ineffectively. I think there were probably things that in hindsight we could all say we should have done or could have done, but I cannot say that there was any serious mistakes that he made that resulted in Mr. Wallace being denied a fair trial or effective assistance of counsel.

Wallace’s bare allegation that he was denied effective assistance of counsel is insufficient to make it so — none of the behavior complained of appears to have affected the outcome of the trial. Thus, Wallace has failed to show that he was prejudiced by his counsel’s behavior, and that he was denied effective assistance of counsel.

m

Wallace also contends that the trial court erred by denying him the opportunity to obtain certain neurological tests as deemed necessary by an independent psychiatric evaluator.

MCL 768.20a(3); MSA-28.1043(1X3) provides:

The defendant may, at his or her own expense, or if indigent, at the expense of the county, secure an independent psychiatric evaluation by a clinician of his or her choice on the issue of his or her insanity at the time the alleged offense was committed. The defendant shall notify the prosecuting attorney at least 5 days before the day scheduled for the independent evaluation that he or she intends to secure such an evaluation. The prosecuting attorney may similarly obtain independent psychiatric evaluation. A clinician secured by an indigent defendant shall be entitled to receive a reasonable fee as approved by the court.[³⁵]

The trial court denied Wallace this right when it denied him independent neurological testing deemed necessary by his privately financed psychiatrist. The request required that Wallace be transported while in custody and a thirty-day delay of the trial. This Court recognizes that the trial court, in an attempt to promote judicial economy and efficiency, sought to deny Wallace’s request for independent testing in light of the delay and earlier neurological tests that had been performed on the defendant less than a week before. Yet, a general interest in promoting judicial economy and efficiency may not deny the clear mandate of MCL 768.20a(3); MSA 28.1043(1)(3).

While the trial court violated MCL 768.20a(3); MSA 28.1043(1)(3), Wallace’s conviction may not be set aside unless the error resulted in a miscarriage of justice. MCL 769.26; MSA 28.1096. Neurological tests had already been administered the day defense counsel filed his motion for independent psychiatric tests.³⁶ While defense counsel was granted the opportunity to obtain an independent evaluation of these earlier tests and to question the doctor who performed the tests, he did not pursue these options to garner further information. Furthermore, the defense expert testified that defendant was suffering from mental illness in light of the pertinent information he possessed. Thus, Wallace’s defense was not prejudiced by the absence of independent tests.

The trial court’s error, therefore, did not constitute a miscarriage of justice requiring reversal of Wallace’s conviction.

IV

Finally, Wallace contends that his conviction should be reversed because of the admission of statements made by him and others as testified to by a prosecution expert rebuttal witness while explaining how he diagnosed Wallace’s mental state.

Generally, evidence underlying the basis of an expert opinion is admissible. MRE 703, 705.³⁷ Furthermore, MCL 768.20a(5); MSA 28.1043(1)(5) allows the introduction of statements made by a defendant to personnel of the Center for Forensic Psychiatry regarding the defendant’s mental illness or insanity at the time of the alleged offense. Such evidence is relevant because it places the expert’s opinions into a factual context, thereby enabling the trier of fact to determine the weight due an expert’s opinion.

In the instant case, the prosecution’s rebuttal witness’ testimony was relevant for the limited purpose of evaluating the credibility of his conclusion that Wallace was not mentally ill or legally insane at the time of the shooting. See People v James Robinson, 417 Mich 661, 664; 340 NW2d 631 (1983).

Wallace correctly notes, however, that relevancy is not the sole determinant of admissibility.³⁸ MRE 403 requires the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

The disputed testimony concerns innuendo of sexual perversion, a statement that Wallace talked to his attorney and "formulated plans,” and a recitation of what a police officer told him regarding his statements and actions on the night of the killing. Kolito also related Wallace’s statements that he had observed his estranged wife having sex with another man, that his wife alleged that he molested their daughter, and that he slept with their daughter until she was four years old. A curative instruction was read by the trial court after Kolito’s testimony.

Applying MRE 403, we do not find that the trial court abused its discretion in admitting Kolito’s testimony. There is no doubt that Kolito’s testimony was prejudicial to Wallace. The inquiry pursuant to MRE 403, however, is whether the disputed evidence was unfairly prejudicial. After all, presumably all the evidence presented by the prosecutor was prejudicial because it attempted to prove that defendant committed the crime charged. Our Court of Appeals has explained:

Obviously, evidence is offered by an advocate for the always clear, if seldom stated, purpose of "prejudicing” the adverse party. Recognizing this, the Supreme Court in adopting MRE 403 identified only unfair prejudice as a factor to be weighed against probative value. This unfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock. [People v Goree, 132 Mich App 693, 702-703; 349 NW2d 220 (1984).]

In determining that Kolito’s testimony was not unfairly prejudicial, we note that the relevancy of the testimony was bolstered by the defense counsel’s repeated attacks on Kolito’s credibility. The defense "opened the door” to this testimony by calling into question Kolito’s conclusion that Wallace was not mentally ill.³⁹ Furthermore, the background testimony helped explain Wallace’s state of mind leading up to the shooting. While the testimony was damaging to Wallace’s defense, it was so because it bolstered Kolito’s conclusion that he was not mentally ill when he shot his wife._

Because the testimony was relevant and not unfairly prejudicial, the curative instruction given by the trial court sufficiently removed any potential unfair bias generated from the testimony. Thus, we affirm the admission of the evidence.

v

At issue in these consolidated cases is whether the Michigan constitutional guarantee of the effective assistance of counsel provides a criminal defendant with greater protections than its federal counterpart. We hold that the intention underlying the Michigan Constitution does not afford greater protection than federal precedent with regard to a defendant’s right to counsel when it involves a claim of ineffective assistance of counsel. Thus, to find that á 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. Accordingly, we affirm the judgment of the Court of Appeals in People v Wallace and reverse the judgment of the Court of Appeals in People v Pickens because neither defendant is capable of showing that he was denied effective assistance of counsel.

Also at issue in Wallace is whether the denial of independent defense neurological tests by the trial court mandates reversal of defendant’s conviction. While the trial court violated MCL 768.20a(3); MSA 28.1043(1)(3) by denying defendant’s request for the tests, we affirm the conviction because the error was harmless under the circumstances.

Furthermore, we find that the admission of statements made by Wallace and others regarding the shooting and his past behavior as testified to by the prosecutor’s rebuttal witness was not error because the statements were relevant to rebut Wallace’s claim of insanity and were not unfairly prejudicial.

Hence, we affirm the judgment of the Court of Appeals in Wallace and reverse the judgment of the Court of Appeals in Pickens.

Brickley, Boyle, and Griffin, JJ., concurred with Riley, J.

1 MCL 768.20(1); MSA 28.1043(1) requires notice of an alibi defense be filed at least ten days before trial.

2 Unpublished opinion per curiam of the Court of Appeals, issued October 26, 1992 (Docket No. 115477).

3 Although the record is unclear, it appears that only days earlier a cat scan and other tests were performed. The record does not indicate who ordered these tests or their results.

4 In fact, only a few days before the killing, Wallace told several people that his wife was having an affair and that they would all be better off if he killed her.

5 Wallace told another officer that the victim had sex with her boyfriend in front of their young child.

6 He diagnosed defendant as suffering from organic brain syndrome and from unconscious substitution or confabulation.

7 For instance, Kolito testified:

He said his wife once woke him up and accused him of child molesting. He also — then he related a story about seeing his estranged wife with a man in a motel. Said his wife had a two bedroom flat and saw them there with each other, and he saw them on three days, the defendant got there at ten o’clock and watched the front for four hours looking through the window. He saw the man sitting at the table. At about two o’clock in the morning he saw the man have sex with his estranged wife. He heard him scream at his daughter. The defendant’s daughter slept with him, the defendant, until she was four.

8 Other prosecution witnesses testified that Wallace acted normally during most of his activities before the shooting. Furthermore, it was explained to the jury that the drug he had taken — Serax—is an anxiety reducing drug that has a calming effect. Moreover, testimony established that defendant drank alcohol and consumed Serax regularly. The prosecution’s expert noted that defendant probably possessed an acquired tolerance to these drugs — as opposed to an individual who mixed the drug with alcohol for the first time.

9 In short, "it is not the prerogative of this Court to change the plain meaning of words in the constitution 'as understood by the people who adopted it.’ ” Regents of Univ of Michigan v Michigan, 395 Mich 52, 74-75; 235 NW2d 1 (1975), quoting Bond v Ann Arbor School Dist, 383 Mich 693, 699; 178 NW2d 484 (1970).

10 The Sixth Amendment to the United States Constitution also mandates that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”

11 See Strickland, supra at 687-688 ("When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness”).

12 Furthermore,

an analysis focussing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may grant the defendant a windfall to which the law does not entitle him. [Lockhart v Fretwell, 506 US _, _; 113 S Ct 838; 122 L Ed 2d 180, 189 (1993).]

13 People v Dalessandro, 165 Mich App 569, 575; 419 NW2d 609 (1988) ("the Garcia two-part test fairly appears to be interwoven with federal law, and the Court did not state that it was basing its decision on separate, adequate, and independent state grounds”); People v Dalton, 155 Mich App 591, 602; 400 NW2d 689 (1986) (Harrison, J., concurring) ("A review of the proceedings of the state constitutional convention of 1961 shows no such indication as to the right to effective assistance of counsel”); People v Hampton, 176 Mich App 383, 387-388; 439 NW2d 365 (1989) (Griffin, J., concurring) ("Although several panels of this Court have held that Strickland governs federal constitutional claims while Garcia applies to state claims, this dichotomy is not mandated by the language of the state constitution, Michigan constitutional history, or the holdings in Garcia .... Garcia does not rest upon separate or independent'state constitutional grounds. Rather, it is based upon federal case law which has now been overturned”).

The Court primarily relied upon Beasley v United States, 491 F2d 687 (CA 6, 1974), a Sixth Amendment case, for the proposition that a defendant did not have effective counsel if his counsel did not perform at least as well as an attorney with ordinary training and skill in the criminal law or he did not conscientiously protect his client’s interests. The Court relied upon People v Degraffenreid, 19 Mich App 702, 718, n 22; 173 NW2d 317 (1969), which in turn was based upon the Due Process Clause of the Fourteenth Amendment for the proposition that ineffective assistance of counsel occurs when but for counsel’s error a defendant would have had a reasonably likely chance of acquittal.

Yet, in Degraffenreid, supra at 716, the Court of Appeals also found that the Due Process Clause would be violated if "but for [attorney error,] the defendant might not have been convicted . . . .” None of these decisions, however, developed their holdings from sources independent of the federal law.

14 See also Strang v People, 24 Mich 1, 9-10 (1871) (finding that the admission of inadmissible but unprejudicial testimony may not be the basis of a reversal); People v Hahn, 214 Mich 419, 427; 183 NW 43 (1921) (finding a reversal unwarranted because the multiple alleged trial errors were harmless); People v Horton, 224 Mich 139, 142; 194 NW 486 (1923) (finding that evidence allegedly seized illegally did not warrant reversal).

15 Chief Justice Cooley elaborated over a century ago:

And in seeking for its real meaning we must take into consideration the times and circumstances under which the State Constitution was formed — the general spirit of the times and the prevailing sentiments among the people. Every constitution has a history of its own which is likely to be more or less peculiar; and unless interpreted in the light of this history, is liable to be made to express purposes which were never within the minds of the people agreeing to it. [People v Harding, 53 Mich 481, 485; 19 NW 155 (1884).]

16 See, e.g., People v Nash, 418 Mich 196, 214; 341 NW2d 439 (1983) (opinion of Brickley, J.). Unless a searching analysis of the understandings of the ratifiers and. framers, as well as the historical circumstances surrounding the adoption of a provision, reveal otherwise, the Court must refrain from finding (or creating) such rights. See, e.g., Harding, supra at 485; Nash, supra at 214-215 (opinion of Brickley, J.); Sitz, supra at 758-759.

17 See, e.g., art 1, § 4 ("No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary”); art 1, § 5 ("Every person may freely . . . express ... his views”); art 1, § 6 ("Every person has a right to keep and bear arms for the defense of himself and the state”); art 1, § 11 ("The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state”); art 1, § 16 ("cruel or unusual punishment shall not be inflicted”); art 4, §24 ("No law shall embrace more than one object, which shall be expressed in its title”); art 5, § 19 ("The governor may disapprove any distinct item or items appropriating moneys in any appropriation bill”).

18 See, e.g., People ex rel Drake v Mahaney, 13 Mich 481, 495-496 (1865) (explaining the extensive history undergirding the Title-Object Clause [now art 4, § 24], which prohibits legislative practices common in the United States Congress); Nash, supra at 209-213 (explaining that art 1, § 11 was intended to permit the introduction of illegally seized narcotics and dangerous weapons in variation with federal law); 1 Official Record, Constitutional Convention 1961, p 478 (comments of Hodges) ("We did broaden [the Michigan parallel to the First Amendment] by adding the word 'express,’ and I think that to the extent that radio and television can be given freedom, this is done”).

19 As noted, because of its federal foundation, Garcia is bereft of any value for Michigan constitutional analysis.

20 In People v Gorka, 381 Mich 515, 521; 164 NW2d 30 (1969), the Court utilized an " 'adequate and effective’ counsel” standard, but the Court apparently referred to the federal constitution.

21 Specifically, the court found that defense counsel’s decision not to interview and call witnesses to testify did not amount to ineffective assistance of counsel because such testimony would have highlighted the defendant’s inconsistent position and the consistency of the victim’s allegations to the jury. Id. at 275. The court also found that another allegation of error by counsel was irrelevant because "even assuming that counsel’s failure to do so was manifestly unreasonable, the outcome of the case was in no way affected.” Id. at 277.

22 Also, neither is Safarían because that case was decided a decade before, and without the benefit of, Strickland.

23 The court reasoned that Strickland was "unduly difficult for a defendant to meet,” because a defendant would be successful " 'only where there is evidence that they should not have been convicted.’ ” Id. at 310, n 7, quoting Genego, The future of effective assistance of counsel: Performance standards and competent representation, 22 Am Crim L R 181, 199 (1984).

24 Indeed, Justice Mallett agrees that we are "free to uphold greater protections pursuant to Const 1963, art 1, §§ 17 and 20, for the citizens of this state if we find a principled basis in the history of our jurisprudence to do so.” Post at 347 (emphasis added).

25 Justice Christiancy explained:

The question is not whether the constitution ought to have permitted the exercise of this power; but whether, by a fair construction of the language of the instrument, as framed by the convention, and understood and adopted by the people, the power in question has been prohibited. Our province is not to make or modify the constitution, according to our views of justice or expediency, but to ascertain, as far as we are able, the true intent and purpose of the constitution which the people have deemed it just and expedient to adopt. [People v Blodgett, 13 Mich 127, 149-150 (1865).]

26 As Justice Potter explained:

Changing by judicial construction the settled meaning of words aptly used in the Constitution is more than the exercise of legislative power. It wrests private rights from their moorings, lets down constitutional barriers, and alters the foundation of government. [James S Holden Co v Connor, 257 Mich 580, 600; 241 NW 915 (1932).]

27 See Const 1963, art 12, § 1 (outlining the procedure by which the Legislature proposes, and the electorate may approve, a constitutional amendment); art 12, § 2 (outlining the procedure by which the people may both propose and approve a constitutional amendment); art 12, § 3 (outlining the procedure by which no later than every sixteen years the people may call a constitutional convention to revise the constitution).

28 In Li, the Court determined that the historical precedent before the adoption of the governmental immunity act did not support a public nuisance exception to that act.

29 [W]e may not disregard the guarantees that our constitution confers on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection. [Sitz, supra.at 759.]

30 Because we find that the Michigan Constitution does not mandate stronger protection than Strickland and that Michigan courts are bound to adhere to the minimum guarantees found in Strickland, we do not determine the exact nature of the Michigan guarantee. We do note, however, that it may be different, even less, than Strickland.

31 Furthermore, as a constitutional ruling, prior convictions will come under such scrutiny, subjecting past criminal convictions to the new standard.

Similarly, plea bargains would have fallen within the ambit of the standard espoused by the dissent because a defense counsel’s failure to formulate a defense, albeit one that would not have had a reasonable probability to affect the outcome of the case, may have led a defendant to accept a plea bargain. Defense counsel may become more reluctant to accept good plea bargains for fear that such decisions will now be subject to attack by a criminal defendant claiming to have had an "otherwise available and likely meritorious defense” even though defense counsel properly understood that it did not have a reasonable probability of affecting the jury’s verdict. Post at 341.

Moreover, the inevitable result of such a formulation would be an explosion of civil litigation in which juries would be permitted to award damages to a defendant who by definition has been reliably found guilty simply because defense counsel might have been more effective. That such a perversion of the truth-seeking function of criminal trials was not intended by the Michigan Constitution is beyond question.

32 Several witnesses testified that defendant acted normally before the shooting, and defendant did not allege any mental illness except at the time of the actual shooting. Also, while defendant had injested a tranquilizer and drank beer the day of the shooting, each activity was not unusual for defendant. Furthermore, defendant brought a gun to the bar and shot his wife in a manner in which the jury could easily determine was premediated.

33 The jury instruction on diminished capacity provides:

(1) A person who is under the influence of voluntarily consumed [alcohol/(and/or) controlled substances] at the time of the alleged offense is not for that reason alone to be judged legally insane.

(2) However, a person may be mentally ill and intoxicated, with both conditions affecting his actions. It is for you to judge whether, under all of the circumstances, the defendant was mentally ill at the time of the offense, and then to apply the further tests of whether or not the defendant was legally insane. [CJI 7:8:02.]

34 Wallace also alleges that defense counsel was untruthful', either at the Ginther hearing or during trial, regarding when he obtained and reviewed a crucial prosecution expert’s report. At trial he stated that he did not know Kolito’s report would be used and had not studied or discussed it with Wallace until the night before trial. However, when confronted with these assertions at the evidentiary hearing, he explained that he received the report and immediately studied it with Wallace eleven days before the trial. He explained that his prior assertions were merely an attempt to "try and lean on the Court” for additional time. In any event, Wallace does not explain how this conduct prejudiced his defense.

35 The United States Supreme Court in Ake v Oklahoma, 470 US 68, 83; 105 S Ct 1087; 84 L Ed 2d 53 (1985), specifically left the decision how to implement the right of a defendant gaining access to a competent psychiatrist to the states.

36 The neurological tests included a cat scan. The trial judge specifically denied Wallace’s request for another cat scan.

37 MRE 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. The court may require that underlying facts or data essential to an opinion or inference be in evidence.

MRE 705 provides:

The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, Unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

38 The prosecution’s reliance on People v Dobben, 440 Mich 679, 693-694; 488 NW2d 726 (1992), for the contention that the only limitation on an expert’s testimony is that set forth in MCL 768.20a(5); MSA 28.1043(1)(5) is incorrect. In Dobben, the Court stated: "Section 20a makes no reference to any limitation in the testimony of such an expert, other than that '[statements made by the defendant . . . shall not be admissible ... on any issues other than . . . mental illness or insanity at the time of the alleged offense.’ ” However, this statement was made to address an entirely different issue than that presented here — whether an independent expert may rely on historical evidence in testifying regarding the issue of criminal responsibility, or whether only a government-employed, certified clinician may rely on historical evidence.

39 The following exchange between the prosecutor, Mr. Kolito, and defense counsel is illustrative:

Q. So then based on all the information that you had did you come to an opinion as to whether or not the defendant was mentally ill on August the 4th of 1986?

A. Yes sir.

Q. What is that opinion?

A. That he was not mentally ill.

Q. Why not?

A. Well, the defendant had functioned at his place of employment that day. The defendant was an electrical inspector. There is no evidence that the defendant was experiencing any systems [sic] of psychosis, any symptoms of delusions . . .

[.Defense Counsel]: Objection, he doesn’t know, he wasn’t there, he doesn’t know what he was experiencing, whether he was experiencing blackouts or anything and he’s testifying to this jury that on August the 4th Shorty Wallace was just fine. Where was he on August the 4th? He wasn’t around Shorty Wallace.

It was after this exchange that Kolito read his report, which referenced statements made by others who witnessed Wallace’s conduct on the day of the shooting.