People v. Toma

613 N.W.2d 694, 462 Mich. 281

• Court: Michigan Supreme Court
• Decided: June 28, 2000
• Docket: 112860, Calendar No. 8
• Status: Published

Opinions

Markman, J.

Following a jury trial, defendant was convicted of first-degree felony murder, MCL 750.316(l)(b); MSA 28.548(l)(b), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b; MSA 28.424(2).¹ The Court of Appeals affirmed the trial court’s reversal of defendant’s convictions, agreeing that defendant had been denied the effective assistance of counsel. The Court of Appeals also found that the admission of testimony regarding statements made by defendant to a forensic psychologist in contemplation of interposing an insanity defense was error requiring reversal. We hold that any error stemming from the introduction of defendant’s statements to the forensic psychologist was harmless and that defendant was not denied his constitutional right to the effective assistance of counsel. Consequently, we reverse the judgment of the Court of Appeals.

i

Defendant’s convictions arose from events that occurred sometime around 10:30 P.M. on the night of November 29, 1993, when Steve Burge was shot , in the face and doused with gasoline at the front door of a residence he shared with Margo DeVita (now known as Margo McPherson) and her two children. Margo² testified that she had temporarily cohabited with defendant on two prior occasions under circumstances that she described as platonic. However, during the second of these periods, which lasted about a month, defendant began making unwelcome sexual overtures, and personal items went missing from Margo’s bedroom. After an incident when defendant tried to imprison Margo in his house, she moved in with her mother until she was able to lease a unit in a duplex house. Steve, Margo’s boyfriend, later moved in with her. In the months before the killing, Margo observed defendant drive past this house on numerous occasions, and, once, defendant stopped in and offered to pay Margo’s rent if Steve would move out.

Margo testified that on the night of November 29, 1993, someone kicked the front door open while she was half-asleep on the couch and Steve was watching football on television. Margo ran to her children in another room, and later came out to find Steve stumbling back through the front door, dripping with gasoline and bleeding profusely from a gunshot wound to the cheek. Through the window, Margo saw a man of defendant’s build, wearing a mask and light colored surgical gloves, struggle with her neighbor, Danny Parenteau, and then run away. After Steve was transported to the hospital, Margo observed an unfamiliar hat with hair attached to it in her living room, a gas can in front of her house, and a mask near the gas can. She reported to the police her suspicions that defendant was the assailant.

Danny Parenteau testified that on the night in question, he was watching football on television when he heard a gunshot from the house across the street. Danny ran outside and observed Steve and another man struggling inside the front door of Steve’s house. Steve forced the other man out of the house, and, when Danny approached to assist, he noted that Steve was covered with blood. As Steve collapsed, he shoved the other man away. Danny realized that this other man, who had also fallen to the ground, was armed with a gun, so Danny seized this man’s wrist and called to his brother, Russell, for help. The man smelled of gasoline, was wearing white, see-through gloves, and fired off several shots that Danny was able to direct away from himself. Russell came to help, but took cover behind a tree when the assailant shot toward him. As this was occurring, Danny observed Steve get back up, while holding his throat, and make it through his front door before again collapsing.

Danny tried to drag or carry the armed man, but when Danny stumbled and lost his grip, he ran for cover for fear of being shot. The man was not wean ing a mask at this point and he ran to a car, which Danny recognized as one that he had observed cruise past Margo’s house on four or five occasions. Danny was able to identify defendant at a police lineup as the man with whom he had struggled. Russell Parenteau, who lived with Danny, corroborated his brother’s account and added that the assailant ran to a car that was parked next to the home of another neighbor, John Talarico.

John Talarico testified that he lived next door to Steve and Margo and that, on the night in question, he heard gunshots just after he got out of the shower, so he looked out his window and saw a gunman wrestle with Danny and shoot toward Russell. From a distance of fifty feet, John observed the gunman’s face and identified him as defendant. Defendant departed in a car that John recognized as one that he had observed cruise slowly by on several occasions, once with its lights out.

Donald Lumm, a neighbor who lived around the comer from Margo and Steve, testified that on the night of November 29, 1993, he was in his kitchen when he heard several shots. Donald then heard squealing tires and, through his kitchen window, saw a vehicle “take off really quick.” Donald identified a photograph of defendant’s car as the one he saw that night.

Steve died from what was determined to be a single gunshot wound to the right side of his jaw, with the bullet traveling down through his neck. From the scene, the police recovered: a white towel soaked in gasoline, a hat with a wig sewn to it, several .38 caliber bullet casings, a mask found between the sidewalk and curb, and a fingertip from a “rubber” glove. The front screen door was broken outward and covered with blood, but there was no visible damage to the interior door. There was also blood outside the house, around the door area and on the grass. A subsequent search of defendant’s house turned up a large quantity of the type of gloves used by meat packers.³ Hairs were retrieved from the mask and hat, which were later determined to be similar in all respects to a sample of defendant’s hair. Fingerprints recovered from tape attached to the mask were later determined to be those of defendant.

The police began staking out defendant’s house on the night of the killing, and defendant was stopped in his automobile and taken into custody at 7:30 A.M. the following morning. The officers detected a strong smell of gasoline from defendant’s vehicle and hat. After an attempted arraignment, where there was some discussion regarding count five in the multiple count warrant, defendant was overheard to make the following unsolicited statement: “They count five. They say I killed five people. I only kill one. Why do they count five now?”

Defendant, whose native language is Arabic, testified at trial through an interpreter, although he frequently answered questions in English. His testimony described his relationship with Margo, during the twelve days she first lived with him as that of a husband and wife, just as it was when she again stayed with him. Margo allegedly began stealing from defendant and only moved out the second time after defendant assured her that he would be her boyfriend and would come to visit her everyday and pay the rent. However, when defendant came over after working late one night, he found Margo in the company of “John” and “Don.” The three of them were drunk and Margo was wearing only a slip. After that, defendant stopped going to Margo’s house.

According to defendant, around 3:00 P.M. on the day of the incident, Margo came to defendant’s home and demanded that he sign over his house, and car to her. She also commanded him to give her all the money he had in the bank, and to vacate the house, taking only his clothes, but leaving the furniture. Defendant refused, so Margo took his car. She returned later, along with her children, in a different car, claiming that defendant’s car was broken and that Steve had taken it to get it fixed. Margo drove defendant to her house, and he played with Margo’s children while waiting for Steve to return with defendant’s car. Margo’s daughter brought a mask into the room and defendant and the children played with it.

The events that defendant next described are somewhat muddled by the circumstances that gave rise to the trial court and the Court of Appeals determinations that defendant was denied the effective assistance of counsel. Specifically, defense counsel failed to clarify who defendant was identifying as his story unfolded. Defendant mispronounced certain names, and the interpreter made certain incorrect translations of what defendant said. However, as it was told to the jury, somebody named “Cherry” arrived, then within ten minutes Steve came home and denied being in possession of defendant’s car. Margo then said that John had defendant’s car. Then John, Jim, and “Rose” (and apparently “Don”) entered the residence, with John and “Don” being armed with what the inteipreter described as “a small gunshot, black” and a shotgun. These men ordered defendant to pay a $3000 drug debt owed by Margo, and defendant tried to talk them into postponing payment until the next day. John ordered defendant to sign a piece of paper, but defendant crushed it and threw it back in John’s face.

The juiy heard that John drew his gun while Margo yelled “kill him outside.” Steve tried to grab John’s hand, and defendant began fistfighting with “Jimmy.” Defendant’s blows caused Jimmy to bleed and run away, so defendant then engaged “Rose” in a fight that began inside and continued outside on the concrete. Defendant heard a shot and then “Cherry” came out and said “John kill Steve.” Then John emerged from the house holding a black gun that had a nine-shot capacity. John ran “to Don Andrews,” then “Don” came out of the house and tried to hit defendant with his shotgun, so defendant began fighting “Don” and “Rose” simultaneously. Defendant disabled “Don” with a kick between the legs, then made his way down the street where he found his car and effected an escape.

Defendant then recounted that he went home and had a beer. Feeling hungry, he went out for a kabob, and stopped at a store. After returning home, he drank a second beer, then slept until it was time to get up for work. He was stopped and arrested on his way to work the next morning.

Although defendant did not raise insanity as a defense at trial, he was cross-examined, over a defense objection to inadequate foundation, regarding whether he gave a version of the relevant events to Dr. Mae Keller, a clinical psychologist who had interviewed him pursuant to a notice that he intended to interpose an insanity defense. Defendant was further questioned regarding a different version that he had supposedly given to Keller. Keller was then permitted to testify, over a defense objection on the basis of privilege, as a rebuttal witness that defendant described routine activities on the day and night in question, and that these activities did not include even being at Margo’s house.

Following defendant’s sentencing, the Court of Appeals granted his motion to remand for a Ginther4 hearing on defendant’s claim that he was denied the effective assistance of counsel. At that hearing, defendant testified that: “Cherry” was Steve’s girlfriend,⁵ “Jimmy” was Cherry’s brother and Margo’s boyfriend, “Don” was prosecution witness Danny Parenteau, “Rose” was prosecution witness Russell Parenteau, and “John” was prosecution witness John Talarico. Errors by the interpreter at trial were noted. Defendant had not said that John entered holding a “gunshot,” but had stated that John entered, then “Don” entered holding a small black machine gun. Also, defendant had not said that John was running “to Don Andrews,” but had said that John was running “to Don and Rose’s,” meaning that John ran toward the house of Danny and Russell.

Defendant’s trial counsel testified that he did not notice that defendant was saying “Rose” instead of “Russ” and “Don” instead of “Dan,” and that it was possible that he had become accustomed to his client’s accent. Further, defendant’s counsel conceded that from his first contact with defendant until the end, defendant made major adjustments in his story. Originally defendant claimed not to have been present at Margo’s on the night of the killing. The evolving events, as defendant claimed to remember them, formed the basis for the defense theory of the case.

The trial court found that defense counsel had been ineffective on the basis of a number of factors. The Court of Appeals affirmed a subsequent order granting a new trial on the basis of counsel’s failure to present defendant’s side of the story in clear terms, as well as the admission of the testimony of the forensic psychologist.

n

We first address the admission of testimony regarding statements made by defendant to a forensic psychologist in contemplation of interposing an insanity defense.⁶ The Legislature has provided:

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 issue 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).]

This is a clear expression by the Legislature that these statements cannot be admitted at trial except on the issue of insanity, and it is also clear that, under the precedent that the trial court was obligated to follow, no exception to this rule existed for impeachment. See People v Jacobs, 138 Mich App 273, 276-278; 360 NW2d 593 (1984). Hence, the admission of testimony regarding these statements was error,⁷ but the question remains whether this was error that now requires reversal.

Defense counsel objected to the testimony of the forensic examiner on the ground that the communication was privileged. The communication was, in fact, privileged from admission for any purpose other than defendant’s mental illness or insanity at the time of the alleged offense. MCL 768.20a(5); MSA 28.1043(1)(5); Jacobs, supra at 276-278. However, had the proper statutory provision and controlling case law been brought to the trial court’s attention, the trial court surely would not have admitted the now challenged statements and testimony. Hence, the trial court’s decision was nothing more than an erroneous evidentiary ruling at trial. Nonetheless, the dissent would bootstrap this mistake into constitutional error by asserting that the statutory scheme requiring defendant to cooperate with the examiner on pain of losing the insanity defense placed him in a coercive situation. That is, claims the dissent, defendant was forced to choose between his constitutional right to assert a substantial defense⁸ or to give up his constitutional privilege to be free from compelled self-incrimination.⁹ With all respect to the dissent, we fail to see when defendant was actually put to such a choice.

It is well settled that the right to assert a defense may permissibly be limited by “established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence,” Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). This Court has previously recognized that limitations placed on raising the insanity defense, pursuant to the procedures established in MCL 768.20a; MSA 28.1043(1), do “not unconstitutionally infringe on a defendant’s right to present a defense.” People v Hayes, 421 Mich 271, 283; 364 NW2d 635 (1984).

If the established rules of procedure found in MCL 768.20a; MSA 28.1043(1) do not impermissibly limit a defendant’s right to assert the insanity defense, it follows that no aspect of defendant’s decisions regarding: (1) providing notice of intent to raise the defense; (2) cooperating with the examiner; or (3) abandoning the insanity defense, was the product of impermissible coercion. The eventual erroneous ruling by the trial court, which occurred well after both the examination and defendant’s decision to abandon the insanity defense, could not have reasonably been anticipated by assessing the extant rules of procedure. If the mere possibility that a court will apply the law incorrectly gives rise to a justified reluctance to provide full disclosure to the examiner or to avail oneself of an available defense, then defendant’s right to present an insanity defense would have been equally infringed even if the trial court had later correctly refused to admit any testimony regarding his statements to the examiner. This is so because any coercion to defendant’s detriment was complete by the time the court ruled on this issue.

Likewise, we cannot accept the dissent’s position regarding the effect on future defendants of affirming defendant’s convictions. The dissent assumes that a failure to reverse defendant’s conviction will have a chilling effect on access to the insanity defense. The dissent reaches this conclusion despite our present conclusion that the admission of testimony regarding the forensic interview constituted error. Hence, its conclusion appears necessarily to be premised upon future disregard by the trial courts of this Court’s present holding.

The dissent also asserts that this error violated due process because defendant was lured into speaking with the forensic psychologist by a statutory promise that his statements would not be used against him at trial, and the admission of those statements broke that promise. We agree with the proposition that if a criminal defendant relies on a promise from the state and the state breaches that promise, the state must provide a remedy for any resulting due process violation. See, e.g., People v Gallego, 430 Mich 443; 424 (1988). Fundamental notions of due process dictate that if the resulting breach contributes to a defendant’s conviction, reversal is warranted. See People v Wyngaard, 226 Mich App 681, 695; 575 NW2d 48 (1997) (Markman, J., concurring in part and dissenting in part). However, if every error in the application of a rule of evidence or criminal procedure was treated as a breach of a governmental promise, just as if it had been specifically made to an individual defendant as part of a plea bargain or to secure testimony, all trial errors would violate due process. While we are not oblivious to the similarity between this statute’s protection and a specific promise that a defendant’s statements will not be used against him, we conclude that the two are sufficiently distinguishable to justify a rejection of the proposition that every trial error effectively presents a constitutional violation. In any event, as we shall explain, our resolution of whether the error here rises to the level of a constitutional violation does not affect the outcome in this case.

Consequently, this is preserved nonconstitutional error,¹⁰ and our harmless error analysis entails the application of the rule this Court announced in People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999). “The object of this inquiry is to determine if it affirmatively appears that the error asserted ‘undermine [s] the reliability of the verdict.’ ” Such error does not require reversal unless, in the context of the untainted evidence, “it is more probable than not that a different outcome would have resulted without the error.” Id.

The first step in determining whether this error was harmless is to assess its potential prejudice to defendant. The prosecutor, of course, introduced this evidence to impeach defendant’s credibility. To the extent that this was accomplished, it was achieved by the jury’s appreciation of a logical syllogism that goes something like this: (1) defendant lied to the forensic psychologist about the incidents in question; (2) this shows that defendant has a propensity for untruthfulness, particularly with regard to this incident; therefore, (3) the jury should not believe defendant’s trial testimony with regard to this incident. However, the prejudice of the tainted evidence cannot be measured in a vacuum. Rather it must be measured in context. By defendant’s own testimony, after being present at the killing of Steve Burge, he went home and did not call the police. He made no arrangements for his own personal security, but, rather, engaged in a number of routine activities such as going out to eat, stopping for groceries, getting a night’s sleep, and rising and going to work. Putting aside its limited believability, the best interpretation of this testimony that is consistent with defendant’s innocence is that defendant did not want to be drawn into the investigation of this killing and was going to pretend that he was not there. Consequently, there is very little additional prejudice to defendant from the jury learning that, at a subsequent point, he claimed that he was not present when Steve was killed. This is so because most of this prejudice was already present from defendant’s own untainted testimony, and defendant’s false statement to the forensic psychologist was consistent with the interpretation of defendant’s postkilling conduct that was the most favorable to him.

By contrast, the untainted evidence pointing to defendant’s guilt is overwhelming. In an unsolicited statement, defendant essentially admitted the crime, saying: “They count five. They say I killed five people. I only kill one. Why do they count five now?”¹¹ Two eyewitnesses positively identified defendant as the assailant, and, by his own testimony, he was present when Steve was killed. Defendant claimed that he was the intended robbery or extortion victim of the real killers, but took no precautions for his safety, did not call the police, and engaged in routine behaviors immediately after the killing. Margo testified about a pattern of stalking by defendant that was corroborated by her neighbors. Defendant’s attempt to explain his frequent presence, by claiming that his promise to visit her everyday was the only way he could get Margo to move out of his house, defies common sense.¹²

Defendant’s testimony is inconsistent with the physical evidence, while the testimony of Margo and her neighbors does not conflict.¹³ The fingertip of a rubber or latex glove found at the scene is consistent with Margo’s testimony that the masked assailant wore light colored surgical gloves, as well as the fact that there was a struggle during which Danny kept defendant from pointing his weapon at him. The possession by, and availability to, defendant of such gloves supports the prosecutor’s case. It is undisputed that Steve was not only shot in the jaw, but doused with gasoline. Defendant was arrested the next morning reeking of gasoline. The recoveiy of a hat with a wig sewn to it, along with a mask that had tape on it bearing defendant’s fingerprints, is consistent with the theory that defendant arrived at Margo’s house dressed in a manner calculated to conceal his identity. Defendant’s claim that Margo’s daughter brought the mask into the room and that defendant played with it, does not explain the wig-hat or why the mask was recovered by the police from the sidewalk in front of the house. Nor does anything in defendant’s account explain why he would calmly accompany Margo to her home, then bide his time in idle play with her children waiting for the return of his car, after Margo had supposedly demanded he give her his house, his furniture, and his money, and had stolen his car.

If someone named Cherry had come out of the house and said “John kill Steve,” that statement would have been inaccurate when made. Steve was alive and still conscious when the police arrived, and he remained alive for another twenty hours. It was decidedly convenient for defendant that Cherry would make this inaccurate statement, thus permitting defendant to be removed from the place of the killing, yet still be able to identify John as its perpetrator. Defendant’s story that Steve was shot inside the house while defendant was outside fighting others does not explain the large amount of blood found outside the house and on the broken exterior door. Defendant’s story that John emerged from the house carrying a gun that had a nine-shot capacity imputes knowledge to defendant that is unlikely under the circumstances that he recounted. Defendant’s claim to have prevailed in a fistfight with three men, two of whom were armed, is less than credible. Likewise, it appears to be a significant coincidence that defendant not only had his car keys with him, but was able to immediately locate his car when fleeing from armed assailants. By his account, his car had been taken from him earlier in the day and he was driven to Margo’s house in a different car.¹⁴

On one side of the scale, we have the consistent testimony of several eyewitnesses, the physical evidence, and defendant’s unsolicited admission. On the other side, we have defendant’s version of events that would be unbelievable even if not contradicted. Given the damage that defendant’s own story did to his credibility, and the enormity of the untainted evidence, we conclude that any error stemming from the jury learning that defendant had, at some point, denied being at the scene to a psychologist was harmless. Defendant has not established that it is more probable than not that a different outcome would have resulted without the error.

In fact, the evidence in this case is so substantial that, even if we were to analyze this as constitutional error under a due process theory (e.g., that defendant was enticed to give up his privilege to be free from compelled self-incrimination and speak to the forensic examiner by the statutory assurance that his statements could not be used for the purpose for which they were ultimately admitted), we would, nevertheless, conclude that the error was harmless.¹⁵ It is clear to us that the prejudice from the improperly admitted evidence, in view of the untainted evidence, was harmless beyond a reasonable doubt.

ni

We next address the Court of Appeals holding that defendant was denied the effective assistance of counsel because his attorney failed to clarify his testimony so that it was presented in a way that was more comprehensible to the jury. Specifically, defendant contended, inter alia, that his trial counsel should have asked follow-up questions that would have clarified the action described by defendant and made it clear to the jury that the true offenders, as described by defendant, included all of the most damning of the prosecutor’s eyewitnesses.

For a defendant to establish a claim that he was denied his state or federal constitutional right to the effective assistance of counsel, he must show that his attorney’s representation fell below an objective standard of reasonableness and that this was so prejudicial to him that he was denied a fair trial. Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994). As for deficient performance, a defendant must overcome the strong presumption that his counsel’s action constituted sound trial strategy under the circumstances. People v Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997). As for prejudice, a defendant must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different . . . ” Id. at 167. We conclude that counsel’s failure to elicit elaborative testimony from defendant was neither deficient nor prejudicial.

As defense counsel’s testimony at the Ginther hearing established, defendant’s story, as he claimed to remember it, evolved during the course of his representation from not having been at the scene of the crime, to being present, but not being the shooter. Defense counsel conceded that defendant’s latest version of events did not comport with the physical evidence. Under these circumstances, no reasonably competent attorney would have thought it advisable for defendant to relate his story in sufficient detail to enable its veracity to be checked by comparing it to the physical evidence or subjecting it to precise cross-examination.¹⁶

The dissent states that, at the Ginther hearing, defense counsel “admitted having failed to prepare or review with defendant specific questions he would ask.” Post at 312. Actually, defense counsel denied failing to review with defendant the questions he would be asking, and only conceded that he “did not specifically write out the questions [he] was going to ask . . . Moreover, defense counsel testified that he visited defendant in jail a tremendous number of times to enlist defendant’s aid in preparing the defense. Defense counsel expressly stated, “we prepared [defendant] as best we could” and he estimated spending ten to twelve hours specifically preparing defendant to take the stand.¹⁷

A defendant’s decision whether to testify on his own behalf is an integral element of trial strategy. For a variety of reasons, many defendants, under the advice of counsel, do not take the stand, presumably concluding that the advantages of doing so would be outweighed by the disadvantages. It is likely that a great many of those who do not take the stand would be less hesitant to do so if, like defendant, they could plausibly tell the jury that they did not commit the crime with which they are charged, while advancing an alternative exonerating theory in general and somewhat unintelligible terms, thus effectively precluding detailed cross-examination.¹⁸ Even if this was not counsel’s express plan, it would have been dangerously inept of him to intentionally provide defendant with the opportunity to offer more details such as the magazine capacity of John’s gun. The supposed language barrier¹⁹ in this instance provided defendant with a way for the jury to see him deny committing this crime, yet plausibly not let them hear his story in a manner in which its incredible nature was completely clear to them.²⁰

The dissent states that defense counsel did not testify that he thought defendant’s story was a fabrication²¹ and that defense counsel found that defendant’s story “made sense and rebutted the theory of the prosecution.” Post at 312. The closest that defense counsel’s testimony came to that proposition was when he stated:

Well, it’s troubling, you know, when you’re trying to prepare a defense and the client tells you one thing and the physical evidence clearly points in a different direction, and there are certain things you have to own, I mean, you have to bite the bullet when comes to certain things, but, ultimately, you know, what he told us seemed to make sense, some sense.

We cannot agree with the dissent’s characterization of this testimony in light of defense counsel’s acknowledgment that defendant made “major adjustments” in his story and that the theory of the defense was based on events of the evening as defendant ultimately “claimed to remember them.”

Moreover, finding that counsel was deficient presumes that, as of trial, defendant’s version of events was as developed as it was by the time of the Ginther hearing. Given counsel’s testimony about the evolving nature of defendant’s story, it is just as likely that, having sat through trial, defendant merely tried to cover as many details presented in the prosecutor’s case as possible, and he experienced trouble keeping his story and names straight. With the passage of time, and the assistance of a transcript, perhaps defendant was able to refine this story. This does not demonstrate that counsel was deficient at the time of trial for not knowing what defendant would later “remember.”

Finally, we fail to see how defense counsel's conduct could have been prejudicial to defendant, given not only the enormity of the evidence against defendant as discussed in part n, but also the fact that defendant’s clarified testimony (as elicited at the Ginther hearing) is hardly more believable than the somewhat garbled version presented at trial.²² It is not more believable that John was holding a machine gun than a shotgun, and, given that .38 caliber casings were found at the scene, defendant’s best alternative was to have the jury hear this weapon described as “a small gunshot, black.” The jury was not in possession of transcripts, so they would not necessarily have understood defendant’s mispronunciations in the same way as the transcriber (e.g., hearing “Rose” when defendant was referring to “Russ”). The defense theory was clear that a number of people who were present during the killing were trying to shift the blame to defendant. Under defendant’s version of events, these unclearly identified persons, out of necessity, would have included John Talarico, Danny Parenteau, and Russell Parenteau. Confusion by defendant about the exact identities of those trying to rob or extort him at gunpoint was consistent with his theory, and more believable than the potential “details” that defendant later demonstrated that he was capable of adding.

The Court of Appeals noted that defendant’s testimony offered the only direct rebuttal of the prosecutor’s theory. However, effective rebuttal is accomplished only if defendant’s testimony is believed. The problem with defendant’s clarified version is that it is so unbelievable that defendant was arguably better off letting the jury speculate about what he was really trying to say, and hoping the jurors would rely on defense counsel’s opening statement regarding what the facts would show. Consequently, defendant did not demonstrate that, by failing to clarify his testimony, his trial counsel’s performance fell below an objective standard of reasonableness and that this was so prejudicial that he was denied a fair trial. Rather, defendant’s trial was fundamentally fair and the verdict is reliable.²³

CONCLUSION

We hold that any error stemming from the admission of the testimony regarding statements given to a forensic psychologist by defendant in compliance -with MCL 768.20a; MSA 28.1043(1) was harmless. We also hold that defendant was not denied his right to the effective assistance of counsel on the basis of his counsel’s failure to ensure that his testimony about what occurred was presented to the jury in a different manner. Defense counsel’s performance was neither deficient nor prejudicial in this regard. Consequently, we reverse the judgment of the Court of Appeals and, because defendant raised issues in his cross appeal not addressed by the Court of Appeals, we remand this case to that Court for consideration of the unaddressed issues.

Weaver, C.J., and Taylor and Corrigan, JJ., concurred with Markman, J.

1 The jury convicted defendant on six counts: (i) second-degree murder, MCL 750.317; MSA 28.549, as a lesser included offense to a charge of first-degree, premeditated murder, MCL 750.316(l)(a); MSA 28.548(l)(a); (h) felony-firearm based on count i; (in) felony-murder based on arson or attempted arson; (iv) felony-firearm based on count rv; (v) felony-murder based on breaking and entering a dwelling with the intent to commit arson; and (vi) felony-firearm based on count v. The jury hung on two counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, as well as two counts of felony-firearm based on those assault charges. At sentencing, the prosecutor elected to maintain the convictions on counts v and vi, and the trial court vacated the others.

2 Uncharacteristically, our recitation of the facts employs the first names of witnesses who were at or near the location of the shooting. This is necessary because the various parties’ first names are relevant to one of defendant’s claims.

3 Defendant worked as a meat cutter in a grocery store.

4 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

5 At defendant’s preliminary examination, Margo testified that defendant had a relationship with a woman named either “Sheny” or “Cherry” Smith. At trial, Margo identified this person as Sherry. At the Ginther hearing, the prosecutor made an offer of proof that Janice Burge could testify that her son, Steve, did not have a relationship with anyone named “Cherry” and that Margo had been Steve’s girlfriend.

6 Legal insanity is an affirmative defense to a crime in Michigan. MCL 768.21a; MSA 28.1044(1). A defendant in a felony case who wishes to interpose an insanity defense, must serve written notice on the court and the prosecutor not less than thirty days before trial and submit to a court-ordered examination, relating to the claim of insanity, by personnel for the center for forensic psychiatry or other qualified personnel. MCL 768.20a(l) and (2); MSA 28.1043(1)(1) and (2). A defendant or the prosecutor may also obtain independent psychiatric examinations. MCL 768.20a(3); MSA 28.1043(1)(3). The failure by the defendant to fully cooperate in either the court-directed or independent examinations, bars the defendant from presenting testimony relating to insanity at trial. MCL 768.20a(4); MSA 28.1043(1)(4).

7 We express no opinion here on whether MCL 768.20a(5); MSA 28.1043(1)(5) requires a court to sit by while testimony known to the court to be perjury is introduced. We have previously stated that a defendant has “no right, constitutional or otherwise, to testify falsely . . . .” People v Adams, 430 Mich 679, 694; 425 NW2d 437 (1988).

8 See Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973); People v Whitfield, 425 Mich 116, 124, n 1; 388 NW2d 206 (1986); People v Hayes, 421 Mich 271, 278; 364 NW2d 635 (1984).

9 US Const, Am V; Const 1963, art 1, § 17.

10 People v Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999).

11 The dissent does not characterize defendant’s unsolicited statement as an admission. Bather, the dissent believes, given defendant’s poor command of the English language, that this could have been an expression of defendant’s incredulity at being charged with three counts of murder when only one man died. Post at 326-327. We find that to be a highly improbable interpretation of “I only ldll one.” We view it to be objectively more probable that reasonable triers of fact would interpret defendant’s statement as an expression of incredulity at being charged with what he thought were five murder counts after having only killed one person. This is particularly true in light of Margo’s testimony that defendant spoke and understood English reasonably well.

12 The dissent finds it reasonable that Margo “would not leave without assurances of [defendant’s] continued presence and her continued financial security.” Post at 325. We concede that it does not defy common sense for defendant allegedly to have agreed to onerous conditions in order to secure the departure from his house of an unwelcome thief. What more defies common sense is that defendant would adhere to such conditions after Margo had moved out and had established residence elsewhere.

13 The dissent latches onto an argument made by defense counsel at trial that, although Margo testified that the assailant kicked open her front door from the outside, the only damage was to the storm door, which was bent outward. Prom this, defense counsel argued that the door was damaged by someone trying to get out, and not by someone forcing their way in, and that this supported defendant’s version of events. However, Margo never testified that her interior door had been locked, there is no reason to presume that the doorknob was not turned before the kick was delivered, and Margo specifically stated on cross-examination that the door was not damaged when it was kicked open. Moreover, the fact that the exterior storm door was broken outward is consistent with Danny Parenteau’s testimony that he saw Steve fighting a man inside the front door of Steve’s house and that Steve forced the man out through that door.

14 The dissent discounts the overall implausibility of defendant’s testimony because, among other things: (1) a witness who saw someone shot in the face might have exclaimed that the person had been killed; (2) it is believable that defendant could have serendipitously found his car to effect an escape; and (3) defendant might have engaged in routine conduct after the killing out of shock, mental imbalance, or distrust for the police. However, we do not view these aspects of defendant’s story as conclusive evidence of his guilt. A brick is not a wall, and the credibility of defendant’s story cannot be measured by viewing its elements in isolation. Instead, we consider the entire panoply of improbable or highly coincidental elements in defendant’s testimony to be significant. This is particularly so in light of the more reasonable explanations that were offered by the prosecutor’s witnesses, which were consistent with the physical evidence.

15 Constitutional error is either structural and subject to automatic reversal, or it is nonstructural and requires reversal only if the improperly admitted evidence, in light of the properly admitted evidence, was not harmless beyond a reasonable doubt. Arizona v Fulminante, 499 US 279, 309-310; 111 S Ct 1246; 113 L Ed 2d 302 (1991); People v Anderson (After Remand), 446 Mich 392, 404-406; 621 NW2d 538 (1994). Even the admission of involuntary confessions, which was once considered to be structural error, is currently understood to be subject to harmless error analysis. Fulminante, supra at 308-310; People v Howard, 226 Mich App 528, ; 575 NW2d 16 (1997). There is nothing about the error in this case that would compel a more rigorous test than that applied to coerced confessions.

16 It may well be that defense counsel’s failure to nail down the details of defendant’s story before trial was the only way that counsel could aid defendant in presenting his story within counsel’s ethical obligation not to knowingly offer evidence that counsel knows to be false. While a defendant may have the constitutional right to the effective assistance of counsel, this does not encompass the right to assistance of counsel in committing perjury. In fact, an attorney’s refusal to knowingly assist in the presentation of perjured testimony is not only consistent with his ethical obligations, but cannot be the basis of a claim of ineffective assistance of counsel. Nix v Whiteside, 475 US 157, 174-175; 106 S Ct 988; 89 L Ed 2d 123 (1986). See also United States v Grayson, 438 US 41, 54; 98 S Ct 2610; 57 L Ed 2d 582 (1978) (“Counsel ethically cannot assist his client in presenting what the attorney has reason to believe is false testimony”); Adams, n 7 supra, 430 Mich 694 (“there is no right, constitutional or otherwise, to testify falsely”); MRPC 3.3(a)(4) (“A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false”).

17 The dissent also suggests that defense counsel affirmatively asserted that it did not occur to him that clarification of defendant’s testimony was needed because counsel had become accustomed to defendant’s accent. In fact, defense counsel only conceded appellate counsel’s theory that it was possible that acclimation was the reason why he did not notice the mispronunciations.

18 The dissent does not accept that the prosecutor’s ability to cross-examine defendant was impaired by the fact that defendant’s direct testimony was not detailed. The prosecutor could possibly have exposed the weaknesses in defendant’s story by asking the clarifying questions that, according to the dissent, defense counsel should have asked. However, defense counsel was aware of the fact that defendant’s story was inconsistent with the physical evidence, whereas the prosecutor would have been on a fishing expedition. Although the prosecutor was not prohibited from clarifying defendant’s testimony, many experienced trial attorneys would agree that it is rarely sound practice to ask questions before the jury without first knowing the answer. Defense counsel may well have viewed the prosecutor as being reasonably competent when deciding on the merits of eliciting elaborative testimony from defendant.

19 In addition to Margo’s trial testimony that defendant understood and spoke English reasonably well, at the Ginther hearing, defense counsel testified: “when I first met with [defendant], he spoke to me in English, but I was always concerned that he didn’t understand the nuances of our language.”

20 The dissent claims that defense counsel’s decision not to clarify defendant’s version of events “allowed the prosecution to argue effectively that defendant’s testimony was a figment of his imagination, undermining his credibility in the eyes of the jury.” Post at 313. In fact, the prosecutor did ridicule defendant’s testimony as ludicrous and unintelligible. Although the prosecutor’s characterization of what the jury heard is valid, it is questionable whether defendant could have possibly fared better had the prosecutor and jury been privy to defendant’s “clarified version” at trial. The preliminary examination testimony reveals that Russell and Danny were watching Monday Night Football in the company of eight other friends and family members (including their mother, their sister, their sister’s boyfriend, and their sister’s children) when the first shot was heard. Would defendant have been better off if the prosecutor, having fully comprehended defendant’s version, called each of these individuals to testify in rebuttal that Danny and Russell were not at Margo’s when the first shot was heard? Would defendant have been better served if the clarified version had been presented and the prosecutor had noted in closing argument how impossible it would have been for the various members of this neighborhood to have conspired to frame defendant, including coming up with consistent stories and planting incriminating physical evidence, in the few minutes before the police arrived and while Steve was still conscious and speaking? As ludicrous and unintelligible as defendant’s testimony was, a more palatable alternative was not available to defense counsel.

21 The dissent misinterprets our position as arguing “that the reason defense counsel did not clarify his client’s testimony is because he believed it was fabricated.” Post at 312. Actually, we do not go so far as to presume that fact, but merely acknowledge that, when faced with a constantly evolving story from one’s client, a reasonably competent and ethical attorney might well elect to consciously maintain uncertainty with regard to his client’s explanation, and avoid highlighting details of that explanation that are inconsistent with the physical evidence or that are otherwise highly suggestive of the explanation’s falsity.

22 The dissent seeks our comment on the fact that the jury deliberated for two and a half days before convicting defendant on only six of the ten charges. To the dissent, this demonstrates that the jury was reluctant to convict defendant. The dissent further reasons that this means that the evidence against defendant on the counts of which he was convicted was not overwhelming, and that what the dissent perceives to be counsel’s errors were necessarily prejudicial. Post at 313-314, 327-328. We are not persuaded by the dissent’s reasoning. All that the record reveals is that, after two and a half days of deliberation, the jury informed the court that it had reached verdicts on the first six charges, but was deadlocked eleven to one, and ten to two on the charges of assault with intent to commit murder regarding Danny and Russell Parenteau, along with the concomitant charges of felony-firearm. After receiving the verdicts on the first six counts, the court declared a mistrial on the remaining charges.

We know of no sound method or good reason for attaching significance to the amount of time jurors spend deliberating. Perhaps they agreed on the first six charges in an hour and spent the rest of the time debating the counts on which they eventually could not reach consensus. Given that this jury must have rejected defendant’s version of events in order to convict him of the first six charges, if we were forced to speculate regarding the significance of the jury becoming deadlocked, we would most likely conclude that the jury could not agree on whether it had been proven that defendant had formed the specific intent to murder Danny and Russell Parenteau. Although this is admittedly speculation, which deserves no more credence than the dissent’s speculation, it exposes the error in the dissent’s determination that the jury was reluctant to convict defendant. Our present holding is not premised on overwhelming evidence of defendant’s intent to murder Danny and Russell, and there is nothing from which to conclude that the jury was reluctant to convict on the counts where it did so. Moreover, the limited success of achieving a mistrial on four counts could easily be viewed as a testament to the efficacy of counsel’s chosen strategy, rather than as evidence of deficient performance that was prejudicial to defendant.

23 The dissent concludes that “allow[ing] defendant’s convictions to stand malees a mockery of the law’s concern for a fair trial and damages public respect for the judicial process.” Post at 328. Respectfully, such hyperbole is hardly supported by a thorough review of the record. No trial is error free, and, in our judgment, “public respect” for the judicial process is justifiably diminished when criminal convictions are set aside on the basis of mistakes that do not truly prejudice the defendant or damage the integrity of the criminal justice system. We leave it to the public itself to determine which of the alternative opinions in this case is more genuinely “damaging of public respect” for the judicial process.