People v. Merritt
Mich: Court of Appeals, 2018
It was not IAC for a court appointed defense attorney to fail to secure an expert regarding defendant's blood alcohol levels when the expert's opinion would have been based on a factual issue rejected by the jury. As the Court explained:
[D]efendant suffered a broken neck, broken back, and severe head trauma when he crashed, and was found unconscious and unable to move at 2:40 a.m., when witnesses arrived at the scene of the accident. In the face of that evidence, defendant testified at trial that, after the accident and his horrendous injuries, he walked around the accident scene for 40 to 60 minutes, picked up and carried a case of beer a set distance, and consumed some of it together with a large quantity of whiskey. The proposed expert testimony of Dr. Kuslikis would not have addressed what defendant's blood-alcohol level was at the time of the accident. Rather, the proposed testimony would have been that if defendant's version of the incident were true—that he drank 12 shots of Fireball whiskey and three beers after the motorcycle accident, despite his grievous injuries— then defendant's blood-alcohol level at the time of the blood draw should have been 0.26%. Thus, with his actual draw level being 0.209%, Dr. Kuslikis would have opined that the level was "consistent" with defendant's theory and trial testimony, i.e., that he had not been drunk at the time of the accident. However, the trial court reasonably concluded that this testimony would not have made a difference in the outcome of the trial; the trial court found that the expert testimony simply purported to corroborate a version of facts that the jury never believed to begin with, and the trial court also found that defendant's version of events, in the face of the evidence, would have been a "stretch of fantasy."