Ineffective assistance of counsel for failing to provide proper notice of the affirmative defense of involuntary intoxication; People v Caulley; Notice of intent to raise the defense; MCL 768.20a(1); Failure to make a meritless argument; Sentencing; Scoring of OV 5 (serious psychological injury); MCL 777.35(1)(a); Effect of the fact treatment has not been sought; MCL 777.35(2); People v Calloway; Scoring of OV 6 (intent to kill or injure); MCL 777.36(1)(b) & (c); Great weight of the evidence; Second-degree murder; Voluntary manslaughter; Heat of passion; People v Yeager; Intent; Malice

Holding that defendant was not denied the effective assistance of counsel, that he was not entitled to resentencing, and that the verdict was not against the great weight of the evidence, the court affirmed his convictions and sentence. He was convicted of second-degree murder and related gun offenses for the fatal shooting of his partner, H. The trial court sentenced him as a fourth offense habitual offender to 40 to 100 years. On appeal, the court rejected his argument that defense counsel was ineffective for failing to provide proper notice of the affirmative defense of involuntary intoxication. “While defense counsel acknowledged he failed to provide sufficient notice of the defense, we agree with the trial court that [defendant] failed to prove, by a preponderance of the evidence, that his intoxication was a result of taking prescribed medications alone.” Defendant’s affirmative “defense of involuntary intoxication would have failed even if defense counsel had provided sufficient notice of his intent to raise the defense 30 days before trial.” The court also rejected his claim that the trial court erred when it assigned 15 points to OV 5 and 25 points to OV 6. It noted evidence was presented at trial that the children were in the house when he killed H. As to OV 5, the record “‘provided a reasonable basis for the [trial] court to conclude that [H’s] family members suffered serious psychological injury.’ Indeed, ‘[p]oints are also properly assessed when the serious psychological injury may require professional treatment in the future, regardless of whether the victim’s family member presently intends to seek treatment.’” The trial court also did not err in scoring 25 points for OV 6 as defendant “was convicted of second-degree murder, triggering the required scoring of OV 6.” The facts met “the standard enumerated in MCL 777.35(1)(b) because [he] acted with unpremeditated intent to kill or created a very high risk of bodily harm.” Finally, the court rejected his great weight of the evidence challenge to his second-degree murder conviction. He claimed he did not intend to harm H, “but could not remember retrieving the gun or shooting her. [He] called 911 and remembered informing the operator he shot [her]. As a result, the record” showed that his actions killed H, and that he killed her with malice.