248 Mich. App. 373, 639 N.W.2d 291 (2001)
In September 1998, Jack Kevorkian twice visited the home of Thomas Youk, a fifty-two-year-old former racecar driver suffering from amyotrophic lateral sclerosis.1 On September 15, Kevorkian videotaped a discussion with Youk about his condition and obtained Youk's signature on a consent form for direct injection to end his suffering.2
The following evening, Kevorkian returned and videotaped himself administering Anectine, Seconal, and potassium chloride to Youk, who had signed the consent form again.3 Youk died shortly thereafter.4 Police discovered Youk's body on September 17 and found a Federal Express receipt bearing Kevorkian's name.5 An autopsy performed that day determined the cause of death to be intravenous injection of substances, with the manner classified as homicide.6 The medical examiner identified three drugs in Youk's system and concluded that the potassium chloride injection stopped Youk's heart.7
Segments of the videotapes and a subsequent 60 Minutes interview in which Kevorkian discussed the events were later shown to the jury at trial.8 The prosecutor charged Kevorkian with second-degree murder and delivering a controlled substance.9 Before trial, he waived his right to counsel and elected to represent himself, with David Gorosh serving as standby counsel.10 The trial court denied Kevorkian's pretrial motion to dismiss the charges on constitutional grounds.11
At trial in March 1999, Kevorkian conducted jury selection, opening statement, witness examination, and closing argument while Gorosh remained available for consultation.12 The jury convicted Kevorkian of second-degree murder and delivering a controlled substance.13 The trial court imposed concurrent sentences of ten to twenty-five years for the murder conviction and seven years for the controlled substance conviction.14 Kevorkian appealed as of right to the Michigan Court of Appeals.15
Whether the Ninth and Fourteenth Amendments and their Michigan counterparts protect a right to active euthanasia?16
The Ninth Amendment reserves to the people rights not enumerated in the Constitution. The Fourteenth Amendment protects liberty interests including a right to privacy that encompasses the refusal of life-sustaining treatment. Neither provision extends to a right to active euthanasia or to be free from intolerable suffering through intentional killing.17
No. The established facts demonstrate that Kevorkian twice visited Youk's home in September 1998, obtained consent for direct injection of lethal substances, and administered Anectine, Seconal, and potassium chloride, resulting in Youk's death by homicide as determined by autopsy.18 These actions constitute active euthanasia rather than refusal of treatment or palliative care that may incidentally hasten death.19 The court applies the rule by noting that expanding privacy rights to cover euthanasia would remove the issue from legislative debate, require courts to make subjective quality-of-life determinations beyond judicial capacity, and risk a slippery slope toward involuntary euthanasia, consistent with the holdings in Glucksberg and Kevorkian I that states may prohibit such conduct without violating due process.20
The Ninth and Fourteenth Amendments and their Michigan counterparts do not protect a right to active euthanasia.21
Whether defendant received ineffective assistance of counsel from his standby attorney?22
To establish ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that, but for the errors, there is a reasonable probability the outcome would have differed. The presumption is that challenged actions constitute sound trial strategy. A defendant who knowingly and voluntarily waives counsel and proceeds pro se with standby counsel cannot later claim ineffective assistance from the standby attorney. This requires a showing that standby counsel assumed control of the defense or destroyed the jury's perception that the defendant was representing himself.23
No. The established facts show that Kevorkian knowingly, intelligently, and voluntarily waived his right to counsel on March 22, 1999, elected to represent himself throughout jury selection, opening statement, witness examination, and closing argument, and had Gorosh available only as standby counsel who did not take control of the case or interfere with the jury's perception of self-representation.24 The court applies the rule by observing that Gorosh's pretrial motion to quash the assisted suicide charge was a reasonable strategic choice that the trial court itself protected by denying it. Inexperience alone does not establish deficient performance. Kevorkian cannot assign blame for his conviction to standby counsel when he retained actual control over the proceedings and later reaffirmed his choice during deliberations.25
Defendant did not receive ineffective assistance of counsel from his standby attorney.26
Whether the prosecutor improperly commented on defendant's decision not to testify during closing argument?27
Neither a prosecutor nor the trial court may make direct and unequivocal references to a defendant's decision to exercise the constitutional right not to testify. When a defendant representing himself injects facts not in evidence during closing argument the prosecutor may properly object to prevent the presentation of unsworn testimony without violating the Fifth Amendment.28
No. The established facts show that Kevorkian, while representing himself, repeatedly attempted during closing argument to introduce first-person statements about his motives, the absence of witnesses, and the reasons for his actions that were not in evidence, prompting the prosecutor to object that he could not testify at that stage. The court applies the rule by determining that the prosecutor's objections were proper responses focused on preventing the injection of new facts rather than direct comments on the failure to testify. The trial court instructed the jury not to consider the decision not to testify. Kevorkian failed to preserve the issue by timely objection, resulting in no plain error affecting substantial rights.29
The prosecutor did not improperly comment on defendant's decision not to testify during closing argument.30
Whether the trial court abused its discretion in excluding the testimony of Thomas Youk's brother and sister-in-law?31
A trial court has discretion to exclude evidence that is not relevant to any fact of consequence. Consent or euthanasia are not recognized defenses to murder. Res gestae witnesses need not be produced by the prosecutor under current Michigan law. Testimony concerning a non-cognizable defense may be excluded from the jury.32
No. The established facts show that Terrence and Melody Youk would have testified about Youk's medical condition, pain, suffering, daily life, and consent to the procedure, all of which related exclusively to the defenses of consent and euthanasia that the trial court properly excluded as not legally cognizable.33 The court applies the rule by confirming that the prosecutor had no duty to call res gestae witnesses under the amended statute. The proffered testimony had no tendency to make any element of the charged crimes more or less probable. The trial court acted within its discretion in barring the evidence while still allowing Kevorkian to argue consent from the videotape itself.34
The trial court did not abuse its discretion in excluding the testimony of Thomas Youk's brother and sister-in-law.35