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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GEORGE EDWARD BANCROFT, JR., Defendant-Appellant.

UNPUBLISHED June 21, 2012

No. 297810 Macomb Circuit Court LC No. 2009-003641-FC

Before: K. F. KELLY, P.J., and SAWYER and RONAYNE KRAUSE, JJ. PER CURIAM. Following a jury trial, defendant was convicted of first-degree premeditated murder, MCL 750.316(A), and possession of a firearm during the commission of a felony (felonyfirearm), MCL 750.227b. He was sentenced to life imprisonment without the possibility of parole for the first-degree murder conviction and to a consecutive two-year term for the felonyfirearm conviction. We affirm. I. BASIC FACTS AND PROCEDURAL HISTORY A. TRIAL For 18 years, defendant and Paul Weber had an on-again, off-again intimate relationship. They shared at least one joint account and lived together with Randy Clark, a disabled man they treated like their son. On March 8, 2009, Weber was found in his bed with a gunshot wound to the head. The prosecutor argued that defendant shot Weber in his sleep after Weber discovered that defendant had been making numerous and substantial unauthorized withdrawals from Weber's accounts. In contrast, defendant's theory of the case was that Weber committed suicide because he was depressed about his numerous health issues. While there were a number of witnesses who testified regarding the financial transactions as well as Weber's state of mind near the time of his death, the focus of much of the testimony was on the physical evidence surrounding the manner of his death. The consensus among the witnesses who investigated Weber's death was that the scene was inconsistent with a suicide. Responding officers found Weber lying in bed, partially on his left-hand side and lefthand back, with his arms crossed on the edge of the blankets. It appeared as if Weber had been -1-

sleeping. Officers visually surveyed Weber's body and the surrounding area for a gun but were unable to find one. As part of the investigation, defendant was transported from the residence he shared with Weber to the Chesterfield Police Department. During the initial interview, defendant stated to Detective Brian Chadwick that he had gone to the casino the night before and returned home between 3:00 a.m. and 3:30 a.m. He denied hearing anything that sounded like a gunshot and described how he only checked on Weber because he had not woken up by 9:30 a.m. According to Chadwick, defendant became upset when the interview concluded and he learned that he was going to be held for a short time while Weber's death was being investigated. Chadwick explained to defendant that this was also being done for his safety because the gun had not been located. Unprompted, defendant told Chadwick that he had seen the butt of a gun between Weber's crossed arms. Defendant invoked his right to an attorney and questioning ceased. Chadwick returned to defendant's residence before Weber's body was moved and stood where defendant stated that he had seen a gun. He was unable to see a gun from that vantage point. It was not until Weber's body was moved that a .38 special revolver was found partially under Weber's left arm. His fingers were resting on top of the gun, as opposed to being inside the trigger guard. Dr. Daniel Spitz, the Macomb/St. Clair County Medical Examiner, ruled the manner of death a homicide. Spitz testified: We're dealing with a death that involves a close range gunshot wound of the head. Secondarily, we're dealing with a scene and, and blood evidence that [is] not consistent with this being [a] self-inflicted wound. Specifically, the location of the right arm of this individual doesn't add up as far as a wound that could have been self-inflicted. I would expect complete loss of purposeful movement such that the right arm should have fallen solely to, due to the effects of gravity which would have put the arm to the right side of the body, maybe even hanging off the bed. Secondarily, or thirdly, there is a weapon, a gun, which is completely against what I would expect as far as the location of that weapon if this was a self-inflicted wound. *** . . . the gun is essentially underneath the left arm. So, not only is the arm in a very inconsistent location if this was a self-inflicted wound, but the gun is, is in an impossible position if this was a self-inflicted wound. There's really no way for that gun to be underneath the left arm . . . And there's also some evidence at the scene which indicates to me that, there's some blood evidence around the scene which I, I don't have an explanation for other than somebody transferred that blood from this location to other areas in the residence, because certainly this person, this decedent was not in any type of condition to be able to move anywhere around this home and transfer blood from his injury or body to other areas of the residence.

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Police officer John Willer did not believe the scene evidenced suicide. "I would expect that the gun would have either fell, fall out his hands at the time he made the shot or had been still wrapped within the knuckle, caught up in his knuckle with his finger around the trigger, possibly." Because shooting a gun is a "violent thing," it was "very rare that you see something just kind of drop to, to a concealed position-type deal." Detective Jason Dawidowicz testified that "I don't think it was possible for [Weber] to commit suicide in the position he was in." "Typically, you're able to find the hand gun either, in my experience, it's always been either on the bed visible, or it might be, the reason I checked the floor, is the gun has a recoil and a lot of times from the force of shooting the gun, it would knock it out of his hands on the floor . . . I've never seen a gun in that position before." Sean Moticciolo from Macomb's medical examiner's office testified that the scene was "suspicious" because Weber "appeared to be sleeping . . .And, I didn't see a gun in ready view, readily available." The gun was found partly under Weber's left arm and "I just wouldn't expect it to fall in that place." Detective Brett Sojda testified that the position of the gun was "a little odd or, if it's a suicide that is, assuming it's a suicide, I found that to be an odd place for it." The jury convicted defendant of first-degree premeditated murder and felony-firearm and defendant filed a claim of appeal. We granted defendant's motion to remand for a Ginther1 hearing in order to determine whether defendant received the effective assistance of counsel at trial. People v Bancroft, unpublished order of the Court of Appeals, entered February 17, 2011 (Docket No. 297810). B. GINTHER HEARING Defendant argued that he was denied the effective assistance of counsel because trial counsel failed to obtain an expert who would have testified that the physical evidence was consistent with suicide. 1. TESTIMONY OF LJUBISA DRAGOVIC In a previously-submitted affidavit, Oakland County Medical Examiner Ljubisa Dragovic averred that he had reviewed the physical evidence in order to offer an opinion on Weber's cause of death. Dragovic found "no physical evidence to support the determination of homicide as manner of death of Paul Weber. In fact, all the physical evidence supports a self-inflicted gunshot wound." Dragovic was less sure of this opinion at the time of the Ginther hearing. He testified that there was "no way of deciding whether the wound had been self-inflicted or inflicted by someone else." Dragovic reviewed Dr. Spitz's testimony, the photographs, the autopsy report,

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

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and some of the police reports. Based solely on the physical evidence

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