Background
On June 30, 2020, defendant Frank David Keipp assaulted a woman who was visiting his home—someone with whom he had previously maintained a romantic relationship. Defendant claimed he was performing cardiopulmonary resuscitation after finding her unconscious. Eyewitnesses, however, testified that defendant dragged the victim by her hair, jumped on her with his foot, and slapped her repeatedly in the stomach and face. The victim suffered multiple fractured ribs and a fractured sternum and spent a week in intensive care. She died on July 24, 2020—nearly a month later—from a pulmonary thromboembolism (blood clot) that traveled to her lungs. The medical examiner testified that the rib and sternum fractures caused by the assault, combined with the victim’s immobility while healing, were the proximate cause of the clot that killed her, despite the victim’s preexisting risk factors including obesity, diabetes, pancreatic cancer, and cocaine use.
Defendant was charged with open murder and convicted by bench trial of second-degree murder. The trial court sentenced him as a habitual offender (fourth offense) to 50 to 80 years’ imprisonment. Defendant appealed, raising three primary arguments: that his trial counsel was ineffective for failing to retain an expert witness and failing to introduce an exculpatory victim statement; that his sentence was disproportionate; and that he was entitled to jail credit for time served before sentencing.
The Court’s Holding
The Michigan Court of Appeals affirmed the conviction and sentence in full. On the ineffective-assistance claim regarding expert witnesses, the court found that defense counsel made reasonable efforts to locate a suitable expert—contacting six doctors and negotiating with two forensic pathologists—and developed a sound trial strategy focused on challenging causation because the victim died one month after the assault and had multiple preexisting conditions that could have caused blood clots. Although counsel ultimately did not call an expert witness, the court held this did not fall below an objective standard of reasonableness because counsel made diligent investigations and rational strategic choices. The court refused to second-guess trial strategy merely because it did not produce a favorable result.
On the claim regarding the victim’s statement—in which the victim wrote that defendant hit her “not hard enough to hurt me” and “showed restraint”—the court held that counsel reasonably determined the statement would be more prejudicial than probative. The statement contained damaging admissions that defendant “just snapped,” hit the victim, dragged her out of the trailer, and sat on her, all tending to support the prosecution’s theory of assault rather than CPR. By not admitting the statement, counsel left defendant’s account of events unrebutted. The court also noted that admission could have opened the door to more damaging testimony from the victim’s daughter. On sentencing, the court held that the 50-year minimum sentence, falling within the guideline range of 30.4 to 100 years or life imprisonment, was presumptively proportionate. The defendant bore the burden of proving unusual circumstances, which he failed to do. The court rejected arguments based on defendant’s age, post-release employment, and home purchase, finding these were not unusual circumstances. The court also properly considered defendant’s lengthy criminal history (21 felonies and 8 misdemeanors), his status as a parolee at the time of the offense, and the severity of the assault. Finally, on jail credit, the court held that the jail-credit statute does not apply to parolees who commit new felonies while on parole, following the Michigan Supreme Court’s decision in Idziak.
Key Takeaways
- Trial counsel’s strategic choice to focus on causation rather than mens rea was reasonable trial strategy that did not fall below constitutional minimums, even though it did not succeed at trial.
- Defense counsel need not retain every available expert witness; decisions about which experts to call are presumed strategic and will not support ineffective-assistance claims absent a showing of deficient performance.
- Trial counsel may reasonably decline to introduce potentially exculpatory statements if they contain countervailing inculpatory information that outweighs their value.
- Sentences within guideline ranges are presumptively proportionate, and defendants must prove unusual circumstances to overcome the presumption; factors like employment history and age do not qualify as unusual.
- Parolees who commit new felonies while on parole are not entitled to jail credit for pre-sentencing detention because they continue serving their original sentence during that period.
Why It Matters
This decision reinforces Michigan’s deferential standard for reviewing ineffective-assistance claims, making it difficult for defendants to overturn convictions based on counsel’s trial strategy choices. The court’s holding that counsel’s investigative efforts and strategic decisions are presumed reasonable and will not be second-guessed absent a showing of deficient performance creates a high bar for appellants. The sentencing portion is particularly significant in an era of criminal justice reform: the court rejected arguments that advanced age, rehabilitation efforts, and a within-guidelines sentence could constitute cruel or unusual punishment, signaling that defendants’ post-release reintegration efforts may carry limited weight in proportionality analysis. The jail-credit holding confirms that parolees occupy a distinct legal position and cannot benefit from jail-credit statutes when arrested for new crimes while on parole.