People of Michigan v. Thomas Michael Peterson ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 10, 2020
Plaintiff-Appellee,
v No. 344705
Wayne Circuit Court
THOMAS MICHAEL PETERSON, LC No. 17-000306-01-FC
Defendant-Appellant.
Before: JANSEN, P.J., and K. F. KELLY and CAMERON, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317, reckless driving causing death, MCL 257.626(4), first-degree fleeing or eluding a police
officer, MCL 257.602a(5), operating a motor vehicle while intoxicated (OWI) causing death, MCL
257.625(4), and reckless driving causing serious impairment of a bodily function, MCL
257.626(3). The trial court sentenced defendant to concurrent prison terms of 40 to 60 years for
the murder conviction, 10 to 15 years each for the reckless driving causing death, fleeing or
eluding, and OWI convictions, and three to five years for the reckless driving causing serious
impairment of a bodily function conviction. Because we conclude that trial counsel was ineffective
for failing to request a jury instruction on involuntary manslaughter as a lesser offense of second-
degree murder, we reverse defendant’s conviction and sentence for second-degree murder and
remand for a new trial on this offense. We affirm defendant’s remaining convictions and
sentences. This appeal is decided without oral argument. MCR 7.214(E)(1)(b).
I. BASIC FACTS
Defendant was convicted of causing the death of Nicole Cutting and injuring two other
motorists and their passengers as a result of his reckless driving, while fleeing the police, in the
late afternoon of August 2, 2016, in Brownstown Township. The prosecution presented evidence
that after defendant’s female companion committed retail fraud at a local Meijer store, she fled the
store and entered the passenger seat of a Ford F-150 black truck that defendant was driving. A
responding police officer observed the suspect vehicle, saw it enter an expressway where there
was heavy traffic, and ultimately engaged its lights and siren. As the officer navigated the
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congested traffic, he at one point had a “clear view” of the truck with no traffic between them, but
he was unable to catch up before the truck left the middle lane, drove onto the shoulder, and exited
the expressway. Near the exit, a witness saw the truck speed past her, nearly clipping the front of
her car, and disregard a red traffic light. Minutes later, that witness and the officer who had exited
the expressway in search of the black truck observed the same truck after it had been involved in
a major accident near an intersection. According to the testimony, defendant’s truck hit Cutting’s
car, causing it to flip over, and Cutting suffered fatal injuries. After being hit by defendant,
Cutting’s car hit a car occupied by Jacob Hunter and Alyssa Stewart, who were both injured. Mary
Pilon and Andrea Thompson occupied a different vehicle, which defendant’s truck hit after hitting
Cutting’s vehicle, and both women also suffered injuries.
The prosecution presented expert testimony that defendant caused the accident by
disregarding a stop sign at the intersection; his “speed was too fast to either turn left or right, and
he continued straight, through the intersection.” There was also evidence that a urinalysis
performed at the hospital after the accident revealed that defendant had cocaine and opiates in his
system. At trial, the defense conceded that defendant drove recklessly, fled and eluded the police,
and operated his vehicle while under the influence, but argued that there was no evidence that he
had the intent necessary to establish his guilt of second-degree murder. The jury convicted
defendant on all counts as charged.
After defendant filed his claim of appeal, this Court granted defendant’s motion to remand
to allow defendant to seek a new trial on the basis that trial counsel was ineffective for (1)
conceding defendant’s guilt to four of the five charges during opening statement and closing
argument, (2) failing to request a jury instruction on involuntary manslaughter as a lesser offense
of second-degree murder, (3) failing to move to suppress the urinalysis report, and (4) failing to
consult and call an accident reconstruction expert. People v Peterson, unpublished order of the
Court of Appeals, entered May 20, 2019 (Docket No. 344705). On remand, following an
evidentiary hearing, the trial court denied defendant’s request for relief.
II. SUBSTITUTE COUNSEL
Defendant first alleges that the trial court abused its discretion by refusing to appoint
substitute counsel, and by failing to adequately investigate the nature of defendant’s allegations of
a breakdown in the attorney-client relationship. We disagree. We review a trial court’s decision
regarding substitution of counsel for an abuse of discretion. People v Strickland, 293 Mich. App.
393, 397; 810 NW2d 660 (2011). A trial court abuses its discretion when its decision falls outside
the range of reasonable and principled outcomes. Id.
“An indigent defendant is guaranteed the right to counsel; however, he is not entitled to
have the attorney of his choice appointed simply by requesting that the attorney originally
appointed be replaced.” People v Traylor, 245 Mich. App. 460, 462; 628 NW2d 120 (2001)
(citation omitted). “Appointment of a substitute counsel is warranted only upon a showing of good
cause and where substitution will not unreasonably disrupt the judicial process.” Id. “Good cause
may exist when a legitimate difference of opinion develops between a defendant and his appointed
counsel as to a fundamental trial tactic, when there is a destruction of communication and a
breakdown in the attorney-client relationship, or when counsel shows a lack of diligence or
interest.” People v McFall, 309 Mich. App. 377, 383; 873 NW2d 112 (2015) (quotation marks and
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citations omitted). Conversely, “[a] mere allegation that a defendant lacks confidence in his or her
attorney, unsupported by a substantial reason, does not amount to adequate cause. Likewise, a
defendant’s general unhappiness with counsel’s representation is insufficient.” Strickland, 293
Mich. App. at 398. When a defendant alleges a breakdown in the attorney-client relationship, the
trial court should inquire into the allegations, but “a defendant’s conviction will not be set aside,
even in the absence of judicial consideration of the defendant’s allegation, if ‘the record does not
show that the lawyer assigned to represent [the defendant] was in fact inattentive to his
responsibilities.’ ” People v Buie (On Remand), 298 Mich. App. 50, 67; 825 NW2d 361 (2012)
(citation omitted). Disagreements with regard to trial strategy or professional judgment do not
warrant appointment of substitute counsel. Strickland, 293 Mich. App. at 398. Counsel was not
required to file a futile motion. See People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120
(2010).
Preliminarily, we disagree with defendant’s claim that the trial court did not adequately
inquire into defendant’s reasons for his dissatisfaction with defense counsel. At the final
conference and on the first day of trial, the trial court gave defendant an opportunity to place his
complaints about defense counsel’s alleged inadequacies on the record. At the final conference,
after hearing and addressing defendant’s complaints, the trial court asked if there was “[a]nything
else you have to say[.]” On the first day of trial, the court observed that defendant was raising the
same issues that he had previously raised, but invited defendant to expound on any new issues.
Therefore, the trial court was aware of defendant’s complaints regarding counsel.
Further, defendant has failed to demonstrate good cause for the appointment of substitute
counsel. When given the opportunity by the trial court, defendant expressed dissatisfaction with
defense counsel citing the little communication they exchanged before trial, counsel’s failure to
provide him the felony information and “Magistrate return,” and counsel’s failure to file motions
that defendant had requested. Even if defense counsel did not communicate with defendant as
much as defendant would have preferred, defendant admitted that counsel visited him in jail and
spoke at court hearings, which is contrary to defendant’s statement that there was “no
communication.” Also, defendant indirectly acknowledged communicating with counsel through
his request for information and his ongoing complaint that counsel was not following his
instructions regarding the filing of motions.
Although defense counsel failed to file the requested motions, defendant filed the motions
himself and counsel argued the motions before trial with defendant invited to comment on the
issues. The trial court then denied defendant’s motions for change of venue, judicial
disqualification, and for the appointment of an investigator, but granted defendant’s motion for
discovery of any written notes by the Meijer loss prevention officer, if they existed. Defendant
does not address the propriety of the trial court’s rulings nor does he explain how notes from the
Meijer loss prevention officer, if they existed, were pertinent. Consequently, counsel’s decision
whether to file the motions that defendant suggested, which either were not successful or outcome-
determinative, was a matter of trial strategy, and the disagreement with regard to trial strategy did
not warrant appointment of substitute counsel. Strickland, 293 Mich. App. at 398. Thus,
defendant’s complaint pertaining to motions did not establish good cause for substitution of
counsel.
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Regarding defendant’s alleged ignored requests for certain information, defendant
acknowledged that defense counsel had provided him “all of the discovery.” He could not explain
the meaning of his request for a “Magistrate return,” but agreed that he wanted a copy of the felony
information. Counsel agreed to provide that document and noted that defendant previously
received the complaint. Defendant’s remaining complaints, e.g., “there’s no help from him,” “he’s
not representin’ me properly,” and “he’s doin’ nothin’ for me,” lacked specificity, and thus did not
demonstrate a difference of opinion with regard to a fundamental trial tactic. Despite these blanket
allegations, the record demonstrates that defense counsel was prepared for trial, was fully aware
of the facts of the case, cross-examined the prosecution witnesses, and challenged the intent
element of second-degree murder. Defendant failed to show either good cause or actual prejudice,
and, consequently, the trial court did not abuse its discretion by denying defendant’s request for a
new attorney.
III. SUFFICIENCY OF THE EVIDENCE
Defendant asserts that the prosecution failed to present sufficient evidence to prove his
guilt of second-degree murder, reckless driving causing death, first-degree fleeing or eluding a
police officer, and reckless driving causing serious impairment of a bodily function. Again, we
disagree.
We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310
Mich. App. 703, 713; 873 NW2d 855 (2015). When ascertaining whether sufficient evidence was
presented at trial to support a conviction, we must view the evidence in a light most favorable to
the prosecution and determine whether a rational tier of fact could find that the essential elements
of the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich. 127, 139; 815
NW2d 85 (2012). “[A] reviewing court is required to draw all reasonable inferences and make
credibility choices in support of the jury’s verdict.” People v Nowack, 462 Mich. 392, 400; 614
NW2d 78 (2000).
A. SECOND-DEGREE MURDER
The elements of second-degree murder are “(1) a death, (2) the death was caused by an act
of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have lawful
justification or excuse for causing the death.” People v Smith, 478 Mich. 64, 70; 731 NW2d 411
(2007). Defendant argues only that the prosecution did not prove beyond a reasonable doubt that
he acted with the malice necessary to establish second-degree murder. “Malice is defined as ‘the
intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and willful
disregard of the likelihood that the natural tendency of such behavior is to cause death or great
bodily harm.’ ” People v Werner, 254 Mich. App. 528, 531; 659 NW2d 688 (2002) (citation
omitted). Malice may be inferred from facts in evidence. People v Bulls, 262 Mich. App. 618, 627;
687 NW2d 159 (2004). “[M]inimal circumstantial evidence will suffice to establish the
defendant’s state of mind[.]” People v Kanaan, 278 Mich. App. 594, 622; 751 NW2d 57 (2008).
Viewed in a light most favorable to the prosecution, the evidence showed that defendant,
after ingesting cocaine and opiates, drove his truck, essentially as a getaway driver, at high rates
of speed on the shoulders of an expressway and then a roadway to elude the police, disregarded a
red traffic light as he nearly hit a car, and ultimately disregarded a stop sign before driving into an
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intersection and causing the death of one person and injuring four others. This evidence was
sufficient to permit a rational trier of fact to infer beyond a reasonable doubt that defendant acted
with a wanton and willful disregard of the likelihood that the natural tendency of his behavior was
to cause death or great bodily harm. Werner, 254 Mich. App. at 531. In addition, expert testimony
that defendant had time to stop before the intersection, but instead attempted to only slow down in
order to turn, which led to the fatal collision, further supports a finding of malice.
Defendant argues that the evidence was insufficient to sustain his conviction because the
jury should have relied on the prosecution’s expert testimony that defendant attempted to brake
before the impact and intended to safely proceed at the intersection, but “just had too much speed.”
However, when evaluating the sufficiency of evidence, this Court is required to resolve all
conflicts in the evidence in favor of the prosecution. People v Lockett, 295 Mich. App. 165, 180;
814 NW2d 295 (2012). Defendant’s challenges are related to the weight of the evidence rather
than its sufficiency. People v Scotts, 80 Mich. App. 1, 9; 263 NW2d 272 (1977). Indeed, the jury
heard the expert’s testimony, which also included the testimony that defendant did not intend to
stop, and we will not interfere with the trier of fact’s role of determining issues of weight and
credibility. People v Unger, 278 Mich. App. 210, 222; 749 NW2d 272 (2008). The prosecution
presented sufficient evidence to support defendant’s conviction of second-degree murder.
B. FIRST-DEGREE FLEEING OR ELUDING
Defendant contends that there was insufficient evidence to support this conviction because
evidence that a police officer ordered him to stop his vehicle or intended to effectuate a traffic stop
was lacking. We again disagree.
MCL 257.602a provides, in relevant part:
(1) A driver of a motor vehicle who is given by hand, voice, emergency
light, or siren a visual or audible signal by a police or conservation officer, acting
in the lawful performance of his or her duty, directing the driver to bring his or her
motor vehicle to a stop shall not willfully fail to obey that direction by increasing
the speed of the motor vehicle, extinguishing the lights of the motor vehicle, or
otherwise attempting to flee or elude the officer . . . .
***
(5) If the violation results in the death of another individual, an
individual who violates subsection (1) is guilty of first-degree fleeing and eluding,
a felony punishable by imprisonment for not more than 15 years or a fine of not
more than $10,000.00, or both.
Contrary to defendant’s assertion, Woodhaven Police Officer Ryan Smith testified that
after seeing defendant’s black truck merge onto the expressway, he followed and eventually used
his lights and sirens to cause cars to move as he tried to proceed closer to the truck. After driving
for approximately one mile, the officer had a “straight line of sight” and a “clear view” of the truck,
his lights and sirens were activated, and there was no traffic between defendant’s vehicle and the
officer’s patrol car. At that point, defendant, who was traveling faster than the officer, moved from
the middle lane onto the shoulder, in an apparent effort to pass the cars in front of him, and he “left
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the [officer] in the dust.” A jury could reasonably infer from the evidence that the officer’s patrol
car was behind defendant’s truck, with no traffic between them, with the lights and sirens engaged.
Accordingly, defendant had both an audible and visual direction to stop, and his prompt action of
driving from the middle lane onto the shoulder and then exiting the expressway showed that he
willfully disobeyed that direction. See MCL 257.602a(1). Thus, viewed in a light most favorable
to the prosecution, there was sufficient evidence for a rational trier of fact to conclude beyond a
reasonable doubt that defendant was given a signal to stop and failed to do so, thus supporting his
first-degree fleeing or eluding conviction.
C. RECKLESS DRIVING
Defendant submits there was insufficient evidence that he drove with willful or wanton
disregard for the safety of other persons to satisfy his convictions of reckless driving causing death,
MCL 257.626(4), and reckless driving causing a serious impairment of a bodily function, MCL
257.626(3). We disagree.
MCL 257.626 provides, in relevant part:
(1) A person who violates this section is guilty of reckless driving
punishable as provided in this section.
(2) Except as otherwise provided in this section, a person who operates
a vehicle upon a highway . . . or other place open to the general public, including,
but not limited to, an area designated for the parking of motor vehicles, in willful
or wanton disregard for the safety of persons or property is guilty . . . .
(3) Beginning October 31, 2010, a person who operates a vehicle in
violation of subsection (2) and by the operation of that vehicle causes serious
impairment of a body function to another person is guilty of a felony . . . .
(4) Beginning October 31, 2010, a person who operates a vehicle in
violation of subsection (2) and by the operation of that vehicle causes the death of
another person is guilty of a felony . . .
Both offenses share the relevant requirement that a person operated a vehicle on a highway
“in willful or wanton disregard for the safety of persons or property.” MCL 257.626(2); People v
Jones, 497 Mich. 155, 167; 860 NW2d 112 (2014). Under this standard, a defendant need not
intend to cause harm, but must act with more than simple carelessness and must knowingly
disregard the dangerousness of his conduct. People v Carll, 322 Mich. App. 690, 695; 915 NW2d
387 (2018).
The prosecution presented evidence that defendant, who had cocaine and opiates in his
system, fled from the police while driving on the shoulder of an expressway and then a roadway
at a higher rate of speed than the police, disregarded a traffic light, and ultimately disregarded a
stop sign at an intersection, which caused a collision that led to the death of one victim and the
serious impairment of a bodily function of another victim. This evidence was sufficient to enable
the jury to find beyond a reasonable doubt that defendant knowingly operated his vehicle in
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disregard for the safety of others, thereby supporting his convictions of reckless driving causing
death and serious impairment of a bodily function.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant argues that he was denied the effective assistance of counsel at trial,
thereby entitling him to a new trial. We agree that counsel was ineffective for failing to request
an instruction for a lesser offense of second-degree murder, warranting a new trial for this offense.
After conducting an evidentiary hearing, the trial court denied defendant’s motion for a
new trial on the issue of ineffective assistance of counsel. We review a trial court’s decision on a
motion for a new trial for an abuse of discretion. People v Cress, 468 Mich. 678, 691; 664 NW2d
174 (2003). A claim alleging ineffective assistance of counsel presents a mixed question of fact
and law. People v LeBlanc, 465 Mich. 575, 579; 640 NW2d 246 (2002). Questions of law are
reviewed de novo, and a trial court’s findings of fact are reviewed for clear error. Id. “To
demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney’s
performance fell below an objective standard of reasonableness under prevailing professional
norms and that this performance caused him or her prejudice.” People v Nix, 301 Mich. App. 195,
207; 836 NW2d 224 (2013) (citation omitted). “To demonstrate prejudice, a defendant must show
the probability that, but for counsel’s errors, the result of the proceedings would have been
different.” Id.
The effective assistance of counsel is presumed, and the burden is on the defendant to
establish the contrary. LeBlanc, 465 Mich. at 579; People v Roscoe, 303 Mich. App. 633, 644; 846
NW2d 402 (2014). “Reviewing courts are not only required to give counsel the benefit of the
doubt with this presumption, they are required to ‘affirmatively entertain the range of possible’
reasons that counsel may have had for proceeding as he or she did.” People v Gioglio (On
Remand), 296 Mich. App. 12, 20; 815 NW2d 589 (2012), vacated in part on other grounds 493
Mich. 864 (2012). “[A] reviewing court must conclude that the act or omission of the defendant’s
trial counsel fell within the range of reasonable professional conduct if, after affirmatively
entertaining the range of possible reasons for the act or omission under the facts known to the
reviewing court, there might have been a legitimate strategic reason for the act or omission.” Id.
at 22-23.
A. CONCESSION OF GUILT ON LESSER CHARGES
Defendant alleges that trial counsel was ineffective for conceding defendant’s guilt of the
lesser charges and attacking only the murder charge. Defendant is correct that a counsel may not
concede a defendant’s guilt without his consent. See McCoy v Louisiana, 584 US ___, ___, 138
S. Ct. 1500, 1505; 200 L. Ed. 821 (2018). In McCoy, the Court stated that the “[a]utonomy to decide
that the objective of the defense is to assert innocence” is reserved for a defendant. Id. at 1508.
The Court concluded that it was error for the defendant’s trial counsel to disregard the defendant’s
desire to maintain his innocence rather than to concede guilt in an attempt to eliminate the
possibility of a death penalty sentence. Id. at 1510-1511.
In this case, the trial court determined that defendant agreed to the strategy employed by
counsel at trial. Both defendant and trial counsel testified at the evidentiary hearing. Defendant
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essentially argues that the trial court should not have believed counsel’s testimony that defendant
was aware of, and acquiesced to, the strategy of conceding guilt to the lesser charges and attacking
only the murder charge. The trial court found trial counsel’s testimony to be credible, and that he
was “testifying honestly” and consistent. Conversely, the court found that defendant’s testimony
was not credible “on the substantive issues before the Court.” This Court gives deference to a trial
court’s superior ability to judge the credibility of witnesses who appeared before it. People v
Farrow, 461 Mich. 202, 209; 600 NW2d 634 (1999). The trial court made a factual finding that
defendant and trial counsel had discussed the case and the discovery materials, that the strategy of
conceding guilt on the lesser charges and attacking the murder charge “was developed with the
assistance of [defendant],” and that defendant agreed with the strategy, “didn’t object to the
strategy,” and understood the strategy, which “was confirmed and agreed upon from very early on
in [counsel’s] representation.” Given these findings, we reject defendant’s argument that trial
counsel impermissibly relied on a defense that defendant had rejected, or that defendant insisted
that counsel employ a different strategy. Accordingly, the trial court not abuse its discretion by
denying defendant’s motion for a new trial on this basis.
B. FAILURE TO REQUEST A LESSER OFFENSE INSTRUCTION
We agree with defendant that trial counsel was ineffective for not requesting an instruction
on involuntary manslaughter as a lesser offense of second-degree murder. The decision whether
to request a lesser offense instruction is a matter of trial strategy. People v Robinson, 154 Mich
App 92, 93-94; 397 NW2d 229 (1986). Both voluntary and involuntary manslaughter are lesser
included offenses of murder, distinguished by the element of malice. People v Mendoza, 468 Mich.
527, 533-534, 540-541; 664 NW2d 685 (2003). Consequently, if a defendant is charged with
murder, an instruction for manslaughter must be given upon request if supported by a rational view
of the evidence. Id. at 541. Manslaughter includes the same elements as second-degree murder,
except for malice. Id. at 534. As it relates to this case, if a homicide “was committed with a lesser
mens rea of gross negligence or an intent to injure, and not malice, it is not murder, but only
involuntary manslaughter.” People v Holtschlag, 471 Mich. 1, 21; 684 NW2d 730 (2004). Thus,
had an instruction on involuntary manslaughter been requested, defendant would have been
entitled to the instruction if a rational view of the evidence supported a finding that Cutting’s death
was caused by an act of gross negligence or an intent to injure, and not malice.
In this case, the clear defense strategy was to attack the malice element of second-degree
murder. At the evidentiary hearing on remand, trial counsel testified that the defense theory of the
case was that defendant “[d]idn’t act with malice, didn’t knowingly . . . believe that what he was
doing was likely to cause death or great bodily harm.” Counsel acknowledged that manslaughter
was consistent with his theory of the case, yet he did not think about it and did not “really consider”
it. As defendant notes, the prosecution’s expert testified that before the impact, defendant slowed
down with an apparent attempt to turn at the intersection, but was traveling too fast. The jury
could have rationally found that defendant’s behavior was consistent with gross negligence, but
did not rise to the level of malice. Despite the defense strategy of attacking the malice element of
second-degree murder, by failing to request a manslaughter instruction, counsel deprived the jury
of the opportunity to consider a lesser offense that would have allowed it to find that defendant
was responsible for Cutting’s death, but did not act with malice.
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At the evidentiary hearing, trial counsel explained that he did not “seriously consider” a
lesser offense instruction for the murder charge because the case “already had lessors” and he
“didn’t see a need to add another.” This explanation defies logic. The entire defense strategy
involved conceding defendant’s culpability to a series of less serious offenses, but challenging
defendant’s culpability for murder, which exposed defendant to a significantly greater penalty. It
is well-settled that a decision to forgo a lesser offense instruction and proceed with an “all or
nothing defense” can be a legitimate trial strategy. People v Nickson, 120 Mich. App. 681, 687;
327 NW2d 333 (1982). In this case, however, it was not reasonable to employ that strategy with
respect to the second-degree murder charge because of the defense strategy of conceding
defendant’s guilt to the other offenses. Even if the jury had acquitted defendant of murder,
defendant would still be subject to lengthy periods of incarceration because of the defense strategy
of conceding guilt to the other charges. The second-degree murder charge exposed defendant to a
significantly greater penalty, including potential imprisonment for life. MCL 750.317. By not
requesting an instruction on involuntary manslaughter as a lesser offense to murder, counsel left
defendant exposed to this significantly greater penalty, without the opportunity to have the jury
consider an offense that was consistent with the defense theory of the case and which carried a
penalty equivalent to the penalties that defendant was already facing for several of the offenses for
which the defense was conceding guilt.1 Under these circumstances, it was not objectively
reasonable to forgo a lesser offense instruction on manslaughter merely because defendant had
been charged with a series of other lesser offenses.
For these reasons, trial counsel’s failure to request the instruction was not objectively
reasonable. Having reviewed trial counsel’s testimony from the evidentiary hearing, there was no
legitimate strategic reason for failing to request the instruction. Also, there is a reasonable
probability that, but for counsel’s inaction, the result of the proceedings, i.e., defendant’s
conviction of second-degree murder, would have been different. Accordingly, defendant is
entitled to a new trial for this charge on this basis.
C. FAILURE TO CHALLENGE THE ADMISSIBILITY OF THE URINALYSIS RESULTS
Defendant also faults trial counsel for failing to move to suppress the urinalysis test results.
Defendant contends that the relevant statute, MCL 257.625a(6)(e), applies only to blood draws,
and not urine, and therefore, his results would not have been admissible. As the prosecutor reasons,
even if trial counsel had moved to suppress the results of the urine test and was successful in
arguing that MCL 257.625a(6)(e) did not apply, the prosecution could have obtained a search
warrant for the results and sought admission under MCL 257.625a(6)(a), which specifically allows
the results of chemical testing on urine to be introduced into evidence. See People v Mayhew, 236
Mich. App. 112, 120-121; 600 NW2d 370 (1999). Counsel is not ineffective for failing to advance
1
Like the charges of reckless driving causing death, MCL 257.626(4), first-degree fleeing or
eluding a police officer, MCL 257.602a(5), and OWI causing death, MCL 257.625(4), involuntary
manslaughter is also punishable by imprisonment for “not more than 15 years.” MCL 750.321.
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a futile position. Ericksen, 288 Mich. App. at 201. Accordingly, the trial court did not abuse its
discretion by denying defendant’s motion for a new trial on this basis.2
V. ADMISSION OF EVIDENCE
Defendant submits that the trial court erred by admitting statements made by defendant’s
female passenger to Officer Smith at the accident scene. Defendant argues that he is entitled to a
new trial because the statements were inadmissible hearsay and they violated his constitutional
right of confrontation. We disagree.
A. BACKGROUND
On direct examination, Officer Smith testified that after arriving at the accident scene, he
approached the female passenger, who was still seated in defendant’s vehicle. The following
exchange occurred:
Q. Okay. And what was, what was she acting like?
A. She was crying, and shaking, and visibly upset.
Q. Okay. And did she say anything to you?
A. She did.
* * *
Q. Well, Officer, about—you stated that the accident seemed to have just
happened, correct?
A. Yes.
Q. Okay. And do you know how many cars, or trucks, or vehicles, in
general, were in the accident?
A. There were several. I didn’t, I didn’t take the time to count vehicles, or
radio dispatch. I just wanted ‘em to get rescue rolling, and—
* * *
A. I did not go over to those vehicles, because there were other people,
already assisting, apparently.
2
On remand, defendant withdrew his claim of ineffective assistance of counsel pertaining to the
failure to obtain an accident reconstruction expert, and he does not address it in his supplemental
brief. Accordingly, defendant failed to demonstrate entitlement to relief on appeal on this basis.
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Q. Okay. Now, the passenger of the suspect vehicle, you said, she still
hadn’t gotten out?
A. The passenger in the suspect vehicle was still seat belted.
Q. And did she say something to you?
A. She did.
Q. Okay. Now, you said that she was shaking, earlier, correct?
A. She was shaking, and crying.
* * *
[The trial court overruled defense counsel’s objection.]
Q. What did the passenger say to you, at that point?
A. The passenger said, I told him to stop. I told him to stop. [Emphasis
added.]
B. ANALYSIS
1. PRESERVED HEARSAY CLAIM
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.
People v Thorpe, 504 Mich. 230, 251-252; 934 NW2d 693 (2019). “The decision to admit evidence
is within the trial court’s discretion and will not be disturbed unless that decision falls outside the
range of principled outcomes.” Id. at 252 (quotation marks and citation omitted.) “A decision on
a close evidentiary question ordinarily cannot be an abuse of discretion.” Id. “Preliminary
questions of law, such as whether a rule of evidence or statute precludes the admission of particular
evidence, are reviewed de novo[.]” People v Bynum, 496 Mich. 610, 623; 852 NW2d 570 (2014).
Hearsay, which is a statement other than one made by the declarant while testifying at the
trial or hearing offered to prove the truth of the matter asserted, is inadmissible at trial unless there
is a specific exception allowing its introduction. See MRE 801, MRE 802, and People v Ivers,
459 Mich. 320, 331; 587 NW2d 10 (1998). The excited utterance exception permits the admission
of hearsay statements that (1) arise out of a startling event, and (2) are made while the declarant
was under the excitement caused by that event. MRE 803(2); People v Layher, 238 Mich. App.
573, 582; 607 NW2d 91 (1999). The focus of the excited utterance rule is the “lack of capacity to
fabricate, not the lack of time to fabricate,” and the relevant inquiry is one concerning “the
possibility for conscious reflection.” People v Smith, 456 Mich. 543, 550-551; 581 NW2d 654
(1998). The key question is whether the declarant was still under the stress of the event, and the
trial court is accorded wide discretion in making that preliminary factual determination. Id. at 551-
552; see also Layher, 238 Mich. at 582.
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In this case, Officer Smith—the first officer to arrive at the scene—testified that
defendant’s passenger, the declarant, made the challenged statements to him immediately after the
series of accidents. The officer had not asked her any questions. She was a passenger in the truck
that had hit two vehicles, causing one of the vehicles to flip over, and causing damage to the vehicle
that she was in. At the time of her statements, she was still in the truck wearing her seat belt, and
defendant was “laying in the roadway.” Thus, the passenger’s statement was made after a startling
event. Officer Smith also testified that defendant’s passenger was visibly upset, shaking, and
crying. Thus, there was evidence that she was still under the stress caused by the event when she
made the statements to the officer. Because there is an evidentiary basis for finding that
defendant’s passenger’s statements to Officer Smith qualified for admission as excited utterances
under MRE 803(2), the trial court did not abuse its discretion by admitting the testimony.
2. UNPRESERVED CONSTITUTIONAL CLAIM
Defendant also argues that the passenger’s statements were testimonial, and therefore,
their admission violated his constitutional right of confrontation. Because defendant did not object
on this ground at trial, this issue is unpreserved. We review defendant’s unpreserved claim for
plain error affecting defendant’s substantial rights. People v Carines, 460 Mich. 750, 752-753,
763-764; 597 NW2d 130 (1999).
“The Confrontation Clause prohibits the admission of all out-of-court testimonial
statements unless the declarant was unavailable at trial and the defendant had a prior opportunity
for cross-examination.”3 People v Chambers, 277 Mich. App. 1, 10; 742 NW2d 610 (2007). “A
pretrial statement is testimonial if the declarant should reasonably have expected the statement to
be used in a prosecutorial manner and if the statement was made under circumstances that would
cause an objective witness reasonably to believe that the statement would be available for use at a
later trial.” People v Dendel (On Second Remand), 289 Mich. App. 445, 453; 797 NW2d 645
(2010), citing Crawford v Washington, 541 U.S. 36, 53-54; 124 S. Ct. 1354; 158 L. Ed. 2d 177 (2004).
In Davis v Washington, 547 U.S. 813, 826; 126 S. Ct. 2266; 165 L. Ed. 2d 224 (2006), the United
States Supreme Court explained the distinction between nontestimonial and testimonial
statements:
Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal prosecution. [Id. at 822.]
3
Both the United States and the Michigan Constitutions guarantee a criminal defendant the right
“to be confronted with the witnesses against him.” People v Nunley, 491 Mich. 686, 697; 821
NW2d 642 (2012); see also US Const, Am VI; Const 1963, art 1, § 20.
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The Court also noted, however, that it was only framing the issue in terms of interrogation because
of the nature of the cases before it. Id. at 822 n 1. It made clear that even “volunteered testimony
or answers to open-ended questions” may be testimonial. Id.
Although, as plaintiff points out, the declarant was crying and upset and had not been asked
any questions by the officer, her statements were arguably more about “describ[ing] past events”
than about “meet[ing] an ongoing emergency.” Davis, 547 U.S. 813 at 826-827 (citation and
quotation marks omitted). Again, the declarant told the officer that she told defendant to stop,
which was not information that would have assisted in the ongoing emergency. However, even if
these statements were testimonial and therefore inadmissible, defendant has failed to establish that
any error in admitting them affected the outcome of the trial. Carines, 460 Mich. at 763-764.
Given the overwhelming evidence of defendant’s reckless driving before the accident, which
included driving at excessive speeds, passing vehicles on the shoulder of a congested freeway,
disregarding a red traffic signal, and then entering an intersection in disregard of a stop sign, and
the expert testimony that defendant did not attempt to stop his vehicle at the intersection, the
declarant’s statements that she told defendant to stop would not have caused his convictions.
Therefore, defendant is not entitled to relief with respect to this unpreserved issue.
VI. CONCLUSION
Defendant has established that he was denied the effective assistance of counsel as a result
of trial counsel’s failure to request a lesser offense jury instruction on involuntary manslaughter.
He is entitled to a new trial for the crime of second-degree murder. We reject defendant’s
remaining claims of error.
Reversed and remanded for a new trial for the offense of second-degree murder. We affirm
defendant’s remaining convictions and sentences. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
/s/ Thomas C. Cameron
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