People of Michigan v. Charles Edward Horn ( 2021 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 14, 2021
Plaintiff-Appellee,
v No. 350129
Washtenaw Circuit Court
CHARLES EDWARD HORN, LC No. 18-000828-FH
Defendant-Appellant.
Before: SWARTZLE, P.J., and RONAYNE KRAUSE and RICK, JJ.
PER CURIAM.
Defendant, Charles Edward Horn, appeals as of right his convictions of reckless driving
causing death and reckless driving causing impairment of a bodily function. Defendant rear-ended
a yellow fire truck that was parked on the expressway, protecting the emergency responders who
were assisting on the scene of an earlier automobile accident. Defendant’s backseat passenger
died in the high-speed crash, and his frontseat passenger was severely injured. The prosecution’s
theory was that defendant was texting and driving. On appeal, defendant argues that the jury’s
verdict was against the great weight of the evidence or, in the alternative, that there was insufficient
evidence that defendant was driving recklessly. Defendant also argues that there was juror bias,
and his trial counsel was ineffective for failing to challenge several jurors for cause. Concluding
that defendant’s claims fail on this record, we affirm.
I. BACKGROUND
Christopher Skupny, a paramedic with the Northville City Fire Department, testified that
he responded to a rollover motor-vehicle accident occurring shortly before 11:00 p.m. on May 29,
2017, on the I-94 expressway. A Department of Natural Resources officer was already on site and
his vehicle’s flashing lights remained activated. The Ypsilanti Fire Department also responded
with a small pickup truck and a bright yellow fire truck. Both vehicles also kept their emergency
lights on. The fire engine angled itself partially in the shoulder of the traffic lane and partially in
the road itself. After Skupny had stabilized the patient from the initial accident, he observed the
fire engine “lurch forward,” and he heard “a very loud but very short bang, like an explosion” and
realized that another vehicle had crashed into the fire truck. Three individuals in that vehicle were
-1-
in critical condition. Skupny described the crashed vehicle as “partially imbedded into the rear of
Ypsilianti’s fire engine.” The front passenger “was conscious, breathing, and had a pulse.” The
backseat passenger was unconscious and not breathing. The paramedic’s lifesaving measures were
unsuccessful. Skupny acknowledged that he did not see the collision and did not witness the driver
of the vehicle—defendant—driving erratically. Nor was there any indication that defendant had
been under the influence of any drugs or alcohol. The fire engine had been on the scene for
approximately 15 minutes before the crash.
Christopher McIntosh, a detective trooper with the Michigan State Police (MSP), testified
that he was also dispatched to the initial rollover crash. Detective McIntosh described how the
various emergency-response vehicles were parked and how their emergency lights were activated.
He also described the road as straight and stated that he was able to observe the emergency vehicles
from some distance, as there were no visibility impediments. When the detective arrived on site,
he observed the vehicle that had crashed into the back of the fire truck, a crash which occurred
between the initial dispatch for the rollover accident and his arrival at the scene. The detective’s
police vehicle was equipped with a camera that recorded his arrival, and the jury viewed the 19-
minute video. The detective was going about 61 miles per hour when he began proceeding
westbound on I-94. He did not see the crash and did not see defendant driving. The video was
recording at 11:02:08 p.m. The detective was able to identify defendant as the driver, MH—
defendant’s daughter—as the front-seat passenger, and another individual, CS, as the passenger-
side, rear-seat passenger. The detective described the emergency scene as “clearly visible from a
long distance.” On cross-examination, the detective acknowledged that he did not see any
evidence of erratic driving and that there was no indication that defendant was under the influence
of alcohol or drug use. The detective did not recall seeing a semi-truck that might have obstructed
defendant’s visibility.
Matthew Tingley, a road-patrol officer with the MSP, responded to the scene after the
second crash and assisted with the investigation. Trooper Tingley testified that there was no
evidence of skid marks or gouge marks that would suggest that defendant tried to brake or swerve.
The trooper also described it as “a long, straight, intact roadway.” There was nothing preventing
a driver from transferring to the clear lane to avoid the fire truck. In defendant’s vehicle, Trooper
Tingley found a cell phone wedged in between the dashboard and the windshield. He identified it
as defendant’s phone because of a picture on the home screen, and he deactivated it to preserve
the battery, securing the phone in evidence. The ensuing investigation revealed that defendant had
been “texting back and forth” with another individual, DB, “most of that day and night.” Law
enforcement obtained a search warrant for the text messages, and discovered that defendant sent a
text message to DB at 11:01:34 p.m. The distance from the on-ramp to the crash scene was
approximately .6 miles. The trooper calculated that, driving at the speed limit, it would take
approximately 34 seconds to travel this distance. The crash was called in at 11:02:08 p.m.
On cross-examination, the trooper affirmed that there was no sign of drug or alcohol use.
The trooper agreed that if there was intervening traffic, such as a semi-truck, it may have impeded
defendant’s view. In the trooper’s belief, all the available evidence clearly pointed to defendant
“getting on the freeway, staying in that right lane until running into the back of a fire truck.”
Sergeant Allan Avery, a traffic reconstructionist for the MSP, testified that he was also
unable to identify any signs that defendant attempted to brake or make an evasive maneuver. He
-2-
described how the fire engine’s parking technique was normal and was done “to add a buffer zone
for the people who are working on the road and the highway.” He described the roadway as a
“standard freeway, three-lane freeway,” straight and with “very good” visibility. In Sergeant
Avery’s experience and in light of the physical evidence, defendant’s vehicle was operating
between 50 and 70 miles per hour at the time of the collision, which he described as “a hard, hard
hit.” The vehicle pushed the fire truck forward two or three feet.
The evidence demonstrated that defendant was in the right lane and that the crash would
not have occurred if defendant had moved over to the center lane. Sergeant Avery testified that
34 seconds would have given a driver enough time to stop while traveling 50 to 70 miles per hour,
that 34 seconds “is an eternity” in his line of work, and that this suggested recklessness on the part
of the driver. Even slowing down to 25 miles per hour would have likely resulted in a collision
that the vehicle occupants would have probably “walked away from,” and swerving would have
probably resulted in, at most, a fender bender. Sergeant Avery stated that, generally, a person is
able to perceive and react in 1.5 to 1.6 seconds. Anything longer than 2 seconds would normally
indicate intoxication or distraction. He acknowledged that there could have been braking, but there
was no evidence of it, and the evidence suggested that defendant was not paying attention. The
sergeant acknowledged there was no evidence of intoxication in this case.
DB also testified for the prosecution, confirming that he and defendant had repeatedly
communicated by text message and phone on the night of the crash. Defendant’s daughter was
DB’s ex-girlfriend. DB described defendant as being upset and claimed that defendant had used
“fighting words” because defendant wanted him to leave his daughter alone.
Dr. Jeffrey Jentzen, the Washtenaw County Medical Examiner, testified that she performed
an autopsy on CS and found that she died as the result of multiple traumatic injuries sustained in
the crash. In the doctor’s expert opinion, because CS was wearing a seatbelt, a lower-velocity
collision would have likely resulted only in “bruises and scrapes.”
Defendant did not testify. His only witness was his daughter, MH. She testified that
defendant’s cell phone was in the vehicle’s cupholder at the time of the crash. She recalled that
CS yelled, “Oh shit, Chucky,” as her father was merging onto the highway. She did not recognize
that they had crashed into a fire truck. She did not see any emergency lights before the crash
occurred. She claimed that defendant’s hands were on the steering wheel, and denied that her
father was angry. She thought he was “happy” as they “were just talking and laughing.” On cross-
examination, MH acknowledged that she had sustained serious injuries in the crash that continued
to have a major impact on her life. She admitted that she had used marijuana earlier that night, but
she denied that she used opiates. She also admitted that she was on her phone for most of the
drive, including the moment immediately preceding the crash, and that she did not drive. She
believed her father was looking to move into the left lane.
After MH’s testimony, the prosecutor recalled Trooper Tingley. He testified that MH had
not previously asserted that defendant’s phone was in the cupholder at the time of the crash. He
also confirmed that, despite her denial of opiate use, MH’s hospital records reflected that she tested
positive for both cannabinoids and opiates.
-3-
The jury convicted defendant of reckless driving causing death, MCL 257.626(4); and
reckless driving causing impairment of a bodily function, MCL 257.626(3). The trial court
sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to serve 10 to 30 years
in prison for the causing-death offense, and to serve 8 to 25 years in prison for the causing-
impairment offense.
This appeal followed.
II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that the evidence was insufficient to support his convictions. This
Court reviews de novo challenges to the sufficiency of the evidence. People v Meissner, 294 Mich
App 438, 452; 812 NW2d 37 (2011). When determining whether sufficient evidence has been
presented to sustain a conviction, a court must view the evidence in a light most favorable to the
prosecutor and determine whether any rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508,
515; 489 NW2d 748 (1992). “Circumstantial evidence and reasonable inferences that arise from
such evidence can constitute satisfactory proof of the elements of a crime.” People v Kanaan, 278
Mich App 594, 619; 751 NW2d 57 (2008). Further, this Court “will not interfere with the trier of
fact’s role of determining the weight of the evidence or the credibility of witnesses.” Id.MCL 257.626 provides in pertinent 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 a frozen public lake, stream, or pond 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 of a misdemeanor punishable by imprisonment for not more
than 93 days or a fine of not more than $500.00, or both.
(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 punishable by
imprisonment for not more than 5 years or a fine of not less than $1,000.00 or more
than $5,000.00, or both. . . .
(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 punishable by imprisonment for not more than
15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both. . . .
[MCL 257.626(1)-(4).]
-4-
In this case, defendant concedes that he was operating a vehicle on a highway open to the
public and that his operation of the vehicle caused the death of one person and the serious
impairment of another. Defendant argues only that the prosecutor did not establish that his
operation of the vehicle was “in willful or wanton disregard for the safety of persons or property”
as required by the statute.
“ ‘Willful or wanton disregard’ means more than simple carelessness but does not require
proof of an intent to cause harm.” People v Carll, 322 Mich App 690, 695; 915 NW2d 387 (2018).
“It means knowingly disregarding the possible risks to the safety of people or property.” Id. In
Carll, this Court held that when evidence showed that the defendant “drove through a stop sign at
high speed without any attempt to brake and that he might have even accelerated into the
intersection,” the jury could fairly conclude that the defendant acted “with wanton disregard of the
potential consequences, i.e., death and serious injury.”
Viewing the evidence in this case in a light most favorable to the prosecutor, there was
sufficient evidence to allow a rational jury to find defendant guilty beyond a reasonable doubt on
both counts. A rational jury could have concluded that the collision was the result of distracted
driving while operating a vehicle at highway speeds. The prosecutor did not need to prove an
intent to cause harm; rather, all that was required was knowingly disregarding the possible risks
of injury. Id. at 695. Phone records showed that defendant’s cell phone sent a text message at
11:01:34 p.m. The crash was called in at 11:02:08 p.m. The jury heard uncontested evidence that
the average perception or response time is between 1.5 and 1.6 seconds and that defendant—
assuming that he was proceeding at the speed limit—had 34 seconds from the time he entered onto
the highway until the scene of the crash approximately .6 miles down the highway from the on-
ramp, which was more than enough time to bring the vehicle to a complete stop or to change lanes.
The fire truck was bright yellow, parked in a standard technique to assure the safety of emergency
responders, and had its emergency lights flashing, as did at least one other emergency response
vehicle. The roadway was straight, and there was good visibility that night. Despite this, there
was no evidence suggesting that defendant ever perceived the fire engine or that he attempted to
brake or change lanes to avoid a collision. Given this evidence, the jury could fairly conclude that
the defendant was operating the vehicle “with wanton disregard of the potential consequences, i.e.,
death and serious injury.” See id. at 698.
B. GREAT WEIGHT OF THE EVIDENCE
Defendant next argues that his convictions were against the great weight of the evidence.
Defendant did not preserve this claim for appellate review, and thus we review the claim for plain
error affecting his substantial rights. People v Cameron, 291 Mich App 599, 618; 806 NW2d 371
(2011).
A verdict is against the great weight of the evidence and a new trial should
be granted when the evidence preponderates heavily against the verdict and a
serious miscarriage of justice would otherwise result. Generally, a verdict may only
be vacated when the verdict is not reasonably supported by the evidence, but rather
it is more likely attributable to factors outside the record, such as passion, prejudice,
sympathy, or other extraneous considerations. Questions regarding credibility are
not sufficient grounds for relief unless the testimony contradicts indisputable facts
-5-
or laws, the testimony is patently incredible or defies physical realities, the
testimony is material and . . . so inherently implausible that it could not be believed
by a reasonable juror, or the testimony has been seriously impeached and the case
is marked by uncertainties and discrepancies. [People v Solloway, 316 Mich App
174, 182-183; 891 NW2d 255 (2016) (cleaned up).]
Defendant does not cite any basis for why he believes the jury’s verdict was attributable to
passion, prejudice, sympathy, or other extraneous considerations. Nor does defendant provide any
basis for concluding that the testimony presented at trial was inherently implausible. Without any
further analysis or elaboration, defendant argues simply that “[t]he evidence preponderates so
heavily against the verdicts that it would be a serious miscarriage of justice to permit the verdicts
to stand.” Based on our review of the record, the jury’s verdict was not against the great weight
of the evidence.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, defendant argues that his trial counsel was ineffective for failing to challenge
certain jurors for cause. “This Court reviews de novo whether trial counsel’s acts or omissions
fell below an objective standard of reasonableness under prevailing professional norms and
whether, without the error, the result of the proceedings would have been different.” People v
McFarlane, 325 Mich App 507, 527; 926 NW2d 339 (2018).
“A defendant tried by jury has a right to a fair and impartial jury.” People v Budzyn, 456
Mich 77, 88; 566 NW2d 229 (1997). “Jurors are presumptively competent and impartial, and the
party alleging the disqualification bears the burden of proving its existence.” People v Johnson,
245 Mich App 243, 256; 631 NW2d 1 (2001). Although “[a] juror’s failure to disclose information
that the juror should have disclosed may warrant a new trial if the failure to disclose denied the
defendant an impartial jury,” People v Rose, 289 Mich App 499, 529; 808 NW2d 301 (2010), in
this case, defendant does not suggest that any jurors withheld information. Rather, defendant only
alleges that trial counsel was ineffective for failing to challenge particular jurors because of
information that the jurors did disclose during the jury-selection process. Specifically, defendant
argues that six jurors were biased on account of having been in car accidents or having had close
friends or relatives die in car accidents. Defendant also argues that one juror “made statements
about being unsure about his impartiality” and that another juror “knew one of the prosecuting
attorneys.” Defendant argues that trial counsel’s failure to challenge these jurors for cause was
objectively unreasonable and deprived him of a fair trial. We find no merit in these arguments.
Jury selection is governed by the Michigan court rules. See MCR 6.412. An “attorney’s
decisions relating to the selection of jurors generally involve matters of trial strategy.” Johnson,
245 Mich App at 259. To that end, we have recognized that “[p]erhaps the most important criteria
in selecting a jury include a potential juror’s facial expressions, body language, and manner of
answering questions,” People v Unger, 278 Mich App 210, 258; 749 NW2d 272 (2008), and that
there could also be other strategic considerations implicated in selecting a jury not easily
identifiable in an appellate record. For instance, “[d]efense counsel may want to retain certain
prospective jurors, especially, and be willing to express satisfaction so the prosecution will not or
cannot eliminate them.” People v Robinson, 154 Mich App 92, 95; 397 NW2d 229 (1986). By
way of another example, in cases where it is at best unclear whether a challenge will result in a
-6-
stricken juror, defense counsel may—rightly or wrongly—believe “that unsuccessful challenges
for cause would not be viewed favorably by the jury.” See id. at 94. Because we “cannot see the
jurors or listen to their answers to voir dire questions” and because “[a] lawyer’s hunches, based
on his observations, may be as valid as any method of choosing a jury,” we have historically “been
disinclined to find ineffective assistance of counsel on the basis of an attorney’s failure to challenge
a juror.” See Unger, 278 Mich App at 258 (cleaned up). We will not substitute our judgment for
that of trial counsel, nor will we use the benefit of hindsight to assess counsel’s performance. Id.
Moreover, regarding the prejudice prong of the ineffectiveness-of-counsel standard,
“jurors with real life experiences, who acknowledge that they can be free of bias and prejudice,
can and do make excellent jurors,” Johnson, 245 Mich App at 256 n 5, and “the juror’s promise to
keep matters of her personal life separate from defendant’s case [is] sufficient to protect
defendant’s right to a fair trial,” see id. at 256. Accordingly, when a juror assures the trial court
that she can be fair or impartial and the trial court accepts that juror’s assurance—absent some
other consideration—there is not a reasonable probability that the outcome of the case would have
differed if defendant’s counsel challenged that juror for cause. See id. at 259; Unger, 278 Mich
App at 257.
Defendant raises an issue regarding one juror who “knew one of the prosecuting attorneys.”
The record reveals that this juror disclosed that her daughter had attended school with the daughter
of one of the prosecuting attorneys. She added that she had not seen that individual in 11 years,
and the record reflects that she did not believe that this former relationship would affect her ability
to be fair and impartial. Even assuming that a casual acquaintance with one of the prosecuting
attorneys, some 11 years in the past, could have raised a question of bias, defendant cannot prove
prejudice because of the juror’s assurance of impartiality. See Johnson, 245 Mich App at 256.
Defendant also argues that six jurors “either had been involved in car accidents or had close
friends or relatives die in car accidents.” Yet, the jurors agreed that their respective experiences
with automobile accidents would not prevent them from being fair and impartial. The jurors’
respective assurances of impartiality were sufficient to guarantee defendant’s right to a fair and
impartial jury and defeat any claim of prejudice. See Johnson, 245 Mich App at 256.
In sum, a review of the entire jury-selection process reveals that trial counsel was actively
engaged in the questioning of the potential jurors and purposefully worked toward obtaining a fair
and impartial jury for his client. The record also shows that trial counsel consulted with his client
concerning whether to challenge certain jurors. Trial counsel’s lack of objection as to any of the
impaneled jurors amounted to trial strategy and does not warrant appellate relief.
Defendant also points to comments attached to an online news article that allegedly
described the jury’s internal deliberations. It is the general rule, drawn from the common law, that
when “alleged misconduct relates to influences internal to the trial proceedings, courts may not
invade the sanctity of the deliberative process.” See People v Fletcher, 260 Mich App 531, 539;
679 NW2d 127 (2004). “The havoc and potential for abuse would be immense if we were to allow
counsel to open the jury room door after the jury has been discharged and examine, analyze, and
impeach the internal thought processes of the jury.” Hoffman v Spartan Stores, Inc, 197 Mich App
289, 291; 494 NW2d 811 (1992). “[O]nce a jury has been polled and discharged, its members
may not challenge mistakes or misconduct inherent in the verdict.” Budzyn, 456 Mich at 91.
-7-
“Rather, oral testimony or affidavits may only be received on extraneous or outside errors, such as
influence by outside parties.” Id. Absent any evidence of an improper external influence
impacting the reliability of the jury’s deliberations or resulting verdict, we decline defendant’s
invitation to invade the sanctity of the deliberative process. See Fletcher, 260 Mich App at 539.
Affirmed.
/s/ Brock A. Swartzle
/s/ Amy Ronayne Krause
/s/ Michelle M. Rick
-8-