A jury сonvicted Lisa Lynne Bergman of two counts each of second-degree murder, MCL 750.317; operating a vehicle under the influence of intoxicating liquor or a controlled substance (OUIL) causing death, MCL 257.625(4); and operating a vehicle with a suspended license causing death, MCL 257.904(4). The trial court sentenced defendant, as a second-offense habitual offender, MCL 769.10, to concurrent prison terms of 25 to 50 years each for the second-degree murder convictions, and 5 to 22V2 years for each conviction of OUIL and driving with a suspended license. Defendant appeals as of right. We affirm.
i
Defendant’s convictions arise from a two-vehicle collision in Kimball Township in St. Clair County shortly before 2:00 a.m. on July 20, 2013. A witness to the scene of the accident testified that there was heavy rain and fog. Defendant was driving a Ford F-350 pickup truck in the
Defendant’s blood alcohol concentration (BAC) was below the legal limit,
At trial, over defendant’s objection, the prosecution presented evidence of seven prior incidents in which defendant drove erratically, was passed out in her vehicle, or struck another vehicle while impaired or under the influence of prescription substances, such as carisoprodol or Soma, or was in possession of pills, such as Vicodin or Soma.
Before trial, the prosecutor filed notice of its intent to introduce evidence of defendant’s prior acts under MRE 404(b). The prosecutor asserted that defendant’s prior conduct showed that she knew that consuming drugs and alcohol impaired her ability to safely operate a vehicle, and the evidence was relevant to prove the necessary element of malice for second-degree murder. Defendant moved to exclude evidence of her prior acts and to strike the prosecutor’s filing of notice. She argued that the police repоrts filed with the prosecutor’s notice of intent were inadmissible hearsay, and she contended that the filing of these reports would give the media access to unproven charges and deprive her of a fair trial. Defendant further argued that the prior incidents were not admissible under MRE 404(b) because the court rule was intended to apply only to preplanned criminal activity, not to unintentional
The prosecutor argued that in all of the prior incidents, defendant had carisoprodol, or Soma, and its metabolite, meprobamate, in her system.
At the hearing on this motion, defendant argued that the “gratuitously filed” police reports filed in this matter should be struck. Defendаnt argued that if the prosecutor was permitted to introduce evidence of the other cases, “we will be fighting . . . perhaps up to five simultaneous cases all at the same time in the Circuit Court,” which would result in a “prejudicial effect. . . beyond any possible curative jury instruction [.]” Defendant argued that knowledge, accident, and absence of mistake were irrelevant when there was no allegation that defendant committed an intentional act. The trial court denied the defendant’s motion, concluding that knowledge and absence of mistake were at issue and the prosecutor had a legitimate purpose in admitting the evidence “to show that this particular Defendant had knowledge of how these particular drugs affect her and how it affects her ability to drive . . . The trial court agreed to give a cautionary instruction if requested.
Defendant also moved for аppointment of an expert witness at public expense. She argued that the accuracy and interpretation of the State Police laboratory tests were critical issues in the case, and claimed that she would be deprived of a “meaningful defense” unless an independent expert determined the accuracy and relevance of the “purported findings” in the laboratory reports. The cost of an independent examination of each test result was $1,500. A retest of what defendant referred to as “Sample B” was $760. Defendant argued that, at a minimum, she required an expert evaluation of her blood test results on the night of the fatal collision and the Sample B blood draw. She asserted that she was indigent and unable to pay these costs.
The prosecutor argued in response that the prosecutor’s endorsement of an expert witness does not automatically entitle an indigent defendant to a court-appointed expert. Defendant also failed to allege any irregularity or deficiency with respect to the State Police Crime Lab’s methods or protocols that would establish a genuine need for a defense expert.
At the hearing on this motion, defense counsel stated that he needed an expert to
Also before trial, defendant moved for appointment of an investigator “to interview witnesses who were in a position to observe the defendant prior to and immediately following the collision.” Defendant needed the investigator because defense counsel’s attempts to perform an investigation had not yet yielded results. Defendant subsequently withdrew this motion after the trial court granted an adjournment of trial to allow defense counsel more time for preparation.
In another pretrial motion, the prosecutor sought to exclude evidence of the deceased victims’ toxicology reports. The prosecutor noted that Ward’s toxicology report indicated that he had a BAC of 0.054 grams per 100 milliliters, and 6.2 nanograms per milliliter of delta-9 tetrahydrocannabinol (THC) and 17 nano-grams per milliliter of delta-9 carboxy THC in his bloodstream. His passenger, Koby Raymo, had a BAC of 0.110 grams per 100 milliliters, and also 7.5 nano-grams per milliliter of delta-9 THC and 10 nanograms per milliliter of delta-9 carboxy THC in his bloodstream. The prosecutor argued that this evidence should be excluded because it was not relevant and it was unduly prejudicial. Raymo’s toxicology results were irrelevant because he was a passenger and could not have contributed to the accident. Ward’s toxicology results were irrelevant because the evidence clearly established that defendant crossed the centerline and struck Ward’s vehicle head-on, with nо negligence by Ward. Finally, the prosecutor argued that any probative value of the evidence was outweighed by the danger of unfair prejudice, misleading the jury, and confusion of the issues.
Defendant argued in response that Ward’s toxicity levels were relevant to the issues of fault and causation. At the hearing on the motion, defense counsel argued that the other driver had “therapeutic levels” of the opiate pain reliever Tramadol and benzodiazepine. The trial court excluded the evidence on the basis that there was no legitimate question of fact regarding the proximate cause of the accident. At trial, defense counsel conducted voir dire examination of Dr. Mary Pietrangelo, the deputy medical examiner who performed autopsies on Ward and Raymo, in
After the prosecution rested its case, defendant moved for a directed verdict regarding the two second-degree-murder charges. The trial court denied the motion.
The jury found defendant guilty of both counts of second-degree murder, both counts of OUIL causing death, and both counts of driving with a suspended license causing death. At sentencing, defendant objected to the scoring of 50 points for offense variable (OV) 3, but the trial court found that 50 points were properly assessed. Defendant also objected to the scoring of OV 9, but the trial court found that 100 points were properly assessed. Defendant objected to the scoring of 25 points for OV 6, but the trial court found that the assignment of 25 points was proper. Next, defendant objected to the scoring of 25 points for OV 13, and the trial court agreed that it should be scored at zero points. Defendant argued that OV 17 should be scored at zero points and the prosecution agreed. According to the sentencing information report, OV 5 was scored at 15 points, and OV 18 was scored at five points. Defendant’s total OV score was 195 points, and her prior record variable (PRV) score was 37 points, placing her in OV level III (100+ points) and PRV level D (25-49 points) of the applicable sentencing grid, MCL 777.61. The trial court concluded from these scores that defendant’s sentencing guidelines range was 270 to 562 months or life, as enhanced for a second-offense habitual offender, and sentenced defendant to concurrent prison terms of 25 tо 50 years each for the second-degree murder convictions, and 5 to 22xk years for each conviction of OUIL causing death and driving with suspended license causing death.
ii
Defendant first contends that the trial court erred by excluding evidence of intoxicants and controlled substances in the bloodstream of Ward, the driver of the other vehicle, on the basis that the evidence was relevant to establishing that Ward may have been negligent and that defendant’s own conduct did not rise to the level of depraved indifference for human life. We disagree.
We review preserved claims of evidentiary error for an abuse of discretion. People v Unger, 278 Mich App 210, 216;
“Generally, all relevant evidence is admissible at trial,” and “[ejvidence which is not relevant is not admissible.” People v Powell,
In Feezel, the defendant struck and killed a pedestrian with his car. In dark and heavily rainy conditions, the victim was walking in the middle of an unlit, five-lane road, with his back to oncoming traffic. The victim was “extremely intoxicated” at the time of the accident with a blood alcohol content of 0.268 grams per 100 milliliters of blood, or higher. The defendant’s blood alcohol content was 0.091 to 0.115 grams per 100 milliliters, and marijuana was detected in his blood. Feezel,
Proximate causation “is a legal construct designed to prevent criminal liability from attaching when the result of the defendant’s conduct is viewed as too remote or unnatural.” If the finder of fact determines that an intervening cause supersedes a defendant’s conduct “such that the causal link between the defendant’s conduct and the victim’s injury was broken,” proximate cause is lacking and criminal liability cannot be imposed. Whether an intervening cause supersedes a defendant’s conduct is a question of reasonable foreseeability. Ordinary negligence is considered reasonably foreseeable, and it is thus not a superseding cause that would sever proximate causation. In contrast, “gross negligence” or “intentional misconduct” on the part of a victim is considered sufficient to “break the causal chain between the defendant and the victim” because it is not reasonably foreseeable. Gross negligence, however, is more than an enhanced version of ordinary negligence. “It means wantonness and disregard of the consequences which may ensue ... .” “Wantonness” is defined as “[c]onduct indicating that the actor is aware of the risks but indifferent to the results” and usually “suggests a greaterdegree of culpability than recklessness . . ..” Therefore, while a victim’s negligence is not a defense, it is an important factor to be considered by the trier of fact in determining whether proximate cause has been proved beyond a reasonable doubt. [Id. at 195-196 (citations omitted).]
The Court concluded that, because the prosecution was required to prove the element of causation beyond a reasonable doubt, evidence of the victim’s BAC was material. Feezel,
Depending on the facts of a particular case, there may be instances in which a victim’s intoxication is not sufficiently probative, such as when the proofs are insufficient to create a question of fact for the jury about whether the victim was conducting himself or herself in a grossly negligent manner. [Id. at 198-199.]
Applying Feezel to the instant case, we conclude that the excluded evidence is not probative of an intervening or superseding cause that could break the causal link between defendant’s conduct and the victims’ deaths. Unlike the pedestrian in Feezel, who unnecessarily placed himself in the path of oncoming traffic in conditions of poor visibility, there was no evidence that the victims in this case had placed themselves in a hazardous situation at the time of the collision. The evidence established that defendant’s vehicle crossed the centerline and struck the GMC truck heаd-on. There was no evidence that Ward was not properly driving within his marked lane, or that Ward’s vehicle would not have safely passed defendant if defendant had not crossed the centerline in front of Ward, presenting a serious and unexpected hazard. Thus, there was no evidence that Ward did anything that contributed to the accident in a way that would establish that he was negligent or grossly negligent and by his conduct was an intervening cause of the accident. Although defendant speculates that Ward’s consumption of controlled substances impaired his ability to react and avoid the accident, a driver’s failure to avoid a vehicle that suddenly crosses the median directly in the path of oncoming traffic does not constitute gross negligence breaking the causal link. An accident victim’s inability to protect himself and others from the consequences of another person’s unexpected introduction of a serious hazard does not constitute an intervening cause severing the causal chain between the defendant and the victim.
Defendant also argues that Ward’s intoxication was relevant to her defense of the second-degree murder
We also recognize that Goecke held that not every intoxicated driving case resulting in a fatality constitutes second-degree murder. However, the evidence in this case disclosed “a level of misconduct that goes beyond that of drunk driving.” This is not a case where a defendant merely undertook the risk of driving after drinking. Defendant knew, from a recent prior incident, that his drinking did more than simply impair his judgment and reflexes. He knew that he might actually become so overwhеlmed by the effects of alcohol that he would completely lose track of what he was doing with his vehicle. If defendant knew that drinking before driving could cause him to crash on boulders in front of a house, without any knowledge of where he was or what he was doing, he knew that another drunken driving episode could cause him to make another major mistake, one that would have tragic consequences. [Werner,254 Mich App at 533 (citations omitted).]
Thus, the offense of second-degree murder is committed when the defendant has knowledge of her own propensity to create a notably severe hazard when driving while intoxicated, and the victim’s state of intoxication is irrelevant to the defendant’s knowledge of her own susceptibility to hazardous driving. We find no basis to depart from the intervening-cause analysis articulated in Feezel in a case such as this, a prosecution for second-degree murder, when the evidence does nоt support the theory that the victim broke the chain of causation stemming from the defendant’s conduct. Accordingly, we conclude that the trial court did not abuse its discretion in excluding as irrelevant the evidence of Ward’s alcohol and substance exposure.
in
Defendant next argues that she was denied due process of law and is entitled to a new trial because the trial court erroneously denied her motion for appointment of a toxicology expert at public expense. We disagree.
We review the trial court’s decision whether to appoint an expert for an abuse of discretion. People v Tanner,
MCL 775.15 authorizes payment for an expert witness, provided that an indigentdefendant is able to show “that there is a material witness in his favor within the jurisdiction of the court, without whose testimony he cannot safely proceed to trial. ...” If the defendant makes this showing, the judgе, “in his discretion,” may grant funds for the retention of an expert witness. A trial court is not compelled to provide funds for the appointment of an expert on demand.
To obtain appointment of an expert, an indigent defendant must demonstrate a nexus between the facts of the case and the need for an expert. It is not enough for the defendant to show a mere possibility of assistance from the requested expert. Without an indication that expert testimony would likely benefit the defense, a trial court does not abuse its discretion in denying a defendant’s motion for appointment of an expert witness. [People v Carnicom,272 Mich App 614 , 617;727 NW2d 399 (2006) (citations omitted).]
Defendant relies on Ake v Oklahoma,
We conclude that Ake does not require appointment of a defense expert without a demonstration of a nexus between the need for an expert and the facts of the case. Here, defendant failed to establish the requisite nexus. She asserted that toxicology evidence was a critical part of the prosecution’s case, but she did not explain why she could not safely proceed to trial without her own expert. See MCL 775.15. She did not establish why the objective results of blood analysis might be unreliable. She made no offer of proof that an expert could dispute the prosecution experts’ opinions regarding the side effects of prescription medications
and their contribution to impaired driving. Defendant failеd to establish that expert testimony would likely benefit her case. A mere possibility that the expert would have assisted the defendant’s case is not sufficient. Carnicom,
IV
Defendant also argues that the trial court erred by denying her motion for appointment of an investigator. Although defendant moved for the appointment of a defense investigator, defendant withdrew the motion before it was decided. By voluntarily withdrawing her motion, defendant waived her right to a defense investigator. See People v Carter,
v
Defendant next argues that her convictions for multiple counts of second-degree murder, OUIL causing death, and driving with a suspended license causing death in connection with the death of each victim violated her double jeopardy protections under the United States and Michigan Constitutions. US Const, Am V; Const 1963, art 1, § 15. We disagree.
In People v Kulpinski,243 Mich App 8 ,620 NW2d 537 (2000), this Court found no double jeopardy implications where a defendant was convicted of both OUIL causing death and involuntary manslaughter, MCL 750.321. Because the Legislature intended for the two statutes to enforce distinct societal norms, and because each statute contained an element not found in the other, the Court concluded that multiple punishments were permissible. Id. at 18-24; see also People v Price,214 Mich App 538 ;543 NW2d 49 (1995). This reasoning applies with equal force to dual convictions of second-degree murder and OUIL causing death. If the Legislature intended for the OUIL causing death statute to enforce societal norms that are distinct from the societal norms enforced by the involuntary manslaughter statute (grossly negligent conduct), it clearly also intended the OUIL statute to enforce societal norms other than those enforced by the second-degree murder statute (proscribing wanton conduct likеly to cause death or great bodily harm). Id. at 543-544; Kulpinski, [243 Mich App] at 22-23. Moreover, the OUIL causing death statute and second-degree murder statute each contain an element not found in the other. The OUIL causing death statute includes the element of operating a motor vehicle with a specified blood alcohol level, but not the element of malice; the converse is true of the second-degree murder statute. Price, [214 Mich App] at 545-546; Kulpinski, [243 Mich App] at 23-24. Accordingly, defendant’s convictions of both second-degree murder and OUIL causing death do not violate the Double Jeopardy Clauses. [Werner,254 Mich App at 535-536 .]
Although the Werner Court did not address double jeopardy concerns with respect to convictions of second-degree murder and driving with a suspended license causing death, or convictions of OUIL causing death and driving with a suspended license causing death, the analysis in Werner applies with equal force to these combinations of convictions. The statutes governing second-degree murder and driving with a suspended license causing death enforce distinct societal norms, and their respective elements of malice and lack of a valid operator’s license are distinctive to each. See Smith, 478 Mich at 70; MCL 257.904(4). Similarly, the OUIL and suspended-license statutes enforce distinct societal norms, and their respective elements of intoxication while driving and lack of a valid operator’s license are distinctive to each.
VI
Defendant next argues that the trial court erred by admitting evidence of her prior acts under MRE 404(b)(1). We disagree.
We review the trial court’s decision to admit evidence for an abuse of discretion. People v Gursky,
In Werner,
We conclude that Werner is directly on point. The prior acts evidence here involved incidents in which defendant either drove unsafely, was passed out in her vehicle, or was involved in an accident while impaired or under the influence of prescription substances, or was in possession of pills, such as Vicodin and Soma. This evidence was properly admitted to show defendant’s knowledge and absence of mistake, and was relevant to the malice element for second-degree murder because it was probative of defendant’s knowledge of her inability to drive safely after consuming prescription substances. And, because the prior incidents were minor in compаrison to the charged offenses involving
We reject defendant’s assertion that, under Old Chief v United States,
In People v Crawford,
Here, defendant’s offer to stipulate that she had a suspended license, while being conclusive of a necessary element for that offense, would not have been conclusive of or a sufficient substitute for the malice element of second-degree murder, for which thе evidence was offered. Proof that defendant intentionally acted “in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm,” Goecke,
Finally, relying on Alleyne v United States,
In Apprendi,
In People v Lockridge,
The Lockridge Court further clarified that when, as in this case, the defendant did not object to the scoring of the offense variables at sentencing on Apprendi/Alleyne grounds, review is for plain error affecting substantial rights. Lockridge,
First, we consider cases in which (1) facts admitted by the defendant and (2) facts found by the jury were sufficient to assess the minimum number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced. In those cases, because the defendant suffered no prejudice from any error, there is no plain error and no further inquiry is required. [Id. at 394-395.]
In this case, the trial court scored the sentencing guidelines for defendant’s second-degree-murder conviction. Defendant’s total OV score was 195 points and her PRV score was 37 points, placing her in OV level III (100+ points) and PRV level D (25-49 points). OV Level III is the highest level of offense severity on the applicable sentencing grid. MCL 777.61. Thus, as long as at least 100 OV points can
The trial court assessed 50 points for OV 3, which is appropriate when (1) a victim was killed, (2) the “death results from the commission of a crime and the offense . . . involves the operation of a vehicle,” and (3) “[t]he offender was under the influence of or visibly impaired by the use of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.” MCL 777.33(1)(b) and (2)(c)(i). Each of these facts was necessarily found by the jury beyond a reasonable doubt. The jury found defendant guilty of second-degree murder, which requires the death of a victim. The jury also found defendant guilty of OUIL causing death, which required the jury to find that defendant was operating a vehicle while under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination thereof. MCL 257.625(1)(a). Thus, each of the facts necessary to support a 50-point score for OV 3 was necessarily found by the jury beyond a reasonable doubt. Accordingly, the trial court’s scoring of OV 3 did not violate defendant’s Sixth Amendment right to a jury trial.
The trial court also assessed 100 points for OV 9, which is appropriate when "[m]ultiple deaths occurred.” MCL 777.39(l)(a). MCL 777.39(2)(b) indicates that 100 points are to be assessed only in homicide cases. The jury found defendant guilty of two counts each of second-degree murder. These verdicts reflect that the jury found beyond a reasonable doubt that multiple deaths occurred. Accordingly, the trial court’s scoring of OV 9 did not violate defendant’s Sixth Amendment right to a jury trial.
In sum, because facts found by the jury were sufficient to assess the minimum number of OV points necessary for defendant’s placement in the D-III cell of the sentencing grid under which she was sentenced, there was no plain error and defendant is not entitled to resentencing or other relief under Lockridge.
Affirmed.
Talbot, P.J., and Fort Hood, J., concurred with Wilder, J.
Notes
Lieutenant Terpenning’s first name does not appear in the record.
Defendant’s BAC measured from blood samples taken at the hospital after the accident was 52 milligrams per deciliter (0.052 grams per 100 milliliters). There was testimony that this would be equivalent to a “.04 whole blood resulto.” The sample measured by the State Police revealed a BAC of 0.01 grams per 100 milliliters.
According to expert testimony, defendant’s carisoprodol level was within the therapeutic range and her meprobamate level was possibly within the therapeutic range, although the expert could not say for certain.
This other-acts evidence is discussed more fully in Part VI of this opinion.
Contrary to the prosecutor’s argument below, the evidence at trial did not establish that defendant was under the influence of Soma during the January 1, 2008 incident, although she was in possession of Soma pills.
Defendant concedes that this Court is bound by Werner.
We note that the trial court did not score OV 7 or 19.
She does not, however, challenge the accuracy of the scoring of those OVs.