PEOPLE OF MI V MOHAMAD BAZZI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 12, 2002
Plaintiff-Appellee,
v
No. 228670
Oakland Circuit Court
LC No. 99-168020-FC
MOHAMAD BAZZI,
Defendant-Appellant.
Before: Zahra, P.J., and Neff and Saad, JJ.
PER CURIAM.
Defendant, Mohamad Bazzi, was charged with second-degree murder, MCL 750.317,
operating a motor vehicle while under the influence of intoxicating liquor (OUIL) causing death,
MCL 257.625(4), OUIL causing serious injury, MCL 257.625(5), and minor in possession of
alcohol, MCL 436.1703. Defendant appeals as of right his jury trial convictions of negligent
homicide, MCL 750.324, OUIL causing death, OUIL causing serious injury and minor in
possession of alcohol. Defendant was sentenced to seven months to two years’ imprisonment for
the negligent homicide conviction, seven to fifteen years’ imprisonment for the OUIL causing
death conviction, twenty-three months to five years’ imprisonment for the OUIL causing serious
injury conviction, and ninety days’ imprisonment for the minor in possession of alcohol
conviction. We affirm.
I. Basic Facts and Procedure
This case arises out a fatal traffic accident in the early morning hours of July 22, 1999.
Ronnie Hashem and Kassen Anani were riding in a convertible Chevrolet Camaro driven by
defendant, when the car hit the back of a semi-truck. Hashem was killed. Defendant and Anani
suffered severe injuries.
There was evidence presented at trial that sometime after 10:00 p.m. on July 21,
defendant, Hashem and Anani drove to a liquor store where defendant purchased two 22-ounce
bottles of beer. Thereafter, the three men traveled to a night club, where defendant was observed
drinking. The three men left the club around 2:00 a.m. with Hassen Bazzi, defendant’s cousin,
and Sami Johair. Bazzi and Johair traveled in a Corvette. Defendant, Anani and Hashem
eventually began traveling southbound on I-75. Anani testified that defendant was driving
dangerously and at speeds approaching 100 mph. Defendant collided with the semi-truck in the
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right lane. There was evidence presented at trial that the collision occurred while defendant
attempted to switch from the right lane to the center lane.
Defendant was taken to Beaumont Hospital. An emergency technician drew defendant’s
blood so that prior to any surgery, surgeons would be aware of any chemicals in defendant’s
blood. The emergency technician personally took defendant’s blood to the clinical pathology
department where a serum examination revealed a result of 132. Toxicologists testified that this
result means defendant’s blood alcohol level was somewhere between .088 and .12.
Defendant was interviewed in the emergency room by a Troy police officer. The officer
smelled a strong odor of intoxicants on defendant. Defendant admitted to the officer that he had
consumed one 22-ounce container of beer.
The prosecutor’s theory of the case was that defendant, by choosing to drive at speeds
approaching one hundred miles an hour while intoxicated, created a high risk of death or great
bodily harm and was therefore guilty of, among other things, second-degree murder.
Defendant’s theory of the case was that although he was speeding, he was not intoxicated and the
accident would not have happened if his car was not cut off by the car driven by his cousin.
During jury voir dire, the prosecutor exercised peremptory challenges to excuse from the jury an
African-American juror and a juror who belonged to an ethnic minority.1 The jury that was
selected to hear the case included at least one member of an ethnic minority.2
II. Analysis
Defendant, an Arab-American, first argues that he was denied his right to due process and
a fair trial because the prosecutor exercised peremptory challenges to remove minority jurors in
an unlawfully discriminatory manner. We disagree.
Although a prosecutor is generally allowed to exercise peremptory challenges for any
reason, the equal protection clauses of the United States and Michigan Constitutions forbid the
prosecutor from challenging potential jurors based solely on their race. Batson v Kentucky, 476
US 79, 89; 106 S Ct 1712; 90 L Ed 2d 69 (1986). A prima facie case of purposeful
discrimination may be made by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose. Id. at 93-94. To establish such a case, the defendant must
show that he is a member of a cognizable racial group, and that the prosecutor has exercised
peremptory challenges to remove from the venire members of a protected class.3 Id. at 96. The
1
The race or ethnicity of this challenged juror is unclear in both the lower court record and the
briefs filed by the litigants. Defendant maintained at trial that the prosecutor exercised a
peremptory challenge to excuse a person who appeared to be “Turkish or Middle Eastern.”
2
At trial, defense counsel admitted that one “juror of color” was selected to serve on the jury.
Neither the briefs nor the lower court record discloses the specific ethnicity or race of this juror.
In addition, the prosecutor also represented to the trial court that one other juror had “some type
of Hispanic background.” Notwithstanding the lack of clarity in the briefs and record, the
litigants appear to agree that at least one member of an ethnic minority served on the jury that
convicted defendant.
3
The United States Supreme Court has held that a defendant may challenge a prosecutor’s race
(continued…)
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defendant must also show that these facts, and any other relevant circumstances, raise an
inference that the prosecutor used his peremptory challenges to exclude potential jurors on
account of their race. Id. Such “relevant circumstances” include a “pattern” of strikes against
minority jurors, or racially motivated questions or statements by the prosecutor during voir dire.
Id. at 97. The mere fact that the prosecutor used a peremptory challenge to excuse one or more
members of a protected class is insufficient to create a prima facie case. People v Williams, 174
Mich App 132, 137; 435 NW2d 469 (1989). Likewise, the fact that no member of a minority
ended up sitting on the jury is also insufficient to create a prima facie case. Id.
In this case, defendant has failed to establish a prima facie case of discrimination. Not all
minority jurors were peremptorily dismissed by the prosecutor, and the jury was not devoid of
minorities. Under the circumstances of this case, defendant has failed to establish that there was
a “pattern” of racially motivated peremptory strikes. In addition, defendant makes no allegation
that the prosecutor engaged in any other type of discriminatory conduct. Simply put, defendant
has failed to establish even an inference of discrimination. As a result, the trial court did not
abuse its discretion in concluding the prosecutor did not exercise his peremptory challenges in a
discriminatory manner.
Next, defendant argues that the trial court erred in allowing the prosecutor to introduce
the results of defendant’s blood test run by medical personnel at the hospital. The results in
question established that defendant’s blood alcohol level was between .088 and .12. Evidentiary
rulings are reviewed for an abuse of discretion. People v Watson, 245 Mich App 572, 575; 629
NW2d 411 (2001). “An abuse of discretion exists if an unprejudiced person would find no
justification for the ruling made.” Id., citing People v Rice (On Remand), 235 Mich App 429,
439; 597 NW2d 843 (1999).
Defendant contends the document reporting the 132 serum examination result should not
have been admitted in evidence. The document was admitted by the trial court under the
business record exception to the hearsay rule, MRE 803(6). This exception provides:
A memorandum, report, record or data compilation, in any form, of acts,
transactions, occurrences, events, conditions, opinions or diagnoses, made at or
near the time by, or from information transmitted by, a person with knowledge, if
kept in the course of a regularly conducted business activity to make the
memorandum, report, record, or data compilation, all as shown by the testimony
of the custodian or other qualified witness, unless the source of the information or
the method or circumstance of preparation indicate lack of trustworthiness. The
term “business” as used in this paragraph includes business, institution,
association, profession, occupation, and calling of every kind, whether or not
conducted for profit.
(…continued)
based peremptory challenge of a potential juror regardless of whether the defendant and the
excluded juror are of the same race. Powers v Ohio, 499 US 400, 411-412; 111 S Ct 1364; 113
L Ed 2d 411 (1991).
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The Beaumont emergency technician who drew defendant’s blood and delivered it to the
hospital lab testified that the document was a record Beaumont Hospital kept in the ordinary
course of business and was a part of defendant’s medical file. The document was sent, via fax
machine or printer, to the trauma room from the laboratory after the testing was completed. We
conclude the trial court did not abuse its discretion in admitting this medical record. The lower
court record establishes that the document was generated at or near the time the test was run and
was generated by knowledgeable hospital personnel who keep the records in the ordinary course
of business activity.
Further, the result of the blood test was admissible by statute. MCL 257.625a(6)(e)
provides:
If, after an accident, the driver of a vehicle involved in the accident is
transported to a medical facility and a sample of the driver’s blood is withdrawn
at that time for medical treatment, the results of a chemical analysis of that sample
are admissible in any civil or criminal proceeding to show the amount of alcohol
or presence of a controlled substance or both in the person’s blood at the time
alleged, regardless of whether the person had been offered or had refused a
chemical test. The medical facility or person performing the chemical analysis
shall disclose the results of the analysis to a prosecuting attorney who requests the
results for use in a criminal proceeding as provided in this subdivision. A medical
facility or person disclosing information in compliance with this subsection is not
civilly or criminally liable for making the disclosure.
Defendant’s blood was drawn after he had been in an accident and taken to a medical facility.
The blood was drawn in the course of medical treatment to determine prior to any surgery
whether any chemicals were in defendant’s system. Under these circumstances, the results of the
blood test were admissible pursuant to the above-cited statute.
Defendant claims that absent the showing that the testing machine was properly
calibrated and that the operator of the machine was qualified, there is insufficient foundation to
support the admission of the blood test results. In essence, defendant argues that foundational
requirements applied to chemical testing performed primarily for criminal prosecutions should
be applied to testing performed solely for medical treatment but later used in criminal
proceedings. We find no merit in defendant’s argument. Significantly, the plain language of the
statute imposes no such requirement. See People v Wager, 460 Mich 118, 121; 594 NW2d 487
(2000). Moreover, the fact that the testing is performed for medical treatment provides sufficient
indicia of reliability to forego foundational requirements traditionally applicable to chemical
testing performed for non-medical reasons. Defendant was free to question or otherwise
challenge the medical equipment on which these tests were conducted. However, such
challenges would go to the weight and not the admissibility of test results. Id. at 126.
Next, defendant argues that charging him with second-degree murder and OUIL causing
death violated his protection against double jeopardy. We disagree.
The Double Jeopardy Clause of the Fifth Amendment protects against two general
governmental abuses: (1) multiple prosecutions for the same offense after an acquittal or
conviction, and (2) multiple punishments for the same offense. People v Herron, 464 Mich 593,
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599; 628 NW2d 528 (2001). In the instant case, defendant claims that the latter protection was
violated. However, because defendant was not actually convicted of second-degree murder, he
was clearly not punished for both second-degree murder and OUIL causing death.
Further, our Supreme Court has stated that charging a defendant with second-degree
murder and OUIL causing death, for the death of a single person, does not amount to
prosecutorial overreaching or a violation of a defendant’s right to be free from multiple
punishments. Herron, supra at 603, 606 n 8. When warranted by the facts, the OUIL statute
does not limit a prosecutor’s ability to charge an intoxicated driver with murder. See People v
Kulpinski, 243 Mich App 8, 20; 620 NW2d 537 (2000). Defendant’s claim in this regard is
without merit.
Last, defendant argues that the trial court erred in denying his motion for a new trial on
the ground that the verdict was against the great weight of the evidence. We disagree.
Defendant’s claim in this regard is premised on his assertion that the trial court erred in
admitting the blood test results. Defendant concedes in his brief that if the test results were
properly admitted, then there was sufficient evidence to support the jury’s verdict. As previously
discussed, the blood test results were properly admitted. Therefore, defendant’s premise for this
claim is incorrect, and relief is not warranted.
To the extent that defendant argues that the negligent homicide verdict is inconsistent
with the OUIL causing death verdict, relief is not warranted. First, this inconsistency argument
is not properly presented. Ordinarily, no argument will be considered which is not set forth in
the statement of questions presented on appeal. People v Brown, 239 Mich App 735, 748; 610
NW2d 234 (2000). In this case, the question presented deals with the weight of the evidence, not
the consistency of the verdict. Second, even if the argument was properly presented, a jury’s
verdict need not be consistent in light of its power of leniency. People v Torres, 452 Mich 43,
75; 549 NW2d 540 (1996); People v Lewis, 415 Mich 443, 450-453; 330 NW2d 16 (1982);
People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980). Defendant does not claim the jury
reached a compromise verdict. Lewis, supra. As a result, defendant is not entitled to relief.
Affirmed.
/s/ Brian K. Zahra
/s/ Janet T. Neff
/s/ Henry William Saad
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