PEOPLE OF MI V DANIEL MATTHEW MORRISON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 6, 2009
Plaintiff-Appellee,
v
No. 284218
Berrien Circuit Court
LC No. 2007-411543-FH
DANIEL MATTHEW MORRISON,
Defendant-Appellant.
Before: Saad, C.J., and Sawyer and Borrello, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of two counts of involuntary
manslaughter with a motor vehicle, MCL 750.321, and one count of felonious driving, MCL
257.626c. The trial court sentenced defendant to 57 to 180 months’ imprisonment for both of his
vehicular manslaughter convictions, and to 90 days for his felonious driving. He appeals as of
right. For the reasons set forth in this opinion, we affirm the convictions and sentences of
defendant.
This case arose following a two-car accident at the intersection of Burgoyne Road and
Shawnee Road in Berrien Springs, Michigan, where a car driven by defendant hit another car
with three occupants. Two of those occupants were killed and the third was seriously injured.
Shawnee Road is a through right-of-way, while traffic on Burgoyne Road is controlled by stop
signs where the two roads intersect. The one-mile portion of Burgoyne Road, where defendant
drove his car just before the accident, contains a number of hills. There was testimony that one
can create a roller-coaster-like experience by driving at a certain rate of speed over those hills,
and the intent of the driver and passengers was to take a “joy ride.”1
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At trial, Sheriff’s Deputy Rich Albers explained that by driving a car at a certain rate of speed
on Burgoyne Road, a driver could create an experience similar to being on a roller coaster.
According to Berrien County Sheriff’s Department Lieutenant Don Goulooze, speed limits are
not posted on either road; however, “[i]t’s prima facie 55 miles per hour” (mph). Proceeding
southbound on Burgoyne Road towards Shawnee Road, there is a “stop ahead” sign
approximately 647 feet from the intersection. The last hill on Burgoyne Road is approximately
225 feet from the intersection. However, the stop sign is visible from 410 feet away; according
(continued…)
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Defendant argues that testimony presented at trial by witnesses concerning defendant’s
vehicle traveling well beyond the speed limit was reversible error because such testimony
constituted prior bad acts in contravention of MRE 404(b). We review the admission of
evidence for an abuse of discretion. People v Johnson, 474 Mich 96, 99; 712 NW2d 703
(2006).2 “[A]n abuse of discretion standard acknowledges that there will be circumstances in
which there will be no single correct outcome; rather, there will be more than one reasonable and
principled outcome.” People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
MRE 404(b)(1) generally precludes “[e]vidence of other crimes, wrongs, or acts . . . to
prove the character of a person in order to show action in conformity therewith.” “Nevertheless,
it is essential that prosecutors and defendants be able to give the jury an intelligible presentation
of the full context in which disputed events took place.” People v Sholl, 453 Mich 730, 741; 556
NW2d 851 (1996). The res gestae exception to MRE 404(b) applies where previous or
subsequent acts were so intertwined with the charged offense that proof of one incidentally
involves the other or explains the circumstances of the offense. People v Delgado, 404 Mich 76,
83; 273 NW2d 395 (1978).
In the instant case, two witnesses observed defendant’s car traveling at high rates of
speed on Lauer Road on the day of the accident. A driver of another vehicle witnessed
defendant’s car “traveling kind of recklessly or at a high rate of speed,” estimating that
defendant’s car was going 60 to 65 mph. An off-duty sheriff’s deputy observed defendant’s car
pass in front of his residence twice at high rates of speed, exceeding 90 mph. The deputy was so
concerned that he attempted to follow defendant’s car. The deputy arrived at the accident scene
four or five minutes after his seeing defendant’s car pass by his residence the second time.
(…continued)
to Lieutenant Goulooze, “you can see the stop sign over the crest of the hill slightly.” From the
crest of the hill to the intersection, there is a downward slop of approximately eight feet.
2
We note that defendant argues this Court should adopt the three-part standard of review
articulated by the sixth circuit, where “the trial court’s finding whether the conduct did in fact
occur is reviewed for clear error, the decision whether the evidence was admissible for a proper
purpose under 404(b) is reviewed de novo, and the decision whether the probative value of the
evidence is substantially outweighed by its prejudicial effect is reviewed for an abuse of
discretion,” citing United States v Latouf, 132 F3d 320 (CA 6, 1997), cert den 523 US 1101; 118
S Ct 1572; 140 L Ed 2d 805 (1998); United States v Merriweather, 78 F3d 1070 (CA 6, 1996);
United States v Johnson, 27 F3d 1186 (CA 6, 1994), cert den 513 US 1115; 115 S Ct 910; 130 L
Ed 2d 792 (1995). While the decisions of federal circuit courts are not binding on our courts,
although they may be persuasive, Greater Bible Way Temple of Jackson v City of Jackson, 478
Mich 373, 396; 733 NW2d 734 (2007), cert den ___ US ___; 128 S Ct 1894; 170 L Ed 2d 782
(2008), we are bound by our Supreme Court’s standard of review as set forth in People v
Johnson, supra.
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Defendant’s two passengers provided testimony that the car ride only lasted 10 to 15 minutes
before the accident.
We conclude that the trial court properly admitted the challenged testimony. Though the
trial court conducted the proper analysis, it did not have to rule that the challenged testimony
served a proper purpose under MRE 404(b) because the testimony falls within the res gestae
exception to MRE 404(b). Here, the challenged testimony related to defendant’s driving in the
minutes leading up to the accident. Moreover, the aforementioned witnesses, as lay witnesses,
were competent to provide opinions regarding the speed of defendant’s car. See Cole v Eckstein,
202 Mich App 111, 113-114; 507 NW2d 792 (1993). Defendant’s conduct was relevant to one
of the elements of the charged offense of involuntary manslaughter, namely whether his conduct
amounted to ordinary negligence or gross negligence. People v Herron, 464 Mich 593, 604-605;
628 NW2d 528 (2001). The elements of an offense are always at issue, so the prosecution
properly sought to introduce all relevant evidence to establish beyond a reasonable doubt that
defendant was grossly negligent. People v Mills, 450 Mich 61, 71; 537 NW2d 909 (1995),
modified 450 Mich 1212 (1995). Because the jury had to determine whether defendant was
guilty of involuntary manslaughter or negligent homicide (or not guilty), “[t]he more the jurors
knew about the full transaction, the better equipped they were to perform their sworn duty.” See
Scholl, supra at 742. Thus, the jury was entitled to have facts concerning the defendant’s driving
on Lauer Road as an integral part of the events that ultimately played out minutes later at the
intersection of Shawnee Road and Burgoyne Road. Delgado, supra at 84. Further, there is no
indication that the challenged testimony offends MRE 403, other than a general fear of prejudice
expressed by defendant on appeal. Mills, supra at 75. The trial court did not abuse its discretion
in admitting the testimony of the two witnesses regarding defendant’s driving on Lauer Road; the
ruling was a reasonable and principled outcome. Babcock, supra at 269.
Next on appeal, defendant asserts that the prosecution failed to present sufficient
evidence regarding the element of gross negligence to sustain his convictions for involuntary
manslaughter and felonious driving. We review sufficiency of the evidence claims de novo,
viewing the evidence in the light most favorable to the prosecution to determine if the evidence
was sufficient for a rational jury to find the defendant guilty beyond a reasonable doubt. People
v McGhee, 268 Mich App 600, 622; 709 NW2d 595 (2005).
To prove that defendant was guilty of involuntary manslaughter with a motor vehicle, the
prosecution must demonstrate that defendant committed an unlawful act with the intent to injure
or in a grossly negligent manner that proximately caused the death of another. People v McCoy,
223 Mich App 500, 502; 566 NW2d 667 (1997). A person is guilty of felonious driving by
operating “a vehicle upon a highway . . . carelessly and heedlessly in willful and wanton
disregard of the rights or safety of others, or without due caution and circumspection and at a
speed or in a manner that endangers or is likely to endanger any person or property resulting in a
serious impairment of a body function of a person, but does not cause death.” MCL 257.626c.
“As with involuntary manslaughter, a conviction of felonious driving requires proof of gross
negligence.” Id. Gross negligence has three elements: (1) the knowledge of a situation
requiring the exercise of ordinary care and diligence to avert injury to another; (2) the ability to
avoid the resulting harm by ordinary care and diligence in the use of the means at hand; and (3)
the omission to use such care and diligence to avert the threatened danger when to the ordinary
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mind it must be apparent that the result is likely to prove disastrous to another. Id. at 503
(citations omitted).
In the instant case, we find that the first two elements are readily satisfied. With respect
to the second element, it was defendant’s choice to drive at high rates of speed over hills near
intersections. With respect to the final element, it is undisputed that defendant was speeding, but
that alone “is not adequate to establish the element of gross negligence.” Id. at 504. However,
under the totality of the circumstances, we conclude that a reasonable jury found that defendant’s
conduct amounted to gross negligence. Id.
The determination whether excessive speed constitutes gross negligence is generally a
jury question to be resolved based on the totality of the circumstances. Id. at 504. Viewing the
evidence in the light most favorable to the prosecution, a jury could reasonably find that
defendant was driving at high rates of speed, that he disregarded a traffic control sign, that he
was not paying attention to current driving conditions, and that he took no evasive action to
avoid the accident. In McCoy, supra at 504, this Court found that “[t]he fact that defendant did
not slow down or swerve in an attempt to avoid striking them suggests that he was traveling at a
reckless speed.” This is not a case, where defendant was merely speeding when the collision
occurred. By his own admission, defendant was engaging in a dangerous activity. And, while
defendant asserted that he was trying to slow down and that his brakes failed, the testimony of
one of his passengers and his expert refuted that testimony to a certain extent. Further, there was
conflicting testimony regarding the brakes’ functionality. The jury could have accepted the
prosecution experts’ testimony that defendant’s brakes worked, and inferred that defendant failed
to brake. It is the province of the jury to give weight to the testimony of experts, and to decide
which expert to believe. Guerrero v Smith, 280 Mich App 647, 669; 761 NW2d 723 (2008).
“The jury has the discretion to believe or disbelieve a witness’s testimony, even when the
witness’s statements are not contradicted.” Id. Ultimately, we will not interfere with a jury’s
role, as factfinder, in determining the credibility of witnesses. People v Williams, 268 Mich App
416, 419; 707 NW2d 624 (2005). Viewing the evidence in a light most favorable to the
prosecution, we conclude that a rational trier of fact could, and did, find that the prosecution
proved the element of gross negligence beyond a reasonable doubt to sustain defendant’s
convictions of involuntary manslaughter and felonious driving. McCoy, supra at 504-505.
Finally on appeal, defendant contends that the trial court misscored offense variable (OV)
9, MCL 777.39, and OV 17, MCL 777.47. We review issues concerning the proper scoring of
sentencing guidelines variables for an abuse of discretion. People v Hornsby, 251 Mich App
462, 468; 650 NW2d 700 (2002). A trial court’s scoring decision will be upheld if there is any
evidence in the record to support it. People v Kegler, 268 Mich App 187, 190; 706 NW2d 744
(2005).
Defendant first challenges the trial court’s OV 9 scoring of 100 points, reflecting that
multiple deaths occurred. MCL 777.39(1)(a). In this case, there were two homicide victims as a
result of the single two-car accident, which resulted in the charges for which defendant was
convicted. The trial court properly scored OV 9 at 100 points, because multiple deaths occurred
as a result of the same criminal transaction involving homicide. MCL 777.39(1)(a); see also
People v Sargent, 481 Mich 346, 350; 750 NW2d 161 (2008) (in scoring OV 9, the trial court
should consider people placed in danger of injury or loss of life when the sentencing offense was
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committed or during the same criminal transaction). We uphold the trial court’s scoring decision
with respect to OV 9, because the record supports that decision. Kegler, supra at 190.
OV 17 is scored at ten points where “[t]he offender showed a wanton or reckless
disregard for the life or property of another person.” MCL 777.47(1)(a). As discussed
previously, the evidence demonstrated that defendant showed a reckless disregard for the life of
other persons. We uphold the trial court’s scoring decision with respect to OV 17 because the
record supports that decision. Kegler, supra at 190.
Affirmed.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Stephen L. Borrello
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