PEOPLE OF MI V RODERICK HAROLD PERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 19, 2009
Plaintiff-Appellee,
v
No. 286057
Alpena Circuit Court
LC No. 07-001705-FC
RODERICK HAROLD PERSON,
Defendant-Appellant.
Before: Borrello, P.J., and Whitbeck and K. F. Kelly, JJ.
PER CURIAM.
Defendant Roderick Person appeals as of right his jury conviction of second-degree
murder,1 and OWI causing death.2 The trial court sentenced Person to concurrent terms of 15 to
30 years in prison on each charge. We affirm Person’s convictions, but remand for resentencing
on Person’s conviction for OWI causing death.
I. Basic Facts And Procedural History
On July 19, 2007, Person and his friend Victor Gornall, Jr., went to the Dry Dock bar in
Alpena at approximately 2:00 a.m. Person and Gornall had been drinking at Person’s home
before arriving at the bar. Person persistently asked the bartender for a drink, but was not served
any alcohol at the bar because he arrived after last call.
Jean Anderson, Person’s neighbor was also a patron of the bar that night. Anderson had
walked to the bar, so Person offered her a ride home when the bar closed, and she accepted.
Gornall was passed out in the back seat of Person’s car.
Alpena Police Department Officer William Gohl, who was on duty that night in a marked
patrol car, observed Person’s vehicle after it left the bar and noticed that it had a burnt out
passenger side headlight. Officer Gohl followed the vehicle and observed it stop at a flashing
red light at River Street and Second Avenue. The vehicle stopped well beyond both the white
1
MCL 750.317.
2
MCL 257.625(4).
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line and the cross walk at the intersection. Person’s vehicle then made a sweeping left turn onto
Second Avenue into the right turn lane, and then switched lanes without signaling in order to
travel over the bridge. At this point, Officer Gohl activated his overhead lights. Both vehicles
were traveling at normal speeds at the time.
Person’s vehicle continued without stopping and caught up with another vehicle, then
abruptly changed lanes and passed it. In a portion of her preliminary examination testimony
admitted at trial, Anderson testified that at this point she told Person to “just pull over,” but
Person responded that “he didn’t want to go to jail.” Officer Gohl turned on his siren and alerted
dispatch that he was following a fleeing vehicle. Person’s vehicle picked up speed and was
traveling much faster than Officer Gohl vehicle, which was traveling approximately 70 mph.
Officer Gohl testified that he decided not to increase his speed further because he was
approaching an intersection.
The area had poor lighting, and Officer Gohl became concerned that he would lose sight
of the fleeing vehicle, so he turned on his vehicle’s spotlight. As Person’s vehicle entered a
curve in the road, Officer Gohl saw its brake lights briefly and then could no longer see the
vehicle. Officer Gohl discovered that Person’s vehicle had left the roadway, and he could see
skid marks and a large plume of smoke or dust in the air. Person’s vehicle had come to rest near
a creek bottom, which was approximately a six-foot drop from the roadway. Officer Gohl
advised dispatch of the crash and requested an ambulance.
As Officer Gohl approached the vehicle, he could see two people inside it. Officer Gohl
first made contact with Anderson, who was groaning in the front passenger seat. Officer Gohl
could not see any major wounds, so he told her to stay put and approached Person, who was in
the driver’s seat. Officer Gohl then noticed Gornall in the grass near the vehicle. Gornall was
breathing but unresponsive.
Additional officers and paramedics responded to the scene, and all three passengers were
transported by ambulance to the hospital. Two officers who responded to the scene reported
that, before Person was removed from the vehicle, the odor of intoxicants was present, Person
had bloodshot eyes, and Person denied being the driver of the vehicle, despite the fact that he
was belted in the driver’s seat. A search warrant was obtained to retrieve a sample of Person’s
blood. Testing revealed that Person’s blood contained 0.17 grams of alcohol per 100 milliliters
of blood.
As part of the investigation into the accident, the air bag module was retrieved from
Person’s vehicle, which recorded the speed at the time of crash as 87 mph. In addition, an expert
in accident reconstruction determined that the absolute minimum speed of Person’s vehicle at the
beginning of the visible skid marks was 48 to 50 mph. The speed limit on Second Avenue is 25
mph.
Dr. Bevin Clayton, an emergency room physician at Alpena Regional Medical Center,
testified that he treated Gornall upon his arrival. Dr. Clayton could feel Gornall’s ribs crunching
when he attempted CPR. In addition, Gornall’s eyes were fixed and dilated, which Dr. Clayton
testified, usually indicates the chance of recovery is less than 1 percent. Shortly thereafter,
Gornall was pronounced dead. Hospital staff testified that Person, who had been belligerent and
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threatening, quieted after being told of Gornall’s death and stated that Gornall had been dead
before the accident.
Gornall’s autopsy resulted in the determination that the cause of death was multiple blunt
force injuries. The medical examiner, Kanu Virani, M.D., testified that Gornall had suffered
numerous internal and external injuries, including a broken leg, separation of the first, second,
and third vertebrae of the neck, lacerations of the lungs and liver, a nearly completely separated
kidney, as well as other relatively minor injuries. Dr. Virani did not note any seat belt marks,
which would normally be present when someone is wearing a seat belt and is injured.
II. Sufficiency Of The Evidence
A. Standard Of Review
Person argues that there was insufficient evidence to support his conviction for seconddegree murder. We review de novo sufficiency of the evidence claims.3 In reviewing a
sufficiency challenge, we examine the evidence in a light most favorable to the prosecution and
determine whether a rational trier of fact could find that the essential elements of the crime were
proven beyond reasonable doubt.4
B. Legal Standards
Due process prohibits a criminal conviction unless the prosecution establishes guilt of the
essential elements of a criminal charge beyond a reasonable doubt.5 Circumstantial evidence and
the reasonable inferences it engenders are sufficient to support a conviction, provided the
prosecution meets its burden of proof.6 In addition, the prosecution is not required to disprove
all innocent theories when a case is based on circumstantial evidence.7
The essential elements that must be established beyond a reasonable doubt to sustain a
conviction for second-degree murder are: “(1) a death, (2) caused by an act of the defendant, (3)
with malice, and (4) without justification or excuse.”8 The element of malice can be satisfied by
establishing that the defendant intended “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.”9
While not every case in which intoxicated driving leads to death constitutes second-degree
3
4
People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001).
Id.
5
People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999).
6
People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
7
People v Carson, 189 Mich App 268, 269; 471 NW2d 655 (1991).
8
People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868 (1998).
9
Id. at 464.
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murder, when the evidence establishes “‘a level of misconduct that goes beyond that of drunk
driving,’” a conviction for second-degree murder can be sustained.10
C. Applying The Standards
Person argues that his conviction for second-degree murder cannot be sustained because
his conduct was not so egregious to rise to the level of wanton and willful disregard of the
likelihood that the natural tendency of such behavior is to cause death or great bodily harm. In
support, Person compares the facts present here to other cases in which a defendant convicted of
second-degree murder had been driving while intoxicated;11 Person asserts that the level of
disregard for risk in those cases cannot be found here. For example, Person notes that in People
v Goecke,12 the three defendants engaged in such conduct as driving recklessly at a high rate of
speed on a main road, narrowly avoiding collisions, and disregarding traffic signals. Person
argues that because there was no evidence of any near-miss accidents, the chase lasted only a
minute, and there was very little traffic during the pursuit, his conduct did not rise to the level
necessary to sustain a conviction for second-degree murder.
However, Person fails to acknowledge that this Court has also upheld a conviction for
second-degree murder when there has been no evidence of near-miss collisions, prolonged police
pursuit, or other traffic. In Werner, this Court acknowledged that there was no evidence
regarding the defendant’s behavior from the time of his departure until the fatal crash occurred.13
Nonetheless, this Court concluded that the prosecution had met its burden by establishing that
the defendant had recently experienced an alcohol-induced blackout while driving, but still chose
to drink heavily while driving.14 This decision demonstrates that there is no set formula of
behaviors that must be present to demonstrate that a particular defendant engaged in conduct
sufficient to constitute the element of malice.
The evidence at trial established that Person’s blood alcohol level at the time of the
accident was 0.17 grams per 100 milliliters—more than twice the legal limit.15 In addition,
Person was traveling at excessively high rate of speed, at least twice the speed limit of 25 mph,
perhaps as high as 87 mph. This rate of speed is especially egregious in light of the fact that
Person had an unrestrained passenger, passed out and lying down in the back seat. Person failed
to pull over when Officer Gohl activated his vehicle’s lights and sirens or when Anderson asked
him to. Such conduct goes beyond drunken driving and constitutes wanton and willful disregard
10
People v Werner, 254 Mich App 528, 533; 659 NW2d 688 (2002), quoting Goecke, supra at
469.
11
People v Weeder, 469 Mich 493; 674 NW2d 372 (2004); Goecke, supra; People v Vasquez,
129 Mich App 691; 341 NW2d 873 (1983).
12
Goecke, supra at 449-454.
13
Werner, supra at 533-534.
14
Id. at 534.
15
See MCL 257.625.
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of the likelihood that the natural tendency of such behavior is to cause death or great bodily
harm. Taken as a whole and viewed in a light most favorable to the prosecution, the evidence
and the reasonable inferences stemming from that evidence was sufficient to support Person’s
convictions.16
III. Hearsay
A. Standard Of Review
Person argues that the trial court erred in admitting a portion of Anderson’s preliminary
examination testimony under the unavailability exception to the hearsay rule17 without first
requesting that she attempt to refresh her memory. Generally, a trial court’s decision to admit or
exclude evidence is reviewed for an abuse of discretion.18 However, because Person now raises
a different basis for error than he did before the trial court, this issue is unpreserved.19 We
review unpreserved evidentiary issues for plain error affecting the defendant’s substantial
rights.20
B. Analysis
The prosecution called Anderson to testify at trial. She was able to recall some events of
that evening, but not others, including whether she said anything to Person about driving too fast
or whether she had testified at the preliminary examination that she told him to pull over. The
trial court allowed the prosecutor to read a portion of Anderson’s preliminary hearing testimony
to the jury, “given that [Anderson] testified she can’t remember that.”
Hearsay is an unsworn, out-of-court statement, which is offered to demonstrate the truth
of the matter asserted.21 Hearsay is generally inadmissible unless it falls under one of the
recognized exceptions.22 MRE 804 sets forth an exception to the hearsay rule when the declarant
is unavailable. A declarant can be considered unavailable for purposes of this exception when he
or she “has a lack of memory of the subject matter of the declarant’s statement.”23 Former
testimony of an unavailable witness is excluded from the hearsay rule when the testimony was
given “at another hearing of the same or a different proceeding, if the party against whom the
16
Hawkins, supra at 457.
17
MRE 804.
18
People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001).
19
People v Stimage, 202 Mich App 28, 30; 507 NW2d 778 (1993) (“An objection based on one
ground at trial is insufficient to preserve an appellate attack based on a different ground.”).
20
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
21
MRE 801(c).
22
MRE 802.
23
MRE 804(a)(3).
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testimony is now offered . . . had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.”24
Person recognizes that MRE 804 allows for the introduction of prior testimony of an
unavailable witness, but asserts that there was an inadequate effort to attempt to refresh
Anderson’s memory before allowing the prior testimony to be entered. This argument is
unpersuasive. First, pursuant to court rule, there is no requirement that a prior statement be
provided when examining a witness concerning a prior statement, unless requested.25 And no
such request was made here. Second, a review of the record demonstrates that the prosecutor
and the trial court made numerous attempts to refresh and probe Anderson’s memory. Anderson
repeatedly stated that she could not recall statements that she had made earlier, either to police
officers or at the preliminary hearing, which effectively put this evidence out of reach if her
claim was genuine.26 For example, when asked if she had testified at the preliminary
examination that she asked Person to pull over, she responded, “I don’t remember. I could have
said that, yes.” If her claim was false, she was subject to examination and cross-examination
and, theoretically, a contempt ruling.27 In addition, Anderson testified at trial that she had been
drinking the night of the accident and that her ability to perceive and recall events may have been
affected as a result. Therefore, because the trial court properly concluded that Anderson was
unavailable for purposes of the hearsay rule, the trial court did not err in allowing the prosecutor
to read a small portion of Anderson’s preliminary examination testimony into evidence.
IV. Sentencing
A. Standard Of Review
Person argues that he is entitled to resentencing on his OWI causing death conviction
because the trial court erroneously imposed a 15 to 30 year sentence in excess of the 15-year
statutory maximum. Generally, the interpretation and application of the statutory sentencing
guidelines are legal questions subject to de novo review.28 However, because Person did not
object to his sentence, this issue is not properly preserved for appellate review,29 and we review
it for plain error affecting his substantial rights.30
24
MRE 804(b)(1).
25
MRE 613(a).
26
See McCormick, Evidence, § 253, p 445 (Hornbook Series; 4th ed).
27
Id.
28
People v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008).
29
People v Eccles, 260 Mich App 379, 385; 677 NW2d 76 (2004).
30
Carines, supra at 763-764.
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B. Analysis
We agree that Person was improperly sentenced on his conviction for OWI causing death.
The trial court imposed concurrent sentences of 15 to 30 years for both second-degree murder
and OWI causing death. The statutory maximum sentence for OWI causing death is 15 years.31
A sentence is invalid when it is beyond statutory limits.32 Moreover, a trial court may not
impose a minimum sentence that exceeds two-thirds of the statutory maximum sentencing, even
if the sentence imposed is a departure from the guidelines.33 Imposition of a sentence that
violates the two-thirds rule and is beyond the statutory maximum constitutes plain error affecting
Person’s substantial rights, and he is entitled to resentencing.
We affirm Person’s convictions, but we vacate Person’s sentence on his conviction for
OWI causing death and remand for resentencing. We do not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ William C. Whitbeck
/s/ Kirsten Frank Kelly
31
MCL 257.625(4).
32
People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997).
33
MCL 769.34(2)(b).
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