PEOPLE OF MI V JOEL ROBERT DIENHERT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 10, 2010
Plaintiff-Appellee,
v
No. 285489
Eaton Circuit Court
LC No. 07-020436-FC
JOEL ROBERT DIENHERT,
Defendant-Appellant.
Before: BECKERING, P.J., and CAVANAGH and M. J. KELLY, JJ.
PER CURIAM.
This case arises out of an August 25, 2007, incident wherein defendant, who was driving
while intoxicated, disregarded a stop sign and collided into another car, seriously injuring his
wife and killing the driver of the other car. Following a jury trial, defendant was convicted of
operating a motor vehicle while under the influence of liquor (OUIL) causing death, MCL
257.625(4)(a),1 operating a motor vehicle with a suspended license causing death, MCL
257.904(4), OUIL causing serious injury, MCL 257.625(5), and operating a motor vehicle with a
suspended license causing serious injury, MCL 257.904(5). Defendant was sentenced to prison
terms of 100 to 180 months for his OUIL causing death and operating a motor vehicle with a
suspended license causing death convictions, and 36 to 60 months for his OUIL causing serious
injury and operating a motor vehicle with a suspended license causing serious injury convictions.
Defendant appeals as of right and we affirm.
I
Defendant’s wife testified that on August 25, 2007, she and defendant stopped at a party
store and purchased a case of beer for defendant. Defendant consumed 22 or 23 of the 24 beers
throughout the afternoon and persistently made calls seeking to procure cocaine. Shawn
Ingraham, a “party buddy” with whom defendant drank alcohol and ingested cocaine, testified
that defendant called him multiple times that day. After unsuccessfully attempting to reach
Ingraham, defendant showed up at Ingraham’s house at approximately 5:00 or 5:30 p.m. seeking
1
The prosecution also charged defendant with second-degree murder, MCL 750.317, as an
alternative to OUIL causing death. The trial court instructed the jury regarding the alternative
charges.
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cocaine. Ingraham believed defendant was intoxicated. According to Ingraham, defendant
always wanted to get high when he had been drinking, but on that occasion, Ingraham had no
cocaine. Defendant asked Ingraham to help him obtain cocaine, but Ingraham declined.
Defendant and Ingraham drank a beer together, and defendant left after about a half-hour, driving
a black Toyota Corolla. After he left, defendant continued to call Ingraham seeking to procure
cocaine.2
Later, at their house, defendant and his wife argued over his efforts to obtain cocaine.
Defendant wanted his wife to take him to Ingraham’s house, but she refused. The last thing she
remembered was putting their kids in the car and sitting in the passenger seat while defendant
drove to Ingraham’s house. She testified that at one point, she thought she was driving the car.
Ingraham lives on Nye Highway in Eaton Rapids, Michigan. Several witnesses testified
that shortly before the accident, they saw a dark or black-colored car drive down Nye Highway
at a high rate of speed and turn onto Royston Road. Two of the witnesses testified that they
thought the car would hit them, but it did not. Instead, the car ran the stop sign at the end of the
road and drove through a yard at the corner. It was later determined, based on an analysis of the
tire markings left in the yard, that the car was a 1999 Toyota Corolla, the same year and make of
the car driven by defendant.
Keith and Patricia Miller, neighbors of defendant who had known him and his family for
years, testified that the car ran through the stop sign and almost hit them before it drove into a
yard, turned onto Royston Road, and continued north. The driver was male, and Patricia thought
that the car looked like defendant’s, but she was not sure. Gary James Newborn testified that the
car had a male driver and a passenger with his or her knees up on the dash. He heard music
playing and children crying in the back seat. Ten seconds after the car turned onto Royston
Road, he heard a crash.
Clement and Stacia Beckman and their niece were driving on Spicerville Highway at
approximately 8:00 p.m. that day. At the Spicerville Highway and Royster Road intersection,
they came upon defendant’s car as well as another car in which the driver was later pronounced
dead. They did not see the accident. Defendant’s car was against a telephone poll and the
decedent’s car was in a field. Stacia called 9-1-1. Defendant was in the driver’s seat, the
children were in the back seat strapped in their car seats, and defendant’s wife was on the ground
near the car. After asking defendant if everyone was okay, witnesses who came upon the
accident extracted defendant’s children from the car and tended to his wife. Defendant
unbuckled his seat belt, got out of the car, walked over to his wife, and told her that he was sorry.
She responded that it was okay.
Deputy Ronald Michael Howard responded to the 9-1-1 call regarding the accident.
Deputy Howard testified that he interviewed both defendant and defendant’s wife at the hospital.
2
Detective Richard Buxton testified that approximately 22 calls were made from defendant’s
wife’s cell phone to Ingraham. Ingraham testified that he believed defendant was using his
wife’s cell phone when calling him.
-2-
Defendant told the deputy that he remembered being at the scene, but not the accident. Detective
Timothy Fandel also talked to defendant at the hospital. Defendant told Detective Fandel that he
did not remember anything that happened after 2:00 p.m. that day. Defendant also said that he
had not been drinking. Toxicology tests revealed that defendant’s blood alcohol content (BAC)
following the accident was .192 and that he had no controlled substances in his system. At the
time of the accident, defendant’s driving privileges had been suspended.
A forensic illustrator and crash reconstructionist investigated the accident and opined that
the decedent was traveling in a westerly direction at approximately 40 to 41 mph when defendant
hit her car. The reconstructionist opined that defendant was solely responsible for the accident
when he, traveling at approximately 52 to 58 mph,3 ran through a stop sign and hit the front rear
of the decedent’s car. He also opined that defendant did nothing to avoid the accident. The
reconstructionist also testified, however, that it was possible that defendant saw the decedent’s
car, but was unable to stop in time. He did not think that excessive speed was a factor in causing
the accident.
Defendant did not testify at trial.
II
Defendant first argues that the trial court abused its discretion when it denied his motion
in limine and allowed the prosecution to admit evidence pertaining to his attempts to obtain
cocaine in the time period leading up to the collision. Specifically, defendant argues that
because the toxicology test results established that he had no cocaine in his blood after the
accident, any evidence pertaining to his cocaine use and efforts to purchase cocaine were
irrelevant and inadmissible pursuant to MRE 404(b) and MRE 403. The prosecution contends
that the evidence was admissible under MRE 404(b) and as part of the res gestae of the charged
offenses. According to the prosecution, the evidence was part of the complete story necessary
for the jury to understand the context in which the charged offenses occurred, relevant to prove
the intent element of the alternate charge of second-degree murder, and not unfairly prejudicial.
Because defendant preserved this issue, we review the trial court’s decision to admit the
evidence for an abuse of discretion. People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002).
“A trial court abuses its discretion when it chooses an outcome that is outside the range of
reasonable and principled outcomes.” People v Orr, 275 Mich App 587, 588-589; 739 NW2d
385 (2007). A decision on a close evidentiary question ordinarily cannot be an abuse of
discretion. People v Blackston, 481 Mich 451, 467; 751 NW2d 408 (2008). Reversal is not
3
The reconstructionist also testified that defendant was likely traveling at a slightly higher speed
prior to the accident. He explained that after a driver applies the brakes, it takes time for the tires
to heat up enough to leave skid marks. Without skid marks, it is difficult to determine the
maximum speed. Accordingly, the 52 to 58 mph estimate was the minimum speed defendant
had been traveling before the accident.
-3-
required for a preserved, nonconstitutional error unless it is more probable than not that the error
was outcome determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).4
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
Our courts use three factors to determine the admissibility of other-acts evidence. These
factors are (1) whether the evidence is offered for a proper purpose; (2) whether the evidence is
relevant; and (3) whether the probative value of the evidence is not substantially outweighed by
its potential for unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004); see
also MRE 403.
If the proffered evidence is part of the res gestae of a charged offense, the trial court may
admit the evidence without regard to the requirements of MRE 404(b). People v Delgado, 404
Mich 76, 83-84; 273 NW2d 395 (1978). Evidence is part of the res gestae of the offense if the
alleged acts are “‘so blended or connected with the [offense] that proof of one incidentally
involves the other or explains the circumstances of the crime.’” Id. at 83, quoting State v
Villavicencio, 95 Ariz 199, 201; 388 P2d 245 (1964). As our Supreme Court stated in People v
Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996), “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.” The more jurors know about the full transaction, the better equipped they are to
perform their sworn duty. Id. at 742. “The principle that the jury is entitled to hear the
‘complete story’ ordinarily supports the admission of [res gestae] evidence.” Delgado, 404 Mich
at 83; see also People v Bostic, 110 Mich App 747, 749; 313 NW2d 98 (1981) (stating that “res
gestae has been referred to as the ‘complete story’”). But even relevant res gestae evidence
“may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.” MRE 403.
In this case, the proffered evidence regarding defendant’s quest for cocaine was arguably
4
On appeal, defendant also argues that his due process rights were violated by the trial court’s
admission of the evidence. Defendant did not, however, preserve that argument for appeal.
People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001) (stating that “to preserve an
evidentiary issue for review, a party opposing the admission of evidence must object at trial and
specify the same ground for objection that it asserts on appeal”). Therefore, to the extent this
issue implicates defendant’s constitutional rights, it must be reviewed for plain error affecting his
substantial rights. See People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); see
also People v Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006) (stating that a defendant has a
due process right to present a defense).
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relevant to establish the intent element of second-degree murder,5 an issue of consequence at
trial. The question of intent was at issue because defendant’s general denial of guilt put all of the
elements of the offense at issue. See People v Sabin, 463 Mich 43, 60; 614 NW2d 888 (2000).
The prosecution’s theory for the second-degree murder charge was that, unlike a drunk driver
who was unfamiliar with the area and may have inadvertently blown a stop sign on his way
home from a bar, defendant, who was frenetically drug seeking, chose to leave home and drive
recklessly while intoxicated. He was “flying” down the road, disregarding stop signs, nearly
hitting other cars, losing control and driving off the road, and then returning to the road to
continue driving dangerously. He chose to disregard the safety of his wife, children, and others
on the road, ignoring the likelihood that he could cause others great bodily harm or death.
Defendant’s frustration in not being able to get cocaine, combined with the amount of alcohol he
had in his system, was relevant to establishing the requisite intent. The evidence made the
likelihood that defendant intended to create a very high risk of death, knowing that his actions
would probably cause death or great bodily harm, more probable. See Herndon, 246 Mich App
at 386. Additionally, the proffered evidence arguably falls under the res gestae exception to
MRE 404(b). Defendant’s urgent quest for cocaine explains the circumstances of his driving—
potentially twice—while intoxicated, links him to the area of Ingraham’s house where others saw
a dark-colored car similar to defendant’s driving recklessly immediately before the accident, and
helps explain the particularly helter-skelter manner in which he was driving. The admission of
the evidence allowed the jury to hear the complete story surrounding defendant’s decision to
drive while intoxicated and explains his behavior leading up to and ending with the accident.
Defendant additionally argues that the evidence was unfairly prejudicial. “Evidence is
unfairly prejudicial when there exists a danger that marginally probative evidence will be given
undue or preemptive weight by the jury.” People v Ortiz, 249 Mich App 297, 306; 642 NW2d
417 (2001); see also MRE 403. Had defendant not been charged with second-degree murder,
which mandates proof of intent, his pursuit of cocaine would likely be more prejudicial than
probative. In light of the second-degree murder charge, although the challenged evidence may
have been damaging to defendant’s position, it was probative because it was relevant to an issue
of consequence. Furthermore, there is no evidence that the jury gave it preemptive weight
beyond other equally damaging but clearly admissible evidence such as defendant’s decision to
drink 22 or more beers and drive with his family in the car. Therefore, defendant has not
demonstrated that the probative value of the evidence was substantially outweighed by the
danger of unfair prejudice. The trial court did not abuse its discretion in admitting the evidence.
III
Defendant also argues that the trial court abused its discretion in denying his motion for a
mistrial after a prosecution witness testified that defendant had three prior drunk driving
offenses. We disagree.
5
“Second-degree murder is a general intent crime, which mandates proof that the killing was
done with an intent to kill, an intent to inflict great bodily harm, or an intent to create a very high
risk of death with the knowledge that the act probably will cause death or great bodily harm.”
People v Herndon, 246 Mich App 371, 386; 633 NW2d 376 (2001) (quotations omitted).
-5-
During the prosecution’s direct examination of Ingraham, the following exchange
occurred:
Q. Did you discuss with him [defendant]—were you concerned about him
driving if he was intoxicated?
A. I was always concerned about—I mean, not even—he already had three prior
drunk drivings. So, as far as driving—
Following this testimony, the jury was excused, and defendant moved for a mistrial. The trial
court denied the motion on the basis that there had been no evidence presented of any other
convictions, the witness was not a police officer with particular knowledge of defendant’s
criminal record, and under the circumstances, a curative instruction was a sufficient remedy.
When the jurors returned, the trial court instructed them to disregard the witness’s statement and
not consider it in their deliberations.
We review for an abuse of discretion a trial court’s decision whether to grant or deny a
motion for a mistrial. People v Gonzales, 193 Mich App 263, 266; 483 NW2d 458 (1992).6
Evidence of a defendant’s prior convictions may be prejudicial to the defendant’s case because
the jury might misuse evidence of the convictions as evidence of his or her bad character.
People v Griffin, 235 Mich App 27, 36; 597 NW2d 176 (1999), overruled in part on other
grounds by People v Thompson, 477 Mich 146; 730 NW2d 708 (2007). However, “an
unresponsive, volunteered answer to a proper question is not grounds for [] granting [] a
mistrial.” People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995). A trial court
should grant a mistrial only where the prejudicial effect of an error cannot be cured any other
way. People v Bauder, 269 Mich App 174, 195; 712 NW2d 506 (2005). Curative “‘instructions
are presumed to cure most errors.’” People v Chapo, 283 Mich App 360, 370; 770 NW2d 68
(2009) (citation omitted).
Ingraham’s testimony regarding defendant’s prior drunk driving record was an
unresponsive, volunteered answer to a proper question. Further, it was an isolated remark in the
course of a three-day trial during which substantial evidence of defendant’s culpability for the
convicted offenses was properly admitted. The trial court issued a prompt curative instruction
and after closing arguments the court again instructed the jury not to consider any excluded or
stricken testimony and to decide the case based only on the properly admitted evidence. Under
the circumstances, the curative instruction was adequate to cure the error, and the trial court did
not abuse its discretion in denying defendant’s motion for a mistrial.
IV
Finally, defendant argues that the trial court violated his right to present a defense when it
excluded evidence of marijuana in the decedent’s blood at the time of the accident. We disagree.
6
Again, to the extent this issue implicates defendant’s constitutional rights, it must be reviewed
for plain error affecting his substantial rights. Carines, 460 Mich at 763-764.
-6-
As stated above, a trial court’s decision to admit or exclude evidence is reviewed for an
abuse of discretion. Hine, 467 Mich at 250. However, this Court reviews de novo whether a
defendant has been deprived of the right to present a defense. People v Kurr, 253 Mich App
317, 327; 654 NW2d 651 (2002).
Criminal defendants have a constitutional right to present a complete defense. US Const,
Am VI; Const 1963, art 1, § 20. However, this right is not absolute. See Washington v Texas,
388 US 14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967). “In the exercise of this right, the
accused, as is required of the State, must comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment of guilt and
innocence.” Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973).
MRE 402 provides: “All relevant evidence is admissible . . . . Evidence which is not
relevant is not admissible.” Evidence is relevant if it has a tendency to make a fact in issue more
or less probable than without the evidence. MRE 401. However, even relevant evidence is
inadmissible if its “probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury . . . .” MRE 403.
Prior to trial, the prosecution moved to exclude as irrelevant evidence that the decedent
had marijuana in her system at the time of the accident. The autopsy report indicates that the
decedent had 12 nanograms per milliliter of TCH-COOH, a marijuana metabolite, in her blood.
Defendant argued that based on this Court’s holding in People v Moore, 246 Mich App 172; 631
NW2d 779 (2001), he was allowed to present evidence regarding the decedent’s marijuana use.
Defendant conceded, however, that he had no expert witness or other evidence to establish that
the decedent had smoked marijuana on the day of the accident or that her marijuana use impacted
her ability to drive or avoid the accident.
Following the parties’ arguments, the trial court granted the prosecution’s motion,
stating:
Well, it was certainly not my intent to preclude any offer of proofs that
wish to be made, but either there has to be some indication that the amount of
marijuana consumed would have an effect upon one’s driving or that there was
some negligence that could be attributed to it. But, absent either one of those
situations, the Court would not allow it. So, until there is some indication that
that is going to be offered, I will not allow it in, since it would not be relevant to
any issue other than the driving. If the driving of the decedent is not an issue,
then I don’t see how that would be helpful to the trier of fact.
On appeal, defendant argues that the exclusion of the evidence prevented him from presenting a
causation defense.
Both OUIL causing death, MCL 257.625(4), and OUIL causing serious injury, MCL
257.625(5), require the prosecution to prove that the defendant’s operation of a motor vehicle
caused the death or injury of another person, respectively. See People v Feezel, 486 Mich 184,
195; 783 NW2d 67 (2010).
-7-
In People v Schaefer, [473 Mich 418; 703 NW2d 774 (2005),] we stated
that, in the criminal law context, the term “‘cause’ has acquired a unique,
technical meaning.” Specifically, the term and concept have two parts: factual
causation and proximate causation. Factual causation exists if a finder of fact
determines that “but for” defendant’s conduct the result would not have occurred.
A finding of factual causation alone, however, is not sufficient to hold an
individual criminally responsible. The prosecution must also establish that the
defendant’s conduct was a proximate cause of, in this case, the accident or the
victim’s death.
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 greater degree 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 194-196 (citations and footnotes
omitted).]
In other words, a defendant is entitled to introduce evidence of a victim’s gross negligence to
demonstrate a break in the causal connection between the defendant’s conduct and the victim’s
death or injury. See People v Tims, 449 Mich 83, 97-98; 534 NW2d 675 (1995); Moore, 246
Mich App at 179-180.
In People v Lardie, 452 Mich 231, 251; 551 NW2d 656 (1996), our Supreme Court stated
that “the Legislature essentially has presumed that driving while intoxicated is gross negligence
as a matter of law.” While defendant does not argue that the decedent was intoxicated or “high,”
he contends that based on the Supreme Court’s ruling in People v Derror, 475 Mich 316, 333334; 715 NW2d 822 (2006), overruled in part by Feezel, the decedent should be considered to
have committed a crime because she had “any amount” of a schedule 1 controlled substance in
-8-
her body when operating her motor vehicle in violation of MCL 257.625(8).7 Therefore,
defendant argues, he was entitled to admit evidence of the decedent’s marijuana use as a
causation defense. Given this novel argument, we held this case in abeyance pending the
Supreme Court’s ruling in Feezel. Now that the Court has issued its opinion in Feezel,
overruling Derror to the extent that the Derror Court deemed 11-carboxy-THC to be a schedule
1 controlled substance under MCL 333.7212, Feezel, 486 Mich at 205, evidence of the
decedent’s marijuana would only be relevant if it created a genuine issue of material fact with
respect to causation and gross negligence.
Proximate cause must be decided on a case-by-case basis. Feezel, 486 Mich at 201. The
trier of fact is required to “determine whether the victim’s own conduct amounted to a
superseding cause.” Id. “[E]vidence of a victim’s intoxication may not be relevant or admissible
in all cases.” Id. at 202. When determining whether to admit evidence of a victim’s
intoxication, or in this case, marijuana use, the trial court must make a threshold determination
that the proofs are sufficient to create a question of fact for the jury as to whether the victim was
grossly negligent. Id.
Applying these standards to the facts of this case, we hold that the trial court did not
abuse its discretion in excluding evidence of the presence of a marijuana metabolite in the
decedent’s blood, and defendant was not deprived a viable defense. By defendant’s own
admission, he could not proffer any evidence that the decedent had smoked marijuana on the day
of the accident or that the amount of marijuana in her system directly affected her ability to
operate her vehicle with due care. Without such evidence, defendant was unable to create a
genuine factual question as to whether the decedent’s actions contributed to her death. Hence,
any testimony about the presence of marijuana in her system at the time of the accident was
irrelevant and only marginally probative of whether she operated her vehicle with due care. See
People v Phillips, 131 Mich App 486, 492-493; 346 NW2d 344 (1984).
Furthermore, the evidence admitted at trial undermines defendant’s argument. The
accident reconstructionist testified that the decedent was not speeding and that her vehicle was
already in the intersection when defendant crashed into it.
More importantly, the
reconstructionist did not believe that the decedent was in any way responsible for the accident.
Defendant did not offer any evidence to undermine the reconstructionist’s opinion. Nor did
defendant offer any evidence or argue below that the decedent could have done anything to avoid
the accident, but failed to do so.
Defendant’s reliance upon Moore is misplaced. In Moore, a panel of this Court held that
a victim’s contributory negligence was a factor that could be considered when determining
whether the defendant’s negligence caused the victim’s injury or death. Moore, 246 Mich App
7
The Supreme Court in Derror held: “[W]e are called upon to determine whether 11-carboxyTHC, a ‘metabolite’ or byproduct of metabolism created when the body breaks down THC
(tetrahydrocannabinol), the psychoactive ingredient of marijuana, is a schedule 1 controlled
substance under MCL 333.7212 of the Public Health Code. We hold that it is.” Derror, 475
Mich at 319-320.
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at 175, 179. As such, the panel held that the trial court abused its discretion when it prevented
the defendant from introducing evidence that the victim had marijuana in his blood at the time of
the accident. Id. at 179. In doing so, the panel distinguished that case from this Court’s earlier
holding in Phillips. Id. at 179-180.8 The Moore panel stated that, unlike in Phillips, the
defendant was able to produce evidence that showed that the victim’s driving might have been
impaired at the time of the accident. Id. at 180. Specifically, the panel stated that the defendant
was able to produce evidence that the victim had marijuana in his bloodstream and urine at the
time of the accident. Id. The panel also stated that the defendant was able to introduce expert
testimony that the victim was impaired at the time of the accident. Id. Finally, the panel stated
that testimony at the preliminary examination suggested that the victim was driving too fast to
avoid the defendant. Id.
Unlike the defendant in Moore, other than the fact that the decedent had a marijuana
metabolite in her bloodstream at the time of the accident, defendant was unable to produce any
evidence that suggested that she was in any way responsible for the accident. That the defendant
in Moore was able to produce evidence regarding the victim’s negligence and how it might have
caused the accident was the pivotal reason that the Moore panel rejected the holding in Phillips.
Id. at 179-180.
Defendant’s reliance upon People v Soares, unpublished opinion per curiam of the Court
of Appeals, issued July 24, 2008 (Docket No. 273333), is also misplaced.9 First, unpublished
opinions of this Court are not precedentially binding on subsequent panels. MCR 7.215(C)(1).
Second, this case is factually distinguishable from Soares because, unlike the defendant in that
case, defendant did not have any evidence that the decedent was high at the time of the accident
or that she could have done anything to avoid the accident. Again, the reconstructionist testified
that the decedent had not contributed to the accident in any way.
Affirmed.
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly
8
In Phillips, a panel of this Court upheld the trial court’s decision to exclude evidence of the
decedent’s marijuana use because the defendant could not produce evidence to show the
decedent’s marijuana use prevented him from operating his bicycle with due care. Phillips, 131
Mich App at 492-493.
9
On May 27, 2009, the Supreme Court ordered that the application for leave to appeal Soares be
held in abeyance pending the Supreme Court’s decision in Feezel.
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