PEOPLE OF MI V DONNA ALICE YOSTAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
March 27, 2008
Bay Circuit Court
LC No. 01-001129-FC
DONNA ALICE YOST,
Advance Sheets Version
Before: Fitzgerald, P.J., and Markey and Smolenski, JJ.
Defendant appeals as of right her jury conviction of second-degree murder and firstdegree felony murder predicated on an underlying felony of first-degree child abuse. See MCL
750.316, MCL 750.317, and MCL 750.136b(2). On appeal, defendant argues that the trial court
committed several errors that deprived her of a fair trial. Defendant contends that the trial court
erred when it prevented her from presenting testimony about her limited intellectual functioning
and by preventing her from calling an expert toxicologist. Defendant also contends that the trial
court violated her right to confront the witnesses against her when it allowed the prosecution to
play a videotape of an informant's testimony. Finally, defendant contends that the trial court
erred when it permitted the prosecution's medical examiner to offer an opinion that seven-yearold children do not have the maturity to decide to end their own lives and when it permitted the
prosecution to elicit testimony about other acts of abuse or neglect by defendant against her
children to show that defendant had bad character and acted in conformity with that character.
We agree that the trial court should have permitted defendant to present evidence about her
limited intellectual functioning, should have allowed defendant to call a toxicologist, and erred
when it permitted the prosecution to elicit testimony about defendant's involvement with Child
Protective Services without appropriately limiting the nature and the extent of the testimony.
Because these errors deprived defendant of a fair trial, we reverse defendant's convictions, vacate
her sentence, and remand for a new trial.
I. Nature of the Case
This case arises out of the death of defendant's seven-year-old daughter, Monique, on
October 10, 1999.1 On that day, defendant was home alone with Monique. Sometime after 11
a.m., Monique left home without permission. When Monique returned, defendant angrily told
her to take a nap on the couch. At around 6 p.m., defendant tried to wake Monique, but Monique
did not respond. Shortly thereafter, a couple who lived next door came over to visit. Defendant
again tried to wake Monique, but to no avail. When one of the neighbors entered the room
where Monique was lying, Monique suffered a seizure and stopped breathing. The neighbor
began efforts to resuscitate Monique and told his girlfriend to call for help. Emergency
personnel arrived shortly thereafter. The emergency personnel immediately transported
Monique to the hospital, where she was pronounced dead.
After conducting an autopsy, the medical examiner was not able to determine the cause
and the manner of Monique's death. But a blood test later revealed that Monique had a
significant amount of Imipramine, an antidepressant drug, in her system. Monique had months
earlier been prescribed the Imipramine to control bedwetting and anxiety. On the basis of the
level of Imipramine found in Monique's body and the ratio of Imipramine to its metabolite, the
medical examiner concluded that Monique died of acute Imipramine poisoning. Further, the
medical examiner determined that it would take more than 90 of the pills prescribed to Monique
to reach the level of Imipramine found in her system. Because the medical examiner found no
pill residue in Monique's stomach, he concluded that the pills must have been dissolved in liquid
before Monique ingested them. From this evidence, the medical examiner concluded that
Monique's death was a homicide.
The prosecution brought two counts against defendant. The first count was for firstdegree premeditated murder and the second count was for felony murder with first-degree child
abuse as the underlying felony. The primary issues at trial were (1) whether Monique died from
an overdose of Imipramine and, if she did, (2) whether defendant caused Monique to ingest the
The prosecution centered its case on the unlikelihood that Monique would deliberately or
accidentally take such a large overdose of Imipramine along with evidence that defendant had
both a motive and the opportunity to cause Monique to ingest the Imipramine. For her defense,
defendant presented evidence that Monique had a heart defect that may have caused her death
and tried to present evidence that the level of Imipramine found in Monique was not lethal. The
Defendant was arrested just a few months after Monique's death. But the district court
originally refused to bind defendant over on the charges for lack of credible evidence of
homicide. However, after a lengthy appeal process, see People v Yost, 468 Mich 122, 123-125;
659 NW2d 604 (2003), defendant was eventually bound over for trial. Even after being bound
over for trial, defendant's trial date was repeatedly delayed. The trial at issue began on February
22, 2006, and ended on April 6, 2006.
defense also suggested that Monique suffered from depression and may have deliberately or
accidentally ingested the Imipramine.
After a lengthy trial, the jury found defendant not guilty of premeditated murder under
the first count, but convicted defendant of the lesser-included offense of second-degree murder,
and found defendant guilty of first-degree felony murder under the second count. The trial court
sentenced defendant to life in prison without the possibility of parole for the felony-murder
This appeal followed.
II. Evidence of Defendant's Intellectual Capabilities
Defendant first argues that the trial court abused its discretion when it prevented
defendant's expert psychologist, Dr. Siroza VanHorn, from testifying about defendant's
intellectual functioning, cognitive processing, judgment, and problem-solving and parenting
abilities. Defendant also contends that the trial court erred when it prevented another daughter of
the defendant, Roxanne Davis, from testifying about her mother's limited intellectual capabilities
and how these limitations affected defendant's ability to function in the family and react to life
situations. We agree that the trial court erred when it prevented VanHorn and Davis from
testifying about defendant's limited intellectual capability as a means of shedding light on
defendant's behaviors and statements.
A. Relevant Trial Testimony and Court Rulings
At trial, the prosecution spent a significant portion of its case eliciting testimony about
defendant's unnatural reactions and conduct during the events leading up to and surrounding
Monique's death and the subsequent investigation. The prosecution used the testimony as proof
of motive and consciousness of guilt.
Several witnesses offered testimony that together tended to suggest that defendant had
deliberately tried to keep the prosecutor from interviewing Monique as part of an investigation
into allegations that a houseguest had sexually abused Monique. Because this behavior was not
consistent with how a mother would normally respond to allegations of abuse against her child, it
strongly supported the prosecution's theory that defendant had an ulterior motive to prevent
Monique from participating in the investigation.
The prosecution also elicited testimony from medical personnel and persons who
attended Monique's funeral that defendant's reaction to her daughter's death was inconsistent
with that of an innocent mother who had lost a child.
One of the paramedics who responded to the Yost home testified that defendant was
unemotional and that, after she told defendant that her daughter was in grave condition,
defendant merely responded, "okay." This was in contrast to defendant's husband, who was
"pretty emotional; he was crying." The paramedic also noted that defendant declined an
invitation to ride in the ambulance with Monique. Another paramedic testified that defendant's
reaction was "odd." He said that defendant answered all his questions, but that she was
"unemotional" and that this was not "something I typically see . . . when we have a sick child."
A nurse at the hospital where Monique was treated testified that defendant turned her
emotions on and off at will. She explained that when she entered the room and made eye contact
with defendant, defendant would cry and exclaim "my baby, my baby." But that when she left
the room, defendant would immediately stop crying and become unemotional.
Likewise, Monique's family therapist testified that she went to Monique's funeral and
observed that defendant had an unusual demeanor: she appeared nervous.
In addition, the prosecution made effective use of several recorded statements of
conversations between defendant and the officers investigating Monique's death. In these
conversations, defendant made seemingly odd statements about Monique's death and the events
surrounding the investigation. These statements suggested that defendant had a guilty
conscience or was, at the least, apathetic about her daughter's death. In addition to these
recordings, two officers testified about defendant's reactions to their investigation into Monique's
Amado Arceo, who was an officer of the Michigan State Police, testified that defendant
said she felt "responsible" for Monique's death and that she deserved a second chance. He also
testified that he asked defendant about the worst thing that ever happened to her and defendant
responded, "Two weeks ago, I was in jail, and Monique lying to everybody."
Detective Dean Vosler also testified that defendant's reactions were odd. He stated that
the only time defendant showed any emotion about her daughter was when she described being
angry with her. Vosler explained:
I never noticed in any of the interviews with [defendant] that she cried
from—over Monique's death. She cried because she thought she was in trouble.
She told me how it was hard for Lonnie and Josh and Jessica, Monique's death,
but she never even told me it was hard for her. It didn't appear to me that she felt
any sorrow for her.
Vosler also said that defendant told him that she did not mean to kill her daughter and that she
should have watched her more closely.
As an alternative explanation for defendant's seemingly odd behaviors and comments,
defendant's trial counsel wanted to present expert testimony about defendant's limited intellectual
capabilities. Indeed, during opening arguments, defendant's attorney noted that defendant was
mentally challenged and argued that, because of her limitations, defendant appeared confused
and could be easily manipulated into making apparently incriminating statements. Defendant's
trial counsel stated that a psychologist would testify about defendant's limited intellectual
capacity and explain how it affected defendant's ability to communicate.
However, on March 21, 2006, which was after the start of the trial, the prosecution
moved in limine to prevent defendant from eliciting testimony that defendant had "diminished
capacity." Specifically, the prosecution argued that defendant was improperly attempting to put
forth evidence that she could not form the requisite intent to commit the charged crimes and
improperly attempting to argue that defendant's statements to the police were not voluntary. The
trial court addressed the motion before taking testimony on March 23.
Defendant's trial counsel denied that he was presenting a diminished-capacity defense.
He explained that he was not attempting to show that defendant lacked the mental capacity to
form the requisite intent to commit the charged offenses. Rather, he stated that the sole defense
was that defendant did not commit the charged offenses.
Defendant's trial counsel also denied that any testimony about defendant's limited
intellectual capabilities would be offered to challenge the voluntary nature of defendant's
interviews with the police or to bolster defendant's credibility. Defendant's trial counsel stated
that he wanted to offer evidence concerning defendant's intellectual functioning, cognitive
processing, judgment, and problem-solving and parenting abilities, which were placed at issue by
the prosecution's proofs. The purpose of the testimony, he contended, was to "put into context
and explain" the evidence offered by the prosecution in these areas. Defendant argued that
evidence of defendant's limitations would help the jury understand how defendant displayed her
emotions and why she would not ask a neighbor to assist with transportation issues, and would
also explain the context of statements that appear to be untruthful or indicate a sense of
responsibility for Monique's death.
Defendant's trial counsel also argued that the jury needed this evidence to understand the
context of defendant's statements to the police. Specifically, he contended that the interrogating
officers could easily manipulate defendant into making statements that made her look guilty.
Defendant's trial counsel also stated that this evidence would help the jury understand the context
underlying the testimony about defendant's involvement with protective services personnel and
the statements by the various caseworkers with whom she was involved. He explained that the
evidence would "explain why she said what she did, or the way she said it, or how she said it,
and put it into context why some people either misunderstood statements or why someone
[who] was functioning at a second grade level would act in a certain way or talk in a certain
At the close of these arguments, the trial court indicated that there were four areas that
defendant's expert clearly could not go into: the trial court precluded the defense from (1)
offering a diminished-capacity defense, (2) arguing that defendant's statements to the police were
not voluntary, (3) using the evidence to bolster defendant's credibility, and (4) using the evidence
to argue innocence. Notwithstanding this, the trial court recognized that the testimony might be
relevant for purposes other than those four areas. But, rather than rule immediately, the trial
court stated that it would deal with those issues as they came up outside the presence of the jury
and would create a separate record if necessary.
After trial resumed, the defense called Roxanne. Defendant's trial counsel tried to elicit
testimony from Roxanne concerning her mother's abilities to plan and communicate with others,
but the trial court sustained the prosecution's objections to these questions. After the trial court
excused the jury, defendant's trial counsel indicated that he wanted to elicit testimony from
Roxanne concerning her mother's lack of communication skills and lack of emotion. He also
indicated that he wanted to ask Roxanne if she thought her mother was capable of killing
Monique. Defendant's trial counsel indicated that he thought Roxanne could properly testify
about whether defendant had the intelligence to plan the murder, execute the plan, and then cover
The trial court specifically precluded defendant from presenting any evidence that
defendant did not have the intelligence to carry out the murder. It also prohibited the witness
from testifying about defendant's lack of communication skills or about abnormal behavior
resulting from defendant's slowness because "that is going to deal with diminished capacity."
And, it further ruled that, even if the evidence was relevant for a proper purpose, the relevance
was outweighed by its prejudicial value.
After Roxanne testified, defendant's trial counsel called VanHorn as an expert
psychologist for a separate record. Notwithstanding the fact that the testimony was part of a
separate record, the prosecution objected on the grounds that any opinion that VanHorn had must
have been formed on the basis of inadmissible hearsay statements and, therefore, that she would
not be able to offer an opinion under MRE 703. The trial court ruled that the witness could not
testify about anything that defendant told her.
VanHorn then began to explain that she had performed a mental-status examination of
defendant. The prosecutor again objected on the ground that the examination was based on
inadmissible hearsay. The court sustained the objection. Defendant's trial counsel then asked
the witness if all the tests that she administered required input from defendant, to which she
replied, "yes." VanHorn stated that she used the tests, some personal history, and defendant's
records. The trial court again sustained the prosecution's objection on hearsay grounds. After
this ruling, defendant's trial counsel responded, "Then I guess we won't be using her as a witness,
Judge, because the State—you—you know, has basically cut it—gutted it out."
The defense proceeded to call a different witness, who testified for approximately 23
minutes. Sometime after this witness testified, defendant's trial counsel indicated that he wanted
to clarify that during VanHorn's testimony he was relying on MRE 803(4) for the admissibility
of defendant's statements to VanHorn. The trial court indicated that defendant failed to lay a
foundation for the admission of the statements based on medical treatment and had waived the
issue by not raising it earlier. The trial court further indicated that defendant's statements would
not be admissible if the statements were not made for the purpose of treatment.
1. Standard of Review
A trial court's evidentiary decisions are reviewed for an abuse of discretion. People v
Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006). "However, whether a rule or statute
precludes admission of evidence is a matter of law and is reviewed de novo." Id. A trial court
abuses its discretion when it selects an outcome that does not fall within the range of reasonable
and principled outcomes. People v Young, 276 Mich App 446, 448; 740 NW2d 347 (2007).
However, it is necessarily an abuse of discretion to admit evidence that is inadmissible as a
matter of law. Martin, supra at 315.
2. Diminished-Capacity Defense
As already noted, the trial court ruled that defendant could not elicit testimony from
Roxanne concerning defendant's limited intellectual capabilities because that evidence pertained
to a diminished-capacity defense. Likewise, with regard to VanHorn's testimony, the
prosecution argues on appeal that defendant improperly tried to present a diminished-capacity
defense through VanHorn's testimony. Therefore, as a preliminary matter, we will first examine
whether, and to what extent, evidence tending to demonstrate that a defendant has limited
intellectual functioning may still be admitted at trial after the abolition of the diminishedcapacity defense.
In People v Carpenter, 464 Mich 223; 627 NW2d 276 (2001), our Supreme Court
addressed the continuing validity of the diminished-capacity defense in Michigan. Before the
decision in Carpenter, a defendant who was otherwise legally sane could present evidence of
some mental abnormality to negate the specific intent required to commit a particular crime. Id.
at 232. The Court noted that the theory underlying the diminished-capacity defense was that a
defendant with a mental defect that prevented the defendant from forming the specific intent
necessary to commit the crime could only be convicted of a lesser offense not requiring that
particular mental element. Id.
In examining the continued viability of that defense, our Supreme Court observed that the
Legislature had enacted a comprehensive statutory scheme concerning defenses based on either
mental illness or mental retardation. Id. at 230-232, 236. The enactment of this scheme, our
Supreme Court concluded, demonstrated the Legislature's "intent to preclude the use of any
evidence of a defendant's lack of mental capacity short of legal insanity to avoid or reduce
criminal responsibility by negating specific intent." Id. at 236 (emphasis in original). For this
reason, the Court held that the defense of diminished capacity was no longer viable after the
enactment of the statutory scheme. Id. at 241.
The key component of the diminished-capacity defense is the evidence that the defendant
could not form the requisite intent to commit the crime. Id. at 232. That is, the defense is an
attempt to avoid or reduce criminal responsibility for a particular offense on the basis of the lack
of mental capacity to form the specific intent required as an element of the offense. Id. at 241.
Hence, a defendant is not entitled to offer evidence of a lack of mental capacity for the purpose
of avoiding or reducing criminal responsibility by negating the intent element of an offense. But
this does not mean that a defendant who is legally sane can never present evidence that he or she
is afflicted with a mental disorder or otherwise has limited mental capabilities.
Relevant evidence is generally admissible, except as provided by the United States and
Michigan constitutions and other rules. People v Sabin (After Remand), 463 Mich 43, 56; 614
NW2d 888 (2000), citing MRE 402. Because our Supreme Court has determined that a
defendant may not present evidence of diminished mental capacity for the purpose of negating
specific intent, the trial court could properly exclude evidence of defendant's mental limitations
offered for that purpose. Carpenter, supra at 236. However, "[t]hat our Rules of Evidence
preclude the use of evidence for one purpose simply does not render the evidence inadmissible
for other purposes. Rather, the evidence is admissible for a proper purpose, subject to a limiting
instruction under MRE 105." Sabin, supra at 56. Therefore, defendant could present evidence
of her limited intellectual capabilities if offered for a relevant purpose other than to negate the
specific intent element of the charged crimes. See, e.g., People v Manser, 250 Mich App 21, 33;
645 NW2d 65 (2002) (noting that our Supreme Court has held that expert testimony can be
relevant and helpful to explain a specific behavior that might otherwise be misconstrued by the
Relevant evidence is evidence "having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence." MRE 401. Although a defendant may no longer present
evidence of diminished capacity to negate the intent element of a crime, there are circumstances
where a defendant's mental capacity may make a fact that is of consequence to the determination
of the action more or less probable without such evidence being offered to negate the specificintent element of the charged offense.
For example, it is well settled that identity is an element of every offense. People v
Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976); People v Kern, 6 Mich App 406, 409; 149
NW2d 216 (1967). And, therefore, where identity is in dispute, a defendant may properly
present evidence concerning his or her mental capacity that tends to make it less probable that
the defendant has been accurately identified as the perpetrator of the crime. Thus, where an
offense involved such complicated and specific actions that it could only have been committed
by a person with very high intelligence, a defendant could properly submit evidence that he or
she had below-average intelligence because that evidence would tend to make it less probable
that the defendant was the perpetrator of the crime. Similarly, if the crime at issue was
committed in an elevator, a defendant could properly submit evidence that he or she has a
pathological fear of elevators. Again, such evidence would involve the defendant's mental
faculties, but would not be offered to negate specific intent. Rather, it would be offered as
evidence that the defendant was less likely to be the perpetrator of the crime.
In the present case, the prosecution's theory was that defendant caused Monique to ingest
an overdose of Imipramine. However, there was no direct physical evidence or eyewitness
testimony that connected defendant to Monique's ingestion of the Imipramine. Further, although
the prosecution presented evidence that tended to prove that defendant had both a motive and the
opportunity to kill Monique, this evidence was not particularly compelling and did not negate the
possibility that Monique either accidentally or deliberately took an overdose of the medication.
As a result, one of the key questions at trial was whether Monique ingested the Imipramine on
her own, resulting in either a deliberate or accidental overdose, or whether defendant caused
Monique to ingest the Imipramine. For this reason, the circumstances, timing, and context
surrounding defendant's statements and actions became highly relevant to determining whether
defendant caused Monique to ingest the Imipramine and, if she did, what defendant’s state of
mind was at the time. Indeed, the prosecution relied heavily on testimony concerning
defendant's statements and actions from both before and after Monique's death, which suggested
that defendant was attempting to cover up her involvement in Monique's death or otherwise had
a guilty conscience.
In response to the prosecution's evidence, defendant's trial counsel attempted to show that
defendant's statements and actions were not evidence of guilt when understood in light of her
limited education and intellectual capabilities. Likewise, defendant's trial counsel wanted to
present evidence that a person of defendant's intellect is easily manipulated into making
statements that might appear to reflect a guilty conscience. Defendant's trial counsel did not
propose to use the evidence of defendant's limited mental faculties to negate the intent element of
the charged offenses. Rather, defendant's trial counsel wanted to place defendant's statements in
context so that the jury could fully and fairly determine whether defendant's statements and
actions were truly indicative of a guilty conscience or were merely misinterpreted by the listeners
and observers who witnessed the statements and actions. Therefore, to the extent that this
evidence was offered for a purpose other than to negate the intent element of the charged
offenses, the evidence was not barred by the rule stated in Carpenter, supra, even though it dealt
with defendant's limited mental capacity. See Sabin, supra at 56.
3. Roxanne's Lay Testimony
At trial, defendant's counsel attempted to ask defendant's daughter Roxanne about her
opinion of defendant's ability to plan and about her mother's communication skills. After the
jury was excused, the trial court admonished the witness that she may not "in any way imply or
give any indication that you think that your mother's not capable of committing this offense."
The trial court also ruled that defendant's trial counsel would not be permitted to elicit testimony
from Roxanne concerning defendant's communication skills. The trial court explained that such
testimony is impermissible diminished-capacity evidence. Finally, the trial court indicated that
defendant's trial counsel would not be permitted to elicit testimony that defendant's behavior was
"out of norm because of her slowness." The trial court did permit defendant's counsel to elicit
testimony about defendant's reactions to Monique's death, that were actually observed by
Roxanne. Thereafter, defendant's counsel did not attempt to elicit testimony of this nature.
Under MRE 701, a witness who is not testifying as an expert, may only testify in the
form of opinions or inferences that are "(a) rationally based on the perception of the witness and
(b) helpful to a clear understanding of the witness' testimony or the determination of a fact in
issue." Roxanne's testimony established that, given her own perceptions of defendant, she had
the ability to offer testimony and an opinion about her mother's ability to plan ahead, her
mother's communication skills, and how her mother's intellectual limitations affected her
mother’s behavior. Further, this testimony would have been helpful for the jury in determining
whether the statements and behavior offered into evidence by the prosecution were inconsistent
with innocence. Hence, this testimony met the requirements of MRE 701.
Notwithstanding that the requirements of MRE 701 were met, defendant's trial counsel
did not establish that the charged offense required any particular level of intelligence to carry
out. As a result, the relevance of any testimony by Roxanne concerning whether her mother was
intelligent enough to carry out the actions necessary to commit the crime was at best marginal.
Likewise, defendant's trial counsel's question about whether defendant was the type of person
who "would plan things out or act on the moment," implicated whether defendant was mentally
capable of premeditation. Therefore, the trial court properly prevented testimony of this nature
as both likely offered to improperly negate the intent element of the charged offenses and, to the
extent that it had marginal relevance, because its probative value was substantially outweighed
by the danger of unfair prejudice. MRE 403.
Roxanne could, however, properly testify about defendant's poor communication skills
and how defendant's behaviors might seem unusual because of her "slowness" without running
afoul of the rule stated in Carpenter. Additionally, this evidence was not substantially
outweighed by unfair prejudice to the prosecution. Any unfair prejudice could have been dealt
with by the trial court’s instructing the jury that it could only use the testimony to further its
understanding of defendant's statements and behavior. See MRE 105. Because this testimony
was particularly relevant to the facts of this case and not substantially outweighed by unfair
prejudice, the trial court's decision to prevent defendant from eliciting this testimony fell outside
the range of reasonable and principled outcomes. Young, supra at 448. Consequently, the trial
court abused its discretion when it prohibited defendant from eliciting testimony from Roxanne
about defendant's communication skills and behavior.
4. VanHorn's Expert Testimony
As a preliminary matter, we will first address whether defendant properly preserved this
issue before the trial court.
After the trial court's earlier ruling on the prosecution's motion to prevent defendant from
offering a diminished-capacity defense, defendant's trial counsel called VanHorn to the stand
outside the presence of the jury to create a separate record of her testimony. Defendant's trial
counsel then proceeded to ask questions of the witness. The prosecution repeatedly objected on
the basis of hearsay. And the trial court sustained each objection. Indeed, the trial court would
not even permit the defense to create a separate record of VanHorn's testimony for evaluation by
this Court. After this, defendant's trial counsel elicited testimony from VanHorn that clarified
that her opinion would be based entirely on defendant's records, defendant's self-reported
background information, and tests that relied on defendant's responses to questions. The
prosecution again objected on the basis of hearsay, and the trial court sustained the objection.
Thereafter, defendant's trial counsel abandoned further questioning of the witness.
Although it does not appear from this isolated portion of the record that the trial court
completely barred defendant from using this witness, the trial court's rulings with regard to
VanHorn must be examined in light of the trial court's earlier rulings on expert testimony.
On March 21, the defense called Lisa Gano. Gano testified that she had a masters degree
in social work and had evaluated Monique for special-education purposes and helped create
Monique's individualized education program. During the course of Gano's testimony, the
defense tried to admit records generated as part of Gano's evaluation. The prosecution objected
that the records contained statements by Monique, teachers, and others who took part in
evaluating Monique. The court initially ruled that Gano could not testify about anything anyone
told her and could not offer a "conclusion that would be drawn from these things . . . ."
Thereafter, Gano was only permitted to testify about her conclusions to the extent that the
conclusions were based solely on her own observations of Monique.
After a time, defendant's trial counsel noted that Gano should be allowed to base her
opinion on hearsay statements because the statements were made in furtherance of Monique's
diagnosis and treatment. The next day, the court determined that Gano could testify about, and
base her conclusions on, statements by Monique and Monique's answers to test questions. But
the trial court prohibited the witness from testifying about any statements made by defendant and
precluded any opinion testimony to the extent that the testimony was based on statements by
Monique's teachers or defendant. Hence, the trial court eventually permitted the expert witness
to testify about and render an opinion based on hearsay, but only to the extent that the hearsay
involved statements by Monique.2
Unlike the case with Gano, who diagnosed Monique for treatment purposes, the defense
retained VanHorn two years before trial to evaluate defendant. For this reason, the defense could
not rely on MRE 803(4) for the admission of defendant's statements to VanHorn or the
admission of defendant's responses to questions asked as part of diagnostic tests. Consequently,
in light of the trial court's previous rulings with regard to expert testimony, it was evident that the
trial court's hearsay rulings effectively barred VanHorn from offering an opinion on defendant's
limited intellectual functioning. And defendant's trial counsel cannot be faulted for not taking
further steps to convince the trial court that the expert should be permitted to testify—he took all
the steps reasonably necessary to preserve this issue for appeal.
Under MRE 703, the "facts or data in the particular case upon which an expert bases an
opinion or inference" must be in evidence. Hence, in order for VanHorn to offer an opinion that
defendant had limited intellectual capabilities, VanHorn’s opinion had to be based on facts or
data in evidence. By separate record, the defense established that VanHorn's opinion was based
on defendant's statements about her background and history, on defendant's answers to
psychological testing, and on records of defendant's prior treatment, as well as the treatment
received by defendant's children. Therefore, before VanHorn could render her opinion,
defendant had to demonstrate that the background statements, tests, and previous records, which
VanHorn relied on to form her opinion about defendant's limited intellectual abilities, were
admissible. At trial, the trial court summarily sustained the prosecution's objections based on
hearsay. Consequently, whether the trial court erred depends on whether it properly excluded the
evidence underlying VanHorn's opinion on hearsay grounds.
Hearsay is generally inadmissible. MRE 802. Hearsay is a "statement, other than the one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted." MRE 801(c).
Although VanHorn indicated that she relied on defendant's statements concerning her
background and defendant's responses during testing, the mere fact that VanHorn relied on these
Although the propriety of this ruling is not now before us, we note that it was plainly erroneous.
The hearsay exception stated in MRE 803(4) is not limited to statements made by the person
being diagnosed or treated. Rather, the rule specifically permits any "[s]tatements made for
purposes of medical treatment or medical diagnosis in connection with treatment . . . insofar as
reasonably necessary to such diagnosis and treatment." Hence, the witness should have been
permitted to rely on statements by third parties, such as Monique's parents and teachers. MRE
803(4); see, e.g., Merrow v Bofferding, 458 Mich 617, 624, 628-630; 581 NW2d 696 (1998)
(upholding the admission of a statement in a patient's medical history regarding the cause of an
injury even though the medical personnel could not identify the person who provided the
statements does not necessarily mean that defendant had to offer the statements to prove the truth
of the matters asserted. VanHorn may very well have been able to evaluate defendant's
intellectual functioning on the basis of defendant's answers regardless of the veracity of those
answers. For this reason, the defense could have offered the statements solely to clarify the basis
of VanHorn's conclusions about defendant's intellectual abilities. Indeed, our Supreme Court has
recognized that statements to a mental-health professional by a patient are often valuable for
evaluation without regard to their truth. See People v Beckley, 434 Mich 691, 728; 456 NW2d
391 (1990) (opinion by BRICKLEY, J.) (noting that mental-health professionals generally only
receive information from the patient and that they start "with the basic assumption that the
history they receive is what the patient believes to be the truth, not necessarily what actually is
the truth"). Thus, the fact that the tests VanHorn performed on defendant reflect defendant's
answers does not necessarily require a conclusion that the tests or the answers were inadmissible
Likewise, VanHorn may have been able to use the background information for evaluation
without regard to the truth of the statements concerning defendant's background. Therefore, to
the extent that the tests and background information were not offered to prove the truth of the
assertions made as part of the test or the truth of the background information, the tests and
background information were not hearsay and the trial court erred in excluding them on this
basis. MRE 801(c).
Furthermore, to the extent that the tests could be undermined by answers designed to
skew the results, that possibility is a matter that goes to the weight of VanHorn's opinion, which
the prosecution could have pursued on cross-examination or through its own expert. In order to
reduce prejudice, the trial court could also have instructed defendant's trial counsel to limit his
questions to eliciting testimony from VanHorn that she performed tests and that the tests were
based on defendant's responses without getting into the details of the responses. The same could
have been done for the background information.
To the extent that VanHorn's opinion was based on previous records, those records likely
were admissible under a hearsay exception. VanHorn stated that she evaluated records that
pertained to the prior treatment of defendant's children and defendant. The records themselves
were likely admissible as records of regularly conducted activity. MRE 803(6). In addition, the
statements within the records were likely admissible as statements made for the purpose of
medical treatment or diagnosis in connection with treatment. MRE 803(4).
Because the evidence relied on by VanHorn was likely not hearsay or was admissible
under a hearsay exception, the trial court's decision to prevent VanHorn from offering an opinion
about defendant's limited faculties on the basis that this evidence was inadmissible fell outside
the range of reasonable and principled outcomes. Young, supra at 448. The trial court
erroneously deprived defendant of the opportunity to present expert testimony about her limited
intellectual abilities for the purpose of explaining how the limitations might explain the
previously admitted evidence concerning defendant's behaviors and statements.
The trial court abused its discretion when it prevented Roxanne from testifying about
defendant's poor communication skills and behaviors and how they might seem unusual because
of her "slowness." The trial court also abused its discretion when it prevented defendant's
psychologist from testifying about her conclusions regarding defendant's limited intellectual
functioning and how that functioning might have affected defendant's communication skills and
behaviors. Finally, because a significant portion of the prosecution's case rested on defendant's
reactions to the events surrounding her daughter's death and to statements made by defendant,
which could not be fully evaluated by the jury without understanding defendant's intellectual
limitations, we conclude that it is more probable than not that the error was outcome
determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).3 Consequently,
defendant is entitled to a new trial on the basis of these errors. Further, although these errors
warrant reversal of defendant's convictions and vacation of her sentence, because each of
defendant's remaining claims of error are likely to arise again on retrial, we shall address them.
III. Right to Confront Witnesses
Defendant next argues that the trial court deprived her of her right to confront the
witnesses against her when it admitted the 2004 special hearing testimony of Marisol Sarmiento,
who served time in jail with defendant shortly after her arrest. Defendant notes that, although
Sarmiento testified under oath before the trial court and defendant's trial counsel had the
opportunity to cross-examine Sarmiento, defendant's trial counsel did not have all the
information necessary to effectively cross-examine Sarmiento in 2004. Specifically, defendant
claims that her trial counsel did not have the benefit of the testimony made by two additional
inmate informants who testified at trial. Had defendant’s trial counsel had this information,
defendant contends, he could have questioned Sarmiento about the inconsistencies between the
statements that defendant allegedly made to Sarmiento in jail and the versions that the other
inmates testified about at trial. Defendant claims that because Sarmiento's testimony likely
affected the outcome of the trial, her conviction must be reversed on this basis. We disagree.
A. Procedural History and Relevant Testimony
In 2004 the prosecution moved for permission to preserve the testimony of Sarmiento by
videotape in lieu of in-court testimony. The trial court held a hearing on the motion on August
During closing arguments the prosecution repeatedly and vigorously argued that defendant's
unusual behaviors and statements were clear evidence of guilt. The prosecution noted that,
although defendant supposedly was not aware that something was wrong with Monique when
she failed to get up from her nap, the neighbor immediately knew something was wrong and
began to help. The prosecutor also noted that defendant refused to get into the ambulance and
argued that defendant stopped crying when the nurse left the room at the hospital because there
were "no more witnesses." The prosecutor also played excerpts of defendant's recorded
statements during closing arguments to punctuate the prosecution's claims that defendant
deliberately killed Monique to punish and silence her. The powerful emotive effect of this use of
defendant's recorded statements was evident even in the transcription.
24, 2004. At the hearing, the prosecution noted that Sarmiento had been incarcerated first in
California and later in Washington, but was brought to Michigan under a material-witness
warrant. The prosecution also noted that defendant had moved for an adjournment of the trial.
And because Sarmiento was going to be deported, the prosecution argued that, rather than hold
her until the trial, the prosecution should be permitted to preserve her testimony on the record at
the hearing and later use it at trial. Although defendant's trial counsel recognized that Sarmiento
was to be deported immediately after the hearing, he nevertheless objected to the preservation of
her testimony. Defendant's trial counsel objected on the basis that he had not been given enough
time to prepare and indicated that he might be prejudiced by the inability to use information on
cross-examination that might only become available later.
After hearing the arguments, the trial court concluded that it was appropriate to take
Sarmiento’s testimony at the special hearing. The trial court found that defendant had had
enough time to prepare. The trial court also rejected defendant's argument that it might not be
fair to use the testimony at trial. The trial court explained:
If something comes up between now and—and then, the Court certainly
would take that into consideration in determining whether or not that should be
admitted to reflect upon that testimony, or even would take that into consideration
in the argument that that testimony should be precluded that we've taken today.
But I can't anticipate that at this point and would reserve my ruling until
such circumstances should arise and the law be presented with respect thereto.
During the hearing, Sarmiento testified under direct examination that she met defendant
in jail in early 2000. She stated that defendant told her that Monique was on medication for bedwetting and that she kept the medicine on a high shelf. Sarmiento also testified that defendant
told her that on the day of Monique's death, Monique had run off and later came home. "And she
[defendant] told her [Monique] to take a nap and she gave her a drink, and she put her
medication [in] that drink. And she went to sleep; and, later on, she went to check up on her, and
she didn't respond."
On cross-examination, defendant's trial counsel elicited testimony that Sarmiento had
been incarcerated and was to be deported as part of the sentence for a federal conviction.
Defendant's trial counsel also questioned Sarmiento about whether she had seen newspaper
articles about the case while incarcerated with defendant. Sarmiento testified that she did not
remember any articles. Sarmiento also testified that defendant said that she could not understand
how her daughter got the medication and said that she didn't really know what happened to her
daughter. She also admitted that defendant stated that she did not have anything to do with her
daughter's death. Sarmiento also testified that there was no one else listening in on that
On recross-examination, defendant's trial counsel attempted to get Sarmiento to
acknowledge that defendant had told her that she was accused of putting medicine in her
daughter's drink, but that she did not in fact do so. However, Sarmiento reiterated that defendant
told her that she placed medicine in her daughter's drink. Sarmiento did acknowledge that before
her conversation with defendant, she knew that defendant was accused of killing her daughter by
placing medicine in her drink. Sarmiento testified that she never came to the police with this
information because defendant told her she did not kill her daughter and she (Sarmiento)
assumed that defendant merely placed the bed-wetting medicine in her daughter's drink. Finally,
Sarmiento testified that defendant showed no remorse and never cried or talked nice about her
At trial, defendant's trial counsel objected to the admission of Sarmiento's videotaped
testimony on the ground that it violated defendant's right to confront the witnesses against her.
Specifically, defendant's trial counsel raised the fact that he could not cross-examine Sarmiento
on the basis of the actual testimony of the other inmates. However, the trial court determined
that defendant did have a full opportunity to cross-examine Sarmiento and overruled the
A defendant has the right to be confronted with the witnesses against him or her. US
Const, Am VI; Const 1963, art 1, § 20; Crawford v Washington, 541 US 36, 42; 124 S Ct 1354;
158 L Ed 2d 177 (2004). "'The right of confrontation insures that the witness testifies under oath
at trial, is available for cross-examination, and allows the jury to observe the demeanor of the
witness.'" People v Watson, 245 Mich App 572, 584; 629 NW2d 411 (2001), quoting People v
Frazier (After Remand), 446 Mich 539, 543; 521 NW2d 291 (1994) (opinion by BRICKLEY, J.).
The Sixth Amendment bars testimonial statements by a witness who does not appear at trial
unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the
witness. Crawford, supra at 53-54. A witness is considered unavailable if he or she is "absent
from the hearing and the proponent of a statement has been unable to procure the declarant's
attendance . . . by process or other reasonable means, and in a criminal case, due diligence is
shown." MRE 804(a)(5). On appeal, defendant has not challenged the unavailability of
Sarmiento or the prosecution's due diligence. Hence, the only question is whether defendant had
a prior opportunity to effectively cross-examine Sarmiento. Crawford, supra at 53-54.
Defendant acknowledges that her trial counsel was present at the motion hearing at which
the trial court ordered the preservation of Sarmiento's testimony and had the opportunity to
cross-examine Sarmiento. Nevertheless, defendant contends that the cross-examination was not
constitutionally adequate because it did not include information that only became available after
the cross-examination. We disagree.
Defendant argues that, had her trial counsel known about the differences between
Sarmiento’s statements and the testimony of two jail inmates who testified about statements
purportedly made by defendant, he would have been able to more effectively cross-examine
Sarmiento about her version of defendant's statements. However, Sarmiento testified that
defendant had told her about the events of the day of Monique's death when no one else was
listening—and neither of the other witnesses indicated that they overheard defendant's
conversation with Sarmiento. Hence, it is difficult to see how defendant could have impeached
Sarmiento's testimony with knowledge of the specific details of the other witnesses' testimony.
Indeed, the similarities largely outweighed the differences. Further, defendant's trial counsel
effectively cross-examined Sarmiento about the statements defendant allegedly made and
suggested that Sarmiento's recollection was inaccurate. Specifically, he interjected the
possibility that Sarmiento may be misremembering the statement and that, in fact, defendant
merely told her that she was accused of having given her daughter medicine in a drink. He also
asked Sarmiento about the possibility that she learned that defendant had placed medicine in her
daughter's drink from newspaper articles. Finally, defendant's trial counsel elicited testimony
from Sarmiento that defendant had denied causing her daughter's death. Thus, on the whole,
defendant's trial counsel properly and effectively cross-examined Sarmiento on all the relevant
issues. Therefore, the trial court did not deprive defendant of her right to confront Sarmiento by
permitting the prosecution to admit Sarmiento's videotaped testimony.
IV. Defendant's Expert Toxicologist
Defendant next argues that the trial court denied her a fair trial when it prevented her
from calling a different toxicologist after the prosecutor refused to agree to allow defendant's
originally proposed toxicologist to testify. We agree that the trial court abused its discretion
when it prevented defendant from calling a toxicologist at trial. Because this error was not
harmless, defendant is entitled to a new trial.
A. Procedural Background and Relevant Testimony
In order to properly evaluate the propriety of the trial court's decision to prohibit
defendant from calling a toxicologist, it will be necessary to examine the trial court's earlier
rulings on the addition of witnesses. Further, because the prejudicial effect of this ruling is
inextricably tied to defendant's ability to present similar evidence through her pathologist, it will
be necessary to examine the trial court's decision to limit the testimony of defendant's
1. Pretrial Rulings
After a hearing held on January 24, 2005, the trial court ordered defendant's trial counsel
to file an amended witness list within seven days. On the order, the court noted that defendant's
trial counsel was looking for a new forensic pathologist because the previously proposed
pathologist had moved to Arizona. On February 1, 2005, defendant filed the amended witness
On February 16, 2005, defendant's trial counsel moved to adjourn the trial, which had
been scheduled to begin that day, in order to review the jury questionnaires. The trial court held
a hearing on the motion. At the hearing, the trial court indicated that the prosecutor had also
orally requested a motion to adjourn the trial date for 30 days in order to investigate an
undisclosed matter and schedule a status conference. On the basis of the total circumstances, the
trial court concluded that the trial should be adjourned. At this point, the prosecution indicated
that defendant had submitted several new witness lists, which included defendant's new
pathologist, Dr. Stephen Cohle. In light of these additions, the prosecution asked the court to
order defendant to add new witnesses only by motion and at least 30 days before trial.
After the hearing, the trial court signed a document labeled "Action in Court." Under the
heading "Notes/Further Orders," the trial court ordered the adjournment of the trial date, set the
date for a status conference, and ordered the parties to submit updated witness lists by February
18, 2005. In addition, there was a marginal notation written perpendicularly to the notes, which
read: "Add. witnesses to be handled by motion."
On March 2, 2005, defendant's trial counsel filed an amendment to his February 1, 2005,
witness list, which added Cohle as an expert witness. Defendant's trial counsel did not move for
the addition of Cohle.4
2. Trial Rulings
On February 21, 2006, which was the day before the start of the present trial, defendant's
trial counsel officially moved for the addition of Cohle to the witness list and also asked that the
court permit the addition of Dr. Bernie Eisenga as an expert toxicologist. In his motion,
defendant's trial counsel explained that he had forgotten that witnesses could only be added with
the permission of the court and only recently realized that he would need the testimony of a
At a hearing held on the same day, the trial court addressed defendant's motions to add
Cohle and Eisenga. Defendant's trial counsel noted that although he forgot to add Cohle by
motion, the prosecution had actual notice of defendant's intention to call Cohle for more than one
year. Defendant's trial counsel admitted that the prosecution did not have significant notice of
defendant's intention to call Eisenga, but explained that he decided to add Eisenga to the list only
after Cohle advised him that he should have a defense toxicologist to counter the testimony of
the prosecution's toxicologist.
The prosecution objected to the addition of Eisenga because it violated the trial court's
earlier order that witnesses had to be added by motion. And, if the trial court were to permit the
addition of Eisenga, the prosecution would ask that the court order defendant to comply with
MCR 6.201 by providing a summary of the proposed testimony and the underlying basis of his
After hearing the arguments, the trial court denied as untimely defendant's motion to add
Eisenga; however, the court informed defendant that it would allow her to make an offer of proof
and might reconsider the motion on the basis of the offer.
On March 1, 2006, the trial court excused the jury for the day in order to hear arguments
about defendant's renewed motion to add Eisenga and evaluate defendant's offer of proof.
(Although defendant served an offer of proof on the prosecution shortly thereafter, a copy was
apparently not placed in the record until much later.) After the jury left the court, defendant's
trial counsel explained that he had orally told the prosecution about Eisenga approximately three
weeks earlier. Defendant's counsel stated that, at that time, the prosecution did not indicate that
Given the prosecutor's statements at the February 16, 2005, hearing, it is clear that defendant
added Cohle as a witness before the trial court ordered defendant to add witnesses by motion
only. Nevertheless, defendant apparently failed to add Cohle to her final witness list, and the
prosecution vigorously opposed defendant's efforts to have Cohle testify at trial.
it had had prior contact with Eisenga. Defendant’s counsel stated that Eisenga had subsequently
informed him that the prosecution had contacted Eisenga six years earlier about the case and that
he would not testify without a release from the prosecution.
Defendant's trial counsel explained that the prosecution indicated that it would object to
Eisenga's testimony on the basis of this prior contact. So defendant's trial counsel requested
permission to add a different toxicologist. Defendant's trial counsel argued that the prosecution
would suffer no prejudice because it already had its own toxicologist who was aware of the areas
about which defendant's toxicologist would testify. Further, he argued that, on the basis of
Cohle's recommendation, he believed the toxicologist's testimony would be helpful to the jury
and, "if it were excluded, it would—it would substantially impact on  the defense."
The prosecution responded by noting that defendant's trial counsel's offer of proof
indicated that the toxicologist would discuss postmortem redistribution, an issue that arose at the
2000 preliminary examination. Thus, the prosecution argued, the issue was not new, and
defendant's trial counsel could not now argue that he had only just learned of its importance.
The prosecution noted that it takes extensive preparation to prepare for expert testimony, and
that, under the circumstances, it was not even clear whom defendant would call. As such, he
concluded, "It's too late in the game for him to start bringing in new people, especially experts."
The trial court stated that defendant's trial counsel appeared to know about the issue of
postmortem redistribution years earlier and that it would now be unfair to add another expert.
The court explained:
To say that there's no prejudice, when we don't have any idea who the
witness would be or what they would say, is just total speculation; and that's what
prejudice would really be here, because there'd be no way to prepare for it prior to
their coming in now and—and perhaps saying something that would need
verification or some other method of preparation.
On March 7, 2006, defendant's trial counsel renewed his request to add a toxicologist to
his witness list. Defendant's trial counsel argued that there would be no prejudice to the
prosecution and even offered to make the witness available to the prosecution before the witness
testified. But the trial court continued its ruling that the addition was too late.
3. Dr. Cohle's Toxicology Testimony
On March 27, 2006, the trial court held a hearing, which included Dr. Cohle by
telephone, to address issues involving Cohle's proposed testimony. At the hearing, Cohle stated
that he disagreed with the conclusion that Monique died of an overdose of Imipramine. He
explained that he did not believe that the conclusion properly took into consideration the
phenomenon of postmortem redistribution. He stated that he consulted a standard text used by
pathologists and found that postmortem redistribution could increase the level of Imipramine in
the blood by up to a factor of three. Thus, he explained, the blood result taken at face value
constituted an overestimation. Further, he stated that, even assuming that this level were
accurate, the standard text indicated that the lethal level of Imipramine is actually higher than the
amount found in Monique's system. Hence, the amount of Imipramine in Monique's system was
likely not lethal. Given this, Cohle stated that Monique's heart defect was more likely the cause
Cohle also noted that there was no literature discussing levels of Imipramine that would
be lethal in children. Cohle further testified that even if the level of Imipramine in Monique's
blood were accurately stated at 1950 nanograms per milliliter, it would only take 30 to 40 pills to
reach that level. This was in contrast to the testimony of the prosecution's toxicologist, who
testified that it would take between 80 and 120 pills to reach that level, and the prosecution's
forensic pathologist, who testified that it would take between 90 and 100 pills to reach that level.
Cohle explained that he came to this conclusion by applying a simple formula involving
Monique's weight, the dosage, and the volume of distribution for Imipramine, which he obtained
from a standard source.
Cohle also stated that the ratio of Imipramine to Desipramine, an antidepressant drug, in
Monique's system could also indicate that Monique was taking a chronic low dose of
Imipramine; this statement directly contradicted the testimony of the prosecution's pathologist,
who testified that the ratio of Imipramine and Desipramine indicated that the bulk of the drug
was introduced shortly before Monique's death.
Cohle testified that although he obtained the case materials sometime in 2005 and
reported his conclusions to defendant's trial counsel sometime after July 2005, he thought that he
reported his conclusions in either late 2005 or early 2006. Cohle stated that he did not place his
findings in writing until just one week before the hearing. He explained that that was when he
was asked to do so. Cohle stated that after he reached his own conclusions, he consulted with
Eisenga about his findings to confirm that he "was on the right track." He noted that Eisenga
agreed with him.
Although Cohle indicated that he came to his findings employing his own expertise,
because Cohle relied on outside references to determine the pharmacological characteristics of
Imipramine, the trial court severely limited Cohle's ability to offer opinions concerning the
Imipramine found in Monique's blood. The court explained that, under MRE 703, "any
underlying data that he's basing his opinion on, any facts, have to be in evidence." The court
further ruled that the learned treatise Cohle relied on to familiarize himself with the
pharmacological characteristics of Imipramine would not be admissible under any exception to
the hearsay rule. For this reason, the court prevented Cohle from testifying that the Imipramine
level might not have caused Monique's death, from opining that the number of pills that would
be necessary to reach the level found in Monique's blood was substantially less than the 90 to
120 pills posited by the prosecution's toxicologist, and from discussing how postmortem
redistribution might have affected the level of Imipramine found in the blood sample taken from
Monique. At that time, the trial court clearly recognized that defendant's case was prejudiced by
having no testimony from its own expert on toxicology. The court even stated that it may very
well have allowed defendant to present the testimony of a toxicologist, "if I would have known
the reason for wanting a toxicologist at that time."
Defendant's trial counsel again asked the trial court to permit him to call a toxicologist.
After a brief discussion off the record, the trial court stated that it had asked the prosecution if it
would waive its objection to Cohle's testimony under MRE 703. But the prosecution had
refused. Therefore, the trial court determined that Cohle would not be permitted to testify about
those areas. In addition, the trial court again denied both defendant's request to call a
toxicologist and her requests for either a mistrial or a continuance to file for leave to appeal in
B. Defendant's Late Endorsement of a Toxicologist
1. Standard of Review
A trial court's decision to permit or deny the late endorsement of a witness is reviewed
for an abuse of discretion. People v Callon, 256 Mich App 312, 325-326; 662 NW2d 501
(2003). A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes. Young, supra at 448.
A defendant has a constitutionally guaranteed right to present a defense, which includes
the right to call witnesses. US Const, Am VI; Const 1963, art 1, §20; see also People v Hayes,
421 Mich 271, 278-279; 364 NW2d 635 (1984) (noting that an accused has the right to present
his or her own witnesses to establish a defense). But this right is not absolute: the "accused
must still comply with 'established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and innocence.'" Id. at 279, quoting
Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). Nevertheless,
the sanction of preclusion is extreme and should be limited to only the most egregious case.
People v Merritt, 396 Mich 67, 82; 238 NW2d 31 (1976) (discussing whether the trial court erred
when it precluded the defendant from presenting an alibi defense after the defendant failed to
comply with the alibi notice requirements). This is not such a case.
Defendant's trial counsel formally asked the trial court to permit him to add a toxicologist
on three separate occasions: at the hearing held on February 21, 2006, during trial on March 1,
2006, and at trial on March 7, 2006. Defendant's trial counsel also raised the trial court's refusal
to permit defendant to call an expert toxicologist during the discussions before Cohle testified.
But in each case the trial court denied the motion.
In the request of February 21, defendant's trial counsel indicated that he wanted to call a
toxicologist because defendant's new pathologist opined that it would be helpful. Admittedly,
defendant did not make an offer of proof or otherwise state why the defense needed a
toxicologist. But the court had a long history with this case and was well aware of the fact that
the prosecution's case rested primarily on the level of Imipramine found in Monique's blood, the
number of pills that it would take to reach that level, and the inferences that could be drawn from
that evidence. Thus the trial court was aware of the importance of toxicology evidence.
Furthermore, although the prosecution objected to the addition of Eisenga as a violation of the
trial court's earlier order, it did not indicate that it would suffer any prejudice if the trial court
granted the request. Indeed, the prosecution stated that if the trial court were to permit the
addition of Eisenga, it merely wanted defendant to provide a written summary of Eisenga's
opinion and the underlying basis for it, to which defendant's trial counsel readily agreed. Despite
this, the trial court denied defendant's motion to add Eisenga on the basis of timeliness alone.
The decision to initially deny defendant's request to call a toxicologist was not within the
range of reasonable and principled outcomes. There was no indication at the February 21
hearing that defendant had engaged in abusive conduct or that the prosecution would be
prejudiced by the defense's addition of a toxicologist. Although defendant's request came one
day before trial, the parties indicated that it would take a full month to put on the case.
Furthermore, defendant's trial counsel had offered to submit a written synopsis of the expert's
opinion and the basis for that opinion to the prosecution. And the prosecution already had an
expert toxicologist prepared to testify about the Imipramine found in Monique's blood.
Therefore, the prosecution had both the means and the time to adequately prepare for defendant's
toxicologist. "Clearly, it would be improper to exclude the defense where neither serious abuse
of the right on the part of defendant nor prejudice to the people's case [has] been demonstrated."
Merritt, supra at 82. Hence, the trial court abused its discretion when it denied defendant's
request to add Eisenga on February 21.
The trial court again abused its discretion when it denied defendant's renewed motion to
add a toxicologist on March 1. Defendant's trial counsel renewed his motion to add a
toxicologist in reliance on the trial court's earlier indication that it might reconsider the issue
after an offer of proof. By this time, defendant's trial counsel submitted an offer of proof to the
prosecution and indicated that the defense would be adversely affected if prevented from calling
a toxicologist. Defendant's trial counsel also reiterated that there was ample time for the
prosecution to prepare and stated that he would make the witness available to the prosecution
before testifying. Nevertheless, the trial court again denied the motion.
The trial court noted that defendant's trial counsel was apparently aware of the issues
about which the toxicologist would testify from at least the time of the preliminary examination
and concluded that it would now be unfair to add another expert. The court explained that the
prosecution would be prejudiced because defendant had not even identified who the witness
would be and, therefore, the prosecution would be unable to prepare. Although these appear to
be valid considerations, on careful examination of the record, it is clear that defendant's trial
counsel acted reasonably and that the trial court could have added defendant's original
toxicologist or another toxicologist without prejudicing the prosecution.
At the preliminary examination, defendant's trial counsel did in fact address the
possibility that the level of Imipramine found in Monique's blood could have been affected by
the phenomenon of postmortem redistribution. However, defendant's trial counsel did not elicit
this testimony to prove that the level of Imipramine found in Monique was not lethal. Rather, it
was defendant's sole theory at that time that Monique deliberately or accidentally ingested the
pills on her own. Indeed, defendant's own pathologist at the time testified that he was certain
that Monique died of an Imipramine overdose in light of the level of Imipramine in Monique's
system and the fact that Monique's symptoms were typical of Imipramine poisoning. At the
preliminary examination, defendant's pathologist merely offered testimony to rebut the
conclusion of a witness for the prosecution, Dr. Kanu Virani, the forensic pathologist that
performed the autopsy on Monique, that the absence of pill fragments in Monique's stomach
suggested that the pills had been dissolved before ingestion. For this reason, defendant's
pathologist concluded that the cause of death could not be definitively ruled a homicide. Taken
in context, it appears that defendant's trial counsel's cross-examination of the prosecution's
experts at the preliminary examination on the issue of postmortem redistribution was limited to
attempting to show that the experts were not being impartial or thorough.
It was not until more than five years after the preliminary examination that Cohle offered
his opinion that Monique might not have died from Imipramine poisoning at all and suggested
that defendant might want to call a toxicologist to offer an opinion about the level of Imipramine
found in Monique's blood. Given the convoluted history of this case and that defendant's prior
pathologist opined that he was certain that Monique died of an Imipramine overdose, defendant's
trial counsel cannot be faulted for failing to realize the need for a toxicologist earlier than late
2005 or early 2006. Further, defendant's trial counsel would then have had to investigate Cohle's
opinion and secure a toxicologist. Understood in light of the totality of the circumstances, the
lateness of defendant's trial counsel's initial motion to add a toxicologist does not appear to have
been motivated by gamesmanship or an abuse of the right to call witnesses. See Merritt, supra at
The record also does not support the trial court's conclusion that the prosecution would be
prejudiced by the late endorsement of the toxicologist. Defendant's trial counsel originally
identified Eisenga as the proposed toxicologist. At the February 21 hearing, the prosecution only
argued that defendant's motion to add Eisenga should be denied because it was untimely. The
prosecution did not state that it had any other objection to Eisenga. However, at the March 1
hearing, defendant's trial counsel revealed that the prosecution had contacted Eisenga about the
case in 2000. Defendant's trial counsel indicated that Eisenga would not testify without first
obtaining a signed release from the prosecution, which the prosecution would not give. For this
reason, defendant's trial counsel was forced to ask for permission to add an unidentified
In considering the renewed motion, the trial court clearly gave weight to the fact that
defendant did not have a toxicologist ready to testify when it concluded that the prosecution
would be prejudiced. But the trial court apparently did not consider the fact that the prosecution
contributed to this problem. Further, the trial court did not explore the propriety of removing
Eisenga as a potential witness. At the hearing, defendant's trial counsel indicated that Eisenga
himself brought to defendant's trial counsel's attention the issue of the prior contact and that
Eisenga was not even sure of the contact. Defendant's trial counsel explained:
He indicated to me, he said, "Hey, you know, I'm—I'm not sure, but, you
know, the—you don't get calls on cases involving the death of—of little kids very
often," and he said, "I—I have some memory of being contacted by someone, I
think it may have been Bay County, in reference a—a death of a small child
case," and he said, "It—it may have been this case."
And I said, "Well, did you do any reports for them?" And he said, "No"; I
said, "Well," you know, "what—what was your involvement?" He said, "I just
talked with 'em a little bit and that was the end of it, and I never heard from them
After explaining that his proposed toxicologist would not testify without a release, defendant's
trial counsel also indicated that the prosecution informed him that it would also object to
Eisenga's colleague's testifying on defendant's behalf.
In response, the prosecution noted that someone from the prosecutor's office did recall
speaking to Eisenga at the very beginning of the case. But the prosecution did not offer a reason
for refusing to provide Eisenga with a release and did not explain why it would object to
Eisenga's colleague's testifying for the defense. Given the extremely limited nature of the
contact and the fact that the contact was approximately six years earlier, the prosecution's failure
to provide a release appears manifestly unreasonable. Yet the trial court failed to investigate the
matter further. In addition, it is clear from the record that Eisenga would have testified had he
been given some assurance that he would incur no liability. Thus, had the court elected, it could
have ordered Eisenga to testify. Instead, the trial court impliedly sanctioned the prosecution's
unreasonable refusal and held it against defendant in considering the motion.
In addition, defendant's trial counsel indicated that he orally informed the prosecution
about Eisenga approximately three weeks before the March 1 hearing, which would have been
approximately two weeks before defendant first moved to add Eisenga as a witness. Had the
prosecution raised its objections then or at the February 21 hearing, defendant likely would have
had sufficient time to find a new toxicologist. Notwithstanding the prosecution's unreasonable
refusal to release Eisenga and the fact that several days were lost by the trial court's summary
rejection of defendant's first request, there was still adequate time to find and prepare for a new
toxicologist. The prosecution's first witnesses did not begin to testify until February 28, and the
prosecution had already stated its belief that its proofs would take two weeks. Further, the
prosecution already had a toxicologist who was going to testify on the same matters that
defendant's trial counsel identified in his offer of proof, and defendant's trial counsel had offered
to make the new toxicologist available to the prosecution. Hence, the prosecution would not
have been prejudiced by the addition of the toxicologist. In contrast, given the nature of the
toxicology evidence against defendant, the trial court should have realized that the importance of
the toxicologist to the defense substantially outweighed any prejudice that the prosecution might
suffer in preparing for the late endorsement.
For these reasons, we conclude that the trial court's decision to again deny defendant's
request to add a toxicologist on March 1 fell outside the range of reasonable and principled
outcomes. Young, supra at 448. Rather than resort to this extreme sanction, the trial court
should have fashioned some remedy that would have assured defendant a fair opportunity to
present her defense while limiting any prejudice to the prosecution. See Merritt, supra at 79-83
(examining whether, under the totality of the circumstances, the trial court abused its discretion
when it resorted to the sanction of preclusion rather than granting a continuance).
Under these facts, we cannot conclude that the trial court's decision to preclude defendant
from calling a toxicologist fell within the range of reasonable and principled outcomes. Young,
supra at 448. Further, this error was not harmless. See Lukity, supra at 495-496. By depriving
defendant of a toxicologist, the trial court effectively prevented defendant from establishing that
the measured level of Imipramine in Monique's blood was not sufficient to cause her death and
might even be significantly overstated. In addition, defendant was not able to contradict the
prosecution's assertion that the number of pills needed to reach the measured level of Imipramine
was 90 to 120. Because the sheer number of pills suggests deliberate poisoning by a third party,
defendant's inability to challenge this testimony severely hampered her theory that Monique
might have deliberately or accidentally ingested the pills. Indeed, even the trial court eventually
recognized the importance of the toxicologist's testimony after it barred Cohle from offering any
testimony suggesting that the level of Imipramine found in Monique's blood was inaccurate or
not sufficiently high to have caused her death. Consequently, this error independently warrants
reversal of defendant's convictions and remand for a new trial.
C. Ineffective Assistance of Counsel
In the alternative, defendant argues that her trial counsel was ineffective for failing to
timely request a toxicologist. To establish ineffective assistance of counsel, the defendant must
first show: (1) that counsel's performance fell below an objective standard of reasonableness
under the prevailing professional norms, and (2) that there is a reasonable probability that, but
for counsel's error, the result of the proceedings would have been different. Bell v Cone, 535 US
685, 695; 122 S Ct 1843; 152 L Ed 2d 914 (2002); People v Toma, 462 Mich 281, 302-303; 613
NW2d 694 (2000). In order to meet the second requirement, a defendant must show that
counsel's error was so serious that the defendant was deprived of a fair trial, i.e., the result was
unreliable. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002).
As noted above, defendant's trial counsel reacted in a reasonably timely fashion after
obtaining information that suggested that he would need a toxicologist. Therefore, defendant's
trial counsel was not ineffective for failing to earlier request the endorsement of Eisenga.
D. Preclusion of Cohle's Testimony Under MRE 703
Although defendant has not appealed the trial court's decision to prevent Cohle from
offering certain testimony involving the Imipramine found in Monique's blood, because we are
convinced that this decision was plain error, see People v Carines, 460 Mich 750, 763-764; 597
NW2d 130 (1999),5 which is likely to be repeated on remand, we elect to address this issue sua
sponte. See MCR 7.216(A)(7); People v Noel, 88 Mich App 752, 754; 279 NW2d 305 (1979)
("Generally we do not address issues not raised by the parties on appeal. However, our function
is to dispense justice, and we are given the limited power to raise questions on our own."), citing
Dearborn v Bacila, 353 Mich 99, 118; 90 NW2d 863 (1958) (noting that there "is no hard and
fast rule that appellate courts, sitting either in law or equity, cannot and, hence, do not raise and
decide important questions sua sponte").
As already noted, the trial court severely curtailed Cohle's ability to offer an opinion
involving the accuracy of the level of Imipramine in Monique's blood, the accuracy of the
calculation of the number of pills that it would take to reach that level, and whether the
Indeed, had the trial court permitted Cohle to testify on these matters, the trial court's denial of
defendant's motion to add a toxicologist may very well have been harmless.
Imipramine in Monique's blood was sufficient to cause her death. The trial court did not
conclude that Cohle was not qualified to offer expert testimony on these issues. See MRE 702.
Rather, it concluded that because Cohle stated that he could only offer an opinion on these topics
after reviewing the published pharmacological data for Imipramine, the data would have to be
admitted into evidence and they could not be admitted because they would be hearsay.
Therefore, the trial court concluded that Cohle could not offer any opinions that utilized data
about Imipramine obtained from an outside source.
By special record, Cohle stated that through experience he was generally familiar with
postmortem redistribution, but that the ratio of heart blood to peripheral blood will vary on the
basis of the specific characteristics of the drug at issue. Because he did not have the
characteristics of Imipramine memorized, Cohle indicated that he had to look up the ratio in a
widely used medical text by Dr. Randall C. Baselt. He also indicated that he would have to use
the Baselt book to determine the lethal level of Imipramine and its half-life in order to calculate
the time between ingestion of the Imipramine and Monique's death. Finally, he stated that he
was generally familiar with the formula for calculating the number of pills that it would take to
reach a certain concentration of a particular drug—given the dosage and the weight of an
individual—but admitted that he would also need to know the volume of distribution for
Imipramine before he could calculate the figure. Because he did not know the volume of
distribution for Imipramine, he consulted a text that is part of the Micromedics Healthcare Series
that is used by his hospital's poison control center.
The prosecution's toxicologist and pathologist both relied on data for Imipramine from
outside sources in rendering their opinions. But the trial court nevertheless precluded Cohle
from relying on outside data except to the extent that the data were admitted during the testimony
of the prosecution's witnesses. The trial court barred Cohle from offering opinions on these
topics because his opinion had to be based on facts or data in evidence under MRE 703, and the
treatises could not be placed into evidence because they were hearsay.
MRE 703 provides:
The facts or data in the particular case upon which an expert bases an
opinion or inference shall be in evidence. This rule does not restrict the discretion
of the court to receive expert opinion testimony subject to the condition that the
factual bases of the opinion be admitted in evidence thereafter.
Hence, under this rule, an expert may not offer an opinion that is based on "facts or data in the
particular case" unless the facts or data are in evidence or will be in evidence.
But the reference to facts or data "in the particular case" limits the type of evidence that
must be admitted into evidence to facts or data that are particular to that case. That is, the fact or
datum must be specific to the case. Here, some facts that are particular to the case are:
Monique's weight, that the blood sample was taken from the heart, that Imipramine was found in
the blood, that the Imipramine level was 1950 nanograms per milliliter, and the dosage of the
pills prescribed to Monique. But the pharmacological characteristics of Imipramine were not
"facts or data in the particular case . . . ." Rather, the half-life of Imipramine, the ratio of
postmortem redistribution, the volume of distribution, and the level of Imipramine that would be
lethal in a human are all constants in every case involving Imipramine. Therefore, it was not
necessary to have the data in evidence before Cohle could utilize them in rendering an opinion.
Even if the pharmacological characteristics of Imipramine had to be placed in evidence
before Cohle could render an opinion based in part on those characteristics, the treatises Cohle
relied on were clearly admissible under MRE 803(24) as an exception to the prohibition against
hearsay. Under MRE 803(24), a statement not specifically covered by any other hearsay
exception, "but having equivalent circumstantial guarantees of trustworthiness," may be admitted
if the court determines that "(A) the statement is offered as evidence of a material fact, (B) the
statement is more probative on the point for which it is offered than any other evidence that the
proponent can procure through reasonable efforts, and (C) the general purpose of these rules and
the interests of justice will best be served by admission of the statement into evidence."
Given the incredible number of drugs that have been and continue to be marketed to the
public, it is highly unlikely that a physician will be familiar with the specific pharmacological
characteristics of any particular drug. As such, in order to treat patients and form opinions,
physicians and other experts must routinely consult references that list the key pharmacological
characteristics for drugs. In order to be useful to the experts who utilize these references, the
texts must be objective, thorough, accurate, and current. Therefore, those references that have
obtained widely recognized acceptance by the community of experts who use them will meet the
trustworthy requirements of MRE 803(24).
As already noted, the prosecution's pathologist and toxicologist both used and recognized
outside sources on the pharmacological characteristics of Imipramine. Likewise, Cohle stated
that the Baselt book was a widely recognized and commonly used reference for determining the
pharmacological characteristics of drugs. In addition, Cohle indicated that he relied on a text
from the Micromedics Healthcare Series, which is used by his hospital's poison control center, to
determine the volume of distribution for Imipramine. Hence, these references clearly met the
requirements of MRE 803(24). Consequently, the trial court plainly erred when it determined
that the data from these references were hearsay that did not fall within any exception.
V. Pathologist's Qualification to Render an Opinion on Suicide by Children
Defendant next argues that the prosecution's medical examiner was not qualified to offer
an opinion that children who are seven do not have the mental maturity to commit suicide.
Defendant further argues that there were no facts or data in evidence to support the medical
examiner's opinion. Consequently, defendant concludes, the trial court should have excluded
this testimony. We disagree.
A. Relevant Testimony
At trial, the prosecution called Dr. Virani, who was the forensic pathologist that
performed the autopsy on Monique. Virani testified that Monique had an abnormal heart, but
that the abnormality had nothing to do with Monique's death. Virani further stated that he found
only mild pulmonary and brain edema and that, from these findings, he could not determine the
cause of death. However, he stated that he took a blood sample and that later testing showed the
presence of Imipramine, which he determined to be at a toxic level. From this he determined
that Monique died from acute Imipramine poisoning.
On the basis of the amounts of Imipramine found in the blood and the amount of the
metabolic byproduct of Imipramine, Virani determined that Monique was not using Imipramine
for an extended period. Rather, the Imipramine was introduced into her system shortly before
her death. He also opined that it would take 90 to 100 pills to reach the level of Imipramine
found in Monique's blood. Finally, he noted that he did not find any pill residue in Monique's
stomach and, from this, he concluded that the Imipramine was probably liquefied before it
entered Monique's body.
Virani concluded that the manner of death was homicide. He came to this conclusion on
the basis of information that Monique would not have accidentally taken the medication and that
she was too young to have committed suicide. When asked about whether seven-year-old
children commit suicide, Virani stated that he was not aware of any forensic pathologist
classifying the death of a child of that age as a suicide. He stated that children of that age do not
have the mental maturity to commit suicide.
Defendant's trial counsel objected to Virani's testimony concerning whether children of
Monique's age are capable of committing suicide on the ground that Virani lacked sufficient
expertise to offer the opinion. The trial court overruled the objection and determined that Virani
was sufficiently qualified to testify about whether children of Monique's age commit suicide.
MRE 702 governs the qualification of expert witnesses for the purpose of offering
testimony at trial. Under MRE 702, an expert may not testify unless the trial court first
determines that "scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue" and the expert witness is "qualified as
an expert by knowledge, skill, experience, training, or education . . . ." Based on the language of
MRE 702 and MRE 104(a), which requires trial courts to determine preliminary questions
concerning the qualification of a person to be a witness, trial courts have an obligation to
exercise their discretion as a gatekeeper and ensure that any expert testimony admitted at trial is
reliable. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d 391 (2004).
This gatekeeper role applies to all stages of expert analysis. MRE 702
mandates a searching inquiry, not just of the data underlying expert testimony, but
also of the manner in which the expert interprets and extrapolates from those data.
Thus, it is insufficient for the proponent of expert opinion merely to show that the
opinion rests on data viewed as legitimate in the context of a particular area of
expertise (such as medicine). The proponent must also show that any opinion
based on those data expresses conclusions reached through reliable principles and
methodology. [Id. at 782 (emphasis in original).]
In the present case, Virani testified that he is a medical doctor and is board-certified in
forensic pathology, which involves the investigation of suspicious and violent deaths. He also
stated that he has served as a medical examiner for several counties since 1988 and performed
over 13,000 autopsies. Hence, Virani was clearly qualified to testify as a medical doctor who
specializes in forensic pathology. Nevertheless, defendant argues that Virani's qualifications are
insufficient to offer an opinion about whether seven-year-old children are sufficiently mature to
Although Virani was not an expert on suicide, this alone did not preclude him from
offering an opinion about whether Monique committed suicide. Rather, under some
circumstances an expert's qualifications pertain to weight rather than admissibility. See id. at
788-789. Nevertheless, if the subject of the proffered testimony is far beyond the scope of the
witness's expertise, the testimony will be inadmissible. Id. at 789.
It is noteworthy that medical examiners, such as Virani, are statutorily required to
investigate the cause and manner of the death of an individual under certain circumstances. See
MCL 52.202. As a result, medical examiners must routinely investigate and determine whether
the manner of death for a particular person was suicide. In this regard, Virani testified that he
was unaware of any cases where a forensic pathologist classified the death of a child of
Monique's age as suicide. And he stated that he personally has never experienced a child of this
age committing suicide or accidentally ingesting 90 to 100 pills.
In addition to his experience in the field of forensic pathology, Virani indicated that his
opinion was also based on his knowledge of the human brain. Although medical doctors are not
necessarily experts on the development of the human brain, medical training clearly includes a
basic understanding of brain development. Thus, Virani was minimally qualified by both
experience and training for purposes of MRE 702 to offer an opinion about whether children of
Monique's age commit suicide. Consequently, any limitations in his experience and training
were properly a matter of weight rather than admissibility. Gilbert, supra at 788-789, 789 n 63.
Finally, Virani was not required by either MRE 702 or MRE 703 to offer data in support of his
opinion that children of Monique's age do not normally commit suicide. Rather, his opinion
need only be based on the actual facts admitted into evidence and his general training and
The trial court did not abuse its discretion when it determined that Virani was qualified to
offer an opinion on whether children of Monique's age commit suicide.
VI. Evidence of Other Acts
Finally, defendant argues that the trial court improperly permitted the prosecution to
solicit testimony concerning other acts involving defendant that were barred by MRE 404(b).
Defendant argues that this evidence was not relevant to the stated purposes and the prosecution
actually proffered the testimony to show defendant's bad character and suggest that she acted in
conformity with that character.
We agree that the trial court abused its discretion when it permitted the prosecution to
elicit testimony about defendant's alleged prior physical abuse of her children to prove malice,
intent, and absence of mistake or accident. Likewise, to the extent that the trial court permitted
the prosecution to admit the evidence of prior abuse to show that defendant abused her children
when under stress, the trial court abused its discretion. However, evidence that protective
services personnel had investigated allegations of abuse, which defendant claimed Monique
herself falsely reported, was admissible to show that defendant had a motive to kill or hurt her.
Nevertheless, because the danger of unfair prejudice substantially outweighed the probative
value of the evidence to prove motive, the trial court abused its discretion when it permitted the
prosecution to elicit detailed testimony concerning the specific allegations of abuse.
The trial court properly concluded that evidence that defendant was aware that Monique
may have been sexually abused by others in her household and knew that permitting such abuse
could lead to the removal of her children was admissible to establish motive. Likewise, the trial
court properly permitted the prosecution to elicit testimony that defendant's children had been
involved in prior accidental overdoses.
A. Procedural History and Trial Court Ruling
In July 2004, the prosecution gave notice to defendant that it intended to submit evidence
of certain other acts at trial. Specifically, the prosecution stated that it intended to present
evidence of defendant's long involvement with protective services personnel, including their
investigation of allegations of physical abuse. The evidence of physical abuse would include
testimony, in relevant part, that bruises were found on defendant’s daughter Jessica in 1987, that
defendant admitted slapping and kicking Jessica in 1988, that Jessica reported being hit in 1990,
that defendant’s son Joshua reported that his mother threw a cereal bowl at him and cut his head
and kicked Monique in 1996, that Jessica had made allegations that defendant used a rope to
tether Monique for running off in 1999, that defendant hit Monique with a fly swatter in 1999,
and that defendant placed Monique in counseling to get her to stop making false allegations and
reports to protective services personnel. The prosecution submitted that this abuse was relevant
to show that defendant had the requisite malice, that her actions were not accidental, and to rebut
defendant's claim that Monique took the pills deliberately or accidentally. The prosecution also
indicated that it intended to present evidence of defendant's statements concerning the allegations
to show defendant's state of mind concerning the allegations Monique made.
The prosecution also gave notice that it intended to submit evidence that defendant's
children had experienced prior drug overdoses. The prosecution intended to show evidence that
both Monique, at age four, and Joshua, at age six, were treated for a drug overdose in 1996 and
that defendant’s daughter Roxanne, who was less than two years old at the time, was taken to the
emergency room in 1983 for an overdose of Benadryl. The prosecution stated that it intended to
elicit evidence of these overdoses to show that defendant deliberately misled detectives when she
stated that the only prior overdose had been by her son Joshua at age two and one-half. The
prosecution also stated that the evidence was admissible to show that defendant had knowledge
of the potential harm of permitting Monique to have access to the pills.
Finally, the prosecution gave notice that it intended to elicit evidence that defendant knew
of prior allegations of sexual abuse involving Monique and was aware that the prosecutor had
scheduled a meeting for the day after Monique's death to investigate recent allegations of sexual
abuse—including a claim that Joshua had perpetrated the abuse. The prosecution stated that
evidence of the recent and prior allegations of sexual abuse and defendant's involvement with
protective services personnel during the investigation of those allegations would prove that
defendant was aware that she could lose her children as a result of permitting the abuse to occur
in her household. The prosecution argued that this evidence was admissible to show motive and
to impeach statements by defendant that she was unaware of any sexual impropriety between
Monique and Joshua.
Defendant objected to the proposed admission of this evidence. The trial court held a
hearing on the issue in October 2004.
At the hearing, the prosecution reiterated the evidence of incidents of physical abuse that
it intended to admit. The prosecution stated that the incident with the cereal bowl demonstrated
that defendant could not tolerate her children during stressful times and that this resulted in
"inappropriate and abusive" acts toward Joshua. The prosecution again stated that the evidence
was admissible to show malice and absence of mistake or accident, but also indicated that the
long history of protective services involvement would help explain why defendant was so
"intolerant of this child making up accusations . . . ." Further, the prosecution argued that the
evidence demonstrated that defendant lacked the "ability to cope with the everyday demands of a
behaviorally-difficult child." Hence, it was evidence of defendant's motive and intent to stop
Monique from making allegations.
The prosecution also stated that it intended to submit evidence of the prior overdoses to
prove that defendant willfully misled the police about the fact that her children had had prior
overdoses. The prosecution also argued that the evidence of the overdoses demonstrates that
defendant knew of the danger of an overdose and ignored the risk when she allegedly disposed of
the medicine. Finally, the prosecution again argued that the allegations of prior sexual abuse
were relevant to show that defendant knew that she could lose her children if Monique
implicated her brother in the most recent claim of sexual abuse. At the close of the hearing, the
trial court indicated that it would enter an opinion and order with regard to such evidence at a
The trial court entered a preliminary order in January 2005. The trial court entered a final
opinion and order in April 2005. In the opinion, the court noted that the prosecution had
indicated that it intended to use the other acts evidence to prove motive, malice, intent, and
absence of mistake or accident, which were all proper purposes under MRE 404(b). The court
then analyzed the relevance of the various incidents.
The court determined that the incident in 1987, when bruises were found on Jessica, and
defendant's admission in 1988 that she slapped and kicked Jessica were relevant for the
identified purposes: the evidence tended to show that defendant "used abusive tactics to control
her children when they caused her stress in the past, and she intended to do so when she
allegedly gave Monique the overdose of Imipramine." However, the trial court ruled that the
1990 incident was not relevant because it was determined that defendant's husband was
responsible for Jessica's injury, and there was no evidence that defendant participated. The trial
court determined that the incident in 1996 with the cereal bowl was relevant to show how
defendant reacted to stress and to establish motive, malice, intent, and absence of mistake or
accident. The trial court also determined that the cereal bowl incident was relevant to show both
defendant's partial admission and her illogical denial of how the injury occurred. The trial court
concluded that the 1999 tethering incident was relevant for the same purposes and because
Monique had been punished for wandering away on the day of her death. Finally, although the
trial court concluded that the 1999 fly swatter incident was unsubstantiated and prohibited its use
in the prosecution's case-in-chief, it allowed the prosecution to present evidence that defendant
placed Monique in counseling to get her to stop making false allegations because that showed
motive, malice, intent, and absence of mistake or accident.
The trial court then determined that the incidents were highly relevant and not unfairly
prejudicial. Therefore, it concluded that the prosecution would be allowed to present this
evidence at trial.
The trial court next addressed the prior drug overdoses. The trial court again indicated
that the prosecutor successfully identified proper purposes for the evidence under MRE 404(b)
and also concluded that the evidence of the prior drug overdoses was relevant to showing that
defendant knew about the potential for harm with an overdose and tried to "direct attention away
from the actual cause of death." Indeed, the trial court indicated that defendant's failure to tell
the police of these earlier overdoses amounted to a false statement that could be used as evidence
of guilt. Lastly, the court determined that because the prior incidents did not involve accusations
that defendant intentionally gave the children the overdoses, the incidents did not involve
prejudice that substantially outweighed the probative value of the evidence. Therefore, it
concluded that the prosecution could present the evidence.
Finally, the trial court determined that the evidence of prior allegations of sexual abuse
against Monique was relevant to show that defendant had a motive to kill Monique. Specifically,
the court concluded that the evidence was admissible to show that defendant understood the
investigation process and was aware that her children could be removed from her home as a
result of the most recent allegations. Additionally, the trial court determined that the probative
value of this evidence was not substantially outweighed by unfair prejudice.
At trial, the prosecution elicited testimony about each of the other acts permitted by the
trial court. During closing arguments, the prosecution argued that defendant was motivated to
kill Monique to keep Monique from revealing that Joshua sexually abused her, but did not
otherwise raise any of the other acts evidence until rebuttal arguments. During rebuttal
arguments, the prosecution noted that defendant did not mention the earlier overdoses when
asked by the police and implied that defendant lied. The prosecution also used defendant's taperecorded statements accusing Monique of lying to protective services personnel and complaining
that the protective services workers were constantly "on her case" to show that defendant had a
motive to kill Monique.
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.
In People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), our Supreme Court
adopted the approach to other acts evidence enunciated by the United States Supreme Court in
Huddleston v United States, 485 US 681, 691-692; 108 S Ct 1496; 99 L Ed 2d 771 (1988). See
Sabin, supra at 55.
First, the prosecutor must offer the other acts evidence under something
other than a character to conduct or propensity theory. MRE 404(b). Second, the
evidence must be relevant under MRE 402, as enforced through MRE 104(b), to
an issue of fact of consequence at trial. Third, under MRE 403, a "'determination
must be made whether the danger of undue prejudice [substantially] outweighs
the probative value of the evidence in view of the availability of other means of
proof and other facts appropriate for making decision of this kind under Rule
403.'" VanderVliet, supra at 75, quoting advisory committee notes to FRE
404(b). Finally, the trial court, upon request, may provide a limiting instruction
under MRE 105. [Id. at 55-56.]
The prosecution bears the initial burden of establishing the relevance of the evidence to prove a
fact other than character or propensity to commit a crime. People v Knox, 469 Mich 502, 509;
674 NW2d 366 (2004), citing People v Crawford, 458 Mich 376, 385; 582 NW2d 785 (1998).
"Where the only relevance of the proposed evidence is to show the defendant's character or the
defendant's propensity to commit the crime, the evidence must be excluded." Knox, supra at
1. Evidence of Physical Abuse
a. Relevance for a Proper Purpose
The trial court permitted the prosecution to elicit testimony about several allegations that
defendant had physically abused her children and the investigations into those allegations. The
testimony included details about incidents where defendant's daughter Jessica was found to have
bruises and where defendant purportedly admitted slapping and kicking Jessica more than 10
years before Monique's death. The prosecution also elicited testimony that defendant was
investigated for throwing a cereal bowl at Joshua in 1996 and tethering Monique in 1999. The
trial court permitted testimony about these incidents to prove motive, malice, intent, and absence
of mistake or accident.
The testimony concerning prior allegations of abuse was not relevant to show the absence
of mistake or accident for the charged crime. "The relationship of the elements of the charge, the
theories of admissibility, and the defenses asserted governs what is relevant and material."
VanderVliet, supra at 75. In order to be material, the fact must be within the range of litigated
matters in controversy. Sabin, supra at 57, 69. In the present case, defendant did not argue that
she accidentally gave Imipramine to Monique or that she mistakenly gave a greater dosage of
Imipramine than she intended. Rather, defendant argued that she did not give Monique any
Imipramine on the day of Monique's death. Hence, mistake and accident were not at issue. For
the same reason, the fact that defendant may have partially admitted that the cereal bowl incident
occurred, but offered an implausible mitigating explanation for Joshua's injury, is not relevant to
determining whether defendant gave her daughter an overdose of Imipramine.
In addition, although malice and intent were at issue during the trial, none of the
allegations of abuse involved defendant's medicating her children or otherwise forcing them to
ingest anything. Rather, each of the alleged acts involved physical contact as a response to the
children's behavior. Further, none of the physical contact described in the allegations of prior
physical abuse was so severe as to suggest that defendant had the same or similar intent as that
required in the charged offenses. Cf. People v Biggs, 202 Mich App 450, 452-453; 509 NW2d
803 (1993) (noting that the defendant's act of deliberately burning her child, smothering and
reviving him, and giving him an overdose of medicine were probative of malice because those
incidents showed intent to kill or cause great bodily harm or wanton disregard for the natural
consequences of her actions). Because the alleged acts of physical abuse were so dissimilar to
the conduct for which defendant was on trial, the other acts cannot be said to be within the same
general category as the charged conduct. VanderVliet, supra at 79-80 (noting that the other acts
must be of the same general category as the charged offense in order to be logically relevant to
show intent). Finally, two of the alleged incidents occurred more than 10 years before the
charged conduct and another occurred approximately three years before the charged conduct.
And the tethering incident, which was the most recent allegation of abuse, was the least relevant
to show intent. Although there is no time limit applicable to the admissibility of other acts
evidence, see MRE 404(b), the remoteness in time between the charged conduct and the more
serious allegations of physical abuse limits the logical relevance of these other acts to show
intent. For these reasons, the allegations of physical abuse were not relevant to show malice,
intent, or absence of mistake or accident. See VanderVliet, supra at 80 n 37 (noting that absence
of mistake or accident is simply a form of the exception that permits the use of other acts to
The trial court also indicated that the allegations of physical abuse were relevant to show
that defendant "used abusive tactics to control her children when they caused her stress in the
past, and she intended to do so when she allegedly gave Monique the overdose of Imipramine."
On the surface, it appears that the trial court may have been stating that the allegations of
physical abuse were admissible to show a common scheme, plan, or system in doing an act. See
MRE 404(b). However, considering the dissimilarity between the charged conduct and the
allegations of physical abuse, it cannot be persuasively argued that the alleged physical abuse
demonstrated a common scheme, plan, or system employed by defendant to "control her
children." See Sabin, supra at 64 ("General similarity between the charged and uncharged acts
does not, however, by itself, establish a plan, scheme, or system used to commit the acts.").
Instead, given the dissimilarities, the trial court's conclusion appears to permit the prosecution to
use this evidence for an improper character-to-conduct purpose—to show that defendant had a
propensity to violently lash out at her children under stressful situations and that she acted in
conformity with that propensity. See Knox, supra at 512-513.
Although the trial court erred when it determined that the prosecution could present the
evidence of prior physical abuse to prove malice, intent, and absence of mistake or accident, it
properly concluded that the allegations of physical abuse were relevant to prove motive.
Evidence of other crimes, wrongs, or acts may be offered to prove motive. MRE 404(b)(1).
“Motive” is the "'[c]ause or reason that moves the will and induces action. An inducement, or
that which leads or tempts the mind to indulge a criminal act.'" People v Hoffman, 225 Mich
App 103, 106; 570 NW2d 146 (1997), quoting Black's Law Dictionary (revised 5th ed).
At trial, the prosecution offered its theory that defendant may have killed Monique out of
aggravation with Monique's reports of abuse to protective services personnel. In fact, during
rebuttal arguments, the prosecution used a recording of defendant's statements to emphasize this
Was the defendant worried about Monique possibly sharing information
about her brother to Protective Services and the prosecutor's office during that
scheduled interview on October 11th, 1999, or was the defendant worried about
Monique making other allegations about her to Protective Services?
(Tape recording played)
"I had Protective Services on my butt and on my butt and on my butt.
Monique always told lies."
"She was coming home, and so I waited right out here, and when she got
close I says, 'Get your ass over here now. I am pissed.' And so she gets over
here. I says, 'Why are you taking off?' She wouldn't answer me. I says, 'Fine.'
Wang, paddled her on the butt once. I says, 'You get your damn ass on the couch
and you lay down. You're takin' a nap. I'm pissed.'"
"I locked her in the attic, I tied her up, I hit her with the fly swatter, I hit
her with the belt, I shoved her down."
"I had Protective Services on my butt and on my butt and on my butt.
Monique always told lies."
"I hate you. One of these days I'm gonna kill you."
These statements and defendant's long history of involvement with protective services
investigations are strong evidence of defendant's motive. Hence, the trial court correctly
determined that the allegations of prior abuse and defendant's history of involvement with
protective services personnel were relevant to prove something other than an improper characterto-conduct purpose.
b. MRE 403
Even though the evidence concerning defendant's involvement with protective services
investigations as a result of allegations of abuse by her children was relevant to prove something
other than bad character, this alone does not mean that the evidence was admissible.
VanderVliet, supra at 75. Rather, the evidence may still be inadmissible if the probative value of
the evidence "is substantially outweighed by the danger of unfair prejudice . . . ." MRE 403;
VanderVliet, supra at 74.
Because of the unique facts of this case, we conclude that the prejudicial nature of the
evidence actually offered at trial substantially outweighed the value for which the evidence was
As already noted, there was no direct physical evidence or eyewitness testimony that
tended to show that defendant caused Monique to ingest Imipramine. Hence, if the jury
concluded that Monique died from Imipramine poisoning, the primary question remaining would
have been whether defendant caused Monique to ingest the Imipramine or whether Monique
ingested it herself. Under these circumstances, the evidence that defendant harbored anger
toward Monique for making allegedly false accusations of child abuse that resulted in unwanted
attention from protective services workers, constituted evidence that defendant may have been
motivated to kill or cause serious physical harm to Monique. However, although the testimony
about the extent and specifics of defendant's involvement with protective services personnel was
probative of defendant's motive, it was also powerful evidence that defendant was a poor mother
who repeatedly neglected and abused her children. As a result, there was a significant possibility
that the jury might inappropriately use this evidence to conclude that defendant acted in
conformity with her abusive character and poisoned Monique. In addition, the prosecution could
have established defendant's motive without resort to proof of the specifics of defendant's
involvement with protective services investigations. See VanderVliet, supra at 75 (noting that
the analysis under MRE 403 should take into consideration the probative value of the evidence in
view of the availability of other means of proof). Furthermore, the testimony included
discussions of neglect and abuse that also pertained to defendant's other children. Yet the
evidence of abuse and neglect directed toward defendant's other children was—at best—only
minimally probative of defendant's motive to kill or harm Monique. And the danger of unfair
prejudice substantially outweighed any minimal probative value that the evidence of abuse and
neglect may have had. MRE 403.
Given the limited necessity of the evidence to prove motive and the high probability that
the jury improperly used the testimony, we conclude that the trial court abused its discretion
when it determined that the evidence of specific allegations of abuse was not substantially
outweighed by the danger of unfair prejudice. Had the trial court limited the testimony to
establishing generally that protective services workers had investigated allegations of abuse and
neglect by defendant relating to Monique and that those investigations were initiated after
Monique made statements describing inappropriate conduct, the danger of unfair prejudice
would not have substantially outweighed the probative value of the evidence to show motive.
However, as presented at trial, the prejudicial nature of the evidence substantially outweighed the
probative value of the evidence. MRE 403.
2. Evidence of Prior Drug Overdoses
At trial, the prosecution elicited testimony about two incidents of prior drug overdoses
involving defendant's children. The prosecution elicited testimony from Dr. Michael Davison,
who testified that in 1983 he treated defendant's daughter Jessica for an overdose of Benadryl.
Davison said that defendant stated that the Benadryl was kept on a high shelf and that Jessica,
who was 21 months old at the time, climbed up and consumed two-thirds of the bottle. Davison
said the overdose could have been fatal.
The prosecution also elicited testimony that Monique and her brother had both been
involved in an overdose in 1996. Dr. Renae Carter testified that defendant called her at Bay
Medical Center and reported that Monique and her brother had accidentally taken medication.
Carter said she advised defendant to call the poison control center. Carter stated that defendant
came in the next day with the children and reported that the children had climbed to the top of
the refrigerator and drank from two bottles of prescription medicine.
As already noted, the trial court permitted the admission of this evidence to prove that
defendant was aware of the risks of leaving medicine in places that were accessible to children
and to show that defendant may have misled the police when they inquired about prior
overdoses. Because the prosecution argued that, at the very least, defendant was grossly
negligent in leaving the Imipramine where Monique could get to it, defendant's experience with
her children's prior involvement with accidental overdoses was relevant. Likewise, the fact that
defendant may have lied about her knowledge of these overdoses was relevant to show
consciousness of guilt. Hence, this testimony was relevant to and offered for purposes other than
to show that defendant had bad character. Sabin, supra at 55-56. In addition, although a jury
might infer from the incidents that defendant was culpably involved with the overdoses, either
deliberately or negligently, the danger of unfair prejudice was minimal and did not substantially
outweigh the probative value of the evidence. MRE 403. Therefore, the trial court did not abuse
its discretion in permitting this testimony.
3. Evidence of Sexual Abuse
At trial, the prosecution also presented evidence that there had been allegations that
Monique had been sexually abused before her death. Some of the testimony involved prior
allegations of sexual abuse and the investigations that followed. Other testimony involved a
recent allegation that a young man staying at the Yost home had sexually assaulted Monique.
The prosecution further presented evidence that the young man had indicated that Joshua was
actually responsible for the abuse. The prosecution presented the evidence to show that
defendant was aware of the procedures for investigating allegations of sexual abuse and was
aware that it could result in the removal of her children. The prosecution also presented
evidence that Monique died the day before she was scheduled to meet with the prosecutor. The
prosecution theorized that defendant was motivated to kill or hurt Monique to prevent Monique
from making allegations that could result in further disruptions to defendant's life.
The proffered evidence showed that allegations of sexual abuse had plagued the family in
the past and resulted in intrusive investigations. Further, the testimony indicated that defendant
had been told that she could lose her children if she permitted sexual abuse in her household.
And, in the case of one prior allegation, there was testimony that defendant actually asked her
husband to leave the home for one year. There was even testimony that defendant received
public support for her children, which she would lose if the children were removed. Hence, the
evidence was relevant for a purpose other than a character-to-conduct theory—i.e. to prove that
defendant had a motive to kill or hurt Monique in order to avoid the problems associated with the
investigation of new allegations.
Furthermore, although the testimony clearly implicated defendant's ability to provide a
safe and proper home environment for Monique, the danger of unfair prejudice did not
substantially outweigh the probative value of the evidence. MRE 403. The evidence did not
involve allegations that defendant took an active role in the abuse or that she could have
prevented it and failed to do so. Further, defendant was able to present a significant amount of
evidence that she responded to the prior allegations of sexual abuse in an appropriate manner and
had affirmatively taken steps to report the abuse and protect Monique from harm. Likewise,
defendant was able to present evidence that she cooperated during prior investigations of abuse
and that, although defendant was aware of an upcoming meeting with the prosecutor, she was not
aware of the exact date. Finally, the trial court did instruct the jury that the evidence could not
be used for an improper purpose. For these reasons, we conclude that the trial court did not
abuse its discretion in permitting the evidence of prior allegations of sexual abuse involving
The trial court did not err when it permitted the prosecution to present evidence about
allegations of prior sexual abuse in defendant's household and to present evidence that
defendant's children had been involved in prior accidental overdoses. But the trial court erred
when it permitted the prosecution to elicit detailed testimony about specific allegations of
physical abuse by defendant against her children. The evidence of allegations Monique made
that resulted in investigations of defendant by protective services personnel was relevant to show
that defendant had a motive to harm or kill Monique. However, the danger of unfair prejudice
ensuing from detailed testimony into specific allegations and the allegations involving
defendant's other children substantially outweighed the potential probative value of the evidence
to show motive. Therefore, the trial court abused its discretion when it permitted this testimony.
Further, given the nature of this case, we cannot conclude that this error was harmless.
VII. General Conclusions
The trial court abused its discretion when it prevented defendant's daughter and expert
psychologist from offering testimony about defendant's limited intellectual capabilities for the
sole purpose of explaining defendant's behaviors and statements. The trial court also abused its
discretion when it precluded defendant from offering the testimony of a toxicologist.
The trial court did not err when it permitted the prosecution to present evidence of prior
overdoses by defendant's children and evidence concerning prior and recent allegations of sexual
abuse against Monique and defendant's experiences with the investigations into the abuse.
However, the trial court erred when it permitted the introduction of detailed evidence concerning
specific acts of physical abuse defendant allegedly committed against her children to show
malice, intent, or absence of mistake or accident. Further, although the trial court correctly
determined that the evidence that defendant had been investigated because of allegations of
physical abuse was relevant to prove motive, the trial court erred when it permitted the
prosecution to present detailed evidence of the specific instances of abuse.
Finally, the trial court did not err when it permitted the admission of Sarmiento's recorded
testimony and did not err when it permitted Virani to offer his opinion about the likelihood that a
child of Monique's age would commit suicide.
Because the identified errors were not harmless, defendant is entitled to a new trial.
Therefore, we reverse defendant's convictions, vacate her sentence, and remand for a new trial
that is consistent with this opinion. We do not retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
/s/ Michael R. Smolenski