PEOPLE OF MI V MARTY ALAN FRENCH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 4, 2003
Plaintiff-Appellant,
v
No. 242564
Allegan Circuit Court
LC No. 01-012287-FH
MARTY ALAN FRENCH,
Defendant-Appellee.
Before: Griffin, P.J., and Neff and Murray, JJ.
GRIFFIN, P.J. (dissenting).
I respectfully dissent. I would reverse the circuit court and hold that the district court did
not clearly abuse its discretion in finding that the prosecutor presented sufficient evidence
constituting probable cause to believe that a felony was committed and that defendant committed
it. MCL 766.113; MCR 6.110(E).
At the outset, it must be noted that because a preliminary examination is a probable cause
hearing and not a trial on the merits, minimal evidence establishing probable cause is sufficient
evidence to support a bindover. See People v Doss, 406 Mich 90, 100-101; 276 NW2d 9 (1979).
Further, in accessing whether the district court abused its discretion in binding a defendant over,
we are guided by the following well-established principles:
Circumstantial evidence, coupled with those inferences arising therefrom,
is sufficient to establish probable cause to believe that the defendant committed a
felony. People v Terry, 224 Mich App 447, 451; 569 NW2d 641 (1997).
Although the district court should consider the weight of the evidence and the
credibility of the witnesses in determining whether to bind the defendant over for
trial, People v Neal, 201 Mich App 650, 655; 506 NW2d 618 (1993), it may not
usurp the role of the jury. People v Laws, 218 Mich App 447, 452; 554 NW2d
586 (1996). Competent evidence that both supports and negates an inference that
the defendant committed the crime charged raises a factual question that the
district court must leave to the jury. Neal, supra at 655. [People v Northey, 231
Mich App 568, 575; 591 NW2d 227 (1998).]
In my view, the prosecutor sustained his burden of establishing probable cause at the
preliminary examination hearing. In this regard, the only medical expert to testify was Kent
County Deputy Chief Medical Examiner Stephen Cohle, M.D. After being qualified as an expert
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witness, Dr. Cohle expressed his expert opinion that the deceased child lived for four days after
birth:
Q. The child did live for four years – four days after the C-section, is that
correct?
A. That’s right.
Consistent with his medical examiner’s report, which indicates a date of accident of
January 3, 2001, and a date of death of January 7, 2001, Dr. Cohle also testified, “[t]he child was
delivered by cesarean section about four days before death following the fact that the mother
was involved in a motor vehicle crash.” (Emphasis added.)
The above testimony by Dr. Cohle is admissible evidence as an opinion by an expert
witness, MRE 702, MRE 704.1 Nevertheless, defendant and the majority argue that Dr. Cohle’s
expert opinion should be disregarded because it is contrary to undisputed facts. First, there was
no objection to Dr. Cohle’s testimony on the basis of lack of foundation and accordingly, the
issue is not preserved. MRE 103(a)(1). Second and most importantly, the underlying evidence
that supports or refutes Dr. Cohle’s opinion is incomplete and certainly not beyond dispute.
Because Dr. Cohle was not the treating physician and never examined the child, his testimony
and report were based on hearsay and his limited review of some of the medical records:
Q. So your review of is only limited to the paper records in this matter?
A. Well, that and speaking with Dr. Beaumont and Judy Miller [the
ambulance operator].
While the majority speculates that an Apgar test may have been performed immediately
after the cesarean section and may have revealed no brain activity, Dr. Cohle testified that he did
not review the Apgar testing results and therefore did not know the child’s Apgar scores:
Q. . . . And now your report that you’ve initialed has a statement saying
the child never had brain activity. Do you have other documentation as to when
that brain activity was first looked for?
A. No, I don’t. The usual, I can say this in a general sense that if that as
soon as a child is delivered, whether it is by cesarean section or with a vaginal
delivery, that the child is checked. There is a procedure or a test called an Apgar,
A-p-g-a-r test. And this tests five different functions of the baby, alertness,
response to pain, heart rate, respirations. That’s four. There’s another one I don’t
1
MRE 704 provides:
Testimony in the form of an opinion or inference otherwise admissible is
not objectionable because it embraces an ultimate issue to be decided by the trier
of fact.
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remember right now, but each of these – and there is a score that is given. And if
all those functions are fully intact, in other words if the baby is jiggled a little bit
and screams, then that’s good. And if all of those things are intact, the maximal
score is two points per item on the test and ten is the maximum score. They check
that at one and at five minutes after the baby is delivered. What I’m reading here,
and I did not review those records, but it implies to me that the Apgar scores were
probably zero and zero at one and five minutes and the child was on life support,
but I don’t know that for a direct fact. But that’s what it implies. (Emphasis
added.)
Further, when asked what results an ultrasound showed, Dr. Cohle admitted that he had
not read all of the medical records:
Q. Would that normally be recorded in writing? Would that normally be–
A. Oh, yes.
Q. – an observation that we could look at the medical report and see
whether they made that observation or not?
A. Yes, and again I didn’t read all the records. Most of my information
was talking with Dr. Beaumont. [Emphasis added.]
From the following testimony it can be inferred that the child showed signs of life
following his delivery on January 3, 2001, and prior to being pronounced dead on January 7,
2001:
Q. Now the date of the death is listed as January 7th.
A. Yes, I’m sure that’s true.
Q. Now is that the date that this infant had no viable brain waves that you
were referring to as being clinically dead I believe?
A. Well, yes, certainly – what I’m looking at in my report, the child was
pronounced dead at 12:10 p.m. on January 7th. Obviously the brain testing would
have been conducted prior to that whether there was some degree of brain wave
testing done on January 6th I don’t know for sure. I just know that on that date on
the 7th that the child was found to have no brain activity, and apparently never did
have any brain activity from the time of the –
Q. Do your records reflect what date that brain activity was tested?
A. Well, I don’t have that kind of specificity. All I know is that the
obviously the brain activity would have to be determined to be absent prior to
withdrawal of life support. Generally there is a period of hours, sometimes
longer depending on the case. But there are multiple tests at different times of
brain activity. And these all have to be consistently negative before the child is
pronounced dead.
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Q. And who would have made those tests? Dr. Beaumont?
A. Well he would have at least overseen them. I don’t know if he
personally performed them, but he at least would have reviewed them and been in
charge of them.
In summary, it was Dr. Cohle’s clear and unequivocal opinion on direct examination that
the child was born alive and lived for four days before he died. In view of this direct evidence,
the majority and the circuit court err by concluding that the prosecutor was required to prove a
negative: “that a point existed where the child was not brain dead.” (Emphasis added.) While
the underlying facts2 may or may not support Dr. Cohle’s opinion that the child was born alive,
based on the scant evidence contained in the record, I disagree that uncontroverted facts mandate
the opposite conclusion.
In my view, the unobjected-to expert opinion by Dr. Cohle regarding a live birth and the
date of death provides the minimal evidence necessary to support the bindover. No clear abuse
of discretion has been demonstrated. Doss, supra; People v Dellabonda, 265 Mich 486, 491;
251 NW 594 (1933). In this respect, our case is similar to People v Selwa, 214 Mich App 451;
543 NW2d 321 (1995), where our Court stated:
We acknowledge the extreme difficulty in the present case in deciding
whether the defendant should have been bound over for trial. Of course, at trial,
the prosecutor will be required to prove beyond a reasonable doubt that the child
was born alive and was thus a "person" under the negligent homicide statute.
However, at this stage in the proceedings, that is not required. It is unnecessary
for us to articulate exactly what evidence suffices to demonstrate that one has
been "born alive." Evidence has been presented to support the position of both
parties. It is not the function of the district court to discharge the accused when
the evidence is conflicting or raises a reasonable doubt with regard to guilt. Such
questions are for the trier of fact. People v Flowers, 191 Mich App 169, 179; 477
NW2d 473 (1991); People v Hill, 433 Mich 464, 469; 446 NW2d 140 (1989). The
prosecutor has shown some reasonable evidence supporting the element of "death
of another [person]." Thus, the district court did not abuse its discretion in
binding defendant over for trial and the circuit court erred in quashing the
information.
I would reverse the circuit court and remand for further proceedings.
/s/ Richard Allen Griffin
2
MRE 705 provides:
The expert may testify in terms of opinion or inference and give reasons
therefore without prior disclosure of the underlying facts or data, unless the court
requires otherwise. The expert may in any event be required to disclose the
underlying facts or data on cross-examination.
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