PEOPLE OF MI V KENNETH JOSEPH MAZUREK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 29, 2008
Plaintiff-Appellee,
v
No. 275755
Arenac Circuit Court
LC No. 06-003165-FH
KENNETH JOSEPH MAZUREK,
Defendant-Appellant.
Before: Servitto, P.J. and Cavanagh and Kelly, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of involuntary manslaughter with a
motor vehicle, MCL 750.321. Defendant was sentenced as a third habitual offender, MCL
769.11, to a prison term of 171 months to 30 years. Because the exclusion of defense witnesses
was harmless error, there was no prosecutorial misconduct, and defendant was properly
sentenced within the appropriately scored sentencing guidelines, we affirm.
Defendant’s conviction arises from a single car accident in which Scott Pickvett, a
passenger in defendant’s vehicle, was killed. The accident occurred at approximately midnight
on February 12, 2006. According to witnesses, defendant attended a party earlier that night and
was drinking beer both at the party and while driving to the party. After the party, defendant
went to a bar where he had a mixed drink. Defendant left the bar with Pickvett and Stacey
Bouckaert. According to Bouckaert, after leaving the bar, defendant began driving crazy,
swerving in and out of lanes and driving very fast. She became very scared and repeatedly
begged defendant to let her drive. Another motorist, Scott Hidden, testified that defendant
passed in front of his stopped vehicle at a high rate of speed before losing control and flipping
over 2-1/2 times. Hidden estimated that defendant was traveling 65 to 70 mph in a 35-mph zone.
An accident reconstructionist believed that defendant was traveling approximately 69 mph when
he lost control and opined that the cause of the accident was excessive speed and possible
alcohol usage. Defendant left the scene after the accident.
Defendant testified that he had consumed only one beer and part of a mixed drink before
the accident, and denied being intoxicated. He claimed that he lost control of the vehicle because
of icy road conditions and because Pickvett grabbed the steering wheel. He testified that he did
not remember getting out of the car and leaving the accident scene because he sustained a head
injury. His next recollection after the accident was waking up at the home of a friend, Richard
Mendoza.
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I. Exclusion of Defense Witnesses
Defendant first argues that the trial court erred by preventing him from calling several
defense witnesses who would have testified concerning his post-accident injuries and state of
mind, thereby denying him his constitutional right to present a defense and to compulsory
process. The trial court determined that evidence of post-accident events was not relevant and,
therefore, barred defendant from calling the proposed witnesses.
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. People v McGhee, 268 Mich App 600, 636; 709 NW2d 595 (2005).
A defendant has a constitutional right to present a defense and call witnesses. People v
Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006); People v Hayes, 421 Mich 271, 278-279;
364 NW2d 635 (1984); People v McFall, 224 Mich App 403, 407; 569 NW2d 828 (1997). But
this right is not absolute, and the accused must still comply with established rules of procedure
and evidence. Hayes, supra at 279. All relevant evidence is generally admissible, and evidence
which is not relevant is not admissible. MRE 402. In People v Sabin (After Remand), 463 Mich
43, 56-57; 614 NW 2d 888 (2000), our Supreme Court discussed the concept of relevancy:
MRE 401 defines relevant evidence as 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.
Relevant evidence thus is evidence that is material (related to any fact that is of
consequence to the action) and has probative force (any tendency to make the
existence of a fact of consequence more or less probable than it would be without
the evidence). Materiality, however, does not mean that the evidence must be
directed at an element of a crime or an applicable defense. A material fact is one
that is in issue in the sense that it is within the range of litigated matters in
controversy. [Citations and quotations omitted.]
In other words, evidence is admissible if it is helpful in shedding light on any material point.
People v Aldrich, 246 Mich App 101, 114; 631 NW2d 67 (2001).
In this case, the principal issue for the jury to decide was whether defendant operated his
vehicle in a grossly negligent manner, thereby causing Pickvett’s death. The prosecutor argued
that defendant was grossly negligent because he drove his vehicle recklessly and at an excessive
speed, and because he was under the influence of alcohol. At trial, the prosecutor introduced
evidence that defendant left the accident scene, and suggested that this was evidence that
defendant realized that he had done something wrong or knew that he was intoxicated.
Conversely, defendant denied leaving the accident scene because of some consciousness of guilt,
and instead claimed that he sustained a head injury, lost consciousness, and somehow ended up
at a friend’s house. The trial court later instructed the jury on flight, explaining that a person
may run away or hide after an alleged crime for innocent reasons or because of a consciousness
of guilt, and that it was up to the jury to decide this issue.
Considering the parties’ theories, arguments, and instructions, we conclude that the
reason why defendant left the accident scene was a fact of consequence to the action. The
testimony of defendant’s proposed witnesses was probative of that issue and, therefore, relevant.
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Accordingly, the trial court abused its discretion by precluding defendant from calling witnesses
to offer testimony concerning defendant’s physical condition and state of mind after the accident.
We conclude, however, that the error was harmless. When a constitutional error is
preserved, a new trial is required unless it is clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error. People v Bauder, 269 Mich App 174,
179; 712 NW2d 506 (2005).
Although defendant was not allowed to call witnesses to testify regarding his postaccident condition, defendant testified at trial that he suffered a head injury and did not
remember leaving the accident scene. Thus, evidence of this alternative explanation for why
defendant left the scene was presented to the jury. Ultimately, however, the jury was not
required to determine defendant’s reasons for leaving the scene. Rather, it was required to
determine whether defendant operated his vehicle in a grossly negligent manner, causing
Pickvett’s death. The evidence of defendant’s gross negligence was overwhelming. That
defendant was driving recklessly and substantially in excess of the speed limit was supported by
the testimony of Bouckaert, a passenger in defendant’s car, and Hidden, another motorist who
witnessed the accident, and their testimony was in turn supported by the testimony of an accident
reconstructionist. Additionally, another witness testified that defendant was drinking beer that
whole night while at a party, and also while driving to the party, and an empty beer box and
several empty beer cans were found in and alongside defendant’s vehicle after the accident.
Defendant testified that he had consumed a couple of drinks prior to the accident and was driving
over the speed limit. None of defendant’s proposed witnesses had any personal knowledge of
the circumstances of the accident or the events leading up to the accident. Under these
circumstances, we are persuaded beyond a reasonable doubt that the jury’s verdict would have
been the same even if defendant had presented witnesses who could have confirmed that
defendant appeared disoriented from an apparent head injury after the accident. Therefore,
reversal is not required.
II. Prosecutorial Misconduct
Defendant raises several claims of prosecutorial misconduct. Questions of misconduct by
the prosecutor are decided case by case. This Court examines the pertinent portion of the record
and evaluates the prosecutor’s remarks in context to determine whether the defendant was denied
a fair and impartial trial. People v Legrone, 205 Mich App 77, 82-83; 517 NW2d 270 (1994).
Unpreserved claims of misconduct are reviewed for plain error affecting substantial rights.
People v Barber, 255 Mich App 288, 296; 659 NW2d 674 (2003).
The prosecutor’s questioning of Bouckaert and Hidden with regard to whether defendant
was driving in a manner that disregarded the safety of others was not improper. Their opinion
testimony was permissible under MRE 701, which allows opinion testimony from lay witnesses
if it is rationally based on their perceptions and is helpful to a clear understanding of a fact in
issue. People v Daniel, 207 Mich App 47, 57; 523 NW2d 830 (1994).
Next, the prosecutor did not violate People v Johnson, 54 Mich App 678, 680; 221 NW2d
452 (1974), in which this Court held that a prosecutor may not interrogate a defendant about the
collateral facts comprising a prior conviction that the defendant has acknowledged on direct
examination. Defendant testified on direct examination that he had a prior “conviction” for “B &
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E and a home invasion.” The prosecutor merely clarified on cross-examination that this involved
two separate felony convictions. Further, because the prior convictions were a matter of
evidence, the prosecutor properly could comment on them in closing argument and argue that
defendant was not worthy of belief. People v Dobek, 274 Mich App 58, 67; 732 NW2d 546
(2007).
Defendant also argues that the prosecutor improperly asked him to comment on the
credibility of other prosecution witnesses. There was, however, no objection to the prosecutor’s
examination at trial. Moreover, viewed in context, the prosecutor was merely seeking to
ascertain which facts were in dispute, which is proper. People v Ackerman, 257 Mich App 434,
449; 669 NW2d 818 (2003). Thus, there was no plain error.
The prosecutor did not misstate the testimony of Pierson and Bouckaert by stating that
Pierson testified that defendant was pounding down beers and drinking the whole time at the
party, and that Bouckaert testified that it was obvious that defendant was drunk. At trial, Pierson
testified that defendant was drinking beers while driving to the party and then the “whole night”
while at the party. Bouckaert similarly testified that defendant was drinking that night and that
she told the police that defendant had consumed alcohol and she knew that he should not be
driving. The prosecutor’s remarks were properly based on the evidence and reasonable
inferences from the evidence. People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001).
Further, the prosecutor did not improperly denigrate defense counsel by asking the jury in
his rebuttal closing argument to disregard defendant’s close friendship with the decedent, and by
characterizing defense counsel’s “friendship argument” as a red herring designed to distract the
jury from the actual issue in the case. The prosecutor’s remarks were responsive to an issue that
defense counsel raised in his closing argument, and were intended to keep the jury focused on
the issues the jury was required to decide. There was no plain error. Id. at 592-593.
Next, we find no merit to defendant’s argument that the prosecutor made an improper
comment concerning disposition or punishment. See People v Goad, 421 Mich 20, 25; 364
NW2d 584 (1984). The prosecutor merely referred to the jury’s option of finding defendant
guilty of the lesser offense of negligent homicide and asked the jury to find defendant guilty of
the greater charged offense. There was no plain error.
Lastly, we reject defendant’s argument that the prosecutor improperly shifted the burden
of proof by commenting on defendant’s failure to provide evidence corroborating his testimony
that he suffered a head injury in the accident. We agree that the prosecutor should have avoided
such an argument in this case considering that defendant was precluded from presenting
witnesses who could have given testimony supportive of his claim of a head injury; nonetheless,
there was no objection. Defendant has not established that his substantial rights were affected by
the prosecutor’s argument, where the evidence supporting the verdict was overwhelming.
Barber, supra at 296.
III. Sentencing
Defendant challenges the trial court’s scoring of offense variables 3 and 18 of the
sentencing guidelines. The trial court's scoring of the sentencing guidelines will be upheld if
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there is any evidence in the record to support it. People v Hornsby, 251 Mich App 462, 468; 650
NW2d 700 (2002).
The trial court scored 50 points for OV 3, which is proper where the victim was killed,
the offense involves the operation of a vehicle, and the offender was under the influence of or
visibly impaired by the use of alcoholic liquor. MCL 777.33(2)(c)(i). The court also scored ten
points for OV 18, which is proper where the offender operated a vehicle while under the
influence of alcoholic or intoxicating liquor. MCL 777.48(1)(c).
Contrary to what defendant argues, the testimony at trial describing defendant’s
consumption of beer and alcohol and erratic driving on the night of the offense provided ample
support for the trial court’s scoring of OV 3 and OV 18.
Finally, after reviewing the record, we conclude that the trial court did not impermissibly
consider defendant’s failure to admit guilt when imposing sentence. Dobek, supra at 104. The
challenged comments were responsive to remarks made earlier by defendant, defense counsel,
the prosecutor, and the decedent’s mother concerning whether defendant had accepted
responsibility for his conduct. Viewed in context, the court’s remarks do not reflect an intention
to enhance defendant’s sentence because of a refusal to admit guilt.
Affirmed.
/s/ Deborah A. Servitto
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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