749 N.W.2d 272 (Mich.App. 2008), 272591, People v. Unger

Docket Nº:Docket No. 272591.
Citation:749 N.W.2d 272, 278 Mich.App. 210
Opinion Judge:JANSEN , J.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Steven UNGER, Defendant-Appellant.
Judge Panel:Before: WHITBECK , P.J., and JANSEN and DAVIS , JJ.
Case Date:March 20, 2008
Court:Court of Appeals of Michigan

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749 N.W.2d 272 (Mich.App. 2008)

278 Mich.App. 210

PEOPLE of the State of Michigan, Plaintiff-Appellee,


Mark Steven UNGER, Defendant-Appellant.

Docket No. 272591.

Court of Appeals of Michigan.

March 20, 2008

Submitted March 11, 2008, at Lansing.

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Michael A. Cox, Attorney General, Thomas L. Casey , Solicitor General, and Mark G. Sands, Assistant Attorney General, for the people.

Matthew Posner and Mark S. Unger in propria persona.

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Before: WHITBECK , P.J., and JANSEN and DAVIS , JJ.


[278 Mich.App. 213] Defendant appeals as of right his jury-trial conviction of first-degree premeditated murder, MCL 750.316 (1)(a), for which he was sentenced to life in prison without parole. We affirm.


Defendant was the husband of Florence Unger (also referred to as the victim). Defendant entered residential rehabilitation in late 2002 for alleged prescription drug and gambling addictions. After completing rehabilitation, however, defendant did not return to work. Florence Unger filed for divorce in August 2003.

Notwithstanding the pending divorce proceedings, defendant traveled to the Watervale resort area on Lower Herring Lake with his wife and two children on October 24, 2003. The family arrived sometime in the afternoon and settled into the cottage that they had rented for the weekend. Not far from the cottage was a boathouse. On the roof of the boathouse was a wooden deck, where vacationers at Watervale often congregated. However, there were no other vacationers staying at Watervale on October 24, 2003.

Defendant was on the deck with the victim on the evening of October 24, 2003. Defendant told the police and several family friends that sometime after dark, the victim had asked him to go back to the cottage and check on the two children. Defendant explained that he walked back to the cottage, put the children to bed, and returned to the deck. Defendant told the police and several friends that the victim was not on the deck when he returned, but that he presumed that she had gone to speak with one of the neighbors. Defendant maintained that he then returned to the cottage and fell [278 Mich.App. 214] asleep watching a movie.1

The following morning, defendant called neighbors Linn and Maggie Duncan. Defendant informed the Duncans that Florence had never returned to the cottage on the previous night. The Duncans got dressed and went outside to help defendant search for his wife. Linn and Maggie Duncan went toward the boathouse and discovered Florence Unger dead in the shallow water of Lower Herring Lake. It appeared that she had fallen from the boathouse deck. After finding the body, Linn Duncan came up from the boathouse and walked toward the cottages. Duncan met up with defendant in front of the cottages. According to Duncan, “I touched [defendant] on the chest" and said, “Mark, you're not going to like it. She is in the water." Duncan testified that defendant then “went ballistic," started “crying and screaming and hollering," and “went diagonally down to the water and jumped right in, right next to [the victim's body]." Duncan testified that it was not possible to see the victim's body from the location where he had met defendant because the view of the lake was blocked by bushes and trees. Duncan also testified that he had not given defendant any information whatsoever about the precise location of the victim's body.

Maggie Duncan called 911 and the police arrived at the scene. About 12 feet below the surface of the rooftop deck, an area of concrete pavement extends from the boathouse wall to the edge of Lower Herring Lake. The police observed a large bloodstain on the concrete pavement. Also found on the concrete pavement were one of the victim's earrings, one or two candles,

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a broken glass candleholder, and a blue blanket. There [278 Mich.App. 215] was no trail of blood between the bloodstain on the concrete and the edge of the lake. The railing surrounding the rooftop deck was noticeably damaged and was bowed out toward the lake.

Upon arriving at the cottage, the police noticed that defendant had already packed his vehicle and seemed eager to leave Watervale with his two sons. The police obtained a warrant to search the vehicle and the interior of the cottage. Among other things, the police recovered a pair of men's shoes from the vehicle. On one of the shoes was a white paint smear. The white paint was tested and was found to be chemically consistent with the white paint on the railing of the boathouse deck.

Defendant was arrested and charged with first-degree premeditated murder. At the preliminary examination, Dr. Stephen D. Cohle 2 testified that the victim had died of traumatic brain injuries sustained upon impact with the concrete pavement. In contrast, Dr. Ljubisa J. Dragovic 3 opined that the victim had not died from head injuries sustained upon impact with the concrete, but had drowned after being dragged or moved into Lower Herring Lake. The district court excluded Dr. Dragovic's opinion testimony and determined that there was no admissible evidence of premeditation. Defendant was therefore bound over for trial on a charge of second-degree murder.

Unlike the district court, the circuit court ruled that Dr. Dragovic's expert testimony was admissible. Accordingly, the circuit court allowed the prosecution to [278 Mich.App. 216] amend the information and to reinstate the charge of first-degree premeditated murder. The case proceeded to trial. The prosecution argued that defendant had kicked or pushed the victim over the railing, and had then moved the victim from the concrete pavement into the lake in an effort to drown her. The prosecution relied heavily on the testimony of Dr. Dragovic and other expert witnesses. In response, the defense maintained that the victim's death had been accidental and that the victim had died of traumatic brain injuries nearly immediately upon striking the concrete. The defense presented expert testimony to support its theory that the victim had accidentally fallen over the railing and had rolled, bounced, or otherwise inadvertently moved into the lake. After an extensive trial, the jury convicted defendant of first-degree premeditated murder. He was sentenced to life in prison without parole.


Defendant first argues that the circuit court erred by conducting a supplemental evidentiary hearing regarding the admissibility of Dr. Dragovic's expert testimony and by ruling that Dr. Dragovic's testimony was admissible pursuant to MRE 702 . We disagree.

Defendant preserved these issues by objecting to the circuit court's supplemental evidentiary hearing and by filing a proper motion to exclude Dr. Dragovic's testimony from trial. Preserved evidentiary rulings are reviewed for an abuse of discretion. People v. Hine, 467 Mich. 242, 250, 650 N.W.2d 659 (2002) . “[T]he determination regarding the qualification of an expert and the admissibility of expert testimony is within the trial court's

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discretion." People v. Murray, 234 Mich.App. 46, 52, 593 N.W.2d 690 (1999) . Similarly, a trial court's [278 Mich.App. 217] decision whether to hold an evidentiary hearing is reviewed for an abuse of discretion. See People v. Mischley, 164 Mich.App. 478, 481-482, 417 N.W.2d 537 (1987) . An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes. People v. Babcock, 469 Mich. 247, 269, 666 N.W.2d 231 (2003) .

Under Michigan evidentiary law, which incorporates the requirements of the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ,4 the proponent of expert testimony must establish that the testimony is reliable by showing that it “is based on sufficient facts or data," that it “is the product of reliable principles and methods," and that the proposed expert witness “has applied the principles and methods reliably to the facts of the case." MRE 702 . Pursuant to Daubert and MRE 702 , “the trial court's role as gatekeeper does not require it to search for absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes." Chapin v. A & L Parts, Inc., 274 Mich.App. 122, 127, 732 N.W.2d 578 (2007) (opinion by Davis, J.). Instead, the proper role of the trial court is

to filter out expert evidence that is unreliable, not to admit only evidence that is unassailable. The inquiry is not into whether an expert's opinion is necessarily correct or universally accepted. The inquiry is into whether the opinion is rationally derived from a sound foundation. [Id. at 139, 732 N.W.2d 578.]

See also Nelson v. American Sterilizer Co. (On Remand), 223 Mich.App. 485, 491-492, 566 N.W.2d 671 (1997) . The standard focuses on the scientific validity of the expert's methods rather than on the correctness or soundness of [278 Mich.App. 218] the expert's particular proposed testimony. Daubert, supra at 589-590, 113 S.Ct. 2786. An expert's opinion is admissible if it is based on the “methods and procedures of science" rather than “subjective belief or unsupported speculation." Id. at 590, 113 S.Ct. 2786.

As defendant correctly observes in his brief on appeal, the district court conducted an evidentiary hearing pursuant to Daubert at the time of the preliminary examination and concluded that Dr. Dragovic's testimony concerning the cause of Florence Unger's death was not admissible. However, the circuit court-and not the district court-was the trial court in this case. Therefore, it was within the circuit...

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