People v. Baker, No. 287849 (Mich. App. 3/4/2010)
| Decision Date | 04 March 2010 |
| Docket Number | No. 287849.,287849. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DANNIE RAY BAKER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from Wayne Circuit Court, LC No. 07-023800-FH.
Before: Hoekstra, P.J., and Stephens and M. J. Kelly, JJ.
Defendant appeals as of right his jury trial convictions of negligent homicide, MCL 750.324, operating a motor vehicle while intoxicated causing death, MCL 257.625(4), and operating a motor vehicle while license suspended causing death, MCL 257.904(4). Defendant was sentenced to 16 months to 2 years' imprisonment for the negligent homicide conviction, and to 10 to 15 years' imprisonment for both the operating a motor vehicle while intoxicated causing death conviction and the operating a motor vehicle while license suspended causing death conviction; the sentences to be served concurrently. We affirm defendant's convictions and sentences, but remand for correction of the presentence report.
Defendant argues that the trial court erred in admitting portions of the testimony of Dr. Lokman Sung, the medical examiner, and two photographs portraying the victim in her car because the testimony and photographs were more prejudicial then probative. We disagree. We review a trial court's evidentiary decisions for an abuse of discretion. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008).
When a defendant pleads not guilty, "all elements of a criminal offense are `in issue,'" and "the prosecution may offer all relevant evidence, subject to MRE 403, on every element." People v Mills, 450 Mich 61, 69, 71; 537 NW2d 909 (1995) (emphasis in original). A defendant's offer to stipulate to any element does not relieve the prosecution of its burden to prove the element beyond a reasonable doubt. Id. at 70, 70 n 5. All the crimes with which defendant was charged had the element of causing the death of another person. Therefore, the prosecution was entitled to offer all relevant evidence establishing that the victim died as a result of defendant's actions. Any testimony relating to the circumstances of the victim's death and any photographs showing the victim's body at the accident scene would be relevant and, thus, admissible subject only to MRE 403. MRE 403 provides that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." "Unfair prejudice exists when there is a tendency that the evidence will be given undue or preemptive weight by the jury, or when it would be inequitable to allow use of the evidence." People v Taylor, 252 Mich App 519, 521-522; 652 NW2d 526 (2002).
Defendant claims that any testimony by Dr. Sung that went beyond "a short description of the cause and manner of death" was unfairly prejudicial. Dr. Sung's testimony, detailing the specific injuries that the victim suffered, was not inflammatory, nor was it designed to arouse passions. It was a clinical, unelaborate description of the injuries the victim suffered. Defendant has failed to show how the testimony would be given undue or preemptive weight by the jury. The trial court did not abuse its discretion in admitting the entirety of Dr. Sung's testimony.
Defendant also claims that two photographs of the victim inside her crushed vehicle were unfairly prejudicial. Photographs are not inadmissible simply because a witness can testify about the information contained in the photographs, and a photograph's "[g]ruesomeness alone need not cause exclusion." Mills, 450 Mich at 76. One photograph depicted the victim positioned with her head and left arm sticking out of the vehicle's left side; the victim's face cannot be seen. There is nothing particularly gruesome or graphic about the photograph. The other photograph showed how the rear half of the victim's vehicle was crushed. Although defendant claims that the victim's body can be seen through the passenger door, it is not readily apparent that the victim's body is in the photograph. Defendant has not shown how these two photographs would be given undue or preemptive weight by the jury. The trial court did not abuse its discretion in admitting the photographs.
Defendant next argues that he is entitled to be resentenced because the trial court failed to articulate substantial and compelling reasons for departing from the recommended minimum sentence range under the legislative guidelines. We disagree.
Under the legislative sentencing guidelines, a trial court is required to impose a minimum sentence that falls within the appropriate sentencing range. MCL 769.34(2); People v Buehler, 477 Mich 18, 24; 727 NW2d 127 (2007). A court may depart from the guidelines range if it has a substantial and compelling reason to do so, and it states on the record its reasons for the departure. MCL 769.34(3); Buehler, 477 Mich at 24. A substantial and compelling reason must be objective and verifiable, be of considerable worth, and keenly or irresistibly grab the court's attention. People v Smith, 482 Mich 292, 299; 754 NW2d 284 (2008). Substantial and compelling reasons to depart only exist in exceptional cases. People v Babcock, 469 Mich 247, 258; 666 NW2d 231 (2003).
If a trial court departs from the guidelines range, we "must determine whether the trial court articulated a substantial and compelling reason to justify its departure from that range." MCL 769.34(11); Babcock, 469 Mich at 261-262. We review for clear error the trial court's findings that a particular factor in support of the departure exists. Babcock, 469 Mich at 264. The determination that a particular factor is objective and verifiable is a matter of law and reviewed de novo. Id. We review for an abuse of discretion a trial court's determination that the objective and verifiable factors constitute a substantial and compelling reason to depart. Id. at 264-265.
The minimum sentence range for defendant's convictions for operating a motor vehicle while intoxicated causing death and operating a motor vehicle while license suspended causing death, both class C crimes, MCL 777.12f; MCL 777.12h, was 58 to 114 months. The trial court sentenced defendant to minimum sentences of 120 months, exceeding the guidelines range by only six months. The trial court provided the following explanation for the departure:
First the defendant showed an absolute and reckless disregard for human life and the traffic rules when he drove at the speed he did on Michigan Avenue, on the date in question. Next, the defendant has shown himself to be vague, bordering on untruthful.
And because of his self[-]reported amnesia unrepentant in any meaningful way. The matter of the disregard of human life is serious in this Court's view, because I distinguish purposeful violence from random violence. Purposeful violence in my mind is the attack by a defendant on someone they know. So for example the battering of an ex-spouse by the former partner in the marriage.
The reason that's different from random violence is because there is only an identifiable and intended victim. Random violence, however, involves the totality of people that are in proximity to the wrong[-]doer. And the victim in this case, the death of Marie Barron was a random act against a woman who was simply driving down the street after attending to the needs of her grandchildren.
She having been retired for some years. And was intent upon being involved in her grandchildren's life and in their care. And the third reason that I depart from the guidelines in an upward manner is that Mr. Baker has, by any definition of the term, shown himself to be a scofflaw. Nothing will stop Mr. Baker from driving except the length of incarceration that I impose on him.
He will not obey. And he has not obeyed the traffic laws. He knew he shouldn't be driving. He was driving anyway. So for these three reasons I depart from the guidelines in an upward manner.
The trial court's reasons to depart from the guidelines range can be summarized as follows: (1) defendant had a reckless disregard for human life, which threatened the lives of numerous persons; (2) defendant was vague, and arguably untruthful, when he testified at trial; and (3) defendant is a "scofflaw" and will drive irrespective of any driving prohibitions placed on him. We evaluate each reason to determine whether it is a substantial and compelling reason for departure.
Defendant argues that the trial court's finding that he had a reckless disregard for human life cannot constitute a substantial and compelling reason because the characteristic was already considered by offense variables 9 and 17 in determining the sentence range. A trial court may not base a departure on an offense or offender characteristic already considered in determining the guidelines range unless the court finds that the characteristic was given inadequate or disproportionate weight. MCL 769.34(3)(b); People v Harper, 479 Mich 599, 617; 739 NW2d 523 (2007).
OV 9 addresses the number of victims that were either actually harmed or placed in danger by defendant. MCL 777.39; People v Morson, 471 Mich 248, 261-262; 685 NW2d 203 (2004). The trial court scored OV 9 at 10 points. Ten points is an appropriate score for OV 9 if "[t]here were 2 to 9 victims who were placed in danger of physical injury or death." MCL 777.39(1)(c). OV 17 addresses the degree of the defendant's negligence. MCL 777.47. The trial court scored OV 17 at 10 points, the maximum score allowed, finding that defendant had demonstrated "a wanton or reckless disregard for the life or property of another person." MCL 777.47(1)(a). The trial court never articulated that OV 17 failed to give proportionate weight to defendant's reckless disregard of human life or that...
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