People v. Bergman, Docket No. 320975.

• Decision Date: 29 September 2015
• Docket Number: Docket No. 320975.
• Citation: 312 Mich.App. 471,879 N.W.2d 278
• Parties: PEOPLE v. BERGMAN.
• Court: Court of Appeal of Michigan — District of US

312 Mich.App. 471

879 N.W.2d 278

PEOPLE

v.BERGMAN.

Docket No. 320975.

Court of Appeals of Michigan.

Submitted Sept. 1, 2015, at Detroit.

Decided Sept. 29, 2015, at 9:10 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Michael D. Wendling, Prosecuting Attorney, and Hilary B. Georgia, Senior Assistant Prosecuting Attorney, for the people.

Stuart G. Friedman, Southfield, for defendant.

Before: TALBOT, P.J., and WILDER and FORT HOOD, JJ.

WILDER, J.

A jury convicted Lisa Lynne Bergman of two counts each of second-degree murder, MCL 750.317 ; operating a vehicle under the influence of intoxicating liquor or a controlled substance (OUIL) causing death, MCL 257. 625(4); and operating a vehicle with a suspended license causing death, MCL 257.904(4). The trial court sentenced defendant, as a second-offense habitual offender, MCL 769.10, to concurrent prison terms of 25 to 50 years each for the second-degree murder convictions, and 5 to 22 ½ years for each conviction of OUIL and driving with a suspended license. Defendant appeals as of right. We affirm.

I

Defendant's convictions arise from a two-vehicle collision in Kimball Township in St. Clair County shortly before 2:00 a.m. on July 20, 2013. A witness to the scene of the accident testified that there was heavy rain and fog. Defendant was driving a Ford F–350 pickup truck in the eastbound lane of Lapeer Road when she crossed the centerline, veered into the westbound lane, and collided head-on with a GMC Sonoma S–10 pickup truck. Lieutenant Terpenning,¹ an expert in accident reconstruction, testified that there was “no question” in his mind that defendant's vehicle crossed the centerline into oncoming traffic. He did not observe anything to indicate that the S–10 pickup truck did anything improper or did “anything other than driv[e] down its intended lane of travel.” The driver of the GMC truck, Russell Ward, and his passenger, Koby Raymo, both died from blunt traumatic injuries.

Defendant's blood alcohol concentration (BAC) was below the legal limit,² but she also tested positive for carisoprodol (trade name Soma, which is a muscle relaxant and not an opiate), meprobamate (the active metabolite of carisoprodol ), oxycodone, and amphetamine. Although the levels of these drugs in her system were within the therapeutic range,³ Dr. Michele Glinn, an expert in forensic toxicology and the effect of drugs and alcohol on the human body, testified that the drugs, other than amphetamine, were central nervous system depressants and combining them could magnify the effects and keep the drugs in the system longer. Glinn testified that, in particular, alcohol and Soma are a “bad combination.” In Glinn's opinion, the drugs in defendant's system affected her ability to operate a motor vehicle.

At trial, over defendant's objection, the prosecution presented evidence of seven prior incidents in which defendant drove erratically, was passed out in her vehicle, or struck another vehicle while impaired or under the influence of prescription substances, such as carisoprodol or Soma, or was in possession of pills, such as Vicodin or Soma.⁴ This evidence was offered for its relevance to the malice element of second-degree murder because it was probative of defendant's knowledge of how her substance abuse impaired her driving. Glinn opined that the current accident was the only incident in which defendant used alcohol in combination with other drugs.

Before trial, the prosecutor filed notice of its intent to introduce evidence of defendant's prior acts under MRE 404(b). The prosecutor asserted that defendant's prior conduct showed that she knew that consuming drugs and alcohol impaired her ability to safely operate a vehicle, and the evidence was relevant to prove the necessary element of malice for second-degree murder. Defendant moved to exclude evidence of her prior acts and to strike the prosecutor's filing of notice. She argued that the police reports filed with the prosecutor's notice of intent were inadmissible hearsay, and she contended that the filing of these reports would give the media access to unproven charges and deprive her of a fair trial. Defendant further argued that the prior incidents were not admissible under MRE 404(b) because the court rule was intended to apply only to preplanned criminal activity, not to unintentional conduct. Lastly, defendant argued that if the prior incidents were admitted, she would lose her right to have her guilt or innocence determined on the facts of the case. She asserted that a limiting instruction would not be sufficient to prevent any prejudice.

The prosecutor argued that in all of the prior incidents, defendant had carisoprodol, or Soma, and its metabolite, meprobamate, in her system.⁵ In a majority of the cases, defendant had hydrocodone (Vicodin ) in her system. The instant case involved the opiate oxycodone (Oxycontin ). In all but one prior incident, defendant was in possession of various pills, including Soma and Vicodin. The prosecutor argued that these incidents established a pattern of behavior in which defendant ingested controlled substances and drove her vehicle, despite knowing the risk of doing so. The prosecutor also argued that defendant's persistence in this pattern clearly demonstrated a lack of mistake or accident, and showed that she knowingly engaged in behavior that created a high risk of death or serious harm to others. As such, the prosecutor contended, the evidence was relevant to prove the requisite degree of malice for second-degree murder.

At the hearing on this motion, defendant argued that the “gratuitously filed” police reports filed in this matter should be struck. Defendant argued that if the prosecutor was permitted to introduce evidence of the other cases, “we will be fighting ... perhaps up to five simultaneous cases all at the same time in the Circuit Court,” which would result in a “prejudicial effect ... beyond any possible curative jury instruction[.]” Defendant argued that knowledge, accident, and absence of mistake were irrelevant when there was no allegation that defendant committed an intentional act. The trial court denied the defendant's motion, concluding that knowledge and absence of mistake were at issue and the prosecutor had a legitimate purpose in admitting the evidence “to show that this particular Defendant had knowledge of how these particular drugs affect her and how it affects her ability to drive....” The trial court agreed to give a cautionary instruction if requested.

Defendant also moved for appointment of an expert witness at public expense. She argued that the accuracy and interpretation of the State Police laboratory tests were critical issues in the case, and claimed that she would be deprived of a “meaningful defense” unless an independent expert determined the accuracy and relevance of the “purported findings” in the laboratory reports. The cost of an independent examination of each test result was $1,500. A retest of what defendant referred to as “Sample B” was $760. Defendant argued that, at a minimum, she required an expert evaluation of her blood test results on the night of the fatal collision and the Sample B blood draw. She asserted that she was indigent and unable to pay these costs.

The prosecutor argued in response that the prosecutor's endorsement of an expert witness does not automatically entitle an indigent defendant to a court-appointed expert. Defendant also failed to allege any irregularity or deficiency with respect to the State Police Crime Lab's methods or protocols that would establish a genuine need for a defense expert.

At the hearing on this motion, defense counsel stated that he needed an expert to advise him on reviewing the toxicology reports and the “ B sample.” He explained that two samples are taken: the A sample, which is analyzed by the forensic lab, and the B sample, which is reserved for later testing. He asserted that the prosecutor could not reasonably argue that toxicology reports were relevant to the prosecution's case, but not relevant to the defense. The prosecutor responded that defendant's motion did not include arguments about relevance and interpretation of lab results. Rather, defendant's motion was based on reviewing methods and protocols to ensure that the State Police Crime Lab used proper methods, and a defendant is not entitled to an expert merely because the prosecutor relies on an expert, but instead must establish a “sufficient nexus” between appointment of an expert and a potential flaw in the prosecution's expert evidence. Defense counsel replied that he could not determine whether protocols were followed. The trial court stated that the prosecutor was making every effort to provide the “instrumental data” to the defense for review and analysis. The trial court agreed with the prosecutor that defendant had not established a sufficient nexus justifying further testing or duplicate testing to see if the same result would be obtained. The court indicated that it was unwilling to appoint at public expense an expert to duplicate the prosecution's forensic testing, but it did not rule out the appointment of a consultant-type expert to assist in reviewing the existing data and materials from the prosecution.

Also before trial, defendant moved for appointment of an investigator “to interview witnesses who were in a position to observe the defendant prior to and immediately following the collision.” Defendant needed the investigator because defense counsel's attempts to perform an investigation had not yet yielded results. Defendant subsequently withdrew this motion after the trial court granted an adjournment of trial to allow defense counsel more time for preparation.

In another pretrial motion, the prosecutor sought to exclude evidence of the deceased victims' toxicology reports. The prosecutor noted that Ward's toxicology report indicated that he had a BAC of 0.054 grams per 100 milliliters, and 6.2...