People v. Dixon-Bey

• Decision Date: 26 September 2017
• Docket Number: No. 331499,331499
• Citation: 909 N.W.2d 458,321 Mich.App. 490
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dawn Marie DIXON-BEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

321 Mich.App. 490

909 N.W.2d 458

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Dawn Marie DIXON-BEY, Defendant-Appellant.

No. 331499

Court of Appeals of Michigan.

Submitted June 8, 2017, at Lansing.

September 26, 2017, 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jerard M. Jarzynka, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

Strauss & Strauss, PLLC (by Gary David Strauss ) for defendant.

Before: O'Brien, P.J., and Hoekstra and Boonstra, JJ.

O'Brien, P.J.Defendant, Dawn Marie Dixon-Bey, was arrested after admittedly stabbing her boyfriend, Gregory Stack (the victim), to death in their home on February 14, 2015. At first, she claimed that the victim must have been stabbed during an altercation with others before returning to their home. Later, however, defendant admitted that she was the person who stabbed the victim but claimed that she had only done so in self-defense. She was subsequently charged with first-degree murder, MCL 750.316, and, after an eight-day jury trial, was found guilty of second-degree murder, MCL 750.317. She was sentenced to 35 to 70 years in prison and appeals as of right. On appeal, defendant argues that she was deprived of her constitutional right to a fair trial, that the trial court abused its discretion by admitting evidence about defendant's attempts to prevent the victim's daughter from having custody of her half-sister (the biological daughter of the victim and defendant), that she was deprived of her constitutional right to the effective assistance of counsel, that the trial court abused its discretion by admitting evidence about a previous occasion on which she had stabbed the victim, and that resentencing is required because the trial court unreasonably departed from the advisory minimum sentence guidelines range. For the reasons set forth in this opinion, we affirm defendant's conviction but vacate her sentence and remand for resentencing.

As indicated, defendant argues on appeal, in part, that she was deprived of her constitutional right to a fair trial. Generally, she takes issue with the trial court's decision to qualify Detective Gary Schuette as an expert in interpreting evidence at a homicide scene. Specifically, she argues that she was deprived of her constitutional right to a fair trial because the trial court erroneously permitted Detective Schuette "to essentially tell the jury that [defendant]'s claim of self-defense was a sham based on his expertise." Defendant asserts that Detective Schuette was not permitted to offer that opinion because he "was not qualified as an expert in behavioral science with regard to how people engaged in self-defense are expected to act," because "his small sampling from personal experience would not support a peer-based review of experts," because his "testimony was speculative," and because the testimony "foreclosed any possibility that the jury would believe that Dawn acted in self-defense." While we agree with defendant's position that the admission of some of Detective Schuette's testimony was erroneous, we do not agree that reversal is required because defendant has not demonstrated that the admission of the testimony was outcome-determinative.

"This Court reviews for an abuse of discretion a trial court's decision to admit or exclude expert witness testimony. This Court also reviews for an abuse of discretion a trial court's decision on an expert's qualifications." People v. Steele , 283 Mich.App. 472, 480, 769 N.W.2d 256 (2009) (citations omitted). "A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes." People v. Young , 276 Mich.App. 446, 448, 740 N.W.2d 347 (2007). "Questions whether a defendant was denied a fair trial, or deprived of his liberty without due process of law, are reviewed de novo." Steele , 283 Mich.App. at 478, 769 N.W.2d 256. A trial court's interpretation and application of a court rule, like a statute, is reviewed de novo. People v. Valeck , 223 Mich.App. 48, 50, 566 N.W.2d 26 (1997).

At issue in this case are MRE 701 and 702, which govern the admissibility of opinion testimony. MRE 701 governs the admissibility of opinion testimony by lay witnesses:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

MRE 702 governs the admissibility of expert testimony:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

As this Court has recognized before, the interplay between MRE 701 and MRE 702 is somewhat unclear when a police officer provides testimony based on his or her training and experience. See People v. Dobek , 274 Mich.App. 58, 77, 732 N.W.2d 546 (2007) ("The caselaw on this issue is not entirely clear."). In Dobek , the prosecution offered the testimony of a police officer, Bruce Leach, "regarding delayed disclosure" in sexual-assault cases "as simply a police officer giving lay testimony based on his training and experience without ... being first qualified as an expert, while suggesting to the jury that Leach was an expert on the subject." Id . at 76, 732 N.W.2d 546. The trial court ruled that the testimony was admissible as lay testimony and instructed the jury as such. Id . at 76–77, 732 N.W.2d 546. On appeal, defendant challenged this ruling, arguing that this testimony required that the police officer be qualified as an expert. Id . at 76, 732 N.W.2d 546.

This Court analyzed the issue as follows:

Because Leach was testifying about delayed disclosure on the basis of his knowledge, experience, and training, it would appear that his testimony constituted expert opinion testimony and not lay opinion testimony under MRE 701, which is limited to opinions or inferences that are "rationally based on the perception of the witness" and that are "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." The caselaw on this issue is not entirely clear. For example, in Chastain v. Gen. Motors Corp. (On Remand) , 254 Mich.App. 576, 657 N.W.2d 804 (2002), the trial court permitted a police officer to give lay opinion testimony under MRE 701 that the plaintiff was not wearing his seatbelt. This Court affirmed, rejecting the plaintiff's claims that the trial court should not have admitted evidence under MRE 701, that expert testimony under MRE 702 was necessary, and that the officer was not qualified to give an expert opinion on the issue. The Chastain panel held that the lay opinion was not admitted in error because the testimony was based on the officer's perceptions at the scene of the accident and because the opinion was not based on his past experience in investigating car accidents. Chastain , [254 Mich.App.] at 586–590 . The Court stated, "A careful examination of [the officer's] testimony establishes that although his opinion in this case was consistent with conclusions he had drawn in other cases he had investigated, his past experience did not form the basis of his opinion." Id . at 590 . Here, Leach's testimony on delayed disclosure was drawn from his past experiences and training.

In Co-Jo, Inc. v. Strand , 226 Mich.App. 108, 572 N.W.2d 251 (1997), the plaintiffs argued that an off-duty fireman's opinion testimony regarding the speed at which a building burned was improperly admitted as lay opinion testimony under MRE 701 because expert testimony was required and the fireman was not qualified as an expert. This Court held that the trial court did not abuse its discretion in admitting the opinion evidence regarding the speed and intensity of the fire. Co-Jo , [226 Mich.App.] at 117 . The Co-Jo panel stated:

[The fireman's] conclusions were based on observation of the fire for over thirty minutes. The opinion testimony was limited to describing the fire in relation to other building fires [the fireman] had witnessed. The reliability of his conclusions was premised on his extensive experience in observing other building fires and investigating their causes. The testimony was of a general nature, without any reference to technical comparison of scientific analysis. [ Id . ]

Under Co-Jo , it could be reasonably argued that Leach's testimony was acceptable lay opinion testimony. Co-Jo appears to be at odds with Chastain . We, however, do not need to resolve the issue, and the apparent conflict in the caselaw gives credence to a conclusion that the prosecutor did not pursue the challenged questioning in bad faith. Assuming that expert testimony was required, Leach was more than qualified to give an expert opinion on delayed disclosure to the extent of the testimony actually presented. He testified at length about his extensive knowledge, experience, training, and education concerning the sexual abuse of children. Leach has personally participated in the investigation of hundreds of criminal sexual conduct cases involving child victims. And he had received training in the investigation of cases involving delayed disclosure. With his background and experience in investigating child sex abuse cases and interviewing victims, Leach became knowledgeable regarding delayed disclosure, and, according to Leach, delayed disclosure is common and happens quite frequently with

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