Michigan Court Of Appeals Affirms OUIL Causing Death, Second-Degree Murder Convictions

On September 29, 2015, the Michigan Court of Appeals affirmed a woman's convictions that included charges of operating under the influence of liquor (OUIL) and second-degree murder. The convictions arose from the woman's operating a motor vehicle under the influence of alcohol and controlled substances that led to her causing a car crash in which she killed two other drivers.

In People v Bergman, Docket No. 320975, the Michigan Court of Appeals addressed a number of issues relating to defendant's convictions, including:

  1. whether the trial court erred in excluding evidence of alcohol and controlled substances in the blood of the victim operating one of the motor vehicles involved in the crash;
  2. whether the trial court erred in denying defendant's request for an expert witness in toxicology at public expense; and
  3. whether defendant's convictions violate the Double Jeopardy clauses of the United States and Michigan Constitutions.

The Court first recited the facts of the case:

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 center line, 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 center line 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. Dr. Glinn testified that, in particular, alcohol and Soma are a “bad combination.” In Dr. 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. Dr. 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 pursuant to 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 pre-planned 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.

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 nanograms per milliliter of Delta-9 THC and 17 nanograms per milliliter of Delta-9 Carboxy THC in his blood stream. His passenger, Koby Raymo, had a BAC of 0.110 grams per 100 milliliters, and also 7.5 nanograms per milliliter of Delta-9 THC and 10 nanograms per milliliter of Delta-9 carboxy THC in his bloodstream. The prosecutor argued that this evidence should be excluded because it was not relevant and it was unduly prejudicial. Raymo’s toxicology results were irrelevant because he was a passenger and could not have contributed to the accident. Ward’s toxicology results were irrelevant because the evidence clearly established that defendant crossed the center line and struck Ward’s vehicle head-on, with no negligence by Ward. Finally, the prosecutor argued that any probative value of the evidence was outweighed by the danger of unfair prejudice, misleading the jury, and confusion of the issues.

Defendant argued in response that Ward’s toxicity levels were relevant to the issues of fault and causation. At the hearing on the motion, defense counsel argued that the other driver had “therapeutic levels” of the opiate pain reliever Tramadol and benzodiazepine. The trial court excluded the evidence on the basis that there was no legitimate question of fact regarding the proximate cause of the accident. At trial, defense counsel conducted voir dire examination of Dr. Mary Pietrangelo, the deputy medical examiner who performed autopsies on Ward and Raymo, in order to create a record of excluded testimony. Dr. Pietrangelo testified that Ward’s ethanol level was below the legal limit, his Tramadol (a pain medication) level was within a therapeutic dosage, and he was exposed to marijuana or a similar substance, but she could not determine the level of exposure. Dr. Pietrangelo ruled out those substances as contributing factors to his manner of death. Defense counsel then renewed his motion to admit Ward’s toxicology results. He argued that they were relevant to show that Ward was unable to remain
alert and react to sudden emergencies. The trial court stated that if Ward’s conduct was a factor in the proximate cause of his death, “that does not necessarily negate or nullify the conduct of Ms. Bergman if the facts support what it is that she’s being accused of.” The trial court concluded that in order for such evidence to be potentially admissible, there would have to be something “fairly substantial in terms of the detail of this accident that would suggest that Mr. Ward was somehow a cause of the accident.” While the trial court did not rule out admitting the evidence of Ward’s toxicology after development of the testimony, it was never admitted . . . .

The jury found defendant guilty of both counts of second-degree murder, both counts of OUIL causing death, and both counts of driving with a suspended license causing death.

The Court's analysis of each of defendant's claims of error followed:

Defendant first contends that the trial court erred in excluding evidence of intoxicants and controlled substances in the blood stream of Ward, the driver of the other vehicle, on the basis that the evidence was relevant to establishing that Ward may have been negligent and that her own conduct did not rise to the level of depraved indifference for human life. We disagree . . . .

Applying Feezel to the instant case, we conclude that the excluded evidence is not probative of an intervening or superseding cause that could break the causal link between defendant’s conduct and the victims’ deaths. Unlike the pedestrian in Feezel, who unnecessarily placed himself in the path of oncoming traffic in conditions of poor visibility, there was no evidence that either victim placed himself in a hazardous situation at the time of the collision. The evidence established that defendant’s vehicle crossed the center line and struck the GMC truck head on. There was no evidence that Ward was not properly driving within his marked lane, or that Ward’s vehicle would not have safely passed defendant if defendant had not crossed the center line in front of Ward, presenting a serious and unexpected hazard. Thus, there was no evidence that Ward did anything that contributed to the accident such that he was negligent or grossly negligent and by his conduct was an intervening cause of the accident. Although defendant speculates that Ward’s consumption of controlled substances impaired his ability to react and avoid the accident, a driver’s failure to avoid a vehicle that suddenly crosses the median directly in the path of oncoming traffic does not constitute gross negligence breaking the causal link. An accident victim’s inability to protect himself and others from the consequences of another person’s unexpected introduction of a serious hazard does not constitute an intervening cause severing the causal chain between the defendant and the victim . . . .

Thus, the offense of second-degree murder is committed when the defendant has knowledge of her own propensity to create a notably severe hazard when driving while intoxicated, and the victim’s state of intoxication is irrelevant to the defendant’s knowledge of her own susceptibility to hazardous driving. We find no basis to depart from the intervening cause analysis articulated in Feezel in a case such as this, a prosecution for second-degree murder, where the evidence does not support the theory that the victim broke the chain of causation stemming from the defendant’s conduct. Accordingly, we conclude that the trial court did not abuse its discretion in excluding as irrelevant the evidence of Ward’s alcohol and substance exposure.

Defendant next argues that she was denied due process of law and is entitled to a new trial because the trial court erroneously denied her motion for appointment of a toxicology expert at public expense. We disagree . . . .

. . . Here, defendant failed to establish the requisite nexus. She asserted that toxicology evidence was a critical part of the prosecution’s case, but she did not explain why she could not safely proceed to trial without her own expert. See MCL 775.15. She did not establish why the objective results of blood analysis might be unreliable. She made no offer of proof that an expert could dispute the prosecution experts’ opinions regarding the side effects of prescription medications and their contribution to impaired driving. Defendant failed to establish that expert testimony would likely benefit her case. A mere possibility that the expert would have assisted the defendant’s case is not sufficient. See Carnicom, 272 Mich App at 617. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion . . . .

Defendant next argues that her convictions for multiple counts of second-degree murder, OUIL causing death, and driving with a suspended license causing death in connection with the death of each victim violated her double jeopardy protections under the United States and Michigan constitutions. US Const, Am V; Const 1963, art 1, § 15. We disagree . . . .

In People v Kulpinski, 243 Mich App 8, 620 NW2d 537 (2000), this Court found no double jeopardy implications where a defendant was convicted of both OUIL causing death and involuntary manslaughter, MCL 750.321. Because the Legislature intended for the two statutes to enforce distinct societal norms, and because each statute contained an element not found in the other, the Court concluded that multiple punishments were permissible. Id. at 18-24; see also People v Price, 214 Mich App 538, 543 NW2d 49 (1995). This reasoning applies with equal force to dual convictions of second-degree murder and OUIL causing death. If the Legislature intended for the OUIL causing death statute to enforce societal norms that are distinct from the societal norms enforced by the involuntary manslaughter statute (grossly negligent conduct), it clearly also intended the OUIL statute to enforce societal norms other than those enforced by the second-degree murder statute (proscribing wanton conduct likely to cause death or great bodily harm). Id. at 543-544; Kulpinski, supra at 22-23. Moreover, the OUIL causing death statute and second-degree murder statute each contain an element not found in the other. The OUIL causing death statute includes the element of operating a motor vehicle with a specified blood alcohol level, but not the element of malice; the converse is true of the second-degree murder statute. Price, supra at 545-546; Kulpinski, supra at 23-24. Accordingly, defendant’s convictions of both second-degree murder and OUIL causing death do not violate the Double Jeopardy Clauses. [Werner, 254 Mich App at 535-536.]

Although the Werner Court did not address double jeopardy concerns with respect to convictions of second-degree murder and driving with a suspended license causing death, or convictions of OUIL causing death and driving with a suspended license causing death, the analysis in Werner applies with equal force to these combinations of convictions. The second- degree murder and driving with a suspended license causing death statutes enforce distinct societal norms, and their respective elements of malice and lack of a valid operator’s license are distinctive to each. See Smith, 478 Mich at 70; MCL 257.904(4). Similarly, the OUIL and suspended license statutes enforce distinct societal norms, and their respective elements of intoxication while driving and lack of a valid operator’s license are distinctive to each. See MCL 257.625(4); MCL 257.904(4).6 Accordingly, defendant’s multiple convictions do not violate the double jeopardy clauses . . . .