The opinion
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 2, 2018
Plaintiff-Appellee,
v No. 336063
Calhoun Circuit Court
LEO DUWAYNE ACKLEY, also known as LEO LC No. 2011-003642-FC
DUANE ACKLEY JR, also known as LEO
DUWAYNE ACKLEY, II,
Defendant-Appellant.
Before: STEPHENS, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.
PER CURIAM.
Defendant appeals by right his convictions by a jury of first-degree child abuse, MCL
750.136b(2), and first-degree felony-murder, MCL 750.136(1)(b). Defendant’s convictions arise
out of the death of 3 ½ year-old “B”, the younger of two daughters of defendant’s girlfriend.
The trial court sentenced him to life in prison for the murder conviction and 95 months to 180
months for the child abuse conviction. This matter was previously appealed to this Court in
Docket No. 318303, which culminated in our Supreme Court granting defendant a new trial upon
its finding that defendant had received ineffective assistance of counsel. People v Ackley, 497
Mich 381; 870 NW2d 858 (2015). In part because our Supreme Court’s opinion was based on
counsel’s failure to obtain or consult an expert witness, a significant issue in the trial presently
on appeal consisted of a pretrial Daubert1 hearing. Defendant was re-tried and re-convicted of
first-degree murder and child abuse. Defendant raises several arguments to the effect that he was
deprived of a fair trial and of certain rights, and that the evidence did not support his convictions.
We disagree, and we affirm.
Defendant was living with B’s mother, who he was dating at the time, and B’s 6-year-old
sister. He cared for both girls while their mother was at work. According to the mother, B
developed some health and behavior concerns when defendant moved in, including unexplained
1
See Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d
469 (1993) and Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780 n 46; 685 NW2d 391
(2004).
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bruising and regression in toilet training. Nevertheless, she testified that on the morning of July
28, 2011, B appeared to be in good health, alert, and talking. However, B had fallen from her
bike and fallen from a trampoline a few days previously, which was not an uncommon
occurrence. The previous day, B’s temperature was approximately 100 degrees and she threw up
during dinner.
When B’s mother came home for lunch, defendant reported that B was upstairs not
feeling well; according to the mother, B was apparently asleep but restless, with her head at the
foot of the bed. B and her sister shared a room, and their beds were placed about a foot apart
from one another. Defendant informed police officers that he discovered B on the floor, next to
the bed, with her face down. He found her limp, so he initially tried to run water over her, but
then drove her and her sister to his mother’s house. He stated that he did not call 911 because he
did not have a phone, but rather shared one with B’s mother. Defendant’s mother called 911 and
initially decided to drive B to the hospital herself, but became too “shook up” to continue
because B was foaming at the mouth.
When the EMTs and first responders arrived, B appeared to be breathing but was
unresponsive and appeared to be unconscious. There appeared to be a bruise along the child’s
jawbone from the center toward the left. B was transferred to the pediatric ICU at the hospital,
where she was pronounced brain dead the next morning. Witnesses testified to defendant
appearing calm throughout the events. Defendant and B’s mother drove home together. She
testified that he said, “I’m going to prison” to her, and when she asked why, he replied with
“They think I did something to our daughter.”
Numerous doctors testified. Dr. Douglas McDonnell testified that B was unresponsive
when she arrived and that her white blood cell count was abnormally high, which could result
from infection, dehydration, or trauma. B had a subdural hematoma, cerebral edema, and
suffered a hypoxic ischemic injury, leading to herniation of the brain, causing brain death. Dr.
Joyce DeJong performed the autopsy and came to the conclusion that in her opinion the manner
of death was homicide. Dr. DeJong based the opinion, in part on the fact that the child was
asymptomatic for several days prior to her death and that it was more probable that the brain
bleed resulted from a blow to the head which was consistent with an immediate onset of
symptoms and death. In other words, the bleeding around the brain happened at the same time,
because the bleeding would require a blow to the head and it would be exceptionally unusual for
a child to sustain a lethal brain injury for several days without symptoms and then die.
Dr. Philip Ptacin, who had been B’s doctor since early infancy, said she was anemic. B’s
test for thyroid problems were normal and he saw nothing that would cause concern and
ultimately lead to her death. Dr. Stephen Guertin, who was qualified as an expert in the areas of
child abuse, pediatrics, and pediatric intensive care, opined that B had suffered from abuse. Dr.
Ljubisa Dragovic, who was qualified in the fields of forensic pathology and neuropathology,
opined that the subdural hematoma B suffered did not occur on July 28 and was in fact a week
old.
Defendant first argues that the trial court abused its discretion by allowing Dr. Rudolph
Castellani to additionally testify regarding “abusive head trauma.” We disagree.
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“Under Michigan evidentiary law . . . 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.’” People v Unger, 278 Mich App 210,
217; 749 NW2d 272 (2008), quoting MRE 702 and citing Daubert v Merrell Dow
Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993) and Gilbert v
DaimlerChrysler Corp, 470 Mich 749, 780 n 46; 685 NW2d 391 (2004). This “gatekeeping”
role does not entail any attempt to determine whether the expert testimony is correct or
undisputed, but rather only whether it is “rationally derived from a sound foundation” and is
“based on the ‘methods and procedures of science’ rather than ‘subjective belief or unsupported
speculation.’” Id. at 217-218 (quotations and citations omitted). “[T]he determination of an
expert’s qualifications and the admissibility of this testimony is within the trial court’s
discretion.” Id. at 216 (quotation omitted). An abuse of discretion occurs when a court’s
outcome falls outside of the range of reasonable and principled outcomes. People v Babcock,
469 Mich 247, 269; 666 NW2d 231 (2003).
The relevant tenets of the theory of abusive head trauma are that there is a high statistical
correlation between certain kinds of hemorrhaging, in particular subdural and retinal, and
“inflicted trauma” when presented in children under the age of two, something that Dr. Castellani
contended was generally accepted in the scientific community and had no contrary studies. He
also testified that a short-distance fall in children under the age of three was more correlated with
abuse than with accidents. In contrast, defendant’s expert, Dr. Dragovic, pointed out that there
was a huge difference between the death of an infant and a toddler, and contended that there is
no general empirically developed test that can determine whether a constellation of injuries
represents intentional or accidental injury.
Defendant points out, accurately, that it is impossible to conduct any kind of actual
experiment on children to determine what kind of intentional trauma will cause any given
presented injury. Indeed, Dr. Castellani conceded that most of the supporting studies were case
studies. However, while controlled experiments are the “gold standard” for scientific evidence,
they are hardly the only source of valuable and reliable scientific data, including drawing
statistical inferences from case studies, especially where some other evidence establishes at least
part of the conclusions drawn therefrom. See Chapin v A & L Parts, Inc, 274 Mich App 122,
135-140; 732 NW2d 578 (2007) (DAVIS, J). There was ample testimony to the general effect
that although abusive head trauma had encountered some doubt and skepticism in the scientific
community, and it was not necessarily correctly predictive in every case, but that it remained
backed by numerous studies and was not widely regarded as refuted.
Defendant’s argument that a statistically predictive model can easily be wrong in any
particular instance is well-taken. However, that does not make it unscientific, but rather
appropriate for an argument to be made to the jury that they should be cautious about giving it
much weight. Likewise with the fact that it was not universally well-regarded. The courts would
do well to be suspicious of a theory widely deemed to be a “fringe” position or otherwise taken
seriously only by an extreme minority of the relevant scientific community. However, many
now-accepted theories began as minority views, so a lack of universal acceptance does not per se
establish that it is unscientific or unsound. Scientific disputes should be resolved by scientists,
not by lawyers. Chapin, 274 Mich App at 127. The trial court did not abuse its discretion by
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concluding that abusive head trauma was supported by sufficiently sound principles and
methodology to warrant its admission.
Defendant next argues that the trial court abused its discretion by permitting Dr. Guertin
to testify as an expert in child abuse and that certain injuries of B’s were indicative of abuse. We
disagree.
Initially, although defendant objected to qualifying Dr. Guertin as an expert in child
abuse, he did not object to Dr. Guertin’s qualifications as an expert in the areas of pediatrics and
pediatric intensive care. Additionally, defendant made no specific objections to any specific
testimony taken from Dr. Guertin. To the extent defendant argues that Dr. Guertin was
improperly qualified as an expert in child abuse, that issue is preserved; to the extent defendant
argues that any specific testimony Dr. Guertin gave was improper, that issue is not preserved.
See People v Lundberg, 364 Mich 596, 604; 111 NW2d 809 (1961). The trial court’s
determination of a witness’s expert qualifications is reviewed for an abuse of discretion. Unger,
278 Mich App at 216. Ordinarily, the trial court’s decision whether to admit evidence is also
reviewed for an abuse of discretion, although any underlying questions of law are reviewed de
novo. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). However, we review
unpreserved allegations of error for plain error that either “resulted in the conviction of an
actually innocent defendant” or “‘seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings’ independent of the defendant’s innocence.” People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999) (quotation omitted).
As an initial matter, while Dr. Guertin was not a forensic pathologist, it defies sense to
conclude that a doctor with extensive experience treating trauma victims would lack insight into
what kinds of traumas tend to lead to what kinds of injuries. Expertise in pediatric intensive care
inescapably has considerable crossover into the medical treatment portion of expertise in child
abuse. Dr. Guertin was the Director of the Children’s Center at Sparrow Hospital, Director of
the Pediatric Intensive Care Unit, and a physician member of Child Safety Program. He is also a
member of two Child Death Review teams from both Eaton and Ingham County for almost
twenty years. He sees about two hundred to two hundred fifty children a year who are referred
because of the possibility of abuse or neglect, and he is a practicing physician who sees actual
patients. He testified that he attended autopsies and performed death reviews. Clearly, Dr.
Guertin did not need to be qualified as an expert in child abuse to be able to render expert
testimony concerning the genesis of certain injuries.
The relevant portion of Dr. Guertin’s testimony was:
She had bleeding around the outside of her brain but inside her skull. She
also actually had a little bit of blood inside the hollow spaces inside your brain,
called ventricles. She had a massively swollen brain, so that is likely ultimately
what killed her. But she had not only the bleeding around her brain, but she had
florid bleeding in the backs of her eyes. Florid bleeding in the backs of your eyes,
in association with bleeding in the backs of your eyes, in association with
bleeding in the backs of your eyes, in association with bleeding around your
brain, in a circumstance where there’s no reasonable explanation offered for that
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is 100% specific for abuse. And in this particular case, that combination of severe
bleeding in the back of your eyes with a subdural hemorrhage, is classic for abuse.
Furthermore, when directly asked by defense counsel whether the bruising gave any indication of
who caused it, Dr. Guertin replied that it does not.
We think the distinction may be seemingly subtle, but there is a critical difference
between stating that a child was abused, and stating that medical examination findings were
highly consistent with abuse in the absence of some other “reasonable explanation.” Defendant’s
theory of the case is that there was some other reasonable explanation. Dr. Guertin expressly
disclaimed knowledge of who or what specifically caused B’s injuries. Defendant correctly
states that a witness cannot render an opinion as to a defendant’s culpability, but witnesses are
perfectly permitted to render opinions from which the jury may easily “connect the dots” to
determine that the defendant is guilty. See People v Fomby, 300 Mich App 46, 53; 831 NW2d
887 (2013). Indeed, it would potentially be inadmissibly irrelevant if a witness’s testimony did
not have some bearing on the defendant’s guilt or innocence. Dr. Guertin’s testimony here,
while clearly unfavorable, did not cross the line. Likewise, we find no merit to defendant’s
contention that Dr. Guertin “Dr. Guertin did not disclose how he came to the conclusions that he
reached, except to possibly suggest that they were based on his clinical experience.” His clinical
experience would be sufficient under the circumstances. In the absence of an objection, we find
no plain error affecting defendant’s substantial rights.
Defendant next argues that he was deprived of a fair trial by the trial court’s improper
admission of testimony from B’s mother that, at the end of their drive home together from the
hospital, defendant said “I’m going to prison,” because, he explained upon inquiry, “They think I
did something to our daughter.” We disagree.
Defendant asserts first that his statement, repeated by B’s mother, should not have been
admitted as an exception to the hearsay evidence rule under MRE 801(d)(2) because it “was not
a statement of consciousness of guilt.” Nothing in the text of MRE 801(d)(2) conditions
admissibility of a statement by a party on it having any bearing on guilt at all. Apparently,
defendant derives this argument from People v Schaw, 288 Mich App 231, 236-238; 791 NW2d
743 (2010), in which this Court approved of the admissibility of a statement by the defendant
because it “showed consciousness of guilt.” The analysis in that case, however, was in the
context of the statement’s relevance under MRE 401; its admissibility under MRE 801(d)(2) was
independent and essentially assumed because, obviously, it was “the party’s own statement.”
MRE 801(d)(2)(A). Defendant’s statement is obviously admissible as an exception to the
hearsay evidence rule.
Less obvious is whether it is also admissible under MRE 401, 402, and 403, which,
together, require evidence to have some bearing on a fact at issue and permit it to be excluded
anyway if it poses a danger of unfair prejudice or confusion that substantially outweighs its
probative value. Defendant’s contention that the statement was irrelevant because it was not an
outright statement of guilt does not follow: while the trial court correctly held that the statement
was open to some interpretation, it certainly could be perceived as consciousness of guilt and
thus would make a fact at issue more likely under MRE 401 and 402. While the fact that it could
be taken in multiple ways also suggests that there is some danger of confusion or unfair
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prejudice, defendant simply does not make a persuasive case that that danger substantially
outweighs its probative value. We are not persuaded that the trial court abused its discretion.
The remaining issues defendant raises himself in a Standard 42 brief. He first argues that
he specifically told his trial counsel that he wished to testify on his own behalf at trial, but that
trial counsel never discussed doing so with him and did not call him as a witness; he further
contends that the trial court never asked defendant if he wished to testify and improperly
concluded that he had been afforded “every opportunity” to do so. Although “every
opportunity” might be a slight exaggeration, we find no error.
Even presuming this issue was preserved, denial of a right to testify, while of
constitutional magnitude, is not considered a structural error so profound that it automatically
requires reversal, but rather is subject to harmless-error analysis. People v Solomon, 220 Mich
App 527, 535-537; 560 NW2d 651 (1996). If preserved, the beneficiary of the error must show
that it is harmless beyond a reasonable doubt, and if unpreserved, the defendant must establish
that he “is actually innocent or the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Carines, 460 Mich at 774.
The trial court is not required to obtain “an on-the-record waiver of a defendant’s right to
testify” or to advise a defendant of that right or establish that it was properly waived. People v
Harris, 190 Mich App 652, 661-662; 476 NW2d 767 (1991). Defendant does not make any
argument articulating how his testimony would have helped or how the absence thereof harmed
him; furthermore, the trial court properly instructed the jury not to place any weight on the
absence of defendant’s testimony. Presuming he would have given testimony generally
consistent with his testimony from his previous trial, the gravamen would have been that he did
not know what was wrong with B. In any event, defendant’s claim that he did not know of his
right to testify because counsel did not advise him thereof is inconsistent with his testimony in
the prior trial. It does not appear obvious that the outcome of the proceedings turned on the
presence or absence of his testimony. Therefore, no error occurred.
Defendant next enumerates nine statements the prosecutor made to the jury that allegedly
constitute some manner of falsehood, misrepresentation, or other impropriety. Defendant did not
object to any of the alleged improper statements by the prosecutor or request curative
instructions, nor does defendant contend that curative instructions could not have purged the taint
of any such improprieties, so this issue is unpreserved. People v Brown, 294 Mich App 377,
382; 811 NW2d 531 (2011). We simply fail to comprehend defendant’s reasoning, if any.
Defendant presents the statements in a hyperbolic manner and makes no apparent effort to
explain how or why they are supposedly contradicted by the cherry-picked piecemeal excerpts
from the testimony defendant also enumerates. Several of the allegedly improper statements are
simply nonsensical as defendant presents them. Others appear to be nothing more than the
prosecutor’s negative characterization of defendant or of the testimony. The remainder appears
to be an assertion that the prosecutor omitted a complete recitation of other evidence that favored
defendant.
2
Administrative Order 2004-6.
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In the absence of a coherent presentation of the reasoning by which defendant draws his
conclusions from his presented facts, this Court generally declines to “discover and rationalize
the basis for his claims, or unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position.” Mitcham v Detroit, 355 Mich 182, 203; 94
NW2d 388 (1959). Failing to articulate an argument in a coherent and understandable manner
constitutes abandonment: a party may not simply heap an accumulation of points of data upon
the courts and expect the courts to prognosticate the party’s desired logic or thought processes.
Id. Otherwise, the prosecutor is not obligated to “confine argument to the blandest possible
terms” and is free to draw inferences from the evidence beyond merely regurgitating it. People v
Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). This issue is either abandoned or
meritless.
Defendant next argues that Officer Brett Weiss improperly provided expert testimony as
a Forensic Lab Supervisor despite not having been qualified to do so. However, it is clear that
Officer Weiss testified as a fact witness and did not provide anything resembling expert
testimony. The only time he even suggested that he was any kind of expert was “in marijuana
testing,” which is of no relevance to this matter. Otherwise, he only described his collection of
evidence. There is no conceivable abuse of discretion simply because the trial court permitted
someone who could, possibly, be qualified as an expert to provide lay testimony as a lay witness.
Defendant next asserts seven reasons why defense counsel was allegedly ineffective,
most of which are rendered irrelevant by issues of which we have already disposed. Of the
remaining reasons, defendant argues that counsel should have interviewed B’s sister and any
number of unidentified neighbors. Defendant correctly points out that we do not know to what
they might have testified, but as a consequence, his argument that their testimony might have
helped him is purely speculative. “To warrant reversal, the prejudice shown must be actual, not
merely speculative.” People v Fowlkes, 130 Mich App 828, 836; 345 NW2d 629 (1983).
Likewise, he asserts that defense counsel should have subpoenaed a doctor who testified at the
Daubert hearing favorably to the defense, but fails to articulate of what the favorable testimony
consists. Finally, he argues that trial counsel should have impeached an unidentified witness
with an allegedly inconsistent statement made at the prior trial that we presume is found
somewhere within the excerpt therefrom that defendant provides. Again, with no coherent
explanation of essentially any of the relevant particulars, this argument is abandoned. Mitcham,
355 Mich at 203. Consequently, defendant has completely failed to show any mistake made by
counsel or that any such mistake would have had any bearing on the outcome.
Defendant next argues that the evidence was insufficient to sustain his conviction,
because the only fact actually proved was that B died of head trauma, whereas the issues of
where or when the trauma occurred, how it was inflicted and by whom, were speculative. We
disagree.
It does not appear that defendant raised this issue before the trial court, but a claim that
the evidence is insufficient may, in a criminal matter, be addressed for the first time by an
appellate court. People v Patterson, 428 Mich 502, 514-515; 410 NW2d 733 (1987). “Taking
the evidence in the light most favorable to the prosecution, the question on appeal is whether a
rational trier of fact could find the defendant guilty beyond a reasonable doubt.” People v
Hardiman, 466 Mich 417, 421; 646 NW2d 158 (2002). This includes both direct and
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circumstantial evidence, and any reasonable inferences therefrom must be drawn in favor of the
prosecution; it does not require the prosecution “to negate every reasonable theory consistent
with a defendant’s innocence.” Id. at 428-430.
The jury is not permitted to speculate, but it is tasked with deciding what individual
pieces of evidence and reasonable inferences therefrom to believe. People v Howard, 50 Mich
239, 242-243; 15 NW 101 (1883); People v Bailey, 451 Mich 657, 673-675, 681-682; 549 NW2d
325 (1996). Defendant’s argument that there is only speculative evidence of how, when, where,
or why B sustained her injuries is incorrect. Rather, no eyewitness to the infliction of those
injuries testified. However, none is required. There was evidence tending to show that her
injuries must have occurred while under defendant’s care and that they were intentionally
inflicted by another person rather than accidentally sustained, making their infliction by
defendant a reasonable inference. There was also evidence tending to show that B began
suffering other health or behavioral problems when defendant moved in. Finally, there was
evidence from which it could be inferred that defendant displayed an inappropriate level of
unconcern with B’s unresponsiveness. The fact that some inferences may be required to uphold
defendant’s conviction does not mean the jury’s conclusion was speculative.
Defendant finally argues that even if no individual error was of such magnitude to require
a new trial, he was deprived of a fair trial by the accumulation thereof. A claim of cumulative
error is reviewed to determine whether defendant was denied a fair trial as a consequence of the
alleged errors. People v Brown, 279 Mich App 116, 145; 755 NW2d 664 (2008). “But only
‘actual errors’ are aggregated when reviewing a cumulative-error argument.” People v Gaines,
306 Mich App 289, 310; 856 NW2d 222 (2014). As discussed, either no errors occurred or they
were harmless. For errors to accumulate, they must have some unfairly prejudicial consequence,
even if not enough to warrant reversal alone. Defendant has not shown any unfair prejudice
from any errors, so there is no possibility of cumulative error warranting reversal.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro
/s/ Amy Ronayne Krause
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