People of Michigan v. Shikisha Monet Tidmore

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

January 14, 2021

Plaintiff-Appellee,

v No. 348771

Kalamazoo Circuit Court

SHIKISHA MONET TIDMORE, LC No. 2018-001392-FH

Defendant-Appellant.

Before: REDFORD, P.J., and MARKEY and BOONSTRA, JJ.

PER CURIAM.

Defendant appeals by right her jury-trial convictions of reckless driving causing death,

MCL 257.626(4), and reckless driving causing serious impairment of body function,

MCL 257.626(3). The trial court sentenced defendant as a fourth-offense habitual offender,

MCL 769.12, to concurrent prison terms of 10 to 35 years for the reckless driving causing death

conviction and 2 to 15 years for the reckless driving causing serious impairment conviction. We

affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Defendant crashed her automobile at approximately 10:40 p.m. on July 6, 2018 as she was

driving on South Westnedge Avenue in Kalamazoo. South Westnedge is a one-way residential

street with a speed limit of 35 miles per hour; it runs north and south and has three lanes.

Testimony and evidence introduced at trial established that defendant had picked up a

friend, David McVay (McVay), who was in the front passenger seat of defendant’s car when it

crashed. Janice Maikoski (Maikoski) testified at trial that she witnessed the crash. Specifically,

Maikoski testified that she had just turned her vehicle left onto South Westnedge, entered the

middle lane, and merged into the rightmost lane in preparation for a right turn onto Wheaton

Avenue, when she looked into her rearview mirror and saw defendant’s vehicle “barreling down”

on her. According to Maikoski, she thought she was going to be hit by defendant’s vehicle.

Maikoski testified that the road was clear before she turned onto South Westnedge. Defendant

swerved to go around Maikoski’s vehicle and lost control of her car. The evidence showed that

defendant hit the curb; rolled her car, which sheared off a light pole at its base; hit Leif Culver

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(Culver), who was walking his bike next to friends; uprooted a tree; and finally came to rest upside

down after striking a fence and a parked car. McVay died at the scene of the accident. Culver was

seriously injured.

Defendant told a Kalamazoo Department of Public Safety(KDPS) detective that she was

travelling 35 miles per hour on South Westnedge when another car pulled out in front of her. Gary

Latham (Latham), a crime lab specialist with KDPS, testified as an expert in accident

reconstruction. He opined, based upon his calculations from various physical evidence at the

scene, that defendant’s car was travelling at approximately 78 miles per hour immediately before

the crash. James Campbell (Campbell), a retired Michigan State Police trooper, testified as an

expert in computerized event data recorders in automobiles. Campbell testified that data recovered

from the event data recorder in defendant’s car showed that she never applied her brakes and was

traveling at 84 miles per hour (with foot pressure on the gas pedal) 2.5 seconds before the airbag

deployed. Dr. Benedict Kuslikis, a toxicologist, testified that a blood sample taken from defendant

after the accident showed that defendant had a blood alcohol level of .047, but that he did not have

enough information to opine about her blood alcohol level at the time of the accident.

Shane McKendrick (McKendrick) witnessed the accident while sitting on the porch of his

father’s home on South Westnedge. He testified that he had heard sirens coming down South

Westnedge and then heard an engine squeal like someone was speeding up. He looked and saw a

“white Charger” that “tapped” a red car.1 The red car swerved, lost control, and flipped over.

According to McKendrick, police officers just drove past and kept following the white car. He

stated that the red car was not speeding, and that he thought the white car was fleeing from the

police officers. McKendrick denied telling the police that he thought the two cars were racing;

however, after the defense had presented its witnesses, the prosecution called Officer Bradley

Howe of KDPS, who testified that McKendrick had told him that he did not witness the actual

crash but that he thought the white and red cars were racing because they were both travelling at a

high speed.

Defendant testified that a white car pulled out in front of her suddenly, forcing her to

swerve; after that, she did not remember anything until she found herself crawling out of the car.

She testified that she thought she had braked but could have accidentally hit the accelerator instead.

She denied driving at more than 40 miles per hour.

The jury convicted defendant as described. After sentencing, defendant moved for a new

trial, which the trial court denied. This appeal followed. After filing her claim of appeal, defendant

1

Defendant’s car was red. Kalamazoo Public Safety Officers testified that the police dispatcher

had stated that a white car or Dodge Charger was possibly involved in the accident when

dispatching them to the scene, but that this was never confirmed.

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moved this Court to remand for a Ginther2 hearing on the issue of her trial counsel’s alleged

ineffectiveness; this Court denied the motion without prejudice.3

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that her defense counsel was ineffective at trial in failing to object to the

testimony of the prosecution’s rebuttal witness, Officer Howe, and by agreeing to a special jury

instruction regarding causation. We disagree in both respects.

We generally review for an abuse of discretion a trial court’s decision whether to admit

evidence during the rebuttal phase of trial. See People v Figgures, 451 Mich 390, 398; 547 NW2d

673 (1996). A trial court abuses its discretion when it selects an outcome that falls outside the

range of reasonable and principled outcomes. People v Clark, 330 Mich App 392, 415; 948 NW2d

604 (2019). However, because defense counsel did not object to the admission of this testimony,

our review is limited to that of plain error. See People v Carines, 460 Mich 750, 763; 597 NW2d

130 (1999). We review de novo whether the trial court properly applied the rules of evidence and

any applicable statutes. People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011).

Defense counsel’s affirmative approval of a jury instruction waives direct appellate review

of that instruction. See People v Carter, 462 Mich 206, 214-216; 612 NW2d 144 (2000).

However, we may review the issue in the context of defendant’s claim of ineffective assistance of

counsel. People v Eisen, 296 Mich App 326, 329-330; 820 NW2d 229 (2012). A claim of

ineffective assistance of counsel presents a mixed question of fact and constitutional law; we

review the trial court’s factual findings, if any, for clear error, and review de novo whether defense

counsel’s conduct fell below an objective standard of reasonableness under prevailing professional

norms and prejudiced defendant’s trial. See People v Gioglio (On Remand), 296 Mich App 12,

19-20; 815 NW2d 589 (2012).

In order to establish her claims of ineffective assistance of counsel, defendant must show

that defense counsel’s conduct fell below an objective standard of reasonableness under prevailing

professional norms and that there is a reasonable probability that, but for the failure, the outcome

of her trial would have been different. See id. at 22. Because a Ginther hearing was not held, this

Court’s review is limited to mistakes that are apparent on the record. See id. at 20. In reviewing

the record, this Court must indulge a strong presumption that defense counsel’s performance fell

within the wide range of reasonable professional assistance. Id. at 22. This Court is “not only

required to give counsel the benefit of the doubt with this presumption,” it must “affirmatively

entertain the range of possible reasons that counsel may have had for proceeding as he or she did.”

Id. (quotation marks and citations omitted). If this Court can conceive of a legitimate strategic

reason for defense counsel’s conduct, then this Court cannot conclude that defense counsel’s

2

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

3

See People v Tidmore, unpublished order of the Court of Appeals, entered June 2, 2020 (Docket

No. 348771).

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conduct fell below an objective standard of reasonableness under prevailing professional norms.

Id. at 22-23.

A. REBUTTAL TESTIMONY

Defendant argues that her defense counsel was ineffective in failing to object to the

prosecution calling Officer Howe as a rebuttal witness to its own witness, McKendrick. We

disagree.

Generally, relevant evidence is admissible. See MRE 402. Relevant evidence is evidence

that has “any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” MRE 401.

Evidence tending to impeach the credibility of a witness is always relevant. See People v Mills,

450 Mich 61, 72; 537 NW2d 909 (1995).

The prosecution called McKendrick as a witness at trial because he was in a position to

witness the speed and actions of defendant’s car before the accident. The testimony of an

eyewitness to defendant’s speed and driving immediately before the accident was relevant to

several material facts at issue. MRE 401. Further, it appears from the record that the prosecution

believed that McKendrick would testify, consistent with his prior statements, that he did not

directly see the accident and that he thought the red car—defendant’s car—was racing a white car

on South Westnedge. However, McKendrick instead testified that he did in fact see the accident,

and he denied that he had told officers that he thought defendant was racing another car or

otherwise speeding. To the contrary, he testified that she was traveling at the speed limit. Once

McKendrick testified in a way that was inconsistent with his previous statements, the prosecution

was permitted to impeach him even though the prosecution had called him as a witness in its case-

in-chief. See MRE 607; MCL 767.40a(6). Further, the prosecution could do so by introducing

extrinsic evidence of the fact that McKendrick had made an earlier statement that was inconsistent

with his trial testimony after providing him with the opportunity to deny or explain the previous

statement. See MRE 613(b); People v Jenkins, 450 Mich 249, 256; 537 NW2d 828 (1995).

Accordingly, Officer Howe’s testimony about McKendrick’s earlier statement was admissible to

impeach the credibility of McKendrick’s account at trial.

Defendant does not directly argue that Officer Howe’s rebuttal testimony should not have

been admitted, but instead essentially argues that the prosecution was required to present this

testimony during its case-in-chief, rather than during the rebuttal phase at the end of trial. We do

not find the rules of trial procedure to be so rigid. As our Supreme Court has recognized, trial

courts have broad authority to determine the order in which the parties may adduce proof; this is

so, because courts must meet the complexities and contingencies of trial as those situations arise.

See Figgures, 451 Mich at 398; see also MRE 611(a). Typically, rebuttal evidence is evidence

admitted to “contradict, repel, explain or disprove evidence produced by the other party and

tending directly to weaken or impeach the same.” Figgures, 451 Mich at 399 (quotation marks

and citation omitted). “[T]he test of whether rebuttal evidence was properly admitted is not

whether the evidence could have been offered in the prosecutor’s case-in-chief, but, rather whether

the evidence is properly responsive to evidence introduced or a theory developed by the

defendant.” Id.

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The defense elicited testimony during the cross-examination of KDPS officers that the

dispatcher had stated that there may have been another car (possibly white, or a Charger) involved

in defendant’s accident. Additionally, defendant testified that she was driving at a safe speed and

only crashed because she was forced off the road by the driver of a white car.

Although the prosecution could have impeached McKendrick as soon as he made a prior

inconsistent statement, it only became evident later in the proceedings that the defense was

developing a theory that another car was the real cause of the accident. Consequently,

impeachment evidence against McKendrick was rebuttal evidence because it directly related to

weakening a theory developed by the defense. See id. Moreover, there was no indication that the

prosecution called and impeached McKendrick as a subterfuge to get otherwise inadmissible

evidence before the jury. See, e.g., Jenkins, 450 Mich at 262. Under these circumstances, it was

within the range of reasonable and principled outcomes for the trial court to have allowed the

prosecution to impeach McKendrick, through Officer Howe’s testimony, during the prosecution’s

rebuttal case, rather than disallowing that testimony because the prosecution had not recalled

Officer Howe during its case-in-chief. See Clark, 330 Mich App at 415. Because the trial court

properly allowed the prosecution to elicit the impeachment testimony in its rebuttal case, defense

counsel cannot be faulted for failing to object to the admission of Officer Howe’s testimony during

the rebuttal phase of the trial. See People v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018)

(stating that defense counsel is not ineffective for failing to raise a futile or meritless objection).

Even if the trial court could be said to have plainly erred allowing the prosecution to

impeach McKendrick after its case in chief had ended, defendant has not demonstrated that, but

for defense counsel’s failure to object, there is a reasonable probability that the outcome of the

trial would have been different. See Gioglio, 296 Mich App at 23. McKendrick’s testimony as a

whole was highly suspect. He claimed that his attention was drawn to the accident because he

heard sirens and thought that police officers might be coming for him. He stated that he then

observed police officers chasing a white car and that the officers continued their chase even after

the accident. Every other eyewitness to the accident—other than defendant—stated that the only

cars on the road were defendant’s car and Maikoski’s car. No other witnesses saw any other car

speeding, let alone a speeding car being pursued by police officers with lights flashing and sirens

blaring. Additionally, none of the officers involved in the investigation testified that there was a

high-speed chase that preceded the accident. Moreover, McKendrick’s contention that defendant

was traveling at a safe speed was contradicted by the evidence from her car’s event data recorder

that showed she was driving at 84 miles per hour just 2.5 seconds before the crash and that she lost

control while making a lane change, uprooted a tree, sheared off a light post, and only came to rest

after sliding more than 100 feet and striking a parked car. McKendrick’s version of events was,

therefore, highly implausible even without Officer Howe’s testimony. And the overwhelming

evidence supported the conclusion that defendant was not forced off the road by some mysterious

car involved in a police chase, but rather crashed when she attempted to pass Maikoski and lost

control because she was traveling so fast that she had exceeded her car’s ability to safely change

lanes. Consequently, even if defense counsel had successfully prevented the prosecution from

impeaching McKendrick’s version of events, defendant has not shown prejudice. See id.

B. SPECIAL JURY INSTRUCTION

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Defendant also argues that defense counsel provided ineffective assistance by affirmatively

agreeing to a special jury instruction. We disagree.

A defendant has the right to have the trial court properly instruct the jury. People v

Lambert, 395 Mich 296, 304; 235 NW2d 338 (1975). A trial court’s instructions are proper when,

examining them as a whole, “the instructions adequately protected the defendant’s rights by fairly

presenting to the jury the issues to be tried.” Martin, 271 Mich App at 338 (quotation marks and

citation omitted).

In order to convict defendant of the offenses at issue, the prosecution had to prove that

defendant operated her car in willful and wanton disregard for the safety of persons or property,

and that her operation of the car was both the factual cause and the proximate cause of the injuries

to McVay and Culver. See MCL 257.626(2); People v Schaefer, 473 Mich 418, 435; 703 NW2d

774 (2005), mod in part on other grounds by People v Derror, 475 Mich 316, 334; 715 NW2d 822

(2006). A person’s conduct is the factual cause of the result if the result would not have occurred

“but for” the person’s conduct. Schaefer, 473 Mich at 435-436. The term “proximate cause” is a

“legal construct designed to prevent criminal liability from attaching when the result of the

defendant’s conduct is viewed as too remote or unnatural.” Id. at 436. A defendant’s conduct is

the proximate cause when the victim’s injury was the direct and natural result of the defendant’s

actions. Id.

An intervening cause supersedes and breaks the causal link between the defendant’s

conduct and the victim’s injury, preventing defendant’s conduct from being deemed the proximate

cause. Id. at 436-437. The standard for determining whether an intervening cause severs the

causal link is one of reasonable foreseeability. Id. at 437. If the intervening cause was reasonably

foreseeable, then it will not break the causal link. Id. However, gross negligence and intentional

misconduct are not reasonably foreseeable and will sever the causal link. See People v Feezel,

486 Mich 184, 195; 783 NW2d 67 (2010).

The trial court instructed the jury that to convict defendant of the two offenses of which

she was charged, the jury must—in relevant part—find that defendant operated her car in willful

or wanton disregard for the safety of persons or property, and must find that her operation of the

car factually and proximately caused McVay’s death and Culver’s serious impairment of body

function. The trial court did not instruct the jury generally regarding intervening superseding

causes, but it did instruct the jury that a person’s operation of a car is the proximate cause of an

injury when the injury was the direct and natural result of the car’s operation. Additionally, the

trial court provided the jury with the following special instruction:

You may consider that one who pulls out in front of another or changes into

lanes in front of another on a several lane thoroughfare may generally represent a

type of ordinary negligence that is reasonably foreseeable and not be a superseding

cause of the victim’s death and/or victim’s injuries, but you are not required to do

so.

The trial court explained why it gave that instruction:

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As far as the second special instruction, I take from case law that has been

provided to the court in terms of a particular situation regarding superseding causes

of injuries and/or death, and I believe after consulting with the attorneys that it’s

appropriate given the facts in this case that that special instruction be given to the

jury. I’ve included it. Parties have no objection to it.

The trial court’s general instructions regarding factual and proximate cause were correct

and adequately protected defendant’s rights. See People v Czuprynski, 325 Mich App 449, 461-

462; 926 NW2d 282 (2018). Further, the special instruction on a specific potential intervening

cause—another car pulling out in front of defendant’s car—adequately protected defendant’s

rights and fairly presented the issues to be tried. Martin, 271 Mich App at 338. The trial court

instructed the jury that that defendant could not be said to have been the cause of the injuries at

issue if the jury found that there was an intervening superseding cause, but reminded the jury that

conduct that was reasonably foreseeable cannot constitute a superseding cause. Finally, although

it noted the general foreseeability of cars changing lanes or pulling out in front of another car, the

instruction made it clear that the jury was not precluded from finding that a car pulling out or

changing lanes was a superseding cause under the specific facts of the case. The trial court’s

instruction correctly stated the law; in fact, multiple sections of the Michigan vehicle code,

MCL 257.1 et seq., explicitly state that drivers are expected to be aware of the possibility of other

vehicles in their lane ahead of them, and to presume that the driver to the rear is at fault in a

collision, absent evidence to the contrary. See, e.g., MCL 257.627(1) (assured clear distance

statute); MCL 257.402(a) (rear end collision statute). Contrary to defendant’s contention, the trial

court’s use of the word “generally” did not foreclose the jury from considering whether another

car became a superseding cause of the accident by pulling out in front of defendant or changing

lanes in front of her. Because the trial court’s instruction was not erroneous, defense counsel’s

decision to approve the instruction did not fall below an objective standard of reasonableness under

prevailing professional norms. See Gioglio, 296 Mich App at 22.

III. CRUEL OR UNUSUAL PUNISHMENT

Defendant also argues that her sentence for reckless driving causing death was

disproportionate and amounted to cruel or unusual punishment under Michigan’s constitution.4

Const 1963, art 1, § 16. We disagree. This Court reviews de novo whether the trial court properly

interpreted and applied the relevant statutes and constitutional principles to defendant’s

sentencing. See People v Odom, 327 Mich App 297, 303; 933 NW2d 719 (2019). We review for

an abuse of discretion the trial court’s exercise of its sentencing discretion. Id. A trial court abuses

its discretion when it selects an outcome outside the range of reasonable and principled outcomes.

Id.

4

Although defendant does not raise a related claim under the Eighth Amendment to the United

States Constitution, which prohibits cruel and unusual punishment, see US Const, Am VIII, the

federal constitution provides narrower protection than the Michigan constitution. People v Nunez,

242 Mich App 610, 618 n 2; 619 NW2d 550 (2000). As a result, if a sentence “passes muster

under the state constitution, then it necessarily passes muster under the federal constitution.” Id.

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This Court has stated that grossly disproportionate sentences may constitute cruel or

unusual punishment. People v Posey, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket

Nos. 345491, 351834, and 346039); slip op at 9. However, “[a] sentence within the guidelines

range is presumptively proportionate, and a proportionate sentence is not cruel or unusual

punishment.” Id. “A defendant can only overcome the presumption by presenting unusual

circumstances that would render a presumptively proportionate sentence disproportionate.” Id.

Defendant’s recommended minimum sentence range under the sentencing guidelines was

50 to 200 months. See MCL 777.64; MCL 777.21(3)(c). The trial court ordered defendant to

serve a minimum sentence of 10 years in prison, which was within the recommended minimum

sentencing range. Defendant does not argue that the trial court erred in calculating her guidelines

range or relied on inaccurate information in sentencing her, nor has defendant identified any

unusual circumstances that would defeat the presumption that her sentence is proportionate and

therefore not cruel or unusual. Posey, ___ Mich App at ___; slip op at 9. Defendant suggests that

her remorse, the fact that she did not intend to kill or permanently disable anyone, and the fact that

all her previous offenses were nonviolent are grounds for concluding that her sentence was

disproportionate. We disagree that any of these factors are unusual or grounds for concluding that

the trial court was constitutionally required to impose a below-guidelines sentence. See People v

Daniel, 462 Mich 1, 8 n 9; 609 NW2d 557 (2000) (holding that a defendant’s remorse is not a

sufficient mitigating factor to support an out-of-guidelines sentence under the then-mandatory

sentencing guidelines); see MCL 257.626(3) and (4) (not requiring a specific intent to kill for

conviction); People v Hansford, 454 Mich 320, 325-326; 562 NW2d 460 (1997) (stating that a

trial court may properly consider a defendant’s rehabilitative potential by examining his or her

criminal history and applying the habitual-offender provisions).

Because defendant’s sentence for reckless driving causing death was proportionate, we are

required to affirm it. MCL 769.34(10); see also People v Schrauben, 314 Mich App 181; 886

NW2d 173 (2016) (holding that MCL 769.34(10) remained valid after our Supreme Court held

that Michigan’s sentencing guidelines scheme was advisory, not mandatory). Defendant

acknowledges that this Court is bound by Schrauben, see MCR 7.215(C)(2), but argues that

Schrauben was wrongly decided and urges this Court to declare a conflict with Schrauben.

However, this Court has repeatedly declined to call a conflict with Schrauben, and defendant has

not identified any reason to do so now. See, e.g., Posey, ___ Mich App at ___; slip op at 8-9.

IV. STANDARD 4 BRIEF

In her Standard 4 brief5, defendant raises several claims of error involving alleged

discovery violations and errors in the admission of expert witness testimony, additional ineffective

assistance of counsel claims, and newly discovered evidence. In particular, defendant argues that

Latham, Campbell, and Dr. Kuslikis should not have been allowed to testify for the prosecution,

because the prosecution failed to comply with MCR 6.201(A)(3) and the trial court did not first

conduct a Daubert6 hearing for each expert. Defendant did not preserve these claims of error by

5

A supplemental appellate brief filed in propria persona by a criminal defendant under Michigan

Supreme Court Administrative Order 2004-6, Standard 4.

6

See Daubert v Merrell Dow Pharm, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).

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raising them before the trial court, and we accordingly review them for plain error. See Carines,

460 Mich at 763. None of these claims merit relief.

A. DISCOVERY VIOLATION

Defendant argues that the trial court erred by failing, as a sanction, to disallow the

prosecution’s expert witnesses from testifying because the prosecution did not provide her with

the discovery required under MCR 6.201(A)(3). That court rule states that, upon request, a party

must identify his or her proposed experts, must provide a curriculum vitae for each expert, and

must provide either a copy of the expert’s report or a written description of the expert’s proposed

testimony, opinion, and the underlying basis for the opinion. The trial court has the discretion to

sanction a party who does not comply with discovery in several ways, including by precluding

witness testimony. See MCR 6.201(J); People v Rose, 289 Mich App 499, 524; 808 NW2d 301

(2010).

The record shows that defendant propounded discovery requests relating to the

prosecution’s expert witnesses under the court rule, but the record does not show whether the

prosecution provided the required discovery for each expert. In the absence of any record evidence

that the prosecution failed to provide the required discovery and that the trial court was made aware

of that failure, it cannot be said that the trial court committed a plain or obvious error when it failed

to sanction the prosecution for a discovery violation. See Carines, 460 Mich at 763. Even

assuming that the prosecution did not comply with MCR 6.201(A)(3) for each witness, defendant

also has not demonstrated that any error prejudiced her at trial. The trial court had the discretion

to fashion an appropriate remedy for a discovery violation if that violation is brought to its

attention. See Rose, 289 Mich App at 525. However, the sanction must be reasonable and

appropriate under the totality of the circumstances:

The exercise of that discretion involves a balancing of the interests of the

courts, the public, and the parties. It requires inquiry into all the relevant

circumstances, including the causes and bona fides of tardy, or total,

noncompliance, and a showing by the objecting party of actual prejudice. However,

the exclusion of a witness is an extreme sanction that should not be employed if the

trial court can fashion a different remedy that will limit the prejudice to the party

injured by the violation while still permitting the witness to testify. [Id. at 525-526

(quotation marks and citations omitted).]

Defendant admits that the prosecution gave notice that it intended to call each witness, but

argues that the prosecution did not identify the witnesses as experts. She also concedes that

defense counsel had a report of the data collected from the event data recorder in defendant’s car

and that Campbell was identified as the person who had prepared it. She also concedes that Dr.

Kuslikis’s name appeared on her comprehensive blood screen results. Therefore, defense counsel

clearly had some idea that Campbell would testify about the data taken from the event data recorder

and that Dr. Kuslikis would testify about defendant’s toxicology results. There is no evidence that

defense counsel requested additional information that he failed to receive or that he was otherwise

unprepared to question the prosecution’s experts. Under these circumstances, defendant has not

shown that the extreme sanction of striking defendant’s expert witnesses in their entirety was the

appropriate sanction, even if the prosecution did violate the discovery rules. For these reasons,

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defendant has not shown that, were it not for a plain error by the trial court in failing to sanction

the prosecution, the result of the proceedings against her would have been different. See Carines,

460 Mich at 763.

B. DAUBERT HEARINGS

Defendant also argues that the trial court erred by failing to hold a Daubert hearing for

each of the prosecution’s experts. We disagree.

If a trial court determines that a witness’s “scientific, technical, or other specialized

knowledge” would assist the jury “to understand the evidence or to determine a fact in issue,” it

may permit a “witness qualified as an expert by knowledge, skill, experience, training, or

education” to testify “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.” MRE 702.

MRE 702 imposes a duty on trial courts to ensure that “that the testimony (1) will assist the trier

of fact to understand a fact in issue, (2) is provided by an expert qualified in the relevant field of

knowledge, and (3) is based on reliable data, principles, and methodologies that are applied reliably

to the facts of the case.” People v Kowalski, 492 Mich 106, 120; 821 NW2d 14 (2012).

Defendant does not argue that the prosecution’s expert witnesses did not assist the jury in

properly understanding the evidence, that the experts were not in fact qualified to testify as experts,

or that the fields of expertise at issue—accident reconstruction, event data recorders, and

toxicology—were not valid fields of expertise that utilize well-known methodologies. Rather, she

merely argues that the trial court could not admit these witnesses as experts in these fields without

first holding an evidentiary hearing. That, however, is not an accurate statement of the law. The

trial court had the discretion “to avoid unnecessary ‘reliability’ proceedings in ordinary cases

where the reliability of an expert’s methods is properly taken for granted.” Kumho Tire Co, Ltd v

Carmichael, 526 US 137, 152; 119 S Ct 1167; 143 L Ed 2d 238 (1999); see also People v Carll,

322 Mich App 690, 700-701; 915 NW2d 387 (2018) (stating that the trial court’s inquiry is flexible

and depends on the type of expert testimony offered).

Michigan courts have long recognized accident reconstruction and toxicology as valid

areas of expertise. See, e.g., O’Dowd v Linehan, 385 Mich 491; 189 NW2d 333 (1971) (discussing

testimony by an expert in accident reconstruction); Shaw v Bashore, 353 Mich 31, 33; 90 NW2d

688 (1958) (noting testimony about blood alcohol levels by a toxicologist). The record shows that

expert testimony would assist the jury in understanding the evidence and that the proposed experts

intended to offer opinions in recognized fields of expertise with well-known methodologies. See

McFarlane, 325 Mich App at 518-519 (stating that expert testimony is appropriate when the

evidence concerns matters that are beyond the ken of ordinary persons to evaluate). The record

also shows that the experts were each qualified by education, experience, and training to offer

expert opinions in their respective fields. See MRE 702.

Dr. Kuslikis testified that he had been the director of toxicology at Spectrum Health in

Grand Rapids for approximately 28 years. He stated that he had a Ph.D. from Michigan State

University and had even done some postdoctoral studies at the University of Wisconsin. He also

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worked as an analyst for five years, and had been admitted in courts as an expert at least 60 to 80

times.

Campbell testified that he had been a Michigan State Trooper for 31 years before his

retirement. He served as an accident reconstructionist during that time covering nine counties. He

first began performing accident reconstruction in 1991 and then transferred to advanced crash

reconstruction in 1995. He received his national certification in 1999. Campbell testified that he

had reconstructed between 60 to 70 crashes per year over his career, which amounted to thousands

of reconstructions. He also had testified in court as an expert 65 times.

Officer Latham testified that he had been an officer for 20 years, and had been a lab

specialist for 12 years. He stated as well that he had been certified in accident reconstruction since

2002 and had been admitted to testify as an expert more than a dozen times.

On this record, Daubert hearings were unnecessary. It was beyond reasonable dispute that

all three witnesses met the qualifications for testifying in their respective fields. Each of their

fields also had been recognized as fields of expertise in Michigan courts, and each expert plainly

utilized well-known methodologies. It was also evident that their testimonies would aid the jury

in understanding the evidence. Because this case involved an ordinary proceeding in which it

would be appropriate to take for granted that the experts were reliable, there was no need for a

Daubert hearing. See Kumho Tire Co, 526 US at 152. Defendant has not demonstrated plain error

affecting her substantial rights with regard to the trial court’s decision to allow the expert

testimony. See Carines, 460 Mich at 763.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

In her Standard 4 brief, defendant also claims that defense counsel provided ineffective

assistance in a variety of ways both before and during trial. Again, we review de novo whether

defense counsel’s performance fell below an objective standard of reasonableness under prevailing

professional norms and prejudiced defendant’s trial. See Gioglio, 296 Mich App at 19-20.

1. FAILURE TO MOVE TO SUPPRESS STATEMENTS

Defendant argues that defense counsel was ineffective in failing to move to suppress two

statements that she made to KDPS officers after the accident, one at the scene of the accident and

one at a later time, because they were not voluntary. We disagree. It is well settled that only

statements that a defendant voluntarily made are admissible against him or her at trial. See People

v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972). The test for voluntariness is whether the

statement was the product of an essentially free and unconstrained choice by the speaker, or

whether the speaker’s will had been overborne and his or her capacity for self-determination

critically impaired. See People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988). The

Court in Cipriano identified a nonexhaustive list of factors to consider when determining whether

a person’s statement was voluntarily made:

[T]he age of the accused; his lack of education or his intelligence level; the

extent of his previous experience with the police; the repeated and prolonged nature

of the questioning; the length of the detention of the accused before he gave the

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statement in question; the lack of any advice to the accused of his constitutional

rights; whether there was an unnecessary delay in bringing him before a magistrate

before he gave the confession; whether the accused was injured, intoxicated or

drugged, or in ill health when he gave the statement; whether the accused was

deprived of food, sleep, or medical attention; whether the accused was physically

abused; and whether the suspect was threatened with abuse. [Id. at 334.]

On this record, there was no evidence that defendant’s capacity for self-determination was

critically impaired when she gave either statement. With regard to the statement that she made at

the scene of the accident, defendant maintains that her injuries were such that she was not capable

of making a voluntary statement. Defendant has not presented any evidence to establish that she

was severely injured at the time she made the statement, and a KDPS officer testified that, although

upset, defendant was coherent and oriented when he spoke to her. See Cipriano, 431 Mich at 334.

With regard to the statement she later made to a KDPS detective, defendant argues that the

statement was not made voluntarily because the detective had told her that she could have her cell

phone back if she came down to the station to discuss the accident. Even if true, a promise to

return a cellular phone is not a promise of leniency, see People v Givans, 227 Mich App 113, 119-

120; 575 NW2d 84 (1997), or otherwise the kind of inducement that might have overwhelmed the

defendant’s ability to make a voluntary statement, see People v Conte, 421 Mich 704, 754; 365

NW2d 648 (1984) (opinion by BOYLE, J.).

Defendant also argues that she was not advised of her legal rights before being asked

questions at the scene of the accident and at the police station; however, defendant has presented

no evidence that she was in custody at the time she was questioned. See Clark, 330 Mich App at

414-415 (stating that the obligation to advise a suspect of his or her rights applies only to custodial

interrogations). Because there were no grounds for filing a motion to suppress, defense counsel

cannot be faulted for declining to file such a motion. See People v Riley, 468 Mich 135, 142; 659

NW2d 611 (2003) (stating that defense counsel has no obligation to make a frivolous or meritless

motion). In any event, it is doubtful that defendant’s statements to KDPS officers, which were

generally non-incriminating and consistent with her statements at trial,7 actually prejudiced the

result of the proceedings against her. See Gioglio, 296 Mich App at 22-23.

2. FAILURE TO OBJECT TO EVIDENCE

Defendant also argues that defense counsel was ineffective in failing to object to the

admission of evidence of defendant’s blood alcohol level, the in-court identifications of defendant

by various witnesses, and a photo of McVay trapped in the car. We disagree.

Again, evidence is relevant if it has “any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it would be

without the evidence.” MRE 401. Relevant evidence is generally admissible. MRE 402. But

7

Defendant argues that, without her statements at the scene of the accident, the prosecution could

not have established that she was the driver of the wrecked car. This argument is overwhelmingly

belied by the evidence presented at trial.

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even when evidence is otherwise relevant and admissible, a court may still refuse to admit the

evidence if—in relevant part—“its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury.” MRE 403.

The prosecution charged defendant with two offenses involving reckless driving, which

required proof that defendant operated a vehicle in “willful and wanton disregard for the safety of

persons or property.” MCL 257.626(2). The evidence that defendant had a blood alcohol level of

.047, which was more than half the legal limit, three hours after the accident, was relevant to

whether she was driving with impaired reflexes and judgment, which implicated whether she drove

with disregard for the safety of others. See Feezel, 486 Mich at 198-199. Defendant argues that

the jury might have been confused about the import of her blood alcohol level since she was not

charged with crimes involving driving while under the influence. However, the trial court

instructed the jury that it was charged with determining whether defendant had driven recklessly

and whether her conduct caused McVay’s death and Culver’s serious impairment of body function.

Those instructions protected defendant from any jury confusion in that regard. See Kowalski, 492

Mich at 130 n 56 (noting that jurors are presumed to follow their instructions). Additionally, the

fact that the evidence was damaging to defendant’s version of events does not justify excluding

the evidence under MRE 403. All relevant evidence is damaging to some extent. See Mills, 450

Mich at 75-76. The test for exclusion under MRE 403 is not whether the evidence is damaging;

the test is whether “marginally probative evidence will be given undue or preemptive weight by

the jury.” People v Mardlin, 487 Mich 609, 627; 790 NW2d 607 (2010) (quotation marks and

citation omitted). The toxicology evidence was not marginally probative of defendant’s

recklessness—it was highly relevant to whether she was driving with due regard for the safety of

others; consequently, its probative value for determining whether defendant was driving recklessly

was not substantially outweighed by the danger of unfair prejudice. See MRE 403.

The toxicology evidence was admissible and defense counsel did not provide ineffective

assistance by failing to make a meritless objection. See People v Ericksen, 288 Mich App 192,

201; 793 NW2d 120 (2010). Further, although the evidence was likely damaging to her case, in

light of the other overwhelming evidence against her, defendant cannot show that the absence of

this evidence would have resulted in a different outcome. Gioglio, 296 Mich App at 22-23.

Regarding the in-court identifications by various police witnesses, defense counsel had no

grounds upon which to rest an objection. Generally, an identification may be inadmissible if the

person making the identification was exposed to a tainted or unduly suggestive pretrial procedure.

See People v Barclay, 208 Mich App 670, 675; 528 NW2d 842 (1995); see also People v Williams,

244 Mich App 533, 542; 624 NW2d 575 (2001) (stating that the defendant must show that the

pretrial identification procedure was so suggestive that it led to a substantial likelihood of

misidentification). Defendant has not identified such a procedure. Defense counsel had no

obligation to make a frivolous objection to these identifications. See Ericksen, 288 Mich App at

201.

Defense counsel also did not provide ineffective assistance by failing to object to the

admission of a photograph of McVay still trapped inside the crashed car. The image was relevant

as a visual aid to understanding the testimonies of the witnesses who responded to the scene of the

accident. See Mills, 450 Mich at 72-74 (providing that images of a victim’s injuries may be

relevant to corroborate a witness’s testimony). Further, it was relevant to establishing defendant’s

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identity as the driver of the car. Moreover, although relevant evidence may be excluded if “its

probative value is substantially outweighed by the danger of unfair prejudice,” MRE 403, the fact

that the photograph was of an accident victim did not in and of itself require exclusion. See Mills,

450 Mich at 76. The image of McVay was not gruesome, and was not the type of image that would

induce an emotional response such that there was a danger that “evidence which is minimally

damaging in logic will be weighed by the jurors substantially out of proportion to its logically

damaging effect.” Id. at 75-76 (quotation marks and citation omitted). Consequently, the image

was not subject to exclusion under MRE 403, and, for that reason, defense counsel cannot be

faulted for failing to object on that basis. See Ericksen, 288 Mich App at 201.

3. PLEA NEGOTIATIONS

Defendant also argues that defense counsel provided her with ineffective assistance during

pretrial plea negotiations by failing to properly inform her of the risks of rejecting a plea bargain.

We disagree.

A defendant is entitled to the effective assistance of counsel during the plea-bargaining

process. See People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014). In order to

demonstrate that she did not receive effective assistance during plea negotiations, defendant must

show that defense counsel’s assistance fell below an objective standard of reasonableness under

prevailing professional norms and that there was a reasonable probability that, but for defense

counsel’s substandard advice, her plea would have been accepted. See id. at 592.

The only record evidence concerning any plea offers is a brief colloquy on the first day of

trial between the attorneys and the trial court. The prosecution indicated that it would have

dropped the second charge of reckless driving causing serious impairment and the habitual-

offender enhancement if defendant had accepted its plea offer and pled to reckless driving causing

death. Defendant acknowledged to the court that defense counsel had relayed the offer to her and

that she had rejected it. She also agreed that she wanted a jury trial. On this record, there is no

indication that defense counsel did not advise defendant of the benefits of taking the plea offer or

the risks associated with proceeding to trial. Defendant has the burden to establish the factual

predicate for her ineffective-assistance claim, which she has not done. Id. Accordingly, we cannot

conclude that defense counsel’s conduct during plea negotiations fell below an objective standard

of reasonableness. See Gioglio, 296 Mich App at 22.

4. FAILURE TO REQUEST DURESS INSTRUCTION

Defendant also argues that defense counsel was ineffective in failing to request that the

jury be instructed on the defense of duress. Specifically, she argues that the evidence showed that

she only got into an accident as a result of the “duress” that she experienced when another vehicle

cut her off. We disagree.

A defendant is entitled to a duress instruction if the defendant comes forth with evidence

from which a reasonable jury could conclude that, in relevant part, another person threatened her

or someone else with death or serious bodily harm, and that the defendant committed the offense

at issue to avoid the threatened harm. See People v Reichard, 505 Mich 81, 88; 949 NW2d 64

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(2020). The evidence must also show that the threat did not arise from the defendant’s negligence

or fault. Id.

In this case, there is no evidence that defendant felt compelled to drive recklessly in order

to avoid a greater harm, see MCL 257.626(2), including such conduct as driving down a residential

street at more than 80 miles per hour. Although defendant argues that she was compelled by

“duress” to take evasive action when another car cut her off, her argument does not implicate the

defense of duress. See Reichard, 505 Mich at 88. Rather, the question of whether defendant’s

accident was caused by being cut off by another car was properly addressed as an issue of

intervening cause, as discussed earlier in this opinion. That question was before the jury, and it

rejected that theory. Defense counsel did not provide ineffective assistance by failing to request

an inapplicable jury instruction. See Ericksen, 288 Mich App at 201.

5. DEFENSE EXPERTS

Defendant also argues that defense counsel was ineffective in failing to retain defense

expert witnesses, specifically an accident reconstructionist or toxicologist. We disagree. Defense

counsel stated on the record that he had consulted with an accident reconstructionist, who reviewed

the prosecution’s report on the accident, and that he had determined that it was unnecessary to

secure a defense expert. Although defendant claims that defense counsel could not reach that

conclusion because he himself was not an expert in accident reconstruction, that is not the standard.

The question is whether defense counsel’s decision was properly supported by reasonable

investigation such that his decision amounted to a reasonable professional judgment as a defense

lawyer. See People v Grant, 470 Mich 477, 486-487; 684 NW2d 686 (2004). There is no record

evidence that defense counsel’s assessment of the need for a defense expert in accident

reconstruction was not made on the basis of a reasonable investigation. See id.

In any event, defendant had the burden to demonstrate that her proposed expert witnesses

would have testified favorably to the defense. See People v Ackerman, 257 Mich App 434, 455-

456; 669 NW2d 818 (2003). And she has not identified any expert who would have testified

favorably on her behalf with regard to the accident reconstruction or toxicology results. She

merely speculates that some expert might have identified flaws in the prosecution experts’

testimonies. Her speculation is insufficient to establish that defense counsel’s decision not to call

these experts amounted to ineffective assistance. See id.

6. DEFENDANT’S TESTIMONY

Defendant also argues that her defense counsel was ineffective in allowing her to testify.

There is no evidence that defense counsel improperly advised defendant about her right to testify

on her own behalf, see People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999) (holding that the

defendant bears the burden to establish the factual predicate for his or her claim of ineffective

assistance). Defendant has also not established that defense counsel provided ineffective

assistance with regard to advising her on the risks associated with her decision to testify. See

Gioglio, 296 Mich App at 22-23. She has further failed to establish that she was prejudiced as a

result of her decision to testify, in light of the nature of her testimony and the other evidence against

her. Accordingly, she has not met her burden to demonstrate ineffective assistance. See id.

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7. SEARCH WARRANT

Defendant also argues that defense counsel was ineffective in failing to move to suppress

the results of the search warrant authorizing the testing of her blood draw on the ground that the

affidavit in support of the warrant was deficient. We disagree. A search warrant should not be

issued absent probable cause. See Martin, 271 Mich App at 298. “Probable cause to issue a search

warrant exists where there is a substantial basis of inferring a fair probability that contraband or

evidence of a crime will be found in a particular place.” Id. (quotation marks and citations

omitted). When examining an affidavit in support of a request for a search warrant, this Court

must read the affidavit in a commonsense manner to determine whether a reasonably cautious

person could have concluded that there was a substantial basis for finding probable cause. Id.

In the affidavit submitted in support of the search-warrant request, Officer Howe stated

that witnesses had confirmed that defendant was involved in an accident on South Westnedge, and

that a witness had stated that defendant’s car was traveling at least 80 miles per hour when she lost

control and crashed. Defendant herself admitted to an officer that she was the driver. Officer

Howe stated that an officer took pictures of the crashed car and observed a bottle of liquor near

the crash but did not know if it had been opened. Officer Howe also stated that defendant had a

history of operating while under the influence.

Reading these statements in a commonsense manner, a reasonably cautious person could

have concluded that there was a substantial basis for finding probable cause to believe that

defendant’s blood would reveal evidence that she was driving with alcohol in her system contrary

to law. See Martin, 271 Mich App at 298. Because there was probable cause to support the

magistrate’s decision to issue the warrant, defense counsel cannot be faulted for failing to file a

frivolous motion to suppress the search results on the ground that the affidavit was insufficient to

support the warrant. See Riley, 468 Mich at 142.

8. CUMULATIVE ERROR

Because defendant has failed to establish any of her individual claims of ineffective

assistance, her claim of cumulative error necessarily fails. See People v LeBlanc, 465 Mich 575,

591 n 12; 640 NW2d 246 (2002).

D. NEWLY DISCOVERED EVIDENCE

Finally, defendant argues that she is entitled to a new trial on the basis of newly discovered

evidence. Specifically, she states that she only recently recalled that she was not the driver of the

car, and she now seeks to recant her trial testimony. We disagree that a new trial is warranted.

Because defendant did not preserve this claim of error by raising it in the trial court, see People v

Darden, 230 Mich App 597, 605-606; 585 NW2d 27 (1998), we review this claim for plain error,

see Carines, 460 Mich at 763.

Our Supreme Court has recognized that a new trial may be warranted on the basis of newly

discovered evidence. See People v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012). Such motions

have not, however, been looked upon with favor because courts do not want the parties to submit

evidence in “installments”; rather, in the interests of finality and absent exceptional circumstances,

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it is understood that the trial represents the one and only opportunity for the parties to present their

evidence. Id. at 280. Our Supreme Court “struck a balance between upholding the finality of

judgments and unsettling judgments in the unusual case in which justice under the law requires a

new trial” by adopting a four-part test whose elements a defendant must meet in order to warrant

the grant of a new trial on the basis of newly discovered evidence under MCR 6.431(B). Id. at 280-

281. Under that test, the defendant must demonstrate that “(1) the evidence itself, not merely its

materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the

party could not, using reasonable diligence, have discovered and produced the evidence at trial;

and (4) the new evidence makes a different result probable on retrial.” People v Cress, 468 Mich

678, 692; 664 NW2d 174 (2003) (quotation marks and citation omitted).

Defendant claims that she only recently recalled that someone else was driving the car, and

that she only testified that she was the driver because she had been threatened by persons associated

with McVay. She claims in her affidavit that she now recalls picking up a friend of McVay’s and

that he was the real driver. Accordingly, she wishes to recant her testimony and seeks a new trial

on the basis of her newly discovered memories.

Courts traditionally put little stock in recanted testimony because it has been “regarded as

suspect and untrustworthy”; nevertheless, the “discovery that testimony introduced at trial was

perjured may be grounds for ordering a new trial.” People v Barbara, 400 Mich 352, 363; 255

NW2d 171 (1977); see also People v Smallwood, 306 Mich 49, 54-55; 10 NW2d 303 (1943).

Recanted testimony will not, however, warrant a new trial if no reasonable juror could find the

testimony credible on retrial. See People v Johnson, 502 Mich 541, 566-567, 571; 918 NW2d 676

(2018).

The overwhelming evidence at trial established beyond a reasonable doubt that defendant

was the driver of the car and that McVay was the only other person in the car. There were several

witnesses to the accident—including persons who were immediately at the scene—and those

witnesses did not identify anyone other than a man and a woman as the persons found in the

crashed car immediately after the accident. Maikoski testified that a woman crawled from the car

and a man was still trapped inside. No witnesses testified that any other person fled from the scene.

Additionally, defendant admitted to a KDPS officer at the scene of the accident that she was the

driver of the car, and she later admitted the same thing to a detective. When she testified at trial,

defendant again confirmed that she was the driver. A photograph of McVay in the passenger seat

of the crashed car was admitted into evidence. Considering all this evidence, no reasonable juror

could find that defendant would be testifying truthfully if she were subsequently to testify that she

had suddenly recalled that she was not the driver of the car and that she had picked up an unknown

friend of McVay’s, who was the actual driver. Defendant’s unreliable and self-serving affidavit

does not warrant a new trial. See id.

Affirmed.

/s/ James Robert Redford

/s/ Jane E. Markey

/s/ Mark T. Boonstra

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