STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED December 27, 2016 v No Chippewa Circuit Court DONALD NELSON, II, LC No AR Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No Chippewa Circuit Court MARY JOANNA PLIS, LC No AR Defendant-Appellant. Before: MARKEY, P.J., and MURPHY and RONAYNE KRAUSE, JJ. PER CURIAM. Defendant Mary Joanna Plis was the mother of a two-year-old boy, and defendant Donald Nelson, II, was Plis s friend; he was not the child s father. The child was found unresponsive sometime around 9:30 a.m. on April 19, 2013, after having spent the night on a couch shared with Plis in Nelson s home, while Nelson slept alone on a nearby couch. The child was pronounced dead at the hospital a short time later following unsuccessful attempts at resuscitation. Plis and Nelson were charged with involuntary manslaughter, MCL The prosecution s theory was that the child died of asphyxiation as a result of being overly swaddled in multiple blankets, with the intent to limit his rambunctious movements and allow defendants to sleep, and then placed on a soft and pliant couch next to Plis, creating a suffocation hazard given the excessive swaddling that effectively immobilized the child. The district court declined to bind defendants over to the circuit court for trial, finding a lack of probable cause showing that the offense of involuntary manslaughter had been committed or that defendants had committed the crime. On appeal to the circuit court, the court ruled that the district court had abused its discretion regarding the bindover decision, ignoring key evidence that established the requisite -1-

2 probable cause. This Court granted defendants applications for leave to appeal and consolidated the appeals. People v Nelson, unpublished order of the Court of Appeals, entered May 24, 2016 (Docket No ); People v Plis, unpublished order of the Court of Appeals, entered May 24, 2016 (Docket No ). We affirm the circuit court s ruling and hold that the district court abused its discretion with respect to its determination that probable cause to bind defendants over for trial was not established. In People v Henderson, 282 Mich App 307, ; 765 NW2d 619 (2009), this Court recited the standards of review implicated in regard to bindover decisions, observing: A district court's ruling that alleged conduct falls within the scope of a criminal law is a question of law that is reviewed de novo for error, but a decision to bind over a defendant based on the factual sufficiency of the evidence is reviewed for an abuse of discretion. In reviewing the bindover decision, a circuit court must consider the entire record of the preliminary examination and may not substitute its judgment for that of the district court. The decision to bind over a defendant may only be reversed if it appears on the record that the district court abused its discretion. This Court also reviews the bindover decision de novo to determine whether the district court abused its discretion. Thus, this Court gives no deference to the circuit court's decision. [Citations omitted.] In a case involving a district court s decision to deny the prosecutor s request for a bindover, as here, our Supreme Court reiterated that [a] district court s decision regarding a bindover is reviewed for an abuse of discretion, while noting that a district court would necessarily abuse its discretion if it made an error of law. People v Feeley, 499 Mich 429, 434; NW2d (2016). A lower court abuses its discretion when it elects an outcome that falls outside the range of reasonable and principled outcomes. People v Orr, 275 Mich App 587, ; 739 NW2d 385 (2007). With respect to preliminary examinations in general and a district court s role in the proceeding, this Court in People v Waltonen, 272 Mich App 678, 684; 728 NW2d 881 (2006), stated: The primary function of a preliminary examination is to determine whether a felony has been committed and, if so, whether there exists probable cause to believe that the defendant committed the felony. Probable cause requires evidence sufficient to make a person of ordinary caution and prudence to conscientiously entertain a reasonable belief of the defendant's guilt. The magistrate, however, need not be without doubts regarding guilt. Following the conclusion of the preliminary examination, if it appears to the district court that there is probable cause to believe that a felony was committed and that the defendant committed it, the court must bind the defendant over for trial. MCL ; MCR 6.110(E). [Citations omitted.] In the context of a preliminary examination and the associated probable-cause standard, the prosecution need not prove each element of an offense beyond a reasonable doubt; rather, the prosecution must merely present some supporting evidence on each element. Henderson,

3 Mich App at 312. Circumstantial evidence, along with reasonable inferences arising from the evidence, can suffice to show probable cause. Id. The Michigan Supreme Court has instructed examining magistrates to not refuse to bind a defendant over for trial when the evidence conflicts or raises reasonable doubt of the defendant s guilt. People v Yost, 468 Mich 122, 128; 659 NW2d 604 (2003); see also Henderson, 282 Mich App at 312 ( If the evidence conflicts or raises a reasonable doubt, the defendant should be bound over for trial, where the questions can be resolved by the trier of fact. ). Under the theory of involuntary manslaughter advanced by the prosecution in this case, it was necessary to show that defendants committed a lawful act in a grossly negligent manner that caused the death of another person. People v Holtschlag, 471 Mich 1, 17; 684 NW2d 730 (2004); M Crim JI To prove gross negligence amounting to involuntary manslaughter, the prosecution must establish: (1) defendant's knowledge of a situation requiring the use of ordinary care and diligence to avert injury to another, (2) her ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) her failure to use care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. People v Albers, 258 Mich App 578, 582; 672 NW2d 336 (2003); see also M Crim JI In the instant prosecution, the following evidence was presented at the preliminary examination: 1 (1) evidence that the child was swaddled or wrapped in blankets by Nelson with Plis s knowledge; (2) evidence that Nelson, with Plis s awareness, placed the child on the couch against the back portion of the sofa, tucking one of the blankets covering the child into the cushion; (3) evidence that Plis slept on the outer edge of the couch s seat next to or against the child (head to feet); (4) evidence that the child was swaddled in the fashion described above so as to limit his movements in order to prevent the child from interfering with or disturbing defendants sleep; (5) evidence that the couch was soft, making it easy for the child to sink into the sofa; (6) evidence that the child had facial friction abrasions consistent with being pressed against beaded embroidery on the couch; (7) medical evidence that two-year-old children typically have sufficient strength and agility to extricate themselves from and avoid situations that pose a suffocation hazard comparable to the circumstances that existed in this case; (8) evidence that both defendants had previously taken parenting classes; and (9) evidence that the child s autopsy produced findings consistent with death by asphyxiation or suffocation. 1 Aside from the testimony of witnesses at the preliminary examination, the district court admitted into evidence various photographs, a transcript of an administrative hearing, limited to defendants testimony at the hearing that was elicited after they were warned that it could be used against them in any future criminal proceedings, and a videotape of reenactments performed by each defendant at the behest of the police concerning the swaddling of the child and his placement on the couch, which reenactments employed the use of a doll. The administrative hearing pertained to an effort by Nelson to have his name removed from the Child Abuse and Neglect Central Registry. -3-

4 This evidence clearly established probable cause that defendants had engaged in gross negligence in relation to the lawful act of putting the child down to sleep. Swaddling the twoyear-old child with blankets to the point and for the purpose of immobilization and then placing him on the inner portion of a soft couch next to a soon-to-be sleeping adult and tucking him into the couch reflect a failure to use ordinary care and diligence to avert injury, which danger was easily avoidable and within defendants knowledge. The direct and circumstantial evidence, and reasonable inferences arising from the evidence, was sufficient to make a person of ordinary caution and prudence to conscientiously entertain a reasonable belief that gross negligence was involved in this case. In reviewing the district court s ruling, it does not appear that the court found a failure to adequately show gross negligence, but to the extent that the court did make such a finding, the determination did not fall within the range of reasonable and principled outcomes in light of the record. 2 The district court declined to bind defendants over for trial primarily, if not entirely, on the basis of a perceived failure to show that defendants actions caused the child s death. The sole premise for this ruling was the district court s interpretation of the pathologist s testimony, wherein the pathologist indicated that the precise cause and manner of death was indeterminate. We hold that the district court misconstrued the pathologist s testimony, failing to take into consideration the whole of the testimony and undisputed circumstances surrounding the child s death. The pathologist testified that his initial findings were consistent with asphyxia type death, positional smothering type asphyxia death. The primary basis for this conclusion was the presence of pulmonary and cerebral edemas, along with the facial abrasions. He later changed the cause and manner of death to indeterminate because he had received information that there was some suspicion of a potential drowning or something of that nature. More specifically, he testified, I subsequently received additional information concerning apparently 2 The district court did remark that the actor Rob Lowe had written an article about how he used to wrap his child up like a burrito until the child was old enough to say [that he] d[i]dn t want to be wrapped up like that anymore. And the district judge commented that she used to swaddle her children, as taught to her by a nurse. Despite these observations that suggested that the district court approved of swaddling in general, the court did not expressly conclude that there was inadequate evidence showing gross negligence in this case relative to the particular manner in which the deceased child had been swaddled. Additionally, the district court did not state that the prosecution s case was unsustainable on the ground that there was insufficient evidence showing that defendants lacked knowledge of the potential hazard posed by their actions. Even had the district court reached such a conclusion, it would constitute error, given that to the ordinary mind it would have been apparent that a disastrous result could occur by over swaddling the child in blankets to the point of immobilization and then tucking him into a soft couch, with Plis laying up against the child. Albers, 258 Mich App at 582. A jury needs to resolve whether the child was actually improperly swaddled and immobilized, whether defendants had the requisite knowledge, and whether defendants actions ultimately constituted gross negligence. -4-

5 conflicting stories and some question about unexplained use of a bathtub and wet clothing and so forth. The pathologist explained that drowning can also lead to pulmonary edema and cerebral edema, although a drowning would not necessarily have caused any abrasions. Thus, he felt it best to list the... cause [and]... manner of death as indeterminate. The pathologist testified, however, that the cause of death was consistent with suffocation or asphyxiation. The record reveals that the wet clothing referenced by the pathologist pertained to the child urinating on himself, as discussed by the emergency-room physician who treated the child. With respect to information concerning a bathtub, Plis had testified at the abuse-registry administrative hearing that there was a bathtub in Nelson s house, but that she had never used it, and there was testimony about Plis being in the bathroom when Nelson discovered that the child was unresponsive. There was no evidence even remotely suggesting that the child had drowned in a bathtub, and the pathologist plainly had misinformation about the child possibly drowning. Taking the drowning scenario out of the equation, the pathologist s opinion regarding the cause and manner of death was entirely consistent with the prosecution s theory of the case. Considering the record, the district court s ruling to the contrary was neither reasonable nor principled; there existed more than adequate evidence that defendants actions caused the child s death. Affirmed. /s/ William B. Murphy /s/ Amy Ronayne Krause -5-

6 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED December 27, 2016 v No Chippewa Circuit Court DONALD NELSON II, LC No AR Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No Chippewa Circuit Court MARY JOANNA PLIS, LC No AR Defendant-Appellant. Before: MARKEY, P.J., and MURPHY and KRAUSE, JJ. MARKEY, P.J. (dissenting). I respectfully disagree with the majority because I will not substitute my judgment for that of the magistrate. See People v Doss, 406 Mich 90, 101; 276 NW2d 9 (1979), citing People v Dellabonda, 265 Mich 486, 491; 251 NW 594 (1933). I conclude that the record of the preliminary examination in this case does not demonstrate that the magistrate clearly abused its discretion, id., when it discharged defendants Donald Nelson II and Mary Joanna Plis from the accusation of involuntary manslaughter, MCL , in connection with the death of Plis s 2½-year-old son. I would therefore reverse the circuit court and affirm the district court. Throughout its history Michigan has had the same two basic requirements to hold an accused for trial in the circuit court for an offense not cognizable in the district court. See People v Yost, 468 Mich 122, ; 659 NW2d 604 (2003) ( [T]he preliminary examination has a dual function, i.e., to determine whether a felony was committed and whether there is probable cause to believe the defendant committed it. ); Yaner v People, 34 Mich 286, (1876) ( [I]t is only when it shall appear from such examination that an offense not cognizable -1-

7 by a justice of the peace has been committed, and that there is probable cause to believe the prisoner guilty thereof, that he can be held for trial. ). The current iteration of the statute concerning binding an accused over to circuit court expresses these two requirements in its first sentence: If the magistrate determines at the conclusion of the preliminary examination that a felony has not been committed or that there is not probable cause for charging the defendant with committing a felony, the magistrate shall either discharge the defendant or reduce the charge to an offense that is not a felony.... [MCL ] Although it is often stated that the magistrate must find probable cause to believe that a crime has occurred, see MCR 6.110(E) & (F), the statutory probable cause requirement relates to whether there is reason to believe the accused has committed the crime the magistrate determines has occurred. See People v Paille, 383 Mich 621, 628; 178 NW2d 465 (1970) ( The magistrate was aware that in the light of our decisions, defendants should not be bound over for trial if the people merely proved that there was probable cause to believe that the crime... charged in the warrant had been established. ); see also Doss, 406 Mich at , citing People v Asta, 337 Mich 590, ; 60 NW2d 472 (1953), and People v Oster, 67 Mich App 490, 495; 241 NW2d 260 (1976). Still, at the preliminary examination, evidence sufficient to prove the accused guilty beyond a reasonable doubt of the crime charged is not required for a bindover. See Yost, 468 Mich at 126 ( At the examination, evidence from which at least an inference may be drawn establishing the elements of the crime charged must be presented. ); Doss, 406 Mich at 100 ( The object of a preliminary examination is not to prove guilt or innocence beyond a reasonable doubt, nor should a magistrate discharge a defendant when evidence conflicts or raises reasonable doubt of his guilt; such questions should be left for the jury upon the trial. ); Yaner, 34 Mich at 289 (The magistrate need not nicely weigh evidence as a petit jury would, or... discharge the accused where there is a conflict of evidence, or where there is a reasonable doubt as to his guilt; all such questions should be left for the jury upon the trial. ). In this case, defendants were charged with involuntary manslaughter, MCL , an offense found within Chapter XLV of Michigan s Penal Code addressing homicide. Homicide is one of four categories by which human deaths are classified, the others being natural, accidental, and suicide. See Brown v People, 17 Mich 429, 433 (1868); People v Yost, 278 Mich App 341, 395; 749 NW2d 753 (2008). Homicide is the killing of a human being by a human being. It may, or may not, be felonious. If felonious, it is either murder or manslaughter, dependent upon the facts and circumstances surrounding the killing. People v Austin, 221 Mich 635, 644; 192 NW 590 (1923); see also People v Cambell, 124 Mich App 333, 338; 335 NW2d 27 (1983). When a person is charged with a homicide, it is both the right and the duty of the prosecution to give evidence of all those surrounding facts and circumstances which have any bearing upon the manner of the death, and any tendency to show whether it was natural, accidental, or felonious[.] Brown, 17 Mich at 433. A magistrate s decision on whether there is sufficient evidence to determine that the crime charged has been committed and probable cause to believe the accused committed the charged crime is reviewed for a clear abuse of discretion. Doss, 406 Mich at 101. An abuse of discretion occurs when a court makes a decision that falls outside the range of reasonable and -2-

8 principled outcomes. People v Waterstone, 296 Mich App 121, ; 818 NW2d 432 (2012). When this Court reviews the magistrate s decision, we accord no deference to the circuit court s decision regarding the magistrate s bindover decision. People v Harlan, 258 Mich App 137, 145; 669 NW2d 872 (2003). This Court essentially sits in the same position as the circuit court when determining whether the magistrate s bindover decision was an abuse of discretion. People v Hudson, 241 Mich App 268, 276; 615 NW2d 784 (2000). The magistrate has the duty to pass judgment on the credibility of witnesses as well as the weight and competency of the evidence, People v Crippen, 242 Mich App 278, 282; 617 NW2d 760 (2000), and the reviewing court may not substitute its judgment for that of magistrate absent a clear abuse of discretion. Doss, 406 Mich at 101; see also Yost, 468 Mich at (holding that the magistrate abused its discretion rejecting expert testimony and not binding the defendant over to circuit court). In this case, the magistrate dismissed the charges against both defendants after concluding that there was insufficient evidence to find that a crime had been committed. On appeal by the prosecutor, the circuit court disagreed, concluding that there was ample evidence to establish probable cause that the child had died as the result of criminal activity, and also probable cause to believe that defendants had committed the crime. Accordingly, the circuit court ruled that the district court had abused its discretion by ignoring the evidence, and it remanded the case to the district court for further proceedings. As noted already, at the preliminary examination, the prosecutor must present evidence from which at least an inference may be drawn establishing each element of the crime charged. Yost, 468 Mich at 126; Doss, 406 Mich 101. Thus, in People v Henderson, 282 Mich App 307, 312; 765 NW2d 619 (2009), the Court wrote concerning the preliminary examination: To establish that a crime has been committed, a prosecutor need not prove each element beyond a reasonable doubt, but must present some evidence of each element. Circumstantial evidence and reasonable inferences from the evidence can be sufficient. If the evidence conflicts or raises a reasonable doubt, the defendant should be bound over for trial, where the questions can be resolved by the trier of fact. [Citations omitted.] To prove a charge of involuntary manslaughter, MCL , the prosecution must establish that the defendant acted in a grossly negligent, wanton, or reckless manner, causing the death of another. People v Moseler, 202 Mich App 296, 298; 508 NW2d 192 (1993). This requires a showing that (1) defendant knew of a situation that required the use of ordinary care and diligence to avoid injuring someone, (2) defendant would have been able to avoid the harm that resulted by using, and (3) defendant failed to use the ordinary care and diligence to avoid the threatened harm when to the ordinary mind it must be apparent that the disastrous result would be likely. People v Albers, 258 Mich App 578, 582; 672 NW2d 336 (2003). I conclude that the magistrate did not clearly abuse its discretion by dismissing the charges against defendants. Even assuming that the prosecution s theory that Ethan had died from suffocation as the result of defendants conduct was correct, there was no evidence to indicate that either defendant knew that wrapping a child in blankets on a soft couch could result in the child s death. Although it was the current practice of the Chippewa County CPS to teach caregivers to put babies to sleep on their backs without blankets, pillows, or other soft items, -3-

9 testimony indicated that this safe sleep policy had been instituted within the last five years, and applied only to children less than one year old. In this case, there was no evidence that either defendant had received this information, and even if they had, it would not have applied to Plis s child, who was 2½ years old. Indeed, there is no evidence at all that Ethan s death was anything more than a tragic accident. Unlike the situation presented in Albers, which involved a parent who repeatedly allowed a six-year-old child access to matches and cigarette lighters, id. at , the dangers of blankets and soft couches are not something a parent should intuitively know, as demonstrated by the fact that CPS finds it necessary to instruct against their use. Without such instruction, I believe it would not be apparent to the ordinary mind that placing a blanket-wrapped 2½-yearold child on a soft couch would likely to prove disastrous[.] Id. at 582. Because there was no evidence that defendants knew or should have known that the manner in which they put the child to sleep could have resulted in his death, the prosecution failed to establish that defendants acted in a grossly negligent, wanton, or reckless manner, Moseler, 202 Mich App at 298, and the magistrate did not clearly abuse its discretion by determining that the evidence was insufficient to determine the crime of manslaughter occurred or in finding that probable cause did not exist to believe that defendants committed that crime. Doss, 406 Mich at 101; Waterstone, 296 Mich App at 131. Moreover, unlike the circumstances in Yost, 468 Mich at 129, where the prosecution s forensic pathologist testified that he concluded that a crime, homicide, had taken place, and the magistrate abused its discretion by rejecting this testimony, id. at , 133, in this case, the magistrate accepted the testimony of the prosecution s expert witness, a forensic pathologist with twenty-plus years of experience. Dr. David Start testified that, in his opinion, the cause of death was indeterminate or undetermined cause of death as was the manner of death. Further, when asked about the prosecution s swaddling theory, Dr. Start could only say that it may be a factor in the death yes. (Emphasis added). Finally, Dr. Start corroborated that positional asphyxiation, which safe sleep programs are designed to prevent, was most common in younger infants less than six months old and that such deaths of children two to three years old would be less common. Again, this testimony does not support finding that defendants knew or should have known their actions or inactions in this case would create a danger that is likely to prove disastrous to another. Albers, 258 Mich App at 582. In my opinion, therefore, the record supports the magistrate s decision that there is insufficient evidence to determine that the crime charged was committed. The prosecutor did not present evidence from which at least an inference may be drawn establishing each element of the crime charged. Yost, 468 Mich at 126; Doss, 406 Mich 101. I conclude that the magistrate most certainly did not clearly abuse its discretion by finding that the evidence was insufficient to determine the crime of manslaughter occurred or finding that probable cause was lacking to believe that defendants committed that crime. Doss, 406 Mich at 101; Waterstone, 296 Mich App at 131. I would reverse the circuit court and affirm the district court s order dismissing the criminal charges against defendants. /s/ Jane E. Markey -4-