People of Michigan v. David Duane Brown
CourtMichigan Court of Appeals
Date FiledOctober 28, 2026
Docket369529
StatusPublished
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Full Opinion
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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 15, 2026
Plaintiff-Appellee, 9:24 AM
APPROVED FOR
PUBLICATION
October 28, 2026
2:45 PM
v No. 369529
Eaton Circuit Court
DAVID DUANE BROWN, LC No. 2022-020161-FH
Defendant-Appellant.
Before: RIORDAN, P.J., and REDFORD and PATEL, JJ.
REDFORD, J.
Defendant, David Duane Brown, was convicted following a jury trial of one count of
driving while license suspended causing death, MCL 257.9044, and one count of failing to stop at
the scene of an accident resulting in death, MCL 257.617. The trial court sentenced defendant to
serve 5 years, 11 months to 15 years’ imprisonment for the first count, and 44 days for the second
count, with 44 days credit for time served. Defendant appeals his convictions and sentence. While
several statements made by the trial judge during sentencing were inappropriate and reflected her
opinion rather than the record, we do not find this error so substantial as to warrant the relief
sought. The record as a whole does not demonstrate that she penalized defendant for exercising
his Fifth Amendment right not to testify on his own behalf by imposing a heightened sentence or
that any error rose to the level necessary to vacate the within-guidelines sentence. We affirm.
I. FACTS AND PROCEDURAL HISTORY
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At approximately 8:30 p.m.1 on November 13, 2021, defendant hit and killed a thirteen-
year-old boy, DH, while driving east on Jolly Road in Lansing, Michigan. At his mother’s request,
DH was walking to a convenience store from his home in the Kensington Meadows mobile home
park. She learned of his death from police officers investigating the scene.
After defendant struck the child, defendant did not stay at the scene. DH’s body was found
at 1:26 a.m. by a passerby, Eric Williams, who saw what he believed to be a body on the side of
the road, and he called 911. Officer Daniel Salinaz of the Lansing Police Department (LPD)
arrived at the scene and found DH’s body between the two entrances to Kensington Meadows in
a ditch on the side of the road. Officer Salinaz attempted to resuscitate DH, but his body was cold
to the touch with blood coming out of his nose and mouth. DH was pronounced dead at 1:55 a.m.
at McLaren Hospital. Officer Salinaz observed parts of a headlight at the scene, as well as “tire
tracks that went into the ditch and pretty much ended roughly where the body lie.”
The police investigation following the accident included analysis by a crash
reconstructionist, Detective Timothy Mapley, who testified that he observed DH’s body
“approximately five-ish feet off the roadway,” that he observed debris located on the shoulder that
included plastic fragments eventually identified as pieces of a headlight from a 2000-2004
Chevrolet S-10 or Blazer, and it was located on a stretch of road not lit by streetlights. The sky
that evening was overcast, and the road was damp. He also observed two sets of skid marks
consistent with heavy braking. Based on his field observations and calculations, he testified that
DH was likely walking along the side of the road, partially in the grass.
The day after the accident, Detective Mapley reviewed surveillance camera footage from
the entrances to Kensington Meadows, which showed DH leaving his home at approximately 8:24
p.m., walking out of the mobile home park, and walking eastbound on Jolly Road. Shortly after
DH turned onto the road, Detective Mapley witnessed a “dark colored vehicle traveling
eastbound.” The vehicle had something “like a light decal swoop on it and some block lettering
towards the back.” As the vehicle passed into the view of the eastern surveillance camera, “the
headlights [were] no longer uniform.” Crime Analyst Madison Lewis of the LPD viewed the
surveillance video a day or two later, on November 15, and testified that about five minutes elapsed
between the suspect vehicle’s passing the western and then eastern cameras.
Also on November 15, less than 48 hours after the accident occurred, the LPD received an
anonymous tip identifying defendant with the hit-and-run. The tipster provided defendant’s name,
age, and that he lived in Eaton Rapids. The tipster explained that he knew defendant’s daughter
and had been told that defendant hit someone with his truck. Based on this tip, LPD Sergeant
Marcus Johnson traveled to the address at which defendant resided and “observed a vehicle
matching the description of the accused vehicle in the driveway (dark colored S-10 with a topper,
1
Appellant’s brief references 10:30 p.m. as the time of the accident, while the appellee’s brief
references 8:30 p.m. The latter is consistent with testimony and evidence presented at trial. The
victim’s mother testified at trial that DH left their home in the Kensington Meadows mobile home
park around 8:30 p.m., and his body was found close to the entrance of this mobile home park.
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gray pinstriping on the side, front passenger side damage).” By stipulation of the parties, the jury
did not hear the tip.
Later in the evening of November 15, officers from the LPD and the Eaton County Police
Department made contact with defendant at his residence. Captain Robert Backus testified at trial
that he saw a Chevy S-10 parked next to defendant’s residence and confirmed that it matched the
vehicle that he saw in the surveillance footage. Captain Backus observed damage to the hood of
the car on the passenger-side, but observed that the front passenger-side headlight was intact.
Defendant’s adult son, Derek, answered the door at the officers’ knock and let them into the house.
Captain Backus testified that once he was inside the house, he had contact with defendant directly
and told defendant that he was interested in discussing the Chevy S-10, to which defendant replied
that the vehicle belonged to his father and that “I was driving.” Defendant signed a consent form
authorizing a search of his vehicle at the officers’ request, but stated that he did not want to talk to
anyone until he hired an attorney. When Captain Backus told defendant that they were arresting
him on failure-to-appear warrants, defendant asked to change his clothes, and two officers
accompanied him to his bedroom to allow him to do this. A cell phone was sitting on the dresser.
Defendant picked it up, stating that he was going to leave it with his son and, instead, Captain
Backus seized it as evidence because defendant was being investigated as part of a hit-and-run.
The LPD seized the Chevy S-10 that night and had it towed to their operations center.
After it was impounded, Detective Mapley testified that he observed defendant’s vehicle
and believed it to be the vehicle he saw in the surveillance video from Kensington Meadows. He
saw damage consistent with hitting a pedestrian of DH’s height—approximately 6 feet—and
inconsistent with hitting a deer. Danial Munford, from the Michigan State University’s
Department of Police and Public Safety, testified on behalf of the prosecution that an event data
recorder (EDR) in defendant’s vehicle indicated that there had been a “non-deployment event,”
which could be caused by a pedestrian-vehicle collision. Munford testified that the EDR showed
that the car was traveling at 47 miles per hour for each of the five seconds leading up to the
nondeployment event, and that there was no evidence of braking in those five seconds.
The police obtained a search warrant to search the cell phone seized from defendant’s
bedroom. Detective Monika Ford submitted a sworn affidavit in support of the warrant that
included details from Detective Mapley’s investigation of the scene, the surveillance video, and
the anonymous tip the LPD received that identified defendant with the hit-and-run. The affidavit
limited the search to “[e]vidence related to the death of [DH] including but not limited to” files on
the phone, data related to messages and phone calls, software used to access the Internet,
passwords, memory, and “electronic communications stored within the phone and storage devices
as e-mail.” Detective Ford described her knowledge “through training and experience” that voice
and message files and data “may provide evidence of identification, identification of witness[es],
and/or suspects” and “may contain evidence of intent or motive.” The search warrant was signed
on December 1, 2021, and the Michigan State Police subsequently performed a digital extraction
and examination.
Madison Lewis, a crime analyst for the LPD, used the Cellbright Physical Analyzer
software to extract data from the cell phone related to the incident. The analysis revealed that a
phone call was made to defendant’s adult daughter, Heather Brown, at 8:35 p.m. on November 13,
the night of the incident. There were other calls and messages with Heather, including a text to
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her on November 15 stating that “Derek thinks I hit a deer.” Lewis testified as to discovering
evidence of web browsing searches that included WILX Channel 10 News and hunting licenses.
Lewis testified that the phone had accessed an article on the WILX website about the hit-and-run.
Defendant’s adult son, Derek, lived with his father. At a pretrial hearing, he testified that
he never had a conversation with defendant about hitting a deer; however, during trial, he testified
regarding a short phone call using Facebook Messenger. In response to counsel’s questioning,
Derek explained this discrepancy by stating that he “did not recall” this conversation at pretrial
because it did not seem like a “big deal.” Derek testified that he wanted the trial to come out in
his and his father’s favor, but that he did not change his testimony nor risk providing inconsistent
testimony to help his father. During cross-examination, he testified that “[i]t’s very hard to
remember exactly what happened two years ago. A lot happened very fast and I was never
prepared for it.” Derek testified that he did not recall having a conversation with defendant about
him hitting a person, and he told Captain Backus on the night defendant was arrested that he had
no knowledge of the crash.
Defendant’s adult daughter, Heather, also testified. She recalled several telephone calls
with her father from 8:35 p.m. to 11:21 p.m. on November 13 and there was a “vague conversation
of interaction of a crash.” She did not recall talking to her father about being in a crash.
The defense called James Campbell, a retired state police officer, as an expert witness in
traffic crash reconstruction. Campbell created a diagram to show where the vehicle was at the
time of impact, based on the position of the skid marks officers photographed at the scene, the size
of the vehicle, and a Google Map of the accident. Defense counsel attempted to offer the diagram
as a demonstrative, and upon the prosecutor’s objection, the court prevented this stating that it was,
in reality, an undisclosed exhibit.
Campbell testified that the cause of the crash was “simply the pedestrian in the roadway.”
Based on his review of the evidence, including the position of the skid marks and damage to the
vehicle, he testified that DH was “about four feet into the roadway.” He visited the collision site
at night on April 17, describing the area as “extremely dark” and far from potential sources of
ambient lighting. Campbell also noted that DH was walking with traffic, contrary to Michigan
law that requires pedestrians to walk toward traffic, and that his dark sweatshirt hood likely
muffled sound. He further testified that defendant was driving 47 miles per hour, two miles per
hour over the speed limit, and that he was driving “in his lane of travel” and not on the shoulder
or across the centerline. Campbell testified that he did not find “anything that the driver,
specifically, did wrong to cause the impact with the pedestrian.”
A trial date was initially set for January 30, 2023; however, this was adjourned to resolve
defense motions to release the impounded vehicle and, then, to exclude evidence obtained from
the search of the vehicle and cell phone. The latter motion was filed on the date of the pretrial
motion hearing, which was after the late date for such motions according to the trial court’s orders.
The trial court adjourned trial to ensure fairness to both sides, while stating that “[t]he proper
sanction” would be denying defense’s ability to call an expert.
The three-day jury trial began on May 1, 2023. The jury found defendant guilty of two
offenses: (1) Count I: Operating–License Suspended, Revoked, Denied–Causing Death and (2)
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Count II: Failure to Stop at the Scene of Accident Resulting in Serious Impairment or Death.
Defendant had eight prior misdemeanor convictions, of which “a majority involve a driving
offense.” The sentencing guideline was scored at 36 to 71 months for Count I utilizing the
following information as included in the presentence investigation report:
PRV7 is scored at 10 points for the defendant having one concurrent felony
conviction, OV3 is scored at 25 points for life threatening or permanent
incapacitating injury occurring to the victim, OV5 is scored at 15 points for serious
psychological injury requiring professional treatment occurring to the victim’s
family, OV17 is scored at 5 points for the defendants failing to show the degree of
care that a person of ordinary prudence in a similar situation would have shown,
and OV19 is scored at 10 points for the defendant interfered with administration
of justice by leaving the scene of the incident.
The sentence rendered by the trial court was within the guidelines, i.e., 5 years and 11
months to 15 years’ incarceration, with credit for 44 days served. During the sentencing hearing,
DH’s mother testified that “every day has been a struggle” for her and her daughters since DH was
killed. The prosecutor moved to strike defendant’s sentencing memorandum, which included a
photograph of DH not entered into evidence which indicated he had been engaged in gang activity,
and requested a sentence of 10 to 15 years. Defense counsel emphasized that DH’s death was a
tragic accident for which defendant was “very remorseful” and that defendant had lived a largely
respectable and simple life. Defense counsel asked for a probationary sentence or for a sentence
at the low end of the guidelines. Defendant stated that he was “very upset” with himself and that
he was “truly sorry that this happened.”
The trial judge expressed disgust at the sentencing memorandum, stating she would remove
the photograph and strike the offending language. She identified the four factors derived from
People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972), to be taken into account: rehabilitation,
public safety, punishment, and deterrence. The trial court stated that rehabilitation was
“impossible” because defendant’s driving record evidenced that “You’ve clearly decided you’re
not going to follow the law.” She further stated that he was a “menace to public safety” for not
stopping at the site of the crash, that “[DH] clearly wasn’t in the middle of the road,” and that
defendant obstructed the investigation by leaving the scene and repairing his headlight despite
news reports that a young person had lost their life at the date, time, and location of the crash.
With respect to punishment, the trial court criticized defendant for allowing his adult
children to lie in their testimony by “refusing to take responsibility for what [defendant] did,” and
for putting DH’s mother through arduous legal proceedings. On the subject of deterrence, the trial
court said, “I think that it’s important that we say as a society, if you hurt somebody and you run,
and you lie about it, and a jury finds you guilty, you will go to prison, period.” The court
acknowledged the prosecution’s request for a longer sentence, but stated that she would remain
within the guidelines in order to avoid issuing a sentence that would “be a basis to send this back.”
On appeal, defendant claims error in several decisions made by the trial court both prior to and
upon sentencing. As explained below, none of them warrant reversal of the jury verdict or the
within-guidelines sentence.
II. ANALYSIS
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A. TRIAL COURT APPROPRIATELY DENIED MOTION TO SUPPRESS EVIDENCE
OBTAINED FROM CELL PHONE
Defendant first claims the trial court committed reversible error in denying defense
counsel’s motion in limine to suppress evidence obtained from the cell phone because the seizure
of the cell phone was allegedly unlawful. This Court reviews de novo a trial court’s decision on a
motion to suppress based on a constitutional violation. People v Mahdi, 317 Mich App 446, 457;
894 NW2d 732 (2016). We find the seizure of the cell phone was authorized under the plain-view
exception to the Fourth Amendment’s warrant requirement and, therefore, affirm the trial court’s
decision to deny defendant’s motion to suppress.
The right to be free from unreasonable searches and seizures is embedded in both our
federal and state constitutions. US Const, Am IV; Const 1963, art 1, § 11. The Michigan
Constitution expressly extends this to electronic data and communications. Const 1963, art 1,
§ 11. The plain-view doctrine “allows police officers to seize, without a warrant, items in plain
view if the officers are lawfully in a position from which they can view the item, and the item’s
incriminating character is immediately apparent.” People v Champion, 452 Mich 92, 101-102;
549 NW2d 90 (1996). The plain-view exception authorizes a seizure, but not the search of the
item being seized, and “it is not predicated on exigent circumstances” but “permitted in the interest
of police convenience.” Id. An object’s incriminating character is considered “immediately
apparent” if, without further search, officers have probable cause to believe the items are seizable.
Id. Probable cause does not require total certainty, but rather is present “when facts and
circumstances warrant a reasonably prudent person to believe that a crime has been committed and
that the evidence sought will be found in a stated place.” People v Brzezinski, 243 Mich App 431,
433; 622 NW2d 528 (2000). These facts and circumstances include law enforcement officers’
relevant experience and knowledge, which might allow them to recognize criminality where a
layperson might not. Champion, 452 Mich at 112. The plain-view doctrine may not be extended
to a “general exploratory search from one object to another until something incriminating at last
emerges.” Horton v California, 496 US 128, 136; 110 S Ct 2301; 110 L Ed 112 (1990) (citation
and quotation marks omitted).
There is no dispute that the police were at defendant’s residence lawfully, and that the
phone was in plain view of the police officers. The police went to the residence because an
anonymous tipster gave his name and, upon arrival, observed the vehicle matching that seen in the
surveillance footage. Defendant stated that his father owned it, but that he “was driving” it. The
police also saw the cell phone in plain view in defendant’s bedroom, and defendant stated that he
used it to make phone calls. The tipster referred to communication with defendant’s daughter,
who did not live with defendant. These circumstances would lead a reasonably prudent person to
believe that the cell phone would contain evidence related to the hit-and-run, thereby providing
the probable cause necessary for the third plain-view element—the phone’s incriminating nature
being immediately apparent.
Defendant’s reliance on Mahdi, 317 Mich App at 452, is misplaced. In Mahdi, the police
seized a phone from a residence where the defendant did not live and where no evidence of the
crime was found. Id. at 452-453. This case presents a very different factual scenario. In this case,
the police officers had reason to believe from an anonymous tip that defendant had called his
daughter on the evening of the accident, they seized the cell phone from the residence in which he
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resided, and defendant identified the cell phone as being one that he uses. Seizure of the phone
was permissible under the plain-view doctrine. The trial court’s decision to deny defendant’s
motion in limine is affirmed.
B. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM IS NOT SUPPORTED BY THE
APPLICABLE LAW
Defendant also claims his trial counsel rendered ineffective assistance of counsel for not
moving to suppress the evidence seized from the cell phone. Ineffective assistance of counsel
claims present mixed questions of fact and constitutional law. This Court reviews questions of
fact for clear error and reviews questions of constitutional law de novo. People v LeBlanc, 465
Mich 575, 579; 640 NW2d 246 (2002). To prevail on a claim of ineffective assistance of counsel,
defendant must demonstrate that (1) his trial counsel’s performance fell below an objective
standard of reasonableness and (2) there is a reasonable probability that the outcome would have
been different but for trial counsel’s deficient performance. People v Yeager, 511 Mich 478, 488;
999 NW2d 490 (2023).
Defendant’s trial counsel’s performance neither fell below an objective standard of
reasonableness, nor is there a reasonable probability that the outcome would have been different
if counsel had moved to suppress the information gleaned from the cell phone. The Court must
evaluate the trial counsel’s performance in the context of the facts, circumstances, and caselaw at
the time of the trial. People v Carson, ___ Mich ___; ___ NW3d ___ (2025) (Docket No. 166923);
see People v Grant, 470 Mich 477, 485; 684 NW2d 686 (2004) (holding that “[a] reviewing court
must not evaluate counsel’s decisions with the benefit of hindsight.”); see also Maryland v
Kulbicki, 577 US 1, 4; 136 S Ct 2; 193 L Ed 2d 1 (2015); see also Strickland v Washington, 466
US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
The prevailing standard regarding searches and seizures of electronic devices in January
2023,2 when defendant’s trial counsel failed to move to suppress the information, was People v
Hughes, 506 Mich 512, 542-543; 958 NW2d 98 (2020). In Hughes, law enforcement agents
obtained a warrant to search the defendant’s cell phone for evidence of drug trafficking, then,
without getting a second warrant, searched the phone for evidence of an unrelated crime. Id. at
552-553. Our Supreme Court held that the privacy implications of cell phone searches “requires
that officers reasonably limit the scope of their searches to evidence related to the criminal activity
alleged in the warrant and not employ that authorization as a basis for seizing and searching digital
data in the manner of a general warrant in search of evidence of any and all criminal activity.” Id.
at 553. However, our Supreme Court expressly declined to rule on whether the warrant to search
the cell phone for evidence of drug trafficking lacked probable cause. Id. at 527 n 6.
Utilizing the Hughes standard, this Court has repeatedly held that similar warrants in
factual situations comparable to this case were supported by probable cause and sufficiently
particular. See People v Carr, unpublished per curiam opinion of the Court of Appeals, issued
2
The Michigan Supreme Court’s decision in Carson, ___ Mich at ___; slip op at 6, has heightened
the standard of what is considered a valid warrant. As discussed herein, the warrant in the present
case meets that standard.
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December 21, 2023 (Docket No. 358663) (holding that the search warrant affidavit describing the
defendant’s alleged criminal activity and movements was sufficient to support the inference that
evidence of the crime would be located in the GPS data from the defendant’s phone); In re
Ilemobade, unpublished per curiam opinion of the Court of Appeals, issued August 17, 2023
(Docket No. 360868) (holding that a warrant authorizing the search of a broad array of data was
sufficiently particular).
In the present case, the search warrant affidavit described the crime and the investigation
up to that point in detail, including the anonymous tip in which the tipster “had been told” that
defendant hit someone with his vehicle, which indicated that defendant had communicated with
others about the incident—likely through the use of his cell phone. The affidavit explicitly limited
the search to “[e]vidence related to the death of [DH],” and explicitly named the types of data to
be searched. Given the contemporary caselaw, defendant’s trial counsel reasonably believed that
the search warrant affidavit adequately established probable cause and was sufficiently particular
to be permissible. Therefore, defendant’s trial counsel did not render ineffective assistance.
Defendant also fails to show that, if his trial counsel had challenged the validity of the
search warrant, there was a reasonable probability that the outcome would have been different.
Defendant relies primarily on this Court’s decision in Carson, which was issued more than eight
months after sentencing and has since been partially affirmed by our Supreme Court, to argue that
the search warrant was impermissibly broad. Though the particularity standard laid out in Carson
does not apply to the present case retroactively, it is instructive to compare the warrants at issue.
In Carson, the warrant authorized the search of “any and all records or documents” pertaining to
the crime and, in order to search those items, “any” physical keys or similar items, “any” passwords
needed to access or convert any data, and “any and all data.” Our Supreme Court deemed this
warrant to be insufficiently particular. Carson, ___ Mich at ___; slip op at 6. Specifically, our
Supreme Court took issue with the repeated use of “any” and “any and all,” holding that “[t]he
lack of instruction on the scope, breadth, or focus of the search” leaves too much to the officers’
discretion. Id. at ___; slip op at 18. Though it declined to create a per se rule of specificity, our
Supreme Court held that “a search warrant should be as particular as the circumstances presented
permit and consistent with the nature of the item to be searched.” Id. at ___; slip op at 20. The
warrant in the present case is more tailored than the warrant in Carson, describing the types of
searchable data in greater detail and making frequent references to “the above types of data files”
to narrow supplemental searches. Even if Carson were the prevailing standard, this warrant was
sufficiently particular; under Hughes, 506 Mich at 542-543, which required the search to be
“reasonably directed at finding evidence of the criminal activity identified within the warrant,”
this warrant was permissible.
We conclude the warrant and affidavit in support thereof in this case satisfy Carson.
Moreover, even if the warrant was impermissibly broad, defendant has failed to
demonstrate a reasonable probability that the outcome would have been different, i.e., that the
evidence gathered from the cell phone would have been suppressed. The exclusionary rule, which
dictates that evidence seized in violation of the Fourth Amendment cannot be used against a
defendant, is not a personal remedy for Fourth Amendment violations, but rather a tool to deter
law enforcement misconduct. Davis v United States, 564 US 229, 236-237; 131 S Ct 2419; 180 L
Ed 2d 285 (2011). The exclusionary rule’s deterrent value—which depends on the degree of
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misconduct—must outweigh the significant social costs of suppressing evidence. Id. at 237-238.
In this case, that standard is not met. Officers obtained a warrant before searching defendant’s
phone and searched it in reasonable reliance on that warrant. The warrant was not facially invalid,
as defendant claims, but similar to warrants issued under the Hughes standard that were deemed
sufficiently valid and supported by probable cause. Thus, the exclusionary rule is inappropriate in
this circumstance even if the warrant was overly general.
Finally, even if defense counsel had moved to suppress on the basis of the warrant and the
trial court had granted the motion, defendant has not shown that there is a reasonable probability
that the outcome of the trial would be different. There was significant other evidence tying
defendant to the crime: defendant admitted to driving a vehicle in his driveway that matched the
suspect vehicle from the surveillance video, the vehicle showed damage consistent with hitting a
person of DH’s height, and the vehicle’s make and model matched the headlight fragments found
at the scene. Defendant’s claim of ineffective assistance of counsel is without merit.
C. TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT PREVENTED
EXPERT’S DIAGRAM FROM BEING ADMITTED INTO EVIDENCE
Defendant also claims reversible error occurred when the trial court precluded use of the
defense expert’s diagram. A trial court’s decision to exclude evidence as a discovery violation is
reviewed for an abuse of discretion. MCR 6.201(J); Jilek v Stockson, 297 Mich App 663, 665;
825 NW2d 358 (2012). Where the trial court deprives a defendant of his constitutional right to
present a defense, the court’s decision to suppress evidence is reviewed de novo. Sitz v Dep’t of
State Police, 443 Mich 744; 506 NW2d 209 (1993).
The trial court did not err in excluding defendant’s undisclosed exhibit at trial. MCR
6.201(A)(6) requires that, upon request, parties must provide “a description of and an opportunity
to inspect any tangible physical evidence that the party may introduce at trial, including any
document, photograph, or other paper.” If a party fails to comply with this rule, MCR 6.201(K)
states that a court, at its discretion, “may order the party to provide the discovery or permit the
inspection of materials not previously disclosed, grant a continuance, prohibit the party from
introducing in evidence the material not disclosed, or enter such other order as it deems just under
the circumstances.” (Emphasis added.) Additionally, MCR 6.201(K) provides that “[w]illful
violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject
counsel to appropriate sanctions by the court.”
This Court has held that only egregious discovery violations, such as those resulting from
willful misconduct, justify excluding material evidence, but courts have broad discretion over
determining the appropriate remedy for a violation given “the interests of the court, the public, and
the parties.” People v Taylor, 159 Mich App 468, 487; 406 NW2d 859 (1987). Our Supreme
Court has held that where “circumstances beyond the control of defendant and his or her counsel”
have caused a discovery violation, the state’s interest in full discovery and a fair trial might
outweigh the violation’s negative effects. People v Merritt, 396 Mich 67, 83; 238 NW2d 31
(1976).
In the present case, defendant attempted to introduce a diagram created by his expert
witness in support of his testimony as a demonstrative exhibit. The prosecution claimed that the
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diagram was a fact exhibit, rather than demonstrative, that it was not disclosed prior to trial, and
that therefore, introducing it was a violation of the trial court’s orders that “[f]inal witness and
exhibit lists shall be exchanged at the Final Pretrial.” There is nothing in the record to contradict
the prosecutor’s claim that the diagram was not earlier disclosed or to suggest that circumstances
beyond defendant and his counsel’s control caused the violation. Merritt, 396 Mich at 83. Rather,
the defense was able to provide an expert witness and a summary of his testimony in a timely
manner, and gave no reason why it could not provide the diagram at issue in a timely fashion.
Thus, the trial court did not abuse its discretion by excluding the untimely exhibit; its decision did
not fall outside “the range of reasonable and principled outcomes.” Webster v Osguthorpe, ___
Mich ___; ___ NW3d ___ (2025) (Docket No. 166627). Rather, the trial court’s decision was in
line with MCR 6.201(A)(6), which requires the provision of a description and opportunity to
inspect “any tangible physical evidence that the party may introduce at trial, including any
document, photograph, or other paper.”
Moreover, even if the exclusion had been an abuse of discretion, it does not merit the
requested remedy of a new trial. The improper admission or rejection of evidence does not
automatically undermine the reliability of a verdict but, rather, the verdict may only be set aside
if, “after an examination of the entire cause, it shall affirmatively appear that the error complained
of has resulted in a miscarriage of justice.” MCL 769.26. Our Supreme Court held in Lukity that
MCL 769.26 creates a presumption that nonconstitutional error is harmless, which a defendant
must rebut by demonstrating that the error resulted, more probably than not, in a miscarriage of
justice. People v Lukity, 460 Mich 484, 493-494; 596 NW2d 607 (1999). In other words,
defendant must show that the evidence was excluded in error, and that, assessed “in light of the
weight and strength of the untainted evidence,” the error more probably than not led to a different
outcome. Id. at 495-496 (citation and quotation marks omitted).
Here, the record does not support a finding of such prejudice from the exclusion of
defense’s diagram. Defendant’s expert witness was able to testify as to the substance of the
diagram, reference the prosecution’s exhibits, and point to the position of the skid marks, the body,
and the debris to make the intended assertion: that DH was farther into the road than the
prosecution had said, and that his being in the road was the cause of the accident given the road
conditions and low visibility. The trial court instructed the jury to consider witnesses’ sworn
testimony alongside exhibits admitted into evidence in making their decision. Given the content
of the expert’s testimony and the full context of the case, it is not “more probable than not” that
the excluded exhibit would have altered the jurors’ assessment of the evidence to the extent of
undermining the reliability of the verdict. Id.
D. RESENTENCING IS NOT WARRANTED
Defendant claims he is entitled to be resentenced. This issue was preserved by defendant’s
motion to correct an invalid sentence, which the trial court denied. MCL 769.34(10); MCR 6.429;
People v Francisco, 474 Mich 82; 711 NW2d 44 (2006). For the reasons explained below, the
scoring of Offense Variable (OV) 5 was appropriate. Moreover, while some of the comments
made during sentencing by the trial judge should not have been made and were inappropriate, the
sentence ultimately rendered was within the guidelines and was fair and reasonable given all of
the facts and circumstances of the case, and, therefore, resentencing is not warranted.
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A trial court’s sentencing decisions are reviewed for an abuse of discretion. People v
Conley, 270 Mich App 301, 312; 715 NW2d 377 (2006). Whether a trial court has inappropriately
considered a person’s exercise of their constitutional rights as a factor in sentencing is a question
of constitutional law reviewed de novo. People v Jackson, 474 Mich 996; 707 NW2d 597 (2006).
A trial court’s factual findings under the sentencing guidelines are reviewed for clear error, and
whether the facts satisfy the statutory scoring conditions is a question of statutory interpretation
reviewed de novo. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). A trial court’s
response to a claim of inaccuracy in a presentence investigation report is reviewed for an abuse of
discretion. People v Waclawski, 286 Mich App 634, 689; 780 NW2d 321 (2009).
Defendant is not entitled to resentencing because the trial court considered appropriate
factors in its sentencing decision, and OV 5 was correctly scored at 15 points. Sentences, whether
within or outside of the applicable sentencing guidelines, must be “proportionate to the seriousness
of the circumstances surrounding the offense and the offender.” People v Steanhouse, 500 Mich
453, 459-460; 902 NW2d 327 (2017) (citation and quotation marks omitted). Within-guidelines
sentences are presumptively reasonable, and the defendant has the burden of overcoming this
presumption. People v Posey, 512 Mich 317, 326; 1 NW3d 101 (2023). In Snow, 386 Mich at
592, our Supreme Court held that courts should consider four factors to determine an appropriate
sentence: (1) the reformation of the offender, (2) protection of society, (3) disciplining the
wrongdoer, and (4) deterring others from committing similar offenses. These are not the only
relevant sentencing criteria, however, and they are not mandatory considerations. People v Boykin,
510 Mich 171, 183-184; 987 NW2d 58 (2022).
Our Supreme Court has held that though a trial court cannot consider a defendant’s refusal
to admit guilt when making sentencing decisions, it is permissible to consider a defendant’s lack
of remorse in determining his or her potential for rehabilitation. People v Wesley, 428 Mich 708,
711; 411 NW2d 159 (1987). Citing prior decisions of this Court, our Supreme Court held in
Wesley that if the trial court had considered the defendant’s maintenance of innocence after
conviction, if the trial judge had tried to get the defendant to admit guilt, and if it appeared that the
defendant’s sentence would have been less severe if he had admitted guilt, then the trial court was
likely to have been improperly influenced by the defendant’s claim of innocence. Id. at 713.
In this case, defendant has not overcome the presumption that the trial court’s within-
guidelines sentence was reasonable. The trial judge addressed all four Snow factors on the record
during sentencing, particularly focusing on defendant’s repeated driving-related offenses as they
bore on his potential for rehabilitation and whether he presented a danger to the public. On the
discipline and deterrence factors, the trial judge indicated that the jury’s guilty verdict mandated
an appropriate consequence.
We agree