People v. Hazard

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRENDA GAIL HAZARD, Defendant-Appellant.

No. 341544

STATE OF MICHIGAN COURT OF APPEALS

March 26, 2019

If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports.

UNPUBLISHED

Genesee Circuit Court

LC No. 16-040391-FC

Before: BORRELLO, P.J., and SWARTZLE and CAMERON, JJ.

PER CURIAM.

Brenda Gail Hazard admittedly consumed alcohol and cocaine and then drove to a party store with her roommate. While in the parking lot, she had a confrontation with the victim, Michael Woodall. She backed her vehicle out of the parking spot and then drove at the victim, striking him. He later died from his injuries. A jury convicted defendant of second-degree murder, MCL 750.317, and operating under the influence (OUI) causing death, MCL 257.625(4). On appeal, defendant raises several claims of error with respect to her trial, all of which are without merit.

I. BACKGROUND

On August 28, 2016, defendant drove her vehicle to the local party store for cigarettes. Defendant's roommate, Kenneth Lewis, rode with her. The party store's video-surveillance system captured much of what happened next.

The video showed defendant's vehicle pull into one of the parking spaces nearest to the store's entrance. Approximately five seconds after defendant pulled into the parking space, the victim appeared in the video, walking toward the store's entrance. Lewis exited defendant's vehicle, while defendant remained seated in the driver's seat. The victim stopped short of the store's entrance and stood near the driver's side of defendant's vehicle, while Lewis stood in front of the passenger's side. Defendant then put her vehicle in reverse, backed out of the parking space, drove forward toward the victim, and stopped in front of him. The victim moved away from defendant's vehicle, but then walked back in front of defendant's vehicle near the driver's side. Defendant flashed her vehicle's high beams at the victim, and as the victim moved closer to the front of defendant's vehicle, defendant accelerated her vehicle forward and hit the victim. As a result, the victim fell to the ground and hit his head.

City of Burton Police Officers Jeremy Driggett and Erin Hodge immediately responded to the scene. Officer Hodge separated all of the potential witnesses, including defendant and Lewis, and noticed that defendant appeared very agitated and excited. Without being prompted, defendant told Officer Hodge that the victim was yelling at her, he started to come at her with his fists in the air, he would not back away from her, and she hit the victim with her vehicle because she was scared that the victim would hurt her. Officer Hodge viewed the video-surveillance footage and informed Officer Driggett that defendant's version of events did not match the contents of the video. Officer Hodge also informed Officer Driggett that the incident appeared to be intentional. As a result, the police summoned an accident reconstructionist to take measurements of the scene.

Defendant submitted to a preliminary breath test at the scene, which revealed that she had a blood-alcohol level of 0.07%. Defendant subsequently submitted to a blood draw, in which she tested positive for cocaine. Additionally, a blood test revealed that the victim had a blood-alcohol level of 0.20%, was positive for marijuana, and was taking various medications for seizures.

Defendant was charged with second-degree murder and OUI causing death and proceeded to trial on both charges. At trial, defendant conceded that she proximately caused the victim's death by hitting him with her vehicle and that she voluntarily decided to drive knowing that she had consumed cocaine. With regard to the charge of second-degree murder, therefore, the only disputed issues for trial were whether defendant formed the requisite intent to commit the crime and whether she acted in self-defense.

During opening statements, defense counsel stated that defendant—who had been the victim of domestic violence in the past—was "scared to death" of the victim, and she acted in self-defense when she hit the victim with her vehicle. In response to this claim of self-defense, the prosecutor introduced in his case-in-chief evidence of the victim's character for violence. Khristal Woodall, the victim's sister, testified that the victim was a schizophrenic and an alcoholic, he had some learning difficulties, and he suffered from bipolar disorder. His sister also testified that she never knew the victim to be a violent person.

Jimmy Hamilton and Chad Miller, two store employees who were working on the night in question, also testified during the prosecutor's case-in-chief. Hamilton testified that, at approximately 1:00 p.m. that day, the victim, a regular customer, came into the store and purchased alcohol. At approximately 8:00 p.m., the victim came back to the store a second time to purchase more alcohol, but he did not have enough money. Hamilton believed that the victim was intoxicated at that time because the victim was staggering and laughing a great deal. Hamilton told the victim to leave the store because he lacked sufficient money to purchase alcohol, and the victim complied. The victim remained outside the store asking customers for money, and Hamilton again asked the victim to leave the premises. The victim complied, but at approximately 11:30 p.m., the victim came back to the store a third time—when he was hit by defendant's vehicle. Miller testified to the same version of events, but without the specifictimeline. Neither Hamilton nor Miller observed defendant's vehicle hit the victim. Both Hamilton and Miller testified about the victim's peaceful character.

In addition to the store employees, Officer Hodge testified regarding an earlier encounter that she had with the victim. She testified that, several months before the incident, she was called to respond to an alarm at a restaurant. Officer Hodge saw the victim climbing out of a dumpster behind the restaurant, putting pizza in his pockets. Officer Hodge testified that when she spoke to the victim, it was like speaking to a child. The victim hung his head and attempted to return the pizza, stating that he was sorry. Defense counsel did not object to this testimony.

Lewis also testified during the prosecutor's case-in-chief. While investigating the incident, police discovered that Lewis possessed a small bag of marijuana. The prosecutor granted him immunity from prosecution provided that he testified about what he observed during the incident, and the jury was made aware of this. Lewis testified that defendant offered him a ride to the store so that he could purchase cigarettes. He was unaware that defendant had previously used cocaine.

As defendant pulled the vehicle into the store's parking lot, he observed the victim standing in the parking space where defendant was attempting to park. Contrary to what was seen in the video, Lewis asserted that the victim was blocking the parking space. Lewis got out of the vehicle and asked the victim to move out of the way, but the victim would not move. Shortly thereafter, the victim started to run at defendant with his fists in the air. Lewis did not hear the victim say anything to defendant. Lewis claimed that he saw a beer bottle near the victim's body, but he could not remember whether the victim had the beer bottle in his hand when he approached defendant. Lewis believed that the victim was a threat to defendant and that defendant acted in self-defense.

Grand Blanc Township Police Officer Samuel Evans was the last witness to testify during the prosecutor's case-in-chief. The prosecutor sought to qualify Officer Evans as a drug-recognition expert (DRE), an expert trained to focus on the signs and symptoms a suspect might exhibit when impaired by certain drugs. Officer Evans first testified regarding the DRE training program, as well as the certification criteria necessary to become a DRE. Defense counsel objected to Officer Evans testifying as a DRE, stating, "I've not really heard of drug recognition as being an area of expertise. I'll just simply object for the record." The trial court did not rule on defense counsel's objection, but allowed Officer Evans to testify about certain behaviors and mannerisms that drug users, specifically cocaine users, were likely to exhibit.

Officer Evans testified that, as a DRE, he was trained to determine the type of drug that a person ingested based on the signs and symptoms that the person exhibited while being observably impaired. Officer Evans did not personally observe defendant on the day of the incident; rather, he only testified about behaviors that a person who ingests cocaine would likely exhibit. He testified, in relevant part:

[F]irst we're going to talk about cocaine . . . . You're going to see many times anxiety, restlessness, rapid, jerky movement, rigid movement, agitation, belief in things that are not true. In other words, ascribing hostility to someone else when, in fact, there may not be any hostility there. . . . Someone is out to get me. Thosekinds of things. And those are really big officer safety concerns for police officers as well because individuals with that kind of thought process tend to harm themselves, carry knives, and things of that nature just for protection. . . . Possibly combative [be]cause what this drug is doing is . . . what we call the fight and flight systems of the body, the same systems when you get angry, you get upset, those kinds of things that can come into play with someone who's having a bad trip.

Officer Evans went on to describe cocaine users as wanting to feel happy, and he also discussed the consequences of being impaired by cocaine, stating:

[I]f I'm happy and I'm having all these things happen to me, I still remember to look both ways before I cross the street. I still remember that, hey, I'm stepping into Walmart. My kids

...