People v. Stanich

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES GREGORY STANICH II, Defendant-Appellant.

No. 361951

Court of Appeals of Michigan

September 5, 2024

UNPUBLISHED

St Clair Circuit Court LC No. 21-000850-FC

Before: LETICA, P.J., and BOONSTRA and MARIANI, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 750.317, operating a motor vehicle while intoxicated causing death, MCL 257.625(4), and tampering with evidence for which the maximum term of imprisonment for the violation is more than 10 years, MCL 750.483a(6)(b).^[1] The trial court sentenced defendant to 25 to 35 years' imprisonment for the second-degree murder conviction, 10 to 15 years for the operating a motor vehicle while intoxicated causing death conviction, and 7 to 10 years for the tampering with evidence conviction.^[2] We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On March 7, 2021, at 7:00 p.m., defendant bought a multipack of Surf Onn at the Walmart in Lapeer.^[3] He then sat in his truck in the Walmart parking lot until 8:54 p.m. When defendant left the Walmart parking lot, he headed east on Imlay City Road toward his home. At 9:01 p.m., a motorist called the St Clair County's 911 Dispatch about an erratic driver on Imlay City Road. At 10:04 p.m., another motorist called St. Clair County Dispatch about a pickup truck traveling westbound in the eastbound lanes of I-69. St. Clair County Sheriff's Department Deputies Carl Wilczak and Zane King were driving to the location of the reported wrong-way driver when they received an update that there had been a collision on I-69 near M-19.

After the deputies arrived at the crash site, they blocked westbound traffic on the highway. Deputy Wilczak then approached a Dodge Challenger and a Honda Accord while Deputy King approached the truck. Deputy Wilczak found the driver of the Challenger, Graham Wiltse, who appeared to be deceased. Deputy Wilczak described the Challenger's passenger and the Honda Accord's driver as very upset and hysterical. Deputy King went to the truck's driver's side and saw defendant sitting on the passenger side. When Deputy Wilczak looked around the truck, he noticed aerosol spray cans and a Bud Light beer can in the grass, which the police collected.

At the hospital, defendant told Detective Timothy O'Donnell, a certified accident investigator with the St. Clair County Sheriff's Department, that he had inhaled Surf Onn earlier that evening in a Walmart parking lot. O'Donnell found seven cans of Surf Onn in the passenger compartment of defendant's truck as well as plastic bags and tissues, items consistent with inhaling Surf Onn. After this discovery, O'Donnell secured a search warrant for a blood sample from defendant. After receiving information that defendant tested positive for cocaine, tetrahydrocannabinol (THC), and difluoroethane (DFE), the prosecution charged defendant with second-degree murder, operating a motor vehicle while under the influence causing death, and tampering with evidence.

On appeal, defendant's appellate counsel challenges the sufficiency of the evidence for the second-degree murder and tampering with evidence convictions, the admission of other-acts evidence and expert testimony outside of the expert's training and knowledge, the trial court's failure to instruct the jury regarding accident, and the trial court's scoring of prior record variable (PRV) 7. In a Standard 4 brief,^[4] defendant argues that the trial court improperly instructed the jury as to the element of malice for second-degree murder and that he was denied the effective assistance of counsel.

II. SECOND-DEGREE MURDER

Appellate counsel and defendant contend that there was insufficient evidence of malice to support the second-degree murder conviction as well as instructional error underlying this conviction. We disagree.

We review a challenge to the sufficiency of the evidence de novo by examining the record evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Haynes, 338 Mich.App. 392, 417; 980 N.W.2d 66 (2021) (citation omitted). We resolve all conflicts in favor of the prosecution. Id.

To satisfy the elements of second-degree murder, the prosecution must prove the following: "(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse."^[5] People v Goecke, 457 Mich. 442, 463-464; 579 N.W.2d 868 (1998) (citation omitted). The element of malice for second-degree murder has been defined as "the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm." Id. at 464. Thus, second-degree murder does not require a finding of a specific intent to harm or kill. Id. at 466. And "[t]he intent to do an act in obvious disregard of life-endangering consequences is a malicious intent." Id. A jury may infer malice from evidence that the defendant "intentionally set in motion a force likely to cause death or great bodily harm." People v Bailey, 330 Mich.App. 41, 48; 944 N.W.2d 370 (2019); People v Djordjevic, 230 Mich.App. 459, 462; 584 N.W.2d 610 (1998). The prosecution is not required to establish that the defendant actually intended the harmful result. Goecke, 457 Mich. at 466. Malice for second-degree murder may be established "even absent an actual intent to cause a particular result if there is wanton and willful disregard of the likelihood that the natural tendency of a defendant's behavior is to cause death or great bodily harm." Id.

In Goecke, 457 Mich. at 448, the defendant and a friend met at a liquor store and purchased beer. For 90 minutes, they remained in the liquor store parking lot and drank beer. When a police cruiser drove into the parking lot, the defendant drove off to find another place to drink. The defendant drank beer as he drove around the area waiting for the police to leave. Id. at 448-449. Three hours later, the defendant was driving his car at approximately 70 to 80 miles an hour when he nearly struck a van. The defendant drove through a stoplight and struck a vehicle, and the other motorist died from injuries sustained in the collision. Id. at 449-450. The defendant's blood alcohol level was measured at .17 percent, and there were 15 to 20 empty beer bottles on the floor of the defendant's car. At the accident scene, the defendant admitted that he caused the accident, acknowledging that he was drunk and driving way too fast. Id. at 450.

Our Supreme Court held that there was sufficient evidence to bind the defendant over on charges of second-degree murder and the district court abused its discretion by failing to bind over on that charge. Id. at 463, 469. The Court noted that the defendant evaded the police while drinking liquor in a store parking lot, giving rise to an inference that the defendant was aware that he was too intoxicated to be driving. Despite the knowledge of his condition, the defendant drove recklessly in a highly populated area, narrowly missed hitting another vehicle, and sped through a red light before colliding with the victim's car. Id. at 470-471.

In the instant case, defendant tested positive for cocaine, DFE, and THC. Mark Vandervest, a forensic scientist with the Michigan State Crime Laboratory who works on inhalant testing, testified about the use and effects of DFE. DFE is a hydrocarbon gas, which is not for human consumption, and does not appear in the blood as a result of food ingestion. Vandervest described DFE as an addictive and abusive product. He further explained that no clinical studies had been performed testing DFE because they could not be conducted ethically given the possibility of death from ingesting DFE. Vandervest also testified that, before the instant case, he had never encountered a positive result of DFE with a three-hour and 47-minute gap between a police stop, or in this case, a collision, and the blood draw.

Vandervest described the three methods usually used to inhale DFE. A user might spray the product into a plastic bag and place the bag over their face to inhale it. A user might directly spray the canister into their mouth. The user might also spray the product into a cloth and place it over their nose to inhale. After DFE is inhaled, it quickly crosses the blood brain barrier directly to the brain for an effect within seconds. Reported symptoms include feelings of euphoria, lightheadedness, and dizziness. Many users lose consciousness when inhaling DFE. Over time, DFE affects a user's body much like alcohol by impairing judgment and balance if used in a sufficient quantity. Because the product is inhaled, it is fast-acting and does not last long. Vandervest testified that if a person inhaled a large amount of DFE over a long period of time, they would become impaired.

In this case, there was evidence that defendant purchased Surf Onn twice on the day of the collision. After the second purchase defendant sat in his vehicle for almost two hours in the Walmart parking lot where he purchased the Surf Onn. Detective O'Donnell found seven cans of the inhalant in the passenger compartment of defendant's truck and Sergeant Daniel Bueche, a traffic crash reconstructionist, found four cans of the inhalant outside of defendant's vehicle at the scene of the accident. At trial, Sergeant Bueche testified that the ingredient in the cans found in and around defendant's truck was DFE. Detective O'Donnell also discovered plastic shopping bags and tissues inside defendant's truck. In Detective O'Donnell's training and...