STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 2, 2016
Plaintiff-Appellee,
v No. 326702
Wayne Circuit Court
WALTER MICHAEL FIELDS II, LC No. 13-011050-FH
Defendant-Appellant.
Before: SHAPIRO, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ.
PER CURIAM.
The trial court sentenced defendant to concurrent terms of 5 to 15 years’ imprisonment
for each of two convictions of operating a motor vehicle while intoxicated, causing death.
Defendant appeals as of right. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On December 16, 2012, after leaving a Sterling Heights bar, Nadeem Sawaf, Kush Sood,
and Erica Cholewa traveled in Sawaf’s Honda on the I-75 expressway toward Detroit which he
was driving. Sawaf lost control of his car, causing it to spin, hit a median wall, and ultimately
stop in a perpendicular position across the right two lanes of the highway. After the three
occupants left the car and made it safely to the embankment, Sawaf and Sood returned to the car
on the roadway, where they were struck by defendant’s Ford Explorer at approximately 2:00AM.
While questioning defendant, State Police Trooper Josh Reeber, one of the first
responders to the scene, noticed a strong odor of alcohol emanating from defendant. He also
observed a full container of beer in the front seat of defendant’s truck and a half-empty bottle of
Hennessy Cognac in a brown paper bag in the back. Trooper Reeber performed field sobriety
tests on defendant, all of which he failed. Subsequent testing revealed that defendant had a blood
alcohol content level of .21 at 5:39 a.m., two and a half times the legal limit of .08.
Defendant’s theory of the case at trial was that he was not responsible for the victims’
deaths, claiming that both victims acted grossly negligent when they left their position of safety
on the embankment and returned to the roadway. Defendant argued that this negligent conduct
was an intervening cause that superseded his conduct. The trial court instructed the jury in
accordance with defendant’s proposed instructions. The jury found defendant guilty of two
counts of operating a motor vehicle while intoxicated, causing death, and the court sentenced
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him to two concurrent terms of 5 to 15 years’ imprisonment, which he now appeals on three
grounds.
I. JURY INSTRUCTIONS
Defendant argues that he is entitled to a new trial because “[t]he modified instruction
provided to the jury by the trial court judge in this case confused the concepts of factual and
proximate cause.” This claim of instructional error has been waived.
This Court recently reiterated that “a party cannot request a certain action of the trial
court and then argue on appeal that the action was error.” People v Perkins, ___ Mich App ___;
___ NW2d ___ (2016) (Docket No. 323454); slip op at 10 (citation omitted). Before closing
arguments, the parties discussed the jury instructions. The defense proposed a special instruction
on causation, which counsel read into the record as follows:
We have proposed two very short instructions. One is in addition to 15.11
that basically described for the jury what an intervening cause is, and it basically
says, it is claimed that the Defendant’s operation of his vehicle was not a
proximate cause of the death of Mr. Sood and Mr. Sawaf because of an
intervening, superseding cause, and it is claimed by the Defendant.
Gross negligence or intentional misconduct on the part of Mr. Sood and
Mr. Sawaf constitutes an intervening, superseding cause. A superseding,
intervening cause must not be reasonably foreseeable. If you find that there was
an intervening superseding cause in this case, then you must find the Defendant
not guilty.
Then we take out of the gross negligence instruction from 16.[1]8 a
definition of gross negligence. That instruction, it’s tailored so that the gross
negligence applies to the victim as opposed to the defendant which is what the
instruction was written for.
In closing argument, as defense counsel argued that defendant was not the proximate
cause of the victims’ deaths, he essentially quoted the language of the special jury instruction,
stating:
If you find that Mr. Sood and Mr. Sawaf were grossly negligent and that
their conduct was not foreseeable, then the prosecution cannot say that they’ve
proved element five. That they’ve proved that the proximate cause of the death in
this case was due to conduct by Mr. Fields.
I think it is beyond any stretch of imagination that they are going to be
able to say that they proved that in this case beyond a reasonable doubt.
You’ll be told, among other things, that a superseding, intervening cause
must not be reasonably foreseeable. Gross negligence is not reasonably
foreseeable. If you find that there was an intervening, superseding cause in this
case, then you must the Defendant not guilty.
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Now gross negligence means more than carelessness. It means willfully
disregarding the results to others that might follow from an act or failure to act.
A person is grossly negligent if, and in this case the decedent[s] would be
grossly negligent, if they knew of a danger, that is they knew of a situation that
required them to take ordinary care to prevent injury that a reasonable person
would have taken, that must have been apparent to the reasonable person, the
result would likely be serious injury.
Let me read that again.
The decedents failed to use ordinary care to prevent injury when to a
reasonable person it must have been apparent that the result was likely to result in
serious injury.
At the close of arguments, the trial court gave the following jury instruction as requested
by the defense:
Fifth, that the Defendant’s operation of the vehicle caused the victims[‘]
death. To cause” the victims[‘] death, the Defendant’s operation of the vehicle
must have been a factual cause of the death, that is, but for the Defendant’s
operation of the vehicle, the death would not have occurred.
In addition, operation of the vehicle must have been a proximate cause of
death. That is, death or serious injury must have been a direct and natural result
of operating the vehicle.
It is claimed that Defendant’s operation of his vehicle was not a proximate
cause of the deaths of Mr. Sood and Mr. Sawaf because of an intervening,
superseding cause. Gross negligence or intentional misconduct on the part of Mr.
Sood or Mr. Sawaf constitutes an intervening, superseding cause.
A superseding, intervening cause must not be reasonably foreseeable.
Gross negligence is not reasonably foreseeable.
If you find that there was an intervening, superseding cause in this case,
then you must the Defendant not guilty.
Gross negligence means more than carelessness. It means willfully
disregarding the results to others that might follow from an act or failure to act.
The decedents were grossly negligent if they knew of the danger, that is,
they knew that there was a situation that required them to take ordinary care to
avoid injury, they knew that they could have avoided the injury by using ordinary
care, and that they failed to use ordinary care to prevent injury when to a
reasonable person it must have been apparent that the result was likely to be
serious injury.
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After the trial court completed its final instructions, but before the jury was dismissed for
deliberations, it asked the parties “are the instructions satisfactory with the prosecution and the
defense?” Defense counsel stated, “Yes, your Honor.” Because the trial court instructed the jury
as defendant requested, and defense counsel expressed satisfaction with those instructions,
defendant has waived appellate review of this claim. “[A] defendant may not request [] an
instruction, only to later claim resulting confusion in the jury instructions, thus harboring error as
an appellate parachute.” People v Jackson, ___ Mich App ___; ___ NW2d ___ (2015) (Docket
No. 322350; slip op at 5. Defendant’s waiver extinguishes any error. People v Carter, 462 Mich
206, 216; 612 NW2d 144 (2000).
II. JURY QUESTION
Defendant argues that the trial court’s responsive instruction on gross negligence,
coupled with its inadequate instructions on causation, denied him a fair trial. We disagree.
Claims of instructional error are reviewed de novo. People v McMullan, 284 Mich App 149,
152; 771 NW2d 810 (2009). Jury instructions are reviewed in their entirety to determine
whether any error requiring reversal occurred. People v Kowalski, 489 Mich 488, 501; 803
NW2d 200 (2011). An imperfect instruction will not warrant reversal if the instructions,
examined as a whole, fairly presented the issues to be tried and sufficiently protected the
defendant’s rights. Id. at 501-502.
As defendant observes, during deliberations, the jury sent a note that stated: “In order for
victims to be considered grossly negligent, must they meet all of the elements as listed in 16.18?”
After the parties’ arguments, the trial court instructed the jury:
The gross negligence instruction is to be read and considered as part of
paragraph (5) under the elements of the offense. All elements must be proven
beyond a reasonable doubt before a verdict of guilty can be rendered.
Contrary to what defendant argues, the trial court’s responsive instruction does not
require reversal. Initially, as support for his claim that the trial court’s response was inadequate,
defendant again revisits his previous argument that the trial court’s instructions on “the concept
of” proximate cause were inadequate. As indicated previously, the trial court instructed the jury
just as defendant requested. Furthermore, even accepting defendant’s claim that the trial court’s
response was inadequate, an error in instructing the jury is presumed to be harmless, and the
defendant bears the burden of proving otherwise. MCL 769.26; People v Lukity, 460 Mich 484,
493-495; 596 NW2d 607 (1999). This Court will only reverse if, “ ‘after an examination of the
entire cause, it shall affirmatively appear’ that it is more probable than not that the error was
outcome determinative.” Id. at 495-496, quoting MCL 769.26. Other than revisiting his
previous claim, defendant does not explain how he was harmed by the trial court’s response.
Defendant’s requested special jury instruction that introduced the definition of gross negligence
was given as part of the proximate cause element. In response to the jury’s question, the trial
court correctly instructed the jury that the prosecution had the burden of proving, beyond a
reasonable doubt, that defendant was a proximate cause of the victims’ deaths. M Crim JI 15.11.
By also instructing the jury that the elements of gross negligence are part of the elements of the
charged offense, the court in essence instructed the jury that in order to prove that defendant was
a proximate cause of the victims’ deaths, the prosecution had the additional burden of disproving
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that the victims were grossly negligent. Accordingly, not only was the trial court’s responsive
instruction consistent with defendant’s requested special instruction, any error was more harmful
to the prosecution. Consequently, there is no basis for concluding that defendant was prejudiced
by the trial court’s response. Because the trial court instructed the jury just as the defense
requested and the responsive instruction did not lessen the prosecution’s burden of proof,
defendant was not denied a fair trial.
III. MOTION TO STRIKE SERGEANT LINDSTROM’S TESTIMONY
In his last issue, defendant argues that the trial court abused its discretion when it denied
his request to strike the testimony of Sergeant Chad Lindstrom, who was qualified as an expert in
accident reconstruction. We disagree. We review a trial court’s evidentiary decisions, including
its decisions regarding the admissibility of expert testimony, for an abuse of discretion. People v
Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). A trial court abuses its discretion when
its decision “falls outside the range of reasonable and principled outcomes.” Id. at 217.
Defendant contends that the Lindstrom’s testimony should have been stricken because
the prosecution did not identify him as an expert on its witness list, nor did it provide a report of
his proposed testimony. MCL 767.40a(3) provides that “[n]ot less than 30 days before the trial,
the prosecuting attorney shall send to the defendant or his or her attorney a list of the witnesses
the prosecuting attorney intends to produce at trial.” Sergeant Lindstrom was identified as a
witness to be called at trial on the prosecution’s witness list that was dated more than nine
months before the trial’s commencement. With respect to the prosecutor’s duty to disclose the
names of expert witnesses and provide reports under MCR 6.201(A), disclosure of those
specified items is mandated only “upon request.” The record does not indicate that defendant
requested this information in any pretrial demand for discovery. Even if defendant had requested
the information and it was not timely provided, the trial court used its discretion under MCR
6.201(J) to allow defendant to suspend his cross-examination of the sergeant on December 12,
2014, and resume it on January 5, 2015, thereby alleviating any harm to defendant by providing
counsel with ample additional time to prepare to address the challenged testimony. In addition,
when the court instructed the prosecution to turn over any reports authored by Lindstrom,
defense counsel acknowledged that he already possessed the documents that the witness had
prepared. On January 5, defense counsel continued his cross-examination of Lindstrom.
Defendant does not argue that defense counsel was unable to adequately cross-examine
Lindstrom at that time. The trial court did not abuse its discretion in allowing Sergeant
Lindstrom’s expert testimony.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Joel P. Hoekstra
/s/ Amy Ronayne Krause
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