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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 10, 2022
Plaintiff-Appellee,
v No. 353557
Kalamazoo Circuit Court
MELISSA SUE MORGAN, LC No. 2019-001017-FC
Defendant-Appellant.
Before: M. J. KELLY, P.J., and STEPHENS and REDFORD, JJ.
STEPHENS, J. (concurring in part, dissenting in part).
I concur with the majority in all respects except regarding its conclusion that the trial court
did not abuse its discretion when it qualified Kalamazoo Department of Public Safety (KDPS)
Officer Steven Seiser as an expert and allowed him to testify about the patterns of behavior of
drug-dependent people. Even so, I do not believe the error was outcome determinative and,
therefore, would affirm defendant’s convictions and sentences.
Defendant argues the trial court abused its discretion when it qualified Seiser as an expert
on the patterns of behavior of methamphetamine users. I agree, but conclude the error was not
outcome determinative.
MRE 702 governs the admission of expert testimony and provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
A trial court determining whether to admit expert testimony under MRE 702 acts as a
gatekeeper to ensure testimony is relevant and reliable. People v Kowalski, 492 Mich 106, 120;
821 NW2d 14 (2012). MRE 702 requires the trial court to ensure the reliability of any expert
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testimony admitted at trial. People v Carll, 322 Mich App 690, 700; 915 NW2d 387 (2018)
(citation omitted). “Expert testimony may be excluded when it is based on assumptions that do
not comport with the established facts or when it is derived from unreliable and untrustworthy
scientific data.” People v Dobek, 274 Mich App 58, 94; 732 NW2d 546 (2007). “The inquiry into
reliability is a flexible one that is tied to the facts of the particular case, and a reliability
determination may differ on the basis of the type of expert testimony offered.” Carll, 322 Mich
App at 700, citing Kumho Tire Co, Ltd v Carmichael, 526 US 137, 150; 119 S Ct 1167; 143 L Ed
2d 238 (1999). In acting as a gatekeeper, however, the trial court is not required “to search for
absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes.”
People v Muhammad, 326 Mich App 40, 52; 931 NW2d 20 (2018) (quotation marks and citation
omitted). “In other words, the inquiry is not into whether an expert’s opinion is necessarily correct
or universally accepted, it is into whether the opinion is rationally derived from a sound
foundation.” Id. (cleaned up).
The majority concludes that Seiser’s testimony was reliable in light of his “years-long
experience with the [Kalamazoo Valley Enforcement Team (KVET)] and his daily contact with
multiple drug users,” and was derived from not only information provided by confidential
informants, but also Seiser’s own observations and those of his KVET colleagues. Thus, the
majority concludes that the trial court did not abuse its discretion when it qualified Seiser as an
expert in the patterns of behavior of methamphetamine users. I believe the majority’s conclusions
regarding the reliability of Seiser’s testimony are, respectfully, mistaken.
At the hearing on defendant’s motion to disqualify Seiser as an expert, Seiser denied having
studied research by other experts regarding the lifestyle and manipulative behavior of drug users.
Seiser also denied having participated in studies comparing the behavior of homeless drug users
to homeless persons who do not use drugs. During the prosecution’s direct examination of Seiser
at the motion hearing, Seiser explained that, in his experience, female drug users were “[m]ore apt
to find companionship with a male individual” that sometimes (but not always) looked like a
domestic relationship. Seiser affirmed that this pattern of behavior was “common” with
informants, including female informants. The trial court asked Seiser’s definition of “common”
and whether he could “put any type of number on that.” Seiser indicated “between 35 and 50
percent” and affirmed that it was “maybe half or less” of the female informants with whom he
interacted. On cross-examination at the motion hearing, however, Seiser admitted that he did “not
have any statistics” regarding the number of drug users who were in manipulative situations versus
not. Seiser also testified that “[a] majority of the individuals that [he has] dealt with” had
relationships that “turn[ed] into a sexual relationship, but it may not start off that way.” When
asked if he could give a percentage regarding his claim, Seiser stated he could not “give you a
percentage” and did not “have the statistics” because “[t]hey don’t exist.” Seiser also
acknowledged that he did not “have a number with any kind of certainty” and affirmed that he was
“guessing basically[.]”
At trial, when defendant’s trial attorney conducted voir dire of Seiser before he was
qualified to testify, Seiser indicated he could not give percentages regarding where individuals fell
in terms of their lifestyle. Seiser acknowledged that studies give “good percentages of individuals
that may fall in certain patterns, and others that don’t,” and denied that he was able to opine on
“how many people fall outside of that life style.” Trial counsel also asked: “So, you could be
testifying that 90-percent of the people that you encounter fall within those life styles, but we will
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never know the accurate amount of individuals that fall within that life style will we?” Seiser
responded that he would “not be able to testify as to how many people fall within . . . a certain
parameter” of “that life style.” And when asked by trial counsel whether “it could be 99-percent,
[or] it could be 2-percent,” Seiser stated, “I can’t testify as to numbers like that.” At both the
motion hearing and at trial, the trial court relied on Seiser’s experience as a police officer and with
KVET, and the fact he spoke with several drug users each day, when qualifying him as an expert.
I believe that Seiser’s claims regarding the behavior of drug users were unreliable because
he failed to study research by other experts regarding the behaviors of drug users, was unable to
provide statistics, and admitted that he was “guessing” when it came to his claims regarding the
behavior of drug users. Additionally, as defendant points out, Seiser’s expert opinion was derived,
in part, from statements made by confidential informants who were often either paid for their
statements or cooperated with police to “work off charges” and diminish the risk of incarceration.
Given Seiser’s failure to study research and provide statistics regarding the behavior of drug users,
his admission that he was “guessing basically,” and the fact that his opinions were derived from
untrustworthy sources, I believe Seiser’s opinions were not “rationally derived from a sound
foundation.” Muhammad, 326 Mich App at 52 (quotation marks and citation omitted). Thus, I
disagree with the majority’s conclusion that “the fact that Seiser had not formally studied the
lifestyles of homeless drug users or formally documented his own observations pertained to the
weight of his testimony, not to its admissibility.” Accordingly, I conclude that the trial court
abused its discretion in allowing Seiser to testify about the patterns of behavior of
methamphetamine users.
Seiser’s testimony regarding the patterns of behavior of methamphetamine users is
problematic for another reason. To be admissible under MRE 702, the proffered testimony must
involve a matter “that is beyond the common understanding of the average juror.” Kowalski, 492
Mich at 121; see also People v Bynum, 496 Mich 610, 624; 852 NW2d 570 (2014) (“If the average
juror does not need the aid of expert testimony to understand the evidence or determine a fact in
issue, then the proffered testimony is inadmissible because it merely deals with a proposition that
is not beyond the ken of common knowledge.”) (quotation marks and citation omitted). In People
v Smith, 425 Mich 98, 106; 387 NW2d 814 (1986) (citation omitted), our Supreme Court explained
that in answering the question of whether an expert’s opinion is necessary in aiding the jury to
decide the ultimate issue, it is helpful to use “the common sense inquiry whether the untrained
layman would be qualified to determine intelligently and to the best possible degree the particular
issue without enlightenment from” experts. Although Seiser had superior information to the
ordinary juror on patterns of behavior for homeless drug users, the jurors had the capacity to
analyze the evidence they received and determine “intelligently and to the best possible degree”
what type of relationship defendant and Hayes had without Seiser’s opinion on the issue.
Accordingly, admission of Seiser’s testimony was an abuse of discretion.
Although Seiser’s testimony should not have been admitted, its admission was not outcome
determinative. An alleged evidentiary error must be considered “in the context of the untainted
evidence,” and “a preserved, nonconstitutional error is not a ground for reversal unless after an
examination of the entire cause, it shall affirmatively appear that it is more probable than not that
the error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607
(1999) (quotation marks and citation omitted). Here, Holly Rosen, a social worker employed as
the director of “MSU Safe Place,” which, among other things, provides programming that
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addresses domestic violence and stalking, and a defense witness, testified similar to Seiser. When
asked by the prosecutor on cross-examination whether she was familiar “with the type of
relationships that a drug user, drug-dependent person, who is homeless has with another, let’s say,
adult male, but there’s not necessarily [a] romantic or sexual relationship,” Rosen replied:
I know that a lot of people, and this is anecdotal from what I’ve seen. I
haven’t really attended a lot of training on this but I have seen people who are drug
dependent living on couches of friends . . . some of them give sex [in] exchange for
drugs . . . . [J]ust kind of depending on each other for what they need. . . . [W]hen
you’re vulnerable—part of the vulnerable population whether you’re homeless or
really poor or drug addicted, you often rely on others in the same situation to help
you out. So, there’s . . . a lot of give and take in that subculture or communities.
Rosen also testified there is often “manipulation where there is drug dependency,” and she agreed
that addicts use manipulation to either get what they need or to satisfy their drug habit. Thus,
Seiser’s testimony regarding the patterns of behavior of drug users and their use of manipulation
was cumulative of other evidence at trial.
In arguing that Seiser’s testimony was outcome determinative, defendant compares the
present case to People v Hamiliton, unpublished per curiam opinion of the Court of Appeals, issued
February 9, 2016 (Docket No. 319980).1 There, the defendant argued it was an abuse of discretion
for the trial court to allow a substance abuse counselor to give an expert opinion about whether the
defendant was a drug addict, and to fail to limit the counselor’s testimony to “common
characteristics of drug addicts.” Id. at 6. This Court concluded it need not determine whether the
trial court erred in either instance because, even if the trial court had erred, any error was harmless
beyond a reasonable doubt because it was “largely cumulative to that given by the various expert
witnesses from both sides.” Id. at 6-7. Our Supreme Court vacated the discussion regarding expert
witnesses and remanded to this Court for consideration of the defendant’s claims regarding the
qualification and testimony of the substance abuse counselor, observing that the panel erred “in
determining that because [the counselor’s] testimony was arguably cumulative, it was harmless.”
People v Hamilton, 500 Mich 938 (2017).
On remand, this Court concluded the trial court abused its discretion by qualifying the
counselor as an expert witness without any indication of “what opinion [the counselor] was going
to offer or what principles and methodology she had used to reach her conclusions.” People v
Hamilton (On Remand), unpublished per curiam opinion of the Court of Appeals, issued August
1, 2017 (Docket No. 319980), pp 2-4. The counselor then presented “an extremely broad and
ultimately speculative set of opinions” regarding the defendant’s alleged drug addiction. Id. at 4.
The Hamilton (On Remand) Court concluded:
Given the speculative nature of [the counselor’s] testimony, the lack of
evidentiary support for some of her “wonderings” and “maybes,” and the lack of
any discernable and reliable principles and methodologies for reaching her
1
In Michigan, unpublished opinions are not precedentially binding, but may be considered for
their persuasive value. See People v Green, 260 Mich App 710, 720 n 5; 680 NW2d 477 (2004).
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opinions, . . . the trial court abused its discretion and abandoned its role as
gatekeeper when it allowed [the counselor] to testify without first ensuring that her
testimony would be reliable and based on actual facts as opposed to mere
speculations and wonderings. [Id. at 5.]
A majority of our Supreme Court denied leave to appeal on this Court’s decision. People
v Hamilton, 501 Mich 1094 (2018). However, Justice MCCORMACK, joined by Justice BERNSTEIN
dissented from the majority’s decision to deny leave, noting that “[t]he defendant’s trial included
extensive speculative and prejudicial testimony from an ‘expert’ prosecution witness” and that
“[a]dmission of that testimony radically changed the trial in a way that may have rendered it
fundamentally unfair.” Id. (MCCORMACK, J, dissenting).
Defendant argues that Seiser’s testimony was “the type of testimony admitted in
Hamilton,” and that “a thorough review of the entire case compels the conclusion that the error of
admitting [Seiser’s testimony] was outcome determinative.” I disagree. Seiser’s testimony is
distinguishable from that of the substance abuse counselor in Hamilton. The counselor in
Hamilton testified specifically to the defendant’s alleged drug addiction and how it factored into
the charged crime. Seiser, on the other hand, provided only general information about the lifestyles
of the drug-dependent people he had observed. He did not express his opinion that defendant fit
his profile, nor did he specifically compare defendant’s circumstances to the characteristics of his
profile in such a manner that suggested defendant used methamphetamine. The jury’s questions
indicated they understood that Seiser’s testimony was for their general education about the patterns
of behavior of the methamphetamine users he had met. Therefore, contrary to defendant’s
argument, Seiser did not expressly portray defendant as a manipulative drug user desperate to meet
her needs.
Defendant also argues that admitting Seiser’s testimony triggered a chain of events that
“greatly impacted [defendant’s] credibility.” Defendant asserts that admitting Seiser’s testimony
required trial counsel to call Rosen to testify regarding nonintuitive behaviors of trauma victims
to explain defendant’s behavior and to counter Seiser’s testimony. According to defendant, this
led the prosecution to use Rosen’s testimony to argue for the admission into evidence of “all of
the text messages from [defendant’s] phone” to show her state of mind, and to then refer “to the
text messages for the vast majority of her closing argument.” The record does not support
defendant’s argument.
There is no indication that admission of Seiser’s testimony compelled defense counsel to
call Rosen as a witness. Rosen’s testimony suggests that its purpose was to challenge the
assumptions that KDPS Detective Jon Stolsonburg and others drew from their interviews with
defendant. Whereas the officers found defendant’s claim of having been raped to be dubious,
Rosen’s testimony suggested that, had they used trauma-informed interview techniques, they
would have realized that defendant’s behavior was consistent with that of a person suffering from
trauma. The testimony of Seiser and Rosen served different purposes, and where there was
overlap, e.g., regarding the behavior of persons made vulnerable by drug use, poverty, or both,
Rosen’s testimony was similar to Seiser’s testimony. Because there was no logical reason why
Seiser’s testimony about the lifestyles of the drug users with whom he worked necessitated
testimony about how the trauma of sexual assault affected the brain and memory, defendant’s
“chain of events” theory fails.
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Lastly, defendant maintains that the fact that the jury took six days to reach a verdict
indicates that determining credibility was difficult and that Seiser’s testimony tipped the scales
against defendant. Defendant fails to show how general information about the lifestyles of drug-
dependent persons tipped the scales against him, particularly when the trial court instructed the
jury on the proper use of Seiser’s testimony, i.e., to use it only as background information, not as
substantive evidence that defendant committed the charged crimes. It is well-established that
“[j]urors are presumed to follow the court’s instructions, and instructions are presumed to cure
most errors.” People v Mullins, 322 Mich App 151, 173; 911 NW2d 201 (2017).
Based on the entire record before us, I am not convinced that defendant met her burden of
showing that, but for admission of Seiser’s testimony, it is more probable than not that a different
outcome would have occurred. Accordingly, although I believe the trial court abused its discretion
in admitting Seiser’s testimony regarding the patterns of behavior of methamphetamine users, the
error was not outcome determinative.
/s/ Cynthia Diane Stephens
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