                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 20, 2017
               Plaintiff-Appellee,

v                                                                    No. 331962
                                                                     Jackson Circuit Court
RILEY ANDREW SPITLER,                                                LC No. 14-005198-FJ

               Defendant-Appellant.


Before: SWARTZLE, P.J., and SAAD and O’CONNELL, JJ.

PER CURIAM.

       Defendant, Riley Spitler, shot his older brother, Patrick Spitler, in the chest at his home in
Blackman Township, killing him nearly instantaneously. Defendant claimed that the shooting
was an accident, and that he believed the gun to be unloaded at the time of the killing. The
prosecution disagreed, arguing that the killing was not only intentional, but premeditated, and
charged defendant with open murder, MCL 750.316. During the investigation of the killing,
police also uncovered evidence of defendant’s dealing marijuana and the prosecution charged
defendant accordingly. MCL 333.7401(2)(d)(iii). The prosecution also charged defendant with
possessing a firearm during the commission of both offenses (felony firearm). MCL 750.227b.

        At defendant’s jury trial, the trial court improperly admitted testimony from a detective
presented as an expert in “linguistic statement analysis” without properly determining that his
testimony was based upon “reliable principles and methods” as required by MRE 702. The trial
court also improperly admitted hearsay statements from three of the victim’s friends under
exceptions for present sense impression, MRE 803(1), excited utterance, MRE 803(2), as well as
the residual hearsay exception, MRE 803(24). A jury found defendant guilty of second-degree
murder, MCL 750.317, delivering the controlled substance of marijuana, MCL
333.7401(2)(d)(iii), and two counts of possession of a firearm during commission of a felony,
MCL 750.227b.

         We now vacate defendant’s conviction for second-degree murder and remand for
proceedings consistent with this opinion. We affirm defendant’s controlled substance conviction
and the related felony firearm conviction as defendant has shown no error undermining the
reliability of those convictions.




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                                       I. BACKGROUND

       All parties agree that, on December 6, 2014, defendant, then 16 years old, shot his older
brother in the chest, perforating his heart, and killing him nearly instantaneously. Defendant
then called 911 for assistance. When police officers arrived at the home, defendant met them
outside and hysterically told them, “I shot my brother and I think he’s dead.” These officers
noticed a broken glass entry door and that defendant’s hand was bloody.

        Defendant’s distress continued as he was placed in the back of a police cruiser to the
point where he was shaking the car and police became concerned for his safety. Defendant
repeatedly questioned police about his brother’s health. Eventually, defendant was transported to
a local hospital to treat his injuries. Defendant’s emergency room physician testified that
defendant “told us he was playing around with his mother’s gun and said he was just joking
around and he told his brother, ‘Let’s see if this is your lucky day,’ and he said he pulled the
trigger at that point.” The physician continued that defendant “also told us he was not sure if the
gun was loaded until after he fired the gun.” Defendant indicated to the physician that he had
punched the glass out of the door so that emergency personnel could enter the home and that he
was so distressed by the incident that he wished to commit suicide.

        Police searched the home and found several guns in defendant’s bedroom, including the
apparent murder weapon. Patrick was found dead in his room, where police recovered a spent
shell casing. In defendant’s room, police also found a mason jar containing marijuana.

         It appears that Child Protective Services (CPS) became involved in this case after
defendant’s parents declined to place defendant in a mental health treatment facility. One CPS
case worker, Alexandria Fedewa, interviewed defendant and testified that he told her that he and
Patrick were playing Russian Roulette and that he did not know there was a round in the
chamber. According to Fedewa, defendant told her that “he doesn’t know how to feel guilt” and
that “life is a process” and “death is a part of it.” Fedewa also indicated that defendant dropped
out of school in ninth grade and that “money is really all he cares about.”

        Another CPS worker, Becky Malin, interviewed defendant and he told her that Patrick
had actually fired the gun. Malin continued that, when she attempted to discuss his brother’s
death, defendant gave her an “empty,” “uncontrollable” look that made her concerned for her
own safety. Malin also indicated that defendant told her that he had been selling marijuana with
his neighbor, Kantpreet Singh. Singh was called to testify but asserted his Fifth Amendment
rights. Detective Boulter testified regarding Facebook messages between Singh and defendant,
in which the two discussed selling various drugs, including marijuana, and profiting from the
enterprise.

        At trial, the prosecution asked to qualify Detective Joseph Merritt as an expert in
linguistic statement analysis (LSA) and provided defense counsel, for the first time, with




                                                -2-
Merritt’s curriculum vitae. Over defendant’s objection, and without a Daubert1 hearing, the trial
court admitted Merritt as an expert.

        Detective Merritt explained that LSA is a technique sanctioned by the Michigan
Commission on Law Enforcement Standards (MCOLES) to evaluate an individual’s statement to
determine whether the statement contains “indicators of deception.” Detective Merritt testified
that he interviewed defendant and analyzed defendant’s call to 911. Portions of the interview
were played for the jury and Merritt explained the statements that he found concerning. Among
the areas that concerned Detective Merritt were that defendant stated that he had a working
knowledge of semiautomatic firearms, that defendant looked “relaxed” when he described the
shooting, and that defendant asked whether the magazine in the recovered firearm was “seated”
or “slightly dislodged.”2

        Regarding the 911 call, Detective Merritt testified that what was “most striking” to him
was that defendant did not seek help for Patrick, but rather waited three minutes into the call to
tell the operator that Patrick was “still breathing.” Detective Merritt also found concerning
defendant’s repeated acceptance of death, as allegedly evidenced by his statements to the
operator.

        A manager from a local sporting goods store testified at trial that defendant attempted to
purchase a handgun from the store through his mother. The manager testified that he refused to
sell the gun to defendant’s mother, but that defendant’s mother eventually purchased the
apparent murder weapon from the store. Three of Patrick’s friends—Kalyn Madery, Dalton
Dueck, and Joshua Foote—also testified for the prosecution about statements Patrick had made
to them about defendant having a gun. Defendant objected to two of these statements. The trial
court overruled defendant’s objections, concluding that the statements were admissible as either
present sense impressions, excited utterances, or under the residual hearsay exception.

                                   II. APPLICABLE STANDARDS

       This Court reviews a “trial court’s decision to either admit or exclude evidence” for an
abuse of discretion. People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010). We also review
questions regarding a trial court’s determination of a witness’s qualification as an expert for an
abuse of discretion. People v Gambrell, 429 Mich 401, 407; 415 NW2d 202 (1987). A trial
court abuses it discretion when its decision falls outside the principled range of outcomes.
People v Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006).

        In criminal cases, whether an error occurred is not dispositive of whether a defendant is
entitled to a new trial. Rather, under the harmless error standard, “[n]o judgment or verdict shall
be set aside . . . unless in the opinion of the court, after an examination of the entire case, it shall
affirmatively appear that the error complained of has resulted in a miscarriage of justice.” MCL


1
    Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).
2
    Defendant told Merritt that a gun will not fire if the magazine is not fully seated.


                                                   -3-
769.26. Put another way, defendant is not entitled to relief unless he establishes that, “more
probably than not, a miscarriage of justice occurred because of the error,” i.e., that the error was
outcome determinative. People v Knapp, 244 Mich App 361, 378; 524 NW2d 227 (2001). Still,
“a reviewing court is not to find [an] error harmless simply because it concludes the jury reached
the right result.” People v Mateo, 453 Mich 203, 206; 551 NW2d 891 (1996). Moreover, the
cumulative effect of several errors, although harmless in isolation, may render the verdict
unreliable and warrant relief. People v. Ackerman, 257 Mich App 434, 454; 257 NW2d 818
(2003).

                                         III. ANALYSIS

       Violation of Daubert/MRE 702. Defendant first argues that Detective Merritt’s LSA
testimony was inadmissible because its reliability was not verified, and that the trial court should
have held a Daubert hearing to determine LSA’s reliability. We agree.

       “[T]rial courts have an obligation to exercise their discretion as a gatekeeper and ensure
that any expert testimony admitted at trial is reliable.” People v Yost, 278 Mich App 341, 394;
749 NW2d 753 (2008). MRE 702 governs the trial court’s certification of experts and admission
of expert testimony. The rule 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. [MRE 702.3]

         An expert’s opinion is not objectionable merely because it embraces an ultimate issue
decided by the factfinder. MRE 704. Accordingly, “MRE 702 mandates a searching inquiry, not
just of the data underlying expert testimony, but also of the manner in which the expert interprets
and extrapolates from those data.” People v Dobek, 274 Mich App 58, 94; 732 NW2d 546
(2007) (internal quotation notation and citation omitted). To qualify as expert testimony under
MRE 702, the witness’s testimony must not only be viewed as legitimate within the witness’s
field of expertise, but the field of expertise itself must also be based upon the “methods and
procedures of science.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008),
quoting Daubert, 509 US at 589-590.

        Ultimately, the trial court must determine that the expert’s opinion is based upon reliable
principles and methodology rather than “ ‘unsupported speculation.’ ” Unger, 278 Mich App at
217, quoting Daubert, 209 US at 590. “When evaluating the reliability of a scientific theory or



3
  MRE 702 incorporates the “requirements of the United States Supreme Court’s decision in
[Daubert, 509 US 579].” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008)


                                                -4-
technique, courts consider certain factors, including but not limited to whether the theory has
been or can be tested, whether it has been published and peer-reviewed, its level of general
acceptance, and its rate of error if known.” People v Kowalski, 492 Mich 106, 131; 821 NW2d
14 (2012).

        In cases where the challenged field, expert, or procedures are not generally accepted, the
trial court may need to hold a separate hearing outside of the presence of the jury to determine
whether the proposed opinion meets the standards of admissibility. See Unger, 278 Mich App at
218. Such a hearing is often referred to as a Daubert hearing.

       In this case, the trial court did not hold a Daubert hearing to determine the reliability of
LSA. Indeed, the trial court merely accepted Detective Merritt’s qualifications without requiring
the prosecution to introduce any evidence demonstrating LSA’s reliability save for the fact that
MCOLES approved the procedure for use in investigative police work.4 Rather, the trial court
admitted Merritt as an expert, allowed the jury to hear his opinion, and denied defendant’s post-
conviction request for a Daubert hearing, indicating that “the matter should be properly
considered by the appellate courts.” Yet, in so ruling, the trial court misplaced the responsibility
for ensuring that MRE 702 is satisfied. It is the trial court’s obligation to conduct a searching
inquiry into the reliability of scientific techniques under MRE 702.

        For our part, we can find nothing in our case law to support the trial court’s ruling. The
prosecution has provided this Court with no case indicating that LSA is an accepted or reliable
technique. Further, we are unable to find any case in which LSA has been subjected to a
Daubert-type analysis or been properly admitted as supporting an expert’s opinion. Apart from
its authorized use as an investigative tool by MCOLES, we are unable to find anything in the
record or precedent to support the use of LSA in defendant’s trial.

       The Trial Court Improperly Admitted Hearsay Evidence.          In addition to the
MRE702/Daubert error, defendant also argues that the trial court improperly admitted three
instances of hearsay testimony. We agree.

        “‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
“Hearsay is generally prohibited and may only be admitted at trial if provided for in an exception
to the hearsay rule.” People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010); MRE 802.

        At trial, Kalyn Madery testified that approximately two months before the fatal shooting,
Patrick “confided in me that [defendant] had pulled out a gun on him in some type of argument


4
  We note that, whether the technique has been approved for investigative police work is a
separate question, insufficient to determine whether the technique is sufficiently reliable to be
used as the basis of an expert opinion at trial. Polygraph tests have long held the favor of some
police departments; nevertheless, the reliability of these tests has not been sufficiently
established to render them admissible as evidence. See People v Barabara, 400 Mich 352, 404-
405; 255 NW2d 171 (1977).


                                                -5-
in an angry way. He was just talking about being worried, being concerned not knowing what to
do.” Next, Dalton Dueck explained that Patrick had told him earlier “[t]hat his brother had kind
of told him a secret about having a gun and Patrick was pretty shocked by that . . . and
concerned.” Finally, Joshua Foote testified in part that, on the day before Patrick died, Patrick
pulled him aside and stated that defendant had a gun. Foote added that he “thought this . . . is a
big deal. And . . . I could tell [Patrick] did too.”

        This testimony plainly included hearsay statements. The trial court held an evidentiary
hearing regarding, inter alia, the challenged statements. The trial court admitted Madery’s
testimony under the excited utterance exception, Duecke’s testimony under the excited utterance
and present sense impression exceptions, and Foote’s testimony as an excited utterance, but also
indicated that it may be admissible as a present sense impression and under the residual hearsay
exception. We conclude, however, that none of these exceptions applied and that the trial court
improperly admitted the statements.

        For a trial court to admit hearsay evidence under the excited utterance exception, the
statement must relate to a “startling event or condition” and be made “while the declarant was
under the stress of excitement caused by the event or condition.” MRE 803(2). The key issue is
whether the declarant was still under the stress of excitement caused by the startling event when
the declarant made the statement or whether the declarant had an opportunity for “conscious
reflection.” People v Smith, 456 Mich 543, 550-551; 581 NW2d 654 (1998).

         Here, the exact time relationship between defendant allegedly showing Patrick a gun or
telling him that he had one and the statements Patrick allegedly made to his friends is unclear.
The record, however, indicates that the witnesses did not speak with Patrick immediately after
defendant allegedly showed Patrick the gun or otherwise threatened him. For example, Madery
testified that Patrick told her about defendant’s gun while she and Patrick were in a coffee shop
and after the two had spent the night taking pictures around Jackson. Madery testified that her
impression was that the incident Patrick told her about occurred approximately one week before
Patrick confided in her. Similarly, the record shows that Patrick’s other alleged statements were
made an appreciable time after the startling event, and from a place of relative safety, allowing
Patrick the opportunity for conscious reflection, such that Patrick would no longer have been
under the stress of the excitement caused by the event. Accordingly, we conclude that the
hearsay statements do not qualify under the excited utterance exception.

       Similarly, the statements do not qualify under the present sense impression exception. A
present sense impression is a “statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or immediately thereafter.” MRE
803(1). The record indicates that Patrick did not make these statements while he was witnessing
his brother show him a gun, or immediately after. Accordingly, the statements were not
admissible as present sense impressions.

       Finally, the record does not support the conclusion that the statements were admissible
under the residual hearsay exception. “To be admitted under MRE 803(24), a hearsay statement
must: (1) demonstrate circumstantial guarantees of trustworthiness equivalent to the categorical
exceptions, (2) be relevant to a material fact, (3) be the most probative evidence of that fact


                                               -6-
reasonably available, and (4) serve the interests of justice by its admission.” People v Katt, 468
Mich 272, 290; 662 NW2d 12 (2003).

        The trial court did not provide a reasoned analysis explaining why these statements each
satisfied MRE 803(24), and based on this record we cannot determine whether the testimony was
the most probative evidence of defendant’s statement of mind, among other things at issue in the
trial.

       Character Evidence Was Proper. Finally, defendant argues that the trial court
improperly admitted character evidence in the form of (1) caseworker Fedewa’s testimony that
defendant dropped out of school in ninth grade and only cared about money, (2) caseworker
Malin’s testimony that she was frightened by defendant, and (3) testimony regarding the
Facebook conversations between defendant and Singh. We find no error here.

        “Evidence of a person’s character or a trait of character is not admissible for the purpose
of proving action in conformity therewith.” MRE 404(a). Moreover, evidence of a person’s
“other crimes, wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith.” MRE 404(b)(1). This evidence, however, is admissible
for other purposes and may provide “proof of motive, opportunity, intent, preparation, scheme,
plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the
same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior
or subsequent to the conduct at issue in the case.” MRE 404(b)(1).

        Moreover, character evidence may also be admissible when a witness, including a
defendant, places a character trait at issue, though “the power of the state to rebut the character
of defendant is limited to the trait or traits introduced by the defendant.” People v Johnson, 409
Mich 552, 561; 297 NW2d 115; MRE 404(a)(1). If character evidence is admissible, “proof may
be made by testimony as to reputation or by testimony in the form of an opinion. On cross-
examination, inquiry is allowable into reports of relevant specific instances of conduct.” MRE
405(a).

       Here, caseworker Fedewa’s testimony regarding defendant’s dropping out of school and
focus on money tended to establish defendant’s motivation for selling marijuana as a means to
acquire more money. Accordingly, the statement was admissible under MRE 404(b)(1).

        Caseworker Malin’s testimony that she did not feel safe around defendant was elicited on
redirect after defense counsel asked her if she had described defendant “as a very nice young
man,” and what change had occurred in defendant when she asked him about the incident. This
questioning placed defendant’s character at issue and rendered proper the prosecution’s
subsequent questioning on defendant’s character.

        The Facebook messages are more properly characterized as direct evidence of
defendant’s distribution of a controlled substance and possession of a firearm for purposes of that
crime, rather than character evidence.

       Accordingly, we conclude that the trial court did not improperly admit evidence of
defendant’s character or prior bad acts.


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                                            IV. RELIEF

       Because defendant has shown error with respect to the trial court’s admission of scientific
evidence, as well as its admission of hearsay statements from three prosecution witnesses, we
must now determine whether those errors undermine the reliability of defendant’s convictions,
such that defendant is warranted relief. We find that defendant is warranted relief from his
second-degree murder conviction, but not from his controlled substance conviction or the felony-
firearm conviction related to that conduct.

        On appeal, the prosecution argues that, even if the trial court did err in admitting the
challenged evidence, any error was harmless given that Detective Merritt’s testimony, as well as
the challenged hearsay statements, tended to establish defendant’s guilt for first-degree murder,
and defendant was ultimately convicted of second-degree murder. We are unable to conclude
that these errors were harmless, or, in other words, that the jury verdicts were reliable. Feezel,
486 Mich at 192.

         In order to convict a defendant of second-degree murder, the prosecution must show
beyond a reasonable doubt that the defendant acted with malice. People v Goecke, 457 Mich
442, 463-464; 579 NW2d 868 (1998). “Malice is 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. The
prosecution contends that defendant’s act of pointing a gun at his brother and pulling the trigger
is sufficient to conclude, beyond a reasonable doubt, that he willfully disregarded that the natural
tendency of that action would be his brother’s death. On the present record, we cannot agree.

        “The general rule appears to be that, when a person points a gun at someone as a joke,
reasonably believing the gun not to be loaded, and pulls the trigger and the gun discharges and
kills the victim, he is guilty of manslaughter.” People v Maghzal, 170 Mich App 340, 345; 437
NW2d 552 (1988), citing 40 Am Jur 2d, Homicide, § 95, p 390. While an appropriate case may
exist to find that such an act constitutes a willful disregard for life, “[w]e are not convinced that
everyone who reasonably believes that a gun is empty necessarily has sufficient intent to justify a
second-degree murder conviction.” Id. at 347. More specifically, we have not been presented
with any argument sufficient for us to conclude that this case presents a factual circumstance that
warrants departure from the general rule.

       Detective Merritt’s testimony and the challenged hearsay statements were offered as
evidence of defendant’s state of mind, and tended to negate his contention that he believed the
gun to be unloaded. Defendant’s state of mind was one of the dispositive issues at trial, and,
given the cumulative effect of these errors, we are unable to conclude that defendant’s conviction
of second-degree murder is reliable. Accordingly, we reverse the defendant’s conviction of
second-degree murder.

        We agree with the parties that involuntary manslaughter, MCL 750.321, is a lesser-
included offense to second-degree murder. See People v Mendoza, 468 Mich 527; 664 NW2d
685 (2003). We further agree with the parties that, given our reversal of the second-degree
murder conviction, the appropriate remedy is to remand the matter with instructions for the trial
court to enter a judgment of conviction for involuntary manslaughter and to resentence defendant

                                                -8-
accordingly. See People v Bearss, 463 Mich 623, 631; 625 NW2d 10 (2001); People v Thomas,
399 Mich 826; 249 NW2d 867 (1977). On remand, if the prosecution is “persuaded that the ends
of justice would be better served” by proceeding to trial on the second-degree murder charge,
then before resentencing, the prosecution may notify the trial court of that intent. Thomas, 399
Mich at 826-827. If the prosecution timely notifies the trial court, then the trial court shall vacate
the manslaughter conviction and related felony-firearm conviction and grant a new trial on the
second-degree murder charge and related felony-firearm charge. Id.

       Defendant has not proven any error that relates to—yet alone undermines the reliability
of—his conviction for distributing a controlled substance or the related felony firearm
conviction. We therefore affirm those convictions.

       We do not retain jurisdiction.



                                                              /s/ Brock A. Swartzle
                                                              /s/ Henry William Saad
                                                              /s/ Peter D. O'Connell




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