                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 4, 2014
               Plaintiff-Appellant,

v                                                                    No. 311147
                                                                     Livingston Circuit Court
BRANDON JOHN MITCHELL,                                               LC No. 12-020453-AR

               Defendant-Appellee.


Before: METER, P.J., and WHITBECK and RIORDAN, JJ.

PER CURIAM.

        A district-court jury convicted defendant of operating a vehicle while visibly impaired
(OWVI), MCL 257.625(3), as a lesser included offense of operating a vehicle while intoxicated
(OWI), MCL 257.625(1). The case has been the subject of numerous motions in both the district
court and the circuit court. It is now before us on remand from the Michigan Supreme Court,
limited to a specific issue as discussed herein. After considering the issue, we remand to the
circuit court for further proceedings.

        Underlying this prosecution is a traffic accident that occurred in the early hours of May 2,
2009. A witness observed defendant having trouble keeping his vehicle in his lane of traffic.
Eventually the vehicle went off the road and into a ditch. The witness telephoned 911, but
defendant drove his vehicle out of the ditch and away from the scene. The witness followed in a
vehicle driven by her son; she testified that she observed something underneath defendant’s
vehicle hitting the pavement and causing sparks. Officers from the Livingston County Sheriff’s
Department arrived and pulled over defendant. At the request of the officers, defendant exited
the vehicle. The police administered a field-sobriety test. Defendant did not perform
satisfactorily on a “horizontal gaze nystagmus” test, and he displayed trouble walking and
turning and maintaining his balance on one foot. The police arrested defendant and he was
charged with OWI.

        At the jail, officers used the DataMaster breathalyzer to twice test defendant’s blood-
alcohol level. The results were admitted as exhibits at trial and showed .07 grams of alcohol per
210 liters of breath for the first test and .08 grams of alcohol per 210 liters of breath for the
second test. Felix Adatsi, a toxicologist with the Department of State Police, was qualified as an
expert witness in “the field of toxicology and the operation of the [DataMaster].” Adatsi testified
that based on defendant’s height and weight, if his report of what he drank that evening was

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accurate, his blood-alcohol content should have been approximately .027 around the time he was
stopped and arrested.

        Before trial in the district court, the prosecutor moved to exclude defendant’s witnesses
and exhibits for failure to comply with a discovery order. The trial court granted the motion, and
defendant was not permitted to offer any exhibits or witnesses other than himself. After the jury
found him guilty of OWVI, defendant moved for a new trial. He argued that the trial court’s
order excluding his witnesses and exhibits was contrary to law and deprived him of his
constitutional right to present a defense. The trial court stated that it believed its order was
erroneous based on the law concerning discovery and it therefore granted defendant’s motion.
The prosecutor applied for leave to appeal in the circuit court, and the circuit court granted the
application. The circuit court determined that the district court did not have the authority to enter
the discovery order and “was right to recognize its error and order a new trial.” The court also
concluded that the error deprived defendant of his constitutional right to present a defense.
However, the court remanded the case to the district court to consider whether the prosecutor
could prove that the error was harmless beyond a reasonable doubt.

         On remand in the district court, the parties declined to hold an evidentiary hearing.
Defense counsel argued that its proffered expert, Dr. Karl1 Ebner, would have attacked the
reliability of the DataMaster results. The district court had access to and examined a report
authored by Dr. Ebner. Defense counsel argued that he would have also called defendant’s
girlfriend, who would have “testified as to the amount of alcohol that in fact she observed the
Defendant consume.” The district court found that even if defendant had presented his proposed
witnesses, the testimony would not have “changed the outcome of the trial,” specifically finding
that the exclusion of the testimony was harmless error.

      Defendant appealed to the circuit court, which also concluded that his proffered witnesses
would not have altered the outcome of the trial because defendant was convicted of OWVI, not
OWI. The court explained that the jury

       must’ve dismissed the breathalyzer test because they didn’t find him guilty of
       having—of a per se violation. But I think the jury listened to the evidence as far
       as the testimony that the gentleman admitted that he had three beers and a glass of
       wine and drove an automobile inside of two and a half hours of driving, and that
       could very well have permitted a rational jury to have found him guilty of
       operating while visibly intoxicated.

The circuit court affirmed the district court.

       At a later hearing, however, the circuit court explained that it had set its previous decision
aside and wanted to hear further argument. Following argument, the court reversed its previous
decision, explaining:


1
  At times in the lower court record, Ebner’s name is spelled “Carl,” but defendant uses the
spelling “Karl” in his appellate brief.


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       I do find when I look back on this on deep thought and after I heard the argument
       at the end of May, I initially thought it was harmless error, the more I thought
       about it and it just took me a few hours after more thought to think I couldn’t let
       that decision stand. And I’ll tell you why. It is clear to me that in the Declaration
       of Independence from about seven generations we had to suffer under England
       not letting us have jury trials and then for about the last 235 years on earth, that’d
       be about maybe nine generations, we’ve had the right to a jury trial. And then the
       Sixth Amendment permits counsel and a public trial and a jury trial. And I simply
       couldn’t stand to see that Defendant in this case at bar be deprived the right of a
       jury trial with the right to counsel, right to present witnesses and right to go
       forward and have his witnesses come forward.

The court further explained, “[T]o let the People’s evidence go unchallenged is what really
makes it harmful error and not harmless error.” The court also found that the error was not
harmless given the particular circumstances of the case:

               I also recognize that there’s a [timeframe] from last alcohol to when the
       gentleman got stopped. There may be reasons why he drove as he did. I didn’t
       know about this falling asleep thought up ‘til now, but who knows it could’ve
       been that. But more importantly, it put a [mindset]—that testimony could put a
       [mindset] in the juror’s mind with the Plaintiff with the Prosecutor’s line of
       thinking that would be hard to overcome by the defense that it is harmful error not
       to let him put evidence in to rebut Adatsi’s testimony and the officer’s testimony
       and everybody else’s testimony that came forth out of the Prosecutor’s case. It
       would seem to be just a travesty of justice not to let the defense put a case in.
       Whether or not this man was impaired or not, I have no clue. And when I first
       analyzed this as harmless error I thought, well, they didn’t find the guy guilty of
       drunk driving and that’s what Adatsi was on for. But I’m thinking on second
       thought that the cumulative effect of Dr. Adatsi’s expert testimony on behalf of
       the People coupled with the police’s error—or testimony and then not being able
       to rebut that because of not being able to present witnesses would give the People
       an unfair advantage and it would create harm to the Defendant because the jury
       for better or for worse doesn’t have the opportunity to have the People’s evidence
       rebutted by witnesses brought forward by the Defendant, and that would—that is
       harmful.

                                               ***

               I do make a finding that the error was not harmless beyond a reasonable
       doubt . . . .

The court accordingly remanded the case for a new trial.

       The prosecutor applied for leave to appeal in this Court, but the Court denied the
application. People v Mitchell, unpublished order of the Court of Appeals, entered October 2,
2013 (Docket No. 311147). The prosecutor then applied for leave to appeal in the Supreme
Court, which, in lieu of granting leave, remanded this case to this Court to consider “whether the

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Livingston Circuit Court erred in concluding that the district court’s exclusion of the defense
expert testimony was not harmless beyond a reasonable doubt with respect to the defendant’s
conviction for operating a motor vehicle while visibly impaired, MCL 257.625(3).” People v
Mitchell, 495 Mich 1001; 846 NW2d 54 (2014). We will not consider the exclusion of
defendant’s girlfriend’s testimony, because the Supreme Court directed this Court to consider
only the exclusion of Ebner’s testimony.

        On appeal, the parties dispute whether the exclusion of the testimony in question was an
error of constitutional dimensions. A criminal defendant has a constitutional “right to present a
defense, which includes the right to call witnesses.” People v Yost, 278 Mich App 341, 379; 749
NW2d 753 (2008). However, the erroneous exclusion of a defense witness does not
automatically amount to a constitutional violation. People v Steele, 283 Mich App 472, 488-489;
769 NW2d 256 (2009).

       Defendant was convicted of OWVI under MCL 257.625(3). That section provides, in
pertinent part:

              A person, whether licensed or not, shall not operate a vehicle upon a
       highway or other place open to the general public or generally accessible to motor
       vehicles, including an area designated for the parking of vehicles, within this state
       when, due to the consumption of alcoholic liquor, . . . the person’s ability to
       operate the vehicle is visibly impaired.

Visible impairment is established when the “‘defendant’s ability to drive was so weakened or
reduced by consumption of intoxicating liquor that defendant drove with less ability than would
an ordinary, careful and prudent driver. Such weakening or reduction of ability to drive must be
visible to an ordinary, observant person.’” People v Calvin, 216 Mich App 403, 407; 548 NW2d
720 (1996), quoting People v Lambert, 395 Mich 296, 305; 235 NW2d 338 (1975).

        It is unclear whether the exclusion of Ebner’s testimony violated defendant’s
constitutional right to present a defense because it is unclear what Ebner’s testimony would have
been. Aside from assertions by counsel and vague statements made by the district court, there is
nothing in the record to indicate what his testimony would have been. No evidentiary hearing
was held and Ebner’s report is not contained in the lower court record. Defendant asserts that his
expert witness could have undermined the administration and reliability of the DataMaster test,
“could have explained the significance of sleep deprivation,” and could have “opined about the
amount of alcohol the Defendant consumed and whether that would have affected his ability to
operate a motor vehicle.” Although defendant was able to challenge the reliability of the
DataMaster test through his cross-examination of Adatsi, this testing of the evidence may not
have been as effective as having an expert witness directly challenge the test results and Adatsi’s
testimony. Further, testimony by Ebner regarding sleep deprivation could, conceivably, have
cast doubt on whether defendant was visibly impaired under the proper legal standard.
Consequently, it is possible that Ebner would have provided a defense to the OWVI charge that
was not otherwise available through cross-examination of prosecution witnesses. See Steele, 283
Mich App at 489 (discussing whether the exclusion of testimony was an unconstitutional
deprivation of the right to present a defense or merely an evidentiary error).


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        However, that determination cannot be made without knowing what Ebner’s otherwise
admissible2 testimony would have been. If the exclusion deprived defendant of his constitutional
right to present a defense, the prosecution, to sustain the conviction, must establish beyond a
reasonable doubt that the error was harmless. People v Anderson (After Remand), 446 Mich 392,
405-406; 521 NW2d 538 (1994). If the exclusion was a mere evidentiary error that did not rise
to the level of a constitutional violation, defendant is not entitled to a new trial unless he can
establish that it is “more probable than not that the error in question undermined the reliability of
the verdict, thereby making the error outcome determinative.” People v Blackmon, 280 Mich
App 253, 259, 270; 761 NW2d 172 (2008) (internal quotation marks, alteration, and citation
omitted). The record before us is not sufficient to answer the pertinent questions, and they are
issues that should be addressed in the first instance by the lower court. We note that while the
circuit court did come to the conclusion that defendant had been deprived of his constitutional
right to present a defense, neither the circuit court nor the district court properly analyzed the
content and admissibility3 of the proposed testimony in order to determine the proper standard
for evaluating the impact of the exclusion of the testimony.4 See, generally, Steele, 283 Mich
App at 489.

        In addressing the question framed by the Supreme Court—“whether the Livingston
Circuit Court erred in concluding that the district court’s exclusion of the defense expert
testimony was not harmless beyond a reasonable doubt”—we conclude that the circuit court
missed key aspects of the harmless error analysis and we therefore remand this case to the circuit
court for further proceedings in accordance with this opinion.

          Remanded for further proceedings. We do not retain jurisdiction.

                                                              /s/ Patrick M. Meter
                                                              /s/ William C. Whitbeck
                                                              /s/ Michael J. Riordan




2
 The prosecution argues on appeal that some of the proposed testimony would not have been
admissible even aside from anything related to the discovery order.
3
    See footnote 2, supra.
4
  The circuit court simply made a blanket conclusion that defendant had been deprived of his
constitutional right to present a defense because “the lower court lacked authority to order
discovery . . . [and] erroneously precluded the defendant from presenting any testimony on his
behalf . . . .”


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