                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 10, 2015
               Plaintiff-Appellee,

v                                                                    No. 322969
                                                                     Ionia Circuit Court
DONALD GLENN LASLEY,                                                 LC No. 2013-015854-FC

               Defendant-Appellant.


Before: OWENS, P.J., and MURPHY and HOEKSTRA, JJ.

PER CURIAM.

       Defendant Donald Glenn Lasley was convicted by a jury of first-degree premeditated
murder, MCL 750.316(1)(a), and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. He was sentenced to life imprisonment without the possibility
of parole with respect to the murder conviction and to two years’ imprisonment for the felony-
firearm conviction. Defendant appeals as of right. We affirm.

         Defendant first argues that he was denied his right to present a defense when the trial
court precluded him from introducing expert testimony on “battered person syndrome”1 and
witnesses who could support a finding that defendant was previously abused by the victim. The
trial court denied admission of the evidence on the determination that a pretrial notice of self-
defense had not been filed by defendant, effectively rendering the evidence irrelevant. We
initially note that there is no statutory or court-rule requirement that a defendant file a pretrial
notice regarding a claim of self-defense. See MCL 780.971 et seq. (Self-Defense Act); MCR
6.001 et seq. But the trial court’s ruling also reflected an accurate recognition that battered
person syndrome is generally connected to a self-defense theory.



1
 Earlier cases from this Court and our Supreme Court discussed what has been termed “battered
wife syndrome,” “battered woman syndrome,” or “battered spouse syndrome.” See, e.g., People
v Christel, 449 Mich 578, 580; 537 NW2d 194 (1995); People v Wilson, 194 Mich App 599,
600-603; 487 NW2d 822 (1992). We shall use the more generic term “battered person
syndrome” throughout this opinion, given that the adult victim and alleged perpetrator of the
abuse was defendant’s daughter.


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        We review the trial court’s decision to admit or exclude evidence for an abuse of
discretion. People v Dobek, 274 Mich App 58, 93; 732 NW2d 546 (2007). An abuse of
discretion occurs when the trial court’s decision “falls outside the range of reasonable and
principled outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). Any
preliminary questions of law, e.g., whether a rule of evidence or statute precludes the
admissibility of evidence, are reviewed de novo, bearing in mind that a court abuses its
discretion when it admits evidence that is inadmissible as a matter of law. People v Lukity, 460
Mich 484, 488; 596 NW2d 607 (1999).

        A criminal defendant has a right to present a defense under the state and federal
constitutions. People v Kurr, 253 Mich App 317, 326; 654 NW2d 651 (2002). “Although the
right to present a defense is a fundamental element of due process, it is not an absolute right[,]
[and] [t]he accused must still comply with established rules of procedure and evidence designed
to assure both fairness and reliability in the ascertainment of guilt and innocence.” People v
Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984) (citation and quotation marks omitted). The
admissibility of expert testimony is governed by MRE 702, which 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 court considering whether to admit expert testimony under MRE 702 acts as a
gatekeeper and has a fundamental duty to ensure that the proffered expert testimony is both
relevant and reliable.” People v Kowalski, 492 Mich 106, 120; 821 NW2d 14 (2012). In
Kowalski, our Supreme Court stated:

                In People v Christel,[449 Mich 578, 592; 537 NW2d 194 (1995),] we
       observed that expert testimony is needed when a witness's actions or responses
       are incomprehensible to average people. Thus, we permitted a prosecution expert
       to testify about battered woman syndrome and how a victim of domestic violence
       might deny, repress, or minimize the abuse. We held that this type of testimony
       was relevant and helpful when needed to explain a complainant's actions.

               The common theme in these cases is that certain groups of people are
       known to exhibit types of behavior that are contrary to common sense and are not
       within the average person's understanding of human behavior. In these instances,
       an expert's specialized testimony may enlighten the jury so that it can intelligently
       evaluate an experience that is otherwise foreign. [Kowalski, 492 Mich at 124
       (citations, quotation marks, alteration brackets, and ellipses omitted).]

       As part of the battered person syndrome, the abused person lives in constant fear, coupled
with a perceived inability to escape a continuing cycle of abuse, eventually resulting in a belief


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that the only options are to endure the abuse, to strike back, or to commit suicide. People v
Wilson, 194 Mich App 599, 603; 487 NW2d 822 (1992).

        “In most cases, the battered woman syndrome is offered by the defendant in a case of
homicide in which the defendant is claiming self-defense.” Christel, 449 Mich at 589. In the
context of self-defense, testimony regarding the syndrome has been used to show how a battered
person reacts to the batterer, to explain the reasonableness of the battered person’s perception
that danger or great bodily harm is imminent, and to rebut a prosecutor’s assertion that the
defendant could have left rather than kill the batterer. Wilson, 194 Mich App at 604. Defendant
correctly asserts that expert testimony on battered person syndrome is not limited to self-defense
claims. As touched on above, in Christel, 449 Mich at 589, our Supreme Court acknowledged
the “minority of situations in which the evidence is offered to help evaluate the credibility of the
complainant instead of exculpating the accused.” Under those circumstances, expert testimony
“is relevant and helpful . . . to explain a complainant’s actions, such as prolonged endurance of
physical abuse accompanied by attempts at hiding or minimizing the abuse, delays in reporting
the abuse, or recanting allegations of abuse.” Id. at 580.

         Here, we conclude that the proposed expert testimony on battered person syndrome was
not related to a claim of self-defense, nor relevant to evaluating credibility. Defendant never
raised a claim of self-defense, arguing instead, as reflected in closing argument, that “[t]his was
an accidental shooting,” and that “[h]e never intended to kill his daughter.” Defendant himself
testified that, while the victim had made a move for the shotgun that defendant had retrieved and
threatened to shoot defendant if she got hold of the gun, the discharge that killed his daughter
was ultimately accidental, occurring when he jerked the gun back. Also, defendant’s statements
to the 911 operator and his confession to the lead detective indicated that he shot his daughter
after she had verbally abused him, absent any threatening actions by the victim, which shooting
was the culmination of seven years of intolerable behavior by defendant’s daughter, with
defendant reaching his breaking point. His confession did not evidence in any manner self-
defense. A defendant claiming self-defense “implies his actions were intentional but that the
circumstances justified his actions.” Wilson, 194 Mich at 602. Thus, expert testimony on
battered person syndrome was unnecessary relative to a self-defense claim, as there was no
assertion or evidence that the shooting was committed in self-defense. Moreover, expert
testimony on battered person syndrome was not sought to be introduced to assist the jury in
assessing the credibility of the victim or defendant.

        To the extent that defendant now argues on appeal that expert testimony on battered
person syndrome was relevant to defendant’s credibility, we fail to see any significant
connection between the syndrome and defendant’s accident theory such that his credibility would
have been meaningfully bolstered by the testimony. Indeed, expert testimony on battered person
syndrome, along with the supporting evidence of abuse, would likely have bolstered the
prosecution’s case, considering that such testimony and evidence would have been consistent
with defendant’s confession to police. Defendant also argues that had the trial court not
excluded the expert testimony and purported evidence of abuse prior to trial, defendant could
have pursued self-defense at trial as an alternative defense theory. However, at the pretrial
hearing that covered the issues concerning battered person syndrome and whether to instruct on
voluntary manslaughter, defense counsel stated that self-defense was not being pursued and that
battered person syndrome was going to serve as a basis to negate the intent to kill, as we discuss
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below. Further, we fail to see how defendant could have possibly testified to both accident and
an intentional shooting done in self-defense.

         Defendant argues that expert testimony on battered person syndrome was crucial to the
defense theory that defendant did not possess the requisite state of mind to commit murder, and
that, at most, defendant committed voluntary manslaughter. Thus, defendant offers that the
proposed testimony was relevant to help negate his intent. However, defendant offers no legal
authority supporting the proposition that evidence on battered person syndrome is relevant in this
regard. As discussed in Wilson, 194 Mich App at 603, battered person syndrome speaks to
situations in which an individual comes to believe that his or her only options are to endure the
abuse, strike back, or commit suicide. Defendant fails to explain in any meaningful and
convincing manner how battered person syndrome would prevent a person from forming the
intent to kill or from acting with premeditation or deliberation.2 Rather, testimony on battered
person syndrome is admitted for the purpose of demonstrating that the battered person was
justified in killing his or her batterer, given the perception that danger or great bodily harm was
imminent. Id. at 602. Furthermore, defendant’s accident theory already provided a basis for
defendant to argue that he lacked the intent to kill his daughter.

        Defendant’s argument also suggests that battered person syndrome, along with the
proffered evidence of abuse, were relevant to the offense of voluntary manslaughter. “[T]o
show voluntary manslaughter, one must show that the defendant killed in the heat of passion, the
passion was caused by adequate provocation, and there was not a lapse of time during which a
reasonable person could control his passions.” People v Mendoza, 468 Mich 527, 535-536; 664
NW2d 685 (2003). Insulting words, as opposed to words of an informative nature, generally do
not constitute adequate provocation. People v Pouncey, 437 Mich 382, 391; 471 NW2d 346
(1991).3 We find it unnecessary to ascertain whether battered person syndrome and the alleged
supporting evidence may have been relevant to the crime of voluntary manslaughter and the
question whether defendant acted in the heat of passion as caused by adequate provocation. We
also find it unnecessary to determine whether the evidence in general supported a voluntary
manslaughter instruction. Defendant waived the issue when his counsel stated at trial that, in
light of the evidence, a voluntary manslaughter instruction would not be appropriate and that he
was satisfied with instructions solely on first- and second-degree murder. See People v Carter,
462 Mich 206, 215; 612 NW2d 144 (2000) (waiver is the intentional relinquishment or


2
  Defendant’s argument poses a comparison to the defunct defense of diminished capacity. Since
1975, the insanity defense has been governed by statute. People v Carpenter, 464 Mich 223,
230; 627 NW2d 276 (2001), citing 1975 PA 180. In Carpenter, the Supreme Court held that the
Legislature created “an all or nothing insanity defense” and that “evidence of mental incapacity
short of insanity cannot be used to avoid or reduce criminal responsibility by negating specific
intent.” Id. at 237 (emphasis added). Carpenter explicitly rejected the continuing viability of a
“diminished capacity” defense. Id. at 235-236.
3
 According to defendant’s statement to the police, the shooting was triggered by insulting words
communicated by the victim to defendant, although couched in a history of abuse.


                                                -4-
abandonment of a known right). A defendant is not allowed to waive objection to an issue at
trial and then claim error on appeal. People v Fetterley, 229 Mich App 511, 520; 583 NW2d 199
(1998). Defendant has not raised any associated claim of ineffective assistance of counsel.
Further, defendant cannot establish the necessary prejudice in order to avoid the harmless error
rule, given that the jury convicted him of first-degree murder and rejected a second-degree
murder conviction. See People v Raper, 222 Mich App 475, 483-484; 563 NW2d 709 (1997).4

        Defendant contends, however, as he did in the context of self-defense, that had the trial
court, prior to trial, not excluded expert testimony on battered person syndrome and the
testimony of witnesses who were supposedly prepared to testify to abuse, there would have been
sufficient evidence to support a voluntary manslaughter instruction and the jury may have
seriously considered a lesser charge.5 First, when defendant argued before trial in favor of
admitting the evidence at issue, he focused exclusively on the now-rejected argument that it
negated the element of intent; defendant did not argue that the evidence should be admitted to
advance a voluntary manslaughter theory. Additionally, assuming the relevancy of the evidence,
as bearing on whether defendant acted in the heat of passion upon adequate provocation, it is
difficult if not impossible to reconcile an intentional killing predicated on manslaughter with
defendant’s testimony that the shooting was an accident. Although the evidence would have
been consistent with defendant’s description of what occurred as conveyed to the police in his
confession, we conclude that reversal is unwarranted, because defendant has not established
prejudice, where he has not argued, let alone shown, that the evidence was sufficient to
overcome the general rule that insulting words do not constitute adequate provocation. In sum,
reversal is unwarranted with respect to defendant’s arguments regarding battered person
syndrome, the associated evidence of abuse, and voluntary manslaughter.




4
    In Raper, 222 Mich App at 483-484, this Court explained:
                 In this case, defendant was charged with first-degree murder. The jury was
         instructed on first-degree murder and second-degree murder, and found defendant
         guilty of first-degree murder. The jury's rejection of second-degree murder in
         favor of first-degree murder reflected an unwillingness to convict on a lesser
         included offense such as manslaughter. Thus, even if defendant's trial counsel had
         requested a manslaughter instruction and the trial court had failed to give such an
         instruction, such error would have been harmless. For the same reason, defendant
         cannot show that his counsel's failure to request a manslaughter instruction caused
         him prejudice. [Citation omitted.]


5
  Implicit in defendant’s argument is that nothing can be made of the fact that the jury failed to
convict him of second-degree murder, given that the jury did not have the benefit of hearing
testimony on battered person syndrome and, perhaps more importantly, hearing extensive
testimony of the abuse itself.


                                                 -5-
        Next, defendant argues that his Fifth Amendment rights were violated when the
interrogating detective did not “scrupulously honor” his purported invocation of the right to
silence. As a result, defendant argues that the trial court erred by admitting a recorded interview
containing his statements that were made after he asserted his right to remain silent. Defendant,
however, waived this claim by stipulating on the record to the admission of the entire recorded
interview into evidence. Carter, 462 Mich at 215-216. Defendant bootstraps a claim of
ineffective assistance of counsel.        Even assuming—without deciding—that defendant
unequivocally asserted his right to remain silent and that it was not “scrupulously honored” by
the detective, see People v Henry (After Remand), 305 Mich App 127, 145; 854 NW2d 114
(2014), he cannot establish the requisite prejudice, assuming counsel’s performance was
deficient, People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001). Before defendant
presumably asserted his right to remain silent in the recorded interview, he provided a very
lengthy and detailed description of the victim’s killing, including the fact that he retrieved a
shotgun from his bedroom, removed the lock, loaded the gun, and shot the victim. The latter part
of the interview was no more inculpatory than these admissions. Given that this evidence was
properly before the jury, defendant cannot establish that admission of the full interview
prejudiced him.

       Affirmed.



                                                            /s/ Donald S. Owens
                                                            /s/ William B. Murphy
                                                            /s/ Joel P. Hoekstra




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