                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 1, 2017
               Plaintiff-Appellee,

v                                                                    No. 319980
                                                                     Jackson Circuit Court
MICHAEL PATRICK-MURPHY HAMILTON,                                     LC No. 12-004848-FC

               Defendant-Appellant.


                                          ON REMAND

Before: SAWYER, P.J., and M. J. KELLY and SHAPIRO, JJ.

SHAPIRO, J. (dissenting).

       I respectfully dissent and would reverse and remand for a new trial.

        My colleagues initially declined to reach the question of whether it was error for the trial
court to admit expert testimony from Rosemary Heise reasoning that even if it was error, it was
harmless because her testimony was cumulative. People v Hamilton, unpublished opinion per
curiam of the Court of Appeals issued February 9, 2016 (Docket No. 319980), slip op at 6-7.
The Supreme Court vacated the relevant portion of that opinion and remanded with several
directions. People v Hamilton, 500 Mich 938; 889 NW2d 508 (2017). First, we were to
reconsider defendant’s claim that Heise’s testimony should not have been admitted. Id. Second,
we were directed to reconsider the issue of harmless error with an examination of the entire case
rather than relying solely on the conclusion that the testimony was cumulative. Id.

        On remand, my colleagues now agree that it was error to admit Heise’s testimony. They
ground their conclusion on the factors I reviewed in my dissent. See People v Hamilton,
unpublished dissenting opinion of SHAPIRO, J., issued February 9, 2016, slip op at 9-13. They
agree that Heise’s testimony, including her “diagnosis” of defendant as an “active addict,” her
speculation that his prescription medication records were not reliable, and her assumption that
defendant had taken Adderall and was experiencing Vicodin withdrawals at the time of the
shooting despite the fact that he demonstrated no withdrawal symptoms at any time following his
arrest, which occurred only minutes after the shooting, was “an extremely broad and ultimately
speculative set of opinions.” Heise’s improper testimony also included her opinion that
defendant’s “prognosis” for recovery from “addiction” was “poor,” and that addicts, as a class,
steal and commit violent crimes. My colleagues also now recognize the particular impropriety of



                                                -1-
such testimony by an “expert” who carried the imprimatur of the court in that she worked for the
county’s drug court and addressed her report to the trial court rather than the prosecutor. While
they did not adopt the language of my dissent, I respectfully suggest that in essence they adopted
the view I expressed in that opinion.

         Despite its recognition of this “expert” opinion testimony was improper and its
characterization of its prejudicial effect as “substantial,” the majority nevertheless concludes that
its admission was harmless error and that a new trial is not necessary. I disagree. The majority’s
stated reasons for its conclusion are that: 1) Heise’s testimony that defendant killed the victim in
order to get money to buy drugs was cumulative to that of other experts and evidence, 2)
defendant effectively cross-examined Heise and conducted a sur-rebuttal, 3) the prosecutor did
not emphasize Heise’s testimony in closing argument, 4) the trial court read the standard jury
instructions, and 5) there was untainted evidence that suggested defendant was not legally insane
at the time of the shooting. I disagree with these characterizations for the reasons set forth
below.

                                     A. CUMULATIVENESS

       In support of its view that the evidence was cumulative, the majority refers to properly
admitted evidence that defendant may have been abusing Adderall. On three occasions out of
many months, defendant did obtain early refills, but these were with physician knowledge and
consent. No lay witness testified that they observed defendant abusing that drug, and neither
defendant’s physicians nor the prosecution’s examining psychiatrist reached such a conclusion.
While the evidence could support speculation that defendant was abusing the drug, it was only
through the testimony of Heise that this speculation was converted into the confident
determination of a court employed expert. Heise testified:

   -   that defendant’s use of marijuana as a teenager had affected his brain, with resulting long
       term cognitive and emotional consequences (despite the fact that she never met or
       interviewed defendant and failed to review most of his medical records),

   -   that the State of Michigan Automated Prescription record, which defendant relied on to
       show what drugs he had been prescribed and when he had filled and refilled those
       prescriptions, was often incomplete and inaccurate,

   -   that if someone is addicted to one drug but no longer using they are still an “active
       addict” if they are taking any drugs even if in compliance with physician orders,

   -   that she “diagnosed” defendant as an “active addict,”

   -   that “active addicts” are violent and steal,

   -   that defendant would have sought out drugs to feed his alleged addiction “at all costs,”




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    -   that defendant’s drug use was tantamount to “speed-balling” heroin and amphetamines,1

    -   that defendant having fans on at the cottage on an 81 degree day meant that he was
        experiencing high blood pressure and excessive body heat due to taking too much
        Adderall,2

    -   that her views were routinely relied upon by the judges of Jackson county circuit court -
        the same court in which this trial occurred.

        None of these factual claims or opinions were established or even alluded to by other
evidence in the record. Without Heise’s testimony, the prosecution’s theory that defendant was
an active drug addict who shot Marcyan out of a desperate need for his next fix was based on
nothing other than sheer speculation. Therefore, I cannot agree that Heise’s testimony was
cumulative.

                     B. CROSS-EXAMINATION AND SUR-REBUTTAL

       I agree with the majority that defense counsel’s cross-examination was reasonably well
done, but it could not possibly have put the genie back in the bottle. Defense counsel obtained
admissions from Heise that she had not reviewed many of the relevant documents, that she only
reviewed limited portions of testimony, and that she was not a physician or psychiatrist.
However, the rest of the cross-examination was largely composed of defense counsel’s
references to contrary evidence and asking if Heise was aware of it. Often Heise conceded that
she had not reviewed evidence, but she made clear to the jury that in her role at the Jackson
County Drug Court she offered recommendations based on limited evidence, and at no point
were her claims or opinions withdrawn or even modified.

        Defendant was permitted to present sur-rebuttal, and both Dr. Wendt, the defense
forensic psychiatrist, and Dr. Gibbons, an expert in addiction psychiatry, expressed their
criticism of Heise’s testimony. However, I fail to see how this rendered harmless Heise’s far-
reaching testimony since despite their criticisms the jury was free to accept Heise’s speculation
as true and as the valid opinion of an expert. Indeed, she was presented as the only expert the
judges of Jackson County routinely rely upon.

                      C. THE PROSECUTOR’S CLOSING ARGUMENT

       I believe the majority is in error in its suggestion that the prosecutor did not emphasize
Heise’s testimony in closing argument. To the contrary, while not always attributed directly to
Heise, the prosecution built its entire theory of the case on her testimony. As I noted in my
previous dissent:


1
 She also stated in her report, which was admitted as an exhibit, “I wonder if [defendant] wasn’t
snorting.”
2
 This was of course, contrary to all the medical testimony and records, which reveal neither high
blood pressure nor excessive body heat before or after his arrest.



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       The only issue at trial was whether or not defendant was legally insane at
the time he shot Marcyan. The lack of any apparent motive for defendant to have
shot Marcyan presented a challenge for the prosecution. Indeed, in opening
statement, one prosecutor addressed this issue squarely, telling the jury: “This
case does not make sense in the usual sense . . . [sic] It doesn’t involve money,
drugs, women, jealousy, absolutely nothing.” He went on to stress to the jury that
motive is not an element of the offense. While the defense did not dispute this
truism, it pointed out that the complete absence of motive for such a crime
strongly supported the insanity defense.

        In the opening statement, the prosecutor also explained to the jury the
distinction between voluntary and involuntary intoxication. He explained that
even if the jury believed that defendant was rendered mentally impaired or
delusional by the Adderall this was legally insufficient to prove mental illness if it
had been the result of a voluntary decision to take more Adderall than was
prescribed. . . . [However], the psychiatrist who prescribed the medication, the
defense forensic psychologist and the prosecution forensic psychologist each of
whom reviewed the medical records and examined defendant opined that
defendant was taking the drug as prescribed and not abusing it.

        According to the prosecutor’s testimony at the Ginther hearing, after
opening statements had been given and proofs were underway, the second
prosecutor developed an alternative theory of the case. She concluded that
defendant was an active opiate addict, needed to obtain an opiate “fix” at the time
of the shooting, and that he shot Marcyan in order to rob him so that he could
purchase that “fix.” (footnote omitted). This theory addressed the two areas of
weakness in the prosecution’s case. First, it answered the question of motive. It
defined a rational motive for defendant to have shot Marcyan. Second, even if the
jury believed the prescribed Adderall had affected defendant’s mental state, it
showed that a second drug, one which was not prescribed, was involved thereby
negating any claim of involuntary intoxication.

         In closing argument, the prosecution presented its new theory, telling the
jury that defendant was “nothing but a run of the mill drug addict, out of money,
out of drugs, looking for his next fix” when “along comes opportunity.
Opportunity knocking at his door, driving a BMW, wearing over $30,000 worth
of jewelry . . . A Rolex gold ring with a diamond in it so big its flashing in the sun
. . . [Defendant] must have thought he’d hit the jackpot.” The prosecutor argued,
“Once an addict, always an addict.” The only testimony to support this claim was
Heise’s. Only Heise’s testimony allowed the prosecutor to tell the jury, “Turns
out [defendant is] nothing but a run of the mill addict, out of money, out of drugs,
looking for his next fix.” [People v Hamilton, unpublished dissenting opinion of
SHAPIRO, J., issued February 9, 2016 (Docket No. 319980), slip op at 4-5.]




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                          D. THE TRIAL COURT’S INSTRUCTIONS

         I strongly disagree with the majority’s suggestion that because the trial court gave the
standard instructions on expert testimony, the prejudicial effect created by Heise’s testimony was
negated. The majority offers no reasons for this conclusion, and I cannot imagine one. A
standard instruction is not effective to wipe away the effects of the testimony of someone who
testified as an expert when in fact she was not. Nor did it address the impression that Heise was
a particularly reliable expert given her role in the Jackson Circuit Court. As to these problems,
the standard instruction was of little or no use. It could not have alleviated the prejudicial effect
of Heise’s testimony.

                               E. THE UNTAINTED EVIDENCE

         While I do not disagree with the majority’s conclusion that there was untainted evidence
that suggested defendant was not legally insane at the time of the shooting, I strongly disagree
with the conclusion that the mere presence of such untainted evidence rendered Heise’s improper
testimony harmless. Admission of Heise’s improper “expert” testimony radically changed this
trial. Whether a preserved, nonconstitutional error is harmless depends upon the nature of the
error and its effect on the reliability of the verdict in light of the weight of the untainted
evidence. People v Whittaker, 465 Mich 422, 427; 635 NW2d 687 (2001); People v Mateo, 453
Mich 203, 215; 551 NW2d 891 (1996); People v Albers, 258 Mich App 578, 590; 672 NW2d
336 (2003), lv den 469 Mich 1026 (2004). Error justifies reversal if it is more probable than not
that it affected the outcome. People v Young, 472 Mich 130, 141-142; 693 NW2d 801 (2005);
People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). An error determined the
outcome if it undermined the reliability of the verdict. People v Feezel, 486 Mich 184, 192; 783
NW2d 67 (2010). In this case it is clear that the improper testimony “undermined the reliability
of the verdict.”

        This is not the sort of case where the erroneously admitted evidence was minor in
comparison to the strength of the prosecution’s remaining case. Without Heise’s testimony, the
prosecution had no evidence to support its theory regarding defendant’s motive. And while it is
true that motive is not an element of the charged offenses and that there was legally sufficient
evidence from which the jury could have convicted defendant absent Heise’s testimony
regarding defendant’s motive, the prosecution obviously considered the absence of any apparent
motive to be crucial enough hole in its case that it changed strategy mid-trial. Therefore, by
concluding that a jury undoubtedly would still have convicted defendant without any evidence as
to motive, the majority essentially substitutes its own view of the remaining evidence for that of
the jury’s.

                                          CONCLUSION

        As my colleagues now concede, it was error to allow Heise to testify, particularly as an
expert. Her testimony was filled with speculation, unsupported assertions, and an implicit claim
to the court’s belief in her knowledge and veracity. Moreover, her testimony was the only
evidence from which the prosecution could establish its theory as to motive, and the apparent
lack of motive was a key element of defendant’s insanity defense. The erroneous admission of




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her testimony was not harmless.   Accordingly, I would vacate defendant’s conviction and
remand for a new trial.



                                                      /s/ Douglas B. Shapiro




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