Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  June 8, 2018                                                                       Stephen J. Markman,
                                                                                               Chief Justice

  156552                                                                                  Brian K. Zahra
                                                                                  Bridget M. McCormack
                                                                                        David F. Viviano
                                                                                    Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                       Kurtis T. Wilder
            Plaintiff-Appellee,                                                    Elizabeth T. Clement,
                                                                                                    Justices
  v                                                       SC: 156552
                                                          COA: 319980
                                                          Jackson CC: 12-004848-FC
  MICHAEL PATRICK-MURPHY HAMILTON,
             Defendant-Appellant.
  _________________________________________/

        On order of the Court, the application for leave to appeal the August 1, 2017
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

         MCCORMACK, J. (dissenting).

         I respectfully dissent from the order denying leave to appeal. The defendant’s trial
  included extensive speculative and prejudicial testimony from an “expert” prosecution
  witness. Admission of that testimony radically changed that trial in a way that may have
  rendered it fundamentally unfair. I would grant leave to appeal to consider whether the
  error in admitting that testimony prejudiced the defendant. While I am not typically
  predisposed to second-guess the Court of Appeals’ harmless-error analysis, see People v
  Lyles, 501 Mich 107, 159 (2017) (MCCORMACK, J., dissenting), I find this case to be one
  in which the trial court’s decision may have denied the defendant a fair trial.

         The prosecution charged the defendant with first-degree premeditated murder,
  assault with intent to commit murder, two counts of unlawfully driving away an
  automobile, and two counts of possessing a firearm during the commission of a felony.
  The defendant presented an insanity defense triggered by the defendant’s prescription
  medicine, Adderall. The prosecutor’s theory of the case evolved throughout the trial, and
  as the case neared its end, one primary theory was that the defendant had an opiate
  addiction and needed money to sustain his habit. Thus, the theory was that the defendant
  had shot the victim in order to rob him to obtain money for drugs. To support this theory,
  the prosecution called a certified addiction counselor, Rosemary Heise.

          The trial court ruled that Heise satisfied the requirements for an expert witness in
  MRE 702 and that her testimony would be allowed as an expert in the area of substance
  abuse and addiction. Heise, who had never met the defendant or interviewed his family
  or friends and had no information about the defendant’s alleged crimes, proceeded to tell
  the jury quite a lot about the defendant. For example, she opined that she “diagnosed”
  the defendant as an “active addict” because he had a documented episode of Vicodin
                                                                                                             2

abuse, that “active addicts” steal and are violent, and that the defendant would seek out
drugs to pacify his addiction “at all costs.” She further opined that the defendant was
probably still using Vicodin at the time of the offenses (despite the absence of any
evidence to support such a claim) and that it was “highly unlikely” the defendant could
stop using Vicodin without going through a treatment program. And she stated in her
report on the defendant, again without any evidence to support her speculation, “I wonder
if Mr. Hamilton wasn’t snorting” his Adderall. This report was admitted at trial.

       The jury convicted the defendant as charged. On appeal, a divided Court of
Appeals panel affirmed his convictions. The majority declined to address whether the
trial court had erred by admitting Heise’s testimony, concluding error if any was
harmless. Dissenting Judge SHAPIRO disagreed, concluding both that the admission of
Heise’s testimony was error and that the error prejudiced the defendant. We vacated the
portion of the Court of Appeals opinion addressing Heise’s testimony and remanded for
reconsideration.

      On remand, the same majority concluded that the trial court had erred by admitting
Heise’s testimony, but that the error was harmless. Judge SHAPIRO again dissented.

       I believe this Court should grant leave to appeal to give close consideration to
whether the Court of Appeals erred by finding Heise’s testimony to be harmless.
Significantly, the prosecutor used her testimony to argue to the jury that the defendant
“was nothing but a run of the mill drug addict, out of money, out of drugs, looking for his
next fix” when he murdered the victim. 1 Heise’s testimony alone supported that
argument, meaning that the prosecutor’s theory of the case presented to the jury in
closing argument had no foundation whatsoever. As Judge SHAPIRO noted, the
defendant’s lack of motive was a key element of his insanity defense, and the erroneous
admission of Heise’s testimony provided the only basis for the prosecution to rebut that
element. I think this question deserves this Court’s attention. I therefore respectfully
dissent from the majority’s decision to deny leave to appeal.

       BERNSTEIN, J., joins the statement of MCCORMACK, J.



1
  The prosecutor painted that picture repeatedly throughout her closing argument,
repeatedly restating the “out of money, out of drugs” points and arguing that the
defendant “must have thought he hit the jackpot” in encountering the victim (citing the
victim’s expensive jewelry and the BMW he was driving as the reason).


                                I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                          foregoing is a true and complete copy of the order entered at the direction of the Court.
                                June 8, 2018
                                                                                    Clerk
      t0605
