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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KRIS MICHAEL ALDRICH, Defendant-Appellant.

FOR PUBLICATION May 18, 2001 9:05 a.m. No. 216402 Saginaw Circuit Court LC No. 98-015911-FC

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KYALL WILLIAM ALDRICH, Defendant-Appellant. No. 216403 Saginaw Circuit Court LC No. 98-015912-FC Updated Copy July 20, 2001

Before: M.J. Kelly, P.J., and Whitbeck and Collins, JJ. M.J. KELLY, P.J. Defendants Kris M. Aldrich and Kyall W. Aldrich were originally charged with seconddegree murder, MCL 750.317, and, alternatively, with involuntary manslaughter or manslaughter committed with a motor vehicle, MCL 750.321. Following a jury trial, both defendants were convicted of involuntary manslaughter. Kris Aldrich was sentenced as an habitual offender, fourth offense,1 to fifteen to thirty years' imprisonment. Kyall Aldrich was sentenced as an

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MCL 769.12.

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habitual offender, third offense,2 to fifteen to thirty years' imprisonment. Defendants now appeal as of right. Their appeals have been consolidated for review. We affirm. I. Facts Defendants' involuntary manslaughter convictions stem from a two-car collision that occurred during a drag race between defendants, who are brothers,3 on the evening of May 6, 1998. The victim was a fifteen-year-old girl, Jennifer Fear, who was a passenger in Kris Aldrich's vehicle at the time of the collision. The prosecutor's theory of the case was that defendants picked up Jennifer, bought and consumed some whiskey, then went drag racing at speeds up to one hundred miles an hour, when defendant Kris Aldrich, with Jennifer in his vehicle, ran a stop sign and collided with another vehicle, causing Jennifer's death. Counsel for defendant Kris Aldrich conceded that defendants were drinking and engaging in "horseplay," including exceeding the speed limit, but argued that any reckless driving had ended at the time of the accident and that the accident was the result of brake failure. Defendant Kyall Aldrich also claimed that any reckless driving had ceased before the accident. At trial, many witnesses testified that they observed defendants drag racing down a twolane stretch of Roosevelt Road on May 6, 1998, at approximately 8:30 p.m. Defendants' vehicles4 were racing side by side along Roosevelt Road, thereby occupying the whole roadway including the lane reserved for oncoming traffic. Kris Aldrich's vehicle was occupying the lane reserved for oncoming traffic. Witnesses indicated that the vehicles were traveling "extremely" fast, at speeds approaching ninety miles an hour. Kris Aldrich's vehicle was observed ducking in and out of the oncoming traffic lane to avoid colliding with vehicles traveling in the opposite direction. The vehicles approached the intersection of Roosevelt and Hemlock.5 There is a stop sign at this intersection for vehicles traveling on Roosevelt Road; Hemlock has the right of way. Witnesses testified that the drag race was ongoing as the vehicles approached the intersection. Melissa Musick and her mother, Sherry Musick, were traveling along Hemlock Road approaching the intersection at Roosevelt Road. As they passed through the intersection, Kris Aldrich's Beretta failed to stop at the stop sign and collided with the Musicks' vehicle. The Musicks' vehicle spun out of control "and ended up upside down in the ditch, on fire."6 Kris

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MCL 769.11.

Kyall was twenty-one years old at the time of the incident in question. Kris, was twenty years old.
4 5 6

Kris Aldrich was driving a blue Beretta and Kyall Aldrich was driving a red pickup truck. This section of Roosevelt is gravel; Hemlock is paved. Fortunately, onlookers were able to pull the Musicks from the burning vehicle. The Musicks
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Aldrich's vehicle ended up in the field alongside the roadway. Jennifer Fear, the passenger in Kris Aldrich's vehicle, was killed in the accident and her body was found lying outside the Beretta. Although Kyall Aldrich denied drag racing and told police that he had been driving 1 1/2 miles behind his brother at the time of the accident, witnesses testified that defendants' vehicles were still engaged in the drag race just before the accident. In fact, witness Nicholas Scoles observed defendants' vehicles racing seconds before the accident occurred, just as the vehicles approached the intersection of Hemlock and Roosevelt Roads. Melissa Musick, the driver of the vehicle that collided with Kris Aldrich's vehicle, confirmed that in the seconds before the accident, defendants' vehicles were speeding along the roadway, side by side, although she admitted that Kyall Aldrich's vehicle did not stop at the stop sign. Kris Aldrich told police at the scene that Jennifer had been driving his vehicle at the time of the accident and that he was sitting in the back seat. He also told police that he could not remember if he had been drag racing. Neither defendant could remember where they were going when the accident occurred. At trial, Kris Aldrich admitted that beginning around 7:00 p.m. on the night of the incident in question, he, Kyall, and Jennifer had been drinking whiskey mixed with Pepsi. At around 8:30 p.m., the three decided to go to Kyall's house. Kris and Jennifer took the Beretta, with Kris driving, and Kyall drove the red pickup truck. According to Kris, he was driving on Roosevelt at approximately fifty-five or sixty miles an hour. Kris testified that he attempted to pass Kyall's red pickup truck, but pulled back in behind Kyall when another vehicle appeared. Subsequently, Kyall slowed down to approximately twenty miles an hour and signaled for Kris to pull alongside him, and that the two conversed about stopping at a convenience store. Kris stated that he then "took off first and got in front of Kyall's car." Kris testified that as he approached the intersection, at approximately fifty miles an hour, he started to slow down for a stop sign, but that "the brake pedal went right to the floor and wasn't stopping no more." He then entered the intersection and collided with the vehicle being driven by Melissa Musick.7 After hearing the above evidence, the jury convicted both defendants of involuntary manslaughter. Defendants received fifteen- to thirty-year sentences. They appeal as of right.

(...continued)

were then transported to the hospital for treatment. The prosecutor presented the rebuttal testimony of Gary Dudicz, an expert in the area of automobile mechanics (including brake systems), who testified that he had examined the Beretta and that the brakes should have been functioning properly at the time of the accident. Dudicz also testified that the vehicle had an adequate supply of brake fluid, that his inspection turned up no leaks, and that the brake pads were fairly new and in good condition.
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II. Prosecutorial Misconduct A. Preservation of the Issue and Standard of Review This Court reviews claims of prosecutorial misconduct case by case, examining the remarks in context, to determine whether the defendant received a fair and impartial trial. People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). Concerning preserved issues of prosecutorial misconduct, this Court evaluates the challenged conduct in context to determine if the defendant was denied a fair and impartial trial. People v Truong (After Remand), 218 Mich App 325, 336; 553 NW2d 692 (1996). Where a defendant fails to object to an alleged prosecutorial impropriety, the issue is reviewed for plain error. People v Carines, 460 Mich 750, 752-753, 764; 597 NW2d 130 (1999); People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000). Thus, to avoid forfeiture of the issue, defendant must demonstrate plain error that affected his substantial rights, i.e., that affected the outcome of the proceedings. Carines, supra at 763-764; Schutte, supra at 720. B. Presentation of Deputy Kevin Campbell's Testimony Defendant Kyall Aldrich argues that it was improper for the prosecutor to present the testimony of Deputy Kevin Campbell because the prosecutor should have known that Deputy Campbell would present invalid information.8 Specifically, Kyall points to Deputy Campbell's concession on cross-examination that certain ambiguities attended his speed calculations. Kyall also points to the prosecutor's presentation of Sergeant William Brandt of the Michigan State Police, whose opinions concerning speed contradicted those of Campbell. However, Kyall withdrew his objection to the presentation of Deputy Campbell's testimony because he wanted to refer to Deputy Campbell's speed calculations during closing argument.9 He has, therefore, waived this claim of error on appeal. A defendant may not waive objection to an issue before the trial court and then raise the issue as an error on appeal. People v Fetterley, 229 Mich App 511; 583 NW2d 199 (1998). C. Prosecutor's Duty to Disclose Evidence After trial had commenced in this matter, Sgt. Brandt generated a statistical report by using the Win Crash computer program. The last page of the report contained an error message, indicating that the results contained in the report were not valid. Sgt. Brandt never provided the prosecutor with a copy of the invalid report.

Defendant Kris Aldrich does not challenge the prosecution's presentation of Deputy Campbell's testimony on appeal. During closing argument, counsel for Kyall Aldrich referred to Deputy Campbell's testimony in arguing to the jury that the prosecution's case was weak.
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A prosecutor has a duty to "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the degree of the offense[.]" MRPC 3.8(d). There is no dispute in this case that any reports or test results prepared for the case by law enforcement officers were subject to discovery. However, Sgt. Brandt's attempt to generate an accurate report in this case was unsuccessful. There is no dispute that the computer printout contained invalid test results and was therefore disregarded by Sgt. Brandt. Hence, it seems the prosecutor's witness did not suppress material evidence. Instead, he disregarded invalid evidence. In any event, we cannot see how defendants were denied a fair trial by the prosecutor's failure to provide them with a report containing invalid information. D. Closing Argument Defendants challenge the prosecutor's implication during closing argument that they had sexual designs on the victim on the evening of the incident in question. Defendants did not object to the prosecutor's remarks below. A review of the prosecutor's remarks, in context, reveals that the prosecutor was merely summarizing the facts in evidence and encouraging the jury to draw reasonable inferences from those facts. This was not improper. A prosecutor need not confine argument to the "blandest of all possible terms," but has wide latitude and may argue the evidence and all reasonable inferences from it. People v Marji, 180 Mich App 525, 538; 447 NW2d 835 (1989); Bahoda, supra at 282. Because the prosecutor's remarks were not improper, defendants have failed to show plain error affecting their substantial rights. Carines, supra at 763-764. III. Evidentiary Issues A. Preservation of the Issue and Standard of Review To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal. MRE 103(a)(1); People v Grant, 445 Mich 535, 545, 553; 520 NW2d 123 (1994); People v Griffin, 235 Mich App 27, 44; 597 NW2d 176 (1999). On the basis of the objections made by defendants at trial, it appears, unless indicated later in this opinion, that the evidentiary issues raised by defendants are preserved for appellate review. The decision whether to admit evidence is within the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998), reh den 459 Mich 1203 (1998). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no excuse for the ruling made. People v Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000). A decision on a close evidentiary question ordinarily cannot be an abuse of discretion. People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888 (2000).

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B. Photograph of the Victim and Evidence of the Musicks' Rescue Defendants claim that the prosecutor's repeated reliance on the photograph of the decedent and reference to the Musicks' burning vehicle and their rescue contributed nothing to the jury's inquiry and served only to prejudice defendants. At a pretrial hearing regarding the admissibility of evidence of the Musicks' burning vehicle and evidence of heroic rescue efforts by onlookers that resulted in the Musicks being pulled from their burning vehicle, the trial court ruled that the evidence was relevant because it demonstrated the "force and violence" of the collision and could assist the jury in assessing defendants' recklessness in the incident. The court additionally ruled that the probative value of the evidence was not substantially outweighed by any possible prejudice. However, the court cautioned the prosecutor against "overusing" the evidence. Generally, all relevant evidence is admissible at trial. Starr, supra at 497. Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the action more probable or less probable than it would be without the evidence. MRE 401; People v Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998). Under this broad definition, evidence is admissible if it is helpful in throwing light on any material point. People v Kozlow, 38 Mich App 517, 524-525; 196 NW2d 792 (1972). However, even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. Sabin, supra at 57-58. We agree with the trial court that evidence regarding the condition of the Musicks' vehicle was relevant to the jury's determination of facts at issue in this case such as defendants' recklessness or carelessness and the speed of the vehicles at the time of the impact. Moreover, defendants have not convinced us that the relevancy of the evidence was substantially outweighed by any prejudicial effect or that they were prejudiced by the cumulative nature of the evidence. With regard to the evidence of the Musicks' rescue from the burning vehicle, a jury is entitled to hear the "complete story" of the matter in issue. People v Sholl, 453 Mich 730, 742; 556 NW2d 851 (1996), reh den 454 Mich 1211 (1997); People v Delgado, 404 Mich 76, 83; 273 NW2d 395 (1978). It would have been perplexing to the jury to learn that a violent two-car collision had occurred but not what became of the occupants of one of the vehicles. In any event, defendants have not demonstrated that they were prejudiced by the admission of evidence, from several sources, concerning the Musicks' rescue from their vehicle after the collision. This evidence did not bear on defendants' guilt or innocence. With regard to Kris Aldrich's unpreserved challenge to the admissibility of the photographs of the victim and Kris' damaged vehicle, we have reviewed the photographs in question and conclude that they are neither shocking nor inherently prejudicial. Nor does it appear from the record that the photographs were offered with the intention of inflaming the jury. People v Hall, 83 Mich App 632; 269 NW2d 476 (1978). The photographs were offered to aid -6-


witnesses in their description of the victim's condition at the accident scene as well as the condition of Kris' vehicle after the collision, both matters that were relevant to physical facts. Any prejudice resulting from the use of the photographs did not substantially outweigh their probative value. MRE 403. It appears that the photographs would have aided the jury in explaining and comprehending all circumstances of the incident. See People v Schmitz, 231 Mich App 521, 534; 586 NW2d 766 (1998). We find no error in the trial court's admission of the challenged photographs. IV. Admissibility of Blood Alcohol Test Results A. Preservation of the Issue and Standard of Review To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal. MRE 103(a)(1); Grant, supra at 545, 553; Griffin, supra at 44. On the basis of the objections made by defendants at trial, it appears unless indicated later in this opinion, that the evidentiary issues raised by defendants are preserved for appellate review.10 A reviewing court may not disturb a trial court's ruling at a suppression hearing unless that ruling is clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). Where a trial court's decision concerned a mixed question of fact and law, the court's findings are reviewed for clear error, while its application of the law to the facts is reviewed de novo. People v Barrera, 451 Mich 261, 269; 547 NW2d 280 (1996). Where an evidentiary decision lies within the trial court's discretion, the court's exercise of that discretion is reviewed for an abuse of discretion. Bahoda, supra at 288. B. MCL 257.625a(6)(e) Defendants raise various claims regarding the admissibility of their blood alcohol test results, including claims of statutory construction involving MCL 257.625a(6)(e). The primary rule of statutory construction is to ascertain and give effect to the intent of the Legislature. People v Borchard-Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999). To determine the Legislature's intent, we first examine the language of the statute. Id. "If the language of the statute is unambiguous, the statute should be applied as written and judicial construction is not permitted. However, if the statutory language is ambiguous, a court may go beyond the words of the statute to determine the Legislature's intent." People v Oliver, 242 Mich App 92, 96; 617 NW2d 721 (2000). To the extent that defendants claim that the results of their blood alcohol tests were inadmissible because defendants were not under arrest at the time their blood alcohol levels were

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Kris Aldrich moved to suppress the blood alcohol test results on the ground that there was a delay between the accident and the blood alcohol test. Kyall Aldrich argued below that because he was not involved in the accident in question, his blood alcohol test results were inadmissible at trial.

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tested, we reject that claim. Section 625a of the Vehicle Code, MCL 257.625a, reads in pertinent part as follows: (6) The following provisions apply with respect to chemical tests and analysis of a person's blood . . . * * * (e) If, after an accident, the driver of a vehicle involved in the accident is transported to a medical facility and a sample of the driver's blood is withdrawn at that time for medical treatment, the results of a chemical analysis of that sample are admissible in any civil or criminal proceeding to show the amount of alcohol or presence of a controlled substance or both in the person's blood at the time alleged, regardless of whether the person had been offered or had refused a chemical test. The medical facility or person performing the chemical analysis shall disclose the results of the analysis to a prosecuting attorney who requests the results for use in a criminal prosecution[.] Our Supreme Court recently ruled that "only persons who have been arrested fall within the purview of the implied consent statute." Borchard-Ruhland, supra at 285, citing MCL 257.625c and 257.625a(6)(b). However, the Court was construing the provision of the statute that sets forth the presumption of consent to testing,

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