Circuit Court LC No. 15-004596-FC
Before: O'Brien, P.J., and Hoekstra and Boonstra, JJ.
Dawn Marie Dixon-Bey, was arrested after admittedly stabbing
her boyfriend, Gregory Stack, to death in their home on
February 14, 2015. At first, she claimed that the victim must
have been stabbed during an altercation with others before
returning to their home. Later, however, defendant admitted
that she was the person who stabbed the victim but claimed
that she only did so in self-defense. She was subsequently
charged with first-degree murder, MCL 750.316, and, after an
eight-day jury trial, was found guilty of second-degree
murder, MCL 750.317. She was sentenced to 35 to 70 years in
prison and appeals as of right. On appeal, defendant argues
that she was deprived of her constitutional right to a fair
trial, that the trial court abused its discretion by
admitting evidence about defendant's attempts to prevent
the victim's daughter from having custody of her
half-sister (the biological daughter of the victim and
defendant), that she was deprived of her constitutional right
to the effective assistance of counsel, that the trial court
abused its discretion by admitting evidence about a previous
occasion in which she had stabbed the victim, and that
resentencing is required because the trial court unreasonably
departed from the advisory sentencing guidelines range. For
the reasons set forth below, we affirm defendant's
conviction but vacate her sentence and remand for
indicated above, defendant argues on appeal, in part, that
she was deprived of her constitutional right to a fair trial.
Generally, she takes issue with the trial court's
decision to qualify Detective Gary Schuette as an expert in
interpreting evidence at a homicide scene. Specifically, she
argues on appeal that she was deprived of her constitutional
right to a fair trial because the trial court erroneously
permitted Detective Schuette "to essentially tell the
jury that [defendant]'s claim of self-defense was a sham
based on his expertise." Defendant asserts that
Detective Schuette was not permitted to offer such an opinion
because he "was not qualified as an expert in behavioral
science with regard to how people engaged in self-defense are
expected to act, " because "his small sampling from
personal experience would not support a peer-based review of
experts, " because his "testimony was speculative,
" and because the testimony "foreclosed any
possibility that the jury would believe that Dawn acted in
self-defense." While we agree with defendant's
position that the admission of some of Detective
Schuette's testimony was erroneous, we do not agree that
reversal is required because defendant has not demonstrated
that the admission of the testimony was outcome
Court reviews for an abuse of discretion a trial court's
decision to admit or exclude expert witness testimony. This
Court also reviews for an abuse of discretion a trial
court's decision on an expert's qualifications."
People v Steele, 283 Mich.App. 472, 480; 769 N.W.2d
256 (2009) (citations omitted). "A trial court abuses
its discretion when it selects an outcome that does not fall
within the range of reasonable and principled outcomes."
People v Young, 276 Mich.App. 446, 448; 740 N.W.2d
347 (2007). "Questions whether a defendant was denied a
fair trial, or deprived of his liberty without due process of
law, are reviewed de novo." Steele, 283
Mich.App. at 478. A trial court's interpretation and
application of a court rule, like a statute, is reviewed de
novo. People v Valeck, 223 Mich.App. 48, 50; 566
N.W.2d 26 (1997).
issue in this case are MRE 701 and 702, which govern the
admissibility of opinion testimony. MRE 701 governs the
admissibility of opinion testimony by lay witnesses:
If the witness is not testifying as an expert, the
witness' testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue.
governs the admissibility of expert testimony:
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
Court has recognized before, the interplay between MRE 701
and MRE 702 when a police officer provides testimony based on
his or her training and experience is somewhat unclear. See
People v Dobek, 274 Mich.App. 58, 77; 732 N.W.2d 546
(2007) ("The caselaw on this issue is not entirely
clear."). In Dobek, the prosecution offered the
testimony of a police officer, Bruce Leach, "regarding
delayed disclosure" in sexual-assault cases "as
simply a police officer giving lay testimony based on his
training and experience without . . . being first qualified
as an expert, while suggesting to the jury that Leach was an
expert on the subject." Id. at 76. The trial
court ruled that the testimony was admissible as lay
testimony and instructed the jury as such. Id. at
76-77. On appeal, defendant challenged this ruling, arguing
that this testimony required that the police officer be
qualified as an expert. Id. at 76.
Court analyzed this issue as follows:
Because Leach was testifying about delayed disclosure on the
basis of knowledge, experience, and training, it would appear
that his testimony constituted expert opinion testimony and
not lay opinion testimony under MRE 701, which is limited to
opinions or inferences that are "rationally based on the
perception of the witness" and that are "helpful to
a clear understanding of the witness' testimony or the
determination of a fact in issue." The caselaw on this
issue is not entirely clear. For example, in Chastain v
Gen Motors Corp (On Remand), 254 Mich.App. 576; 657
N.W.2d 804 (2002), the trial court permitted a police officer
to give lay opinion testimony under MRE 701 that the
plaintiff was not wearing his seatbelt. This Court affirmed,
rejecting the plaintiff's claims that the trial court
should not have admitted evidence under MRE 701, that expert
testimony under MRE 702 was necessary, and that the officer
was not qualified to give an expert opinion on the issue. The
Chastain panel held that the lay opinion was not
admitted in error because the testimony was based on the
officer's perceptions at the scene of the accident and
because the opinion was not based on his past experience in
investigating car accidents. Chastain,
supra at 586-590. The Court stated, "A careful
examination of [the officer's] testimony establishes that
although his opinion in this case was consistent with
conclusions he had drawn in other cases he had investigated,
his past experience did not form the basis of his
opinion." Id. at 590. Here, Leach's
testimony on delayed disclosure was drawn from his past
experiences and training.
Co-Jo, Inc v Strand, 226 Mich.App. 108; 572 N.W.2d
251 (1997), the plaintiffs argued that an off-duty
fireman's opinion testimony regarding the speed at which
a building burned was improperly admitted as lay opinion
testimony under MRE 701 because expert testimony was required
and the fireman was not qualified as an expert. This Court
held that the trial court did not abuse its discretion in
admitting the opinion evidence regarding the speed and
intensity of the fire. Co-Jo, supra at 117.
The Co-Jo panel stated:
[The fireman's] conclusions were based on observation of
the fire for over thirty minutes. The opinion testimony was
limited to describing the fire in relation to other building
fires [the fireman] had witnessed. The reliability of his
conclusions was premised on his extensive experience in
observing other building fires and investigating their
causes. The testimony was of a general nature, without any
reference to technical comparison of scientific analysis.
Co-Jo, it could be reasonably argued that
Leach's testimony was acceptable lay opinion testimony.
Co-Jo appears to be at odds with Chastain.
We, however, do not need to resolve the issue, and the
apparent conflict in caselaw gives credence to a conclusion
that the prosecutor did not pursue the challenged questioning
in bad faith. Assuming that expert testimony was required,
Leach was more than qualified to give an expert opinion on
delayed disclosure to the extent of the testimony actually
presented. He testified at length about his extensive
knowledge, experience, training, and education concerning the
sexual abuse of children. Leach has personally participated
in the investigation of hundreds of criminal sexual conduct
cases involving child victims. And he had received training
in the investigation of cases involving delayed disclosure.
With his background and experience in investigating child sex
abuse cases and interviewing victims, Leach became
knowledgeable regarding delayed disclosure, and, according to
Leach, delayed disclosure is common and happens quite
frequently with child victims. On this record, the disputed
testimony was admissible, and the prosecutor acted in good
faith in eliciting the testimony. Accordingly, reversal is
unwarranted. [Dobek, 274 Mich.App. at 77-79
(alterations in original).]
case, the trial court qualified Detective Schuette "as
an expert in interpreting evidence at . . . homicide
scenes." In our view, the trial court did not err in
this regard. Detective Schuette described, in detail, his
extensive knowledge, skill, experience, training, and
education with respect to homicide investigations.
Specifically, Detective Schuette testified that he had
participated in "[h]undreds" of homicide
investigations, participated in extensive law-enforcement
training including, for example, several "homicide
schools" and "evidence technician school, "
and "taught Criminalistics which is processing of crime
scenes, interpreting . . . crime scenes." In addition,
Detective Schuette testified that, on previous occasions, he
had testified as an expert in "[e]vidence interpretation
and general homicide investigations." Ultimately, the
trial court found this knowledge, skill, experience,
training, and education sufficient for purposes of MRE 702,
and we agree with that decision despite the fact that, as
defendant claims, it may have been a rather "broad"
Detective Schuette was permitted to offer an opinion as to
whether defendant was acting in self-defense is a different,
and more complicated, issue. As indicated above, defendant
claims that Detective Schuette was allowed "to
essentially tell the jury that [defendant]'s claim of
self-defense was a sham based on his expertise." To
support this claim, defendant points, in relevant part, to
two portions of Detective Schuette's testimony at
trial. First, she points to the following
exchanges between the prosecutor and Detective Schuette
regarding how individuals acting in self-defense generally
Q. All right, and once you learned that there was
two stab wounds, did that change your strategy or your focus
A. It did. I was surprised by the fact that there
had been two stab wounds. I began to lean towards a little
bit more away from -- I -- I should say it like this. The
self-defense theory was slowly beginning to break apart and I
believed that this was weighing heavily on the other side of
self-defense. I was skeptical because I always want an
autopsy report first, so I held off making any official
report myself about it until I received the autopsy report a
little bit later on in March.
Q. Okay, and by the time you talked to several other
individuals, looked at the autopsy report, listened to the
interview from -- or not the interview, but the phone
conversation with Megan Marshall and what you knew from your
talking to Dawn Dixon-Bey, I'm gathering by what
you're saying is that it's clear that you eventually
lean away from a self-defense theory?
A. Yes, probably the 23rd was a turning
point in the investigation, not only from the -- the
standpoint of receiving the autopsy results, the preliminary
autopsy results via word of mouth from Officer Peters, but
also in speaking with Mr. --Mr. Gove and the prior statement
that he had obtained from her.
* * *
Q. All right, so it's safe to say based -- about
the 23rd was when your focus really starts to turn
towards this wasn't self-defense?
Q. All right, now you had indicated that you've
done hundreds of homicide investigations?
Q. All right, have you dealt with situations where
there has been self-defense?
A. Oh, absolutely.
Q. All right, have you interviewed people who had
actually been the person who used self-defense?
Q. All right, in your experience do they tend to act
a certain way?
Q. And how is that?
A. They're very excited, crying often times, not
always but often times they're crying, they're very
excited. They are giving you all the information and then
asking if they're in trouble afterward. I didn't mean
it, they're telling me all sorts of different things. I
had to do it, I didn't mean it, I hear a lot of that kind
of rattle can statements that come from them. Probably the
most important thing that I look for in that circumstance is
the excitability and detail about how everything came about.
Q. Okay, now you had indicated -- I -- I guess is it
fair to say that's not what you got from talking to Dawn
A. No, it's not at all.
defendant also points to Detective Schuette's testimony
that the victim was likely laying down during the stabbing.
In that regard, Detective Schuette testified, in relevant
part, as follows:
Q. All right, and based off of the interviews that
you've conducted, the autopsy results and your viewing of
the crime scene, were you able to interpret that crime scene
and -- and develop a theory of what you thought took place?
Q. And what is that?
A. Well, first off --
Q. And I guess, what did you based on as well?
A. -- what I based that on was the evidence that was
at the scene, the autopsy results and the information that I
had gathered through other witnesses. The one constant in all
of the information surrounding the statements Ms. Dixon-Bey
had made was the dog cage. I noted that the dog cage was, in
fact, in the living room, so that ...