Jackson CC: 12-004848-FC
Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M.
McCormack David F. Viviano Richard H. Bernstein Kurtis T.
Wilder Elizabeth T. Clement, Justices
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).
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
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.
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 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.
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.
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.
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. 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
Bernstein, J., joins the statement of McCormack, J.
 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 ...