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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 15, 2015

v No. 317218 Wayne Circuit Court DAVID LAVALE HAIRSTON, LC No. 12-010749-FC

Defendant-Appellant.

Before: F ORT H OOD , P.J., and H OEKSTRA and O’C ONNELL , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury trial convictions of fi rst-degree felony murder, MCL 750.316(1)(b), first-degree child abuse, MCL 750.136b(2), t hird-degree child abuse, MCL 750.136b(5), and two counts of torture, MCL 750.85(1). Defenda nt was sentenced to life without parole for the first-degree felony murder conviction, f ive to 15 years’ imprisonment for the first-degree child abuse conviction, one to two years’ impr isonment for the third-degree child abuse conviction, and 18 to 40 years’ imprisonment for each of the two torture convictions. Because there was no plain error in the admission of expert med ical testimony pertaining to the cause and manner of the victim’s injuries and death, and defens e counsel was not ineffective for failing to object to this evidence, we affirm.

Defendant’s convictions arise fro m the death of a six-year-old girl, AJ, the daughter of defendant’s friend, April Foster. 1 The evidence at trial establis hed that defendant and Foster subjected AJ and her sister to long term physical abuse and neg lect, including a failure to seek
medical treatment for AJ when warranted. AJ then died as a res ult of “bilateral bronchial pneumonia associated with neglect and abusive injuries.” Speci fically, at trial, an expert, Dr. Allecia Wilson, explained that A J’s extensive physical injuries and her history of neglect left her in a weakened physical state which prevented her body from figh ting off the pneumonia. Dr. Wilson opined that AJ’s numerous physical injuries were abusive -type injuries inflicted by another person and that, conseque ntly, the manner of death was homicide.

1 For her involvement in AJ’s abuse and death, Foster was tried jointly with defendant and, like defendant, she was convicted of first-degree felony murder, fir st-degree child abuse, third-degree child abuse, and tw o counts of torture.-2- On appeal, defendant contends tha t the trial court erred in ad mitting expert testimony regarding whether the victim, AJ, suffered child abuse. Specif ically, defendant asserts expert testimony to the effect that AJ s uffered physical abuse and neg lect improperly addressed an ultimate issue of fact which should have been left to the jury. Further, defendant contends that his defense counsel was ineffective for failing to object to th is “ultimate issue” testimony.

Defendant failed to offer a timely and specific objection at t rial to the expert testimony in question, meaning his claim is unpreserved. MRE 103(a)(1); People v Aldrich , 246 Mich App 101, 113; 631 NW2d 67 (2001). Because this issue is unpreserve d, our review is for plain error affecting substantial rights. People v Coy , 258 Mich App 1, 12; 669 NW2d 831 (2003).

The admission of expert testi mony is governed by MRE 702, whic h provides:

If the court determines that scie ntific, technical, or other sp ecialized 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, ex perience, training, or education may testify thereto in the form of an opinion or othe rwise if (1) the testimony is based on sufficient facts or data, (2) the testimo ny is the product of reliable principles and methods, and (3) the witness has applie d the principles and methods reliably to the facts of the case.

“Testimony in the form of an opinion or inference otherwise adm issible is not objectionable because it embraces an ultimate issue to be decided by the trie r of fact.” MRE 704. See also People v Smith , 425 Mich 98, 106; 387 NW2d 814 (1986). For example, in the c ase of homicide, where useful to the tr ier of fact, expert medical tes timony may be presented “concerning both the cause and the manner of a decedent’s death.” People v Unger , 278 Mich App 210, 251-253; 749 NW2d 272 (2008) (holding trial court did not abuse its discretion in permitting expert medical testim ony to the effect “that victim had likely been pushed, shoved, or punched over the deck railing”).

In this case, defendant is correct that, at trial, three foren sic pathologists, Dr. Wilson, Dr. Ljubisa Jovan Dragovic (who was called as a defense witness), a nd Dr. Leigh Hlavaty all testified that AJ’s body had numerous wounds consistent with a finding that someone else inflicted those wounds upon her, meaning that she had injuries which could be characterized as abusive injuries. Defendant also correctly indicates that a fo rensic dentist, Dr. Gary Berman, testified that AJ had a torn frenulum caused by “trauma,” altho ugh we note that Dr. Berman expressly stated that he could not specify the type of trauma i nvolved. Based on their findings of abusive type injuries, Dr. Wils on and Dr. Hlavaty opined that t he cause of AJ’s death was bilateral bronchial pneumonia a ssociated with neglect and abusi ve injuries and that the manner of her death was homicide. None of the experts opined that def endant in particular inflicted the abuse in question or caused AJ’s death.

Contrary to defendant’s arguments on appeal, we see nothing ev en remotely improper in the expert testimony presented. T his specialized medical testi mony regarding the nature of AJ’s injuries and their cause was highly useful to assisting the jur y in determining whether AJ had been abused as well as in determining the cause and manner of h er death. Consequently, the testimony was properly admitted pursuant to MRE 702. Indeed, i n this homicide case, it was-3- entirely proper for qualified f orensic pathologists to offer te stimony relating to the cause and manner of AJ’s death, including testimony related to her injuri es and the means by which those injuries had been inflicted. Cf. Unger , 278 Mich App at 251-253. Moreover , the jury was in fact properly instructed that it did “not have to believe an expert’ s opinion,” and defendant has not challenged either the qualifications of the experts or the reli ability of their testimony. Instead, defendant’s only challenge to this testimony is that it embrace d an ultimate issue of fact for the jury. However, as noted, MRE 704 explicitly states that expert testimony regarding an ultimate issue, such as whether AJ had been subjected to physical abuse, is not objectionable merely because it embraces an ultimate issue. Defendant has proffered no additional reasons why the testimony of the expert witnesses should have been excluded, an d therefore, defendant is unable to show any error, let alone plai n error, in the admission of t he experts’ testimony.

In a related argument, defendant also maintains on appeal that defense counsel rendered ineffective assistance by failing to object to the expert testi mony described above. In order to show ineffectiveness of counsel, a defendant must show that: ( 1) counsel’s performance did not meet an objective standard of reasonableness under prevailing p rofessional norms, and (2) there is a reasonable probability that, but for counsel’s errors, the results of the proceedings would be
different. People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012). Effective assistance of counsel is presumed and the defendant bears the h eavy burden of proving
otherwise. People v Seals , 285 Mich App 1, 17; 776 NW2d 314 (2009). “Failing to advance a meritless argument or raise a futile objection does not constit ute ineffective assistance of
counsel.” People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).

In this case, any objection by defense counsel to the expert t estimony in question would clearly have been futile because such testimony was properly ad mitted under MRE 702 and was not objectionable merely because it embraced an ultimate issue. See MRE 704. Thus, defense
counsel was not ineffective for failing to offer a futile objec tion on this basis. Ericksen , 288 Mich App at 201.

Affirmed.

/s/ Karen M. Fort Hood
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell