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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

August 1, 2017

v No. 319980

Jackson Circuit Court

MICHAEL PATRICK-MURPHY HAMILTON, LC No. 12-004848-FC

Defendant-Appellant.

ON REMAND

Before: SAWYER, P.J., and M. J. KELLY and SHAPIRO, JJ.

PER CURIAM.

This case returns to us on remand from our Supreme Court. People v Hamilton, 500 

Mich 938 (2017). Defendant, Michael Hamilton, was convicted by a jury of first-degree 

premeditated murder, MCL 750.316, assault with intent to commit murder, MCL 750.83, two 

counts of possession of a firearm during the commission of a felony, MCL 750.227b, and two 

counts of unlawfully driving away an automobile, MCL 750.413. We again affirm.

At trial, Hamilton did not dispute that he had shot and killed Robert Marcyan. Instead, he 

submitted evidence suggesting that he was legally insane at the time of the shooting because he 

was involuntarily intoxicated by the prescription drug, Adderall, which he was taking as 

prescribed by his psychiatrist, Dr. Raad Jajo. Both the prosecution and the defense presented 

lengthy testimony from multiple expert witnesses, including rebuttal testimony from Rosemary 

Heise, who “diagnosed” Hamilton as a “drug addict” based on her review of some of the records

available in the case. Hamilton challenged Heise’s qualifications and the substance of her 

testimony. In the earlier appeal, we concluded that even if the trial court had abused its 

discretion in admitting Heise as an expert witness, any error was harmless because her testimony 

was cumulative to the untainted evidence. People v Hamilton, unpublished opinion per curiam 

of the Michigan Court of Appeals, issued February 9, 2016 (Docket No. 319980); pp 6-7.

Hamilton appealed to our Supreme Court, which vacated Part III of our opinion, and 

remanded the case to us to reconsider:

the defendant’s claims regarding the qualification and testimony of Rosemary 

Heise. The Court of Appeals majority correctly cited People v Lukity, 460 Mich 

484, 495-496 (1999), for the proposition that a preserved, non-constitutional error 
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is not a ground for reversal unless it is more probable than not that the error was 

outcome determinative. It erred, however, in determining that because Heise’s 

testimony was arguably cumulative, it was harmless. See People v Smith, 456 

Mich 543, 555 (1998) (“[T]he fact that [a] statement was cumulative, standing 

alone, does not automatically result in a finding of harmless error.”). On remand, 

the Court of Appeals shall engage in “an examination of the entire cause,” Lukity, 

460 Mich at 495-496, and reconsider whether it is more probable than not that any 

error was outcome determinative. [Hamilton, 500 Mich at 938.]

After further review, we conclude that the trial court abused its discretion in admitting 

Heise as an expert, but that, after examination of the entire cause, Hamilton cannot establish that 

it is more probable than not that the error was outcome determinative. Accordingly, we affirm.

I. EXPERT WITNESS

A. STANDARD OF REVIEW

Preserved challenges to a trial court’s decision to qualify a witness as an expert are 

reviewed for an abuse of discretion. People v Unger, 278 Mich App 210, 216; 749 NW2d 272 

(2008).

1

 “An abuse of discretion occurs when the court chooses an outcome that falls outside the 

range of reasonable and principled outcomes.” Id. at 217. However, even if a trial court abused 

its discretion in admitting evidence, including the erroneous admission of expert testimony, “a 

preserved, nonconstitutional error is not a ground for reversal unless after an examination of the 

entire cause, it shall affirmatively appear that it is more probable than not that the error was 

outcome determinative.” Lukity, 460 Mich at 495-496, quoting MCL 769.26. The defendant 

bears the burden to establish such a miscarriage of justice. Id. at 495. “The inquiry into 

prejudice ‘focuses on the nature of the error and assesses its effect in light of the weight and 

strength of the untainted evidence.’ ” Smith, 456 Mich at 555, quoting People v Mateo, 453 

Mich 203, 215; 551 NW2d 891 (1996).

B. QUALIFICATIONS

Under MRE 702, an expert may testify 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 the case.” The purpose of MRE 702 is 

to ensure that proffered expert witness testimony is reliable. People v Kowalski, 492 Mich 106, 

131, 140; 821 NW2d 14 (2012) (opinion by MARY BETH KELLY, J.). Therefore, before admitting 

expert witness testimony, the trial court must ensure that the testimony is reliable. People v 

Dobek, 274 Mich App 58, 94; 732 NW2d 546 (2007). “While the exercise of the gatekeeper 

function is within a court’s discretion, the court may neither abandon this obligation nor perform 

the function inadequately.” Id. The trial court must exclude expert testimony “when it is based 

 1 The prosecutor argues on appeal that Hamilton’s challenge to Heise’s qualifications and 

testimony is not preserved. Based on our review of the record, it is clear that Hamilton objected 

to both Heise’s qualifications and her testimony, so the issue is preserved.
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on assumptions that do not comport with the established facts or when it is derived from 

unreliable and untrustworthy scientific data.” Id. In particular, the trial court must take care to 

exclude “junk science.” Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 

(2004). In Gilbert, our Supreme Court explained that

MRE 702 mandates a searching inquiry, not just of the data underlying expert 

testimony, but also of the manner in which the expert interprets and extrapolates 

from those data. Thus, it is insufficient for the proponent of expert opinion 

merely to show that the opinion rests on data viewed as legitimate in the context 

of a particular area of expertise (such as medicine). The proponent must also 

show that any opinion based on those data expresses conclusions reached through 

reliable principles and methodology. [Id.]

The Court further cautioned that “[c]areful vetting of all aspects of expert testimony is especially 

important when an expert provides testimony about causation.” Id.

In this case, the trial court failed to conduct the searching inquiry required by Gilbert. 

The trial court initially took testimony from Heise outside the presence of the jury. Based on that 

testimony, it is clear that Heise clearly had training and knowledge relating to substance abuse. 

She had a nursing degree and had obtained a Masters degree from Western Michigan University 

in “counseling psychology with a minor in addiction studies.” Further, she had worked in 

various capacities at several addiction treatment centers and was currently employed by the 

Jackson Circuit Court as the clinical manager of the Recovery Court program, which was a 

treatment program for felons with serious addictions. In her role as the clinical manager of the 

Recovery Court program, Heise evaluated convicted felons whose sentencing guidelines placed 

them in a “straddle cell,” and she determined if they would benefit from a drug-treatment 

program instead of a jail sentence.2 Nevertheless, Heise testified that she was not a physician, a 

licensed psychologist, or a licensed limited psychologist. Additionally, when asked what she 

was going to give an opinion about, Heise stated that she was going to “discuss the history of Mr. 

Hamilton’s substance abuse,” but she did not actually state what her opinion was nor how she 

had arrived at it. She did indicate that she had been provided with parts of the case file, 

including the expert opinions from the forensic psychologists, the police reports, Dr. Jajo’s 

records, and the Michigan Automated Prescription (MAP) report. And Heise noted that she

generally would diagnosis people as addicts or substance abusers simply by examining 

documentation related to the individual’s substance abuse history.

At the conclusion of Heise’s testimony to the bench, Hamilton’s lawyer stated that he still 

did not understand what Heise was expected to be an expert in. The court responded that it was 

not going to “preview what she is going to testify, the details at this point.” That was error. The 

court had a duty to ensure that Hesie’s testimony would be reliable, which it could not 

effectively do in this case without first determining what opinion testimony Heise was going to 

 2 Heise testified that as part of her responsibilities as the clinical manager of the Recovery Court 

program she had “to arrive at a diagnosis,” but she did not explain what type of diagnosis she 

would have to arrive at.
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offer and whether it was based on reliable principles and methodology. See generally Gilbert, 

470 at 782. Despite that duty, the court allowed Heise to testify before the jury without any 

notion of what opinions she would be offering and what principles and methodology the opinions 

would be based on.

The following day, Heise testified before the jury. During that voir dire, Heise explained

that she had testified as an expert in child neglect cases on five or six occasions, but had never 

testified as an expert in a criminal case. She also testified that she was prepared to give a 

diagnosis of Hamilton based on “reading the transcripts.” Thereafter, Hamilton’s lawyer 

objected, stating:

You Honor, I believe it’s problematic. The only experience she has appears to be 

with women and children, abuse and neglect, or with Recovery Court where 

persons have an admitted and documented track record of narcotic abuse or are 

seeking dispensation and have something to gain by working with her. I believe 

that she is not licensed as a physician, she is not licensed as a psychologist, she’s 

never been qualified as a—in a capital murder case before and I guess my 

quandary is twofold. One, just what is it she’s going to give an opinion about, 

which is not clear, and based on—once we answer that question I can go further 

into my voir dire, but right now she’s a—she’s a Recovery Court coordinator 

who’s going to give a psychosocial medical diagnosis about my client.

The trial court overruled the objection, stating that Heise had met the requirements of MRE 702 

and would “be allowed as an expert in the area of substance abuse and addiction.” Again, the 

court did this without any indication as to what opinion Heise was going to offer or what 

principles and methodology she had used to reach those conclusions.

Heise was thereafter allowed to present an extremely broad and ultimately speculative set 

of opinions. She diagnosed Hamilton as an “addict” because he had a documented episode of 

Vicodin abuse. Heise further opined that all addicts are either active or in recovery. She stated 

that Hamilton was an active addict because, even if he had stopped taking Vicodin months before 

the shooting, he could not be considered in recovery because he was taking Adderall. Notably, 

Heise cited no principles or standards to support her conclusions.

Heise admitted that she had no evidence that Hamilton was taking or had Vicodin in his 

system on the day of the shooting. However, she nevertheless speculated that Hamilton’s use of 

fans to cool down the night before the shooting was indicative of a detox from Vicodin or 

possibly from “taking too much Adderall.” Further, she opined that based on Hamilton’s history 

of Vicodin abuse, he needed to be placed in a detox program followed by a long-term residential 

treatment program before he could be considered in recovery. Without seeing signs of such a 

treatment, she opined that his prognosis for recovering from his Vicodin addiction was “poor.” 

Ultimately, Heise suggested that Hamilton was possibly still using Vicodin, noting that his

history raised “red flags” for her and made her “wonder” about “his actual current use of 

Vicodin.” Given that there was nothing in the materials Heise reviewed that showed Hamilton 

was actually using Vicodin in the months before the shooting, and given that the record reflects 

that Hamilton did not suffer any apparent opiate withdrawal after he was arrested, this 

speculative testimony violated the requirement in MRE 703 that the “facts or data in the 
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particular case upon which an expert bases an opinion or inference shall be in evidence.” 

Additionally, Heise speculated that Hamilton may have been snorting Adderall despite the 

absence of any evidence in the record to support such an assertion, which was also improper 

under MRE 703.

Heise also questioned the reliance the other experts placed on Hamilton’s MAP history. 

She opined that the MAP reports are “not always” fully accurate, but offered no specific 

examples of erroneous MAP reports or any studies to support her opinion. She further testified 

that Hamilton was not honest with Dr. Jajo because he had not told Dr. Jajo he was taking 

Suboxone. The record, however, reflectsa that Dr. Jajo was aware of Hamilton’s Suboxone 

prescription. Regardless, based on her erroneous view of Hamilton’s honesty, Heise concluded 

that Hamilton’s behavior was that of an addict because “a component of addiction is denial and 

dishonesty.” She further attacked Hamilton’s character for honesty by testifying that the most 

important thing for an addict was to get the drug at all costs, including stealing money or 

committing violent crimes in order to do so.

Given the speculative nature of Heise’s testimony, the lack of evidentiary support for 

some of her “wonderings” and “maybes,” and the lack of any discernable and reliable principles 

and methodologies for reaching her opinions, we conclude that the trial court abused its 

discretion and abandoned its role as gatekeeper when it allowed Heise to testify without first 

ensuring that her testimony would be reliable and based on actual facts as opposed to mere 

speculation and wonderings.

C. HARMLESS ERROR

Having determined that the trial court abused its discretion, we turn to whether Hamilton 

has met his burden of showing that, “ ‘after an examination of the entire cause, it shall 

affirmatively appear’ that it is more probable than not that the error was outcome determinative.” 

Lukity, 460 Mich at 495-496, quoting MCL 769.26. In doing so, the reviewing court “focuses on 

the nature of the error and assesses its effect in light of the weight and strength of the untainted 

evidence.” Smith, 456 Mich at 555 (citation and quotation marks omitted). “An error is deemed 

to have been ‘outcome determinative’ if it undermined the reliability of the verdict.” People v 

Elston, 462 Mich 751, 766; 614 NW2d 595 (2000) (opinion by KELLY, J.). While MCL 769.26

does not require actual innocence, Mateo, 453 Mich at 211, when the error is slight in 

comparison to the strength of the prosecution’s remaining evidence, reversal is not merited, see 

id. at 215 (stating that reversal is only required if the error was prejudicial).

In evaluating prejudice, the first step is to assess the improper evidence’s potential 

prejudice to the defendant. People v Toma, 462 Mich 281, 297; 613 NW2d 694 (2000). The 

prosecution introduced Heise’s testimony to develop its theory that Hamilton’s motive for the 

shooting was that of a “run-of-the-mill” drug addict willing to do anything—even murder—to 

get more drugs. However, as we explained in our earlier opinion, there was untainted evidence 

in the record raising “red flags” with regard to Hamilton’s drug use. We explained:

Dr. Glen Toplyn, an expert in forensic psychiatry from the Center for 

Forensic Psychiatry, testified that, although he found no evidence to conclude that 

defendant was abusing Adderall, there was information to question whether 
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defendant was, in fact, abusing. Dr. Patrick Gibbons, an expert in addiction 

psychiatry, testified that there were a lot of “red flags” regarding defendant’s use 

of Adderall. Those “red flags” included that in December 2011 defendant 

described symptoms, i.e., narcolepsy, to his treating psychiatrist, Dr. Jajo, for 

which Adderall is prescribed, that in April 2012 defendant said that he had lost his 

prescription, and that in July 2012 defendant said on two occasions that his 

prescription was either lost or stolen. Additionally, on August 29, 2012, 

defendant filled a prescription for Adderall; 60 pills had been dispensed to 

defendant. The pill bottle was found empty 10 days later on September 8, 2012. 

Dr. Jeffrey Wendt, who testified as a psychiatric expert, admitted that the empty 

bill bottle could raise a concern that defendant was abusing Adderall. In rebuttal 

closing argument, the prosecution made a lengthy argument, based on Jajo’s 

records, that defendant was not in compliance with the prescribed Adderall use. 

The prosecution referenced the above facts, and also the facts that on April 26, 

2012, July 26, 2012, and August 2, 2012, defendant visited Jajo even though his 

current prescription had not run out and that on two of these visits, the April 26 

and August 2 visits, defendant obtained a new prescription for Adderall. . . . 

In sum, Heise’s testimony was largely cumulative to that given by the 

various expert witnesses from both sides in this case. Moreover, any argument 

made by the prosecution in closing could still have been made without Heise’s 

testimony, based upon the testimony of the those [sic] other experts. [Hamilton, 

unpub op at pp 6-7.]

We continue to believe that Heise’s testimony was in fact cumulative to the untainted evidence 

offered, and reaffirm our earlier analysis that the cumulative nature weighs against a finding of 

reversible error. Further, we conclude that based on this evidence, the jury could infer—

independent of the tainted evidence—that Hamilton was abusing drugs. Additionally, we note 

that there was also testimony that Hamilton needed money, had possibly broken into and was 

robbing his parents’ cottage, and that he stole cash from Marcyan’s BMW after he fled the scene 

of the shooting. For those reasons, there was very little additional prejudice to Hamilton from 

Heise’s improper opinion testimony.

Moreover, to the extent that it was more damaging to have an expert witness—one acting 

with the imprimatur of the court—to diagnosis Hamilton as an addict, the prejudice was lessened 

by (1) an effective cross-examination pointing out the speculative and improper methodology 

used by Heise, (2) the jury’s own question regarding Heise’s qualifications,3 (3) a detailed surrebuttal from Gibbons and Wendt that further challenged Heise’s conclusions and methodology, 

(4) the lack of emphasis on Heise or her testimony in the prosecution’s closing and rebuttal 

arguments, and (5) the trial court’s instruction to the jury with regard to how it could use expert 

 3 One of the jury questions was whether Heise was called to give or qualified to give a medical

opinion. Heise responded that she was called to testify about how addiction may apply, not to 

give a medical opinion, and she added that she was not qualified to give a medical opinion.
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opinion testimony. In other words, the majority of prejudice caused by Heise’s testimony was 

present in the untainted evidence and the limited additional prejudice caused by her testimony

was lessened through the efforts of Hamilton’s lawyer, the prosecutor’s lack of reference to the 

testimony, and the court’s instructions to the jury.

In contrast, it was undisputed that Hamilton shot and killed Marcyan, and the 

prosecution presented overwhelming and uncontroverted evidence in support of that fact. 

Similarly, there was untainted evidence suggesting that Hamilton was not legally insane when he 

did so.4 In particular, Toplyn, the prosecution’s expert, testified that Hamilton’s story that he 

believed he was in a movie at the time of the shooting to be unbelievable because the story was 

too neatly crafted to fit the insanity defense. Toplyn found that lack of corroboration of the 

movie story after the shooting weighed against a finding of legal insanity. He noted that (1) 

Hamilton did not say or do anything at the scene of the shooting to indicate that he was in a 

movie, (2) Hamilton did not say anything about being a movie to the jail psychiatrist, and (3) 

Hamilton did not say anything about being in a movie after his suicide attempt. In addition, 

Toplyn testified that Hamilton’s statements about the gun showed that he knew it was real and 

that fleeing and throwing the gun into the pond to dispose of it showed that he appreciated the 

wrongfulness of his actions. Toplyn ultimately concluded that Hamilton was legally sane at the 

time of the shooting. Although Hamilton presented expert opinion testimony from Wendt in 

support of his theory that he was legally insane at the time of the shooting,5 the battle between 

the experts, i.e., Toplyn and Wendt, was for the jury to resolve. That question was not 

significantly impacted by Heise’s testimony, which touched on addiction, not mental illness and 

the inability to appreciate the nature and quality or the wrongfulness of one’s conduct or to 

conform said conduct to the requirements of the law. As such, we conclude that there was 

strong, untainted evidence from which the jury could conclude that Hamilton was not legally 

insane at the time of the shooting. And, when taken as a whole, the properly admitted evidence 

 4 In order to establish an insanity defense, the defendant must show that, as the result of a mental 

illness or mental retardation, he or she lacked the “substantial capacity either to appreciate the 

nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to 

the requirements of the law.” MCL 768.21a(1); People v Lacalamita, 286 Mich App 467, 470; 

780 NW2d 311 (2009). However, a mental illness, alone, does not constitute the defense of legal 

insanity. MCL 768.21a(1). Moreover, a defendant “who was under the influence of voluntarily 

consumed or injected alcohol or controlled substances at the time of his . . . alleged offense is not 

considered to have been legally insane solely because of being under the influence of the alcohol 

or controlled substances.” MCL 768.21a(2).

5 Wendt testified that Hamilton was behaving in a way consistent with a manic episode with 

psychotic features, which meant that he was not in touch with reality. Wendt stated that the 

manic episode with psychotic features was triggered by Hamilton’s use of Adderall. Wendt 

ultimately opined that Hamilton was mentally ill at the time of the shooting because he had a 

substantial disorder of thought or mood and could no longer carry out normal life activities. He 

further opined that Hamilton did not appreciate the nature and quality of what he was doing or 

the wrongfulness of his conduct because he believed that he was following a script for a movie.
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is sufficient to sustain Hamilton’s conviction to the extent that we cannot say that it is more

probable than not that a different outcome would have resulted.

Affirmed.

/s/ David H. Sawyer

/s/ Michael J. Kelly