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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

August 20, 2015 

v No. 320836 

Wayne Circuit Court 

LEO EVANS JR. III, LC No. 13-005933-FC 

 Defendant-Appellant. 

Before: OWENS, P.J., and SAAD and GADOLA, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of reckless driving causing death, 

MCL 257.626(4), and two counts of reckless driving causing serious impairment of a body 

function, MCL 257.626(3). The trial court sentenced defendant to 4 to 15 years’ imprisonment 

for his reckless driving causing death conviction, and time served with regard to both counts of 

reckless driving causing serious impairment of a body function. We affirm. 

I. FACTUAL BACKGROUND 

 On May 26, 2013, defendant and his cousin, Charlie Edwards, went to a barbeque hosted 

by defendant’s father. After some time, Edwards saw DeMarco Florence, Jaylin Heath, and 

Leon Freeman leave the gathering in a black Grand Prix. Defendant and Edwards left separately 

in defendant’s purple Grand Prix. While driving, defendant encountered Florence driving in the 

opposite direction. Defendant turned around and started driving in the same direction as 

Florence. After defendant’s vehicle got behind Florence’s vehicle, Edwards saw Heath sitting or 

hanging outside of the window and he heard Florence say, “[P]unch it.” Florence then took off 

at a high rate of speed, and defendant accelerated moments later. In response to a question from 

the prosecutor at trial, Edwards agreed that defendant and Florence were engaged in a race. 

 Edwards testified that at some point, defendant’s vehicle began to slow down.1

 After 

defendant slowed down, Edwards saw Florence lose control of his vehicle, causing it to “hit a 

 

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 At trial, Edwards denied that defendant ever caught up to Florence’s vehicle. However, the 

prosecutor introduced preliminary examination testimony, in which, responding to the question, 

“The defendant catches up with [Florence’s] car, is that correct?” Edwards answered, “Yes.” 
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curve” and then “hit a tree.” Heath died as a result of the collision and Florence and Freeman 

were severely injured. 

II. SUFFICIENCY OF THE EVIDENCE 

 Defendant first argues that the prosecutor failed to present sufficient evidence that he 

factually and proximately caused the accident and the resulting death and injuries. We disagree. 

 We review sufficiency of the evidence claims de novo. People v Ericksen, 288 Mich 

App 192, 195; 793 NW2d 120 (2010). “To determine whether the prosecutor has presented 

sufficient evidence to sustain a conviction, [appellate courts] review the evidence in the light 

most favorable to the prosecutor and determine whether a rational trier of fact could find the 

defendant guilty beyond a reasonable doubt.” People v Smith–Anthony, 494 Mich 669, 676; 837 

NW2d 415 (2013) (citation and internal quotation marks omitted). In assessing a sufficiency 

claim, we must make all credibility determinations and draw all reasonable inferences in favor of 

the jury’s verdict. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). 

 Sufficient evidence supported each of defendant’s convictions. The reckless driving 

statute, MCL 257.626, provides, in pertinent part, the following: 

 (2) Except as otherwise provided in this section, a person who operates a 

vehicle upon a highway or a frozen public lake, stream, or pond or other place 

open to the general public, including, but not limited to, an area designated for the 

parking of motor vehicles, in willful or wanton disregard for the safety of persons 

or property is guilty of a misdemeanor punishable by imprisonment for not more 

than 93 days or a fine of not more than $500.00, or both. 

 (3) Beginning October 31, 2010, a person who operates a vehicle in 

violation of subsection (2) and by the operation of that vehicle causes serious 

impairment of a body function to another person is guilty of a felony punishable 

by imprisonment for not more than 5 years or a fine of not less than $1,000.00 or 

more than $5,000.00, or both. . . . 

 (4) Beginning October 31, 2010, a person who operates a vehicle in 

violation of subsection (2) and by the operation of that vehicle causes the death of 

another person is guilty of a felony punishable by imprisonment for not more than 

15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both. 

Accordingly, a conviction for reckless driving causing death requires proof beyond a reasonable 

doubt that (1) the defendant operated a vehicle “upon a highway . . . or other place open to the 

general public,” (2) the operation was “in willful or wanton disregard for the safety of persons or 

property,” and (3) the defendant’s operation of the vehicle “causes the death of another person.” 

MCL 257.626(4). The crime of reckless driving under MCL 257.626(3) shares the first two 

elements with reckless driving causing death, but differs in that the third element requires proof 

beyond a reasonable doubt that the defendant’s operation of the vehicle “causes serious 

impairment of a body function to another person.” 
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 Defendant does not dispute that he was driving a vehicle on a highway or place open to 

the public, and he does not dispute that his operation was in willful or wanton disregard for the 

safety of persons or property. There is also no question that Heath died and Florence and 

Freeman suffered serious impairments of body functions as a result of the accident. Therefore, 

the only issue before this Court is whether the prosecutor presented sufficient evidence to show 

that defendant’s actions caused the death and injuries. 

 The concept of “cause” has a unique, technical meaning in the context of criminal law, 

encompassing two parts: factual causation and proximate causation. People v Schaefer, 473 

Mich 418, 435; 703 NW2d 774 (2005), mod in part on other grounds by People v Derror, 475 

Mich 316; 715 NW2d 822 (2006). “Factual causation exists if a finder of fact determines that 

‘but for’ defendant’s conduct the result would not have occurred.” People v Feezel, 486 Mich 

184, 194; 783 NW2d 67 (2010). 

 Viewing the evidence in a light most favorable to the prosecution, sufficient evidence 

supported a finding that defendant factually caused Heath’s death and Florence’s and Freeman’s 

injuries. Nothing in the record indicates that Florence was speeding or driving recklessly before 

defendant arrived on the scene. Rather, the evidence showed that defendant turned his vehicle 

around to approach Florence’s vehicle, and when defendant got close, Florence said, “[P]unch 

it,” and both vehicles took off at high rates of speed within moments of each other. Considering 

this evidence, a rational jury could find beyond a reasonable doubt that absent defendant’s action 

of engaging in horse-play or racing with Florence, the collision would not have occurred, Heath 

would not have died, and Florence and Freeman would not have been seriously injured. 

 In order for criminal liability to attach to defendant’s conduct, however, the prosecution 

was also required to show that defendant’s actions were a proximate cause of the death and 

injuries. Feezel, 486 Mich at 193. In Schaefer, 473 Mich at 437-438, our Supreme Court 

explained the concept of proximate causation in a criminal proceeding as follows: 

 For a defendant’s conduct to be regarded as a proximate cause, the 

victim’s injury must be a “direct and natural result” of the defendant’s actions. In 

making this determination, it is necessary to examine whether there was an 

intervening cause that superseded the defendant’s conduct such that the causal 

link between the defendant’s conduct and the victim’s injury was broken. If an 

intervening cause did indeed supersede the defendant’s act as a legally significant 

causal factor, then the defendant’s conduct will not be deemed a proximate cause 

of the victim’s injury. 

* * * 

 The linchpin in the superseding cause analysis . . . is whether the 

intervening cause was foreseeable based on an objective standard of 

reasonableness. If it was reasonably foreseeable, then the defendant’s conduct 

will be considered a proximate cause. If, however, the intervening act by the 

victim or a third party was not reasonably foreseeable—e.g., gross negligence or 

intentional misconduct—then generally the causal link is severed and the 
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defendant’s conduct is not regarded as a proximate cause of the victim’s injury or 

death. [Footnotes omitted.] 

 At trial, the prosecution presented evidence that defendant and Florence were engaging in 

horse-play or racing before the accident, and that Florence did not start driving recklessly until 

he interacted with defendant, who also began driving at a high rate of speed. The prosecution 

presented evidence showing that just moments before the accident, the two vehicles were 

speeding down the roadway in close proximity, and that Florence’s vehicle approached speeds of 

100 miles per hour. Although Edwards and defendant both testified that defendant slowed down 

before the collision, he was involved in the accident because his conduct was connected to the 

resulting accident in a logical and natural manner. Therefore, sufficient evidence allowed the 

jury to conclude beyond a reasonable doubt that the collision was a reasonably foreseeable result 

of defendant’s conduct, and that no superseding cause broke the causal chain between 

defendant’s actions and the resulting death and injuries. 

 Contrary to defendant’s assertions, the fact that Florence was also driving recklessly does 

not mean that defendant was not also a proximate cause of the collision. This Court has held that 

there may be more than one proximate cause of an injury. See, e.g., People v Tims, 449 Mich 83, 

96-97; 534 NW2d 675 (1995). As our Supreme Court explained in People v Bailey, 451 Mich 

657, 676; 549 NW2d 325 (1995), amended in part on other grounds 453 Mich 1204 (1996): 

 In assessing criminal liability for some harm, it is not necessary that the 

party convicted of a crime be the sole cause of that harm, only that he be a 

contributory cause that was a substantial factor in producing the harm. The 

criminal law does not require that there be but one proximate cause of harm 

found. Quite the contrary, all acts that proximately cause the harm are recognized 

by the law. 

 “If a certain act was a substantial factor in bringing about the loss of 

human life, it is not prevented from being a proximate cause of this result by 

proof of the fact that it alone would not have resulted in death, nor by proof that 

another contributory cause would have been fatal even without the aid of this act.” 

[Id., quoting Perkins & Boyce, Criminal Law (3d ed), p 783.] 

Moreover, “[w]here an independent act of a third party intervenes between the act of a criminal 

defendant and the harm to a victim, that act may only serve to cut off the defendant’s criminal 

liability where the intervening act is the sole cause of the harm.” Bailey, 451 Mich at 677. 

 Even if Florence’s action of driving recklessly also constituted a proximate cause of 

Heath’s death and the injuries he and Freeman sustained, this fact does not indicate that there 

was insufficient evidence to establish that defendant was also a proximate cause of the death and 

injuries. Under the facts before us, the prosecution introduced sufficient evidence to permit a 

rational jury to find beyond a reasonable doubt that defendant was guilty of reckless driving 

causing death and two counts of reckless driving causing serious impairment of a body function. 
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III. EXPERT WITNESS TESTIMONY 

 Defendant next argues that the trial court improperly refused to allow him to call Sammie 

Hall as an expert witness. We review a trial court’s decision to admit or exclude expert 

testimony for an abuse of discretion. People v Dobek, 274 Mich App 58, 93; 732 NW2d 546 

(2007). “A trial court abuses its discretion when its decision falls outside the range of reasonable 

and principled outcomes.” People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008). 

 “A defendant has a constitutionally guaranteed right to present a defense, which includes 

the right to call witnesses.” Yost, 278 Mich App at 379, citing US Const, Am VI; Const 1963, art 

1, § 20. This right is not absolute and a defendant must comply with the “ ‘established rules of 

procedure and evidence designed to assure both fairness and reliability in the ascertainment of 

guilt and innocence.’ ” People v Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984), quoting 

Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). 

 At trial, when defendant attempted to introduce Hall as an expert witness, the prosecutor 

objected, stating that he had not received a report from Hall, and claiming that defendant failed 

to provide the prosecution with a witness list. The trial court determined that the defendant did 

not properly file a witness list, and that he did not file a copy of a report prepared by Hall, as 

required by MCL 767.94a. As a result, the trial court refused to let Hall testify. Although we 

agree that the trial court erred to the extent that it refused to allow Hall’s testimony under 

MCL 767.94a, any error was harmless under the facts of this case. 

 MCL 767.94a(1) provides the following: 

 (1) A defendant or his or her attorney shall disclose to the prosecuting 

attorney upon request the following material or information within the possession 

or control of the defendant or his or her attorney: 

 (a) The name and last known address of each witness other than the 

defendant whom the defendant intends to call at trial provided the witness is not 

listed by the prosecuting attorney. 

 (b) The nature of any defense the defendant intends to establish at trial by 

expert testimony. 

 (c) Any report or statement by an expert concerning a mental or physical 

examination, or any other test, experiment, or comparison that the defendant 

intends to offer in evidence, or that was prepared by a person, other than the 

defendant, whom the defendant intends to call as a witness, if the report or 

statement relates to the testimony to be offered by the witness. 

 (d) Any book, paper, document, photograph, or tangible object that the 

defendant intends to offer in evidence or that relates to the testimony of a witness, 

other than the defendant, whom the defendant intends to call. 

The plain language of MCL 767.94a(1) indicates that a defendant need only provide the listed 

information regarding his or her witnesses upon request by the prosecuting attorney. In this case, 
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the record is devoid of any request from the prosecutor for this information before trial. 

Moreover, in People v Phillips, 468 Mich 583, 588-589; 663 NW2d 463 (2003), our Supreme 

Court held that MCR 6.201,2

 not MCL 767.94a, governs “discovery in criminal cases.” In 

Phillips, the Supreme Court held that under former MCR 6.201(A)(3), a party was not obligated 

to produce an expert’s written report in discovery if no report existed. Id. at 590. 

MCR 6.201(A)(3) has since been amended, and now states that, “upon request,” a party must 

provide “the curriculum vitae of an expert the party may call at trial and either a report by the 

expert or a written description of the substance of the proposed testimony of the expert, the 

expert’s opinion, and the underlying basis of that opinion[.]” Again, because there is no 

evidence that the prosecutor requested these materials, the trial court should not have required 

defendant to produce a report or statement of Hall’s expected testimony before allowing Hall to 

testify. 

 In any event, we conclude that any error by the trial court on this matter was harmless. 

Defendant has not provided a formal offer of proof below or on appeal concerning the content of 

Hall’s testimony, and has therefore failed to demonstrate harmful error resulting from its absence 

at trial. People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003) (“Defendant offers

 

2

 At the time the Supreme Court decided Phillips, MCR 6.201(A), as adopted November 16, 

1994, 447 Mich cxlvi (1994), stated the following: 

 (A) Mandatory Disclosure. In addition to disclosures required by 

provisions of law other than MCL 767.94a; MSA 28.1023(194a), a party upon 

request must provide all other parties: 

 (1) the names and addresses of all lay and expert witnesses whom the 

party intends to call at trial; 

 (2) any written or recorded statement by a lay witness whom the party 

intends to call at trial, except that a defendant is not obliged to provide the 

defendant’s own statement; 

 (3) any report of any kind produced by or for an expert witness whom the 

party intends to call at trial; 

 (4) any criminal record that the party intends to use at trial to impeach a 

witness; 

 (5) any document, photograph, or other paper that the party intends to 

introduce at trial; and 

 (6) a description of and an opportunity to inspect any tangible physical 

evidence that the party intends to introduce at trial. On good cause shown, the 

court may order that a party be given the opportunity to test without destruction 

such tangible physical evidence. 
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no proof that an expert witness would have testified favorably if called by the defense. 

Accordingly, defendant has not established the factual predicate for his claim.”). Attached to his 

motion for remand before this Court, defendant provided a letter from Hall, in which Hall stated 

that he “was able to render an opinion as to causation and [whether defendant] violated” 

MCL 257.626a, Michigan’s drag racing statute. Hall stated that, based on the evidence he 

observed, defendant was not drag racing under the definition provided in the statute. Even 

assuming that this letter constitutes a legitimate offer of proof regarding Hall’s proposed 

testimony, defendant was not charged with or convicted of drag racing under MCL 257.626a, 

and he testified at trial that he did not participate in a drag race. Therefore, defendant has not 

shown that his inability to introduce Hall’s testimony at trial affected the outcome of the 

proceedings in any way. 

IV. JURY INSTRUCTIONS 

 Defendant raises several arguments concerning the trial court’s jury instructions. 

Defendant states that the trial court abused its discretion in refusing to provide the jury with a 

drag racing instruction, erred in failing to provide an instruction on lesser included offenses, and 

improperly instructed the jury on second-degree murder and aiding and abetting. 

 At trial, defendant’s attorney expressly approved the court’s jury instructions as given, 

thus waiving any error. See People v Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999) 

(defining waiver as “the ‘intentional relinquishment or abandonment of a known right’ ”), 

quoting United States v Olano, 507 US 725, 733; 113 S Ct 1770; 123 L Ed 2d 508 (1993). “One

who waives his rights under a rule may not then seek appellate review of a claimed deprivation 

of those rights, for his waiver has extinguished any error.” People v Carter, 462 Mich 206, 215; 

612 NW2d 144 (2000) (citations and internal quotation marks omitted). Accordingly, defendant 

has not raised a reviewable error on this issue. 

V. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Finally, defendant argues that his counsel provided ineffective assistance regarding 

several separate and distinct issues. Whether a defendant was denied the effective assistance of 

counsel is a mixed question of constitutional law and fact. People v LeBlanc, 465 Mich 575, 

579; 640 NW2d 246 (2002). We review a trial court’s factual determinations for clear error, and 

review constitutional questions de novo. Id. To establish a claim of ineffective assistance of 

counsel, a defendant must show that “(1) defense counsel’s performance was so deficient that it 

fell below an objective standard of reasonableness and (2) there is a reasonable probability that 

defense counsel’s deficient performance prejudiced the defendant.” People v Heft, 299 Mich 

App 69, 80-81; 829 NW2d 266 (2012). A defendant is prejudiced if the result of the proceeding 

would have been different absent counsel’s errors. Id. at 81. Counsel’s assistance is presumed 

to be effective, and the defendant bears a heavy burden of proving otherwise. People v Eisen, 

296 Mich App 326, 329; 820 NW2d 229 (2012). 

 Defendant first contends that his counsel was ineffective for failing to file a motion to 

quash the charges because the complaint was defective and “contained conclusive statements 

with no statement of the underlying facts.” However, defendant’s attorney did file a motion to 

dismiss the charges after the preliminary examination, which was denied on August 26, 2013. 
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Further, defendant was convicted of three of the four felonies of which he was charged. The fact 

that defendant was found guilty of the charges beyond a reasonable doubt establishes that 

“sufficient evidence existed . . . to support a bindover” of defendant on those charges. People v 

Fonville, 291 Mich App 363, 384; 804 NW2d 878 (2011). 

 Defendant argues that his counsel should have sought a Walker3 hearing to challenge the 

interrogation of Edwards. However, “[a]s a general rule, one may not claim standing to 

vindicate the constitutional rights of some third party.” People v Rocha, 110 Mich App 1, 16-17; 

312 NW2d 657 (1981). Walker hearings are only required when a defendant claims that 

statements of the defendant were made involuntarily. They are not designed to permit a 

defendant to challenge the voluntariness of a statement made by a third party. People v 

Manning, 243 Mich App 615, 624-625; 624 NW2d 746 (2000). Defendant’s counsel was not 

ineffective in failing to seek such a hearing. 

 Defendant also asserts that his counsel was ineffective for failing to file a motion to 

suppress illegally obtained evidence resulting from the seizure of his Grand Prix, and that his 

counsel failed to “properly prepare a defense.” However, defendant does not identify what 

evidence was illegally obtained, or what additional evidence his attorney should have reviewed 

in preparing his defense. Therefore, defendant has failed to establish the factual predicate of his 

claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). 

 Defendant claims that his counsel was ineffective for failing to ensure that Freeman or 

Florence testified on his behalf at trial. The decision to call a particular witness falls squarely 

within trial strategy and will only constitute ineffective assistance when it deprives defendant of 

a substantial defense. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). In this 

case, defendant does not indicate how either Freeman or Florence (assuming they were medically 

able to testify) would assist his defense, let alone how their lack of testimony deprived him of a 

substantial defense. Based on this record, defendant has failed to establish that any of his 

counsel’s actions constituted ineffective assistance. 

 Affirmed. 

/s/ Donald S. Owens 

/s/ Henry William Saad 

/s/ Michael F. Gadola 

 

3 People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).