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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 10, 2015

v No. 322969
Ionia Circuit Court DONALD GLENN LASLEY, LC No. 2013-015854-FC

Defendant-Appellant.

Before: O WENS , P.J., and M URPHY and H OEKSTRA , JJ.

P ER C URIAM

.

Defendant Donald Glenn Lasley was convicted by a jury of first -degree premeditated murder, MCL 750.316(1)(a), and possession of a firearm during t he commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to life impri sonment without the possibility of parole with respect to the murder conviction and to two year s’ imprisonment for the felonyfirearm conviction. Defendant a ppeals as of right. We affirm.

Defendant first argues that he was denied his right to present a defense when the trial court precluded him from introducing expert testimony on “batte red person syndrome” 1 and witnesses who could support a fi nding that defendant was previo usly abused by the victim. The
trial court denied admission of the evidence on the determinati on that a pretrial notice of selfdefense had not been filed by def endant, effectively rendering the evidence irrelevant. We initially note that there is no statutory or court-rule require ment that a defendant file a pretrial notice regarding a claim of self-defense. See MCL 780.971 et seq. (Self-Defense Act); MCR

6.001 et seq. But the trial court’s ruling also reflected an accurate recogni tion that battered person syndrome is generally conne cted to a self-defense theory

.

1 Earlier cases from this Court and our Supreme Court discussed what has been termed “battered wife syndrome,” “battered woman syndrome,” or “battered spouse syndrome.” See, e.g., People
v Christel , 449 Mich 578, 580; 537 NW2d 194 (1995); People v Wilson , 194 Mich App 599, 600-603; 487 NW2d 822 (1992). We shall use the more generic te rm “battered person syndrome” throughout this opinion, given that the adult victim and alleged perpetrator of the abuse was defendant’s daughter.-2- We review the trial court’s de cision to admit or exclude evide nce for an abuse of
discretion. People v Dobek , 274 Mich App 58, 93; 732 NW2d 546 (2007). An abuse of
discretion occurs when the trial court’s decision “falls outsid e the range of reasonable and principled outcomes.” People v Unger , 278 Mich App 210, 217; 749 NW2d 272 (2008). Any preliminary questions of law, e.g., whether a rule of evidence or statute precludes the admissibility of evidence, are reviewed de novo, bearing in min d that a court abuses its
discretion when it admits evidence that is inadmissible as a ma tter of law. People v Lukity , 460 Mich 484, 488; 596 NW2d 607 (1999).

A criminal defendant has a right to present a defense under th e state and federal
constitutions. People v Kurr , 253 Mich App 317, 326; 654 NW2d 651 (2002). “Although the right to present a defense is a fundamental element of due proc ess, it is not an absolute right[,] [and] [t]he accused must still comply with 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) (citation and quotatio n marks omitted). The admissibility of expert testimony is governed by MRE 702, which provides:

If the court determines that sc ientific, technical, or other s pecialized knowledge will assist the trier of fact to understand the evide nce or to determine a fact in issue, a witness qualified as an expert by knowledge, s kill, experience, training, or education may testify thereto in the form of an op inion 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 reliabl y to the facts of the case.

“A court considering whether to admit expert testimony under M RE 702 acts as a gatekeeper and has a fundamental duty to ensure that the proffe red expert testimony is both
relevant and reliable.” People v Kowalski , 492 Mich 106, 120; 821 NW2d 14 (2012). In

Kowalski , our Supreme Court stated:

In People v Christel, [449 Mich 578, 592; 537 NW2d 194 (1995),] we observed that expert testimony is needed when a witness's actio ns or responses are incomprehensible to average people. Thus, we permitted a pr osecution expert to testify about battered woman syndrome and how a victim of do mestic violence might deny, repress, or minimize the abuse. We held that this t ype of testimony was relevant and helpful when needed to explain a complainant's actions.

The common theme in these cases is that certain groups of peop le are known to exhibit types of behavior that are contrary to common sense and are not within the average person's unde rstanding of human behavior. In these instances, an expert's specialized testimony may enlighten the jury so tha t it can intelligently evaluate an experience that is otherwise foreign. [ Kowalski , 492 Mich at 124 (citations, quotation marks, alt eration brackets, and ellipses omitted).]

As part of the battered pers on syndrome, the abused person liv es in constant fear, coupled with a perceived inability to escape a continuing cycle of abus e, eventually resulting in a belief-3- that the only options are to endure the abuse, to strike back, or to commit suicide. People v
Wilson , 194 Mich App 599, 603; 487 NW2d 822 (1992).

“In most cases, the battered woman syndrome is offered by the defendant in a case of
homicide in which the defendant is claiming self-defense.” Christel , 449 Mich at 589. In the context of self-defense, testimony regarding the syndrome has b een used to show how a battered person reacts to the batterer, to explain the reasonableness of the battered person’s perception that danger or great bodily harm is imminent, and to rebut a pr osecutor’s assertion that the
defendant could have left rath er than kill the batterer. Wilson , 194 Mich App at 604. Defendant correctly asserts tha t expert testimony on battered person synd rome is not limited to self-defense claims. As touched on above, in Christel , 449 Mich at 589, our Supreme Court acknowledged the “minority of situations in which the evidence is offered to help evaluate the credibility of the complainant instead of exculpating the accused.” Under those c ircumstances, expert testimony “is relevant and helpful . . . to explain a complainant’s actio ns, such as prolonged endurance of physical abuse accompanied by at tempts at hiding or minimizing the abuse, delays in reporting the abuse, or recanting allegations of abuse.” Id. at 580.

Here, we conclude that the proposed expert testimony on batter ed person syndrome was not related to a claim of self-defense, nor relevant to evaluat ing credibility. Defendant never raised a claim of self-defense, arguing instead, as reflected i n closing argument, that “[t]his was an accidental shooting,” and that “[h]e never intended to kill his daughter.” Defendant himself testified that, while the victim had made a move for the shotgu n that defendant had retrieved and
threatened to shoot defendant i f she got hold of the gun, the d ischarge that killed his daughter was ultimately accidental, occurring when he jerked the gun bac k. Also, defendant’s statements to the 911 operator and his confession to the lead detective in dicated that he shot his daughter after she had verbally abused him, absent any threatening actio ns by the victim, which shooting was the culmination of seven years of intolerable behavior by d efendant’s daughter, with defendant reaching his breaking point. His confession did not evidence in any manner selfdefense. A defendant claiming self-defense “implies his action s were intentional but that the circumstances justified his actions.” Wilson , 194 Mich at 602. Thus, expert testimony on battered person syndrome was unnecessary relative to a self-def ense claim, as there was no assertion or evidence that the shooting was committed in self-d efense. Moreover, expert testimony on battered person syndrome was not sought to be intr oduced to assist the jury in assessing the credibility o f the victim or defendant.

To the extent that defendant now argues on appeal that expert testimony on battered person syndrome was relevant to defendant’s credibility, we fai l to see any significant connection between the syndrome and defendant’s accident theory such that his credibility would have been meaningfully bolstered by the testimony. Indeed, exp ert testimony on battered person syndrome, along with the supporti ng evidence of abuse, would li kely have bolstered the prosecution’s case, considering that such testimony and evidenc e would have been consistent
with defendant’s confession to police. Defendant also argues t hat had the trial court not excluded the expert testimony and purported evidence of abuse p rior to trial, defendant could have pursued self-defense at trial as an alternative defense th eory. However, at the pretrial hearing that covered the issues concerning battered person synd rome and whether to instruct on voluntary manslaughter, defense c ounsel stated that self-defens e was not being pursued and that battered person syndrome was going to serve as a basis to negat e the intent to kill, as we discuss-4- below. Further, we fail to see how defendant could have possib ly testified to both accident and an intentional shooting done in self-defense.

Defendant argues that expert testimony on battered person synd rome was crucial to the defense theory that defendant did not possess the requisite sta te of mind to commit murder, and that, at most, defendant committed voluntary manslaughter. Thu s, defendant offers that the proposed testimony was relevant to help negate his intent. How ever, defendant offers no legal authority supporting the propositi on that evidence on battered person syndrome is relevant in this regard. As discussed in Wilson , 194 Mich App at 603, battered person syndrome speaks to
situations in which an individual comes to believe that his or her only options are to endure the abuse, strike back, or commit suicide. Defendant fails to expl ain in any meaningful and convincing manner how battered person syndrome would prevent a person from forming the intent to kill or from acting with premeditation or deliberatio n. 2 Rather, testimony on battered person syndrome is admitted for the purpose of demonstrating th at the battered person was justified in killing his or her batterer, given the perception that dang er or great bodily harm was
imminent. Id. at 602. Furthermore, defendant’s accident theory already prov ided a basis for defendant to argue that he lack ed the intent to kill his daught er.

Defendant’s argument also suggests that battered person syndro me, along with the proffered evidence of abuse, were relevant to the offense of vo luntary manslaughter. “[T]o show voluntary manslaughter, one must show that the defendant k illed in the heat of passion, the passion was caused by adequate p rovocation, and there was not a lapse of time during which a reasonable person could control his passions.” People v Mendoza , 468 Mich 527, 535-536; 664 NW2d 685 (2003). Insulting words, as opposed to words of an in formative nature, generally do not constitute adequate provocation. People v Pouncey , 437 Mich 382, 391; 471 NW2d 346 (1991). 3 We find it unnecessary to ascerta in whether battered person s yndrome and the alleged supporting evidence may have been relevant to the crime of volu ntary manslaughter and the question whether defendant acted in the heat of passion as caus ed by adequate provocation. We also find it unnecessary to determine whether the evidence in g eneral supported a voluntary manslaughter instruction. Defenda nt waived the issue when his counsel stated at trial that, in light of the evidence, a voluntary manslaughter instruction wou ld not be appropriate and that he
was satisfied with instructions solely on first- and second-deg ree murder. See People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (waiver is the intention al relinquishment or

2 Defendant’s argument poses a com parison to the defunct defense of diminished capacity. Since 1975, the insanity defense has been governed by statute. People v Carpenter , 464 Mich 223, 230; 627 NW2d 276 (2001), citing 1975 PA 180. In Carpenter , the Supreme Court held that the Legislature created “an all or nothing insanity defense” and th at “evidence of mental incapacity short of insanity cannot be used to avoid or reduce criminal re sponsibility by negating specific

intent .” Id. at 237 (emphasis added). Carpenter explicitly rejected the c ontinuing viability of a “diminished capacity” defense. Id. at 235-236.

3 According to defendant’s state ment to the police, the shooting was triggered by insulting words communicated by the victim to defe ndant, although couched in a history of abuse.-5- abandonment of a known right). A defendant is not allowed to w aive objection to an issue at
trial and then clai m error on appeal. People v Fetterley , 229 Mich App 511, 520; 583 NW2d 199 (1998). Defendant has not raised any associated claim of ineffe ctive assistance of counsel. Further, defendant cannot establ ish the necessary prejudice in order to avoid the harmless error rule, given that the jury convicted him of first-degree murder and rejected a second-degree
murder conviction. See People v Raper , 222 Mich App 475, 483-484; 563 NW2d 709 (1997). 4

Defendant contends, however, as he did in the context of self- defense, that had the trial court, prior to trial, not excluded expert testimony on battere d person syndrome and the testimony of witnesses who were supposedly prepared to testify to abuse, there would have been sufficient evidence to support a voluntary manslaughter instruc tion and the jury may have seriously considered a lesser charge. 5 First, when defendant argue d before trial in favor of admitting the evidence at issue, he focused exclusively on the now-rejected argument that it negated the element of intent; d efendant did not argue that the evidence should be admitted to advance a voluntary manslaughter theory. Additionally, assumin g the relevancy of the evidence, as bearing on whether defendant a cted in the heat of passion up on adequate provocation, it is difficult if not impossible to r econcile an intentional killing predicated on manslaughter with defendant’s testimony that the shooting was an accident. Altho ugh the evidence would have been consistent with defendant’s description of what occurred a s conveyed to the police in his confession, we conclude that reversal is unwarranted, because d efendant has not established prejudice, where he has not argued, let alone shown, that the e vidence was sufficient to overcome the general rule that insulting words do not constitut e adequate provocation. In sum,
reversal is unwarranted with res pect to defendant’s arguments r egarding battered person syndrome, the associated evide nce of abuse, and voluntary mansl aughter.

4 In Raper , 222 Mich App at 483-484, thi s Court explained:

In this case, defendant was charged with first-degree murder. The jury was instructed on first-degree murder and second-degree murder, and found defendant guilty of first-degree murder. The jury's rejection of second-d egree murder in favor of first-degree murder reflected an unwillingness to conv ict on a lesser included offense such as manslaughter. Thus, even if defendant' s trial counsel had requested a manslaughter instruction and the trial court had fa iled to give such an instruction, such error would have been harmless. For the same reason, defendant cannot show that his counsel's failure to request a manslaughte r instruction caused him prejudice. [Citation omitted.]

5 Implicit in defendant’s argument is that nothing can be made o f the fact that the jury failed to convict him of second-degree murd er, given that the jury did no t have the benefit of hearing testimony on battered person syndrome and, perhaps more importa ntly, hearing extensive testimony of the abuse itself.-6- Next, defendant argues that his Fifth Amendment rights were vi olated when the interrogating detective did not “scrupulously honor” his purpor ted invocation of the right to silence. As a result, defendant argues that the trial court er red by admitting a recorded interview containing his statements that were made after he asserted his right to remain silent. Defendant, however, waived this claim by stipulating on the record to the admission of the entire recorded
interview into evidence. Carter , 462 Mich at 215-216. Defendant bootstraps a claim of
ineffective assistance of couns el. Even assuming—without decid ing—that defendant unequivocally asserted his right to remain silent and that it w as not “scrupulously honored” by the detective, see People v Henry (After Remand) , 305 Mich App 127, 145; 854 NW2d 114 (2014), he cannot establish the requisite prejudice, assuming c ounsel’s performance was deficient, People v Carbin , 463 Mich 590, 599-600; 623 NW 2d 884 (2001). Before defendant presumably asserted his right to remain silent in the recorded interview, he provided a very lengthy and detailed description of the victim’s killing, inclu ding the fact that he retrieved a shotgun from his bedroom, rem oved the lock, loaded the gun, and shot the victim. The latter part of the interview was no more inculpatory than these admissions. Given that this evidence was properly before the jury, defenda nt cannot establish that admis sion of the full interview prejudiced him.

Affirmed.

/s/ Donald S. Owens /s/ William B. Murphy
/s/ Joel P. Hoekstra