People of Michigan v. Nancy Ann Gerwatowski

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION February 04, 2026 Plaintiff-Appellee, 11:17 AM v No. 374157 Mackinac Circuit Court NANCY ANN GERWATOWSKI, LC No. 22-004294-FC Defendant-Appellant.

Before: WALLACE, P.J., and RIORDAN and REDFORD, JJ.

RIORDAN, J.

In 1997, the decomposing remains of an infant were found in a park latrine at Garnet Lake State Forest campground, in a remote area of Mackinac County in Michigan’s Upper Peninsula.

Because of where the child’s body was located, the child was given the name “Baby Garnet.” The child appeared to have been birthed after a full-term pregnancy, but no cause of death could be determined, and the investigation of her death became a cold case. Eventually, with the passage of 25 years, advances in genetic technology allowed officials to identify defendant as Baby Garnet’s mother, and she is now charged with the open murder and involuntary manslaughter of the infant.

This appeal concerns the admissibility of statements defendant made to two police officers in which she confessed to being Baby Garnet’s mother, disposing of the infant’s body, and of other conduct during the pregnancy. For the reasons set forth, we affirm the trial court in all respects.

I. FACTS Approximately two and a half decades after Baby Garnet’s remains were found, two Michigan law enforcement officers made use of recent advances in DNA technology to identify defendant as the probable mother. They, along with two local officers, in possession of a warrant for defendant’s DNA, traveled to her home in the state of Wyoming. They asked her to come to the local sheriff’s office to discuss an investigation the subject of which they did not identify.

Rather than accompany the officers, defendant invited them inside her home. Once inside, the officers, seated with defendant at her kitchen table, told defendant they believed she was Baby Garnet’s mother and that they believed defendant knew this to be true. After some discussion, the

-1- officers eventually told defendant that she had a legal right to refuse to come to the local sheriff’s office, and they then let her bring her dog into the house and make arrangements for its care. The officers, at defendant’s request, gave her a ride to the sheriff’s office.

At the sheriff’s office, the officers read defendant her Miranda1 rights. Defendant stated that she understood her rights and did not wish to speak. She asked whether there was an attorney for her, and the officers explained that they did not bring one. They explained that she was entitled to consult any attorney she wished, but she was not entitled to a court-appointed attorney until she was arrested. The officers executed the search warrant to obtain a DNA sample from defendant and advised her that she would “be left to watch” while they pieced the story together. They then described that there are two kinds of persons who commit the type of act they were investigating— those who made a bad decision, or those who are monsters. The officers gave their contact information to her and warned that they would be leaving for Michigan the next day and that she should expect to see them again. Defendant then left the sheriff’s station and went home.

A few hours later, defendant reached out to speak to the officers and she went back to the sheriff’s office. The officers again read defendant’s Miranda rights to her, told her that she did not need to speak, and invited her to tell them about Baby Garnet. The officers again explained that they did not bring attorneys and, because she was not under arrest, she was not entitled to a court-appointed attorney. Thus, the officers explained, an attorney was her right but also her responsibility. They asked if she would waive her rights and speak to them, and she replied “I guess, yeah.”

During that second interview at the sheriff’s office, defendant admitted that she was Baby Garnet’s mother. She explained that she had been going through a divorce, was unstable, her ex- husband “was drinking a lot and running around,” and defendant began to do the same. Defendant stated that when she discovered that she was pregnant, she “didn’t know what to do right away, so [she] just didn’t do anything.” She recalled that she went to a doctor, only one time, and told the doctor that she was thinking about getting an abortion, which seemed to upset the doctor. The doctor told defendant that they did not perform those procedures and referred her to a practitioner in the nearby City of Marquette in Michigan’s Upper Peninsula. Defendant also explained that, at the time, her car was “goofed up,” and she “wasn’t close enough to anybody to ask for help.”

Defendant told the officers that she wanted to keep the baby, but a divorce attorney told her that being pregnant by someone else might adversely affect her ongoing custody proceedings involving her other children.

She told the officers that she began having labor pains over a weekend while her children were away, and she took a bath in the hope that the pains would go away so that she “could figure out what to do,” and “it just happened a lot faster than [she] expected.” She gave birth over the course of what felt like “hours and hours,” during which the baby became stuck partway during birth, was neither breathing nor crying, and “was all blue.” Defendant had to forcibly remove Baby Garnet from her body after Baby Garnet became stuck, and defendant explained that she lost a lot of blood, panicked, did not know what to do, and then “just finally decided that nobody would

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

-2- know.” She did not recall whether she had a cellular phone to call anyone at that time. The officers arrested her after these statements.

The trial court denied defendant’s motions to suppress the statements she made to the police officers. It made specific findings that defendant was not in custody when she spoke with the officers in her home and that her statements regarding her contemplated abortion and lack of prenatal care were relevant to the case and not unfairly prejudicial.

Defendant now appeals by leave granted.2 II. ADMISSIBILITY OF DEFENDANT’S CONFESSION Defendant first argues that her confession was obtained in violation of her Fifth Amendment rights and should therefore be excluded. We disagree because defendant was not subject to custodial interrogation, and her eventual statements during the second interview were voluntary.

A trial court’s decision whether to suppress evidence is reviewed de novo, but any underlying factual findings are reviewed for clear error. People v Stewart, 512 Mich 472, 480; 999 NW2d 717 (2023). “The ultimate question whether a person was ‘in custody’ for purposes of Miranda warnings is a mixed question of fact and law, which must be answered independently by the reviewing court after review de novo of the record.” People v Barritt, 325 Mich App 556, 561; 926 NW2d 811 (2018) (quotation marks and citation omitted). This Court reviews de novo whether a statement was voluntary, with deference to the trial court’s assessment of witness credibility. People v Ryan, 295 Mich App 388, 396; 819 NW2d 55 (2012). “To the extent that a trial court’s ruling on a motion to suppress involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo.” People v Clark, 330 Mich App 392, 415; 948 NW2d 604 (2019) (quotation marks and citation omitted).

The United States and Michigan Constitutions protect a defendant’s right to due process of law and the privilege against self-incrimination. US Const, Ams V and XIV; Const 1963, art 1, § 17. If a person is in custody, police officers must advise that person of his or her rights consistent with Miranda before interrogation. Clark, 330 Mich App 415-416. “[I]nterrogation refers to express questioning and to any words or actions on the part of police that the police should know are reasonably likely to elicit an incriminating response from the subject.” People v Lafey, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 361936); slip op at 9 (quotation marks and citation omitted). A person is “in custody” if the objective circumstances would make a reasonable person feel that “he or she was not at liberty to terminate the interrogation and leave.”

Barritt, 325 Mich App at 562 (quotation marks and citation omitted). The relevant circumstances to be considered are

People v Gerwatowski, unpublished order of the Court of Appeals, entered April 28, 2025 (Docket No. 374157).

-3- (1) the location of the questioning; (2) the duration of the questioning; (3) statements made during the interview; (4) the presence or absence of physical restraints during the questioning; and (5) the release of the interviewee at the end of the questioning. [Id. at 562-563 (ellipses and citations omitted).]

No one circumstance is controlling; rather, whether a person is in custody depends on the totality of the circumstances. Id. at 563.

A. INITIAL ENCOUNTER AT HOME AND FIRST INTERVIEW AT THE POLICE STATION Review of the record evidence demonstrates that defendant was not in custody during her initial encounter with officers at her home, nor did defendant make any inculpatory statements during that initial encounter. An interview in a person’s own home is usually regarded as noncustodial, People v Coomer, 245 Mich App 206, 220; 627 NW2d 612 (2001), but the location of the interview is not dispositive, Barritt, 325 Mich App 562-569. In this case, defendant’s first encounter with officers in her home lasted approximately 21 minutes. The encounter began when Sergeant Demers, Undersheriff Umbarger, and two other local officers knocked on defendant’s door unannounced. Defendant, who was home alone, answered the door. After defendant answered the door, the officers asked her to come down to the police station to speak about a matter. Defendant refused the request and, instead, invited the officers into her home.

While inside the home, the officers explained that they knew defendant was Baby Garnet’s mother and asked her to agree that she was Baby Garnet’s mother. The officers stated that there were two categories of people in her situation, those who had made a bad decision and those who were monsters. Defendant declined to say anything regarding the topic. After additional explanation of the officers’ belief that defendant was connected to Baby Garnet through genealogy, the officers again requested that she come to the police station to discuss the matter. Defendant answered by stating that she needed to call her son to come take care of her dog. The officers stated this could occur, but asked that defendant first clarify if she was willing to come to the police station. Thereafter, defendant asked if she had a choice. Rather than directly answer the question, the officers reiterated that they wanted her to tell her story and that “there is a flip side to this coin.”

When defendant asked them to explain this comment, they refused and stated, “you’re not the one in the driver’s seat,” and again asked if she would come to the police station. Defendant expressed her belief that she did not have a choice, to which the officers responded by saying she was entitled to say no.

Defendant agreed to go to the police station with the officers, but first asked if she could call her son. Apparently, her son did not answer his phone and the officers stated that she could try to call him later. After situating her dog, defendant requested that she change her clothing before they leave. The officers offered to grab clothing for defendant, to which defendant stated that the officers can follow her upstairs. Before leaving the house, the officers searched defendant’s purse and heeded defendant’s request to place her phone, glasses, and medication into the purse. Thereafter, the officers drove defendant to the police station.

This record does not demonstrate that a person in defendant’s position would have felt unable to terminate the interview. Defendant chose the location of the interview. The encounter

-4- took place in defendant’s home after she invited the officers inside. Additionally, the encounter was relatively short, lasting approximately 21 minutes. There is no evidence that the officers ever displayed weapons or threatened defendant. Each of these facts weigh against a finding that she was in custody. Id. at 563-565. The officers made their intent to discuss Baby Garnet with defendant clear. The officers were accusatory toward her by suggesting that she either made a bad decision or was a monster, which weighs in favor of a finding that defendant was in custody.

However, the officers also permitted defendant to begin the discussion inside her home as she requested, assured her that she had a legal right to decline the request to go to the police station, and permitted her to situate her dog and change her clothing before they left. Defendant was not told she was under arrest. There was no record evidence that defendant was placed in handcuffs or otherwise physically retrained during the encounter. These facts also weigh against a finding that defendant was in custody. Id. at 570-576.

Defendant argues that she was in custody during the interaction at her home because she was followed around her house and an officer searched her purse. The record does reflect that an officer followed defendant when she went to change her clothing; however, according to defendant’s version of events, this occurred after she agreed to go to the police station and after defendant told the officer that he could follow her. Likewise, the officers searched defendant’s purse after she had agreed to go to the police station. Defendant also argues that when Sergeant Demers testified at the Walker3 hearing, he admitted that defendant was not free to leave her home because he had not executed the search warrant for defendant’s DNA. However, the fact that Detective Demers intended to execute the search warrant does not establish that a reasonable person in defendant’s position would not have felt that she could ask the officers to leave. There was no record evidence that defendant was aware the officers had a search warrant for her DNA during the encounter in her home. Detective Demers’s subjective belief whether defendant was free to terminate the encounter is not relevant. Focusing on defendant, given this record, a reasonable person in her position would have felt able to terminate the interview in her home. The trial court did not err by concluding defendant was not in custody during the initial encounter at her home.

After defendant agreed to leave with the officers, they drove her to the police station. A police station has been found to be a custodial environment because is a “police-dominated atmosphere.” See id. at 563. However, the United States Supreme Court also has found that when an accused voluntarily goes to a police station for questioning, is aware that he or she is not under arrest, and terminates the interaction without hinderance from the officers, the totality of the circumstances indicates that he or she was not in custody for Miranda purposes. Oregon v Mathiason, 429 US 492, 493; 97 S Ct 711; 50 L Ed 2d 714 (1977).

Here, defendant agreed to go to the police station with the officers to discuss Baby Garnet.

Before initiating any interrogation, the officers advised defendant of her Miranda rights. After asking questions regarding her right to an attorney, defendant invoked her rights and the officers honored the invocation of her rights and immediately ceased questioning her. Thereafter, the officers executed their search warrant for defendant’s DNA, and returned defendant to her home

People v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965).

-5- without defendant saying anything incriminating. The totality of these circumstances demonstrate that defendant was not in custody during the first interview at the police station. The trial court also did not err by finding that defendant was not in custody during the first police station interview.

B. SECOND INTERVIEW AND CONFESSION After defendant returned to her home, defendant decided to reinitiate contact with the officers several hours later, and contacted the sheriff’s office and asked to speak to the officers.

Police officers may resume an interrogation of a suspect who initiates further conversation.

Clark, 330 Mich App at 416. Because defendant reinitiated contact, the question is “whether, under the totality of the circumstances, [she] knowingly and intelligently waived [her] rights to counsel and to remain silent.” Id. at 418. The relinquishment must have been “the product of a free and deliberate choice” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” People v Tanner, 496 Mich 199, 209; 853 NW2d 653 (2014) (quotation marks and citation omitted). Whether a waiver is voluntary is distinct from whether a waiver is knowing and intelligent. People v Tierney, 266 Mich App 687, 707; 703 NW2d 204 (2005).

The record evidence demonstrates that several hours after the police officers dropped defendant off at home, defendant made the decision from her own home to reinitiate contact with the police officers voluntarily. Before calling the police officers, defendant spoke with her son and bade him a tearful farewell. She brought her contact lenses and Bible with her to the police station, which strongly suggested that defendant did not expect to return home. Defendant’s conduct met the threshold for having “a very basic understanding” of the ramifications and consequences of waiving her rights. People v Daoud, 462 Mich 621, 642; 614 NW2d 152 (2000).

Defendant now argues that her waiver was not knowing because the officers critically misinformed her of the extent of her Fifth Amendment rights. While we agree that the officers erred in this respect, we disagree that their error invalidated defendant’s waiver.

As noted, the officers told defendant that she had no right to appointed counsel until she was arrested. That assertion is true of her right to counsel under the Sixth Amendment, which guarantees the right to assistance of counsel and only attaches when a person has been formally or effectively charged with a crime. People v Wade, ___ Mich App ___, ___; ___ NW3d ___ (2025) (Docket No. 369106); slip op at 7-8. In addition, the officers correctly noted, they were not required to have an attorney on call. People v Mitchell, 493 Mich 883 (2012). However, while these individual assertions were accurate, when considered in their totality, the officers’ statements were inaccurate because they conflicted with defendant’s rights under the Fifth Amendment, which guarantees protection against compelled self-incrimination and which attaches before and during custodial interrogation. People v Mathews, 324 Mich App 416, 421, 438-440 & 439 n 8; 922 NW2d 371 (2018). That right includes “the right to appointed counsel before questioning, if he cannot afford counsel.” People v Hoffman, 205 Mich App 1, 6; 518 NW2d 817 (1994) (emphasis

-6- added).4 Therefore, by telling defendant that she was not entitled to appointed counsel for purposes of questioning, the officers gave her an erroneously limited explanation of the extent of her Fifth Amendment right to counsel. Again, as this Court has previously held, the advice regarding counsel must convey “the immediacy of the right in the sense that it exists both before and during interrogation.” Mathews 324 Mich App at 435 (quotation marks and citation omitted).

Despite this, defendant was not in custody during her second visit to the sheriff’s office.

Defendant affirmatively reached out to the police, came to the station willingly, and was told that she was free to leave, all of which weigh against a finding that she was in custody. Barritt, 325 Mich App at 563-565. The second interview was not marked by any officer accusations. Instead, the officers merely invited defendant to say what she wanted to say, however much or little that might be. This fact also weighs against a finding that she was in custody. Cf. id. at 565-569, 571- 572. Most importantly, the officers already had honored defendant’s first invocation of her right not to speak with them and had transported her home without issue. Once again considering all of the factors under Barritt, and considering the totality of the circumstances that existed during defendant’s second visit to the sheriff’s office, we find that a reasonable person would have believed that she could refuse to speak to the police and that the officers would honor her request to leave, just as they had done earlier that same day. Put another way, a reasonable person in defendant’s situation, having appeared at the police station for the first interview and then told the officers that she would not speak with them, resulting in her being permitted to leave the station, would likewise believe she could refuse to speak to those officers and leave the station after voluntarily appearing a second time. Therefore, because defendant was not in custody during her second time at the station, the officers did not need to provide defendant with Miranda warnings before her confession.

In summary, defendant was not subject to custodial interrogation during the initial encounter in her home or during the two interviews at the police station. The trial court correctly declined to exclude defendant’s confession in its entirety.5 III. EVIDENCE OF CERTAIN CONDUCT DURING DEFENDANT’S PREGNANCY Defendant also argues that her statements concerning consideration of abortion and lack of prenatal care during pregnancy are irrelevant and prejudicial, and should be suppressed under

As the Court stated in Miranda, 384 US at 469, “[t]he circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.”

We note, even were we to conclude that defendant was in custody during her encounter with law enforcement at her home and the subsequent first meeting at the police station, we still would conclude that defendant’s statements at the police station the second time, when she returned to the station of her own volition and provided her confession, was voluntarily given and deny suppression.

-7- MRE 401 or 403, or both. We disagree because those statements are relevant and not unfairly prejudicial.

“The decision whether to admit evidence is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.” People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). “An abuse of discretion occurs when the circuit court chooses an outcome that falls outside the range of principled outcomes.” People v Jones, 497 Mich 155, 161; 860 NW2d 112 (2014). Preliminary questions of law regarding the admissibility of evidence are reviewed de novo. People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010).

A. MRE 401 MRE 401 provides as follows: Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

“Relevant evidence is admissible” unless otherwise barred, while “[i]rrelevant evidence is not admissible.” MRE 402.

To determine whether evidence is relevant, courts must apply a two-part test: First, we must determine the “materiality” of the evidence. In other words, we must determine whether the evidence was of consequence to the determination of the action. Second, we must determine the “probative force” of the evidence, or rather, whether the evidence makes a fact of consequence more or less probable than it would be without the evidence. [People v Brooks, 453 Mich 511, 517-518; 557 NW2d 106 (1996) (some quotation marks and citation omitted).]

With regard to materiality, “the proffered evidence [must] be related to any fact that is of consequence to the action.” Id. at 518 (quotation marks and citation omitted). “However, materiality does not mean that the evidence must be directed at an element of a crime or an applicable defense.” Id. (quotation marks and citation omitted). “Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial.” People v Crawford, 458 Mich 376, 389; 582 NW2d 785 (1998) (quotation marks and citation omitted).

With regard to probative force, that term concerns “the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” People v Mills, 450 Mich 61, 68; 537 NW2d 909 (1995) (quotation marks and citation omitted). The evidence “need not prove conclusively the proposition for which it is offered. It need not ever make that proposition appear more probable than not.”

Brooks, 453 Mich at 519 (quotation marks and citation omitted). “It is enough if the item could

-8- reasonably show that a fact is slightly more probable than it would appear without that evidence.” Id. (quotation marks and citation omitted). “Thus, the common objection that the inference for which the fact is offered ‘does not necessarily follow’ is untenable.” Id. (some quotation marks and citation omitted). Simply put, evidence with probative force “need not conclusively decide the ultimate issue in a case, nor make the proposition appear more probable, but it must in some degree advance the inquiry.” Thompson v Chicago, 472 F3d 444, 453 (CA 7, 2006) (quotation marks and citations omitted).

Here, as to materiality, the prosecution asserts that evidence that defendant considered an abortion and did not obtain prenatal care during her pregnancy was germane to establish motive, which is always a material issue in a murder case. See People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008) (“Although motive is not an essential element of the crime, evidence of motive in a prosecution for murder is always relevant.”). See also 1 McCormick on Evidence § 185.1 (9th ed.) (“What is ‘in issue,’ that is, within the range of the litigated controversy, is determined mainly by the pleadings and the substantive law.”). We agree with the prosecution.

Because the prosecution has the burden of proving that defendant was responsible for the death of Baby Garnet with a requisite level of intent, such as premeditation, see MCL 750.316(1)(a), the prosecution argues evidence that defendant did not want Baby Garnet to be born alive is material to the issues in this case. In other words, because motive necessarily is “material” in a murder case, see Unger, 278 Mich App at 223, and because the prosecution has cited motive as a reason for relevance, those two facts alone show the evidence in dispute can be “material” for the purposes of a relevancy analysis.6 Further, and more importantly, evidence that defendant considered an abortion and did not obtain prenatal care during her pregnancy has probative force. In other words, the evidence makes defendant’s motive to murder Baby Garnet more probable than it would be without the evidence.

See Brooks, 453 Mich at 517-518. Defendant told officers that she had “gone to see an attorney for a divorce and . . . he told me the things that could affect my divorce and if my kids would be able to stay with me or not, and he said if I was pregnant by somebody else it would have a . . . varying on if I could raise my kids[.]” In other words, defendant was told that having a child by another man during her custody dispute could have an adverse effect on whether she would receive custody of her current children. This constituted her motive to allegedly commit murder. And, evidence that defendant considered an abortion and did not obtain prenatal care makes that motive more probable. See Mills, 450 Mich at 68. That is, evidence that defendant considered an abortion and did not obtain prenatal care despite telling officers that she “really wanted to keep it” shows

On appeal, defendant seemingly reasons that the evidence in dispute is not “material” because her “abortion contemplation and other healthcare decisions while carrying her fetus simply cannot demonstrate a fact ‘of consequence,’ namely her state of mind during her precipitous labor and delivery months later . . . .” The materiality inquiry concerns “the relation between the propositions for which the evidence is offered and the issues in the case.” Crawford, 458 Mich at 389 (quotation marks and citation omitted). See also 1 McCormick on Evidence § 185.1 (9th ed.) (“[Materiality] looks to the relation between the proposition that the evidence is offered to prove and the issues in the case.”). Here, because the prosecution is offering the evidence in dispute for motive, which unquestionably is a material issue in a murder case, the materiality inquiry is satisfied.

-9- that defendant deliberately and seriously considered an attorney’s advice that having a child by another man during her custody dispute could have an adverse effect on the ultimate custody ruling.

Stated otherwise, if defendant had not considered an abortion and did obtain prenatal care, those facts would tend to make it less likely that she was motivated to murder Baby Garnet, as those facts would tend to show that she did want Baby Garnet alive despite the attorney’s advice.

We discern no principled reason why the converse is not true as well. That is, if hypothetical evidence that defendant had not considered an abortion and did obtain prenatal care would be relevant to diminish motive, the actual evidence to the contrary is relevant to show strengthened motive. Conversely, the fact that defendant did not abort the baby and did, at one point, seek the care of a doctor, is material evidence in her favor that she did not intend to terminate her pregnancy or murder her child.

Accordingly, the evidence in dispute concerning consideration of abortion and lack of prenatal care is both material and has probative force, and therefore satisfies the MRE 401 threshold.

B. MRE 403 MRE 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” “Unfair prejudice may exist where there is a danger that the evidence will be given undue or preemptive weight by the jury or where it would be inequitable to allow use of the evidence.” People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008). “All evidence offered by the parties is ‘prejudicial’ to some extent, but the fear of prejudice does not generally render the evidence inadmissible. It is only when the probative value is substantially outweighed by the danger of unfair prejudice that evidence is excluded.” Mills, 450 Mich at 75.

Our Supreme Court has recently explained that, for the purposes of MRE 403, “abortion evidence, while perhaps incendiary to some, is not so inherently prejudicial in today’s society as to render it inadmissible.” People v Sharpe, 502 Mich 313, 333; 918 NW2d 504 (2018). See also id., quoting State v Stanton, 319 NC 180, 186; 353 SE2d 385 (1987) (“ ‘The mere fact that an abortion took place is not so inflammatory as to render it inadmissible.’ ”). We follow that principle here and conclude that evidence that defendant considered having an abortion during her pregnancy is not so inherently prejudicial as to require its exclusion under MRE 403.7 Indeed, the abortion evidence in this case is less prejudicial than in Sharpe, as the woman in Sharpe actually had an abortion, see Sharpe, 502 Mich at 332, whereas defendant here only discussed it with a

This is particularly true in light of the fact that, in 2022, a substantial majority of Michigan voters subsequently approved Prop. No. 22-3, an amendment to the state constitution providing that “[e]very individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, [and] abortion care . . . .”

Const 1963, art 1, § 28(1).

-10- doctor. And, as explained earlier, the abortion evidence is probative of defendant’s motive. Thus, given its probative value, that evidence in this case is not so prejudicial as to require its exclusion under MRE 403. In this case, like the abortion evidence in Sharpe, “[a]lthough there may be some danger of juror sympathy for a young woman who has gone through pregnancy and abortion or, alternatively, a danger of juror revulsion for a young woman choosing abortion, the evidence here is both highly probative and concise.” Sharpe, 502 Mich at 333-334.

Essentially the same reasoning holds true with respect to evidence that defendant did not obtain prenatal care. As defendant herself acknowledges on appeal, “millions of Americans do not receive prenatal care for a myriad of reasons, from a lack of health insurance to an inability to secure children for existing children.” See also Akers v State, 490 Md 1, 48; 331 A3d 853 (2025) (“[T]he unfortunate reality is that forgoing obstetrical care is not uncommon. . . . Persons of color, persons with low-income, and persons living in rural areas are more likely to lack access to obstetrical care.”).8 Given these facts, we cannot identify any significant prejudice that would occur to defendant by allowing the prosecution to present evidence that she did not obtain prenatal care. Simply put, defendant will be free to argue at trial, as she implies on appeal, that her lack of prenatal care is innocuous and not inculpatory in any respect. Thus, evidence that defendant did not obtain prenatal care is admissible under MRE 403.

To summarize, admission of evidence that defendant contemplated having an abortion and did not obtain prenatal care during her pregnancy does not violate MRE 403. Such issues are sufficiently familiar in today’s society that discussion of them at trial is not unfairly prejudicial to defendant. As always, voir dire remains available to provide an unbiased jury and, presumably, the trial court will instruct the jurors on the proper use of the evidence in dispute. “[J]urors are presumed to follow their instructions . . . .” Unger, 278 Mich App at 235.

IV. CONCLUSION

In Akers, an infant-death case which defendant urges this Court to follow, the Maryland Supreme Court held that “the evidence that Ms. Akers contemplated terminating her pregnancy by conducting internet searches between six and nearly eight months prior to delivery was irrelevant, and therefore inadmissible” because “[t]he termination searches were not probative of motive or intent to kill or harm a child.” Akers, 490 Md at 49. The Court also held that “evidence of Ms. Akers’ bare decision to forgo prenatal care was not probative of motive or intent to kill or harm a live child.” Id. at 50.

While we have some doubts about the reasoning of Akers because, for example, the Court seemingly conflated or confused intent with motive at certain points, see, e.g., id. at 40, we need not expressly decline to follow that case because it is distinguishable. In Akers, the prosecution argued that the evidence in dispute was directly relevant to establish motive or intent, and the Court rejected that argument. See id. at 49-50. Here, in contrast, as we have explained, the evidence in dispute is not necessarily directly relevant to establish motive but, rather, is relevant to show that the motive at issue—the defendant’s then-pending custody dispute—was itself an indication of defendant’s motivation for her alleged acts.

-11- The trial court did not err or otherwise abuse its discretion by ruling that the challenged statements made by defendant to police officers are admissible. For the reasons explained herein, neither the Fifth Amendment nor Miranda requires exclusion of any of these challenged statements. Nor does MRE 401 or 403 require exclusion of evidence that defendant contemplated having an abortion and did not obtain prenatal care during her pregnancy. Therefore, we affirm the trial court.

/s/ Michael J. Riordan /s/ James Robert Redford

-12-

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION February 04, 2026 Plaintiff-Appellee, 11:17 AM v No. 374157 Mackinac Circuit Court NANCY ANN GERWATOWSKI, LC No. 22-004294-FC Defendant-Appellant.

Before: WALLACE, P.J., and RIORDAN and REDFORD, JJ.

WALLACE, P.J. (concurring in part and dissenting in part).

As stated in the majority opinion, defendant is charged with the open murder and involuntary manslaughter of Baby Garnet. This interlocutory appeal does not address the substantive merits of those charges or the implications of defendant’s conduct during and after giving birth. Rather, this appeal is narrowly limited to the admissibility of statements she made to two police officers including confessing to being Baby Garnet’s mother, disposing of the infant’s body, and other conduct during the pregnancy, as described later in this opinion. For the reasons discussed below, I agree with the trial court’s determination that defendant’s confession at her second interview followed a valid waiver of her Fifth Amendment rights. However, I disagree that statements made in her first interview with police are admissible, and I disagree with the trial court’s determination that two matters defendant disclosed to law enforcement are admissible under the Michigan Court Rules.

Therefore, I concur with the majority’s finding that certain statements made by defendant in her second interview with police, i.e., her confession, are admissible in this case because she was not in custody at the time of her confession. However, because defendant was in custody at the time of her first interview with police, I respectfully dissent from the majority’s finding that statements made in defendant’s first interview are admissible. Also, because the statements that she did not obtain prenatal care are irrelevant to the issues in this matter, such evidence should be suppressed because it does not meet the requirements of MRE 401. To the extent that such evidence can be argued to have some marginal relevance to any issue in this case, I would find that the probative value of such evidence is substantially outweighed by the danger of unfair prejudice under MRE 403. With regard to the issue of defendant having previously considered

-1- getting an abortion, I would likewise hold that any marginal relevance of that evidence is even more substantially outweighed by the danger of unfair prejudice under MRE 403 than the statements regarding lack of prenatal care. As a result, I respectfully dissent from the majority opinion’s finding that such evidence is admissible.

I. BACKGROUND FACTS As indicated in the majority opinion, approximately 25 years after Baby Garnet’s remains were found, two Michigan law enforcement officers made use of recent advances in DNA technology to identify defendant as the probable mother. They traveled to defendant’s home state of Wyoming and, along with two local officers, appeared at defendant’s home and asked her to come to the local sheriff’s office to discuss an investigation that they did not identify. Defendant invited the officers inside her home, and they then informed her that they knew she was Baby Garnet’s mother. They additionally stated that there were two categories of people in her situation, those who had made a bad decision and was those who were monsters. They asked her to agree that she was Baby Garnet’s mother. Defendant initially refused to say anything and was reluctant to go with the officers to the sheriff’s office, citing her need to have her son care for her dog. She asked the officers if she had a choice and the officers refused to answer her question. Instead, they reiterated that they wanted defendant to tell her story, and they refused to let her contact her son until she knew whether she would join them. Defendant expressed the belief that she had no choice, which the officers denied, but they told her there was a “part two” or a “flip side.” When defendant asked them to explain, they again refused, told her that she was “not the one in the driver’s seat,” and again asked her if she would come with them. They eventually told her that she had a legal right to refuse, and they let her bring her dog into the house. When she asked to be allowed to go to another room to put on pants, they refused to allow her to leave their presence, and followed her to the other room, where she put on a pair of pants. They also would not allow her to take her purse until they first searched it. They then transported her to the sheriff’s office.

At the station, after being read her Miranda1 rights, defendant stated that she understood her rights and did not wish to speak. As explained in the majority opinion, when defendant asked about whether there was an attorney for her, the officers told her she was not entitled to a court- appointed attorney until she was arrested. After officers executed a search warrant to obtain her DNA, defendant was taken home.

A few hours later, defendant reached out to speak to the officers and was brought back to the sheriff’s office. After the officers again read defendant’s Miranda rights to her, told her that she did not need to speak, and invited her to tell them about Baby Garnet, the following conversation occurred: Defendant: Okay. Then I do have a question in how come I couldn’t have an attorney present.

Umbarger: We don’t bring attorneys with us. That’s your--

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

-2- Defendant: Okay.

Umbarger: Responsibility. You know, and I think Det. Demers gave you that explanation.

Defendant: Yeah.

Umbarger: You get--you get granted one through the court process. We’re not there--you’re not under arrest.

Defendant: No, I understand that.

Umbarger: Yeah, so--so until we get to that point, you know [inaudible] he could’ve come today as far as I--I don’t know, right, it’s attorney-client privilege. You may have gone home and spoke to three attorneys today. I don’t know.

Defendant: No, I didn’t speak to-- Umbarger: I don’t know, but it’s within your rights.

Demers: Yeah. Okay. So then, again, are you willing to give up these rights and answer my questions at this time, if we have any questions to follow up with after- -after you talk?

Defendant: I guess, yeah.

As detailed in the majority opinion, defendant admitted during the second interview that she was Baby Garnet’s mother and explained various details related to her pregnancy, including the fact that she had thought about getting an abortion. She admitted to having given birth to the infant under the circumstances described in the majority opinion and was subsequently arrested.

II. ADMISSIBILITY OF DEFENDANT’S CONFESSION Defendant first argues that her confession should be excluded because it was obtained in violation of her Fifth Amendment rights. While I agree that anything she said while in her home should be excluded because she was subjected to a custodial interrogation without the benefit of Miranda warnings, her eventual confession during the second interview at the sheriff’s office was valid and is admissible.

If the police interrogate a person who is in custody, the police must inform the person of their Miranda rights. People v Clark, 330 Mich App 392, 415-416; 948 NW2d 604 (2019). A person is “in custody” if the objective circumstances would make a reasonable person feel that “he or she was not at liberty to terminate the interrogation and leave.” People v Barritt, 325 Mich App 556, 562; 926 NW2d 811 (2018) (quotation marks and citation omitted). The relevant circumstances to be considered are (1) the location of the questioning; (2) the duration of the questioning; (3) statements made during the interview; (4) the presence or absence of physical

-3- restraints during the questioning; and (5) the release of the interviewee at the end of the questioning. [Id. at 562-563 (ellipses and citations omitted).] “[N]o one circumstance is controlling; rather, a reviewing [c]ourt must consider the totality of the circumstances when deciding whether an individual was subjected to custodial interrogation . . . .” Id. at 563.

A. INTERVIEW AT HOME AND FIRST INTERVIEW AT THE POLICE STATION Usually, an interview in a person’s own home is regarded as noncustodial. People v Coomer, 245 Mich App 206, 220; 627 NW2d 612 (2001). However, the location of an interview is not dispositive. Barritt, 325 Mich App at 562-569. Here, there is no evidence that the officers ever displayed any weapons or threatened defendant, and none of her interviews were lengthy.

However, during the interview in defendant’s home, she was alone and surrounded by four law enforcement officers who refused to let defendant call her son. Such “isolation may contribute to a coercive atmosphere by preventing family members, friends, and others who may be sympathetic from providing either advice or emotional support” and can contribute to the individual feeling not at liberty to remain silent or end an interview. Howes v Fields, 565 US 499, 512-513; 132 S Ct 1181; 182 L Ed 2d 17 (2012). Here, the officers were accusatory, which weighs in favor of finding that defendant was in custody. Barritt, 325 Mich App at 573. The officers eventually told defendant that she could refuse to come with them, but only after initially refusing to answer whether she had a choice and telling her that she was not “in the driver’s seat.” More importantly, after making that statement, police then refused to allow defendant to go by herself to another room to put on a pair of pants, instead insisting that she be accompanied. When she said she was going to get her purse, they refused to allow her to bring the purse unless they searched it first.

Their conduct, which communicated that defendant had no real choice, speaks louder than their words. Cf. People v Swilley, 504 Mich 350, 390-392; 934 NW2d 771 (2019) (finding prejudicial effect of bias displayed by trial judge throughout the trial was not overcome by curative instruction where “the judge’s words repeatedly conflicted with his actions”).

Finally, coercion can be psychological. People v Stewart, 512 Mich 472, 480-481; 999 NW2d 717 (2023). The officers arrived unannounced, refused to answer defendant’s questions, and repeatedly demanded that she decide what to do immediately and without letting her contact her son. In other contexts, demanding an immediate decision has been recognized as coercive or stressful. Payne v Cavanaugh, 292 Mich 305, 308; 290 NW 807 (1940) (finding no duress where party to a contract had “ample time and opportunity for investigation, consideration, consultation, and reflection”); Kosch v Traverse City Area Pub Sch, ___ Mich App ___, ___, ___; ___ NW3d ___ (2024) (Docket No. 364955); slip op at 10, 12 (failing to provide a reasonable amount of time to choose whether to resign is relevant to whether the resignation was involuntary); Tennessee Secondary Sch Athletic Ass’n v Brentwood Academy, 551 US 291, 297-299; 127 S Ct 2489; 168 L Ed 2d 166 (2007) (noting that the prospect of pressuring a potential client or student for an immediate response is one reason why the First Amendment permits states to regulate in-person solicitation of clients by attorneys and solicitation of eighth-grade students for sports teams by coaches). Law enforcement officers surprising a suspect and demanding an immediate decision whether to confess, especially when the officers know that the defendant has no experience with law enforcement, is similarly coercive.

-4- Considering all of the factors from Barritt, and the totality of the circumstances in this case, I would find that an ordinary reasonable person, surrounded by four police officers in her home, accused of a serious crime, told she was not allowed to call a family member, and that she was not free to go into another room to get dressed by herself, would feel that she was not free to terminate the interrogation and leave. Barritt, 325 Mich App at 562. The fact that the person, when preparing to leave, was not even permitted to bring her purse without it first being searched by police would bolster that belief. Thus, I would hold that the trial court erred by finding that defendant was not in custody during the interview in her home.

Defendant was also in custody during her first interview at the sheriff’s office. Having been removed from her home, after first having her purse searched, and taken to a police station by the local detectives weighs heavily in favor of a finding of being in custody for Miranda purposes. Barritt, 325 Mich App at 565-566. Even presuming the door to the interview room was unlocked, the officers sat between defendant and the door, id. at 567-568, and they never told her that it was unlocked or that she could leave, id. at 570. A reasonable person would not have believed he or she was at liberty to end the interview and leave. Nevertheless, defendant invoked her rights, the officers honored that invocation of her rights, and defendant arguably said nothing incriminating.

B. SECOND INTERVIEW AND CONFESSION I agree with the majority that defendant voluntarily reinitiated contact with police, hours after they returned defendant to her home. I further agree with the majority’s determination that police gave defendant an erroneously limited explanation of the extent of her right to counsel under the Fifth Amendment when it told her she was not entitled to appointed counsel for the purposes of questioning.

However, in contrast to her first two interactions with the officers, defendant was not in custody the second time she was at the sheriff’s office, considering the totality of the circumstances. Barritt, 325 Mich App at 563. Thus, I agree with the majority’s holding that the officers did not need to provide defendant with Miranda warnings prior to her confession during the second interview, meaning that their flawed Miranda warnings did not violate defendant’s Fifth Amendment rights.

In summary, although I believe any statements defendant made in her home or during her first interview at the station should be excluded, I believe that the trial court correctly declined to exclude defendant’s confession in its entirety.

III. EVIDENCE OF SPECIFIC CONDUCT DURING DEFENDANT’S PREGNANCY I disagree with the majority’s holding that defendant’s statements that she did not obtain prenatal care are relevant to issues in this case under MRE 401. But, even if such evidence was marginally relevant, I would hold that the probative value of such evidence is substantially outweighed by the danger of unfair prejudice under MRE 403. With regard to defendant’s statement concerning her having considered getting an abortion, unlike the majority I would hold that the statement is inadmissible because any arguable relevance is even more substantially outweighed by a danger of unfair prejudice than the statements regarding prenatal care.

-5- The threshold for relevance, and therefore admissibility, under MRE 401 is minimal.

People v Crawford, 458 Mich 376, 389-390; 582 NW2d 785 (1998). “Although motive is not an essential element of the crime, evidence of motive in a prosecution for murder is always relevant.”

People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008). Evidence amounting to nothing more than speculation is irrelevant and therefore inadmissible. People v McFarlane, 325 Mich App 507, 529-530; 926 NW2d 339 (2018); Unger, 278 Mich App at 248-249; People v McCracken, 172 Mich App 94, 97-99; 431 NW2d 840 (1988). Proof beyond a reasonable doubt may be established by circumstantial evidence, “but the circumstantial proof must facilitate reasonable inferences of causation, not mere speculation.” People v Xun Wang, 505 Mich 239, 251; 952 NW2d 334 (2020) (quotation marks and citation omitted). “[F]or a causation theory to be raised from the realm of the possible to the probable, there must be evidence in the record that provides a basis for the trier of fact to reasonably infer that such a theory is not only possible, but probable.” People v Burton, 252 Mich App 130, 144-145; 651 NW2d 143 (2002), citing Skinner v Square D Co, 445 Mich 153, 164-165; 516 NW2d 475 (1994).

Evidence is inadmissible under MRE 403 if its probative value is substantially outweighed by a danger of unfair prejudice. All relevant evidence offered against a party will obviously be prejudicial to some extent. People v Fisher, 449 Mich 441, 451; 537 NW2d 577 (1995). It is only unfairly prejudicial if it tends to inject “considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock” or if “there is a danger that the evidence will be given undue or preemptive weight by the jury or where it would be inequitable to allow use of the evidence.” People v Thurmond, 348 Mich App 715, 730-731; 20 NW3d 311 (2023) (quotation marks and citations omitted). Evidence of other conduct is admissible under MRE 404(b) if it is truly “probative of something other than the defendant’s propensity to commit the crime.”

Crawford, 458 Mich at 390. Although a chain of inferences upon inferences is permissible, People v Hardiman, 466 Mich 417, 427-428; 646 NW2d 158 (2002), that chain may not depend upon or be employed to create an impermissible character inference, People v Denson, 500 Mich 385, 407- 408; 902 NW2d 306 (2017).

A. LACK OF PRENATAL CARE I first observe that the prosecution misrepresents defendant’s statements by saying that defendant chose not to obtain any prenatal care or refused to obtain prenatal care. Her statements only establish that she did not obtain prenatal care, and they strongly suggest that she had little practical ability to obtain prenatal care or was simply paralyzed by indecision. There is a right to refuse medical treatment. In re Martin, 450 Mich 204, 216-217; 538 NW2d 399 (1995). It is also a matter of common knowledge that many people forgo medical care for many reasons, including simple neglect, distrust of doctors, or lack of access to transportation.

The trial court relied on an unpublished Maryland Court of Appeals case that was subsequently overturned by that state’s supreme court. The Maryland Supreme Court observed that “the unfortunate reality is that forgoing obstetrical care is not uncommon,” often because it is simply not available, and that the failure to obtain prenatal care may elicit improper biases. Akers v State, 490 Md 1, 48; 331 A3d 853 (2025). Similar to our state’s jurisprudence, evidence that requires “a speculative chain of inferences” lacks probative value and is irrelevant in Maryland.

Id. at 26-27. The Akers Court held that, by itself, “[i]t is too ambiguous, speculative, and equivocal to infer that a woman who foregoes prenatal care while pregnant is more likely to kill or harm a

-6- live human being.” Id. at 48-49. I agree. Defendant had no obligation to obtain prenatal care, could plausibly have had no ability to obtain prenatal care, and might have foregone prenatal care for any number of reasons—none of which are more likely than any other. Yet, evidence of failing to obtain prenatal care is likely to result in a jury giving undue weight to impermissible speculation that defendant formed the mens rea for one of the charged crimes. Burton, 252 Mich App at 144- 145; Thurmond, 348 Mich App at 730-731. The fact that defendant did not obtain prenatal care is equally consistent with a variety of other potential explanations such as panic-induced paralysis, lack of access to transportation or health insurance, or disliking the available doctor. It is not relevant to any material fact under MRE 401, and it is speculative and therefore inadmissible under MRE 402. Further, any conceivable probative value is substantially outweighed by a danger of unfair prejudice. MRE 403. The trial court abused its discretion by failing to exclude the evidence that defendant did not obtain prenatal care.

B. CONSIDERATION OF ABORTION The prosecution also argues that evidence that defendant contemplated an abortion is probative of her motive, state of mind, and intent to kill Baby Garnet.

This Court has held that the “existing strong and opposing attitudes concerning the issue of abortion clearly make any reference thereto potentially very prejudicial,” rendering such evidence inadmissible when it had only marginal probative value. People v Morris, 92 Mich App 747, 750-751; 285 NW2d 446 (1979).2 Our Supreme Court has held that evidence that a person obtained an abortion “is not so inherently prejudicial in today’s society as to render it inadmissible.” People v Sharpe, 502 Mich 313, 333; 918 NW2d 504 (2018). However, in Sharpe, the victim’s pregnancy and abortion were highly relevant to whether the defendant assaulted the victim, and our Supreme Court recognized that the evidence had potential for unduly swaying the jury. Id. at 331-334. Thus, Sharpe does not conflict with Morris. Everyday experience shows that the issue of abortion remains impactful and emotional. It carries a high potential for significant unfair prejudice, so its probative value must be more than marginal.

In this case, the prosecutor will have to present evidence to establish that defendant had the requisite mens rea for first-degree murder, second-degree murder, or manslaughter. Because of the strong views prevalent on this issue, there is a substantial danger that jurors will give undue or preemptive weight to the otherwise marginally relevant evidence that defendant contemplated having an abortion when considering whether she had the requisite mens rea for one of these crimes. People v Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995), mod on other grounds 450 Mich 1212 (1995). Contrary to the trial court’s determination, it is also not clear that the parties would be able to safeguard defendant’s rights through voir dire and a jury instruction on the proper inferences to be drawn.

The defendant’s murder conviction in Morris was overturned, in part, due to the admission of evidence that she had previously undergone abortions. Balancing the two factors in MRE 403, this Court found that the evidence weighed “heavily towards prejudice with a minimum of probative value.” Morris 92 Mich App at 751.

-7- Multiple jurisdictions have squarely rejected the proposition that evidence of a mother considering an abortion or previously obtaining an abortion is relevant to a prosecution against a mother for murdering her child. People v Ege, unpublished per curiam opinion of the Court of Appeals, issued September 17, 1996 (Docket No. 173448), p 20; Akers, 490 Md at 38-40; Stephenson v State, 31 So 3d 847, 851 (Fla App, 2010); People v Ehlert, 274 Ill App 3d 1026, 1034-1035; 654 NE2d 705 (1995).3 Once again, the trial court in the present case relied upon the Maryland Court of Appeals decision in Akers, in which the defendant was convicted of child abuse and murder after she delivered a baby at home. The defendant told first responders that she was not pregnant when they arrived to help her with severe vaginal bleeding. She later admitted to medical professionals that she had delivered a baby, but she claimed that the baby was not alive when born. She told the medical personnel that she put the baby in a bag and placed it in a closet. Akers, unpublished opinion of the Maryland Court of Appeals, issued January 30, 2024 (Case No. C-13-CR-19- 000367), p 1. On appeal, the Maryland Court of Appeals found that evidence demonstrating the defendant searched the internet about abortions was relevant because there was other evidence that the defendant wanted to conceal the pregnancy. It determined that the evidence that the defendant searched for information on abortions was relevant to show that she was more likely to kill her baby immediately after birth to help conceal her pregnancy. Id. at 10-13. But the Maryland Supreme Court reversed the appellate decision and remanded the case for a new trial. Akers, 490 Md at 50. It held that the evidence that the defendant had searched for information about procuring an abortion months earlier was not relevant to show the defendant’s intent to kill: Simply put, the predicate fact—lawfully contemplating the termination of a pregnancy—does not support the inferences advanced by the State—an intent, plan, or motive to kill or harm a person. The State’s argument begs the question of how Ms. Akers’ internet searches made it more likely that she had a homicidal intent toward a living newborn, unless one assumes that a person who researches abortion options is more likely to commit murder or harm a person. [Id. at 38-39.]

The Maryland Supreme Court also did not agree that the searches were relevant to establish second-degree murder or child abuse. It explained that the chain of inferences was “too speculative, ambiguous, and equivocal to support an inference that [the defendant] had the specific intent to kill or harm a live baby, or even that she generally did ‘not have a plan’ if the baby was born alive, simply because she researched abortion options many months prior to delivery.” Id. at 40. It also held that the evidence was not relevant to challenge the defendant’s credibility because

Bynum v Arkansas, 2018 Ark App 201; 546 SW3d 533 (2018), is also notable. Although the defendant in that case arising from a stillborn birth was not charged with murder, she was convicted by a jury of concealing a birth in violation of Arkansas law after just four minutes of deliberation.

The Arkansas Court of Appeals held that evidence of prior abortions by the defendant, as well of evidence of her ingestion of pharmaceutical drugs prior to delivery, were not relevant to the issue of whether she concealed the birth, and that any probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Bynum, 2018 Ark App 201 at 13-14.

-8- a months’ earlier search did not make it less likely that she intended to deliver the child and give it to a safe haven. Id. at 44.

Unlike the majority, I find that the present case is factually indistinguishable from Akers, in which the Supreme Court of Maryland found that a defendant’s having considered an abortion many months prior to the birth of the child is not relevant to any issue in a murder case. But, to the extent that defendant’s consideration of abortion months prior might arguably have some marginal logical relevance, its probative value is substantially outweighed by a danger of unfair prejudice. See Morris, 92 Mich App at 750-751; MRE 403. Thus, I respectfully dissent from the majority opinion’s holding on this issue and would hold that the trial court abused its discretion in failing to exclude this evidence.

/s/ Randy J. Wallace

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