STATE OF MICHIGAN IN THE 86™ DISTRICT COURT FOR THE COUNTY OF GRAND TRAVERSE. THE PEOPLE OF THE STATE OF MICHIGAN, PLAINTIFF, v FILE NO. 15-0919-ST ALYSSA MICHELE GOCH, HON. THOMAS J. PHILLIPS Kit Tholen (P76948) Assistant Prosecuting Attomey 324 Court Street Traverse City, MI 49684 (231) 922-4600 Jesse L. Williams (P69264) Atomey for Defendant 2899 Benzie Hwy. — PO Box 30 Benzonia, MI 49616 (231) 929-8340 / PEOPLE’S MOTION TO QUASH SUBPOENAS. Defendant has notified The People that she intends to call 12 witnesses at trial. Six of these witnesses are known to The People because Defendant asked for—and was provided— assistance in locating these witnesses. Five of these six are former MDOT employees; the last is a witness already subpoenaed by The People—Deputy Sarah Metdepenningen. The other six proposed defense witnesses have been identified through a conversation that undersigned counsel had with James Lake, the MDOT communications representative. Mr. Lake, who has ‘been subpoenaed by Defendant, states that he, Rick Liptak, Dave Pax, David McCaw, Margaret Szajner (pronounced like “Shiner”), and Gary Niemi have been subpoenaed. All six of those 1people are current MDOT employees. ‘This Motion is filed to quash the subpoenas of ten of these twelve people. These men and women are listed below, with a short explanation of what their testimony is anticipated to be and why The People believe that testimony would not be admissible. The People believe that a pretrial ruling on the testimony of these witnesses is required 10 allow the parties to prepare for trial and to prevent inadmissible evidence from being discussed during voir dire and the opening statements. Furthermore, itis believed that Defendant would be seeking to admit opinion testimony from these witnesses. If that is the case, The People feel itis necessary to have Defendant declare this so that the foundations of that proposed testimony can be explored. Lastly, it is requested that Defendant provide the names of any additional witnesses, ‘The Former MDOT Employees ‘The five former MDOT employees that Defendant has subpoenaed are: Richard L. Blost, Kurt L. Kunde, Bruce A. Conradson, John Kazenko, and Pascuel Tormen. The substance of each man's testimony, based on FOIA documents obtained by Defendant, is provided below. Following that is argument related to why each man’s testimony should be held inadmissible 1. Mr. Blost: On February 4", 1986 Mr. Blost authored 2 memorandum related to the M-37 curves which states, in part, “although this analysis does not reveal extraordinary numbers of accidents, the severity and uncommon number of loss of control type accidents warrants consideration of safety improvements, We suggest operational improvements.” This is not an opinion related to whether there is a defect in the roadway. There "This Memorandum is Exhibit 1 to Defendant's Response to The People's Motion in Limine to Preclude Evidence Pursuant to MRE 402. nyare multitudes of roadways in the State and County which “warrant consideration of safety improvements”—including intersections in Grand Traverse County where there are more crashes and more injuries than M-37 and Center Rd, Lastly, and very importantly, it seems that improvements have been made to M- 37 since the date that Mr. Blost authored the memorandum. In 1992 Mr. Kunde authored ‘a memorandum which states that “accidents have decreased significantly in the most recent five years compared to the previous five years, possibly as a result of chevron signs placement.”” So not only did Mr. Blost not provide a relevant opinion, but such an opinion would be based on stale data and a roadway that no longer exists as it did in 1986. The People do not believe that he can offer evidence that is relevant to the roadway’s condition on August 2", 2015 and thus should be held inadmissible. 2. Mr. Kunde: Mr, Kunde authored two memorandums in 1992 which were provided to Defendant through FOIA. In the first of these Mr. Kunde performed a Cost-Benefit Analysis related to the cost of changes to the roadway and possible benefits. In the first of these memorandums he stated that “aecidents have decreased significantly in the most recent five years compared to the previous five years, possibly as a result of chevron signs placement. Nowhere in either memorandum does he say that he believes the roadway to be defective; the closest thing he does is term roadway changes to be “safety projects.” ‘When he does this, however, he is discussing seven other proposed “safety projects” in 2 Page 2 ofthe memorandum which is Exhibit 9 to Defendant's Response to The People’s Motion in Limine to Preclude Evidence Pursuant to MRE 402. id. “Exhibit 10 to Defendant's Response to The People’s Motion in Limine to Preclude Evidence Pursuant to MRE 402.the Grand Traverse region; four of the seven “safety projects” that he listed are in Grand ‘Traverse County (the others were US. 1 from Chums to 8. Airport, US-31 “from ‘Townhall Rd northerly to Silver Lake Rd.,” and a widening of US-31 through Traverse City), This testimony does not comprise an admissible opinion. 3. Mr, Conradson: Mr. Conradson authored two memorandums related to the M-37 and Center Rd, curves: one in 1986 and one in 1992.5 The first of these discusses “a recommended realignment of one or both of the sharp curves within the subject arca.” ‘The memorandum goes on to state that in order to “properly evaluate a variety of realignment altematives,” more information—such as a flyover and creation of a topographic map—is needed. The second memorandum discusses cost-benefit analyses of changes to the roadway; his conclusion is that “all things considered it is time to review the merits of funding a project that could be expected to produce a degree of benefit in comparison to Similar to the other MDOT employees from the 1980’s, this is nowhere near an. ‘expert opinion that the roadway was defective on August 2”, 2015. Consequently The People do not believe that Mr. Conradson can provide admissible testimony. 4. Mr. Kazenko: In 1986 Mr, Kazenko authored a memorandum which described the results of “a feasibility study for alignment corrections on M-37."* He developed two alternatives: “Mattening existing curves” and “diagonal relocation.” He did not make any recommendations related to the roadway and he did not in any way declare the roadway * Exhibits 2 and 8 to Defendant's Response to The People’s Mation in Limine to Preclude Evidence Pursuant to MRE 402. “Exhibit 3 to Defendant's Response to The People's Motion in Limine to Preclude Evidence Pursuant to MRE 402. 4to be defective. ‘nce is not an admissible opinion and it is not The People contend that such e1 relevant to whether M-37 was defective on August 2", 2015. Mr. Tormen: Mr. Kazenko told Sergeant Jim Drogowski of the Grand Traverse Sheriff's Department that Mr. Tormen has passed away. No contact information for Mr. Tormen has been obtained. Deputy Metdepenningen 6. Deputy Metdepenningen has been subpoenaed by The People to describe her involvement in the investigation of Defendant’s crash. A subpoena was provided by Defendant asking that Deputy Metdepenningen be present at trial and provide “All police reports and any other documentation or evidence regarding the PDA, PIA and FATAL crashes itemized within the attached CRASH DATA SM37/ W CENTER RD 2005-2015 document.” The People contend that crashes which occurred prior to August 2", 2015, are not relevant to the trial of Defendant, Consequently The People ask that Defendant's subpoena duces tecum be quashed. Current MDOT Employees Six other proposed defense witnesses were leamed when undersigned counsel contacted MDOT on January 27th, The People only seek to quash four of these subpoenas; an explanation for this request is provided below. The other two witnesses are also listed with a brief synopsis, of their anticipated testimony. 7, James Lake: Mr. Lake is the MDOT Communications Representative for Northen Lower Michigan. He states that he has no personal knowledge related to the safety of M-37. He also states that he does not feel that the safety of the roadway is an issue upon which he is qualified to provide an opinion. Mr, Lake did say that, as Communications Representative, he has knowledge that a higher fri ion surface was applied to a portion of M-37 after Defendant's fatal crash. This surface application was planned before Defendant's crash—it was not a response to her crash. The People contend that this evidence is inadmissible for at least two reasons; first, the relevant inquiry is the roadway conditions on August 2", not after, and second, such evidence is precluded by MRE 407. ‘chard Liptak: Mr. Liptak is the Manager of the MDOT Traverse City Service Center. Undersigned counsel spoke with him on January 28" and he states that in his opinion M- 37 in the vieinity of Center Rd. is “reasonably safe for travel.” He states that, in his, opinion, it was “reasonably safe for travel on August 2". He states that, in his opinion, it is “reasonably safe for travel for southbound vehicles on wet roads.” He states that, in his opinion, the roadway js “not defective in any we Listed below are several engineers who operate out of MDOT’s Traverse City location, If Defendant wishes to call an expert witness who will say that M-37 at Center Ra, is reasonably safe for travel, was safe on August 2", is safe on wet roads, and is not defective in any way, then she should locate one of the others (Ms. Szajner or perhap: Mr. Niemi) who would be a more appropriate expert. Dave Pax: Mr. Pax is the Construction Engineer at the MDOT Traverse City Transportation Service Center. Undersigned counsel spoke with him on January 28" and he states that in his opinion M-37 in the vicinity of Center Rd. is “reasonably safe for travel.” He states that, in his opinion, it was “reasonably safe for travel on August 2."He states that, in his opinion, itis “reasonably safe for travel for southbound vehicles on wet roads.” He states that, in his opinion, the roadway “is not defective in any way.” Mr. Pax states that he primarily oversees construction on roadways. As such, whether an existing stretch of road is defective is not necessarily in his job description. Consequently, if Defendant wishes to call an expert witness who will say that M-37 at Center Rd. is reasonably safe for travel, was reasonably safe on August 2", is safe for southbound vehicles on wet roads, and is not defective in any way, she should locate one of the others (Ms. Szajner or perhaps Mr. Niemi) who would be a more appropriate expert, Mr. Pax does have knowledge of the application of the higher-friction surface near the location of Defendant's crash, which occurred after the crash. As stated above, The People do not believe that this is a relevant topic of discussion at Defendant’s tril. 10. David MeCaw: Mr. McCaw is the Assistant Construction Engineer at the MDOT Traverse City Transportation Service Center. Undersigned counsel spoke with him on January 28" and he states that in his opinion M-37 in the vicinity of Center Rd. is “reasonably safe for travel.” He states that, in his opinion, it was “reasonably safe for trayel on August 2". He states that, in his opinion, it is “reasonably safe for travel for southbound vehicles on wet roads.” He states that, in his opinion, the roadway “is not defective in any way.” Mr. McCaw states that he primarily works with roadway construction, As such, whether an existing stretch of road is defective is not necessarily in his job description. Consequently, if Defendant wishes to call an expert witness who will say that M-37 at Center Rd. is reasonably safe for travel, was safe on August 2, is safe on wet roads forsouthbound vehicles, and is not defective in any way, she should locate one of the others (Ms. Szajner or perhaps Mr. Niemi) who would be a more appropriate expert, Mr. MeCaw does have knowledge of the application of the higher-friction surface near the location of Defendant's crash, which occurred after the crash, As stated above, The People do not believe that this is a relevant topic of discussion at Defendant’s trial 11. Gary Niemi: Mr is the Operations Engineer at the MDOT Traverse City Service Center. Undersigned counsel spoke with him on January 28” and he states that in his opinion M-37 in the vicinity of Center Rd. is “reasonably safe for travel.” He states that, in his opinion, it was “reasonably safe for travel on August 2°.” He states that, in his opinion, it is “reasonably safe for travel for southbound vehicles on wet roads.” He states that, in his opinion, the roadway “is not defective in any way.” Undersigned counsel did not clarify with Mr. Niemi what his job description is. So it is possible that Mr. Niemi is an appropriate expert for Defendant to call to testify that, in his expert opinion, the M-37 roadway is reasonably safe for public travel, was safe on August 2", is safe on wet roads for southbound vehicles, and is not defective in any way, Margaret Szajner: Ms, Szajner is the Transportation Engineer in the Traffic and Safety section of the MDOT Traverse City Transportation Service Center. Undersigned counsel spoke with her on January 28" and she states that in her opinion M-37 in the vieinity of Center Rd. is “reasonably safe for travel.” She states that, in her opinion, it was “reasonably safe for travel on August 24.” She states that, in her opinion, it is “reasonably safe for travel for southbound vehicles even on wet roads.” She states that, in her opinion, the roadway “is not defective in any way.”If Defendant wishes to call an expert witness who will say that M-37 at Center Rd. is reasonably safe for travel, was reasonably safe on August 24, is safe for southbound vehicles on wet roads, and is not defective in any way, then Ms. Szajner would be an appropriate expert. In fact, The People may call Ms. Szajner as a witness to testify to the above opinions. If Defendant is seeking to call witnesses other than the twelve listed above, itis respectfully requested that he disclose those names. The People respectfully request that This Court rule that the testimony of the following ten witnesses is inadmissible: Mr. Richard Blost, Mr. Kurt Kunde, Mr. Bruce Conradson, Mr. John Kazenko, Mr. Pascuel Tormen, Mr. James Lake, Mr. Richard Liptak, Mr. David Pax, and Mr, David McCaw. The People also request that This Court rule that testimony regarding prior crashes near M-37 and Center Rd.—ineluding statistics known by Deputy Sarah Metdepenningen—be held inadmissible. If This Court finds that the testimony would not be admissible, The People respectfully request that Defendant's subpoenas be quashed. Respectfully submitted, January 28, 2015 Za L Kit Thoten (P76948) Assistant Prosecuting Attomey Grand Traverse CountySTATE OF MICHIGAN IN THE 86" DISTRICT COURT FOR THE COUNTY OF GRAND TRAV! THE PEOPLE OF HE STAT OF MICHIGAN, PLAINTIFF, File No.: 15-0919-ST Hon. Thomas J. Phillips 7 ALYSSA MICHELE GOCH, PROOF OF SERVICE DEFENDANT KIT THOLEN (76948) Assistant Prosecuting Attorney 324 Court Street Traverse City, MI 49684 (231) 922-4600 JESSE L. WILLIAMS (P69264) Attorney for Defendant P.O. Box 30 Benzonia, MI 49616. (231) 929-8340 ! certify that on the date below, I served a copy of PEOPLE’S MOTION TO QUASH SUBPOENAS, via e-mail, upon Jesse L. Williams, Attomey for Defendant, at jlwdefense@gmail.com I declare that the statements above are true to the best of my information, knowledge and belief, January 28, 2016 E S Nancy E. Selllacek, Misd Legal Secretary Grand Traverse County Prosecutor's Office 324 Court Street Traverse City, MI 49684 (231) 922-4601