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People v. Kennedy

Supreme Court of Michigan

June 29, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
JOHNNY RAY KENNEDY, Defendant-Appellant.

          Argued on application for leave to appeal December 6, 2017.

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         Syllabus

         Johnny R. Kennedy was convicted following a jury trial in the Wayne Circuit Court, Craig S. Strong, J., of first-degree premeditated murder. In November 1993, the body of Tanya Harris was discovered in an abandoned building in Detroit. The cause of death was strangulation. Attempts to find Harris's murderer stalled for nearly two decades until 2011, when various swabs taken from Harris's body were tested. The swab from Harris's left fingernail included a mixture of DNA profiles-from Harris and three male donors. Defendant's DNA profile matched the major donor's. Vaginal and rectal swabs taken from Harris also matched defendant's DNA profile. By this time, defendant was already incarcerated for having admitted to strangling another woman in 1996 under similar circumstances. Defendant was charged with Harris's murder, and defense counsel requested the appointment of Brian Zubel as a DNA expert to help understand the evidence, although counsel did not expect Zubel would testify at trial. The court denied defendant's request, and defendant was convicted. Defendant appealed, arguing that the trial court's denial of his motion to appoint an expert violated his constitutional right to present a defense. In an unpublished per curiam opinion issued July 26, 2016, the Court of Appeals, Murray, P.J., and Riordan, J. (Stephens, J., dissenting), affirmed defendant's conviction and found no abuse of discretion or constitutional error in the trial court's denial of defendant's request for an expert. The majority noted that defendant did not provide enough evidence that an expert would have aided the defense, as required by MCL 775.15 and People v Tanner, 469 Mich. 437 (2003), nor did defendant raise any specific concerns with the evidence. The dissent concluded that the trial court's refusal to appoint an expert violated defendant's due-process rights because defendant could not know the inherent concerns with the DNA evidence without an expert's assistance. Defendant sought leave to appeal, and the Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 500 Mich. 978 (2017).

         In a unanimous opinion by Justice Viviano, the Supreme Court, in lieu of granting leave to appeal, held:

         The due-process analysis set forth in Ake v Oklahoma, 470 U.S. 68 (1985), governs the issue whether a criminal defendant is entitled to the appointment of an expert witness at government expense; because MCL 775.15 does not encompass requests by an indigent criminal defendant for the appointment of an expert at government expense, People v Jacobsen, 448 Mich. 639 (1995), and People v Tanner, 469 Mich. 437 (2003), were overruled to the extent that they held or suggested to the contrary; the reasonable-probability standard set forth in Moore v Kemp, 809 F.2d 702 (CA 11, 1987), is the appropriate standard for courts to apply in determining whether an indigent criminal defendant has made a sufficient showing to be entitled to expert assistance at government expense under Ake's due-process analysis.

         1. In Ake, the United States Supreme Court set forth the due-process analysis that a court must follow when an indigent criminal defendant claims he or she has not been provided the basic tools of an adequate defense and therefore has not been given an adequate opportunity to present his or her claims fairly within the adversarial system. Ake's due-process analysis considers: (1) the private interest that will be affected by the action of the state, (2) the governmental interest that will be affected if the safeguard is to be provided, and (3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. Ake applied this analysis in the context of a request for the assistance of a psychiatric expert in order to present an insanity defense and held that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense. However, Ake's due-process analysis is not limited to psychiatric experts or capital cases. Accordingly, Ake's due-process analysis governs the issue whether a criminal defendant is entitled to the appointment of an expert witness at government expense.

         2. MCL 775.15, which provides a means for subpoenaing certain witnesses and for paying their cost of attending trial, does not, by its express terms, provide for the appointment of expert witnesses. Moreover, MCL 775.15 falls short of the constitutional standard set forth in Ake, which clearly requires the assistance of an expert in conducting an appropriate examination and in the evaluation, preparation, and presentation of the defense. However, Jacobsen and Tanner relied on MCL 775.15 to hold that a defendant must show a nexus between the facts of the case and the need for an expert and that without an indication that expert testimony would likely benefit the defense, it was not error to deny without prejudice the motion for appointment of an expert witness. While both Jacobsen and Tanner applied MCL 775.15, neither opinion specifically addressed whether that statute was applicable to requests by an indigent defendant for the appointment of an expert. Additionally, neither opinion cited Ake or applied its due-process framework in determining whether a trial court should grant a request by an indigent criminal defendant for the appointment of an expert witness, nor did either opinion attempt to distinguish Ake. Because the Legislature did not intend MCL 775.15 to encompass requests by an indigent criminal defendant for the appointment of an expert at government expense, Jacobsen and Tanner were overruled to the extent that they held or suggested to the contrary. Therefore, the Court of Appeals erred by analyzing defendant's request for expert assistance under MCL 775.15 instead of Ake.

         3. In Moore, the United States Court of Appeals for the Eleventh Circuit set forth a reasonable-probability standard for determining whether an indigent criminal defendant is entitled to the appointment of an expert at government expense under Ake's due-process analysis. Moore's reasonable-probability standard requires a defendant to show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial. The standard articulated in Moore strikes the right balance between requiring too much or too little of a defendant seeking the appointment of an expert under Ake and therefore was adopted as the appropriate standard for Michigan courts to apply. Accordingly, in order to obtain an expert at government expense under Ake's due-process analysis, a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.

         Court of Appeals' opinion vacated; case remanded to the Court of Appeals for application of Ake's due-process analysis and Moore's reasonable-probability standard.

         BEFORE THE ENTIRE BENCH

          OPINION

          VIVIANO, J.

         In this case, defendant claims that the trial court violated his constitutional right to present a defense when it denied his request to appoint a DNA expert. The Court of Appeals disagreed, holding that the trial court did not abuse its discretion when it determined that defendant failed to show that expert testimony would benefit his defense, as required by MCL 775.15 and People v Tanner.[1] We take this opportunity to clarify that MCL 775.15 does not apply in this context; instead, we hold-as we must-that Ake v Oklahoma[2] is the controlling law. And, to assist trial courts in determining whether a defendant has made a sufficient showing to be entitled to expert assistance under Ake, we adopt the reasonable probability standard from Moore v Kemp.[3]

         Accordingly, in lieu of granting leave to appeal, we vacate the Court of Appeals' decision and remand to that Court for further proceedings.

         I. FACTS AND PROCEDURAL HISTORY

         In November 1993, the body of Tanya Harris was discovered in an abandoned building in Detroit. The cause of death was strangulation. Attempts to find Harris's murderer stalled for nearly two decades until 2011, when various swabs taken from Harris's body were tested. The swab from Harris's left fingernail included a mixture of DNA profiles-from Harris and three male donors. Defendant's DNA profile matched the major donor's. Vaginal and rectal swabs taken from Harris also matched defendant's DNA profile. By this time, defendant was already incarcerated for having admitted to strangling another woman in 1996 under similar circumstances.

         Defendant was charged with Harris's murder. Defense counsel requested the appointment of Brian Zubel as a DNA expert to help understand the evidence, although counsel did not expect Zubel would testify at trial. Specifically, defense counsel noted that the DNA evidence "poses an especially technical and complex range of issues for defense counsel, as the essence of the prosecutions' [sic] case is the presentation of a report from a qualified technician or scientist." In order to provide effective assistance and

zealously confront the witnesses and evidence called in the prosecution's case in chief, [defense counsel] must be educated . . . in the science and accepted protocols of DNA extraction, preservation, testing, as well as the dangers of contamination and the steps and measures taken to document a particular test, and to maintain the proper calibration of testing equipment.

         The court denied defendant's request, stating: "I'm not going to appoint him for that. You can talk to him[;] you can read up on him and go to the conference which all the rest of us have done that[.]"[4]

         A jury ultimately convicted defendant of first-degree premeditated murder. Defendant appealed, arguing that the trial court's denial of his motion to appoint an expert violated his constitutional right to present a defense. The Court of Appeals, in a split opinion, affirmed his conviction and found no abuse of discretion or constitutional error in the trial court's denial of defendant's request for an expert.[5] The majority noted that defendant did not provide enough evidence that an expert would have aided the defense, nor did defendant raise any specific concerns with the evidence.[6] In dissent, Judge Stephens argued that the majority's analysis "begs the question of why defendant would need an expert" because "defendant does not know the inherent concerns with DNA evidence or all the ways in which it may be flawed without an expert to bring those issues to light."[7] Thus, the dissent concluded that the trial court's refusal to appoint an expert violated defendant's due process rights.[8]

         This Court ordered oral argument on the application, directing the parties to file supplemental briefing "addressing whether the trial court abused its discretion under MCL 775.15 and/or violated the defendant's constitutional right to present a defense when it denied his request to appoint a DNA expert."[9]

         II. STANDARD OF REVIEW

         This Court reviews de novo a question of constitutional law.[10] The interpretation and application of statutes present questions of law that are also reviewed de novo.[11]

         III. ANALYSIS

         We must first determine what law applies to defendant's claim that the trial court violated his due process rights when it denied his request for the appointment of a DNA expert. Then we consider what showing defendant must make to be entitled to the appointment of the expert.

         A. AKE v OKLAHOMA: THE DUE PROCESS RIGHT TO THE BASIC TOOLS OF ADEQUATE DEFENSE

         In Ake v Oklahoma, [12] the Supreme Court addressed "whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question."[13] The Court began its analysis with an overview of the law in this area:

This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.[14]

         After reviewing several of its precedents affording various rights to indigent criminal defendants, the Court observed that

[m]eaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, it has often reaffirmed that fundamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairly within the adversarial system. To implement this principle, we have focused on identifying the basic tools of an adequate defense or appeal, and we have required that such tools be provided to those defendants who cannot afford to pay for them.[15]

         Turning to the issue presented-i.e., "whether, and under what conditions, the participation of a psychiatrist is important enough to preparation of a defense to require the State to provide an indigent defendant with access to competent psychiatric assistance in preparing the defense"[16]-the Court considered the three-factor due process test set forth in Mathews v Eldridge[17]: (1) "the private interest that will be affected by the action of the State," (2) "the governmental interest that will be affected if the safeguard is to be provided," and (3) "the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided."[18]

         The Court made quick work of the first two factors. In relation to the first, it observed that "[t]he private interest in the accuracy of a criminal proceeding that places an individual's life or liberty at risk is almost uniquely compelling."[19] Thus, the Court concluded that "[t]he interest of the individual in the outcome of the State's effort to overcome the presumption of innocence is obvious and weighs heavily in our analysis."[20]Next, considering the interest of the State, the Court noted that it was unpersuaded by Oklahoma's argument that providing Ake with psychiatric assistance would result in a staggering financial burden to the state.[21] The Court then observed that "it is difficult to identify any [other] interest of the State . . . that weighs against recognition of this right, "[22] and the Court explained that

[t]he State's interest in prevailing at trial-unlike that of a private litigant- is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases. Thus, also unlike a private litigant, a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cast a pall on the accuracy of the verdict obtained.[23]

         Thus, the Court concluded that "the governmental interest in denying Ake the assistance of a psychiatrist is not substantial, in light of the compelling interest of both the State and ...


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