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People v. Propp

Court of Appeals of Michigan

October 3, 2019

ROBERT LANCE PROPP, Defendant-Appellant.

          Saginaw Circuit Court LC No. 16-042719-FC

          Before: Murray, C.J., and Meter and Fort Hood, JJ.

          Fort Hood, J.

         Defendant appeals as of right his jury conviction of first-degree premeditated murder, MCL 750.316(a)(1), for which he was sentenced, as a fourth-offense habitual offender, MCL 769.12, to a mandatory term of life in prison without the possibility of parole, MCL 750.316(1). Defendant contends on appeal that (1) the trial court violated defendant's rights to due process and equal protection by denying defendant's motion for the appointment of an expert witness and denying his ability to present a defense, and (2) the trial court abused its discretion by permitting the introduction of hearsay and unduly prejudicial other-acts evidence. We affirm.

         I. BACKGROUND

         It is undisputed that defendant killed the victim by constricting her airway. The sole issue is whether defendant did so with the intent to kill her, or, as defendant claims, whether the victim's death occurred accidentally while she and defendant were engaged in erotic asphyxiation.[1] On the morning of July 6, 2016, defendant called 911 to report that he had discovered the victim unresponsive in her bed. When emergency responders arrived, they found defendant attempting to administer chest compressions to the victim. The victim's body, however, was stiff and cold to the touch, and the emergency responders informed defendant that the victim was deceased. Defendant proceeded to describe a number of different versions of the events that occurred on the night preceding and the morning of the victim's death.

         At defendant's preliminary examination, an officer testified that he responded to defendant's 911 call, and testified that when he arrived on the scene, defendant told him that defendant had become concerned when the victim did not answer her phone that morning, so defendant went to the victim's house and discovered that her car was still there when she was supposed to be at work. Defendant stated that he found the backdoor of the victim's house forced open, and found the victim unresponsive in her bed. Defendant made no claims that he had choked the victim at that time. That officer also noted that defendant had a black eye, which defendant explained came from a bar fight the night before.

         A second officer also spoke with defendant on the day of the victim's death. Defendant purportedly told that officer that the victim's back door had not been forced open, and that defendant himself pried the door open with a crowbar. Defendant told the officer that, on the night before the victim died, defendant and the victim were lying in the victim's bed when they began arguing. Defendant stated that the victim elbowed him in the eye, causing his black eye and a physical altercation. During the altercation, the victim fell off the bed, defendant fell on top of her, and then a dresser fell on both of them. Defendant stated that he had his hand on the victim's neck and that he "pressed down" with his weight. When the victim stopped moving, defendant figured she was unconscious, and so he picked her up, put her back on the bed, and left.

         Before trial, defendant presented the argument that the victim's death was the accidental result of erotic asphyxiation. Defendant moved for the appointment of a state-funded expert witness on the practice, arguing that such an expert would assist the jury in understanding why people engage in erotic asphyxiation and its associated risks. Defendant noted as a basis for his defense that the victim did not have any defensive wounds or other injuries to suggest that she died during a struggle. The trial court denied defendant's request for appointment of such an expert, however, concluding there were no facts in the record to support defendant's assertion that the victim died as a result of erotic asphyxiation. The only facts in the record that explained the victim's injuries were defendant's statements to the police that the victim died when she and defendant fell out of bed during a fight while defendant had his hand on her throat.

         The prosecution also filed their own pretrial motion, seeking to introduce evidence of defendant's prior acts of domestic violence against the victim, as well as stalking behaviors. The prosecution alleged that defendant repeatedly called and texted the victim, drove by her house, and appeared uninvited at places the victim went. The majority of the evidence of defendant's prior acts came in the form of statements the victim made to friends and family members. The prosecution also sought to introduce evidence that defendant sexually abused his ex-wife during their marriage. Defendant argued that the testimony of the victim's friends and family members was inadmissible hearsay, and that the testimony of defendant's ex-wife was inadmissible under MRE 403 because it was more prejudicial than probative. The trial court disagreed and granted the prosecution's motion to admit the evidence in its entirety.

         At trial, defendant testified that, on the night that the victim died, she asked him to choke her while they had sex. In the process of doing so, defendant and the victim fell off the bed and a dresser fell on top of them. Defendant was unsure of how long he and the victim were on the floor with the dresser on top of them and his hand on her throat, but when he got up, the victim was unconscious. Defendant testified that he was not concerned about this because the victim often passed out when they engaged in erotic asphyxiation and defendant believed that she was still alive when he left her house shortly after. Defendant stated that he did not initially tell the police that he choked the victim because he was embarrassed and ashamed. The jury convicted defendant of first-degree premeditated murder and the trial court sentenced him to mandatory life without parole.

         II. DUE PROCESS

         Defendant first contends that the trial court violated defendant's rights to due process by denying defendant's motion for the appointment of an expert witness and subsequently prohibiting any testimony from that witness. We disagree.

         We review de novo, as an issue of constitutional law implicating a defendant's due-process rights, the trial court's grant or denial of a defendant's request for state funds to retain an expert. See People v Cain, 238 Mich.App. 95, 108; 605 N.W.2d 28 (1999). We must consider whether, in light of defendant's explanation as to why the requested expert was necessary for his defense, the trial court should have determined that state funds were required to afford defendant a fair opportunity to confront the prosecution's evidence and present his defense. See People v Kennedy, 502 Mich. 206, 226-227; 917 N.W.2d 355 (2018).[2]


         At the time that the trial court denied defendant's request for appointment of an expert witness, issues pertaining to the funding of experts at state expense were governed by MCL 775.15[3] and People v Tanner, 469 Mich. 437, 442-443; 671 N.W.2d 728 (2003), overruled by Kennedy, 502 Mich. at 222-223. Tanner held that, under MCL 775.15, "to obtain appointment of an expert, an indigent defendant must demonstrate a nexus between the facts of the case and the need for an expert." Tanner, 469 Mich. at 442-443 (quotation marks omitted), citing People v Jacobson, 448 Mich. 639, 641; 532 N.W.2d 838 (1995), overruled by Kennedy, 502 Mich. at 222-223. The Kennedy Court recently clarified, however, "that MCL 775.15 does not apply in [the] context" of an indigent defendant's request for appointment of an expert. Kennedy, 502 Mich. at 210.

         "MCL 775.15, by its express terms, does not provide for the appointment of expert witnesses." Id. at 222. In addition, "the statute, which only contemplates 'testimony,' falls short of the constitutional standard set forth in Ake, [4] which clearly requires the assistance of an expert in conducting an appropriate examination and in evaluation, preparation, and presentation of the defense." Id. at 223 (quotation marks, alteration, and citation omitted). We have no doubt that Kennedy applies because, although Kennedy was decided after defendant's trial, "it is well-established that a new rule for the conduct of criminal prosecutions that is grounded in the United States Constitution applies retroactively to all cases . . . pending on direct review or not yet final." People v Lonsby, 268 Mich.App. 375, 389; 707 N.W.2d 610 (2005).

         Following Kennedy, an indigent defendant's entitlement to state funds to pay for an expert is analyzed under the Ake v Oklahoma, 470 U.S. 68; 105 S.Ct. 1087; 84 L.Ed.2d 53 (1987), due-process framework. Kennedy, 502 Mich. at 225. Now, when a trial court analyzes an indigent defendant's request for government funds to procure an expert, it must consider the following factors:

(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." [Id. at 215, quoting Ake, 470 U.S. at 77.]

         With respect to the first two factors, in criminal cases, both defendants and the government share an interest in "fair and accurate adjudication." Id. at 215-216 (quotation marks and citation omitted). Accordingly, in such cases, the third factor, regarding the probable value of the requested safeguard, is typically the determinative factor as to whether the defendant is entitled to government funds to obtain an expert. See id. at 216-220. In terms of the showing that the defendant must make under this factor, Kennedy adopted the reasonable probability standard articulated in Moore v Kemp, 809 F.2d 702 (CA 11, 1987). Id. at 226. Moore held:

[I]f a defendant wants an expert to assist his attorney in confronting the prosecution's proof-by preparing counsel to cross-examine the prosecution's experts or by providing rebuttal testimony-he must inform the court of the nature of the prosecution's case and how the requested expert would be useful. At the very least, he must inform the trial court about the nature of the crime and the evidence linking him to the crime. By the same token, if the defendant desires the appointment of an expert so that he can present an affirmative defense, such as insanity, he must demonstrate a substantial basis for the defense . . . . In each instance, the defendant's showing must also include a specific description of the expert or experts desired; without this basic information, the court would be unable to grant the defendant's motion, because the court would not know what type of expert was needed. In addition, the defendant should inform the court why the particular expert is necessary. [Moore, 809 F.2d at 712 (emphasis added).]

         In particular, Kennedy held that, in order to be entitled to government funds to obtain an expert, "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." Kennedy, 502 Mich. at 228 (quotation marks and citation omitted).

         In this case, defendant sought appointment of an expert in order to assert the affirmative defense that the victim died accidentally while she and defendant engaged in erotic asphyxiation. Accordingly, defendant was required to demonstrate a "substantial basis for the defense." See Moore, 809 F.2d at 712. Defense counsel argued that there was a basis for the defense because, although the victim unequivocally died from neck compression, she did not have defensive wounds indicative of a struggle. Defense counsel further argued that an expert would "give some validity to" defendant's claim that he was not particularly concerned when the victim lost consciousness because people who engage in erotic asphyxiation often lose consciousness during the act.

         The trial court determined that defendant failed to demonstrate a factual basis for the defense because there was no evidence that the victim's death occurred as a result of erotic asphyxiation. The record supports that conclusion. At the time that defendant moved for appointment of an expert, the only evidence in the record that defendant had choked the victim came from his statement to Detective Joseph McMillan. In that statement, defendant admitted that he and the victim got into a fight, during which the victim fell off the bed, defendant fell on top of her, and a dresser fell on top of both of them. Defendant did not make any statements during any of his police interviews that the victim's injuries were the result of erotic asphyxiation. Moreover, the testimony of the victim's sister suggested that defendant and the victim were not getting along at the time of the victim's death, that defendant had engaged in stalking behaviors-including coming to the victim's home and knocking on her windows at night-and that defendant's behavior was "escalating very fast." Another sister of the victim testified that the victim once told her that the victim was "going to die young," and when the sister asked why, the victim responded, "I don't know, maybe [defendant] will kill me."

         Other testimony in evidence relating to the prosecution's motion in limine indicated that witnesses had seen multiple altercations between the victim and defendant. Two witnesses testified that they once saw defendant chase the victim down the road in a car, seemingly attempting to run her off the road. One witness observed injuries on the victim's arms, neck, and face shortly before the victim decided to break up with defendant. Another witness testified that the victim once told her that the defendant "chocked her, and [the victim] didn't think he was going to stop, [and] she was starting to see spots when he finally let her go." According to that witness, while defendant was choking the victim, he stated, "see how easy it would be for me to shut you up[?]"

         For the trial court to conclude that there was a substantial basis for the erotic asphyxiation defense, the trial court would have been required to ignore a significant amount of evidence from other witnesses that supported defendant's own contradictory statement that he choked the defendant while the two were fighting. Given the significant evidence in the record at the time, defendant's mere assertion that the victim's death was the result of erotic asphyxiation-an assertion that was made for the first time well over a year after the investigation and proceedings in this case were initiated- was not sufficient to provide a substantial basis for the defense such that a state-funded expert was necessary. See Kennedy, 502 Mich. at 227, citing Moore, 809 F.2d at 712. Notwithstanding, assuming for the sake of argument that defendant should have been entitled to an expert witness, we note that the denial of an expert did not result in a fundamentally unfair trial.


         Defendant contends that denial of his motion for a state-funded expert and the prohibition of testimony from that expert barred defendant from presenting a meaningful defense and resulted in a fundamentally unfair trial. We disagree.

         As an initial matter, defendant has arguably waived any suggestion that his trial was unfair because he was denied a meaningful opportunity to present a defense. Waiver is "the intentional relinquishment or abandonment of a known right." People v Carter, 462 Mich. 206, 215; 612 N.W.2d 144 (quotation marks and citation omitted). Waiver "extinguishe[s] any error," and "[o]ne who waives his rights . . . may not then seek appellate review of a claimed deprivation of those rights . . . ." Id. (quotation marks and citation omitted). In this case, the trial court denied defendant's request for funds to retain an expert witness on the practice of erotic asphyxiation and prohibited defendant from presenting such expert testimony. Before trial began, the prosecution objected to defendant's proposed witness, Dr. Zubin Mistry, "based on the court's prior ruling," and the trial court stated that the witness would not "be allowed to be called at this point in time." Defense counsel stated, "we understand that we have to develop evidence to justify th[e] expert witness being called, but we are assuming that we will," and the trial court responded, "We'll cross that bridge when we get to it." Thereafter, defendant never sought to call Dr. Mistry or any other expert witnesses.

         By failing to call an expert witness, despite the trial court's indication that it would consider defendant's ability to do so after defendant established a basis for that testimony, defendant waived his claim that he was denied the opportunity to present a defense. See Carter, 462 Mich. at 215. Despite defendant's apparent waiver, under the circumstances-including the possibility that defendant could not call the expert for financial reasons after state-funding was denied, the constitutional implications of this case, and the gravity of the offense-we elect to reach the merits of the argument, and note that the record establishes that an additional expert was not necessary for defendant to present his claim that the victim died from erotic asphyxiation.

         "This Court reviews de novo whether defendant suffered a deprivation of his constitutional right to present a defense." People v Steele, 283 Mich.App. 472, 480; 769 N.W.2d 256 (2009). The Due Process Clause of the Fourteenth Amendment "require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense." People v Anstey, 476 Mich. 436, 460; 719 N.W.2d 579 (2006) (quotation marks and citation omitted). The right to present a defense encompasses "[t]he right to offer the testimony of witnesses," Washington v Texas, 388 U.S. 14, 19; 87 S.Ct. 1920; 18 L.Ed.2d 1019 (1967), as well as defense counsel's ability "to argue a reasonable inference from evidence adduced at trial," People v Stokes, 312 Mich.App. 181, 207; 877 N.W.2d 752 (2015), vacated in part on other grounds 501 Mich. 918 (2017). The right to present a defense further protects a defendant's ability to "put before a jury evidence that might influence the determination of guilt," and to have access to exculpatory evidence. Anstey, 476 Mich. at 460.

         In this case, defendant fails to explain how he was denied a meaningful opportunity to present his defense because defendant was, in fact, able to present the exact defense he sought to introduce through an expert. Defense counsel stated during his opening statement that defendant and the victim engaged in erotic asphyxiation, the victim lost consciousness-which "wasn't unusual for her"-and it appeared to a layperson that the victim was still breathing. Defendant then testified at length to all of those things. Defendant testified about the manner in which he and the victim engaged in erotic asphyxiation on the night of her death and why. Defendant also testified that the victim asked him to choke her. Defendant explained that he was not concerned when the victim lost consciousness because it was a "normal" occurrence when defendant and the victim engaged in that form of "extreme sex." Defendant further explained that he did not tell the police that he and the victim engaged in erotic asphyxiation on the night she died because he "was ashamed," because he did not want to expose the "sex that [they] had," because defendant was "very conservative" with respect to talking about his sexual life, and because the victim "wanted it to be that way."

         Moreover, defense counsel was able to continue to present the defense through the prosecution's expert pathologist. When asked by defendant's counsel whether, under the circumstances, the victim's death could have resulted from erotic asphyxiation, the expert pathologist stated, "Yeah, it's possible." Defense counsel then referenced the exchange in his closing argument. We note that, in his motion for appointment of an expert, defendant claimed that an expert was also necessary to explain to the jury the prevalence of erotic asphyxiation, why a person would engage in it, and the reality of participants passing out or even dying from the practice. However, although defense counsel cross-examined the prosecution's expert pathologist regarding erotic asphyxiation and he testified that he was familiar with the practice, defense counsel notably did not attempt to elicit any ...

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