People of Michigan v. Melvin Curtis Erving
347728
Mich. Ct. App.Sep 17, 2020Background:
- On Aug. 25, 2011 the victim was grabbed, forced into a 2009 burgundy Chevrolet Impala, driven to an isolated area, and subjected to vaginal and anal penetration and ejaculation; she sustained bruising and anal tearing.
- A SANE exam collected a rape kit; sperm fraction from the victim’s right inner thigh produced a male DNA profile that ultimately matched Melvin Erving via CODIS and an MSP buccal-swab comparison.
- The victim described her assailant and the vehicle to police, identified Erving at his preliminary examination, but did not identify him in a later photographic array.
- Erving was tried by jury and convicted of two counts of first-degree criminal sexual conduct (MCL 750.520b) and kidnapping (MCL 750.349); he appealed.
- On appeal Erving challenged: (1) the trial judge’s impartiality based on prior prosecution of him; (2) the declaration of the victim as an unavailable witness and admission of her preliminary-exam testimony under MRE 804(b)(1) and the Confrontation Clause; and (3) alleged ineffective assistance of trial counsel for advising against Erving testifying and for failing to call alibi/exculpatory witnesses.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial recusal for prior prosecution | People: no objective risk of bias shown by mere prior prosecution | Erving: judge previously prosecuted him in unrelated case, so recusal required | Mere prior prosecution alone does not require recusal; Erving did not show additional facts creating a realistic risk of bias, so recusal denied |
| Unavailable witness under MRE 804(a)(5) | People: diligent, good-faith efforts made (subpoena, Lyft transport attempts, detectives, family/hospital/jail checks) | Erving: prosecution failed to sufficiently locate and produce the victim for trial | Trial court did not abuse discretion; prosecution showed due diligence under Bean standard |
| Admissibility of preliminary-exam testimony (MRE 804(b)(1)) & Confrontation Clause | People: prior testimony admissible because witness unavailable and defendant had opportunity and similar motive to cross-examine at prelim | Erving: lacked similar motive/opportunity at prelim; Confrontation Clause violated by reading prior testimony | Court held prelim. examination satisfied MRE 804(b)(1); defendant had similar motive and opportunity to cross-examine, so Confrontation Clause not violated |
| Ineffective assistance of counsel | People: counsel’s choices were reasonable; defense theory presented; key facts already elicited | Erving: counsel mistakenly advised that his convictions could be used to impeach, and failed to call witnesses to show different appearance/vehicle | No relief; even assuming deficient advice, Erving failed to show a reasonable probability of a different outcome given DNA match, prior ID at prelim, and evidence already presented |
Key Cases Cited
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (due-process analysis for judge bias)
- People v. Wade, 283 Mich. App. 462 (2009) (presumption of judicial impartiality; review standard for disqualification)
- People v. Bean, 457 Mich. 677 (1998) (diligent good-faith efforts required to show unavailability under MRE 804(a)(5))
- People v. Farquharson, 274 Mich. App. 268 (2007) (factors for determining similar motive/opportunity under MRE 804(b)(1))
- People v. Meredith, 459 Mich. 62 (1999) (Confrontation Clause satisfied where prior testimony was subject to cross-examination)
- People v. Trakhtenberg, 493 Mich. 38 (2012) (Strickland standard applied to ineffective-assistance claims)
- People v. Dobek, 274 Mich. App. 58 (2007) (prosecutor’s role is to seek justice, not merely convictions)