People v. Agar
314 Mich. App. 636
| Mich. Ct. App. | 2016Background
- Defendant (Agar) was charged with distributing and possessing child sexually abusive material, using a computer to commit a crime, and resisting/obstructing officers after a forensic investigator (Det. Stevens) identified defendant’s IP address and recovered thumbnail/deleted artifacts from his computers.
- At preliminary exams and trial Stevens testified as the prosecution’s computer-forensics expert about Ephex and Shareaza evidence; he could not determine when files were downloaded and relied largely on unallocated/deleted remnants and thumbnails.
- Defense theory: files arrived inadvertently — e.g., via copying another hard drive during repairs, an unsecured wireless network, or Shareaza’s automatic/resumed sharing after relocation/reinstallation.
- Defendant was indigent and sought $1,500 in public funds to retain a defense computer-forensics expert (Larry Dalman); the trial court denied the request as unnecessary, calling the defense theory a "fairly simple concept."
- Trial proceeded without a defense expert; defendant was convicted on all counts. On appeal the court found it was an abuse of discretion and a due-process violation to deny funds for an expert and remanded for a new trial on the computer-related charges; the resisting/obstructing conviction was affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Agar) | Held |
|---|---|---|---|
| 1. Whether trial court abused discretion by denying public funds for a defense computer-forensics expert | No nexus shown between case facts and need for expert; defendant only wanted parity because prosecution had an expert | Expert necessary to test timing, origin, and operation of Shareaza and to rebut Stevens; defendant indigent and lacked technical ability to litigate these issues | Abuse of discretion: defendant showed sufficient nexus and factual disputes making expert assistance necessary; funding denial was error |
| 2. Whether denial of expert violated due process and right to present a defense | Prosecution: detective’s testimony was adequate; additional expert would be repetitious and speculative | Denial deprived defendant of an expert to explain/investigate plausible inadvertent-download theories and to aid cross-examination; risk of erroneous deprivation | Due-process violation: defendant’s right to present an adequate defense was impaired; expert might have affected outcome |
| 3. Whether search/execution defects (failure to give warrant copy) required suppression or rendered search unlawful | Providing copy is ministerial; noncompliance does not invalidate search or require suppression | Failure to give copy rendered search unlawful and evidence should be excluded | Held for People: failure to give copy is ministerial and does not invalidate a warrant supported by probable cause; evidence admissible |
| 4. Whether counsel was ineffective for failing to obtain an expert or challenge warrant execution | Counsel sought funds but was denied; trial strategy and cross-examination were reasonable; no showing of prejudice on warrant challenge | Counsel’s failure to secure an expert (or pursue warrant defects) fell below standards and prejudiced defense | Ineffective-assistance claims largely rejected on record except the underlying prejudice stemming from the court’s denial of expert funding; counsel was not ineffective for failing to bring meritless challenges |
Key Cases Cited
- People v Jacobsen, 448 Mich 639 (1995) (defendant must show nexus between case facts and need for court-funded expert)
- People v Carnicom, 272 Mich App 614 (2006) (standard for appointment of expert at public expense; defendant’s burden to show likely benefit)
- People v Tanner, 469 Mich 437 (2003) (court not compelled to provide funds on mere possibility expert helps)
- Ake v Oklahoma, 470 US 68 (1985) (due process may require state to provide indigent defendant access to experts when essential to a defense)
- People v Ackley, 497 Mich 381 (2015) (failure to obtain expert can be ineffective assistance where technical issues are central and contested)
- People v Flick, 487 Mich 1 (2010) (definition of "possess" for child sexually abusive material requires knowing control/dominion)
- People v Tombs, 472 Mich 446 (2005) (distribution conviction requires criminal intent to distribute)
- People v Sobczak-Obetts, 463 Mich 687 (2001) (statutory requirement to give copy of warrant is ministerial and does not trigger exclusionary rule)
- People v Ginther, 390 Mich 436 (1974) (procedure for evidentiary hearing on ineffective-assistance claims)
- People v Trakhtenberg, 493 Mich 38 (2012) (counsel may be ineffective for failing to consult experts when lacking requisite expertise)