Lead Opinion
Dеfendant appeals as of right his jury trial convictions of distributing child sexually abusive material, MCL 750.145c(3); possessing child sexually abusive material (three counts), MCL 750.145c(4); using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(d); and resisting and obstructing a police officer, MCL 750.81d(l). Defendant was sentenced to serve 18 months to 7 years for his convictions of distribution and use of a computer to commit a crime, 18 months to 4 years for each count of possession, and 1 to 2 years for resisting and obstructing a
I. BACKGROUND
Defendant’s computer-related convictions arose after his Internet protocol (IP) address was identified by Detective Eric Stevens as one that was possibly trading or sharing child pornography.
At defendant’s preliminary examination on the distribution and possession charges, Detective Stevens testified as an expert in computer forensics to exрlain the Ephex software that he used to find defendant’s IP address and the Shareaza software he believed defendant used to possess and share child pornography. After a second preliminary examination on the amended information that added charges of resisting and obstructing an officer and using a computer to commit a crime, defendant was bound over on all charges.
Defendant moved pretrial for the appointment of a forensic computer expert witness to rebut Detective Stevens and to investigate and support defendant’s theories of how defendant could have inadvertently downloaded child pornography. Defense counsel and the court admitted to a lack of sophistication regarding computer issues in general. Defendant argued that the appointment of an expert witness was necessary to examine defendant’s computer, to prepare for trial, and to effectively rebut the testimony offered by the prosecution’s expert, Detective Stevens. Defendant identified Larry A. Dalman, a retired career state police officer, as the expert he wanted to retain. Defendant stated that he was indigent and needed $1,500 of public funds to retain Dalman.
The trial court denied defendant’s motion for an expert. The court concluded that, based on its review of the caselaw, there needed to be “a greater connection between the specifics of the issue that [were] involved in [defendant’s] case and the need for an expert in order to get to the meat of the matter.” The court identified that defendant was requesting an expert to show that in the process of copying the hard drives of others, defendant inadvertently copied child sexually abusive material to his own computer. The court found the theory plausible, but also that it was a fairly simple concept. The court held that an expert was not critically important to defendant’s defense.
II. ABUSE OF DISCRETION
Defendant first claims that the trial court abused its discretion by denying his request for public funds to retain his own computer forensics expert. We agree.
“This Court reviews for abuse of discretion a trial сourt’s decision whether to grant an indigent defendant’s motion for the appointment of an expert wit
MCL 775.15 authorizes a court to provide public funds for indigent defendants to retain expert witnesses. However, “[a] trial court is not compelled to provide funds for the appointment of an expert on demand.” Carnicom,
Defendant in this case cited his need for an expert as threefold: (1) to support his defense that the child sexually abusivе material was inadvertently downloaded to his computer when, in the course of performing a repair, he copied another person’s hard drive to his computer; (2) to support his defense that files containing child pornography could have been on his computer as the result of his unprotected and open wireless network; and (3) to explain that the Shareaza program he copied was already programmed to share files and, once downloaded onto his computer, resumed file-sharing. Detective Stevens’s testimony was the centerpiece of both of the preliminary examinations and the trial. Much of the testimony from Detective Stevens involved the technical process for extracting
The prosecution also opposed the motion on the basis that defendant did not offer any evidence that the expert’s examination of the computer would produce any different results than Detective Stevens had, and that the mere possibility that the expert might be of assistance to defendant was not enough to warrant appointment of an expert at public expense. The prosecution cited Jacobsen, Carnicom, and Tanner. We are troubled by the logic that a defendant who admits technical ignorance and who has no resources from which to acquire technical expertise is asked to present evidence of what evidence an expert would offer in order to receive public funds to hire the expert. However, even assuming that these cases require some showing of what the expert would do to assist defendant, we find an abuse of discretion in this case because it is factually distinguishable from Jacobsen, Tanner, and Carnicom.
In Jacobsen, the defendant requested public funds for the appointment of an expert to testify that, due to an unreasonable delay in conducting a Breathalyzer test, the results of the tests were unreliable. Id. at 640-641. The Court concluded that the “mere allegation that the delay was unreasonable” was not sufficient, without more, to warrant the appointment of an expert at public expense, noting that there was no indication that any circumstance existed that would
In Carnicom, the defendant, believing “that his expert witness would be able to offer testimony that would explain the presence of methamphetamine in his bloodstream at the time of [his] arrest” based on his use of Adderall, requested public funds for the appointment of an expert toxicologist to perform independent testing of the defendant’s blood and present testimony at trial, but “did not make any indication or offer any evidence that expert testimony would likely benefit him.” Carnicom,
In Tanner, the Court upheld the trial court’s denial of the appointment of a serology expert at public expense when the defendant failed to show that the expert would offer testimony that would “likely benefit the defense [.] ” Tanner,
Importantly, there are indications in the instant case that call into question the results obtained by the prosecution’s expert. It is noteworthy that a majority of Detective Stevens’s evidence was retrieved from what he called unallocated space or a place where the item’s contents had been deleted but the name of the item still existed. While the actual video file was not retrievable, the jury was to infer that a file name was representative of the contents of the video. Detective Stevens’s search of defendant’s desktop hard drive produced deleted child pornographic thumbnail images and remnants of the names of deleted files. The thumbnails represented both boys and girls, and Detective Stevens found that unusual, alluding that he would expect to find a user’s preference to be one or the other. The prosecution’s theory was that defendant downloaded the images and deleted them after viewing them. However, Detective Stevens could not testify based on his examination when the items were downloaded. In regards to some items, the entire file path to an exhibit was not displayed, which could have shown where an item originated. The detective also acknowledged that certain software was required to view AVI,
It is an abuse of discretion to refuse to appoint an expert when the defendant has presented information demonstrating that there is a connection between the facts of the case and the need for a defense expert. See In re Klevorn,
In minimizing defendant’s need for an expert, the prosecution argues that an expert would not have helped defendant when its forensic evidence overwhelmingly demonstrated defendant’s guilt. The prosecution’s presentation of an experienced expert witness who tends to inculpate defendant does not demonstrate, by itself, defendаnt’s guilt. “Prosecution experts, of course, can sometimes make mistakes . . . [and] [s]erious deficiencies have been found in the
III. DENIAL OF DUE PROCESS
Defendant next argues that he was denied his right to present a defense by the court’s failure to appoint the requested expert. US Const, Am VI; Const 1963, art 1, § 20; People v Steele,
“Under the Due Process Clause, states may not condition the exercise of basic trial and appeal rights on a defendant’s ability to pay for such rights.” People v Leonard,
“Had an impartial, scientifically trained expert corroborated the defendants’ theory, the defendant’s account . . . would not have existed in a vacuum of his own self-interest.” People v Ackley,
IV. STANDARD 4 BRIEF
Defendant raises additional challenges to the sufficiency of the evidence to support his convictions and the effectiveness of trial counsel in his Standard 4 brief.
We address the remainder of defendant’s claims in propria persona below.
“A challenge to the sufficiency of the evidence is reviеwed de novo.” People v Malone,
1. OBSTRUCTING AND RESISTING A POLICE OFFICER
Defendant was convicted of violating MCL 750.81d(l), which provides that “an individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2 years or а fine of not more than $2,000.00, or both.” The elements of resisting or obstructing under this provision are: “(1) the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered a police officer, and (2) the defendant knew or had reason to know that the person that the defendant
Detective Stevens testified that, before entering defendant’s home to execute the search warrant, he informed defendant that he was a detective with the St. Clair County Sheriffs Office and showed defendant his badge, explained that he was conducting an Internet investigation, and told defendant that he had a search warrant for defendant’s computers and needеd to enter the home to take his computers. From this testimony, a rational jury could conclude that defendant knew or had reason to know that Detective Stevens was a police officer performing his duties in execution of a search warrant. Corr,
The testimony also sufficiently established that defendant obstructed and resisted Detective Stevens during the execution of the search warrant. Corr,
This testimony, viewed in a light most favorable to the prosecution, was sufficient for the jury to conclude that defendant engaged in conduct that hindered or
Further, while defendant correctly asserts that MCL 750.81d does not abrogate the common-law right to resist unlawful police conduct, such as an unlawful arrest or other unlawful invasions of private rights, People v Moreno,
2. UNLAWFUL SEARCH
Defendant next claims that the officers’ lack of compliance with MCL 780.655(1), by failing to provide
The officers’ failure to comply with MCL 780.655(1), which requires that officers conducting a search pursuant to a warrant give a copy of the search warrant to the person from whose premises property was taken or to leave a copy of the warrant at the premises searched, does not render the search illegal or warrant the exclusion of the evidence seized during the search. People v Sobczak-Obetts,
Moreover, the record suggests that the search was conducted pursuant to a warrant supported by prob
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, defendant argues that he was denied the effective assistance of counsel. Defendant failed to preserve this claim by moving for a new trial or evidentiary hearing before the trial court. Snider,
1. FAILURE TO SECURE AN EXPERT WITNESS AT PUBLIC EXPENSE
Defendant’s primary claim of ineffective assistance is that his trial counsel allowed the trial to proceed without securing an expert at public expense to inves
[A] defense attorney may be deemed ineffective, in part, fоr failing to consult an expert when counsel had neither the education nor the experience necessary to evaluate the evidence and make for himself a reasonable, informed determination as to whether an expert should be consulted or called to the stand .... [People v Trakhtenberg,493 Mich 38 , 54 n 9;826 NW2d 136 (2012) (quotation marks, citation, and emphasis omitted).]
The record indicates that defense counsel did recognize the need for an expert and did seek funds for one on defendant’s behalf, but was denied by the trial court. Defendant was indigent and without the funds required to retain an expert. Defendant has not argued that there was an expert willing to testify pro bono that counsel failed to investigate. The record also evidences that counsel attempted to compensate for lack of an expert. Counsel's cross-examination of the prosecution’s expert demonstrated that counsel investigated the type and operation of the software used. Counsel objected to cоmputer-generated documents. Counsel sought to advance defendant’s theory without expert support through defendant’s own testimony and defense witnesses. On the record before us, we cannot conclude that it was counsel’s failure that precluded that defense from obtaining an expert in its favor.
Defendant next claims that defense counsel was ineffective by failing to investigate whether the search warrant was lawfully executed. A defense counsel has a duty to make reasonable investigations into his or her client’s case. Trakhtenberg,
Defendant claims that his trial counsel failed to investigate whether the search warrant was validly executed because the officers never provided him with a copy of the warrant. However, the mere fact that the officers did not give defendant a сopy of the search warrant in violation of MCL 780.655(1) does not render the warrant invalid or the search illegal. Sobczak-Obetts,
On this record, defendant has not demonstrated a reasonable probability that the outcome would have been different had his counsel investigated the validity
C. ADDITIONAL CLAIMS
Defendаnt also briefly claims that his trial counsel was ineffective by struggling to elicit key testimony from witnesses and failing to object to several inflammatory statements by the prosecutor. Defendant, however, fails to specify what testimony defense counsel failed to elicit or which inflammatory statements the prosecutor made that counsel did not object to, and defendant- also fails to explain how these alleged instances of defective performance prejudiced him. “ ‘It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments ....’” People v Kevorkian,
Defendant also briefly claims that his counsel was ineffective for “barely” addressing the charge of resisting and obstructing a police officer. Defendant, however, fails to specify what additional information defense counsel should have elicited through questioning of the witnesses or brought out during his argument,
Reversal of defendant’s convictions is also not warranted on the basis of the cumulative effect of the alleged instances of ineffective assistance because defendant has not established any such instances. People v Mayhew,
Defendant’s convictions for distributing child sexually abusive material, possessing child sexually abusive material, and using a computer to commit a crime are vacated, and as to these charges, the matter is remanded for a new trial. Defendant’s conviction for resisting and obstructing is affirmed.
Judgment vacated in part and case remanded for a new trial. We do not retain jurisdiction.
RONAYNE KRAUSE, P.J., concurred with STEPHENS, J.
Notes
Detective Stevens recognized the extensions as meaning that the files were videos of some sort.
See Administrative Order No. 2004-6, 471 Mich, c, cii (2004).
Concurrence Opinion
(concurring).
“[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 effectivе defense.” Ake v Oklahoma,
The prosecutor charged defendant with three crimes arising from defendant’s alleged use of a computer to traffic in child sexually abusive material: distributing child sexually abusive material, MCL 750.145c(3); possessing child sexually abusive material, MCL 750.145c(4); and using a computer to commit a сrime, MCL 752.796. Each offense requires the prosecution to prove beyond a reasonable doubt that defendant knowingly engaged in prohibited conduct. To convict a defendant of distributing child sexually abusive material, the prosecution must prove that the defendant “distributed . . . the material with criminal intent.” People v Tombs,
Agar’s sole defense was that he never intentionally or knowingly downloaded child sexually abusive materials. Agаr explained that he often downloaded mainstream adult and animated movies into his home computer system, which he had personally assembled from a “bare bones” kit. He had also repaired computers for students attending the Lawrence Tech Osborn Center, which sometimes involved copying a student’s hard drive into his own computer’s hard drive. During one such effort, Agar discovered that he had inadvertently copied a peer-to-peer file-sharing program called “Shareaza,” which then took up residence in his hard drive. The Shareaza software harbored and disseminated the child sexually abusive material discovered by St. Clair County Sheriffs Detective Eric Stevens. Agar’s defense hinged on proof that the child sexually abusive material found by Stevens could have made its way to Agar’s computer inadvertently, through Shareaza.
Peer-to-peer networks such as Shareaza are “so called because users’ computers communicate directly with each other, not through central servers.” Metro-Goldwyn-Mayer Studios, Inc v Grokster, Ltd,
Agar and his counsel sought to investigate Sharea-za’s technical capabilities and its operation within Agar’s computer by retaining Larry Dalman, a retired Michigan State Police officer and forensic computer expert. The trial court denied this request, declaring that although it seemed “possible” that defendant’s version of events could be true, funding for an expert was unnecessary because “that’s a fairly simple concept unless there’s a whole lot more it to [sic] than I know[.]” The trial court encouraged defense counsel to “doO your own investigation and research into that to find out what you can and cannot learn on that subject in order to prepare yourself for cross-examination.”
Detective Stevens testified as an expert in computer forensics in support of the prosecutor’s position that regardless of how Shareaza wound up on defendant’s computer, defendant deliberately used Shareaza to share illegal videos. As was evident from Stevens’s testimony and defense counsel’s cross-examination, the trial court vastly overestimated the “simplicity” of the subject matter or the ease with which helpful admissions could be elicited. Further, cross-examination, no matter how skilled or effective, is not a substitute for the testimony of an opposing expert witness.
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and theprobable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
As the Supreme Court observed in Ake, “[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[.]” Ake,
Agar’s interest in leveling the expert-witness playing field is compelling. And even assuming that the prosecution’s interest in shielding the county from economic intemperance had any legal legitimacy, the monetary stakes here were minimal: $1,500. Investment of this rather insubstantial sum in Agar’s defense would have afforded him “[mjeaningful access to justice,” id. at 77, and likely spared the county the far greater costs involved in a new trial of this case.
The last Eldridge component examines the “probable value of the additional or substitute procedural
[T]he assistance of a psychiatrist may well be crucial to the defendant’s ability to marshal his defense. In this role, psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant’s mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant’s mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers. Unlike lay witnesses, who сan merely describe symptoms they believe might be relevant to the defendant’s mental state, psychiatrists can identify the “elusive and often deceptive” symptoms of insanity and tell the jury why their observations are relevant. Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists idéally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense. [Id. at 80-81 (citation omitted).]
The prosecution insists that no such risks exist in this case because Detective Stevens thoroughly discredited the defense theories raised by Agar’s counsel during cross-examination. This argument proves too much. Were it accepted, no appellate claim challenging a denial of funding for expert assistance could ever
Defense counsel’s cross-examination proves this point. Although counsel took to heart the trial court’s instruction to perform research and “find out what you can” about the subject matter, counsel was stuck with Stevens’s answers. For example, counsel inquired whether Sharea-
A number of courts have applied Ake’s reasoning to a defendant’s requests for expert assistance in areas other than psychiatry. For a list and summary of the cases, see Giannelli, Ake v Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L Rev 1305, 1367-1368 (2004), and Moore v State, 390 Md 343, 409;
The prosecution’s argument is essentially one of harmless error. At least one court has found the denial of funding for a necessary expert structural error not subject to review for harmlessness. Rey v State,
Recent exposés regarding the fallibility of prosecution scientists and laboratories should counsel pause when evaluating the validity of unchallenged testimony. See Hinton v Alabama,
That the State presented testimony from two experienced expert witnesses that tended to inculpate Hinton does not, taken alone, demonstrate that Hinton is guilty. Prosecution experts, of course, can sometimes make mistakes. Indeed, we have recognized the threat to fair criminal trials posed by the potential for incompetent or fraudulent prosecution forensics experts, noting that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials.. . . One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases.” Melendez-Diaz v. Massachusetts,557 U.S. 305 , 319,129 S.Ct. 2527 ,174 L.Ed.2d 314 (2009) (citing Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L.Rev. 1, 14 (2009)). This threat is minimized when the defense retains a competent expert to counter the testimony of the prosecution’s expert witnesses; it is maximized when the defense instead fails to understand the resources available to it by law.