People v. Tanner

v Tanner v PEOPLE TANNER 1, 2002, Lansing. Docket No. 231966.Submitted October Decided Febru- ary 18, 2003, appeal sought. at 9:05 am. Leave to jury Hattie M. Tanner was convicted in the Calhoun Circuit Court, Kingsley, J., first-degree felony murder, of James C. second- degree murder, robbery robbery and armed as a result of armed Following sentencing, and murder of a bartender. the court entered sponte judgment sentencing, vacating sua an amended of second-degree sentences for the convictions of murder and armed robbery. appealed. The defendant Appeals The Court held: challenge acceptance 1. The defendant did not the scientific electrophoresis identify types phosphoglucomutase blood and markers; therefore, preserve she failed to her claim that the court failing erred to determine whether such scientific evidence com- plies requires with the standard that that novel scientific methods gained general acceptance be must shown to have in the scientific they community belong being to which before admitted as evidence addition, Supreme recognized general at trial. In Court has acceptance and, therefore, proponent of such evidence required evidence not is to meet the standard for novel scientific evidence. defendant, indigent, 2. The claim of the that the court denied process by appointing expert her serology due not a dna aor alleges error, to assist in her defense a trial anot structural error, analyzed and is under the harmless-error standard under the alleged federal constitution to determine if the error was harmless beyond a reasonable doubt. safely proceed 3. The defendant could not to trial without the experts serology; therefore, in the areas of dna the trial court denying request erred in the defendant’s for such assistance. Under case, the factual circumstances of this the defendant was prejudiced fundamentally received unfair trial as a result of having expert provided by not assistance the court. It was not beyond jury a reasonable doubt that a rational would have found guilty provided experts. her if she had been such The defendant’s felony-murder convictions and her sentence for the conviction App 369 reversed, remanded for a new trial. and matter must be be must second-degree remand, the convictions must vacate On court robbery. and armed murder process as result of 4. was not denied due The defendant by police request delay an arrest warrant the initial for between the prosecutor. charges The criminal the defen- the initiation of and speculative allegations physical to evidence were too of lost dant’s prejudice. trial court did not actual and substantial The establish presented proper finding prosecution a basis for the in the err that attempt by pros- delay. delay to an the was not shown be The gain advantage. a tactical ecution to case, court, properly the of this 5. The trial under circumstances regard to a verdict with the defendant’s motion for directed denied felony first-degree premeditated charges murder and murder the of theory principal committing the was the in the denying The in the defendant’s motion the crime. trial court erred theory prosecution’s regard to a directed verdict with for felony in aided and abetted murder because the defendant beyond show a reasonable doubt there was insufficient evidence to felony alleged principal committed murder. that the jeopardy the retrial of the defen- 6. The doctrine of double bars first-degree premeditated charge murder because the dant on jury acquitted charge. the defendant of that Reversed and remanded. J., dissenting part, Danhof, of the R. J. stated that denial experts request for the did not result a fundamen- defendant’s case,

tally trial. Under the of this the absence such unfair facts experts The outcome-determinative. defendant failed not experts showing not meet the burden of that without she could safely explain proceed failed how the to trial. The defendant ability prepare expert jeopardized her a defense. absence of an request alleged denying experts for not The error in did guilty fel- contribute to the defendant’s verdict. The conviction of ony be murder and the sentence that conviction should affirmed. —

1. Evidence Scientific Evidence. judicially recog- proponent that has The of scientific evidence been community generally accepted is nized in the relevant scientific as applicable regarding required to meet the standard to evidence not People Davis, adopted novel evidence from v scientific States, (1955), Frye (1923). v US DC and United 46 People v Tanner Indigents. — — Expert 2. Witnesses Witnesses denying appoint expert A trial court’s decision a motion to an witness indigent public expense for an defendant at is reviewed for an ,of discretion; abuse concerns whether the defendant inquiry safely proceed expert, and, could otherwise to trial without the if not, prejudiced whether the defendant was and received a funda- mentally having unfair trial as result not assistance. — — 3. Constitutional Law Federal Law Harmless Error. applied by The Michigan federal harmless-error standard is courts in reviewing alleged constitution; ques- violation of the federal tion under this is standard whether the error claimed constitutes a analysis structural defect the trial that defies harmless-error requires automatic reversal or whether it amounts ato trial error occurring presentation may in the case which therefore quantitatively be assessed in the context of the other evidence presented to determine whether its admission harmless beyond doubt; prosecution prove beyond a reasonable must reasonable doubt the constitutional trial error did not contrib- guilty ute to a verdict. — — Delay. 4. Criminal Law Constitutional Law Prearrest right speedy The apply Sixth delay Amendment to a trial does not to occurring before an charge; arrest or a initiation of formal criminal process provides protection against oppressive prear- due limited delay; court, process determining rest implicated, if due is prejudice must balance against the actual to the defendant delay; state’s reasons for the the defendant bears the initial burden prejudice to prosecution show and the burden then shifts to the explain delay; a defendant must demonstrate both actual and prejudice impairing right substantial ato fair trial to establish a due-process meriting dismissal; violation the defendant must also prosecution gain advantage by show that the intended to a tactical delaying charges. formal Aiding Abetting. — 5. Criminal Law and felony A defendant be aiding cannot convicted murder under theory abetting prosecution and where the has failed to show the principal’s alleged guilt beyond doubt; although a reasonable guilt principal beyond doubt, of the must be shown a reasonable principal convicted, aiding need not be to sustain an and abet- ting charge (MOL760.316[l][b]). Cox, Michael A. Attorney General, Thomas L. Casey, Solicitor General, John A. Hallacy, Pros- Opinion Court Attorney, ecuting and K. Miller and Katherine Prosecuting Attor- Richardson, Assistant L. Michelle people. neys, appeal. for the defendant

Arthur James Rubiner and R. J. and Jansen Cooper, P.J., Before: Danhof*, JJ. jury of convicted J. Defendant Jansen, 750.316(l)(b); felony

first-degree MCL sec- murder, robbery, ond-degree 750.317;and armed murder, MCL originally sentenced to concur- She was MCL750.529. parole imprisonment without of life rent sentences years’ forty sixty felony-murder conviction, for the imprisonment second-degree convic- murder for the years’ twenty-five fifty imprisonment for tion, robbery Thereafter, the trial conviction. the armed sponte judgment of an amended court entered sua vacating sentences for sec- sentence, defendant’s robbery ond-degree convic- and the armed murder right. appeals as We reverse defen- She now tions. felony- and her sentence for dant’s convictions the trial court for conviction and remand to murder new trial. stabbing arise from the

Defendant’s convictions Barney’s Bar Watson, a bartender at death of Sharon County, (Barney’s) in Calhoun dur- located Grill robbery ing that occurred at the bar course of a Initially, the Battle 1:00 on March 1995. after A.M. requested Department warrants for Police Creek July Cady and Robert defendant, Paav, Dion robbery alleged in involvement the victim’s for their * by sitting Appeals Appeals judge, the of of Court Former Court assignment. 373 v Tanner Opinion Court of the to issue the prosecutor but declined murder, the

and there ground of on the in the fall 1995 warrants these individuals. charge evidence to was insufficient 1997, office in prosecutor when new took However, a May eventually 23, was issued on arrest warrant open with mur- only, charging her 2000, for defendant felony 750.316; and murder, MCL der, 750.316; MCL robbery, MCL 750.529. armed in 2000. It proceeded to trial November The case Cady, a friend theory the close prosecutor’s as a cus- defendant, regular his status trusted of used Barney’s to bar while gain of entrance the tomer bar. The process closing was in the the the victim that defendant commit- further theorized prosecutor knife, her it leaving ted the murder with own Alternatively, a own blood. drop bar next to her prosecutor that defendant aided abet- argued the mur- Cady felony providing in the murder ted weapon. der Cady prosecution’s first witness. trial,

At was the of work at 10:55 Cady that after out getting testified to meet Paav 1995, planned he had P.M. on March place of work.1 Alley, Paav’s Bowling at Nottke’s Cady to bar, did went where appear, When Paav not to call Paav at home. attempted claimed that he he he then called defendant Cady testified that 1 suspect transcript Cady, There no indication the trial is case, gestae his ever advised of Fifth Amendment witness this res 5; People Dyer, rights. n v As the Court noted prosecutor proper procedure (1986), is to inform for the NW2d 645 “[t]he presence witness, possible court, need of the out judge rights. If the trial finds of Fifth Amendment witness be informed right necessary, warning of his court should inform witness such presence of This be done out of to incriminate himself. should not jury.”

Opinion of the Court arrange purchase Shortly for the of crack cocaine. midnight Cady after on March drove to defen- purchase dant’s house and went with her to crack returning Cady cocaine. After to house, defendant’s together. Cady and defendant smoked crack cocaine testified that about one-half later, hour he left to cash eventually Barney’s a check and went to at about 1:00 Cady although further testified that the bar A.M. appeared to be closed when he arrived because the sign open through off, he entered side door Cady saw Watson, friend whom had known for years, about two and an unidentified white male cus- Cady tomer in the bar. testified that because Watson already register, had closed out her cash she could Cady Barney’s not cash his check. then left and went to another bar, the Tavern, Green where he cashed Cady the check and drank a beer. testified that he say called defendant at about 1:30 A.M. to that he was returning Cady to her However, house. first went to buy stopping some more crack cocaine before approximately Shortly defendant’s house at 2:30 A.M. Cady by Barney’s passing thereafter, home, drove Cady, According about 2:45 A.M. to while he found it lights unusual to see the bar’s on hour, at that he driving nonetheless continued home without stopping.

Cady testified that at about 1:30 P.M. March 1995, Paav called and informed him that Watson had Barney’s. been found murdered in the basement of Although Cady talking was concerned about with the police because of his use of crack cocaine, he and police Paav went to talk with the later that afternoon. Cady, According Barney’s to defendant had been only during years. Cady once the last five further tes- v Tanner close Barney’s would before he knew

tified that if it a slow closing night. time were 2:00 A.M. the usual out, cashing he knew that after Cady admitted that money the back of take the toward victim would next storage there was a area bar, where Cady acknowledged basement stairs. bathrooms and Cady watch bar also trusted the victim from Cady also knew talk- while she cashed out. area employees bar that there the victim and other ing to in a safe the basement. was he cross-examination, Cady that was a testified On help and trying police of the victim to friend in the suspect her killer when he became case. find helped police prepare that Cady also testified he man whom he claimed composite sketches of the two night bar of the homicide to have seen in the on the robbery. Cady accompa- that defendant denied Barney’s attempted him to when he cash nied Cady question. that, in also stated night check on of picture it, shown a he exception being with the police knife recovered at had never seen the that Barney’s. Cady examination,

On redirect testified the vic- his already by tim had cashed out the time of arrival 22, Cady 1:00 1995. also about a.m. on March admit- Brad Wise of that, ted when interviewed Officer Township Department on March the Bedford Police he victim would cash out stated in only regular if were customers early there trusted Cady a conversa- during bar. further testified Barney’s at with the victim after his arrival at tion who “stranger” 1:00 he learned that A.M., about since 12:15 A.M. sitting at the bar had been there up cut or Cady also admitted that he used knife to chip night question rocks of crack cocaine on previously Cady denying after it. further admitted that go, if he it ordered beer would have been a six- pack light.” of “Bud Jerry boyfriend,

Watson’s Dockum, testified that he night ques- received a call from the victim on the closing early tion and was told that she was at about 1:30 A.M. At about 2:00 Dockum became con- A.M., cerned about her whereabouts and called the bar. phone, When no one answered the Dockum called his Loring. According sister, Gloria Dockum, Watson regis- never removed the cash drawer from the cash presence people ter in the whom she did not know. present Dockum further that he testified had been previous Cady’s pres- one when Watson, occasion ence, removed the cash drawer in bar and took it downstairs. Dockum also testified that he had never seen defendant at the bar.

According employee to Maria Coller, a former Barney’s, Loring she received a call from after Dockum had called his Coller, sister. Maria who had keys bar, to the husband, her Ron Coller, then picked up they Loring, Barney’s, finding and went to lights it unusual that the were on. addition, In Wat- parking son’s car in the was lot bar, behind the although According the outside doors were locked. they approximately Mr. Coller, arrived at the bar at Upon entering through 5:30 A.M. on March 22. the side tripped bar, door of the Mr. Coller almost on a six- pack pack Budweiser beer a on Michelob left napkin top the floor awith on of it. The television blaring, purse was and Watson’s was the back calling the bar. After the bar owners and the Col- glasses lers noticed a knife behind the bar where the v Tanner Opinion Court of the the victim’s a the back of chair washed. On were note for take-out also found The Colters coat. the bar. register behind on the cash of beer order opened the door to basement Coller After Mr. of the basement at the bottom cash loose observed down- Going a second time. his wife called 911 stairs, look- basement, all over the walked stairs, the Collers they When discovered the victim. ing for Coller closed, office was Mrs. the basement door to at A.M. time about 6:00 called 911 third bar’s own- Bliler, Tom one of the Shortly thereafter, helped open Mr. Coller ers, arrived at bar the victim’s they where found office, to the door stolen $1,009 had been body. According Bliler, he had never also testified that from the safe. Bliler behind the bar and that knife that was found seen the belong to the bar. knife did not who, time of the Hancotte, at Officer John Township by the Bedford offenses, employed police first officer to was the Department, Police at 6:25 A.M.on March 1995. on the scene arrive been for some victim had dead Upon finding from help called for additional time, Officer Hancotte Michigan Department and the the Battle Creek Police Reporting to the crime scene were Police. State VanStratton, supervi- crime lab Michael Detective time Department Creek Police sor of the Battle employed by the Kansas who was murder, trial, the time of and State Investigations Bureau Zimmerman, techni- Harry O. a crime-scene Trooper Police, who was retired Michigan with the State cian trial. at the time of VanStratton, qualified who was as

Detective anal- bloodstain-pattern in the areas of expert witness Opinion of the Court ysis, latent-fingerprint analysis, and crime-scene Barney’s approximately reconstruction, arrived 7:00 A.M. March and determined that his personnel necessary equipment did not have the process going the crime scene. After back to the Bat- Department tle Creek Police to retrieve additional equipment, Detective VanStratton returned to Bar- ney’s but found that “some of the areas which we thought might investigation already be critical for had occupied by people morning,” been that came in that including employees, being bar and that “[c]offee was made behind the bar.” Detective VanStratton testified important that because “there was some evidence bar,” behind the it was the first area that was isolated. According to VanStratton, Detective the crime- began collecting upstairs scene technicians evidence finding napkin bar, in the a bloodstained stuck inside six-pack beer, of a knife and diluted bloodstains on directly the stainless steel sink area bar, behind the purse, drinking glasses, regis- the victim’s two a cash receipt, piece paper go ter and “a small that had to go, price with five dollars beer to $5.10,” which “were the immediate area behind the bar.” Detec- tive VanStratton testified that the crime-scene techni- proceeded cians downstairs to the basement office body where the victim’s was found. Scattered on the floor front the basement office door were seven $5 bills, which were collected as evidence. The crime- scene technicians also collected a bloodstain that was plasterboard found on the wall at the bottom of along piece containing stairs, with a of the wall what appeared punctures. knife be

Detective VanStratton testified that when he entered the basement office, the victim was found on People v Tanner abdo- smeared across her back, with bloodstains

her In the chest area.” stab wounds to men and “some apparent it was opinion, VanStratton’s Detective disarray in the place the given had taken struggle were on the victim’s scrapes found office and testified that VanStratton further arms. Detective blood on the vic- was an excessive amount of there her neck area and chest body, “particularly tim’s opinion, victim’s area.” In Detective VanStratton’s her have had blood on his or assailant would also possibly clothing or her because the hands and on his were transferred to the assailant. victim’s bloodstains “we VanStratton, Detective did find According to napkin that was found some blood transfer also testified that upstairs.” Detective VanStratton box, on the cash prints identifiable were found three two to the belonging to the victim and the other one police were not able to owner, bar’s but the other crime-scene develop fingerprints from evidence. testi- cross-examination, Detective VanStratton

On shortly after 7:00 he first arrived at bar fied that to it after 8:00 March and returned A.M.on were a num- bar, When he returned there A.M. and people inside, including the victim’s friends ber of VanStrat- employees. testimony, In his Detective bar estimate that there with Officer Hancotte’s agreed ton people in the bar at that time who were about seven people. According not law-enforcement were VanStratton, people mingling were Detective sink, knife, the bloodstains on area where the six-pack of were napkin on the beer the bloodstained in this Although people drinking were coffee found. did not see bar, Detective VanStratton area of the anybody eating. Detective VanStratton also testified that because the bloodstains on the sink were diluted, way “[t]here’sno tell it if was or fresh,” fresh not determining long pres- how the bloodstains had been ent. Detective VanStratton further testified that blood had been transferred from the victim to the assailant during physical struggle in the basement office, speculate but he refused to whether there was more than one assailant.

According Stephan qualified to Dr. Cohle, who was pathologist, as a forensic the victim suffered both injury” “sharp injury.” “blunt force force The injuries scrapes blunt-force consisted of and bruises, sharp-force injuries “primarily while the were stab wounds.” Dr. Cohle testified that the victim suffered “a total of six stab wounds, four in chest, two in opined the back.” Dr. Cohle that “[t]he cause of death [a] stab wound in chest,” which extended causing bleeding. into the heart, massive George Barney’s Bliler, son of one of owners, prosecution. According also testified for the to George Cady Bliler, arrived at the bar between 8:00 why and 9:30 A.M. on March 22, 1995,curious about all police present, departed only were but a after few minutes. employed

Officer Wise, Brad who was the Bed- Township Department ford Police at the time of the Cady approached offenses, testified that him in the gave description afternoon of March 22 and him Cady the white male customer his thirties whom night to claimed have seen the before when he subsequently entered the bar. Officer Wise inter- viewed defendant twice case, about the the first time by telephone person. During and the second in Tanner v 1995, defendant told May 3,

second interview Cady her house at 11:00 came to Officer Wise P.M. to drink alcohol smoke crack 21, 1995, on March told Wise, to Officer defendant According cocaine. check Cady left cash a and returned him that then to they more crack $50, purchase with which used to Wise, told cocaine. Officer According Cady mother’s home at him that she and left her they complained that about a.m. after her mother 3:00 were too much noise. Defendant also told making Barney’s that she not been Officer Wise had years. five or six Wise cross-examination, acknowledged

On Officer Cady police compos- preparing assisted the man he claimed was in the ite sketch of whom Officer also question. bar on Wise night robbery, after homicide and acknowledged Fodor, originally he with Dennis who corrobo- talked description other man in the bar. Cady’s rated of the he talking Fodor, Officer admitted that after Wise description of the other reported gave that Fodor Cady. However, Officer looking man in the bar as like Wise whether Fodor’s statement corrobo- disputed description other man. Officer Cady’s rated originally Fodor stated although Wise testified that time, second closing that he was in the bar until “the Mr. he indicated that he was time I talked to Fodor which eleven o’clock.” Officer call, there ‘till last was it explained said that Wise, however, that “[Fodor] had had much to his call” because he too was last by him off.” point, drink and “the bartender cut May 1995, in the middle of Detective Thereafter, Department Creek Police David Walters of Battle the case and, reviewing to the case after assigned was file and with talking Wise, Officer decided to focus his on his investigation Cady, Robert wife Jennifer Cady, Paav, 1995, Dion May 24, and defendant. On Detective Walters defendant at interrogated the Battle Department Creek Police photo- and showed her a graph the knife that was recovered at crime scene. According Walters, to Detective recognized it was her knife because she had altered “the blade end of the knife” to make up it easier “to clean pipes.” her crack However, during interview, defendant gave no indication that she had been at Barney’s early during the morning hours of March 1995.2

Detective Walters then interviewed Paav and Jen- Cady May 25, provided nifer on but neither one much direction to his investigation. However, after Cady May interviewing 26, 1995, Robert Detective Walters began to concentrate his Cady attention on as principal suspect case, this him meeting in the parking Barney’s lot of for a second interview on June 2, 1995. According Detective Walters, they when approached one Cady another in the parking lot, was wearing even sunglasses, though it was “a dark, dreary day,” and “he visibly shaking, like his body was his shaking, hands were shaking.” While bar, Cady inside the acknowledged response to Detective Walters’ questioning that he knew that the kept safe was in the bar, basement although he transcript There is no indication the trial whether defendant was Arizona, rights 436; under Miranda v ever advised of her 384 US 86 S Ct 1602; questioned (1966), 16 L Ed 2d 694 before she Detective Wal ters in this case. We also note that defense counsel never raised the Miranda issue in the lower court, questioned nor Detective Walters whether defendant was advised of her Miranda rights. 383 Tanner v

Opinion of the Court basement entrance to the know where the did not in the bar. Subsequently, Walters, 7, 1995, Detective on June accompanied of the Battle David Adams Detective questioned Department, once defendant Police Creek Barney’s again that occurred at the homicide about During took interview, which on March 1995. police place defen- showed car, in a Detective Walters photograph in the knife was found that dant a According defendant Walters, Detective bar. to indicating acknowledged her knife, that it was where she used it her mother’s residence she had at further that defen- Detective Walters testified lived. fingerprints Paav, indicated that her or those dant residence, would be on who lived the same “they knife” had both handled the knife because prior to to homicide.” “three four weeks about during the that, also testified Detective Walters defendant that she 7, 1995, interview, June admitted Barney’s accompanied Cady A.M. to after 1:00 According Walters, March 1995. Detective stayed vehicle, while defendant stated that she Cady cash and that check, went inside the bar to couple parking in the lot at the there were cars time. Detective Walters testified that defendant stated Barney’s approximately leaving 1:30 that after A.M., Cady establish- she and then went to various other night buy cash a check and beer before ments purchase stopping some cocaine. When crack questioned about Detective Walters responsible killing might she have been whether ques- victim, she her head in denial. When shook which she about the circumstances under tioned might homicide, Walters commit such Detective reported that defendant said that “if that had bitch something treated her bad would she do to that effect.” Detective Walters further testified “Defen- person dant said that that would been have responsible for would [sic] this have been blood on Cady meaning them and that Rob have —didn’t Rob— any on him. she blood And said what would have she bloody done with the clothes. I she think also said to person the effect would have had—the victim was person moved to basement so the would have had blood have on them that did that.” On cross-examination, who, Detective Walters, of trial, time was retired from the Battle Creek Department years twenty Police after service, acknowledged point during that, at some his two- investigation robbery, month into the homicide and police conducted search of defendant’s resi- dence with her consent and seized her clothes, including purple jogging nightgown, her suit and any “trace evidence,” fibers, such as blood and hair they determine whether matched the blood hair fibers that had been found at the crime scene. Detec- compari- tive Walters indicated that the hair and fiber any police son did not reveal match. The also Cady’s seizing searched residence with his consent, Cady’s clothing. some articles of his car was also May police on 1995, searched 26, but the found no linking blood hair or evidence him to the crime. Although Paav’s residence not searched, police again nothing vehicle, searched his but found linking Paav to the crime. response questioning

In to defense counsel’s about interrogation May conducted Department, Battle Creek Police Detective Walters v Tanner

Opinion the Court with problems “some experienced that he admitted was used to record equipment” that the audio-visual interview, during the Specifically, interview. equipment Walters discovered Detective “[t]he point and that at some properly,” working was not not the properly again, work but the audio started to throughout worked apparently which never video, only about one-half of the result, As a interrogation. thirty-two- audiotaped. A interrogation was lengthy inter- audiotaped portion of the transcript of the page Detective prepared. However, was thereafter rogation listened to the that he had never Walters admitted compare transcript it with the audiotape order prepared May 24, 1995, interrogation. that was Detective Walters further admitted defendant’s articulation was at times” and that she was “rough result, difficult to understand. As a there were which transcript, “inaudibles” in the thirty-two-page surprisingly high Detective Walters admitted was a transcript number for a of this length. direct Detective Walters testified on

Although in interrogation examination that defendant stated the police May 24, 1995, at the station on the knife “[t]hat by was hers” and that “she the knife the recognized that point it,” on he conceded on cross-examination my knives,” while she stated that “it looks like one of question her answer to the whether it was “one In your was transcribed as her no.” “saying knives” addition, questions defendant’s other answers to his Notwithstanding, about the knife were inaudible. in testimony given Walters stood his Detective direct examination that defendant admitted that the that acknowledged knife was hers. Detective Walters of inaudibles in the tran- despite high the number script May interrogation, the he did not tape Michigan send oratory State Police Crime Lab- quality. to enhance the sound acknowledged Detective Walters also at that 1:10 “officially, report on 22, 1995, A.M. March there was pickup style being leaving of a truck vehicle seen the pickup According Walters, area.” to Detective “possibly light pickup” truck was colored with “[a] homemade box with a box or wooden frame police back.” Detective Walters testified that investigated this information, but did not find a pickup description truck that matched the vehicle. cross-examination,

On Detective Walters conceded police that had no direct evidence that defendant Barney’s inwas the basement the time of the acknowledged murder. Detective Walters also that Cady suspects, they while and Paav were were not charged Further, in this case. while Detective Walters admitted that defendant never told him that knife belonged found the bar Paav, he conceded that during he told Paav an interview June 7, 1995, on defendant said that knife was his. Detective Wal- ters admitted he lied to Paav he because wanted telling “to see if [he] [] the truth.” Detective Wal- ters also admitted he lied to defendant when he during fingerprints her told interview that her were the knife. Detective Walters further admitted going Cady that defendant denied with to cash a Barney’s question night check on the and also being night. denied in the bar that Dion Paav testified that he knew victim as a Barney’s bartender at out her found about death morning 1995, on the March when a cook at v Tanner mur- him that she had been Barney’s called to tell he forty-five years old, testified that Paav, then dered. years ten Cady with since he was been friends had Cady on planned meeting that he old. Paav testified 21, 1995, March because Barney’s evening Barney’s, they where were lived near both of them work at However, getting after off customers. regular togo home and did not straight Paav went 4:00 P.M., he did not receive a call Barney’s. Paav testified that also testi- anyone night. else that Paav Cady from or Detective Walters telling that he could not recall fied that he had with telephone conversation about a Cady after the mur- while for house-sitting defendant presented previous with a state- However, der. when he police, made to the Paav admitted that ment he at some have a conversation with did barely that he could point, although he claimed fin- something her and that she said about understand and the knife. gerprints day trial, Detective Walters

On the final and testified that Paav prosecution recalled Cady house-sitting him that when he was told Day weekend in he received over the Memorial to Wal- telephone According call from defendant. police she had ters, thought said that “[Paav] Barney’s knife at fingerprints found her on the tennis police that the had her —taken her gotten also shoes.” Clement, called prosecution Megan

The also Laboratory Corporation of American employee Car- company based North DNA-testing (LabCorp), in dna as an witness olina, qualified who was analyses. testified that she Clement serological from the blood to obtain dna results was unable 388 255 369 Opinion of the Court the sink found on behind the bar because there was develop of dna which insufficient amount from to profile purpose comparing a for the of it with defen- sample. According dant’s Clement, blood to tested she six bloodstains from victim’s shirt and “the profile all on six strains were consistent with one originat- all other, and six stains were consistent with ing from the same individual; however, it could not profile have been Ms. Tanner. Her than different profile However, these six stains.” Clement did identify profile not whose was contained on six bloodstains. process serolog-

Clement also testified about the of testing, explaining ical that there are four common types A, AB, blood and B, O—and that there were — types enzyme phospho- ten different glucomutase per- (PGM) found in human blood, thus mitting subtyping regard type with to blood and PGM. According you type Clement, “if for ABO PGM, you frequency frequency look of ABOtimes the up percentage [of] the PGM to come with what of the population would have both of the characteristics sample explained: detected.” Clement then population type In approxi- the Caucasian B blood is percent

mately plus plus ten a PGM approxi- two one is mately percent, actually percent. you 20 multiply 21 If person type two plus B have blood and be a two plus approximately percent one it pop- would be two population. ulation the Caucasian Clement added: population type In the African-American B is much pgm

higher. approximately percent. It’s plus And the two plus percent, approximately one is about percent 19.8 so v Tanner person type as So a have well. who blood B and PGM [sic] plus plus population two one in the African-American approximately percent would be four it be so would twice population as in the common African-American as the Caucasian.

On cross-examination, acknowledged Clement there was insufficient blood obtain results dna from the bloodstain that was found near the sink in the bar. addition, In Clement testified that the dna analysis exculpated six bloodstains defendant. During cross-examination, defense counsel also ques- tioned many Clement about how in the people United B type plus States have and PGM plus. two one In Clement response, stated that considering Afri- twenty-six percent can-Americans constituted United of population States 280 million people, “26% 280 million people percent of times four of that” “[pjossibly resulted in millions” matching this serolog- profile. ical Defendant is African-American. Mahanti,

Nibedita who was employed by the Michi- gan Police, State also testified as expert an witness analysis for the prosecution. Mahanti testified dna performed analysis that she on blood samples dna from victim, defendant, the Cady, and Paav and from the evidence items that were submitted her. In opinion, profile Mahanti’s the dna of the blood sam- ples knife, from a napkin, and stained cloth profile matched the dna profile of victim. The DNA of the victim also napkin found on one from the bar, a sample blood that was taken from next to the knife, and a of section cardboard from box. The sample sink, blood from the bar had however, insuffi- produce cient dna a reliable result. In addition, blood found on the of section the victim’s shirt con- profile donor, of an because the dna unknown tained by Cady, victim, defendant, not contributed it stipulated the admission of Paav. Defense counsel or objection, report and without moved, Mahanti’s dna expert recognized an in DNA Mahanti be as analysis. prosecution also called Marie Bard-Curtis to

The testify serology. as in the of Bard-Cur- area Department employed Michigan tis, who was Division Microchem of State Police Forensic Science performed serological she test- Subunit, testified that ing following on the evidence items received from the Department: “a Battle Police white folded Creek paper packet containing sample as from identified sample area”; “a control from that “a sink”; the bar top sample taps”; from bar near the beer “[s]ample napkin pack”; “[a] from a a beer six sam- ple and the to the knife”; “[a] from the bar sink next sample portion stain”; of with a blood “a wallboard samples portion and lid”; a box blood the victim incorrectly whose first name was recorded as Susan. typing ABO blood Bard-Curtis also obtained Cady, typ- as well victim, defendant, Paav, as PGM ing blood of victim defendant. type had Bard-Curtis testified the victim blood subtype 2+, B and PGM of while 1-, defendant had type Cady subtype 2+, 1+. blood B and of and PGM type samples Paav both had blood A. The from the top, knife, bar bar and sink next to the the wall- box and board cardboard were tested showed protein presence blood, of human but insufficient per- perform subtyping. Testing available to PGM. clothing of formed on the articles seized from defen- presence did not dant’s residence disclose v Tanner Opinion Court However, human with sample blood. to the regard blood taken from the bar sink that was found next to knife, Bard-Curtis testified: “The ABO type deter- mined on type the blood the bar sink was B. Hattie Mae type Tanner was blood B. The PGM subtyping sample detected on the from the bar sink was two plus plus one and Hattie Mae Tanner was also two plus plus.” one

On cross-examination, Bard-Curtis testified that no results were obtained from the control sample, indi- cating that contamination had not affected the However, results. Bard-Curtis admitted that she did not know if samples” “whole blood were submitted to her analysis, possible it was bloodstains could have been the mixture of more than person’s one blood. On examination, redirect Bard-Curtis testimony. clarified her Assuming that two individuals contributed to a blood sample, Bard- Curtis testified that both individuals would have to have B type blood if the result were type B sample and both would also have the enzyme same PGM subtyping.

After prosecution rested, defendant’s first wit- ness was Huskins, Catherine who testified that she knew the victim and that she and her husband police informed the that before the murder the victim had found a nonfolding knife and that the victim had told her husband that she going keep it in her purse. However, on cross-examination, Huskins, after being shown the knife, admitted that she had never seen the knife before.

Defendant next called Crum, Dale who worked at Barney’s in 1995 and at the time of the trial. Accord- ing to Crum, the door Barney’s basement at 392 during kept hours so unlocked business shut but

was employees for food access the basement could that supplies. and Mae mother, Hattie Tan- her

Defendant also called testify that behalf. Mrs. Tanner testified ner, to her evening was March on the Cady, frequent who visitor to was a home and that present. According Mrs. Tan- was to house, her also dining-room Cady sitting table drink- was at her ner, up morning. ing Mrs. Tan- when she woke in the beer any clothing. see blood on defendant’s ner did not family Tavern, Green, whose owns Green’s Todd Cady that was at the as a defense witness testified midnight on minutes after March bar for about fifteen Cady, cashing after a 22, 1995. Green testified that telephone a bar, check at the drank beer and made leaving. call before Cady that testified her own behalf

Defendant 22, 1995, house March was at her mother’s Cady they together that crack cocaine before smoked Cady According defendant, to left to cash a check. cashing check, her after returned to mother’s house again but around 2:30 A.M. or 3:00 A.M. Defendant left anywhere Cady night she went with that denied that except purchase shortly crack him to cocaine with midnight. Specifically, after defendant denied that she Cady Barney’s question, night went with on the to question victim, killed that the knife in she told that the hers, that she Detective Walters knife hers. Defendant that she could not testified gone Barney’s,although having she remember ever Cady acknowledged had told her that she been years previously. According ten there once about any tape recording defendant, indication in the People v Tanner

Opinion Court she told Detective Walters that she had been Bar- ney’s couple of times was incorrect. As for the knife, defendant ques- testified that when she was tioned Detective Walters police station, at the “I yes, told him looked like a knife I used to have. I [it] asked him did it bend or fold. He said no. I said it couldn’t my have been knife because it’s not allowed on the job, bladed straight knife.” Defendant also any denied giving statement to Detective Walters in police his on 7, car June 1995.

Defendant also called Kevin Sage, who testified by Barney’s that while passing between 1:15 and 1:25 A.M.on 22, March saw 1995, he “a light colored truck pickup with a a wooden on cap it” that “looked —or like ... a house.” According to saw Sage, he “a driver that looked white, Caucasian awith beard and there awas passenger.” Nancy

Defendant’s final witness was Chantrene, who testified that at A.M. 22, 1995, 2:47 on March she passed Barney’s en route to work post at the office when she noticed that the outside sign on, which was unusual. to According Chantrene, a light colored truck had cap “that on it” parked along the west end of the bar.

i On appeal, defendant first argues that the trial court pretrial erred not conducting hearing to pgm determine if blood typing complies with the Davis-Frye standard, adopted People v Davis, from Frye 348; 343 Mich 72 v United NW2d 269 (1955), States, App 54 US DC 46; 293 F 1013 which (1923), requires that novel scientific must methods be shown App 394 369 acceptance gained general in the scientific to have they being community belong admit- before to which People Young, 418 Mich v as evidence trial.3 ted (After (Young I) (1983) Re- 340 NW2d 805 17-19; (1986) (Young mand), 391 NW2d 270 470; 425 Mich People II); 269; 489 195 Mich Adams, v grounds (1992), 441 Mich mod on other NW2d 192 questioned (1993). Although whether defendant exper- possessed prosecution’s witnesses opine population genetics the statistical tise probability specifi- blood-type results, did not she acceptance cally challenge of electro- the scientific phoresis identify types PGM markers. blood or preserve Therefore, failed her claim necessary. 103(a)(1); Davis-Frye hearing was MRE 677, 684-685; NW2d Kilbourn, v evidentiary Unpreserved (1997). is reviewed error 669 People rights. plain affecting v substantial for error (1999); Carines, 750, 763; 460 Mich 597 NW2d 130 People Herndon, 404; Mich 633 NW2d 371, v 246 (2001). 376 Young which case, I,

In this defendant relies holding Davis- trial in not held the court erred 3 Inc, Pharmaceuticals, 579, 587, In Daubert v Merrell Dow 509 US Supreme 593-594; 2786; (1993), S Ed 2d the States 113 Ct 125 L 469 United stringent Frye acceptance Court, “general rejecting test the more of admissibility community,” the held that the of scientific within scientific primarily by Evi- is 702 of the Federal Rules of evidence controlled Rule opinion determining proposed the is suffi- In whether scientific dence. Daubert, ciently jury must consideration under trial court reliable for testify proposing (1) “the is scientific determine whether knowledge (2) will the trier of fact to understand or determine assist Daubert, Daubert, supra evidentiary Under fact issue.” 592. reliability expert testimony upon proposed valid- is based scientific Davis-Frye ity. 590, However, we Id. bound to 592-595. are follow by Supreme is until time as the standard modified our standard such Boyd Shows, 515, 523; (1993). v WG Wade Mich 505 NW2d 544 Court. v Tanner

Frye to determine hearing admissibility technique then-novel electrophoresis. In serological Young I, the Court evidentiary remanded for an hear- ing in the trial court “to determine whether serological results of electrophoresis have achieved scientific general acceptance reliability among impartial and experts.” disinterested Young I, supra, 418 Mich 25. Defendant Young also relies on II, which prosecution held that the had not established dis- experts interested electrophoresis thin-gel dried bloodstains was generally accepted in the rele- Young vant field. II, supra, 475, 481-485, 495.

Defendant’s reliance on Young Young I and II to plain establish error in present misplaced. case is First, Supreme our Court recognized general acceptance community scientific of serological electrophoresis and the acceptance in the scientific community of the general validity of genetic-typing supra, tests. Young II, 499. argument

Defendant’s also fails because the propo- nent of scientific already evidence that has judi- been cially as recognized generally accepted in the relevant community scientific is not required to meet Davis-Frye standard. People v Haywood, 209 Mich App 217, 221-224; 530 NW2d 497 (1995); United States Downing, v 753 F2d 1234 (CA 3, After 1985). Young II, this Court twice held that singe-test serolog- electrophoresis identify ical gener- markers is PGM ally accepted as reliable in the relevant scientific community. People Gistover, See v 189 App 44, Mich 48, 53-54; 472 27 NW2d (1991) (recognizing the gen- acceptance eral People v electrophoresis); Stough- 185 ton, App 219, Mich 229; 460 591 (1990) NW2d 369 255 electrophor- system single (noting method of that “the by accepted com- the relevant scientific been esis has independent munity subject valida- is not to and Young17”). requirement of tion unpub- Finally, Carines, in v we note that Appeals, opinion per the Court of curiam of lished 182792), April (Docket which No. issued supra by Supreme at Carines, in Court affirmed our Stoughton, Gistover and 753, this Court followed single-sys- holding admission of evidence of that the electrophoresis for two of dried bloodstains tem plain genetic In not error. PGM and markers, eap, affirming Carines, Court’s decision this indirectly approved Supreme Gistover Court prosecution Stoughton had it held when guilt, presented of the defendant’s sufficient evidence key inculpatory including derived bloodstain evidence electrophoresis. supra 772. Carines, 758, 761, from

H argues denied Next, that the trial court defendant process expert appointing or a a dna her due not Specifically, serology expert to assist her defense. argues indigent, as an she was enti- that, respond expert assistance order to tled such expert testimony prosecution’s wit- the trial analysis qualified in the areas of dna nesses who were serology.4 We review for an abuse of discretion appoint denying a court’s decision motion to trial denying appeal court erred in Defendant claims on trial also expert appellate serological assist to retain a her motion funds counsel, we hold raised in her motion for new trial. Because which was denying assis motion for the trial court erred defendant’s trial, we not address this issue. tance need People 397 v Tanner expert for an public witness defendant indigent at expense. Herndon, supra at 398.

A appointment The issue concerning expert of an witness an indigent for was addressed v this Court in Leonard, 224 App 569, Mich 580; 569 NW2d 663 In (1997). case, pros- argued ecution that the trial court abused its discre- tion in granting a new trial to the defendant on the basis that the defendant did not have a expert at dna trial. In Leonard, Court, this referencing princi- Ake v Oklahoma, ples articulated 68; 470 US 105 S Ct 1087; 84 L Ed 2d 53 (1985), noted that “[u]nder the Due may Process Clause, states not condition the exercise of basic trial appeal rights on a defen- ability pay dant’s Leonard, supra rights.” such at 580. This Leonard added that while indi- Court gent defendants are not entitled to “all the assistance that wealthier might defendants buy, fundamental [] ‘ requires fairness deny the state not them “an adequate opportunity present fairly their claims ’ ” within the adversary system.” Id., quoting vMoore Kemp, (CA 809 F2d 702, 1987), quoting Ross v 709 Moffitt, 600, 612; US 94 S Ct 2437; 41 L Ed 2d 341 the Leonard Court, (1974). However, reviewing after the case law from other jurisdictions, pointed out: something defendant must demonstrate more than a

“[A] possibility requested mere expert; assistance from a due process require automatically government does not provide indigent expert upon defendants with assistance Rather, reading precedents demand. a fair of these is that a defendant must show the trial court that there exists a rea- probability sonable both that an would be of assis- 255

Opinion of Court expert assistance that denial of to the defense and tance fundamentally [Leonard, unfair trial.” in a would result Moore, supra 582, quoting supra at 712.] supra held: Leonard, Thus, this Court psy- courts, majority than other with the [Consistent appointment experts, entitled to the a defendant is chiatric expert public expense if he cannot otherwise at of an pnly 775.15; safely expert. MSA proceed without the MCL to trial nexus words, a defendant must show a In other 28.1252. expert. for an case and the need the facts of the between 641; (1995). Jacobsen, 639, NW2d 838 People v 448 Mich 532 principles, Applying Court found these the Leonard granting defendant a court erred in that the trial entitled that the defendant was new trial on the basis expert. Specifically, held that the Leonard to a dna finding was that the defendant trial court erred expert simply dna evidence a dna because entitled to being against even assum- However, him. was offered erroneously deprived ing a was of the defendant any expert, error defense Leonard stated that dna indigent depriving counsel or the trial court appointment expert grounds of an is defendant of the prejudiced only “if [the] defendant for reversal fundamentally unfair trial as the result and received supra having expert Leonard, of assistance.” not People citing 214-215; Mateo, v 453 Mich People (1996), 298; v Pickens, 446 NW2d891 People Young (After (1994), v NW2d 797 (1986). Remand), 470, 501; 391 NW2d 270 concluded that the defen- Because the Leonard Court process by the lack of was not denied due dant expert, dna the defendant was it did not address whether prejudiced. v Tanner case,

In this defendant contends that she was right denied her federal to due process when her pre- trial appointment motion for the of expert witnesses in the areas DNA serology Specifi- denied. cally, procurement sought and testi- expert mony witnesses in order to respond to the prosecution’s contention that the bloodstain that was found the sink behind bar implicated her in felony murder. While the procedural posture of case, this pretrial which involves motion for appointment expert public witnesses at expense, is different than Leonard, which involved grant aof new trial on the basis that the defendant was entitled expert to a dna trial, we apply nonetheless prin- ciples set forth in Leonard in analyzing whether defendant was erroneously deprived of the appoint- ment of witnesses in dna and serology at trial. To determine whether defendant is entitled to such expert assistance we first consider whether she could proceed safely otherwise to trial without these experts. If defendant could not do so, we then con- sider whether she was prejudiced and received a fun- damentally unfair trial as the result not having expert assistance. If defendant was prejudiced, so then reversal her convictions and the sentence for the felony-murder required. conviction is

In whether determining reversal is required, we note that the Leonard Court erred in referencing the harmless-error standard for nonconstitutional error as supra set forth Mateo, in at 203.5Because the claimed 5 standard, binding forAs Leonard is not the harmless-error under 7.215(T)(1) point MCR did because it not establish a rule of law on this since its discussion of the harmless-error standard was mere obiter dic (On Corp v Remand), tum. See Sumner Gen Motors App 653, 245 Mich App 369 255 400 Mich Opinion the Court con- the federal violation of alleged error concerns federal harmless-error apply the stitution, we must 446 Remand), (After v People Anderson standard. Chapman citing (1994), 538 404; 521 NW2d Mich 824; 17 L Ed 2d S Ct 18, 24; US 87 386 California, v 279; Fulminante, 499 US v and Arizona 705 (1967), 6Under the fed- 302 1246; (1991). 113 L Ed 2d Ct 111 S is standard, question whether eral harmless-error error constitutes a the claimed federal constitutional harmless-error trial that defies defect structural require reversal or automatic analysis so as in the occurring to a trial error it amounts whether “ may therefore ‘and which of the case presentation evi- of other in the context quantitatively be assessed whether in order to determine presented dence beyond a reasonable was harmless its admission ” quoting Fulmi- Anderson, supra 405-406, doubt.’ People v Solomon see also nante, supra 307-308; 527, 535; 560 220 Mich (Amended Opinion), Chap- the standard stated (1996). NW2d 651 Under prove beyond a reasonable prosecutor must man, the contribute error did not doubt that the constitutional guilty to the verdict. not a error is alleged constitutional case,

In this mecha- infects the entire trial structural error as trial error classified nism; rather, it should be support, case. In presentation occurring n Scott, SW3d 755 6 rely upon State v 33 we Tennessee, Supreme Court of (Tenn, 2000), where 3; Petros, App 401, 661; (2001); 406 n 499 v 633 NW2d (1993). NW2d 784 769.26, People Lukity, dissent, citing 2.613(A), MCL v The MCR (1999), mistakenly 484, 495-496; references the 596 NW2d 607 preserved, error. nonconstitutional harmless-error standard for People v Tanner in reversing indigent defendant’s convictions of rape assault, and aggravated held that the failure to provide the defendant with expert state-funded assis- analysis tance in the area of dna was “a trial error and properly subject to constitutional harmless error anal- Scott, Id. ysis.” In Supreme Court of Tennessee indigent found that the defendant had demonstrated a “particularized expert assistance, need” for finding identity of the offender was the “[b]ecause only real issue at trial and jury’s because the conclu- sion as to the weight the dna evidence may have been conclusive as to its determination of appel- guilt, expert lant’s analysis assistance in dna may have been crucial to a successful defense.” Id. at 754. How- ever, because the denial of expert needed assistance “ did not affect the ‘entire conduct the trial from ” the Scott Court concluded that it beginning end,’ was a trial error. Id. at 755 n 6. We likewise apply the harmless-error standard under the federal constitu- tion for trial error determining whether the alleged constitutional error in this beyond case was harmless a reasonable doubt. Rey v State, 897 SW2d But see 333, 345-346 (Tex App, Crim 1995) (ruling on the basis Ake, supra, of the reasoning expressed depriv- ing an indigent necessary defendant of expert assistance amounted to a structural defect the trial that defied harmless-error analysis).

B On 9, 2000, October a hearing trial court held defendant’s motion for assistance. Defense any counsel did not call witnesses at the hearing and requested expert assistance because “[o]ne important prongs of prosecution’s] theory against [the App 369

Opinion Court evidence,” arguing to blood relates this the defendant to I be able requires that process really “due that questioned When degree.” a minimal to explore this that indicated court, defense counsel trial by the him in necessary assist to expert assistance and blood evi- of the dna the nature understanding to so as by prosecution presented being dence following charges. The against his client defend ensued. colloquy your you through do cross-examina- Can’t The Court: person bring? the dna that the

tion of government Imagine if the Mr. Sullivan counsel]: [defense only way they prepare their case and be could had to—the government’s develop defense or their their informed and to take the stand strategy is wait for the defense witness to money, asking not a lot of to learn. I’m for and cross them experts wouldn’t Judge. I think most would DNA veiy indigent defendant. charge much for you, Well, beg with Mr. Sullivan. I to differ The Court: expertise. fairly sophisticated area of That’s reanalysis, asking be not there I’m Mr. Sullivan: just asking with them about Judge. I’m for consultation asking not for would mean to them. I’m what these results asking blood, any analyze I’m not—I’m not of that. them to money anything like that. for lab work or only with someone and You want consult The Court: People have? what the have them review Yes. Mr. Sullivan: them, it? is that And be able to talk with

The Court: upon the Right, and con- then based Mr. Sullivan: Then— maybe have, a witness I call them as versation that would for the defense. money, opens a more Mr. That a door to lot The Court: position your it to this Kabot, as relates

Sullivan. Mr. what’s request? My this, position prosecutor]: is

Mr. Kabot [assistant this full well—the blood Judge Mr. Sullivan knows —and People v Tanner upstairs bar, stain that was the sink in the that was serology. tested for There is breakdown of that —of that along samples blood with the blood that were submitted they people, again a number of other because were tested serologically they enzymes were tested for PGM see— [,] there is a breakdown. And as Mr. Sullivan knows report came back indicated that Ms. Hattie —Ms. Tanner’s specified group blood was included within the that could really have been a donor of that blood. DNA-wisethere isn’t anything anything links this defendant that was through found that bar dna.

The Court: Even in the basement? Mr. Kabot: Even in the I basement and think Mr. Sullivan talking understands that also. That what we’re about every report basement and in the blood the basement that performed we received back where dna excluded Hat- tie Tanner. point The Court: So the took it from Mr. Sullivan’s —I

argument going we were different direction —at this point only you thing apparently time the have that inference link would Ms. Tanner to crime scene is she type has the same blood as was found on the stain in the nothing and kitchen there is in the basement in terms of the analysis scene, that at all links Hattie Tanner to that is dna it, that Mr. Kabot? my Mr. understanding, Kabot: That’s Judge. Now under- just got day stand I this case the other and I had it at home reading over the and weekend I was it. But from each of reports that reports we received back —forensic con- cerning I saw on each of those that Ms. Tanner was dna by way excluded being of dna as the donor for whatever they sample testing. blood were you person The Court: Would even call this as a [sic] prosecution witness then? only thing your Mr. Kabot: The going do, that I’m Honor, Megan any- as far as Clements is concerned or [sic] ques- one else as far as dna is concerned is—there are some them, tions I have to ask but I mean as far as Mr. Sullivan’s cross-examination of them I’m not sure how much there’ll people again even be for the dna because the bottom line is App 369 Opinion Court know, says right Hattie testing there. You the results of the vic- being on the the donor of blood from Tanner’s excluded they stains that recovered clothing blood and the tim’s body inwas victim’s which area of the the immediate really is there how much cross-examination basement. So issue, only knows. concerning Mr. Sullivan that going to be Mr. Sullivan. The Court: position here? I offer a middle

Mr Sullivan: Can Sure. The Court: you approve enough you about Mr Sullivan: How [sic] expert, then based on

money and to me to consult the dna money you persuade some if I can that consultation testify we can revisit for him to then be kicked in should put area, the trial. that wouldn’t off and Sullivan, thing Well, occurs me Court: Mr. The poten- happen saying this would is that —and I’m not —but expert expert tially you and that confer with this would expert say prosecution’s wrong, it is all I think the would in the base- really defendant with the blood doesn’t link the already you Why you when have need someone ment. do your saying client? prosecution it excludes witnesses pros- that “the trial court concluded Because the exculpate the would exonerate expert ecution’s it scene,” found at the from the evidence to hire an request funds denied defendant’s serology. areas of dna witnesses in the c depriving in We the trial court erred believe that and areas of dna expert assistance the defendant of proceed she could not otherwise because serology safely without such assistance. to trial includ- facing charges, various

Here, defendant life punishable by felony an offense murder, ing penalty maximum parole, the imprisonment without Notwithstanding Michigan. the state of under law in v Tanner Opinion the Court severity prosecution’s charges, case of the parties quite against tenuous. As the defendant was hearing, recognized the dna evidence at the motion to the dna found defendant as a contributor excluded expert samples. there was Moreover, on the evidence testimony on the victim’s the blood found at trial that profile female. of an unknown shirt contained the dna exculpated though defendant, Even the dna evidence serolog- prosecution’s experts determined that the because linked her to the crime scene ical evidence type subtype were the same as and PGM her blood on the sink on the diluted bloodstain found those interpreted bloodstain, bar. In this as fact, behind the by only prosecution’s expert witnesses, was physical defendant to the crime evidence that linked against prosecution’s case defendant Thus, scene. very heavily analysis upon serological and rested expert testimony prosecution’s witnesses. of the dna and blood evi- Given the critical role absolutely case, in this it was essential expert dence provided assis- to have been with defendant analysis serology tance in the areas of both dna meaningful opportunity in which to to have a order prepare against charges and to her defense expert respond prosecution’s three witnesses to the suggested While the trial court trial. the dna evidence not need a dna because

did rightly exculpatory defendant, defense counsel was pointed hearing that defendant out at the motion right put on her nonetheless had the constitutional rely upon pros- simply what the and not own defense seeking prove developed ecution had expert, By having against charges her own her. dna develop argue have been able to defendant would 369 Opinion of Court the point exculpated the that the evidence her. More- dna given complex over, the nature DNA evidence, of expert necessary was assistance to ensure that defen- properly represented, especially was dant since acknowledged subject defense counsel that the mat- beyond understanding. Specifically, ter was his was it expert analysis evident assistance in was DNA needed to enable defense counsel to cross-examine prosecution’s expert the witnesses in an effective supra (finding expert See Scott, fashion. absolutely assistance in the field of dna “was evidence competent representation given crucial to that the subject inordinately complex beyond matter was understanding attorneys” the common of most in a prosecution where there were “inconsistent results regarding samples”). donor the hair For these reasons, we do not believe that defendant could have safely proceeded to trial without the of a assistance expert. dna denying

In addition, court, the trial defendant’s expert ignored motion for funds hire witnesses, expert fact that defendant also an needed have wit- serology. ness in the area of After it all, was evi- presented by prosecution’s experts dence in serol- ogy, Megan Clement and Marie Bard-Curtis, that linked defendant to the crime scene basis the fact that she could have been a donor of the blood that was found on the sink next to bar. serology, Without her own witness in however, against defendant had no means to defend herself inculpatory effect of such evidence or to its diminish by explaining force that it constituted anomalous (finding “expert test result. Id. at 754 assistance especially help needed to determine whether the v Tanner Opinion the Court why appellant were contaminated samples test in one as a donor excluded apparently damaging Considering analysis”). involving PCR it evidence, serological prosecution’s nature case that of this in the context imperative was thus in expert witness with an provided be defendant expert. a DNA as well as serology case, defen- of this circumstances the factual Under fundamentally received a prejudiced was dant expert assis- having not the result of trial as unfair Leonard, supra at 583- court. by the provided tance stan- harmless-error appropriate the Applying 584. was harmless the error say that dard, we cannot compelled we are Thus, doubt. beyond a reasonable and her sentence convictions defendant’s to reverse felony-murder conviction. the key physical evidence already indicated, the As drop the of diluted by prosecution was presented sink, near found next that was blood pros- Bard-Curtis, weapon. murder alleged in testi- serology, witness principal ecution’s with defendant’s was consistent fied that the blood type 2+, 1+. While this same B and PGM type blood type, blood it matched the victim’s drop of blood blood- type. The with the victim’s inconsistent PGM type the blood of inconsistent with stain was also Further, Paav. accord- Cady and suspects, two other in expert witness prosecution’s Clement, ing type B serology, blood application the statistical percent four 1+ in about 2+, and PGM is found to the Thus, according population. African-American likelihood apparently high was an there prosecution, on the sink was found bloodstain that that the diluted behind the from defendant, bar came an African- American. only significant

The other evidence adduced prosecution support of defendant’s conviction of felony upon murder based Detective Walters’tes- timony regarding defendant’s statements to him under questioning. First, Detective Walters testified that defendant, in two statements, different identified the belonging knife found behind the bar as to her on the chipped tip basis Second, the blade. Detec- tive Walters testified that defendant stated in the police interview conducted in a car 7, 1995, on June Cady Barney’s night with she went on the question stayed parked but car. Detective Wal- ters also testified that told him that her fin- gerprints might be addition, on the knife. In Detective Walters testified that in an defendant, answer to a hypothetical question might whether there be circum- stances in which she would have committed the crime, that, stated “If that bitch had treated her bad something she would do to that effect.” sought However, trial, defense counsel to under- credibility Specifically, the mine of Detective Walters. acknowledged Detective Walters that when he inter- rogated Depart- defendant at the Creek Battle Police May equipment 24, ment on 1995,the audiovisual mal- only functioned and that about one-half the of exten- interrogation audiotaped. sive was Moreover, there transcript thirty-two-page were 261 “inaudibles”in the prepared portion that was the about recorded of interrogation. Despite admittedly high number inaudibles, Detective Walters never listened to the tape attempt accuracy in an to increase of the transcript, dispatch tape nor did he the Michi- to v Tanner improve quality- Signifi- the sound State Police to

gan in his Walters claimed cantly, Detective although stated testimony that defendant direct “[t]hat cross-examina- hers,” during he admitted knife question whether that answer to tion defendant’s as her her knives” was transcribed it was “one of that Moreover, we also note defendant’s “saying no.” Walters to Detective on June alleged statements police apparently in the car, place took Adams, and officer, another Detective presence of We note Detective not further were recorded. testify not at trial. Adams did exception prosecution wit- Thus, with the testimony the diluted blood- expert regarding nesses’ knife, near next that was found the sink to the stain placed defendant physical there no evidence note Cady, In this we regard, at the crime scene. did prosecution witness, place not testifying as Barney’s question. Fur- night defendant at Cady denied that she went with ther, defendant it knife Barney’s question, that was her night on the kill told victim, that was that she used hers. that the knife was Detective Walters importance the crucial the blood- Considering testimony provided by prosecution’s evidence trial, fundamentally was thus expert witnesses at it deprived court have unfair for the trial trial because it was not assistance beyond jury doubt that a rational would reasonable provided if had been with guilty have found her she serology. First, the areas of dna experts in the Furthermore, of exculpated defendant. DNA evidence was sam- samples tested, only there one the blood was found near the ple bloodstain that diluted —the 255 possibly sink next to the knife—that linked defendant question to the crimes in on the basis of the fact that type subtype she had the same and PGM as blood supra (not- found on this Scott, bloodstain. See at 755 ing appears that “because the DNA evidence to have keystone expert’s been the of the case, State’s concerning assistance on the issues the anomalous very results of the various DNA tests could well have preparation presentation made a difference in the appellant’s given of the or case otherwise rise rea- jurors”). sonable doubt in the minds of the Further, questioned, prosecution’s Clement, when other serological expert, percent testified that about four of population type the African-American had blood B only 2+, and PGM 1+.7However, this evidence made it likely that the bloodstain came from defendant; it did positively identify not her as the donor. Thus, we can- prosecutor proved beyond not conclude that the ques- reasonable doubt that the constitutional error in guilty tion did not contribute defendant’s verdict. Chapman, supra.

Moreover, it cannot be ruled out that someone other than defendant contributed the blood that during Clement also testified cross-examination that because African- twenty-six percent population Americans constituted of the United States, “[p]ossibly people matching serological there were millions” of this profile. However, according Bureau, to the United States Census African- only percent Americans constituted 12.3 of the estimated United States population people http://quickfacts. of 281 million in 2000. See aensm.gov/qfd/ doubling states/OOOOO.html. While Clement’s error percentage population in African-Americans United States benefited by increasing pos in this instance number individuals sessing profile, goes simply blood this it to show that defendant could not rely upon accuracy prosecution’s expert presenting of the witnesses in charges. samples her defense these alsoWe note that the blood Michigan serological victim that were submitted to the State Police for testing erroneously listed her first name Susan. as v Tanner

Opinion the of Court indi- Detective VanStratton near sink. As found came from an the diluted bloodstain trial, at cated by occupied people, includ- that was bar area friends, victim’s where cof- employees and the ing bar by isolated until the area was prepared, was being fee peo- Given that various technicians. the crime-scene in area considered “critical” ple mingling were before the evidence col- investigation police beyond a reasonable it cannot be excluded as lected, from other bloodstain came someone doubt that the than defendant. at presented raising trial

There was also evidence question in the bloodstain reasonable doubt whether individual who commit- was contributed another robbery Barney’s. According at ted the homicide and testimony, was a white male customer Cady’s there 1:00 Barney’s he entered about A.M. in the bar when discounting Cady’s testimony on March 1995. Even testimony unreliable, as defendant introduced who to have seen a two other witnesses claimed cap” parked Barney’s with a “wooden pickup truck early of March 22. In addi- during morning hours he saw “a witness, Sage, one Kevin testified that tion, with a beard” white, driver that looked Caucasian this vehicle. In this passenger with a together introduced a reasonable doubt regard, robbed and murdered vic- whether someone else presented case, in this we light tim. In evidence court’s error trial therefore conclude expert assistance in the areas defendant of depriving beyond not rea- serology harmless of DNA reverse defendant’s Accordingly, doubt. we sonable felony-murder convictions her sentence for the conviction and remand for new trial.8 argues

Defendant also that the trial court erred in denying claiming her motions to dismiss, that the five- year delay police request between an initial for an charges by arrest warrant and initiation of criminal prosecutor process. disagree. denied her due We The trial court’s decision whether to dismiss charges prearrest delay because is for reviewed supra abuse of Herndon, discretion. at 389. To the parties argue extent that the this as issue a matter of prosecutorial misconduct, the test is whether the impartial People defendant was denied a fair and trial. App Watson, v 245 Mich 572, 586; 629 NW2d 411 (2001). implicates Because the claim constitutional process, People due our review is de novo, Cain, v App (1999), 238 Mich 95, 108; 605 NW2d 28 while the findings factual of the trial court are reviewed for People 2.613(C); error, clear MCR v Pfaffle, 246 Mich App People (2001); 282, 288; 632 NW2d 162 v Adams, App (1998). 128, 232 Mich 140; 591 NW2d 44 8 addition, In note we that while the trial court vacated defendant’s second-degree robbery sentences for her convictions, murder and armed apparently it required did not vacate these convictions as the under doc jeopardy. Const, V; 1963, 1, trine of double US Am Const art § 15. How ever, second-degree murder conviction must be vacated because the principles jeopardy prohibit multiple of double murder convictions for the single People Clark, death of a App 429-430; victim. v 243 Mich (2000). robbery NW2d 344 Defendant’s conviction armed must be convicting felony vacated well as because defendant of both murder and underlying felony protections against violates constitutional jeopardy. People Gimotty, 254, 259-260; double v 549 NW2d (1996). v Tanner the charges to dismiss first moved

Defendant delay had prearrest trial, alleging before ability to gather she lost the her because prejudiced locate of the crime and from the scene evidence delay had caused the that the potential witnesses, and pretrial memory Following to fade. of witnesses motion, ruling the trial court denied hearing, by need to delay prosecutor’s was occasioned investigation. farther conduct of evidence at addition, presentation In after the dismiss, renewed her motion to claim- trial, defendant had been under- investigation that no additional ing years before the charges taken in the three to four due-process her. Defendant’s brought against were testimony of Detec- was based on the trial argument requests for the issuance of arrest Walters, tive whose Cady and Robert defendant, Paav, Dion warrants prosecutor in the fall July 1995 were denied also testified that when year. Detective Walters of that prom- he was prosecutor a new took office warrant for defendant was look,” a “fresh but a ised of 2000. spring According authorized until the not laboratory work was still prosecution, however, hopes “with on evidence in 1998 the being performed additional evidence.” getting ruled that motion, In the the trial court denying by delay because prejudiced was not the witnesses whose memories presented had several she the failure The trial court also noted that were intact. inculpa- to uncover additional police officers fact delay negate did not the tory during evidence the they investigate their duties to performing were view, different In the trial court’s thoroughly. the case App 414 369 Opinion the Court prosecutors might simply sufficiency have viewed the differently. of the evidence speedy by right guaranteed

The ato trial Sixth apply delay occurring Amendment does not before charge, an arrest or initiation of formal criminal a United v Marion, 307, 320; States 404 US 92 S Ct 455; primary (1971), 30 L Ed 2d 468 restraint on delay applicable periods such found in is limitation adopted by Legislature, id. at However, 322. due process provides protection oppres- against limited prearrest delay. sive States Lovasco, United v 431 US (1977); 783, 789; 2044; 97 S Ct 52 L Ed 2d 752 v (1982). Bisard, 784, 788; NW2d process implicated, To if determine due is the court prejudice must balance the actual to the defendant against delay. the state’s Lovasco, reasons supra supra Cain, at 790; at 108. test, Under this defendant bears the initial burden to demonstrate prejudice pros- and the burden then shifts to the explain delay. supra ecutor to Bisard, Id. at 109; at 790-791. due-process meriting

To establish violation dis- charges, missal of the a defendant must demonstrate prejudice impairs both actual and substantial right supra defendant’s to fair trial. at Adams, 134- prejudice prejudice 135. Substantial is aof kind or ability against sort that the defendant’s to defend charges impaired likely sowas that it affected the prejudice outcome of the trial. Id. 135. Actual is by general allegations speculative not established or missing claims of memories, witnesses, faded or other supra lost Cain, evidence. 109-110.Furthermore, prosecution defendant must show intended gain advantage delaying a tactical formal 415 v Tanner Opinion Court v charges. Marion, People White, 324; supra 208 NW2d App 126, 134; 34 (1994). present only In the has case, alleged vague claims of faded memories and lost witnesses specifically without how showing alleged these defi- actually substantially impaired ciencies and her defense. the trial court Thus, properly ruled that physical defendant’s lost allegations concerning evi- dence speculative were too to establish actual and Adams, supra at 137 (not- prejudice. substantial See ing the defendant failed to demonstrate actual and impairment by substantial how the showing miss- ing evidence would have benefited the defense).

Moreover, the clearly trial court did not err in find- delay that the ing in this case resulted from police conducting further investigation because prosecutors simply were not satisfied that the evi- dence was sufficient to proceed. Either reason was a proper delay basis to prosecution. As this Court noted in Adams-. view, investigative delay fundamentally

“In our is unlike delay by solely gain undertaken the Government tactical advantage precisely investigative over the accused because delay is deviating not so one-sided. Rather than from ele- mentary play decency, prosecutor standards of fair by abides them if he refuses to seek indictments until he is completely prosecute satisfied that he should and will be promptly beyond guilt able to establish a reasonable doubt. prosecutors Penalizing who defer action for these reasons orderly expedition goal would subordinate the to that of speed. require. mere This the Due Process Clause does not prosecute We therefore following hold that to a defendant delay investigative deprive process, does him not of due prejudiced might even if his defense have been somewhat lapse 140-141, Lovasco, quoting of time.” [Id. Opinion Court supra punctuation (citations at 795-796 and internal omitted).] summary,

In defendant failed to establish actual prearrest delay prejudice and substantial from or that delay gain advantage. the was intended to a tactical Thus, the trial court did not abuse in its discretion denying her motions to dismiss.

iv Finally, argues that the trial court erred denying her motion directed verdict with felony regard charges open to murder, murder, robbery. and armed Defense counsel moved for a proofs, claiming directed verdict after the close of the any that “[t]he Prosecutor hasn’t introduced circum- my place stantial or direct evidence that would client pros- response, at the of this In site murder.” first-degree ecutor contended that the elements of premeditated felony murder and murder were estab- certainly enough lished because “there is both direct jury and circumstantial evidence for a be to able to beyond only find a reasonable doubt that not was Cady Barney’s night[,] accompa- Rob that he was by nied she Tanner, Hattie that was the one with the process robbery knife, and that of this that a denying murder In occurred.” the motion for a verdict, directed the trial ruled: court Well, looking light at the in the evidence most favorable party; wit, non-moving Prosecutor, to the is there no question what but a murder occurred. There is no [sic] question robbery but what an armed occurred. And the [sic] only proof issue is whether there is or not sufficient People v Tanner guilty is of the it was Hattie Tanner establish crime. jury jury

Now, Mr. could find if the believes Walters say jury I rational trier of fact could find that and when —a by Walters; wit, statement as read Mr. she based on her knife, you couple there, that with that it was her type was found in a stain at the bar the fact that her blood form the basis where a rational trier of fact that would fact, was, that it Hattie Tanner who com- could conclude wounds, the crime. The number of cuts and stab mitted positioning body, and the fact it was stab penetrated be wound to the chest that the heart could used first-degree a rational trier of fact to conclude that it was premeditated murder. verdict,

When on a motion for a directed ruling presented by must consider the evidence court in the prosecutor up to the time motion made prosecution most favorable to the and determine light whether a rational trier of fact could find that proved essential elements of the crime were charged beyond Virginia, 443 reasonable doubt. Jackson v 307, 319; 2781; (1979); US 99 S Ct 61 L Ed 2d 560 Peo- ple Jolly, 458, 465; v 442 Mich 502 NW2d 177 (1993); People Aldrich, App 101, 122; v Mich 631 NW2d 246 (2001). Circumstantial evidence and reasonable may prove inferences drawn from it be sufficient Jolly, supra the elements of the crime. at 466. This Court the same standard review of the applies during People trial court’s on such a motion. v Dan- ruling iels, App 658; 192 Mich 482 NW2d 176 (1992). murder,

To convict a defendant of first-degree prosecutor prove killing must that the was intentional accompanied by pre- and that the act of killing part meditation and deliberation on the of the defen- v 209 Mich People Anderson, dant. MCL 750.316(l)(a); App 527, 537; 531 NW2d 780 Premeditation (1995). App surrounding and deliberation can be inferred from the merely circumstances, but the inferences cannot be speculative support and must have in the record. Peo- ple App v Plummer, 229 Mich 293, 301; 581 NW2d 753 (1998); supra may Anderson, at 537. Premeditation be through established evidence of such factors as the prior relationship parties, the defendant’s killing, actions before the the circumstances of the killing, and the defendant’s conduct after the victim’s death. Id. respect felony-murder pros- charge,

With to the theory ecution’s was that defendant murdered the vic- during robbery alternatively, tim the course of a and, Cady committing that she aided and abetted felony felony murder. To convict defendant of murder principal, prosecution prove: (1) as the killing had to being, (2)

of a human that the defendant had bodily great the intent to kill, to do harm, or to create very high bodily great risk of death or harm with knowledge great bodily that death or harm was the probable (3) killing result, that the occurred while the committing, attempting defendant was to commit, or assisting any spe- in the commission of the felonies cifically 750.316(l)(b), enumerated in MCL which underlying charged includes the offense of armed rob- bery. supra Carines, at 768; v Turner, 213 (1995). 558, 565-566; 540 NW2d 728 support finding

To that defendant aided and abet- Cady felony committing pros- ted murder, the (1) charged ecution must show that the crime person, (2) committed defendant or some other performed gave encouragement defendant acts or (3) that assisted the commission of the crime, and defendant intended the commission of the crime or knowledge principal had that the intended its com- People v Tanner

Opinion the Court encourage- the time that he aid and gave mission at ment. Id. An and abettor must have the same aider principal. of a requisite required intent as that Barrera, v 261, 294; 547 NW2d 280 (1996). “ and Thus, prosecutor ‘the must show that aider only underly- intent to commit not abettor had the bodily felony, great but also to kill or cause ing wantonly wilfully harm, disregarded or had tendency of this behavior to likelihood of the natural ” supra at Turner, bodily cause death or harm.’ great People Flowers, v App 169, 178; quoting aiding 477 NW2d 473 To sustain an and abet- (1991). principal must be shown ting charge, guilt beyond doubt, principal a reasonable but the need not Barrera, supra 294-295; Turner, be convicted. supra, prosecutor only intro- “Rather, 569. need duce sufficient evidence that the crime was commit- or ted and that the defendant committed it aided and Id. it.” abetted robbery,

To establish the elements of armed prosecution assault; must show a felonious (1) (2) property presence per- from the victim’s or taking son; that the occurred while the (3) taking weapon. 750.529; is armed with a MCL dangerous Turner, supra at 569. premeditated mur- charge first-degree

As for the der, properly denied defendant’s the trial court motion for a directed verdict. Given Detective Wal- testimony the fact that the diluted blood- ters’ knife implicated stain on the bar sink next defendant, jury a rational could conclude that defen- Barney’s question. on the present night dant was testimony, Walters’ Further, on the basis of Detective jury a rational could also find that knife used Con- belonged the murder defendant. committing 420 Opinion of the Court sidering upon the wounds inflicted the victim, gath- reasonable inferences drawn from the evidence jury ered at the crime scene, rational could thus premedi- first-degree conclude defendant committed during robbery. tated murder the course of a foregoing On the basis of the evidence, the trial denying court also did not err defendant’s motion regard charge for a directed verdict with to the of fel- ony theory murder on the that defendant was the principal committing the crime. denying

However, the trial court erred in defen- regard dant’s motion for a directed verdict with to the prosecution’s theory that defendant aided and abetted felony prosecution in the murder because the failed Cady’s establishing to introduce sufficient evidence beyond guilt light a reasonable doubt. Viewed in the prosecution, most favorable to the there was insuffi- Cady, principal, cient evidence to show that as a com- felony mitted murder. reaching

In this conclusion, it is useful to consider prosecutor’s closing argument. closing argu- In his prosecutor ment, contended that the evidence Cady Barney’s showed that was at earlier than he night. Cady Although claimed to have been that testi- Barney’s fied at trial that he went to at about 1:00 a.m. and left when the victim could not cash his check, prosecution pointed out that Officer Wise testified person that Dennis Fodor had seen a who looked very Cady Barney’s much like at 11:30 P.M. prosecutor argued March 1995. The also that Cady, because the victim trusted she would have told going early him night. that she was to close According prosecutor, Cady to the because knew that closing early night, the victim was bar he Cady returned to defendant’s house, and and defen- People v Tanner eventually Barney’s dant went to when the victim was bar. prosecutor The closing argued further Cady made their visit appear legitimate purchasing six-pack which Budweiser, was the brand of beer $5.10. drank, prosecutor finally that he The argued Cady that either or defendant stabbed the victim to death during robbery. course of prosecutor’s

The flaw in principal theory is that support there is insufficient evidence to it. See People 424 Petrella, 275; v Mich NW2d 11 380 (1985) may trier of (“While the fact draw reasonable infer- record, ences from facts of it may not in indulge wholly unsupported by any inferences evidence, only upon based Specifically, assumption.”). there was no evidence prosecutor introduced show- Cady ing felony committed as princi- murder In pal. respect, this we note from that, apart unsup- ported speculation, inferences and there no evi- beyond dence establishing reasonable doubt Cady Barney’s present at of felony the time murder or that he in participated the crime. Because the prosecutor Cady’s failed to establish guilt beyond doubt, jury reasonable a rational could thus not felony convict defendant of an murder under aiding abetting theory. Barrera, supra and 294-295; Tur- ner, supra at 569. Thus, trial court erred in not a verdict directing acquittal charge felony of on the of theory.9 murder an under and aiding abetting retrial, prosecution may Accordingly, not felony charge defendant with murder under an aiding theory. and In abetting addition, jury because the 9 polled although jury were We note that the members of the after they delivering verdict, they not asked their were whether found defen felony guilty principal dant murder as a or as an and aider abettor. App 369 Opinion by R.J. J. Danhof, premeditated mur- acquitted first-degree defendant of bars her retrial jeopardy the doctrine of double der, charge. on that trial. We not

Reversed and remanded for new do jurisdiction. retain

Cooper, P.J., concurred. part R. J. (concurring dissenting J. Danhof, respectfully part I with H of the part). disagree majority’s opinion. The trial court’s denial of defen- request expert an pay dant’s either or dna fundamentally in a serology did not result unfair trial. appoint This Court reviews the decision whether to expert People Lueth, for an abuse of discretion. v App An 670; _NW2d __ (2002). 253 Mich abuse palpably when the discretion exists result is so per- violative of fact and that it shows a grossly logic versity passion will or the exercise of or bias rather than the exercise of discretion. Solution Source, Inc v LPR Partnership, Assoc Ltd NW2d 474 In 368, 381; (2002). general, either testimony or permitting excluding is not party for reversal unless the grounds claiming error prejudice by it showing prob- establishes was “more able than not that a different outcome would have People resulted without the error.” v 460 Mich Lukity, 596 NW2d 607 495; (1999); MCR MCL 2.613(A); 769.26. an defendant a court- Denying indigent appointed expert does not warrant reversal unless it fundamentally People results in a unfair trial. v Leo- nard, App 569, 582-583; 224 Mich 569 NW2d 663 We must remember that the standard outlined (1997). Jacobsen, 639, 641; v 532 NW2d requires a (1995), to demonstrate nexus between the facts of the case and the need for People v Tanner

Opinion by R J. J. Danhof, expert. cases, In all the an defendant must show a expert: proceed need for the defendant cannot safely expert to trial without 775.15; assistance. MCL supra Leonard, at 582. types case,

In this there were two of scientific evi- presented by prosecution, analysis the dence and dna serology, population well blood as as statistical data. clearly exculpatory. The dna evidence was As the majority notes, that, Clement testified on the basis of profile the dna obtained from the the blood on vic- shirt, tim’s “it not could have been Ms. Tanner.” The prosecution’s experts only not defen- excluded dna dant her associates as contributors dna pro- found on the evidence but also established a dna file anof unknown female from blood found on fact, the victim’s shirt. In it was defense counsel that expert’s prosecution’s for the moved admission of the report. explain Defendant does not how she was una- proceed safely pros- ble to to trial aas result of the stating unequivocally ecution’s witnesses’ that the appellate blood was not In fact, hers. defendant’s only brief does not all, discuss dna evidence at serological evidence. On facts of case, this expert of a absence defense was not outcome-deter- deny fundamentally minative, nor did it defendant a supra Lukity, supra fair trial. 495-496; at Leonard, 583-584. majority

The Scott, relies State v 33 SW3d 746 (Term,2000), where the court found that assis- absolutely tance in the field of “was evidence cru- dna competent representation given cial sub- ject inordinately complex beyond matter was understanding attorneys” pros- common of most in a ecution where there were “inconsistent results regarding samples.” donor the hair Id. 754. App 255 R.J. J.

Opinion Danhof, important that, is in this case an difference However, did not contribute to the dna evidence Scott, unlike exculpated is fact, it her. It conviction; in defendant’s simply argue enough that the not for defendant subject complex highly technical, she must show is or presence expert changed have an would that the supra & Leonard, trial. at 584-585 the outcome of the supra Lukity, at 495-496. 5;n an actual not established Likewise, defendant has serologist. was the The blood evidence need for a only physical linking defendant to the scene. evidence dispute over the results of the However, there was no procedures allegations that the were tests and no faulty. 672, 679; 463 Klevorn, See In re majority, supra citing (1990). Scott, NW2d 175 The expert proposes an that defendant needed “explainf an anomalous test ] that it constituted testing But the anomalies and result.” Ante at 406. present do not exist in this contamination in Scott case. explain expert does not how an would

Defendant help, arguing that, than without a defense other pres- expert, prosecutor’s serologist free to “was might grossly-exaggerated find- ent what have been only possibility presents ings.” a mere of assis- This expert, the burden on tance from an and fails to meet “proceed showing that she could not defendant of safely supra 775.15; Leonard, 582; to trial.” MCL supra argue Lueth, at 688. Defendant does not that the would have refuted the conclusion were of the same blood found and defendant’s blood suspects type, had that and that none of the other theory, type that someone else blood. Defendant’s type perpetrator, was the with the same fully explored blood closing and in

on cross-examination v Tanner J.R. J. Opinion by Danhof, argument. explain Defendant fails to how the absence expert jeopardized ability prepare an her to a defense; I find no in therefore error the trial court’s denial.

Finally, although I would find no error this mat- response majority’s ter, I include a brief to con- prosecutor prove “beyond clusion that the failed to ques- reasonable doubt the constitutional error guilty tion did not contribute to defendant’s verdict.” beg Ante 410. I would to differ. While the evidence may verdict, have contributed to the I do not find that alleged error, i.e., the trial court’s denial aof expert, defense contributed the verdict. The blood likely played convincing jury evidence a role in guilt, nothing argued defendant’s but in this Court demonstrates evidence would have any court-provided, expert been different with assistance.

Similarly,appellate argument counsel’s that the trial denying court erred the motion for funds to retain serology expert rejected must be because he has alleged specific expert. no need for an Jacobsen, supra supra 641; Leonard, at 581-584.There are a pub- vast number of articles, treatises, scientific appellate lawyer lished decisions available to a who knowledge lacks of the “arcane” world of criminal population genetics. allegations forensics and General that the field is or technical assistance is required are insufficient establish need appoint expert. Id. at 584-585& n 5. felony

I would affirm defendant’s conviction of murder and the sentence that conviction.

Case Details

Case Name: People v. Tanner

Court Name: Michigan Court of Appeals

Date Published: May 6, 2003

Citation: 660 N.W.2d 746

Docket Number: Docket 231966

Court Abbreviation: Mich. Ct. App.