PEOPLE v WOOD
Docket No. 315379
Court of Appeals of Michigan
October 28, 2014
307 MICH APP 485
Submitted October 14, 2014, at Detroit. Decided October 28, 2014, at 9:05 a.m. Leave to appeal sought.
The Court of Appeals held:
1. The trial court did not err by admitting under MRE 404(b)(1) evidence of other acts, including (1) defendant‘s theft of a purse from his 77-year-old landlady, (2) defendant‘s acts of theft from the shared home of two disabled women who had hired him to work around their house, and (3) his theft from a Berkley home where he was working. MRE 404(b)(1) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with that character, but it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act or knowledge, identity, or the absence of mistake or accident. The other-acts evidence must satisfy the definition of logical relevance under MRE 401. Under MRE 403, any unfair prejudice arising from the admission of the evidence must not substantially outweigh its probative value. The trial court acted within its discretion by admitting the evidence for several relevant purposes not related to defendant‘s character, in particular, to show the existence of a common plan, scheme, or system. The bulk of the other acts shared several common features with the offenses in this case. Even without resorting to an analysis under MRE 404(b), however, a court may admit evidence of other criminal acts when it explains the circumstances of the
2. The trial court acted within its discretion when it denied defendant‘s motion for a mistrial predicated on the prosecutor‘s allegedly engaging in misconduct in her opening statement by vouching for Watson‘s credibility. The prosecutor‘s reference to Watson‘s plea agreement did not embody an inappropriate suggestion that the prosecutor had some special knowledge, not known to the jury, that the witness was testifying truthfully. Moreover, even if the prosecutor‘s statements were improper, the trial court‘s instructions, which emphasized that the prosecutor‘s opening statement was not evidence and that the jury alone had the responsibility to determine witness credibility, cured any potential prejudice.
3. The trial court did not err by admitting the testimony of the prosecution‘s expert witnesses concerning a type of DNA testing known as Y-STR DNA testing, which involves testing only DNA on the Y chromosome, a sex chromosome found only in human males. Y-STR DNA testing cannot uniquely identify an individual because a given male will have the same Y-STR DNA profile as his male ancestors, but it is considered useful when analyzing samples that have a mixture of male and female DNA, allowing the analyst to target the male DNA without interference from the female DNA. If the trial court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, MRE 702 provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about the matter in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. A trial court may admit the evidence only if it determines that the expert testimony meets that rule‘s standard for reliability. When evaluating the reliability of a scientific theory or technique, the court must consider certain factors, including but not limited to whether the theory has been or can be tested, whether it has been published and peer-reviewed, its level of general acceptance, its error rate if known, and the existence and maintenance of standards controlling the technique‘s operation. The prosecution carried its burden of demonstrating the admissibility of Y-STR DNA evidence. Furthermore, given the trial testimony of the experts concerning the limited significance of a Y-STR DNA match, specifically that a match
4. The trial court did not violate MRE 804(b)(1) or defendant‘s right to confront the witnesses against him by allowing the admission of an expert witness‘s preliminary examination testimony after properly determining that the witness was unavailable to testify at trial because of her medical condition. As required by the rule, defendant had ample opportunity to cross-examine the witness during his and Watson‘s joint preliminary examination.
5. The trial court did not bolster Watson‘s credibility with an improper jury instruction. A criminal defendant has the right to have a properly instructed jury consider the evidence, but the jury instructions must be reviewed as a whole to determine whether error requiring reversal occurred. The trial court gave an instruction that closely mirrored the standard accomplice instructions of former CJI2d 5.4 and CJI2d 5.6. The instructions did not state or suggest that Watson had offered truthful testimony, but only that the prosecution had agreed to pursue a lesser charge against her if she offered truthful testimony and that the prosecution remained free to alter the plea agreement if it obtained additional evidence against Watson. The entirety of the instructions plainly cautioned the jury about accepting Watson‘s testimony for several reasons. Moreover, the trial court informed the jury on three occasions that it had the sole responsibility to assess credibility. In light of Watson‘s testimony about her longtime use of cocaine and heroin, the trial court additionally gave an addict-informer instruction, former CJI2d 5.7, which provided additional cautions regarding judging Watson‘s credibility. Finally, the trial court instructed the jury that it should consider her agreement to testify in exchange for the prosecution‘s dismissal of a charge as it might relate to her bias or self-interest.
6. The trial court did not plainly err by denying a mistrial after the officer who only described where the police found a knife introduced into evidence further identified it as the murder weapon. The court struck the answer, and other officers properly identified the knife.
7. Defendant failed to support his claim that the prosecution suppressed exculpatory evidence relating to the DNA tests.
8. Defendant also failed to substantiate his claims that the police and forensic scientists mishandled or allowed contamination of the DNA samples or otherwise failed to maintain a proper chain of custody.
9. While defendant argued that the admission of Watson‘s statements to the police violated his constitutional rights, he had no standing to challenge a violation of Watson‘s Fourth Amendment rights. He also argued that his trial counsel should have obtained Watson‘s medical records. They would only have been relevant to the voluntariness of Watson‘s statements, however, which defendant lacked standing to challenge.
Affirmed.
EVIDENCE — EXPERT WITNESSES — DNA EVIDENCE — Y-STR DNA TESTING — ADMISSIBILITY.
MRE 702 provides that if a trial court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about the matter in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case; the court may admit the expert testimony only after it determines that the evidence meets that rule‘s standard for reliability; when evaluating the reliability of a scientific theory or technique, the court must consider certain factors including, but not limited to, whether the theory has been or can be tested, whether it has been published and peer-reviewed, its level of general acceptance, its error rate if known, and the existence and maintenance of standards controlling the technique‘s operation; the type of DNA testing known as Y-STR DNA testing—which involves testing only DNA on the Y chromosome, a sex chromosome found only in human males, and may be useful when analyzing samples that have mixtures of male and female DNA—is based on reliable principles and methods.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief, Appellate Division, and Matthew A. Fillmore, Assistant Prosecuting Attorney, for the people.
Michael A. Faraone, PC (by Michael A. Faraone), Jonathan B.D. Simon, and Alan C. Wood, in propria persona, for defendant.
BOONSTRA, P.J. Defendant appeals by right his convictions on alternative counts of first-degree premeditated murder,
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant was convicted of killing 80-year-old Nancy Dailey and stealing her credit cards from her home on November 20, 2011. The prosecution had charged Tonia Michelle Watson as a codefendant with first-degree felony murder, larceny in a building, and stealing a financial transaction device. On December 21, 2012, Watson pleaded guilty of second-degree murder,
On November 20, 2011, Dailey‘s cousin—Leah Storto—and a neighbor—whom Storto identified as Steve—discovered Dailey‘s lifeless body and called 911. Police officers who arrived at Dailey‘s home described
Another of Dailey‘s neighbors, Lois Hillebrand, identified defendant at trial as the man who had approached her on a Saturday in early November 2011 about raking her leaves and whom Hillebrand saw raking Dailey‘s leaves the next day. Another neighbor, Marie Heshczuk, testified that a couple of weeks before Dailey‘s death, she saw a white man and a white woman raking leaves in Dailey‘s front yard and the man “highly resemble[d]” defendant. She also testified that while outside raking the leaves of her neighbor directly across the street from Dailey‘s house on November 20, 2011, she saw Dailey through her front window between 5:00 and 5:30 p.m., and also noticed an unfamiliar man walking past Dailey‘s house wearing a dark hooded sweatshirt and dark pants. Another witness, Michael Wilson, identified defendant as a man he saw in an alley near Dailey‘s house at 5:30 p.m. on November 20, 2011.
A. WATSON‘S TESTIMONY CONCERNING DAILEY‘S MURDER
Watson testified about her participation with defendant in Dailey‘s killing. Watson identified defendant in
According to Watson, she and defendant were homeless in November 2011, struggling to pay for drugs and food, and living in different hotels or motels, primarily the Seville Motel on Woodward Avenue in Royal Oak south of Twelve Mile Road, but also at other lodging on Woodward Avenue, including the De Lido Motel south of Eight Mile Road. Watson testified that on November 20, 2011, she and defendant had checked out of their hotel because they “didn‘t have any money” and spent the day at a McDonald‘s restaurant located at Woodward Avenue and Thirteen Mile Road.2 According to Watson, defendant raised the idea of robbing Dailey, and she concurred in this idea because of their dire financial straits. Watson testified that they left the restaurant, waited until dark, walked toward Dailey‘s house, “walked around the block a couple of times,” noticed Dailey inside, and ascertained that a door was unlocked. Defendant then entered a side door and told Watson to go inside.
Watson testified that defendant told Dailey “that this was a robbery.” Defendant took from Dailey‘s living room a passport and a cellular phone; Watson took Dailey‘s purse and removed some money. After Dailey
Watson testified that after 7:30 p.m. on November 20, 2011, she checked into the Seville Motel and that defendant discarded Dailey‘s cell phone on the motel roof and discarded other personal items from Dailey‘s purse elsewhere at the motel. Watson recalled that she found inside Dailey‘s purse a Visa debit card and what was apparently a personal identification number for it, that she asked defendant to try using the card, and that defendant left at about 7:45 p.m. and returned with
Watson testified that on November 21, 2011, defendant put Dailey‘s passport, debit card, and other cards in a bag and left them under some trees near the De Lido Motel, that she and defendant left the motel4 and bought drugs in the Cass Corridor, and that Watson then checked them into a Westland lodging called the Paradise Hotel. Watson recalled that she and defendant walked toward a Meijer store in Canton, and along the way defendant discarded behind a Wal-Mart store a suitcase and a backpack that contained some of their clothing and a knife that defendant had stolen from the house where he had worked in September 2011.5 Wat-
B. DNA TESTING
Amy Altesleben, an expert in DNA analysis, testified at defendant‘s preliminary examination7 that she received for analysis samples from a blue scarf, Dailey‘s nail clippings, a bloody washcloth found in Dailey‘s house, a sample of Dailey‘s blood, defendant‘s jeans and sweatshirt, and known samples from defendant and Watson. Altesleben determined that the blue scarf
bag... lying underneath the black suitcase.” Marinelli testified that the suitcase contained female clothing and hygiene products, prescriptions bearing the name Tonia Sledewski-Watson, and “paperwork... with the name Tonia Michelle Sledewski...” The suitcase also contained a red bag holding “papers with the name Alan Wood on them” and “a picture I.D. card with the name Alan Wood on it.” Marinelli recalled that the shoulder bag contained “envelopes of... miscellaneous papers” and the knife that another witness, Sara Paruch, testified had gone missing when defendant worked in her house.
Vitta, an expert in DNA analysis including Y-STR DNA testing, testified about her performance of Y-STR DNA analyses on the samples from the blue scarf and Dailey‘s right-hand nail clippings, as well as a known sample from defendant. Vitta explained that Y-STR DNA testing focuses on areas of only the Y chromosome and has proved useful in isolating male donors to samples that also contain quantities of female DNA and that scientists referred to the Y chromosome profile produced in Y-STR DNA testing as a “haplotype.” Regarding the blue scarf sample, Vitta testified that she identified the DNA of “up to three males” and that “a major male contributor to the scarf” existed. Regarding the sample from Dailey‘s right-hand nail clippings, she testified that she identified the DNA of two males and “a major male donor” also existed in this sample. According to Vitta, the major male haplotypes in the scarf and nail-clipping samples matched one another and the haplotype she identified from defendant‘s known sample; this match signified to Vitta that she could not exclude defendant as the contributor to the major male haplotypes on the scarf and nail-clipping
C. OTHER-ACTS EVIDENCE
Before trial, the prosecution filed a motion to admit, under MRE 404(b)(1), evidence of several other acts, including (1) defendant‘s theft of a purse from his 77-year-old landlady, Joanne LaBarge, in October 2011, (2) defendant‘s multiple acts of theft between October 2010 and October 2011 from the shared Royal Oak home of two disabled women, Christina Duchamp and Nancy Foerster, who had hired defendant to work around their house, and (3) defendant‘s theft in September 2011 from a Berkley home where he was working for Joseph Paruch. Following a hearing held on June 13, 2012, the trial court entered an opinion and order,
The Court finds the proffered evidence to be admissible under MRE 404(b). First, the Court finds the “other acts” evidence is being offered for proper purposes. Here, the evidence is for the purposes of proving (1) that Defendant intended to kill or cause great bodily harm[,] (2) that Defendant intended to commit the crime of Larceny, (3) that Defendant acted with premeditation and deliberation, (4) that Defendant had a motive to commit the crimes charged, (5) that Defendant acted pursuant to a common scheme, plan, or system, and (6) that co-Defendant Tonia Michelle Watson is not fabricating the incident. All of these are proper purposes.
Concerning MRE 403, the court concluded that “the proffered similar acts are highly probative on the issue of whether Defendant committed the charged acts” and rejected the position that the risk of unfair prejudice “substantially outweigh[ed] its probative value.”
At trial, Joseph Paruch testified that he and his wife and daughter lived in Berkley in September 2011. Paruch identified defendant as the man who had approached him at a Home Depot store in early September 2011 to inquire whether he “had any odd jobs for him to do.” Later the same day, Paruch drove defendant to his house to show defendant a bathroom that he wanted remodeled, and defendant agreed to perform the work. Between September 13, 2011, and September 22, 2011, defendant worked for approximately three hours a day after Paruch or his wife arrived home and could supervise defendant, and Paruch paid defendant in cash. Paruch recalled that on September 22, 2011, defendant for the first time failed to appear for work. Paruch noticed that a portion of the bed in his bedroom was out of place; searching the room, he discovered that a .32 caliber handgun and a jar of medical marijuana were
Sara Paruch, Joseph Paruch‘s daughter, also identified defendant at trial as the man her parents had hired to work in their house. Sara testified that, on September 22, 2011, after a discussion with her father about some items missing from the house, she became suspicious about a knife missing from a desk in her bedroom. When a detective called her, she became certain that her knife had also been taken. She added that defendant once helped her perform a task in her bedroom, and she “notice[d] him looking around [her] bedroom” enough to make her suspicious and uncomfortable. Sara denied having filed a complaint relating to her missing knife.
Watson testified that in September 2011, defendant told her about his Home Depot meeting with Joseph Paruch and his work on a bathroom at the Paruchs’ house. Watson recounted that at some point around September 2011, she observed defendant in possession of “a black bag that had a gun in it,” two knives, and “two bags of marijuana and quarters,” none of which belonged to him. Watson recalled defendant having advised her that he had obtained the property from the Paruchs. According to Watson, defendant sold the handgun. Watson identified the knives at trial and testified that defendant usually carried one of the knives with
Watson testified that in February 2011, she became acquainted with Royal Oak residents Christina Duchamp and Nancy Foerster through defendant. Watson and defendant both did work at the house where Duchamp and Foerster lived and received payment for their work. In Watson‘s estimation, Duchamp had a physical disability and Foerster had mental and physical disabilities. Watson recalled that in late June 2011, Duchamp informed defendant about money and other property missing from the house and “that they just didn‘t need... his help anymore.” Watson confirmed that defendant stole money, pain pills, and silver from the house. In October 2011, defendant told Watson that he went to Duchamp and Foerster‘s house, but Duchamp reiterated that they didn‘t want him to work for them anymore. Watson described how, later in October 2011, she and defendant took a bus to Duchamp and Foerster‘s house at 5:00 a.m. intending to steal from them. They knew that Duchamp and Foerster would be home. Defendant brought with him a baseball bat and went inside alone through a window. He then came outside with a red purse that contained a credit card in Duchamp‘s name, and around 9:00 a.m. on October 12, 2011, she and defendant bought groceries from a Meijer store. Watson paid for the groceries using Duchamp‘s credit card. When asked whether defendant had discussed his intentions while inside the house, Watson answered that defendant “had thought about tying them up and putting them in the basement and trying to get money from the pin numbers [of] their credit cards” and “[s]etting the house on fire.”
Watson further testified that in October 2011, she and defendant lived together in a Pontiac rental home.
The jury convicted defendant. This appeal followed.
II. ADMISSION OF OTHER-ACTS EVIDENCE
Defendant argues that the trial court‘s admission of other-acts evidence violated MRE 404(b)(1), which prohibits the admission of evidence of a defendant‘s other acts or crimes when introduced solely for the purpose of showing that the defendant‘s action was in conformity with his criminal character. See People v Sabin (After Remand), 463 Mich 43, 56; 614 NW2d 888 (2000). We disagree. We review for an abuse of discretion a trial court‘s ruling on the admission of evidence; however, we review de novo preliminary legal issues regarding admissibility. People v Jambor (On Remand), 273 Mich App 477, 481; 729 NW2d 569 (2007).
MRE 404(b)(1) provides in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
Evidence of a defendant‘s other acts or crimes is admissible if (1) the prosecution offers the evidence for a proper purpose under MRE 404(b)(1); (2) the other-acts evidence satisfies the definition of logical relevance within MRE 401; and (3) any unfair prejudice arising from the admission of the other-acts evidence does not substantially outweigh its probative value, MRE 403; on request, the trial court can read the jury a limiting instruction that describes the proper consideration of the other-acts evidence. People v Starr, 457 Mich 490, 496; 577 NW2d 673 (1998); People v Ackerman, 257 Mich App 434, 439-440; 669 NW2d 818 (2003).
We conclude that the trial court acted within its discretion in admitting the other-acts evidence for several relevant purposes not related to character. The evidence of defendant‘s other thefts admitted at trial was relevant to proving several elements of the offenses with which defendant was charged. First, all three other acts of defendant‘s theft—from the Paruch house in September 2011, from the residence of Duchamp and Foerster in October 2011, and from LaBarge‘s house in October 2011—reasonably tended to make it more likely than not that he intended to commit larceny from Dailey‘s house in November 2011, an element of the present larceny-in-a-building charge against defendant. MRE 401;
Additionally, a large portion of the other-acts evidence was admissible to show the existence of a common plan, scheme, or system. “[E]vidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system.” Sabin, 463 Mich at 63. “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” Id. at 65-66 (quotation marks and citation omitted). “[E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.” Id. at 66 (quotation marks and citation omitted).
The bulk of the other acts also shared several common features with the offenses in the instant case. The evidence regarding Duchamp and Foerster demonstrated that defendant targeted vulnerable women,
Further, some of the other-acts evidence would have been admissible even without resort to MRE 404(b). Without analyzing admissibility under MRE 404(b), a court may admit “[e]vidence of other criminal acts... when it explains the circumstances of the crime.” People v Malone, 287 Mich App 648, 662; 792 NW2d 7 (2010). The evidence of defendant‘s prior theft from the Paruch home helped explain where he acquired the knife he used in assaulting Dailey. Further, Watson‘s testimony about defendant‘s possession of a knife he stole from the Paruch house and his use of the knife in killing Dailey constituted direct, relevant evidence sup-
Regarding unfair prejudice, defendant fails to offer any specific example of unfair prejudice or other basis for exclusion under MRE 403. In light of the probative value inherent in the other-acts evidence toward proving multiple relevant matters and the limiting instruction that the court read to the jury concerning its proper consideration of the other-acts evidence, we do not find that the danger of “unfair prejudice, confusion of the issues, or misleading the jury” substantially outweighed the probative value of the evidence, MRE 403. See Starr, 457 Mich at 503; see also People v Magyar, 250 Mich App 408, 416; 648 NW2d 215 (2002) (observing that “a limiting instruction such as this one that cautions the jury not to infer that a defendant had a bad character and acted in accordance with that character can protect the defendant‘s right to a fair trial“).
We find no error in the trial court‘s admission of other-acts evidence.
III. PROSECUTORIAL MISCONDUCT
Defendant next argues that the prosecutor engaged in misconduct in her opening statement by vouching for the credibility of Watson and that the trial court erred by not granting his motion for a mistrial. We disagree. This Court “review[s] claims of prosecutorial misconduct case by case... to determine whether the defendant received a fair and impartial trial.” People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). We review for an abuse of discretion a trial court‘s decision regarding a motion for a mistrial. People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010).
During opening statements, the prosecutor addressed Watson‘s testimony as follows:
You are also going to hear from Tonia Watson in this case. And I‘m sure that the defendant is going to do everything he can to make her look like a liar. So be prepared for that.
She‘s going to testify as a witness for the prosecution because aside from Nancy Dailey and the defendant she‘s the only one that knows what happened in that house that night.
Now you are going to hear about her role that she played in the crimes that were committed because like I said she was not completely innocent.
You‘re going to hear that she‘s a thief. You‘re going to hear that her fingerprint was found on a jewelry case, on a jewelry box that was found in Nancy Dailey‘s bedroom on a dresser.
You‘re also going to hear that she was originally charged not with first degree premeditated murder, but she was charged with felony murder for the role that she played in assisting and committing the larceny that was the underlying offense for the felony murder.
She was also charged with larceny in a building and she was also charged with the financial transaction device for the one that she attempted to use that card that we know of.
You‘re going to hear that as a result of her coming in this court testifying before you and it‘s conditioned upon the prosecutor believing that she‘s testifying truthfully she will get a reduced charge. She will be pleading to second degree murder, larceny in a building and financial transaction device. She will serve a minimum--
Defense counsel objected at that point on the ground that the prosecutor‘s comments constituted improper vouching for the witness. The trial court reinstructed the jury that the opening statements of attorneys were not evidence and that the trial court would provide the jury with the applicable law. Defendant moved for a mistrial on the basis of the prosecutor‘s comments; the trial court denied the motion.
Our review of the trial court record convinces us that the prosecutor‘s reference to Watson‘s plea agreement did not embody an inappropriate ” ‘suggest[ion] that the government had some special knowledge, not known to the jury, that the witness was testifying truthfully.’ ” Bahoda, 448 Mich. at 276 (citation omitted). Further, even if the prosecutor‘s statements were improper, the trial court‘s instructions, which emphasized that the prosecutor‘s opening statement was not evidence and that the jury alone had the responsibility to determine witness credibility, cured any potential prejudice. People v. Unger, 278 Mich. App. 210, 235; 749 N.W.2d 272 (2008) (observing that “[c]urative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements, and jurors are presumed to follow their instructions“) (citations omitted). Therefore, the trial court acted within its discretion by denying defendant‘s motion for a mistrial. Schaw, 288 Mich. App. at 236.
IV. ADMISSION OF Y-STR DNA TESTING EVIDENCE
Defendant next argues that the trial court erred by admitting the testimony of the prosecution‘s experts
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
A trial court “may admit evidence only once it ensures, pursuant to
The trial court need not “admit only evidence that is unassailable” or investigate “whether an expert‘s opinion is necessarily correct or universally accepted.” Unger, 278 Mich. App. at 218 (quotation marks and citation omitted).
The trial court held a Daubert hearing in this case, at which Julie Marie Ferragut testified that she had worked since January 2003 as “a senior DNA analyst” at Bode Technology, “a private forensic DNA laboratory.” Ferragut further testified about her academic and scientific credentials and explained that her job involved performing “DNA testing on forensic evidence samples,” including DNA testing (1) in backlogged cases of law enforcement agencies, (2) for defense attorneys and the Innocence Project, (3) to identify victims of mass disasters, and (4) to add convicted-offender profiles to a database. Ferragut estimated that Bode Technology had processed 1.4 million DNA profiles for the convicted-offender database. Ferragut testified that she completed twice-yearly proficiency testing for both autosomal STR DNA testing and Y-STR testing.10 Ferragut further testified that Bode Technol-
Ferragut testified that for approximately 10 years she had undertaken autosomal STR DNA testing, and for seven years had performed Y-STR DNA testing in approximately one or two percent of her caseload. Ferragut completed training programs on both forms of DNA testing. She also confirmed that she had testified as an expert in 32 jurisdictions, including Michigan; that on each occasion courts admitted her testing results; that she had testified at least eight times about Y-STR DNA testing, including in Michigan in 2007; and that her testimony about Y-STR DNA testing had occurred on behalf of both the prosecution and the defense. The trial court qualified Ferragut as “an expert in DNA analysis, including Y-STR.” According to Ferragut, approximately 2,000 peer reviews of Y-STR DNA testing had documented its general acceptance as reliable within the scientific community, and her own experience with Y-STR DNA testing established that it “produce[d] accurate and reliable results.”
Ferragut explained that the Y-STR DNA analysis involves testing DNA only on the Y-chromosome and that Y-STR DNA testing could not uniquely identify an individual because “a given male is going to have the
Ferragut further testified that the analysis of both autosomal DNA and Y chromosomal DNA involved the same series of steps and control measures. Ferragut explained that the only difference between the amplification step11 in autosomal STR DNA and Y-STR DNA analyses involved the targeting of different areas of DNA through commercially produced kits. Ferragut added that, if a match exists between the DNA profile obtained from an evidence sample and that from a known sample (one obtained from an identified individual), the analyst generates a statistical calculation by entering the DNA profile information into a computer program “to see how common that profile is in the general population.” Ferragut explained that in the event of a Y-STR DNA match, “it can be searched in a data base, and depending on the number of matches that were obtained in the data base, you can then use a statistical calculation to determine how common it is or you would expect it to be in the population of unrelated males.” Ferragut further explained that if an analyst identified a Y-STR DNA match in “all the [Y chromosome] locations on the evidence” with “all the locations identified in a known suspect‘s sample,” the DNA could have come from the suspect or someone else in his
Vitta testified at the Daubert hearing that in 1997 she began working at the Michigan State Police “Northville Biology and DNA unit” identifying bodily fluids and performing autosomal STR DNA and Y-STR DNA analyses. In 2005, she had become the supervisor of the Northville laboratory, and in that position she “supervise[d] the other forensic scientists . . . conducting case work analysis on forensic evidence samples as well as reference samples” and did her own testing of autosomal DNA and Y chromosomal DNA. Vitta also recounted her extensive academic and professional credentials.
Vitta testified that the Northville laboratory currently had multiple national and international accreditations, for which independent auditors frequently examined “every aspect of the laboratory,” including “cases and reports . . . and the data that was generated for those cases.” The Northville laboratory also used controls at each step of its DNA testing process. Vitta estimated that she had performed thousands of DNA tests and testified as an expert on the subject many times, but this was her first case testifying as an expert in Y-STR DNA testing. The trial court certified Vitta as an expert in DNA analysis, including Y-STR DNA analysis.
Vitta testified that autosomal STR DNA testing involved chromosomes other than the sex chromosomes, while Y-STR DNA testing involved analyzing areas present only on one of the sex chromosomes, the Y chromosome. Vitta verified that the Northville labo-
Vitta testified that the statistical calculation regarding a Y-STR DNA match (haplotype) differed from the calculation performed on an autosomal STR DNA match. The Michigan State Police used a database called “the USYSTR data base,” which at the time of Vitta‘s testimony in September 2012 consisted of “approximately 23,000 male samples” contributed by academic institutions, law enforcement, and other groups across the United States.12 When Vitta performed the Y-STR DNA analyses in this case, the USYSTR database contained more than 18,000 sample haplotypes. Concerning haplotypes from Midwest males, Vitta recounted that organizations in Illinois, Minnesota, and Wisconsin had submitted samples, and because Michigan submitted samples to the FBI, which contributed samples to the USYSTR database, the database might contain some Michigan samples. When making calculations of haplotype frequency, Vitta testified that a
In this case, Vitta conducted Y-STR DNA testing on “a reference sample from [defendant],” on DNA extracts from a blue scarf “that the victim . . . was bound with when she was found on November 20, 2012,” and on DNA extracts from fingernail clippings off the victim‘s right hand. Vitta testified that she identified DNA haplotypes at multiple locations for the blue scarf sample, the right-hand nail clippings, and defendant‘s known sample. She noticed the same “major male [haplotype] . . . developed from both” the blue scarf and nail clipping samples. With respect to the blue scarf, Vitta undertook “a side-by-side comparison [of] the same areas of the . . . Y chromosome that were amplified” in the known sample from defendant, compared “the [haplotypes] . . . obtained at each one of those locations,” noticed in the blue scarf sample “results that were consistent with three or more male donors,” and opined that the major male donor haplotype in the blue scarf “matched the reference sample haplotype from [defendant].” Vitta also discovered that the major male donor of the DNA under the victim‘s fingernails matched “the major male Y-STR haplotype” from defendant‘s known sample.
Vitta testified that because the areas of the Y chromosome examined in Y-STR DNA testing “are inherited in . . . a package . . . from generation to generation down the male line,” the significance of a Y haplotype match is that an individual is not excluded as a source
The trial court ruled that the offered Y-STR DNA evidence was admissible, specifically holding that the prosecution had met the burden of showing that Ferragut‘s and Vitta‘s testimony was rooted in “recognized scientific, technical, or other specialized knowledge” that would assist the trier of fact. Gilbert, 470 Mich. at 789 (quotation marks omitted). The trial court also concluded that defendant‘s issue with regard to the statistical analysis procedures and the database used in Y-STR DNA analysis would go to the weight of the evidence, not its admissibility. See People v. Holtzer, 255 Mich. App. 478, 491; 660 N.W.2d 405 (2003). Finally, the trial court ruled that the evidence‘s probative value was not outweighed by the danger of unfair prejudice.
We conclude that the prosecution carried its burden of demonstrating admissibility under
Further, Ferragut and Vitta repeatedly and plainly explained at the Daubert hearing the limited significance of a Y-STR DNA match, specifically that a match could not uniquely identify a male DNA donor and could only include a male as a potential DNA donor. At trial, Altesleben, Vitta, and a defense expert
V. RIGHT OF CONFRONTATION
Defendant next argues that the trial court violated his right to confront witnesses against him, as well as
We conclude that the trial court did not err by deeming Altesleben unavailable to testify at trial. Further, defendant enjoyed a prior, similar opportunity to cross-examine Altesleben, and thus the trial court violated neither the Confrontation Clauses,
A trial court may admit “[f]ormer testimony . . . under both
(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant--
* * *
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity. . . .
* * *
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
The prosecutor moved to admit at trial Altesleben‘s preliminary examination testimony on the basis of a doctor‘s order confining her to “bed rest as a result of complications associated with her pregnancy. . . .” The court found that Altesleben was unavailable and admitted her preliminary examination testimony. We conclude that the trial court did not err by determining that Altesleben was unavailable because of a “then existing physical . . . illness or infirmity.”
Further, ”
Because we find no error in the trial court‘s admission of this evidence, we also find no merit to defendant‘s alternative argument that his trial counsel was ineffective for failing to raise a groundless objection to the reading of Altesleben‘s preliminary examination testimony. People v. Thomas, 260 Mich. App. 450, 457; 678 N.W.2d 631 (2004).
VI. ACCOMPLICE JURY INSTRUCTION
Next, defendant argues that the trial court improperly bolstered Watson‘s credibility with an improper jury instruction. We disagree. In the first instance,
“A criminal defendant has the right to have a properly instructed jury consider the evidence against him.” People v. Rodriguez, 463 Mich. 466, 472; 620 N.W.2d 13 (2000) (quotation marks and citation omitted). This Court reviews jury instructions as a whole to determine whether error requiring reversal occurred. People v. Bartlett, 231 Mich. App. 139, 143; 585 N.W.2d 341 (1998). The jury instructions must include all elements of the charged offenses, and must not omit material issues, defenses, or theories that the evidence supports. Id. Even when somewhat imperfect, jury instructions do not qualify as erroneous provided that they fairly present to the jury the issues to be tried and sufficiently protect the defendant‘s rights. People v. Knapp, 244 Mich. App. 361, 376; 624 N.W.2d 227 (2001); Bartlett, 231 Mich. App. at 143-144.
Watson testified that on November 20, 2011, she and defendant returned to Dailey‘s house after defendant had proposed robbing Dailey; she and defendant entered Dailey‘s house; they both participated in taking Dailey‘s personal property from different areas of the house; and in Watson‘s presence, defendant repeatedly punched Dailey‘s face and stomped on her neck, twisted Dailey‘s neck with his hands, bound her hands with a scarf, and exhibited to Watson a knife before returning to Dailey‘s bedroom. Watson also testified that in December 2012, the prosecution agreed to dismiss a felony-murder charge against her if she pleaded guilty of second-degree murder, larceny in a building, and unlawful possession of a financial transaction device.
The trial court gave instructions that closely mirrored standard accomplice instructions CJI2d 5.415 and CJI2d 5.6.16 Defendant nonetheless complains that the
However, the instructions did not state or suggest that Watson had offered truthful testimony, but only that the prosecution had agreed to pursue a lesser charge against Watson if she offered truthful testimony and that the prosecution remained free to alter the plea agreement if it obtained additional evidence against Watson. Furthermore, the entirety of the instructions mirroring CJI2d 5.4 and CJI2d 5.6 plainly cautioned the jury about accepting Watson‘s testimony for multiple reasons. Moreover, the trial court informed the jury on three occasions that it had the sole responsibility to assess credibility. In light of Watson‘s testimony establishing her longtime use of cocaine and heroin and her offering of a statement to the
VII. LAY-OPINION TESTIMONY
In his Standard 4 brief,19 defendant argues that Detective Perry Edgell of the Royal Oak Police Department improperly opined at trial that a knife in evidence constituted the same one that defendant had used to kill Dailey and discarded onto the Woodward Avenue median. We disagree. Defendant objected to the foundation for Edgell‘s description of the knife, but did not object to Edgell‘s description as improper lay-opinion testimony; this issue is therefore unpreserved and reviewed for plain error affecting substantial rights. Carines, 460 Mich. at 763, 774.
Edgell testified that he participated in the investigation of Dailey‘s death and was familiar with the location where the police recovered a knife “in the median of Woodward [Avenue].” After the prosecutor asked Edgell to point on a map to the precise location where the police discovered the knife, the following colloquy occurred:
[Edgell]: Yes. The knife that was used to kill Nancy Dailey was found--
[Defense counsel]: Objection, your Honor to the statement that the knife that was used to kill Nancy Dailey. I move to strike. There‘s absolutely no evidence--
The Court: I‘ll strike it.
[Prosecutor]: That‘s fine.
[Defense counsel]: Thank you.
At the conclusion of Edgell‘s testimony, defense counsel requested a mistrial, arguing that Edgell‘s reference to the knife as the murder weapon prejudiced defendant‘s right to a fair trial because “[t]hat determination . . . is purely within the providence [sic] of the jury” and “there was no reason for him . . . to volunteer that type of information before this jury.” The trial court denied the mistrial motion, reasoning that it had “struck the statement from the record and if the defense wants a special instruction now or later on you can have one.” The record does not indicate that defense counsel ultimately requested a special jury instruction.
After Edgell‘s stricken testimony, several officers, Watson, and Paruch all testified to the effect that the knife recovered from the median was the same knife that had been (1) stolen from the Paruch household, (2) shown to Watson by defendant before he returned to Dailey‘s bedroom, (3) indicated by defendant to Watson as the knife that he used to cut and stab Dailey‘s throat and thereafter “stomped . . . in[to] the median over there by Woodward” by the Seville Motel, and (4) recovered partially stuck in the ground at that location. Thus, even assuming that Edgell‘s statement was erroneous, defendant cannot demonstrate, in light of other properly admitted evidence, that his substantial rights were affected by this isolated (and stricken) statement.
VIII. EXCULPATORY EVIDENCE
Next, defendant argues in his Standard 4 brief that the prosecution suppressed exculpatory evidence in the form of DNA tests, conducted seven months after the offense was committed, on Jonathan Baker and DeJuan Crawford. We disagree. This issue was not raised at trial and is therefore unpreserved and must be reviewed for plain error affecting substantial rights. Carines, 460 Mich. at 763-764, 774.
“Due process requires the prosecution to disclose evidence in its possession that is exculpatory and material, regardless of whether the defendant requests the disclosure.” People v. Schumacher, 276 Mich. App. 165, 176; 740 N.W.2d 534 (2007), citing Brady v. Maryland, 373 U.S. 83, 87; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963). To establish a Brady violation, a defendant must prove
(1) that the state possessed evidence favorable to the defendant; (2) that the defendant did not possess the evidence nor could the defendant have obtained it with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. [Schumacher, 276 Mich. App. at 177 (quotation marks and citation omitted).]
Defendant attaches as Exhibit 1 to his Standard 4 brief a June 2012 “DNA Extraction Worksheet,” which lists many items that Altesleben extracted DNA from in this case, including a “[k]nown buccal [swab] from DeJuan Crawford” and “[k]nown blood from Jonathan Baker.” But defendant identifies nothing tending to
IX. CHAIN OF CUSTODY/EVIDENCE CONTAMINATION/MISHANDLING OF EVIDENCE
Next, defendant argues in his Standard 4 brief that key DNA evidence was mishandled. Defendant did not object at trial to the admissibility of the evidence delivered to the police forensic laboratory for testing on the basis that the police failed to maintain the chain of custody or otherwise exposed the evidence to degradation or tampering, or on the basis that Altesleben improperly processed or tested evidence. Consequently, this issue is unpreserved and reviewed for plain error affecting substantial rights. Carines, 460 Mich. at 763, 774. We disagree that error requiring reversal occurred.
First, defendant argues that the record reflects that Detective Carl Barretto removed these items from police storage around noon on November 25, 2011, but that the forensic laboratory inexplicably did not receive the items until late on November 28, 2011. In the intervening time, the evidence was locked in Barretto‘s office, which defendant argues allowed for potential contamination or tampering with evidence.
At trial, defense counsel questioned Barretto regarding his handling of evidence. Barretto confirmed that on Friday, November 25, 2011, the day after Thanksgiving, he had processed all the evidence tested by the Sterling Heights state police forensic laboratory, including the
As I previously stated, sir, it was locked and secured in my office. The lab was closed on that day being a holiday week and weekend. The lab was closed that Friday afternoon, actually the entire Friday. I wanted to take it basically as quick [as] I can Monday morning to the lab. That‘s why I already had the property signed out and ready to go, as I stated secured in my office.
* * *
It remained in that same condition in my office . . . when I took it to the lab on Monday morning.
Barretto in later testimony reiterated that the evidence he delivered to the laboratory was in the same condition as when it was recovered from Dr. Bernardino Pacris, the forensic pathologist who performed Dailey‘s autopsy.
In summary, the record belies defendant‘s suggestion that Barretto subjected the evidence to contamination or tampering. Defendant has failed to offer on appeal anything beyond mere speculation that tagged, logged in, and secured evidence locked in a police detective‘s office was vulnerable to tampering or contamination, and therefore has failed to substantiate any error, plain
Defendant attached as Exhibits 8 through 18 to his Standard 4 brief printouts of log entries that the Michigan State Police crime laboratories maintained concerning the forensic testing of evidence in this case. According to defendant, the log entries “show that Ms. Altesleben continuously failed to log evidence out properly, anywhere from 6 hours to 6 days, therefore making this documentary evidence invalid.” We disagree. Contrary to defendant‘s contention, the exhibits contain Altesleben‘s log entries concerning the items she examined. And defendant presents no factual basis suggesting that Altesleben improperly processed or stored the evidence or that her manner of processing the evidence might have contaminated it. Defendant accordingly has failed to substantiate any error, plain or otherwise, concerning Altesleben‘s evidence processing.
Because defendant has not established any factual support for his arguments concerning the mishandling of evidence, he has not established a factual predicate for his alternative claim that his counsel was ineffective for failing to object to its admission on this ground. People v. Hoag, 460 Mich. 1, 6; 594 N.W.2d 57 (1999).
X. ADMISSION OF WATSON‘S STATEMENT TO THE ROYAL OAK POLICE
Finally, defendant argues in his Standard 4 brief that the admission of Watson‘s statement to the Royal Oak police violated his constitutional rights, or alternatively that his counsel was ineffective for failing to object to its admission. We disagree. Defendant‘s argument is partially premised on his claim that the police violated Watson‘s right to protection from unreasonable searches and seizures in obtaining her statement; how-
Defendant also argues that his trial counsel should have obtained “medical records from the Royal Oak police department for the treatment of Ms. Watson‘s withdraws [sic].”20 However, any such records would only be relevant with respect to the voluntariness of Watson‘s statements to the police, which defendant lacks the standing to challenge. In re Investigative Subpoena re Homicide of Morton, 258 Mich. App. 507, 509; 671 N.W.2d 570 (2003). Further, defense counsel questioned Watson at length about her use of illegal and prescription drugs, including around the time of her statements; we thus find no error requiring reversal in counsel‘s failure to obtain these records. People v. Marshall, 298 Mich. App. 607, 612; 830 N.W.2d 414 (2012), vacated in part on other grounds 493 Mich. 1020 (2013).
Because we conclude that defendant has not demonstrated actual errors resulting in unfair prejudice, defendant‘s claim that the cumulative effect of several errors warrants reversal must also fail. See People v. LeBlanc, 465 Mich. 575, 591 & n 12; 640 N.W.2d 246 (2002); Carines, 460 Mich. at 763, 774.
Affirmed.
MARKEY and K. F. KELLY, JJ., concurred with BOONSTRA, P.J.
Notes
(1) [Name witness] says [he / she] took part in the crime that the defendant is charged with committing.
[Choose as many of the following as apply:]
[(a) (Name witness) has already been convicted of charges arising out of the commission of that crime.]
[(b) The evidence clearly shows that (name witness) is guilty of the same crime the defendant is charged with.]
[(c) (Name witness) has been promised that (he / she) will not be prosecuted for the crime the defendant is charged with committing based upon any information derived directly or indirectly from the witness‘s truthful testimony. The witness may be prosecuted if the prosecution obtains additional, independent evidence against the witness.]
[(d) (Name witness) has been promised that (he / she) will not be prosecuted for the crime the defendant is charged with committing.]
(2) Such a witness is called an accomplice.
Effective March 1, 2014, the applicable instruction became M Crim JI 5.4. MCR 2.512(D)(2).
(1) You should examine an accomplice‘s testimony closely and be very careful about accepting it.
(2) You may think about whether the accomplice‘s testimony is supported by other evidence, because then it may be more reliable. However, there is nothing wrong with the prosecutor‘s using an accomplice as a witness. You may convict the defendant based only on an accomplice‘s testimony if you believe the testimony and it proves the defendant‘s guilt beyond a reasonable doubt.
(3) When you decide whether you believe an accomplice, consider the following:
(a) Was the accomplice‘s testimony falsely slanted to make the defendant seem guilty because of the accomplice‘s own interests, biases, or for some other reason?
(b) Has the accomplice been offered a reward or been promised anything that might lead [him / her] to give false testimony? [State what the evidence has shown. Enumerate or define reward.]
(c) Has the accomplice been promised that [he / she] will not be prosecuted, or promised a lighter sentence or allowed to plead guilty to a less serious charge? If so, could this have influenced [his / her] testimony?
[(d) Does the accomplice have a criminal record?]
(4) In general, you should consider an accomplice‘s testimony more cautiously than you would that of an ordinary witness. You should be sure you have examined it closely before you base a conviction on it.
Effective March 1, 2014, the applicable instruction became M Crim JI 5.6. MCR 2.512(D)(2).
You have heard the testimony of Tonia Watson who has given information to the police in this case. The evidence shows that she is addicted . . . to drugs, namely heroin and cocaine.
You should examine the testimony of an addicted informer closely and be very careful about accepting it. You should think about whether the testimony is supported by other evidence because then it may be more reliable.
However, there‘s nothing wrong with the prosecutor using an addicted informer as a witness. You may convict the defendant based on such a witness’ testimony alone if you believe the testimony and it proves the defendant‘s guilt beyond a reasonable doubt.
When you decide whether to believe Tonia Watson consider the following. Did the fact that this witness is addicted to drugs affect her memory of events or ability to testify accurately[?] Does the witness’ addiction give her some special reason to testify falsely[?] Does the witness expect a reward or some special treatment or has she been offered a reward or been promised anything that might lead to her giving false testimony[?] Has the witness been promised that she will not be prosecuted for any charge or promised a lighter sentence or allowed to plead guilty to a less serious charge[?] If so, could this have influenced her testimony[?] Does the witness have a past criminal record[?]
In general, you should consider an addicted informer‘s testimony more cautiously than you would that of an ordinary witness. You should be sure you have examined it closely before you base a conviction on it. [Emphasis added.]