If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 3, 2020
Plaintiff-Appellee,
v No. 323741
Wayne County Circuit Court
JOHNNY RAY KENNEDY, LC No. 14-001748-FC
Defendant-Appellant.
ON REMAND
Before: MURRAY, C.J., and STEPHENS and RIORDAN, JJ.
PER CURIAM.
On remand, our Supreme Court directed this Court to reconsider whether defendant’s claim
of error concerning his request for a DNA expert constitutes error that is harmless beyond a
reasonable doubt. People v Anderson (After Remand), 446 Mich 392, 405-406; 521 NW2d 538
(1994). We reverse and remand for a new trial consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 17, 1993, a dead body was discovered in the basement of an abandoned
office building in Detroit. The body was identified as Tanya Harris, and the medical examiner
determined that she died by strangulation. After an investigation, the police had no leads as to
who murdered Harris. In 2011, while “working on cold cases,” the Detroit Police Department sent
a vaginal and rectal swab taken from Harris to the Michigan State Police Crime Lab for DNA
testing. After testing, it was determined that the swabs contained DNA from Harris “as well as an
additional donor that was determined to be male.” When the male DNA was run through the
-1-
“CODIS System,”1 it produced a match with defendant. As a result, on December 12, 2013,
defendant was charged with open murder for the death of Harris. He was convicted as charged.
His conviction was affirmed, People v Kennedy, unpublished per curiam opinion of the
Court of Appeals, issued July 26, 2016 (Docket No. 323741) (Kennedy I) (Judges MURRAY, P.J.,
and RIORDAN, with Judge STEPHENS dissenting). Defendant sought leave to appeal in our Supreme
Court. After holding oral arguments on the application for leave to appeal, the Supreme Court
issued an opinion on the application, overruling People v Jacobsen, 448 Mich 639; 532 NW2d 838
(1995), and People v Tanner, 469 Mich 437; 671 NW2d 728 (2003), “to the extent that they h[e]ld
or suggest[ed]” that an indigent defendant’s request for the appointment of an expert at state
expense is governed by MCL 775.15. People v Kennedy, 502 Mich 206, 225; 917 NW2d 355
(2018) (Kennedy II). Given that the majority in this Court had relied on the now overruled holding
in Tanner, the Supreme Court vacated Kennedy I and remanded with instructions for this Court to
reexamine defendant’s claim of error concerning his request for a DNA expert by applying the due
process analysis set forth in Ake v Oklahoma, 470 US 68; 105 S Ct 1087; 84 L Ed 2d 53 (1985),
utilizing the “reasonable probability” standard announced in Moore v Kemp, 809 F2d 702 (CA 11,
1987). Kennedy II, 502 Mich at 227-228. After reexamining the matter according to the Supreme
Court’s instructions, a majority of this panel held that although “defendant’s motion [wa]s
sufficient to satisfy the Moore ‘reasonable probability’ standard,” defendant’s due-process
argument had not been duly preserved in the trial court, and “defendant [wa]s not entitled to
appellate relief under the plain-error test.” People v Kennedy (On Remand), unpublished per
curiam opinion of the Court of Appeals, issued August 6, 2019 (Docket No. 323741) (Kennedy
III). Judge STEPHENS dissented, opining both that the question of issue preservation was not
properly before this Court on remand and that defendant’s due-process argument was duly
preserved. Kennedy III, unpub op at 1-2 (STEPHENS, J., dissenting).
Defendant again sought leave to appeal in our Supreme Court, which issued an opinion on
the application (1) reversing the Kennedy III majority’s determination that the due-process issue
was unpreserved, (2) vacating “the remainder” of that majority opinion, and (3) remanding with
instructions for this Court to reconsider the issue “under the standard for preserved constitutional
error” described in People v Anderson, 446 Mich 392, 405-406; 521 NW2d 538 (1994). People v
Kennedy, ___ Mich ___, ___ (2020) (Kennedy IV) (Docket No. 160320); slip op at 1.
After the Supreme Court remanded this matter to this Court in Kennedy IV, ___ Mich at
___; slip op at 1, this Court entered an order, sua sponte, directing the parties to file supplemental
briefs “specifically addressing the following issue: whether defendant’s claim of error concerning
his request for a DNA expert constitutes error that is harmless beyond a reasonable doubt.” People
v Kennedy, unpublished order of the Court of Appeals, entered April 30, 2020 (Docket No.
323741).
II. ANALYSIS
1
CODIS stands for Combined DNA Index System and is a database system where DNA profiled
from crime scene evidence are kept.
-2-
In its supplemental brief on remand, the prosecution concedes that the trial court erred by
refusing to appoint Zubel as a defense expert at state expense, but argues that the state’s failure to
pay for Zubel’s services was harmless beyond a reasonable doubt. The prosecution argues,
because defendant’s trial counsel nevertheless hired Zubel at counsel’s own expense for “many
hours” of consultation services; “there is zero evidence that even an unlimited consultation—
something that an appointment would not have paid for—would have made any difference”; Zubel
admitted that the prosecution’s DNA evidence was highly inculpatory, stating, “looks like they’ve
got your guy”; “counsel spent a considerable amount of time studying books and other materials
to attempt to undermine the People’s DNA evidence”; counsel “testified that he was able to use
the knowledge he gained to challenge the state’s proofs”; and as this Court recognized in Kennedy
III, unpub op at 5-6, counsel “acknowledged that neither he nor Zubel were able to identify any
specific problems with the DNA testing that was performed in this case.”
In response, defendant argues that the prosecution failed to carry its burden of
demonstrating beyond a reasonable doubt that the trial court’s error regarding Zubel was harmless.
This is so, defendant contends, because “DNA evidence was the lynchpin of the government’s
case”; Zubel’s further assistance was “critical . . . to trial counsel’s efforts to challenge that
evidence”; the trial prosecutor strongly emphasized the DNA evidence in the prosecution’s
opening statement and closing arguments; there was evidence that “another man, Big Mike, was
seen with the decedent shortly before her death and said he killed her shortly after her death”;
although trial counsel “took the extraordinary step of personally retaining Mr. Zubel for some of
the assistance . . . originally sought,” counsel “also testified that he was not able to afford to pay
for all of the assistance that he required and did not feel confident in his ability to use what he
learned . . . to effectively cross-examine the state’s experts”; as a result, counsel admittedly failed
to understand the content of Zubel’s report, which left counsel “ill-equipped to understand and
challenge the scientific evidence presented by the state at trial”; counsel was especially unable to
challenge the prosecution’s Y-STR DNA evidence and to cross-examine the state’s experts
concerning the “anomalies” cited in Zubel’s report; and Zubel’s written report is “compelling
evidence” that the trial court’s error in failing to appoint him as a defense expert was not harmless.
In Kennedy IV, ___ Mich at ___; slip op at 1, the Supreme Court specifically directed this
Court to reconsider this issue “under the standard for preserved constitutional error.” Questions
of constitutional law are reviewed de novo. Kennedy II, 502 Mich at 213. Applying the standard
for preserved, nonstructural,2 constitutional error in this case, the prosecution—as the beneficiary
of the error at issue—bears the burden of demonstrating that the error was “harmless beyond a
reasonable doubt.” See People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999), citing
2
Notably, in defendant’s supplemental brief on remand, he does not contend that the Ake error at
issue here is structural, i.e., error requiring automatic reversal. See Anderson (After Remand), 446
Mich at 405 (discussing structural error). Hence, defendant has abandoned any such argument.
See People v McGraw, 484 Mich 120, 131 n 36; 771 NW2d 655 (2009) (“Failure to brief an issue
on appeal constitutes abandonment.”).
-3-
Anderson (After Remand), 446 Mich at 405-406 (“This requires the beneficiary of the error to
prove, and the court to determine, beyond a reasonable doubt that there is no reasonable possibility
that the evidence complained of might have contributed to the conviction.”) (quotation marks,
footnote, and citation omitted). In more colloquial terms, the prosecution must prove that the
preserved constitutional error “did not tip the scale in the prosecution’s favor and contribute to the
jury’s verdict.” Anderson (After Remand), 446 Mich at 407. In analyzing that issue, a reviewing
court should examine “the entire record,” the nature of the error, and its import in the context of
the case as a whole. Id. at 406-407 (holding, under the instant standard of review, that the
introduction of an inculpatory statement made by the defendant during an unconstitutional
custodial interrogation was not harmless error, reasoning: “We reach this conclusion after
examining the entire record and considering both the statement itself and its subsequent emphasis
in closing argument.”)
On remand, we must determine whether the prosecution has carried its burden of
demonstrating that the trial court’s failure to appoint Zubel as a defense expert was “harmless
beyond a reasonable doubt.” This Court opines that the prosecution failed to meet its burden.
We reiterate our determination as set forth in Kennedy III that the Moore standard was met,
as we wrote in Kennedy III, at 4-5:
“ ‘[A] defendant [seeking appointment of an expert under Ake] must show the trial
court that there exists a reasonable probability both that an expert would be of
assistance to the defense and that denial of expert assistance would result in a
fundamentally unfair trial.’ ” Kennedy II, 502 Mich at 228, quoting Moore, 809
F2d at 712. “ ‘Thus, if a defendant wants an expert to assist his attorney in
confronting the prosecution’s proof—by preparing counsel to cross-examine the
prosecution’s experts or by providing rebuttal testimony—he must inform the court
of the nature of the prosecution’s case and how the requested expert would be
useful.’ ” Id. at 225, quoting Moore, 809 F2d at 712. “ ‘At the very least, he must
inform the trial court about the nature of the crime and the evidence linking him to
the crime.’ ” Id., quoting Moore, 809 F2d at 712. “[T]he defendant’s showing
must also include a specific description of the expert or experts desired” and
“should inform the court why the particular expert is necessary.” Id., quoting
Moore, 809 F2d at 712.
In pertinent part, the motion to appoint Zubel stated:
1. That . . . the defendant is charged with murder in the first degree.
2. That the decedent victim is one Tanya Harris, whose body was found in
an abandoned building in November 1993.
3. That the only evidence against the defendant, who is an inmate in the
Michigan Department of Corrections, is a test of DNA material performed by one
Amy Altesleben, a forensic scientist employed by the Michigan State Police.
4. That, a prosecution based largely or entirely upon the presentation of
identification evidence based upon DNA poses an especially technical and complex
-4-
range of issues for defense counsel, as the essence of the prosecutions’ case is the
presentation of a report from a qualified technician or scientist. That report is
conclusory and counsel who would render constitutionally effective assistance to
his client and zealously confront the witnesses and evidence called in the
prosecution’s case in chief, must be educated and schooled to no small extent in the
science and accepted protocols of DNA extraction, preservation, testing, as well as
dangers of contamination and the steps and measures taken to document a particular
test, and to maintain the proper calibration of testing equipment, all just to some of
the areas in which counsel must be prepared to cross-examine.
5. That counsel seeks an order of the court to appoint as an expert in what
may be called “DNA litigation” one Brian Zubel of Fenton, Michigan.
6. Mr. Zubel is an attorney licensed to practice in Michigan, who has been
a member of the American Academy of Forensic Sciences since 2008. He has
presented DNA evidence as a prosecuting attorney in Oakland, Berrien, and
Genesee counties and has litigated in similar fashion as an assistant attorney general
of the state of Michigan in the case of People v Unger, 278 Mich App 210 (2008).
7. That Mr. Zubel’s Curriculum Vitae is attached . . . , as well as a scholarly
article from the September 2013 issue of the Criminal Law Section newsletter.
8. That in Wayne County Circuit Court, Mr. Zubel has been recognized as
an expert by the Honorable Annette Jurkewicz Berry and by the Honorable Vonda
Evans.
9. That, without the active assistance of a learned expert, counsel will not
be able to confront the witnesses and to shed light on any questionable issues that
may have occurred during the lengthy storage and testing procedures.
Notably, when counsel filed the above motion, he had yet to receive requested discovery
materials from the prosecution concerning the DNA “collection/processing/analysis in this case,”
which counsel had specifically requested at Zubel’s recommendation.
We reaffirm our prior conclusion that defendant’s motion was sufficient to satisfy the
Moore reasonable probability standard, particularly in light of the limited discovery concerning
the DNA evidence that had been provided to defense counsel at the time the motion was filed. See
Moore, 809 F2d at 712 n 10 (“The difficulty of the defendant’s task will vary depending on the
scope of the jurisdiction’s discovery rules.”). Among other things, the motion informed the trial
court of the nature of the prosecution’s case, the identity and background of the desired expert,
how his appointment would be useful to the defense, and why counsel believed that it was
necessary to ensure a fair trial. Moreover, given the highly technical, scientific nature of DNA
evidence, that counsel indicated he would be unable to understand that evidence or to meaningfully
cross-examine the prosecution’s experts concerning it without expert assistance, and that DNA
evidence was the sole foundation of the charges against defendant, it seems that defendant
demonstrated that there was “a reasonable probability both that an expert would be of assistance
-5-
to the defense and that denial of expert assistance would result in a fundamentally unfair trial.”
See Kennedy II, 502 Mich at 227, quoting Moore, 809 F2d at 712.
Where the claim of error is preserved and a constitutional error is found it is the
prosecution’s burden to establish that the error was harmless beyond a reasonable doubt. Anderson
(After Remand), 446 Mich at 405-406.
In Mathews v Eldridge, the Supreme Court stated that:
. . . due process generally requires consideration of three distinct factors: First, the
private interests that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail. [424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976)].
The private interest at stake here is defendant’s liberty and his right to present a defense to
the charge against him. These interests have been recognized as substantial. “The interest of the
individual in the outcome of the State’s effort to overcome the presumption of innocence is obvious
and weighs heavily[.]” Ake, 470 US at 78.
This is a DNA case. This defendant could not safely proceed to trial without DNA
expertise. Nearly two decades ago DNA evidence was collected from the victim, who was both
strangled and sexually assaulted. It was only when that evidence was tested that defendant was
charged with murder. The age and size of the DNA sample, its storage process and testing
methodology were all likely issues of contention in this case. Trial counsel understood that this
DNA evidence was the lynchpin of the prosecutions’ case and asked the court for the appointment
of Zubel, an eminently qualified expert to assist him in preparing his client’s defense. Zubel was
a former prosecutor who trained prosecutors on litigating forensic science issues in criminal cases.
The trial court however, denied Zubel’s appointment. The court seemed to presume that despite
the scientific nature of the evidence at issue, counsel could prepare for examination of the
prosecutions’ witnesses and otherwise prepare an effective litigation strategy, including plea
considerations, through reading and soliciting the advice of some mythical expert who would
consult for free. To the contrary, this is a case like Ake where “[w]ithout a[n] [expert’s] assistance,
the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a significant
opportunity to raise in the jurors’ minds questions about the State’s proof of an aggravating factor.”
470 US at 84.3 At trial, the prosecution presented two forensic experts. Through these experts,
3
There can be no doubt that many types of expert witnesses—including DNA experts—have
played a pivotal role in criminal proceedings. It is undisputed in this case—and indeed seems
beyond dispute—that DNA and other types of experts may sometimes “be crucial to the
defendant’s ability to marshal his defense.” Id. at 80 (quotation marks and citation omitted). And,
finally, we have yet to discern an exact science on this topic—indeed, the very notion is
incompatible with our adversarial system of justice, in which “juries remain the primary factfinders
-6-
the jury learned about DNA, different types of DNA testing, the DNA testing results in this case,
and the meaning of the test results as applied to defendant. We cannot conclude that the failure to
appoint Zubel to assist counsel was harmless under the test set forth in Anderson.
Accordingly, we REVERSE and REMAND for a new trial. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Cynthia Diane Stephens
/s/ Michael J. Riordan
. . . and they must resolve differences of opinion [among the experts] on the basis of the evidence
offered by each party.” Id. at 81; see also Hinton v Alabama, 571 US 263, 276; 134 S Ct 1081;
188 L Ed 2d 1 (2014) (“Prosecution experts, of course, can sometimes make mistakes. Indeed, we
have recognized the threat to fair criminal trials posed by the potential for incompetent or
fraudulent prosecution forensics experts, noting that ‘[s]erious deficiencies have been found in the
forensic evidence used in criminal trials.’ . . . This threat is minimized when the defense retains a
competent expert to counter the testimony of the prosecution’s expert witnesses; it is maximized
when the defense instead fails to understand the resources available to it by law.”), quoting
Melendez-Diaz v Massachusetts, 557 US 305, 319; 129 S Ct 2527; 174 L Ed 2d 314 (2009).
-7-