People v. Tanner

                                                                    Michigan Supreme Court 

                                                                    Lansing, Michigan 48909 


                                       Chief Justice                   Justices




Opinion
                                       Maura D. Corrigan               Michael F. Cavanagh
                                                                       Elizabeth A. Weaver
                                                                       Marilyn Kelly
                                                                       Clifford W. Taylor
                                                                       Robert P. Young, Jr.
                                                                       Stephen J. Markman



                                                             NOVEMBER 25, 2003
 PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellant,

 v                                                                     No. 123414

 HATTIE MAE TANNER,

      Defendant-Appellee.

 _______________________________

 PER CURIAM

      This case concerns when, under MCL 775.15, a defendant

 is entitled to have expert assistance appointed at public

 expense in a criminal proceeding.                     Defendant sought expert

 assistance    regarding        deoxyribonucleic             acid      (DNA)       and

 serology evidence, even though the DNA evidence excluded

 defendant    and   the    serology    evidence           suggested    only       that

 defendant was one of 2.9 million people who could have been

 the source of the blood found at the crime scene.                         Further,

 defendant    failed      to   give   any      specific       reason     why      this

 expert assistance was necessary.                      The trial court refused

 defendant’s request, ruling that the appointment of an
expert was not necessary for defendant to safely proceed to

trial.            The   Court   of      Appeals       reversed     defendant’s

conviction on the ground that she could not have safely

proceeded to trial without expert assistance.1                          We agree

with the trial court; therefore, we reverse the decision of

the Court of Appeals and remand this case to the circuit

court       for    reinstatement     of        defendant’s    conviction      and

sentence.

                                   I.     Facts

                  A.    The DNA and Serological Evidence

        In the early hours of March 22, 1995, bartender Sharon

Watson was stabbed to death during a robbery at a bar.

Hattie Mae Tanner first became a suspect in the case when

the police learned that she spent the evening with a man

who was one of the last people to see the victim alive.

        When questioned by the police, defendant implicated

herself.          She   admitted   that        a   knife   found   at   the   bar

“look[ed] like one of [her] knives” because of its unique

characteristics.          She also explained that her fingerprints

would be on the knife because she had handled it three or

four weeks before the homicide.                    Also, defendant admitted

that she was on the bar premises that evening.



        1
            255 Mich App 369; 660 NW2d 746 (2003).


                                          2

              The       physical       evidence         collected       from      the     bar

included      the       knife,     a     bloodstained           napkin,       a    diluted

bloodstain         on     the     sink    directly          behind       the       bar,     a

bloodstained        cloth,        and,       on     the     victim’s      shirt,          six

bloodstains.              The     prosecutor            arranged        for       DNA     and

serological analyses of this evidence.

       The DNA evidence excluded defendant.2                            Some evidence

that       could    not    be     tested          for     DNA    was    subjected          to

serological             testing        for         both         blood         type        and

phosphoglucomutase (PGM), an enzyme found in human blood.3

This testing established that the diluted bloodstain found

on the bar sink was of the same blood type and PGM subtype

as defendant’s blood.               The prosecution’s expert clarified,

however, that a comparison of the two blood profiles did

not confirm that the blood was defendant’s.                               Rather, the

evidence established that defendant and about four percent

of   the     African-American            population         have    the       same      blood

profile.       The prosecution’s serology expert testified that


       2
       DNA analysis of the blood on the knife and the napkin
established a match with the victim’s DNA profile; none of
this blood matched defendant’s DNA profile. Testing of the
bloodstains on the victim’s shirt revealed that the blood
did not match the DNA profile of either the victim or
defendant.   These bloodstains, which originated from only
one person, were attributable to an unknown female.
       3
       There are four blood types, A, B, AB, and O, and
there are ten PGM subtypes.


                                             3

African-Americans           constituted         twenty-six    percent   of    the

United States population of 280 million people, and that

“[p]ossibly millions” would have the same blood type and

PGM subtype as defendant.4

                       B.    Circuit Court Proceedings

       Defendant filed a pretrial motion under MCL 775.15 for

expert assistance in DNA and blood typing.                         This statute

authorizes payment for an expert witness, provided that an

indigent         defendant    is    able     to    show    “that   there     is   a

material witness in his favor within the jurisdiction of

the court, without whose testimony he cannot safely proceed

to a trial . . . .”                 Id.      If the defendant makes this

showing, the judge “in his discretion” may grant funds for

the retention of an expert witness.                  Id.

       At    the    hearing,       defense      counsel    informed   the    trial

court that he did not want to retain an expert to reanalyze

the blood samples or repeat the testing conducted by the

prosecution’s experts.              He stated that he wanted an expert

to help him better understand the DNA evidence and possibly

to testify at trial.                After the prosecution pointed out

that       the   DNA   evidence      was     exculpatory,     defense   counsel



       4
       A calculation using these numbers indicates that
slightly more than 2.9 million African-Americans share
defendant’s type and PGM subtype.


                                           4

asked for money to “consult the DNA expert, and then based

on that consultation if I can persuade you that some money

should be kicked in for him to testify then we can revisit

that area . . . .”        The trial court denied the request.

       The case proceeded to trial.               The jury found defendant

guilty of second-degree murder, felony murder, and armed

robbery.        The    trial     court    sentenced         defendant      to     life

imprisonment for felony murder and vacated the other two

convictions.

                    C. The Court of Appeals Decision

       Defendant      appealed     to    the    Court       of    Appeals,      which

vacated her conviction and remanded the case for retrial.

The    Court    concluded        that     the     “trial         court    erred     in

depriving defendant of expert assistance in the areas of

DNA and serology because she could not otherwise proceed

safely to trial without such assistance.”                           255 Mich App

404.     It     characterized       the       role    of    DNA     and    serology

evidence in the case as “critical.”                       Id. at 405.           A DNA

expert   was    needed    so     that    defendant         could    “develop      and

argue the point that the DNA evidence exculpated her.”                             Id.

at 405-406.         A serology expert was needed so that defendant

could “defend herself against the effect” of the serology

evidence,      or    “diminish    its     force      by    explaining      that    it

constituted an anomalous test result.”                     Id. at 406.


                                         5

       Further,       the     Court      held       that,     without     this      expert

assistance,        defendant          received        a       fundamentally         unfair

trial.         Because      it    could        not   say      that     the    error      was

harmless beyond a reasonable doubt, it reversed defendant’s

conviction      and     remanded         for    a    new      trial.         The   dissent

stated that defendant had not shown that “the absence of an

expert jeopardized her ability to prepare a defense,” id.

at 425, and that, therefore, the trial court’s denial of

defendant’s motion did not result in a fundamentally unfair

trial.

       The prosecutor sought leave to appeal to this Court.

                            II.    Standard of Review

       This Court reviews a trial court’s decision whether to

grant an indigent defendant’s motion for the appointment of

an expert for an abuse of discretion.                          MCL 775.15.         “A mere

difference in judicial opinion does not establish an abuse

of discretion.”             People v Cress, 468 Mich 678, 691; 664

NW2d 174 (2003).

                                  III.    Discussion

       As   MCL    775.15         makes    clear,         a   trial     court      is    not

compelled to provide funds for the appointment of an expert

on demand.         In People v Jacobsen, 448 Mich 639, 641; 532

NW2d     838      (1995),        this     Court        held      that,        to    obtain

appointment        of    an      expert,        an    indigent         defendant        must


                                               6

demonstrate a “'nexus between the facts of the case and the

need    for   an    expert.'”       (Citation     omitted.)         It   is    not

enough for the defendant to show a mere possibility of

assistance         from    the    requested      expert.          “Without     an

indication that expert testimony would likely benefit the

defense,” a trial court does not abuse its discretion in

denying a defendant’s motion for appointment of an expert

witness.      Id.

        Because defendant failed to show a nexus between the

facts of this case and the need for an expert, we hold that

the trial court did not abuse its discretion in denying the

motion.       As the trial court recognized, the prosecutor’s

DNA experts testified that the blood in the bar and on the

victim’s shirt was not defendant’s.                  The DNA evidence was

entirely      exculpatory.         In    fact,   DNA    analysis     not      only

eliminated the possibility that the blood on the victim’s

shirt    belonged         to   either    defendant     or   the    victim,     it

established        that    the   blood    belonged     to   an    unidentified

female.       This favored defendant’s assertion that she was

not Watson’s killer.             Under these circumstances, defendant

cannot show that she could not safely proceed to trial

without a DNA expert.

        Nor did defendant establish the need for appointment

of an expert serologist.                The serology evidence did link


                                         7

defendant       to       the     crime    scene     in    a     general     sense,     by

establishing that the diluted bloodstain by the sink was

left by one of possibly millions of persons who shared

defendant’s blood type and PGM subtype.                          But we agree with

the     Court       of    Appeals        dissent    that      defendant        did    not

establish that an expert serologist would offer testimony

that would “likely benefit the defense,” as is required by

the statute.          Jacobsen, supra at 641.

        As the dissent stated, defendant did not seek to have

the serology testing repeated.                          Nor did defendant argue

that a serology expert might refute the conclusion that the

blood       found    by    the    sink     had    the    same    blood    profile      as

defendant’s blood.                At best, defendant has raised only the

mere possibility that the appointment of a DNA and serology

expert might have provided some unidentified assistance to

the defense.              This falls short of satisfying defendant’s

burden of showing that she could not safely proceed to

trial       without       such    expert    assistance.         We   hold      that   the

trial       court     did      not   abuse        its    discretion       in    denying

defendant’s motion.5




        5
       For the same reason, the trial court did not abuse
its discretion in denying appellate counsel’s subsequent
motion for the appointment of a serology expert.


                                             8

                         IV.   Conclusion

     Because defendant failed to establish a nexus between

the facts of the case and the need for a DNA and serology

expert,   the   Court   of   Appeals   erred   when   it   held   that

defendant could not proceed safely to trial without one.

The trial court did not abuse its discretion in ruling that

defendant was not entitled to such assistance under MCL

775.15.   Accordingly, we reverse the decision of the Court

of Appeals and remand to the trial court for reinstatement

of defendant’s felony-murder conviction and sentence.6             MCR

7.302(G)(1).

                                  Maura D. Corrigan
                                  Michael F. Cavanagh
                                  Elizabeth A. Weaver
                                  Clifford W. Taylor
                                  Robert P. Young, Jr.
                                  Stephen J. Markman




     6
        Our holding renders moot the Court of Appeals
directive that, on retrial, the prosecution may not charge
defendant with felony murder under an aiding and abetting
theory.   Our review of the record confirms that, when the
evidence is viewed in a light most favorable to the
prosecution, the case was properly submitted to the jury on
both theories of felony murder because a reasonable juror
could find the essential elements of the crime proved
beyond a reasonable doubt.    People v Riley, 468 Mich 135,
139; 659 NW2d 611 (2003).      We note that circumstantial
evidence and reasonable inferences may be sufficient to
prove the elements of a crime.     People v Jolly, 442 Mich
458, 466; 502 NW2d 177 (1993).


                                  9

                       S T A T E       O F   M I C H I G A N 


                                     SUPREME COURT 



PEOPLE OF STATE OF MICHIGAN,

        Plaintiff-Appellant,

v                                                                       No. 123414

MATTIE MAE TANNER,

     Defendant-Appellee.
_______________________________

KELLY, J. (dissenting).

        I would deny leave to appeal in this case, leaving
intact the Court of Appeals decision remanding for a new
trial. The trial court abused its discretion in denying
funds       to   the    public       defender   for    consultation       with    an
                                 7
expert in blood tests                to enable counsel to understand and
meet the prosecution’s evidence.                  Moreover, the error was
not harmless.           The evidence supporting the conviction was
not as strong as the majority characterizes it.                            Because
blood test data testimony was central to the case, the
trial       court’s     decision       denied   defendant    a    fundamentally
fair        trial.      She   is       entitled   to    a   new    trial      after
appointment of an expert in blood tests.
        The record shows that the public defender who tried
the case had a limited understanding of the prosecution’s
scientific evidence.                 He requested funds from the trial
court to retain an expert witness to examine the data.                           The


        7
      The blood tests in question include both                    DNA   and
serological tests.
court denied the motion because the                          DNA     part of the data
exculpated,       rather      than     inculpated,             defendant.             Because
counsel     had       limited    knowledge              of     the      science       of   DNA

analysis, he failed to argue specifically for an expert to
analyze    the     serological       data.              Also,      he    was      unable   to
articulate why the defense needed an expert to examine the
data.
        The majority finds that the trial court decision was
proper.     It sets an impossible goal for defense counsel.
If counsel fully understands the prosecution’s scientific
evidence, there would be no need for an expert to explain
it.      If,     as     here,    counsel           is    not      expert         in   certain
scientific matters, the majority seems to require counsel
to petition for funds for an expert using an expert’s grasp
of the subject matter.
        Furthermore, the per curiam opinion characterizes the
evidence of defendant’s guilt as being stronger than it
was.      All defendant’s statements to the police were not
incriminating. Moreover, they were internally inconsistent.
Defendant admitted having been in the bar several years
before the slaying, but denied being there on the night in
question.       At trial, she admitted driving past the bar that
night, but denied going in.
        The prosecution’s assertion that a knife found at the
scene    belonged       to     her   was          controverted           and     denied    by
defendant.        She admitted that the picture of the knife she
was shown had an altered tip similar to an alteration she
had made to one of her knives.                          But she denied the knife
was hers because it could not fold up.
        There    were    substantial          problems            with    the     recording
equipment       that     the     police           used       to      take        defendant’s
statements.           There     were     a        large      number         of    inaudible


                                             2

responses.           This    raises    the     question    of     what    exactly
defendant admitted.             Her statements, questionable in the
accuracy of their transcription, could not have supported a
conviction beyond a reasonable doubt.
       The     per     curiam     opinion       adopts     the     prosecutor’s
statement that serological evidence narrowed the universe
of suspects to more than two million people, hence hardly
incriminating defendant. However, that evidence did not go
to the jury in that form.                 Rather, the jurors were told
that    only     four        percent    of     black     women,    women     like
defendant, match the blood sample found at the scene.
       This    blood    was     the    only    physical    evidence       placing
defendant at the scene of the crime.                   Therefore, the denial
of funds to retain an expert to advise the defense, given
the    closely       drawn    evidence    of    guilt,    was     not    harmless
beyond a reasonable doubt.               It was an abuse of discretion.
For those reasons, I would remand for a new trial.
                                                                  Marilyn Kelly




                                         3