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