People v. Agar , 314 Mich. App. 636 ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 2, 2016
Plaintiff-Appellee,
v No. 321243
St. Clair Circuit Court
THOMAS JOSEPH AGAR, LC No. 13-001935-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and GLEICHER and STEPHENS, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of distributing child sexually
abusive material, MCL 750.145c(3), possessing child sexually abusive material (three counts),
MCL 750.145c(4), using a computer to commit a crime, MCL 752.796; MCL 752.797(3)(d), and
resisting and obstructing a police officer, MCL 750.81d(1). Defendant was sentenced to serve
18 months to 7 years for his convictions of distribution and use of a computer to commit a crime,
18 months to 4 years for each count of possession, and 1 to 2 years for resisting and obstructing a
police officer, the sentences to be served concurrently. We vacate and remand for a new trial.
I. BACKGROUND
Defendant’s computer-related convictions arose out of his internet provider (IP) address
being identified by Detective Eric Stevens as one possibly trading or sharing child pornography.
At defendant’s preliminary examination, Detective Stevens testified as an expert in
computer forensics to explain the Ephex software that he used to find defendant’s IP address and
the Shareaza software he believed defendant used to possess and share child pornography. After
a second preliminary examination the defendant was bound over on all charges.
Pretrial, defendant filed a motion for the appointment of a forensic computer expert
witness to rebut Detective Stevens, and investigate and support defendant’s theories of how
defendant could have inadvertently downloaded child pornography. Defense counsel and the
court admitted to a lack of sophistication regarding computer issues in general. Defendant
argued that the appointment of an expert witness was necessary to examine defendant’s
computer, prepare for trial and effectively rebut the testimony offered by the prosecution’s expert
Detective Stevens. Defendant identified Larry A. Dalman, a retired career state police officer, as
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the expert he wanted to retain. Defendant stated that defendant was indigent and needed
$1500.00 of public funds to retain Dalman.
The prosecution’s position was that defendant had not shown a sufficient “nexus between
the facts of the case and the need for an expert” as required by People v Jacobsen, 448 Mich. 639,
641; 532 NW2d 838 (1995). Further, the prosecution argued that defendant only wanted an
expert because the prosecution had one and to grant defendant’s request would make all indigent
requests for public funds for an expert automatically approved. The prosecution also asserted
that defendant had not shown that any expert he retained would yield different results than
Detective Stevens or that the detective’s method was deficient.
The trial court denied defendant’s motion for an expert. The court held that based on its
review of the case law, there needed to be “a greater connection between the specifics of the
issue that [were] involved in [defendant’s] case and the need for an expert in order to get to the
meat of the matter.” The court identified that defendant was requesting an expert to show that in
the process of copying the hard drives of others, defendant inadvertently copied child sexually
abusive material to his own computer. The court found the theory plausible, but also that it was
a fairly simple concept. The court held that an expert was not critically important to defendant’s
defense.
II. ABUSE OF DISCRETION
Defendant first claims that the trial court abused its discretion in denying his request for
public funds to retain his own computer forensics expert. We agree.
“This Court reviews for abuse of discretion a trial court’s decision whether to grant an
indigent defendant’s motion for the appointment of an expert witness.” People v Carnicom, 272
Mich. App. 614, 616; 727 NW2d 399 (2006), citing MCL 775.15. An abuse of discretion occurs
when a trial court selects an outcome that is not within the range of reasonable and principled
outcomes. Id. at 617.
MCL 775.15 authorizes a court to provide public funds for indigent defendants to retain
expert witnesses. However, “[a] trial court is not compelled to provide funds for the
appointment of an expert on demand.” Id., citing People v Tanner, 469 Mich. 437, 442; 671
NW2d 728 (2003). Under MCL 775.15, the defendant bears the burden of demonstrating 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. at 617. The first portion of defendant’s
burden is that, “[A] defendant must show a nexus between the facts of the case and the need for
an expert.” Jacobsen, 448 Mich. at 641 (citation and quotation marks omitted). Defendant met
that burden.
Before trial, defendant motioned the court for public funds for the appointment of a
computer forensics expert. Defendant cited his need for an expert as three-fold: 1) to support his
defense that the child sexually abusive material was inadvertently downloaded to his computer
when, in the course of performing a repair, he copied another person’s hard drive to his
computer; 2) to support his defense that files containing child pornography could have been on
his computer as the result of his unprotected and open wireless network; and 3) to explain that
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the Shareaza program he copied was already programmed to share files and once downloaded
onto his computer, resumed file-sharing. Detective Stevens’ testimony was the centerpiece of
both of the preliminary examinations and the trial. Much of the testimony from Detective
Stevens involved the technical process for extracting the thumbnail fingerprints of child
pornography from the defendant’s computer and the process for initially identifying the IP
address to which the files migrated. Additionally, in this case the defense was that the files were
loaded at a time when the defendant did not have control of the computer. Even Detective
Stevens was unable to identify when the files were loaded. Thus, the logical nexus is clear.
The prosecution also opposed the motion on the basis that defendant did not offer any
evidence that the expert would yield any different results than its expert, Detective Stevens, and
that the mere possibility that the expert may be of assistance to defendant was not enough to
warrant appointment of an expert at public expense citing Jacobsen, Carnicom, and Tanner. We
are troubled with the logic that a defendant who admits technical ignorance and who has no
resources from which to acquire technical resources is asked to present evidence of what
evidence an expert would offer in order to garner public funds to hire the expert. However, even
assuming that these cases require some showing of what the expert would do to assist defendant,
we find an abuse of discretion in this case because it is factually distinguishable from Jacobsen,
Tanner and Carnicom.
In Jacobsen, the defendant requested public funds for the appointment of an expert to
testify that, due to an unreasonable delay in conducting a Breathalyzer test, the results of the tests
were unreliable. Id. at 640-641. The Court concluded that the “mere allegation that the delay
was unreasonable” was not sufficient, without more, to warrant the appointment of an expert at
public expense, noting that there was no indication that any circumstance existed that would call
into question the results of the tests administered. Id. at 641-642. In this case, it was clear that
even Detective Stevens could not pinpoint the timing of the downloads. Where this issue was
crucial, additional testimony would have been of great significance.
In Carnicom, the defendant, believing “that his expert witness would be able to offer
testimony that would explain the presence of methamphetamine in his bloodstream at the time of
his arrest” based on his use of Adderall, requested public funds for the appointment of an expert
toxicologist to perform independent testing of defendant’s blood and present testimony at trial,
but “did not make any indication or offer any evidence that expert testimony would likely benefit
him.” 272 Mich. App. at 617-618. “Besides [the] defendant’s assertion, there was nothing before
the trial court to suggest that Adderall could cause a false positive for methamphetamine” and
the defendant did not claim that the expert would have benefited the defense. Id. at 618. This
Court concluded, “[a]bsent an indication that the expert testimony would have likely benefited
the defense, the trial court did not abuse its discretion in denying defendant’s motion for
appointment of an expert toxicologist.” Id. at 619. In this case, counsel’s admission that he
needed help in understanding the technical issues at play supplies clear information that the
defense would have benefited from an adequately educated counsel, even in the examination of
the people’s expert.
In Tanner, the Court upheld the trial court’s denial of the appointment of a serology
expert at public expense where the defendant failed to show that the expert would offer
testimony that would “likely benefit the defense.” 469 Mich. at 443-444. Noting that the
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defendant did not argue that an expert might refute the serology evidence, the Court concluded
that the “mere possibility” that the appointment of an expert “might have provided some
unidentified assistance to the defense . . . falls short of satisfying defendant’s burden of showing
that she could not safely proceed to trial without such expert assistance.” Id. While the wise
husbanding of public resources calls for careful examination of a request for public funds for an
expert, this case is not one where the leap between the request and the likely benefit was spanned
only by speculation.
Importantly, there are indications in the instant case that call into question the results
administered by the prosecution’s expert. It is noteworthy that a majority of Detective Stevens’s
evidence was retrieved from what he called unallocated space or a place where the items
contents had been deleted but the name of the item still existed. While the actual video file was
not retrievable, the jury was to infer that a file name was representative of the contents of the
video. Detective Stevens’ search of defendant’s desktop hard drive produced deleted child
pornographic thumbnail images and remnants of the names of deleted files. The thumbnails
represented both boys and girls and the Detective Stevens found that an unusual preference,
alluding that he would expect to find a user’s preference to be one or the other. The
prosecution’s theory was that defendant downloaded the images and deleted them after viewing
them. However, Detective Stevens could not testify based on his examination when the items
were downloaded. In regards to some items, the entire file path to an exhibit was not displayed,
which could have shown where an item originated. The detective also acknowledged that certain
software was required to view AVI, MPG and MP4 files1 and that he did not know whether
defendant’s computer possessed the software.
It is an abuse of discretion to refuse to appoint an expert when the defendant has
presented information demonstrating that there is a connection between the facts of the case and
the need for a defense expert. In re Klevorn, 185 Mich. App. 672, 679; 463 NW2d 175 (1990).
The trial court’s denial of defendant’s motion for funds to retain an expert was based on its
finding that transferring information from one hard drive to another in the process of repairing a
computer was a “fairly simple concept.” At the least, this was an oversimplification of the real
issues in this case. At the most, the trial court’s decision did not address defendant’s full need
for a defense expert and the tests delineated in MCL 775.15 or Jacobsen, 448 Mich. at 641. The
facts in this case were that some evidence of child pornography was on defendant’s desktop and
laptop computer and that there was further child abusive material available for defendant’s IP
address to download. The contested issues in this case were how the material came to be on
defendant’s computer and defendant’s use of the Shareaza program to obtain and distribute the
same.
In minimizing defendant’s need for an expert, the prosecution argues that an expert
would not have helped defendant when its forensic evidence overwhelmingly demonstrated
defendant’s guilt. The prosecution’s presentation of an experienced expert witness who tends to
inculpate defendant does not demonstrate, by itself, defendant’s guilt. “Prosecution experts, of
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Detective Stevens recognized the extensions as meaning that the files were videos of some sort.
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course, can sometimes make mistakes . . . [and] [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[.]” Hinton v
Alabama, ___ US ___, ___; 134 S. Ct. 1081, 1090; 188 L. Ed. 2d 1 (2014) (internal citations and
quotation marks omitted). It was an abuse of discretion to deny the defendant access to an expert
witness.
III. DENIAL OF DUE PROCESS
Defendant next argues that he was denied his right to present a defense by the court’s
failure to appoint the requested expert. US Const, Am VI; Const 1963, art 1 § 20; People v
Adamski, 198 Mich. App. 133, 138; 497 NW2d 546 (1993). Again, we agree. Whether a
defendant has been denied the right to present a defense is a constitutional issue subject to de
novo review. People v Steele, 283 Mich. App. 472, 480; 769 NW2d 256 (2009).
“Under the Due Process Clause, states may not condition the exercise of basic trial and
appeal rights on a defendant's ability to pay for such rights.” People v Leonard, 224 Mich. App.
569, 580; 569 NW2d 663 (1997). “[F]undamental fairness requires that the state not deny
[defendants] an adequate opportunity to present their claims fairly within the adversary system.”
Id. at 580-581 (quotation marks and citations omitted). To prove that defendant’s requested
expert might have changed the outcome of the trial, defendant must show that the expert’s
testimony would have been favorable to his defense. People v Ackerman, 257 Mich. App. 434,
455; 669 NW2d 818 (2003). “A substantial defense is one that might have made a difference in
the outcome of the trial.” People v Kelly, 186 Mich. App. 524, 526; 465 NW2d 569 (1990).
Defendant’s theory at trial was that certain files containing child sexually abusive
material were inadvertently downloaded. He posited multiple sub-theories as to how that could
have happened. Detective Stevens acknowledged that it was possible that if the Shareaza
program was uninstalled and reinstalled elsewhere, it could continue prior searches and
downloads on a new device. Detective Stevens also admitted that he did not know if the
Shareaza program had an automatic feature to continue searches and downloads once it was
reinstalled. The prosecution argues that a defense expert testifying on the same issues as
Detective Stevens would be repetitious and a waste of judicial resources. That argument, in our
view, is not in line with fundamental fairness. Regardless of the detective’s candor, his
admissions of “not knowing” leave us with the impression that there is room for expert debate in
this case. The defense was left with counsel’s argument as to the detective’s admission of lack
of information and to whether his expert conclusions supplied proof of guilt beyond a reasonable
doubt.
“Had an impartial, scientifically trained expert corroborated the defendant’s account . . .
it would not have existed in a vacuum of his own self-interest.” People v Ackley, 497 Mich. 381,
397; 870 NW2d 858 (2015). The trial court’s decision effectively denied defendant the expert
testimonial support necessary to explain to the jury how defendant’s theory was plausible. The
fact-finder should have before it both the views of the prosecution and the defense, in order to
competently “uncover, recognize, and take due account of ... shortcomings” in each party’s
respective theory. Ake v Oklahoma, 470 U.S. 68, 84; 105 S. Ct. 1087; 84 L. Ed. 2d 53 (1985).
“Without a[n] [expert’s] assistance, the defendant cannot offer a well-informed expert’s
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opposing view, and thereby loses a significant opportunity to raise in the jurors’ minds questions
about the State’s proof of an aggravating factor.” Id. There was room to challenge Detective
Stevens’s testimony and admittedly, more to be learned about the operating capabilities of the
Shareaza program. The denial of an expert prevented defendant from testing the conclusions
reached by the prosecution’s expert. It also hindered effective cross-examination. The record
illustrated that counsel educated himself to the best of his abilities, but admittedly, he was not a
computer forensic expert. “To make a reasoned judgment about whether evidence is worth
presenting, one must know what it says.” Ackley, 497 Mich. at 393 citing Couch v Booker, 632
F3d 241, 246 (CA6 2011). We find that defendant’s presentation of a defense was impaired in
this case and that an expert might have changed the outcome of the trial.
III. STANDARD 4 BRIEF
Defendant raises additional challenges to the sufficiency of the evidence to support his
convictions and the effectiveness of trial counsel in his Standard 4 brief. In light of our
foregoing conclusion that the trial court abused its discretion in refusing to provide defendant
with public funds to retain an expert, we find it unnecessary to address defendant’s in propia
persona sufficiency of the evidence arguments as they relate to his convictions that required
expert testimony, namely the distribution and possession of child sexually abusive material, and
the use of a computer to commit a crime charges.
We address the remainder of defendant’s in propia persona claims, below.
A. SUFFICIENCY OF THE EVIDENCE
“A challenge to the sufficiency of the evidence is reviewed de novo.” People v Malone,
287 Mich. App. 648, 654; 792 NW2d 7 (2010). “When reviewing a claim of insufficient
evidence, this Court reviews the record in a light most favorable to the prosecution to determine
whether a rational trier of fact could find that the essential elements of the crime were proven
beyond a reasonable doubt.” Id. “ ‘Circumstantial evidence and reasonable inferences arising
from that evidence can constitute satisfactory proof of the elements of a crime.’ ” People v
Carines, 460 Mich. 750, 757; 597 NW2d 130 (1999), quoting People v Allen, 201 Mich. App. 98,
100; 505 NW2d 869 (1993). “This Court must not interfere with the jury’s role as the sole judge
of the facts when reviewing the evidence.” Malone, 287 Mich. App. at 654. Accordingly, “[t]he
reviewing court must draw all reasonable inferences and examine credibility issues in support of
the jury verdict.” Id.
1. OBSTRUCTING AND RESISTING A POLICE OFFICER
Defendant was convicted of violating MCL 750.81d(1), which provides that “an
individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who
the individual knows or has reason to know is performing his or her duties is guilty of a felony
punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or
both.” The elements of resisting or obstructing are: “(1) the defendant assaulted, battered,
wounded, resisted, obstructed, opposed, or endangered a police officer, and (2) the defendant
knew or had reason to know that the person that the defendant assaulted, battered, wounded,
resisted, obstructed, opposed, or endangered was a police officer performing his or her duties.”
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People v Corr, 287 Mich. App. 499, 503; 788 NW2d 860 (2010) (citations omitted); MCL
750.81d(1). ‘“Obstruct’ includes the use or threatened use of physical interference or force or a
knowing failure to comply with a lawful command.” MCL 750.81d(7)(a).
Detective Stevens testified that, before entering defendant’s home to execute the search
warrant, he informed defendant that he was a detective with the St. Clair County Sherriff’s
Office and showed defendant his badge, explained that he was conducting an Internet
investigation, and told defendant that he had a search warrant for defendant’s computers and
needed to enter the home to take his computers. From this testimony, a rational jury could
conclude that defendant knew or had reason to know that Detective Stevens was a police officer
performing his duties in execution of a search warrant. Corr, 287 Mich. App. at 503; People v
Nichols, 262 Mich. App. 408, 414; 686 NW2d 502 (2004).
The testimony also sufficiently established that defendant obstructed and resisted
Detective Stevens during the execution of the search warrant. Corr, 287 Mich. App. at 503.
Testimony indicated that Detective Stevens explained to defendant that he needed to preserve the
information on the computers as it existed at the time of the search, discussed in “extreme detail”
that defendant could not turn on the computers, and “made it clear” that defendant was not to
touch the computers. Despite Detective Stevens’s commands not to touch the computers, the
testimony of Stevens and other detectives present during the search indicated that, as defendant
walked back into the living room after securing his dogs in the back bedroom, he went directly to
the computer, bent down, and pushed the button to activate the computer, prompting Stevens to
quickly “yank” the computer cord out from the back of the computer. Detective Titus testified
that, as defendant moved directly toward the computer, Detective Stevens said, “I thought we
had an understanding that you weren’t going to touch that,” but defendant did not stop moving
toward the computer. Further, Detective Wade testified that he also saw defendant approaching
the computer and heard Detective Stevens say, “Sir, I told you not to do that” or “I told you not
to turn this on, sir.” The detectives testified that defendant then began “flailing his arms around
in [an] agitated state” and shouting and/or yelling at the officers to “Get the fuck out of my
house.” Detective Stevens grabbed defendant’s shoulder and arm and pulled him “to make him
stop doing what he was going to do” or “to get him away from the computer,” and, as Stevens
was “trying to get control of defendant,” Stevens and defendant ended up colliding into a chair or
tripping over a coffee table, falling over a chair that had flipped over, and landing on the ground
with Stevens on top of defendant. Detective Stevens testified that defendant did not comply with
his efforts to handcuff him and, after giving commands more than once, he eventually got
defendant’s hands out and placed them in handcuffs that Detective Wade handed to him.
Further, Detectives Wade and Titus testified that defendant was “resisting,” Detective Stevens
was “struggling” as he attempted to handcuff defendant, there was screaming and yelling, and
defendant was not compliant with Stevens’s commands to put his hands behind his back or
Stevens’s efforts to handcuff him.
This testimony, viewed in a light most favorable to the prosecution, was sufficient for the
jury to conclude that defendant engaged in conduct that hindered or obstructed the officers from
executing the search the warrant, as well as resisted Detective Stevens during his attempt to
arrest him. Malone, 287 Mich. App. at 654; Corr, 287 Mich. App. at 503. Although defendant
claims that he assisted and facilitated Detective Stevens in his investigation and did not resist or
obstruct the detectives, the detectives’ testimony established otherwise. It was for the jury to
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resolve issues of witness credibility and to weigh the evidence. Malone, 287 Mich. App. at 654.
We must “draw all inferences and examine credibility issues in support of the jury verdict.” Id.
It is apparent from the verdict that the jury did not believe defendant’s claim. “This Court must
not interfere with the jury’s role as the sole judge of the facts when reviewing the evidence.” Id.
Further, while defendant correctly asserts that MCL 750.81d does not abrogate the
common law right to resist unlawful police conduct, such as an unlawful arrest or other unlawful
invasions of private rights, People v Moreno, 491 Mich. 38, 48, 58; 814 NW2d 624 (2012), the
record does not indicate that the search was unlawful. To the contrary, as discussed in the next
section, testimony suggests that the search was lawful, conducted pursuant to a warrant
supported by probable cause, and that the detectives acted within the scope of the warrant by
entering the home and seizing defendant’s computers pursuant to the warrant. People v Stumpf,
196 Mich. App. 218, 227; 492 NW2d 795 (1992); MCL 780.651(1). An individual does not have
the right to resist or obstruct lawful actions of the police. Moreno, 491 Mich. at 46-47.
2. UNLAWFUL SEARCH
Defendant next claims in propia persona that the officers’ lack of compliance with MCL
780.655(1), by failing to provide him with a copy of the search warrant, resulted in an unlawful
search justifying the exclusion of the computer evidence seized from his home. Defendant failed
to preserve this issue for our review by moving to suppress the evidence seized in the search
based on the validity of the search warrant process. People v Snider, 239 Mich. App. 393, 406;
608 NW2d 502 (2000). Thus, our review is limited to plain error that affected substantial rights.
Carines, 460 Mich. at 763.
The officers’ failure to comply with MCL 780.655(1), which requires that officers
conducting a search pursuant to a warrant give a copy of the search warrant to the person from
whose premises property was taken or to leave a copy of the warrant at the premises searched,
does not render the search illegal or warrant the exclusion of the evidence seized during the
search. People v Sobczak-Obetts, 463 Mich. 687, 708, 710; 625 NW2d 764 (2001). “The
requirements of [MCL 780.655(1)] are ministerial in nature, and do not in any way lead to the
acquisition of evidence; rather, these requirements come into play only after evidence has been
seized pursuant to a valid search warrant.” Id. at 710. Thus, “[b]ecause the exclusionary rule
pertains to evidence that has been illegally seized, it would not be reasonable to conclude that the
Legislature intended to apply the rule to a violation of the postseizure, administrative
requirements of § 5.” Id. Accordingly, the officers alleged failure to comply with MCL
780.655(1) does not, in and of itself, “render the warrant itself invalid, or the search
unreasonable” to warrant the exclusion from evidence of the items seized during the search. Id.
at 708, 710-712.
Moreover, the record suggests that the search was conducted pursuant to a warrant
supported by probable cause. Stumpf, 196 Mich. App. at 227. The testimony regarding the
officers’ investigative efforts suggests that a substantial basis existed for inferring a fair
probability that evidence of a crime existed at the place to be searched—i.e., computer
equipment containing child sexually explicit material existed at defendant’s home. Malone, 287
Mich. App. at 663. On this record, defendant has failed to demonstrate that the search was
unlawful or that the computers were illegally seized. Id.; Stumpf, 196 Mich. App. at 227.
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B. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, defendant argues propia persona that he was denied the effective assistance of
counsel. Defendant failed to preserve this claim by moving for a new trial or evidentiary hearing
before the trial court. Snider, 239 Mich. App. at 423, citing People v Ginther, 390 Mich. 436, 443;
212 NW2d 922 (1973). Thus, our Court’s review is limited to mistakes apparent on the existing
record. Ginther, 390 Mich. at 443; Snider, 239 Mich. App. at 423. “To prove a claim of
ineffective assistance of counsel, a defendant must establish that counsel’s performance fell
below objective standards of reasonableness and that, but for counsel’s error, there is a
reasonable probability that the result of the proceedings would have been different.” People v
Swain, 288 Mich. App. 609, 643; 794 NW2d 92 (2010) (citation omitted). “Effective assistance
of counsel is presumed, and a defendant bears a heavy burden to prove otherwise.” Id.
1. FAILURE TO SECURE AN EXPERT WITNESS AT PUBLIC EXPENSE
Defendant’s primary claim of ineffective assistance is that his trial counsel allowed the
trial to proceed without securing an expert at public expense to investigate the evidence and
testify for the defense. “Criminal cases will arise where the only reasonable and available
defense strategy requires consultation with experts or introduction of expert evidence.”
Harrington v Richter, 562 U.S. 86, 10; 131 S. Ct. 770; 178 L. Ed. 2d 624 (2011). “[F]ailure to
investigate adequately and to attempt to secure appropriate expert assistance in the preparation
and presentation of [a] defense” constitutes ineffective assistance of counsel. Ackley, 497 Mich.
at 383. “[A] defense attorney may be deemed ineffective, in part, for failing to consult an expert
when counsel had neither the education nor the experience necessary to evaluate the evidence
and make for himself a reasonable, informed determination as to whether an expert should be
consulted or called to the stand....” People v Trakhtenberg, 493 Mich. 38, 54 n 9; 826 NW2d 136
(2012) (citations and quotation marks omitted).
The record indicates that defense counsel did recognize the need for an expert and did
seek funds for one on defendant’s behalf, but was denied by the trial court. Defendant was
indigent and without the funds required to retain an expert. Defendant has not argued that there
was an expert willing to testify pro bono that counsel failed to investigate. The record also
evidences that counsel attempted to compensate for lack of an expert. Counsel’s cross-
examination of the prosecution’s expert demonstrated that counsel investigated the type and
operation of the software used. Counsel objected to computer-generated documents. Counsel
sought to advance defendant’s theory without expert support through defendant’s own testimony
and defense witnesses. On the record before us, we cannot conclude that it was counsel’s failure
that precluded that defense from obtaining an expert in its favor.
2. FAILURE TO INVESTIGATE WHETHER SEARCH WARRANT
WAS LAWFULLY EXECUTED
Defendant next claims that defense counsel was ineffective by failing to investigate
whether the search warrant was lawfully executed. A defense counsel has a duty to make
reasonable investigations into his client’s case. Trakhtenberg, 493 Mich. at 52. The failure to
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conduct an adequate investigation constitutes ineffective assistance if it undermines confidence
in the outcome of the trial. People v Russell, 297 Mich. App. 707, 716; 825 NW2d 623 (2012).
Defendant claims that his trial counsel failed to investigate whether the search warrant
was validly executed because the officers never provided him with a copy of the warrant.
However, the mere fact that the officers did not give defendant a copy of the search warrant in
violation of MCL 780.655(1) does not render the warrant invalid or the search illegal. Sobczak-
Obetts, 463 Mich. at 708-712. It is further evident from the trial testimony that Detective Stevens
obtained a search warrant supported by probable cause that evidence of a crime existed in
defendant’s home. Stumpf, 196 Mich. App. at 227. Counsel was not required to file a frivolous or
meritless motion, and thus, was not ineffective in failing to challenge the validity of the search.
People v Gist, 188 Mich. App. 610, 612-613; 470 NW2d 475 (1991) (concluding that defense
counsel was not ineffective for failing to file a suppression motion predicated on a defect in
compliance with the search warrant procedures set forth in MCL 780.655(1) because such
arguments would not serve to invalidate a search).
On this record, defendant has not demonstrated a reasonable probability that the outcome
would have been different had his counsel investigated the validity of the warrant process, and
thus, this claim of ineffective assistance fails. Swain, 288 Mich. App. 609.
C. ADDITIONAL CLAIMS
Defendant also briefly claims that his trial counsel was ineffective by struggling to elicit
key testimony from witnesses and failing to object to several inflammatory statements by the
prosecutor. Defendant, however, fails to specify what testimony defense counsel failed to elicit
or which inflammatory statements the prosecutor made that counsel did not object to or explain
how these alleged instances of defective performance prejudiced him. “It is not enough for an
appellant in his brief to simply announce a position or assert an error and then leave it up to this
Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his
arguments.” People v Kevorkian, 248 Mich. App. 373, 389; 639 NW2d 291 (2001). Additionally,
a defendant claiming ineffective assistance bears the burden of demonstrating deficient
performance and prejudice, and thus, bears the burden of establishing the factual predicate for his
claim. People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001); Ackerman, 257 Mich. App.
at 455-456. Defendant’s generalized allegations of defense counsel’s deficient performance are
not sufficient to sustain a claim of ineffective assistance of counsel.
Defendant also briefly claims that his counsel was ineffective for “barely” addressing the
charge of resisting and obstructing a police officer. Defendant, however, fails to specify what
additional information defense counsel should have elicited through questioning of the witnesses
or brought out during his argument, and thus, has again failed to establish a factual predicate for
this claim of ineffective assistance. Carbin, 463 Mich. at 600. Regardless, it is apparent from a
review of the record that defense counsel vigorously pursued and presented defendant’s theory
that he did not obstruct or resist Detective Stevens. Accordingly, defendant failed to establish
that defense counsel’s performance fell below an objective standard of reasonableness or that he
was prejudiced by defense counsel’s performance. Swain, 288 Mich. App. at 643.
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Reversal of defendant’s convictions is also not warranted on the basis of the cumulative
effect of the alleged instances of ineffective assistance because defendant has not established any
such instances. People v Mayhew, 236 Mich. App. 112, 128; 600 NW2d 370 (1999).
Defendant’s convictions for distributing child abusive material, possessing sexually
abusive material, and using a computer to commit a crime are vacated and as to these charges,
the matter is remanded for a new trial. Defendant’s conviction for resisting and obstructing is
affirmed.
Vacated and remanded for a new trial. We do not retain jurisdiction.
/s/ Amy Ronayne Krause
/s/ Cynthia Diane Stephens
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