People of Michigan v. Tony Clark ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 30, 2019
Plaintiff-Appellee,
v No. 336656
Wayne Circuit Court
TONY CLARK, LC No. 16-002944-01-FC
Defendant-Appellant.
ON REMAND
Before: SAWYER, P.J., and MURRAY, C.J., and M. J. KELLY, J.
PER CURIAM.
Defendant was convicted in a jury trial of second-degree murder, MCL 750.317, two
counts of assault with intent to do great bodily harm, MCL 750.84, armed robbery, MCL
750.529, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the
commission of a felony (felony-firearm), second offense, MCL 750.227b. Defendant was
sentenced, as a fourth habitual offender, MCL 769.12, to 70 to 105 years’ imprisonment for the
second-degree murder conviction, 20 to 40 years’ imprisonment for each of the assault with
intent to do great bodily harm convictions and for the armed robbery conviction, one to five
years’ imprisonment for the felon in possession of a firearm conviction, and five years’
imprisonment for the felony-firearm, second offense conviction. Defendant filed an appeal as of
right. On April 12, 2018, this panel issued an unpublished per curiam opinion affirming
defendant’s convictions and sentences. People v Clark, unpublished per curiam opinion of the
Court of Appeals, issued April 12, 2018 (Docket No. 336656) (Clark I). Defendant filed an
application for leave to appeal in our Supreme Court. On December 21, 2018, our Supreme
Court entered an order vacating the portion of this panel’s opinion that addressed the trial court’s
denial of defendant’s request for the appointment of a defense expert in computer forensics and
remanding the case to this Court for reconsideration of that issue in light of the Court’s
subsequent opinion in People v Kennedy, 502 Mich. 206; 917 NW2d 355 (2018), in which our
Supreme Court recently clarified the appropriate standard to apply when determining whether an
indigent criminal defendant is entitled to the appointment of a defense expert at government
expense. People v Clark, 920 NW2d 578 (2018) (Clark II).
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In Clark I, we rejected all of defendant’s appellate arguments. As relevant here,
defendant made arguments concerning the loss of video showing the crimes being committed
and regarding his request for a defense expert in computer forensics in relation to the lost video.
Defendant first contended that he was denied his constitutional right of due process because the
police lost the surveillance video showing the crimes being committed. Id. at 1. In rejecting
defendant’s argument, we reasoned, in relevant part:
Here, defendant has not shown that the lost video evidence was potentially
exculpatory or that the police acted in bad faith. In his appellate brief, defendant
quotes portions of the grand jury testimony of Detective Gary Przybyla, the
officer-in-charge, indicating that the lost video showed defendant committing the
crime. At the hearing on defendant’s motion to dismiss the charges due to the
loss of the video evidence, the prosecutor stated that the video showed someone
committing the crime but that “you cannot make out who those people are
because it’s too dark. The facial features are not clear enough, so it’s not
exculpatory because it – it’s not exculpatory as to this Defendant or anyone else
because you really can’t see or make out who that person is.” In either event,
whether the video showed defendant committing the crime or the person
committing the crime could not be identified from the video because it was too
dark, defendant has not presented any evidence that the video was potentially
exculpatory. Nor is there evidence of bad faith on the part of the police. As
Przybyla indicated, the video was not downloaded correctly by the police, and the
original video was erased by the owner of the VIP club after the police returned
the video equipment to the owner. Defendant has offered no evidence
contradicting this explanation of how the video was lost. At most, the record
reflects negligence on the part of the police in failing to ensure that the video was
downloaded correctly before returning the video equipment to the owner of the
VIP club. Mere negligence does not constitute bad faith. See [Arizona v]
Youngblood, 488 US [51,] 58[; 109 S. Ct. 333; 102 L. Ed. 2d 281 (1988), reh den
488 U.S. 1051; 109 S. Ct. 885; 102 L. Ed. 2d 1007 (1989)] (finding no evidence of
bad faith where the failure of the police to preserve evidence could “at worst be
described as negligent.”). Because defendant has failed to demonstrate that the
lost video was potentially exculpatory or that the police acted in bad faith, he has
not established a due process violation. Id. at 57-58; [People v] Heft, 299 Mich
App [69,] 79[; 829 NW2d 266 (2012), lv den 495 Mich. 875 (2013)]; [People v]
Johnson, 197 Mich App [362,] 365[; 494 NW2d 873 (1992), lv den 442 Mich. 931
(1993)]. [Clark I, unpub op at 2-3.]
We also rejected defendant’s contention that the trial court abused its discretion in
denying defendant’s request for the appointment of a defense expert in computer forensics,
relying on authorities that were governing at the time of our decision. Specifically, we looked to
People v Carnicom, 272 Mich. App. 614, 616; 727 NW2d 399 (2006), for the proposition that
“MCL 775.15 provides a trial court with discretion to authorize payment for an expert witness
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for an indigent defendant.” Clark I, unpub op at 5.1 We also quoted from our Supreme Court’s
then-controlling case law for the proposition that, “ ‘[a]s MCL 775.15 makes clear, a trial court
is not compelled to provide funds for the appointment of an expert on demand.’ ” Clark I, unpub
op at 6, quoting People v Tanner, 469 Mich. 437, 442; 671 NW2d 728 (2003), overruled by
Kennedy, 502 Mich. at 225. We further quoted as follows from Carnicom, 272 Mich. App. at 617,
for the then-governing legal principles:
To obtain appointment of an expert, an indigent defendant must
demonstrate a nexus between the facts of the case and the need for an expert. 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. [Clark I, unpub op at 6,
quoting Carnicom, 272 Mich. App. at 617.]
Our reasoning for upholding the trial court’s denial of defendant’s request for the
appointment of a defense expert in computer forensics was as follows:
In this case, defendant asserts that an expert in computer forensics “could
have potentially recovered the missing video and could have informed the jury
and the judge about how the video was apparently the only video that wasn’t
downloaded.” However, it was undisputed at trial that, while the police
successfully downloaded some footage from the security cameras at the VIP club,
the video footage showing the murder was not downloaded correctly. It is not
clear how testimony from an expert on this matter would have aided the defense.
Defendant’s suggestion that an expert could somehow have recovered the missing
video is pure conjecture. And even if the video could have been recovered, there
1
MCL 775.15 states:
If any person accused of any crime or misdemeanor, and about to be tried
therefor in any court of record in this state, shall make it appear to the satisfaction
of the judge presiding over the court wherein such trial is to be had, by his own
oath, or otherwise, 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, giving the name and place of residence of such witness, and that such
accused person is poor and has not and cannot obtain the means to procure the
attendance of such witness at the place of trial, the judge in his discretion may, at
a time when the prosecuting officer of the county is present, make an order that a
subpoena be issued from such court for such witness in his favor, and that it be
served by the proper officer of the court. And it shall be the duty of such officer
to serve such subpoena, and of the witness or witnesses named therein to attend
the trial, and the officer serving such subpoena shall be paid therefor, and the
witness therein named shall be paid for attending such trial, in the same manner as
if such witness or witnesses had been subpoenaed in behalf of the people.
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is no indication that it would have benefited the defense. Przybyla’s grand jury
testimony quoted by defendant suggests that the video showed defendant
committing the crime, whereas the prosecutor at the motion hearing indicated that
the video was not exculpatory with respect to defendant or anyone else because
the shooter’s identity could not be determined from the video. Defendant has
shown nothing beyond the mere possibility of assistance from the requested
expert in computer forensics. He has not shown that testimony from such an
expert would likely benefit the defense. Thus, he has not shown that the trial
court abused its discretion by denying his request for an expert. [Clark I, unpub
op at 6.]
On remand, our Supreme Court’s order directs us as follows:
On order of the Court, the application for leave to appeal the April 12,
2018 judgment of the Court of Appeals is considered. Pursuant to MCR
7.305(H)(1), in lieu of granting leave to appeal, we VACATE that part of the
Court of Appeals judgment addressing the denial of the defendant’s request for
the appointment of a defense expert in computer forensics, and we REMAND this
case to the Court of Appeals for reconsideration of that issue in light of People v
Kennedy, 502 Mich. 206 (2018). With regard to the defendant’s remaining issues
concerning the video, leave to appeal is DENIED, because we are not persuaded
that the questions presented should now be reviewed by this Court. In all other
respects, leave to appeal is DENIED, because we are not persuaded that the
remaining questions presented should be reviewed by this Court. [Clark II, 920
NW2d at 578.]
We again affirm defendant’s convictions and sentences because the trial court’s denial of
defendant’s request for the appointment of a defense expert in computer forensics was not
erroneous under Kennedy.
Whether defendant was denied due process by the trial court’s refusal to appoint a
defense expert at government expense presents a question of constitutional law that is reviewed
de novo. Kennedy, 502 Mich. at 213. In Kennedy, 502 Mich. at 210, our Supreme Court
determined that MCL 775.15 does not apply in the context of a criminal defendant’s request for
the appointment of an expert. Instead, the Kennedy Court held that the United States Supreme
Court’s decision in Ake v Oklahoma, 470 U.S. 68; 105 S. Ct. 1087; 84 L. Ed. 2d 53 (1985), is the
controlling law. Kennedy, 502 Mich. at 210. Also, “to assist trial courts in determining whether
a defendant has made a sufficient showing to be entitled to expert assistance under Ake, [the
Kennedy Court] adopt[ed] the reasonable probability standard from Moore v Kemp[, 809 F2d 702
(CA 11, 1987), cert den 481 U.S. 1054; 107 S. Ct. 2192; 95 L. Ed. 2d 847 (1987)].” Kennedy, 502
Mich. at 210.
The Kennedy Court explained that, in Ake, the United States Supreme Court had used the
three-factor due process test provided in Mathews v Eldridge, 424 U.S. 319, 335; 96 S. Ct. 893; 47
L. Ed. 2d 18 (1976), when considering whether the indigent criminal defendant in Ake was
entitled to psychiatric assistance in preparing the defense. Kennedy, 502 Mich. at 214-215. This
three-factor due process test is comprised of the following:
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(1) “the private interest that will be affected by the action of the State,” (2) “the
governmental interest that will be affected if the safeguard is to be provided,” and
(3) “the probable value of the additional or substitute procedural safeguards that
are sought, and the risk of an erroneous deprivation of the affected interest if
those safeguards are not provided.” [Kennedy, 502 Mich. at 215, quoting Ake, 470
U.S. at 77.]
With respect to the first two factors, the Ake Court observed that both the state and the individual
have a compelling interest in the accurate disposition of criminal cases, such that the state
interest in denying a criminal defendant the assistance of a psychiatrist is not substantial.
Kennedy, 502 Mich. at 216, citing Ake, 470 U.S. at 79. Therefore, the third factor, which concerns
the probable value of the requested safeguard, will generally determine whether a defendant is
entitled to the appointment of an expert at public expense. See Kennedy, 502 Mich. at 216-220.
The Kennedy Court agreed with “a burgeoning consensus that Ake’s due process analysis is not
limited to psychiatric experts[.]” Id. at 219.
The Kennedy Court acknowledged that, before its opinion in that case, the Michigan
Supreme Court had “not yet acknowledged that Ake is the controlling law in this area. Instead,
we have analyzed the issue of whether a criminal defendant was entitled to the appointment of an
expert witness at public expense under MCL 775.15.” Kennedy, 502 Mich. at 220. The Kennedy
Court concluded that “MCL 775.15, by its express terms, does not provide for the appointment
of expert witnesses.” Kennedy, 502 Mich. at 222. Further, “the statute, which only contemplates
‘testimony,’ falls short of the constitutional standard set forth in Ake, which clearly requires the
assistance of an expert in ‘conducting an appropriate examination’ and ‘in evaluation,
preparation, and presentation of the defense.’ ” Id. at 223 (brackets omitted), quoting Ake, 470
U.S. at 83. The Kennedy Court stated:
We conclude that the Legislature did not intend MCL 775.15 to
encompass requests by an indigent criminal defendant for the appointment of an
expert at government expense, and we overrule Jacobsen[2] and Tanner to the
extent that they hold or suggest to the contrary. Instead, we hold – as we must –
that the Ake due process analysis governs such requests. [Kennedy, 502 Mich. at
225 (citation omitted).]
Because Ake did not explain how an indigent criminal defendant’s showing must be made
when seeking the appointment of an expert at public expense, Kennedy, 502 Mich. at 225-226,
the Kennedy Court adopted the “reasonable probability” standard articulated by the United States
Court of Appeals for the Eleventh Circuit in Moore, 809 F2d at 712. See Kennedy, 502 Mich. at
226-228. In particular, the Moore “reasonable probability” standard consists of the following:
[A] defendant must demonstrate something more than a mere possibility
of assistance from a requested expert; due process does not require the
2
People v Jacobsen, 448 Mich. 639; 532 NW2d 838 (1995), overruled by Kennedy, 502 Mich. at
225.
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government automatically to provide indigent defendants with expert assistance
upon demand. Rather . . . a defendant 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.
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.
At the very least, he must inform the trial court about the nature of the crime and
the evidence linking him to the crime. By the same token, if the defendant desires
the appointment of an expert so that he can present an affirmative defense, such as
insanity, he must demonstrate a substantial basis for the defense, as the defendant
did in Ake. In each instance, the defendant’s showing must also include a specific
description of the expert or experts desired; without this basic information, the
court would be unable to grant the defendant’s motion, because the court would
not know what type of expert was needed. In addition, the defendant should
inform the court why the particular expert is necessary. We recognize that
defense counsel may be unfamiliar with the specific scientific theories implicated
in a case and therefore cannot be expected to provide the court with a detailed
analysis of the assistance an appointed expert might provide. We do believe,
however, that defense counsel is obligated to inform himself about the specific
scientific area in question and to provide the court with as much information as
possible concerning the usefulness of the requested expert to the defense’s case.
[Kennedy, 502 Mich. at 227, quoting Moore, 809 F2d at 712 (alterations in
original).]
Defendant has not made the requisite showing under the Moore “reasonable probability”
standard that was adopted in Kennedy. Before trial, defendant filed a written motion to dismiss
the charges in light of the loss of video evidence, i.e., the failure of the police to properly
download the portion of the surveillance video footage that showed the shooting incident
forming the basis for the charges against defendant. The motion to dismiss did not request the
appointment of a defense expert in computer forensics. At the October 21, 2016 hearing on
defendant’s motion to dismiss, which was held one business day before the start of the trial on
October 24, 2016, defense counsel made an alternative request for an adjournment in order to
obtain a computer forensics expert.
In our view, defendant did not make the requisite showing that would entitle him to the
appointment of an expert in computer forensics. Initially, it should be noted that defendant never
directly asked the trial court for the appointment at public expense of a defense expert in
computer forensics. Instead, at the hearing on defendant’s motion to dismiss, defense counsel
made what she called an “alternative” request for an adjournment so that a computer forensics
expert could be obtained. Defense counsel did not request that the government pay for the
appointment of such an expert. To the extent such a request was implied, it must be emphasized
that any such request was tied by defense counsel to her request for an adjournment of the trial
that was scheduled to begin on the next business day. In denying the defense request, the trial
court stated, “No, absolutely not. I’m going to trial on Monday.” In other words, the trial court
denied the request for an adjournment, which defense counsel had plainly interwoven with the
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request to obtain a computer forensics expert. Defense counsel did not ask for appointed expert
assistance in the absence of an adjournment.
Defendant on appeal has provided no basis for concluding that the trial court erred in
denying the request for an adjournment, which the defense itself had tied to any implied request
for the appointment of an expert. “When an appellant fails to dispute the basis of a lower court’s
ruling, we need not even consider granting the relief being sought by the appellant.” Denhof v
Challa, 311 Mich. App. 499, 521; 876 NW2d 266 (2015), lv den 499 Mich. 882 (2016). Also,
defendant has abandoned the issue by failing to present argument or cite authority regarding the
adjournment issue that the defense tied to any implied request for the appointment of a computer
forensics expert. “An appellant may not merely announce his position and leave it to this Court
to discover and rationalize the basis for his claims, nor may he give only cursory treatment with
little or no citation of supporting authority.” People v Kelly, 231 Mich. App. 627, 640-641; 588
NW2d 480 (1998). “An appellant’s failure to properly address the merits of his assertion of error
constitutes abandonment of the issue.” People v Harris, 261 Mich. App. 44, 50; 680 NW2d 17
(2004).
For this reason, we conclude that Kennedy does not provide a basis for any additional
relief to defendant.
Affirmed.
/s/ David H. Sawyer
/s/ Christopher M. Murray
/s/ Michael J. Kelly
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