People of Michigan v. Thyrone Deshawn Evans ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 27, 2016
Plaintiff-Appellee,
v No. 324460
Wayne Circuit Court
THYRONE DESHAWN EVANS, LC No. 13-009779-FC
Defendant-Appellant.
Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.
SHAPIRO, J. (dissenting).
After briefs were filed in this case, our Court issued its decision in People v Agar, ___
Mich App ___; ___ NW2d ___ (2016) (Docket No. 321243). In Agar, the defendant was
convicted of distributing child sexually abuse material and possessing child sexually abusive
material. Before trial, he moved for public funds so that he could retain his own computer
forensics expert, but he was unable to articulate what he expected the expert to say. Id. at ___;
slip op 2-3. This Court nevertheless concluded that the defendant had met his burden of
establishing a nexus between the facts of the case and the need for an expert, in part because of
defense counsel’s “admission that he needed help in understanding the technical issues at
play[.]” Id. at ___; slip op 2-3. This Court noted that “the defense would have benefited from
adequately educated counsel, even in the examination of the people’s expert.” Id. at ___; slip op
3. Similarly, in this case defense counsel was unable to articulate what he expected a ballistics
expert to say and he expressed a need to consult an expert in order to understand the science. I
would conclude that, under the circumstances, defense counsel established a sufficient nexus
between the facts and the need for the appointment of an expert. This case involves two people
firing guns, defendant from inside a car and an unknown third party from outside and behind the
car. The police located two different caliber bullets but could not determine which bullet struck
the victim. At minimum, consultation with an independent ballistics expert could have better
prepared defense counsel for cross examination of the prosecution’s witness, and it may have
provided exculpatory evidence. Accordingly, I would remand this case to the trial court to allow
defendant to obtain funds for retaining such an expert and, if he chooses, to move for a new trial
based upon the testimony or affidavit from such an expert.
/s/ Douglas B. Shapiro
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