People of Michigan v. Mark Allen Porter ( 2024 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 1, 2024
Plaintiff-Appellee,
v No. 360987
St. Clair Circuit Court
MARK ALLEN PORTER, LC No. 96-000245-FC
Defendant-Appellant.
Before: CAVANAGH, P.J., and RICK and PATEL, JJ.
PER CURIAM.
Defendant appeals by leave granted1 the trial court’s order denying his motion under MCL
770.16 regarding the inspection and testing of physical evidence. Defendant was previously
convicted of two counts of first-degree felony murder, MCL 750.316(1)(b), one count of first-
degree home invasion, MCL 750.110a(2), and one count of unlawfully driving away an
automobile, MCL 750.413. Defendant was sentenced, as a fourth-offense habitual offender, MCL
769.12, to life without parole for the murder convictions, life for the home invasion conviction,
and 10 to 15 years’ imprisonment for the unlawfully driving away an automobile conviction. We
reverse the order denying defendant’s motion and remand for proceedings consistent with this
opinion.
1
This Court originally denied defendant’s application for leave to appeal for lack of merit in the
grounds presented. See People v Porter, unpublished order of the Court of Appeals, entered
September 29, 2022 (Docket No. 360987). However, our Supreme Court issued an order
remanding the matter to this Court for consideration as on leave granted; the order shows that
Justice Zahra and Justice Viviano would have denied the application for leave to appeal. See
People v Porter, 511 Mich 970 (2023).
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I. FACTUAL BACKGROUND
The relevant facts were summarized in this Court’s previous opinion in this case, People v
Porter, unpublished per curiam opinion of the Court of Appeals, issued March 16, 1999 (Docket
No. 202855), p 1 (Porter I), as follows:
This case arises from the September 28, 1995, murders of George and Dorothy
Wendel, a wealthy elderly couple who resided in Marysville. Their home was
broken into and one of their vehicles, some cash, and jewelry, were stolen.
Although no physical evidence linked any suspect to the crime, circumstantial
evidence led to defendant’s arrest and conviction. Defendant first became a suspect
when his sister, Donna Cataldo, contacted police and indicated that she believed
that defendant either committed the murders or was involved in the murders.1
Defendant was arrested three days after the murders on an unrelated warrant for
prison escape, and had in his possession at that time two rings belonging to Dorothy
Wendel. Defendant subsequently made a statement to police regarding the location
of the jewelry stolen from the Wendel home. In addition, three inmates with whom
defendant was incarcerated at various times informed police that defendant had
related to them his involvement in the murders, and at least two witnesses observed
defendant with a large amount of cash in the days after the murders. A warrant for
defendant’s arrest for the present crimes was issued on January 4, 1996.
1
The day before the murders, defendant, who was on escape status from the
Department of Corrections, visited Cataldo’s home for the first time in three years.
He questioned her about elderly people for whom she used to work, inquiring
whether they would pay cash for odd jobs. The Wendels’ names were mentioned
in the conversation.
The opinion further provided that, “Witnesses testified that Dorothy’s Wendel’s bedroom, where
the physical assault of Dorothy clearly occurred, was strewn with a large amount of blood.
However, all of the blood tested matched Dorothy’s Wendel’s blood[,]” and “Michigan State
Police crime lab experts testified that the assailant must have worn gloves and a hat because no
hair, fingerprint, or trace evidence inconsistent with that of the victims was found.” Porter I,
unpub op at 9 nn 7-8.
On February 8, 2022, defendant filed a motion under MCL 770.16 for inspection and
testing of physical evidence, requesting the trial court to order the Marysville Police Department
to provide defendant’s forensic DNA expert, Dr. Greg Hampikian, with the duct tape used to bind
the victims so that Dr. Hampikian could determine whether there was sufficient biological material
to develop a DNA profile. Defendant contended that (1) MCL 770.16 permitted incarcerated
defendants convicted of a felony to petition a trial court to order the inspection and DNA testing
of biological material discovered during the course of the criminal investigation, (2) he satisfied
the aforementioned requirement because the duct tape recovered from the crime scene likely
contained biological material due to its “sticky nature,” which may include “touch DNA,” i.e.,
DNA found in skin cells left behind after a person touched an object, and (3) MCL 770.16(4)(a)
mandated a defendant establish prima facie proof that the evidence subject to testing is material to
the defendant’s identity as the perpetrator of the underlying offense, which defendant satisfied here
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because the offender used the duct tape to bind and gag the victims and, if the DNA testing
produced a profile matching a person other than defendant, it would be exculpatory. In his motion,
defendant further argued that he maintained a due process right under Michigan’s postconviction
procedures to access and inspect potentially exculpatory evidence. Following a hearing on
defendant’s motion under MCL 770.16, the trial court denied the motion on statutory and due
process grounds. This appeal followed.
II. MCL 770.16
Defendant argues that the trial court erred when it denied his motion under MCL 770.16
regarding the inspection and testing of physical evidence because defendant plainly demonstrated
that the duct tape recovered from the crime scene satisfied the statutory scheme. We agree.
“Any questions of law, including questions of statutory interpretation, are reviewed de
novo.” People v Thurmond, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 361302);
slip op at 2.
Under MCL 770.16(1), “a defendant convicted of a felony at trial before January 8, 2001
who is serving a prison sentence for the felony conviction may petition the circuit court to order
DNA testing of biological material identified during the investigation leading to his or her
conviction, and for a new trial based on the results of that testing. . . .” MCL 770.16(4) further
dictates the following:
(4) The court shall order DNA testing if the defendant does all of the following:
(a) Presents prima facie proof that the evidence sought to be tested is
material to the issue of the convicted person’s identity as the perpetrator of, or
accomplice to, the crime that resulted in the conviction.
(b) Establishes all of the following by clear and convincing evidence:
(i) A sample of identified biological material described in subsection
(1) is available for DNA testing.
(ii) The identified biological material described in subsection (1)
was not previously subjected to DNA testing or, if previously tested, will be subject
to DNA testing technology that was not available when the defendant was
convicted.
(iii) The identity of the defendant as the perpetrator of the crime was
at issue during his or her trial.
If the court orders a test and the results are inconclusive or show that the defendant is the source
of the material, the court shall deny the motion for new trial. MCL 770.16(7)(a). If the results
show that the defendant is not the source of the material, the court must determine whether a new
trial is justified in the manner prescribed under MCL 770.16(8).
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Defendant disputes the trial court’s interpretation of several provisions of MCL 770.16.
Defendant first argues that the court incorrectly determined that he failed to establish “biological
material was collected during the investigation of the defendant’s case” under MCL 770.16(3)
because it imposed an additional requirement that an expert make an initial determination that a
particular type of biological material was acquired—which is against the plain language of the
statute. Defendant further notes that the trial court refused to examine the crime scene photographs
to confirm whether the duct tape was saturated in blood, or featured any hair, so as to warrant
further inspection or testing of evidence that clearly contained at least two types of previously
identified biological material.
The overriding goal of statutory interpretation is to ascertain and give effect to the
Legislature’s intent. The touchstone of legislative intent is the statute’s language.
The words of a statute provide the most reliable indicator of the Legislature’s intent
and should be interpreted on the basis of their ordinary meaning and the overall
context in which they are used. An undefined statutory word or phrase must be
accorded its plain and ordinary meaning, unless the undefined word or phrase is a
“term of art” with a unique legal meaning. [People v Ryan, 295 Mich App 388,
400; 819 NW2d 55 (2012) (quotation marks and citation omitted).]
Defendant sought the inspection of the duct tape to determine whether it contained any residual
touch DNA, a type of biological material distinct from the blood and hair originally identified on
the DNA-stained evidence. MCL 770.16(3) provides, in pertinent part:
A petition under this section shall allege that biological material was collected and
identified during the investigation of the defendant’s case. . . . If the court
determines that identified biological material was collected during the
investigation, the court shall order appropriate police agencies, hospitals, or the
medical examiner to search for the material and to report the results of the search
to the court.
The plain language of MCL 770.16(3) does not specify the precise type of biological material
sufficient to qualify for postconviction inspection or testing; rather, the statute mandates that a
form of biological material was collected during the preliminary investigation. According to the
Marysville Police Department report, and the accompanying laboratory report, the sections of duct
tape defendant seeks to have inspected retained blood and hair, which are two distinct types of
biological material. Furthermore, while touch DNA was not previously identified on the duct tape,
the Marysville Police Department attempted to test the duct tape for latent fingerprints, which
failed to yield any notable results. And despite the trial court’s assertion that defendant’s argument
regarding the existence of touch DNA on the duct tape was purely speculative because the evidence
at trial indicated gloves were worn throughout the execution of the underlying offenses, the
affidavit of Dr. Hampikian indicated otherwise. Dr. Hampikian stated that (1) the limited DNA-
testing technology in existence at the time of the original criminal investigation was generally
incapable of recovering any touch DNA despite its possible presence, and (2) because touch DNA
included residual skin cells from a person handling an object, the adhesive nature of the duct tape
rendered it a good medium to retain biological material because the perpetrator would likely have
removed his or her gloves to handle the sticky item.
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Defendant additionally argues that the trial court misinterpreted MCL 770.16(3) by
mandating that he demonstrate, through an expert, that the duct tape contains the skin cells required
for testing—while it simultaneously refused to allow an expert to examine the evidence in the first
place. Previous caselaw addressing MCL 770.16 has traditionally involved the postconviction
inspection and testing of the exact biological material identified during the course of the original
criminal investigation. See People v Poole (On Remand), 311 Mich App 296, 307-309; 874 NW2d
407 (2015) (the defendant requested the inspection and testing of blood samples recovered from
stones and grass near the crime scene during the original investigation); see also People v Barrera,
278 Mich App 730, 732-734; 752 NW2d 485 (2008) (the defendant sought the release and
inspection of biological material identified on a vaginal swab, vaginal smear, quilt, shorts, and
panties collected during the initial criminal investigation). However, it would be counterintuitive
to enact a statute for the purpose of allowing incarcerated defendants to seek postconviction testing
of potentially exculpatory evidence while simultaneously barring defendants from access and
inspection of said evidence for previously unidentifiable biological material. As defendant argues,
testing was not the primary matter before the trial court; rather, defendant was solely requesting
the inspection of the duct tape as a precursor to possible DNA testing and, if the inspection revealed
there were no skin cells embedded in the duct tape, then the matter was concluded.
Defendant also argues that the trial court further misconstrued MCL 770.16(4)(a)—which
requires a court to order DNA testing if the defendant “presents prima facie proof that the evidence
sought to be tested is material to the issue of the convicted person’s identity as the perpetrator of
the crime,” when it concluded that the possibility the blood on the duct tape may have belonged to
the victims as opposed to the perpetrator indicated defendant failed to satisfy the aforementioned
statutory provision. In Poole, the defendant requested the inspection of blood samples recovered
from stones and grass located at the crime scene, despite the previous blood typing results revealing
nearly all of the blood was consistent with the victim’s blood type, because a specific blood stain
on the stone matched neither defendant nor the victim. Poole, 311 Mich App at 307-309. This
Court determined, per MCL 770.16(4)(a), that “[b]ecause DNA testing of a blood sample could
possibly connect another person to the crime scene or exclude defendant, the sample would be of
some consequence or have a logical relationship to the issue of identity and would be linked to
both the crime and the criminal[,]” despite the previous blood testing results. Id. at 309. Similarly,
while the blood and hair recovered in the instant case reportedly belonged to the victims, any
recoverable touch DNA on the duct tape used to bind and gag the victims may connect a third
party to the crime scene, which is critical to the identity of the perpetrator because no physical
evidence tied defendant to the crime scene and the police department suspected the offender wore
gloves and a hat. Furthermore, according to the affidavit of Dr. Hampikian, the adhesive nature
of the duct tape used to bind and gag the victims rendered the medium a “good candidate to bind
and retain usable DNA samples. Additionally, given its stickiness, it’s quite plausible that the
perpetrator(s) would have taken off their gloves while handling the tape.”
MCL 770.16(4)(a) requires a defendant to establish that the evidence—not the biological
material itself—subject to inspection or testing is material to the identity of the perpetrator.
However, the trial court’s interpretation of MCL 770.16(4)(a) would erroneously impose the
materiality element onto the biological material identified under MCL 770.16(3), despite the
broader statute clearly distinguishing between the two terms because MCL 770.16(4)(a) uses the
term “evidence” while MCL 770.16(3) uses the term “biological material.” Furthermore, the term
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“biological material” is used over 20 times throughout the statute while the term “evidence” is
only used a few times, which indicates the Legislature intended to differentiate between the two
words. See Walt Disney Co v Eubanks, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket
No. 360291); slip op at 6 (“The use of these distinct words in specific contextual situations
indicates the Legislature’s intent that these words mean different things.”); see also Honigman
Miller Schwartz & Cohn LLP v Detroit, 505 Mich 284, 293; 952 NW2d 358 (2020) (stating that
when the Legislature uses different words, the words are generally intended to connote different
meanings). And a reading of MCL 770.16 that allows for the inspection and testing of material
evidence, as opposed to imputing the materiality element to the biological material itself, would
also be more consistent with Michigan case law governing the matter. See Poole, 311 Mich App
at 308 (noting, “[t]he ‘materiality’ would be established from the evidence showing a violent
physical attack involving a knife and an ensuing struggle that could have easily resulted in the
perpetrator being cut or scratched, thereby spilling some of the perpetrator’s own blood in the
process of the killing”) (emphasis added); see also Barrera, 278 Mich App at 738 (determining,
“[the] defendant must show that all the items containing DNA matter he seeks to be tested are
material to establishing the identity of the perpetrator of the rape. To do so, defendant must link
the DNA-stained evidence to both the crime and the criminal.”) (emphasis added). Because
defendant satisfied MCL 770.16(3) by showing biological materials were found on the duct tape
at the time of the original investigation, he is eligible to inspect the duct tape under MCL 770.16(4),
because it is undisputed that the perpetrator of the underlying offenses used the duct tape to bind
the victims, and any biological material recovered therein is relevant to determining the
perpetrator’s identity.
With regard to MCL 770.16(4)(b), defendant demonstrated the identified biological
material, the blood and hair on the duct tape, existed at the time of the original adjudication,
however, the then-prevalent technology was incapable of analyzing the duct tape for touch DNA
due to its sensitive nature. The affidavit of Dr. Hampikian stated that there were significant
advancements in the realm of DNA testing with respect to the sensitivity and accuracy of the
procedures and forensic technology available since 1995, which did not come into prominence
until 2007.
Ultimately, regarding the substance of defendant’s motion under MCL 770.16, we
conclude that, as required under (1) MCL 770.16(1), defendant was convicted of a felony at trial
before January 8, 2001, and is currently incarcerated for the conviction; (2) MCL 770.16(2),
defendant’s motion was filed in the appropriate sentencing court; (3) MCL 770.16(3), biological
material was collected and identified during the police investigation of defendant’s case; (4) MCL
770.16(4)(a), defendant presented prima facie proof that the evidence sought to be tested was
material to the question of defendant’s identity as the perpetrator of the murders; (5) MCL
770.16(4)(b)(ii), there is clear and convincing evidence that the biological material was not
previously subjected to DNA testing; and (6) MCL 770.16(4)(b)(iii), there is clear and convincing
evidence that defendant’s identity as the perpetrator was at issue during his trial. Therefore, the
trial court should have granted defendant’s motion requesting that his forensic DNA expert, Dr.
Hampikian, be provided with the duct tape for inspection under MCL 770.16, in order to determine
whether biological material, in the form of touch DNA, is currently detectable on the duct tape,
and defendant is capable of satisfying MCL 770.16(4)(b)(i). Accordingly, the trial court’s order
denying the motion is reversed.
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III. DUE PROCESS
Defendant also argues that the trial court erred when it determined that he did not maintain
a due process right to reasonable access to potentially exculpatory evidence under Michigan’s
postconviction procedures. However, because we have concluded that defendant is entitled to
access the duct tape for inspection under MCL 770.16 as discussed above, we decline to address
this constitutional issue. It is well established that “constitutional issues should not be addressed
where the case may be decided on nonconstitutional grounds.” People v Riley, 465 Mich 442, 447;
636 NW2d 514 (2001).
Reversed and remanded to the circuit court for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Michelle M. Rick
/s/ Sima G. Patel
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