People of Michigan v. Elamin Muhammad ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
October 2, 2018
Plaintiff-Appellee, 9:00 a.m.
v No. 338300
Muskegon Circuit Court
ELAMIN MUHAMMAD, also known as EL LC No. 14-065263-FC
MUHAMMAD,
Defendant-Appellant.
Before: MURRAY, C.J., and CAMERON and LETICA, JJ.
MURRAY, C.J.
Defendant, Elamin Muhammad, appeals by right his bench trial convictions of armed
robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony-
firearm), second offense, MCL 750.227b(2). The trial court sentenced defendant as a fourth-
offense habitual offender, MCL 769.12, to five years’ imprisonment for the felony-firearm
conviction, and 25 to 38 years’ imprisonment for the armed robbery conviction. The principal
issue to decide, and which is one of first impression for our appellate courts, is whether the trial
court abused its discretion in admitting expert testimony regarding results from STRmix
probabilistic genotype testing. We conclude that the trial court did not abuse its discretion in
admitting the results from this testing, and because there are no other reversible errors, we
affirm.
I. ADMISSIBILITY OF EVIDENCE
Defendant argues that the trial court erred in admitting expert testimony on
deoxyribonucleic acid (DNA) evidence and in denying his motion to suppress evidence of a shoe
that was left at the crime scene. The DNA expert testified at a pretrial hearing regarding
STRmix probabilistic genotype testing, a more recent analysis of DNA testing and a relatively
new method of evaluating complex mixtures.
We review a trial court’s decision to admit evidence for an abuse of discretion. People v
Bynum, 496 Mich. 610, 623; 852 NW2d 570 (2014). “Preliminary questions of law, such as
whether a rule of evidence or statute precludes the admission of particular evidence, are
reviewed de novo . . . .” Id. Necessarily, a trial court abuses its discretion when it admits
evidence that is inadmissible as a matter of law. Id.
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A. DNA EVIDENCE
1. BACKGROUND FACTS
At trial, the victim of the robbery could not identify the perpetrator because the
perpetrator wore a mask that covered his face. While fleeing the scene, a shoe came off of the
perpetrator’s foot as the victim shot at him with a weapon. Police recovered the shoe and sent it
to the Michigan State Police Forensics Laboratory. At the laboratory, police obtained a sample
from the shoe but could not perform a reliable DNA analysis because the sample contained a
mixture of four different donors. Police then sent the shoe to Mitotyping Technologies, a private
forensic laboratory in Pennsylvania.
Charity Holland was a DNA analyst at Mitotyping and she testified as an expert in DNA
analysis. On November 25, 2014, Holland received a size 9 left shoe from the Norton Shores
Police Department. The insole of the shoe was outside the shoe in a plastic bag. Holland took a
sweat sample from the toe region of the insole of the shoe for testing. She described the sample
as a “low level DNA profile,” and it was mixed with another donor. She agreed that the entire
DNA profile was “degraded,” and that defendant could not be excluded from the sample.
Holland consulted with another expert, Dr. John Buckleton, Ph.D., about probabilistic
genotyping of DNA samples that contain more than one donor. Specifically, after Holland
obtained a sample with more than one donor, Dr. Buckleton took the sample that Holland
developed from the shoe insole and performed statistical interpretation of the profiles using a
software program called STRmix. Before trial, defendant objected to the results of Dr.
Buckleton’s use of probabilistic genotype software, and the trial court held a Daubert1 hearing.
At the hearing, the prosecution primarily relied on the expert testimony of Dr. Buckleton, and the
defense presented the expert testimony of Dr. Karl Reich, Ph.D.
On December 17, 2015, the trial court entered an opinion and order ruling that the results
of the STRmix probabilistic genotyping analysis were admissible under MRE 702. The trial
court found that STRmix had received adequate validity testing, that there were multiple
validation tests, and that the Erie County Forensic Laboratory, the San Diego Forensic
Laboratory, the United States Army, and the FBI had all conducted independent validation
studies on STRmix. The trial court also noted that Dr. Buckleton testified that mock samples
mimicked field samples and that another expert conducted validation studies in compliance with
applicable guidelines. Furthermore, Dr. Buckleton had submitted the validation studies for peer
review, and the New York Commission on Forensic Science considered its DNA Subcommittee
recommendation and approved STRmix for case work. Although the prosecution filed a
posthearing “clarification” of Dr. Buckleton’s testimony in which it alerted the trial court to the
miscalculation of some results in Queensland, Australia, the trial court noted that the miscoding
involved a three-person mixture.
The trial court continued, explaining:
1
Daubert v Merrell Dow Pharm, Inc, 509 U.S. 579, 590; 113 S. Ct. 2786; 125 L. Ed. 2d 469 (1993).
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Following the NYSCFS approval, at least two cases in New York utilized
opinions based on STRmix evaluations. The U.S. Army used the STRmix
program for evidence submitted in court-martials following validation testing by
laboratories that adhered to the SWGDAM standards. Many of these validation
tests were published for peer review. The only evidence submitted of any
criticism of the validation testing’s methodology came from Dr. Reich. He
acknowledged that the only other critic he was aware of was a scientist employed
in his laboratory who had been involved in the development of [TrueAllele] . . .
To the contrary, there is general acceptance of STRmix among very significant
figures in the field of DNA analysis. It is also clear that STRmix validity testing
comported with recognized standards in this discipline and was subjected to peer
review publications along with the program’s algorithm.
Another factor ripe for consideration is whether mathematical experts
outside litigation rely upon the concepts forming the STRmix program. The
concept that STRmix relies upon is probabilistic genotyping and the mathematical
principle supporting probabilistic genotyping is Monte Carlo Markov Chain
(MCMC). This technique is widely used in weather forecasting, computational
biology and linguistics, genetics, engineering, physics, aeronautics, the stock
market, and social sciences.
The trial court concluded by holding as follows:
1. Multiple entities have extensively tested STRmix for validity, 2. The
testing process adhered to generally accepted standards, 3. Experts in the field
analyzed STRmix through peer review publication, 4. Of the hundreds of tests
done, the only errors discovered involved extremely low levels of DNA but no
specific error rate has been developed, 5. The concept of probabilistic genotyping
is accepted in the community of DNA analysts and is in the process of achieving
preferred status over conventional approaches like CPI, 6. The MCMC principles
underlying probabilistic genotyping and the STRmix program are relied upon by
experts in many fields outside the context of litigation, and 7. Courts in New
York have admitted STRmix results, and courts in Pennsylvania, Virginia, New
York and Ohio have admitted results from a program based upon similar
principles. STRmix meets the reliability criteria for admission under MCR 702.
At trial, before Dr. Buckleton testified for the prosecution, the trial court admitted the
testimony from the Daubert hearing as substantive evidence.2 Dr. Buckleton then testified that
2
In addition, following Holland’s testimony, defendant moved to suppress the DNA evidence on
grounds that Detective Kyle Neher of the Norton Shores Police Department contaminated the
evidence when he removed the shoe insole from the shoe in the presence of defendant’s DNA
sample, and took the insole to a photography shop for photographing. The trial court denied the
motion, holding that Detective Neher’s conduct went to the weight of the evidence as opposed to
its admissibility.
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he applied the STRmix statistical interpretation to the DNA sample that Holland developed at
Mitotyping, and that the results of the STRmix analysis showed that “[the] chance of someone
[other than defendant] producing this profile is one in one hundred billion.” Dr. Buckleton
agreed that the DNA sample showed the presence of a minor donor and that it was possible that
the minor donor wore the shoe during the robbery.
2. ANALYSIS
MRE 702 governs the admissibility of expert witness testimony and it provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case. [MRE 702.]
MRE 702 incorporates the standards of reliability that the United States Supreme Court
established in Daubert, v Merrell Dow Pharm, Inc, 509 U.S. 579; 113 S. Ct. 2786; 125 L. Ed. 2d 469
(1993), in interpreting the equivalent federal rule of evidence. See Gilbert v DaimlerChrysler
Corp, 470 Mich. 749, 781-782; 685 NW2d 391 (2004). Under Daubert, a trial court must
“determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509 U.S.
at 592. “This entails a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” Id. at 592-593. Some factors that bear on the trial
court’s inquiry include: (1) whether the scientific knowledge or technique can, and has been,
tested, (2) “whether the theory or technique has been subjected to peer review and publication,”
(3) “the known or potential rate of error,” (4) “the existence and maintenance of standards
controlling the technique’s operation,” (5) whether there is “general acceptance” of the scientific
technique. Id. at 593-594. However, these factors are not exclusive; instead, “[m]any factors
will bear on the inquiry . . . .” Id. at 593.
“Pursuant to Daubert and MRE 702, ‘the trial court’s role as gatekeeper does not require
it to search for absolute truth, to admit only uncontested evidence, or to resolve genuine
scientific disputes.’ ” People v Unger, 278 Mich. App. 210, 217; 749 NW2d 272 (2008), quoting
Chapin v A & L Parts, Inc, 274 Mich. App. 122, 127; 732 NW2d 578 (2007) (opinion by DAVIS,
J.). In other words, “ ‘[t]he inquiry is not into whether an expert’s opinion is necessarily correct
or universally accepted,’ ” it “ ‘is into whether the opinion is rationally derived from a sound
foundation.’ ” Unger, 278 Mich. App. at 217 (citation omitted). “The standard focuses on the
scientific validity of the expert’s methods rather than on the correctness or soundness of the
expert’s particular proposed testimony.” Id. at 217-218.
In applying the Daubert factors to the facts it found controlling, the trial court did not
abuse its discretion in admitting the STRmix results at trial.
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a. TESTING
The first Daubert factor concerns whether STRmix can be or has been tested. See
Daubert, 509 U.S. at 593. The trial court found that it has been sufficiently tested, and facts in the
record support that conclusion. Specifically, Dr. Buckleton testified that the mathematics
underlying the software involve the well-established MCMC method, and that STRmix
underwent various different validation methods. For instance, the development team performed
the first 500 steps of the MCMC chain by hand, performed “true donor” and “false donor” tests,
and tested STRmix against other software. Dr. Buckleton testified that STRmix provided a
different answer from TrueAllele3 in less than 1% of trials.
As the trial court recognized, other laboratories subjected STRmix to validation studies,
and STRmix has been approved for use by four forensic laboratories in the United States.
Although Dr. Reich testified that STRmix could not account for field conditions, Dr. Buckleton
testified that testing of STRmix had accounted for “real world situations.” Specifically, DNA
samples were degraded and then tested with the software. Dr. Buckleton testified that STRmix
was subjected to “massive tests of false donors, hundreds of millions,” and that the software had
not made a “false positive” identification. Dr. Buckleton disagreed with Dr. Reich’s testimony
that STRmix could not account for field conditions, explaining that STRmix was tested against
cases from the field to recreate field conditions in the laboratory. Similarly, an expert from the
Erie County Forensic Laboratory completed a validation process that included testing multiple
known samples. STRmix confirmed the laboratory’s previous findings. Consequently, the trial
court did not clearly err in concluding that STRmix has been properly tested.
b. PEER REVIEW
The second Daubert factor concerns whether the methodology has been subjected to peer
review. See Daubert, 509 U.S. at 593. “That the research is accepted for publication in a
reputable scientific journal after being subjected to the usual rigors of peer review is a significant
indication that it is taken seriously by other scientists, i.e., that it meets at least the minimal
criteria of good science.” Daubert v Merrell Dow Pharm, Inc, 43 F3d 1311, 1318 (CA 9, 1995).
The trial court did not clearly err in its findings that the STRmix methodology has been subjected
to peer review. Dr. Buckleton testified that STRmix has been subjected to peer review; he
identified a list of 16 peer-reviewed articles involving test results of STRmix. The NIST4
presented scientific information on probabilistic genotyping, and SWGDAM5 published
guidelines for probabilistic genotyping in June 2015. In addition, STRmix was presented to the
New York Commission on Forensic Science and to the Commission’s DNA Subcommittee. The
Commission adopted the DNA Subcommittee’s recommendation to accept STRmix for
casework. Record evidence supports the trial court’s findings.
3
TrueAllele is a competing DNA software that is generally accepted in the scientific community.
4
National Institute for Standards Technology.
5
Scientific Working Group on DNA Analysis Methods.
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c. KNOWN/POTENTIAL ERROR RATE
The third Daubert factor concerns the known or potential error rate of the method or
theory. See Daubert, 509 U.S. at 594. Again, the record evidence supports the trial court’s
findings. Specifically, Dr. Buckleton testified that he had never detected a “false positive or
false negative” with STRmix. He stated that a “zero error rate” would be “a big call,” but he had
never discovered an error. According to Dr. Buckleton, the software has been subjected to
numerous validation studies and there were no known errors. Additionally, several forensic
laboratories have conducted validation studies, and the validation studies have been confirmed.
Dr. Buckleton testified that all but one of the states in Australia have been using STRmix and
that there have been 40,000 cases processed in Australia without any discernable error. And,
although after the Daubert hearing the prosecution acknowledged that it became aware that a
previous version of STRmix had a “miscode,” which “led to the need to recalculate Likelihood
Ratios in a very small number of cases,” as the trial court recognized, the code only impacted
samples of more than two donors and the miscode had been replaced and was not used in this
case.
d. STANDARDS CONTROLLING OPERATION
The fourth Daubert factor involves “the existence and maintenance of standards
controlling the technique’s operation.” See Daubert, 509 U.S. at 594. Dr. Buckleton testified that
STRmix is based on algorithms, and he explained the principles underlying STRmix:
So if I split the construction of the software into having two fundamental
principles, the mathematical principles and the molecular biology principles, the
mathematical principles are standard mathematical principles and they date back
to the early 1900s. And they’re called (indistinguishable) and they’re a dominant
method now in mathematical procedures treating these types of problems. If we
come to the molecular biology these are based on empirical studies of the
variability of peak and stutter heights in different multiplexes and at different
template levels and they’re published in peer-reviewed articles.
As the trial court found, and as testified to by Dr. Buckleton, the mathematics underlying
STRmix is the Monte Carlo Markov Chain (MCMC), a well-established scientific principle that
is used in weather forecasting, genetics, engineering, the stock market, and other well-established
fields. Again, the trial court’s findings were not clearly erroneous.
e. GENERAL ACCEPTANCE
The trial court found that STRmix is a generally accepted method. The evidence
supports that conclusion, showing that four forensic laboratories within the United States have
validated and begun using STRmix. In addition, STRmix has been in use within Australia for a
number of years. Dr. Buckleton testified that SWGDAM has recognized probabilistic
genotyping and published guidelines for probabilistic genotyping in June 2015. In addition, the
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New York Commission on Forensic Science6 adopted the recommendation of its DNA
Subcommittee to approve STRmix for casework at the Erie County Forensic Laboratory.
Having considered these factors as a whole, we conclude that the trial court did not abuse
its discretion in admitting the DNA evidence. As discussed above, the trial court’s findings on
the relevant factors were not clearly erroneous because they had ample support in the evidence.
That evidence, primarily based upon Dr. Buckleton’s testimony, showed that STRmix utilizes
well-established mathematical and scientific methods and that the software has undergone
various validation studies. The validation studies included manual calculations, true and false
donor tests, and tests against other software. STRmix has also been validated by four forensic
laboratories in the United States and is being validated by other laboratories. Dr. Buckleton
testified that the validation studies subjected STRmix to field conditions and that he was unaware
of any false positive or false negative identification.
In addition, STRmix was subjected to peer review and approved for casework by the
New York Commission on Forensic Science. More generally, probabilistic genotyping has been
subjected to scrutiny by SWGDAM and the NIST. Dr. Buckleton testified that he was unaware
of any false positive or false negative results and that numerous validation studies did not
produce any known errors. Moreover, STRmix has been validated and was in use at four
different laboratories in the United States.
Based on this record, the trial court did not abuse its discretion in concluding that the
DNA evidence was admissible under MRE 702. The trial court’s findings on the relevant factors
supported its conclusion that the DNA evidence was admissible, and thus the trial court properly
discharged its gatekeeper role. While Dr. Reich offered testimony to counter Dr. Buckleton, the
trial court was free to give more weight to Dr. Buckleton’s testimony. See People v Stevens, 306
Mich. App. 620, 628; 858 NW2d 98 (2014) (noting that “[t]his Court will not interfere with the
trier of fact’s determinations regarding the weight of the evidence or the credibility of
witnesses”).7
6
The Commission on Forensic Science was composed of scientists and attorneys, and the DNA
Subcommittee was composed entirely of scientists.
7
In his Standard 4 brief, defendant argues that the STRmix evidence should have been
suppressed under MRE 403. He also appears to argue that Dr. Buckleton’s testimony was
inadmissible because it was based on a sample that was “subterfuge.” However, we have already
concluded that the trial court did not abuse its discretion in admitting the DNA evidence. To the
extent that defendant argues trial counsel should have raised an objection under MRE 403, that
argument lacks merit because the probative value of the evidence was not substantially
“outweighed by the danger of unfair prejudice.” MRE 403. Accordingly, trial counsel was not
deficient for failing to raise an MRE 403 objection. See People v Ericksen, 288 Mich. App. 192,
201; 793 NW2d 120 (2010) (“Failing to advance a meritless argument or raise a futile objection
does not constitute ineffective assistance of counsel.”).
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B. EVIDENCE OF SHOE INSOLE
Defendant argues that Detective Neher contaminated the shoe insole that Mitotyping
tested when he removed it from the shoe, wrapped it in plastic, and brought it to a photography
shop for photographing. However, to the extent that defendant argues the insole was degraded
and that the trial court should have given the evidence little weight, the handling of the shoe went
to the weight of the evidence not to its admissibility. See People v White, 208 Mich. App. 126,
132; 527 NW2d 34 (1994) (noting that “gaps in the chain [of custody] normally go to the weight
of the evidence rather than its admissibility”) (quotation marks and citation omitted). The trial
court, as the trier of fact, was free to weigh the evidence in the manner that it deemed
appropriate. See Stevens, 306 Mich. App. at 628.
In his Standard 4 brief, defendant argues that the trial court erred because the shoe and
shoe insole were not properly authenticated and that Detective Neher’s conduct violated
protocols for handling the evidence.
MRE 901 governs authentication of evidence in Michigan, and it provides in relevant part
that “[t]he requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.” MRE 901(a). “Factors to be considered in making this
determination include the nature of the article, the circumstances surrounding the preservation
and custody of it, and the possibility of intermeddlers tampering with it.” People v Beamon, 50
Mich. App. 395, 398; 213 NW2d 314 (1973). “If, after considering such factors, the trial judge is
satisfied that in reasonable probability the article has not been changed in important respects, he
may permit its introduction in evidence.” Id. at 398-399.
The trial court did not err in finding that the prosecution introduced sufficient evidence to
authenticate the shoe and the insole in accordance with MRE 901. The record showed that
police stowed the shoe and the insole in a sealed paper bag before sending the shoe to the
Michigan State Police Forensic Laboratory, and that after testing, the shoe and insole were
returned to the police department. Detective Neher removed the insole from the shoe, wrapped
the shoe insole in plastic, and returned the insole to the paper bag in plastic after taking
photographs. Detective Neher testified that defendant’s DNA samples were contained in
separate plastic tubes. Thus, there was no evidence to show that the shoe insole was
contaminated or tampered8 with, and the trial court did not err as a matter of law in holding that
the shoe and the shoe insole were properly authenticated. Accordingly, the trial court did not
8
Defendant appears to argue that Detective Neher was not credible and that, contrary to his
testimony, he tampered with the evidence. However, issues of credibility involve a factual
determination and “[t]he trial court acts as the fact finder in determining questions of fact
preliminary to the admissibility of evidence.” People v Burns, 494 Mich. 104, 117 n 39; 832
NW2d 738 (2013). Moreover, “the government need not prove a perfect chain of custody for
evidence to be admitted at trial; gaps in the chain normally go to the weight of the evidence
rather than its admissibility.” White, 208 Mich. App. at 132 (quotation marks and citation
omitted).
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abuse its discretion in denying defendant’s motion to suppress the evidence, and defendant is not
entitled to relief. MRE 103(a)(1).9
II. SUFFICIENCY OF THE EVIDENCE
We reject defendant’s argument that there was insufficient evidence to support his
convictions of armed robbery and felony-firearm. When reviewing an argument following a
bench trial that insufficient evidence existed to prove the elements of the crimes, “this Court
must view the evidence in a light most favorable to the prosecution and determine whether a
rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt.” People v Hutner, 209 Mich. App. 280, 282; 530 NW2d 174 (1995).
“Circumstantial evidence, and reasonable inferences arising from the evidence, may constitute
satisfactory proof of the elements of the offense.” Id. “[T]his Court should not interfere with the
jury’s role of determining the weight of the evidence or the credibility of witnesses.” People v
Lee, 243 Mich. App. 163, 167; 622 NW2d 71 (2000).
Defendant was convicted of armed robbery and felony-firearm. The elements necessary
to prove armed robbery under MCL 750.529 are:
(1) the defendant, in the course of committing a larceny of any money or other
property that may be the subject of a larceny, used force or violence against any
person who was present or assaulted or put the person in fear, and (2) the
defendant, in the course of committing the larceny, either possessed a dangerous
weapon, possessed an article used or fashioned in a manner to lead any person
present to reasonably believe that the article was a dangerous weapon, or
represented orally or otherwise that he or she was in possession of a dangerous
weapon. [People v Chambers, 277 Mich. App. 1, 7; 742 NW2d 610 (2007).]
“The elements of felony-firearm are that the defendant possessed a firearm during the
commission of, or the attempt to commit, a felony.” People v Avant, 235 Mich. App. 499, 505;
597 NW2d 864 (1999).
There was sufficient evidence for the jury to convict defendant of both crimes. The
victim testified that the perpetrator assaulted him with a gun at a Shell gas station in Muskegon
and demanded money, thus perpetrating a larceny in the course of the assault. Defendant’s guilt
or innocence turned on the identity of the perpetrator, and sufficient evidence existed to show
that defendant was the man who robbed the Shell gas station with a gun. Specifically, the
robbery occurred at approximately 6:00 a.m. on July 14, 2014, and about two hours earlier that
morning, a police officer observed defendant and Shawn Mayberry in Nunica, a short distance
away. According to a witness, defendant was in the same vehicle that was later linked to the
9
Defendant also argues that Detective Neher’s conduct with respect to the shoe violated MCL
28.175 and MCL 750.483. However, neither of these statutes governs the admissibility of
evidence.
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robbery. Additionally, a surveillance camera recorded the vehicle fleeing the crime scene. This
evidence supported that defendant participated in the robbery with Mayberry.
Other evidence showed that defendant was the man who robbed the gas station. Police
recovered a sweatshirt at defendant’s residence that had markings on it that matched the
markings on the sweatshirt that the perpetrator wore during the robbery. Although the
perpetrator’s sweatshirt also had a drawstring, the trial court found that the drawstring could
have been attached to another garment underneath the sweatshirt. There was no evidence to
counter the trial court’s finding with respect to the sweatshirt.
In addition, police recovered Newport cigarettes at defendant’s place of residence, which
was the same brand of cigarettes that the perpetrator took during the robbery. More
significantly, police recovered text messages from defendant’s phone that showed that he and
Mayberry prepared for a robbery by discussing casing locations, stealing a license plate, and
bringing guns on the day before the robbery. In addition, in recorded telephone calls that
defendant placed from jail, defendant discussed destroying or concealing items including an
“iron” and shoes. Police testified that “iron” is a slang term that is used for “gun.” See People v
Kowalski, 489 Mich. 488, 509 n 37; 803 NW2d 200 (2011) (attempts to conceal evidence are
probative of consciousness of guilt). Finally, an expert testified that there was a 1 in 100 billion
chance that someone other than defendant contributed DNA to a shoe that the perpetrator left at
the scene of the robbery. On this record, there was sufficient evidence to prove all of the
elements of armed robbery and felony-firearm.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that, in a variety of ways, he was denied the effective assistance of
counsel. None of his arguments have any merit.
Whether defendant was denied the effective assistance of counsel presents a mixed
question of fact and constitutional law. People v LeBlanc, 465 Mich. 575, 579; 640 NW2d 246
(2002). A trial court’s findings of fact, if any, are reviewed for clear error, while constitutional
issues are reviewed de novo. Id. at 579. In cases like this one where the trial court held an
evidentiary hearing only to address certain assertions of ineffective assistance of counsel, this
Court’s review of the arguments on which there was no evidentiary hearing is limited to mistakes
apparent on the record. See People v Hurst, 205 Mich. App. 634, 641; 517 NW2d 858 (1994).
To establish ineffective assistance of counsel, a defendant must show that (1) counsel
rendered assistance that “fell below an objective standard of reasonableness” under prevailing
professional norms, and (2) that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” People v Toma,
462 Mich. 281, 302-303; 613 NW2d 694 (2000) (quotation marks and citation omitted). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001) (quotation marks and citation
omitted). Furthermore, “[b]ecause the defendant bears the burden of demonstrating both
deficient performance and prejudice, the defendant necessarily bears the burden of establishing
the factual predicate for his claim.” Id.
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After trial, defendant moved for a new trial or a Ginther10 hearing in part on the basis that
trial counsel was ineffective for failing to pursue an alibi defense. After holding a Ginther
hearing, at which trial counsel testified, the trial court held that trial counsel was not ineffective
in failing to present an alibi defense. As explained below, the trial court did not err in that
conclusion. At the Ginther hearing, trial counsel testified that he investigated the alibi defense
and determined that it was not a viable strategy. Trial counsel contacted two of the three
potential alibi witnesses, and could not locate the third. After contacting one of the potential
alibi witnesses, counsel determined that the witness would not be helpful because she was unable
to recall what time defendant allegedly arrived at the Seaway Motel, and she was not sure if
Mayberry dropped off defendant at the motel after the robbery. Moreover, her linking defendant
to the Seaway Motel, located near the scene of the robbery, would have placed defendant near
the robbery. Trial counsel also contacted Mayberry, but Mayberry insisted that he was not in
Muskegon on the morning of the robbery, which counsel considered problematic for the alibi
defense because defendant stated that Mayberry dropped him off at a Muskegon hotel on the
morning of the robbery.
Finally, trial counsel could not locate a third alibi witness, and defendant did not know
where she was located. Trial counsel did not hire an investigator because there were no funds to
do so and because he investigated the alibi defense and determined it was not reliable. Trial
counsel testified that defendant agreed to let him drop the alibi defense. Based on this record,
defendant has failed to show that the trial court erred in concluding that trial counsel was not
deficient in declining to pursue the alibi defense. The facts support the finding that trial counsel
thoroughly investigated the defense and made a strategic decision not to pursue the defense.
Under these facts, trial counsel’s decision was not a product of deficient performance. See
People v Davis, 250 Mich. App. 357, 368; 649 NW2d 94 (2002) (“Decisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy, and this Court will not substitute its judgment for that of counsel regarding matters of
trial strategy.”).
We also reject defendant’s argument that trial counsel was ineffective for failing to
investigate defendant’s cell phone records that purportedly show he was in Detroit at the time of
the robbery, as it is not supported by any facts brought forth at the hearing. Rather, at the
Ginther hearing, trial counsel testified that the prosecution provided defendant’s cell phone
records to the defense at the outset of the trial, and that defendant was informed why the records
showed that his phone “pinged” off of a cell phone tower in Detroit. Trial counsel testified that
he did not pursue the cell phone records as part of a defense because (1) defendant maintained
that he drove to Grand Rapids on the morning of the robbery, and (2) defendant never mentioned
having been in Detroit. On this record, the trial court did not err in finding that trial counsel
made a strategic decision with respect to the cell phone records and that the decision did not
amount to deficient performance. See Davis, 250 Mich. App. at 368.
10
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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Next, in his Standard 4 brief, defendant raises multiple assertions of ineffective assistance
of counsel. Specifically, defendant argues that trial counsel was ineffective (1) for his handling
of the DNA evidence, (2) because there were exculpatory e-mails that were not disclosed until
after the trial, (3) because Dr. Buckleton’s testimony should not have been admitted, and (4)
because counsel’s failure to disclose the e-mails denied defendant the opportunity to impeach
Detective Neher and other witnesses. We reject each of these arguments.
At the outset, we note the important proposition that “[d]ecisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy, and this Court will not substitute its judgment for that of counsel regarding matters of
trial strategy.” Davis, 250 Mich. App. at 368. Defendant has failed to show that trial counsel’s
decisions on how to challenge the DNA evidence fell below an objective standard of
reasonableness. Trial counsel objected to Dr. Buckleton’s testimony, and as a result, the trial
court held a Daubert hearing and trial counsel procured an expert witness, Dr. Reich, to testify
that STRmix was not reliable. Trial counsel effectively examined Dr. Reich and vigorously
challenged Dr. Buckleton’s testimony. This performance did not come close to falling below an
objective standard of reasonableness.
The prosecution’s production (allegedly on the second day of trial) of an e-mail from Joel
Schultze of the Michigan State Police Forensic Crime Laboratory also did not violate any of
defendant’s asserted rights. In the e-mail, Schultze indicated that the prosecution requested that
the shoe be retested, to which Schultze responded, “[I]t is my opinion that the reanalysis
wouldn’t produce a single source DNA profile for comparison.” Schultze also stated that “[i]f
further analysis is still being requested, it would be classified as a reanalysis and approval would
have to go through the proper channels.” Defendant argues that the failure to disclose the e-mail
amounted to a violation of Brady v Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963),
ineffective assistance of counsel, and a violation of the Confrontation Clause. We reject each of
these arguments.
“[T]he components of a ‘true Brady violation,’ are that: (1) the prosecution has
suppressed evidence; (2) that is favorable to the accused; and (3) that is material.” People v
Chenault, 495 Mich. 142, 150; 845 NW2d 731 (2014). The e-mail from Schultze did not amount
to material evidence that was favorable to the defense. At trial, a forensic scientist at the
Michigan State Police Forensic Laboratory testified that although she took a forensic sample
from the shoe and the sample contained four DNA donors, she could not perform a DNA
interpretation. Thus, evidence that the Michigan State Police could not perform a DNA analysis
was already admitted at trial. Defendant fails to show how evidence that the state police lab
declined to perform reanalysis of the shoe was material or favorable to the defense in light of
what was already presented through testimony. Accordingly, there was no Brady violation and
trial counsel was not deficient in failing to discover the e-mail before the second day of trial.
Defendant argues, citing to trial counsel’s cross-examination of Holland in which
Holland was questioned regarding whether she was aware that the insole of the shoe had
previously been tested, that the e-mail could have been used for impeachment purposes. But
defendant fails to articulate how the e-mail or any information concerning the Michigan State
Police’s inability to reanalyze the shoe would have been relevant for impeachment purposes.
Holland’s testimony showed that previous testing would not have impacted her conclusions and,
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moreover, Schultze indicated in his e-mail that reanalysis would likely not have produced a
single-source profile.11 Defendant has not shown that trial counsel’s questioning of Holland was
deficient under an objective standard of reasonableness or that he was denied the right to
confront the witnesses against him. See People v Petri, 279 Mich. App. 407, 413; 760 NW2d 882
(2008) (“The questioning of witnesses is presumed to be a matter of trial strategy.”). For the
same reasons, defendant has not established a violation of the Confrontation Clause, as he had
the opportunity to confront and cross-examine the prosecution’s witnesses at trial. See People v
Pesquera, 244 Mich. App. 305, 309; 625 NW2d 407 (2001). The absence of the e-mail did not
deprive defendant of this opportunity.12
Next, in his Standard 4 brief, defendant argues that his rights to procedural due process
and the effective assistance of counsel were violated when the district court and the circuit court
entered orders even though both courts did not have subject-matter jurisdiction. Defendant
presents a host of incoherent arguments on each of these issues. He appears to contend that the
prosecution failed to “certify” the charges into the record. Defendant also references “bonding”
of the charges and cites federal law. To the extent that defendant is arguing that there was a
violation of a federal procedural statute regarding bonds or otherwise, this argument lacks merit
as federal procedural law does not govern in a state proceeding. In all other respects, defendant
has failed to present cognizable arguments, and he abandoned review of the issues. See People v
Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 627 (1998). Additionally, we reject any
argument that the trial court lacked subject-matter jurisdiction or that trial counsel was
ineffective for failing to object on that basis.
IV. FAILURE TO STRIKE THE INFORMATION
In his Standard 4 brief defendant also argues that the trial court erred in failing to strike
the information and in permitting the prosecution to amend the information.
“A trial court’s decision to grant or deny a motion to amend an information is reviewed
for an abuse of discretion.” People v McGee, 258 Mich. App. 683, 686-687; 672 NW2d 191
(2003). “A trial court abuses its discretion when its decision falls outside the range of reasonable
11
Of course, Holland did not need a single-source profile because Dr. Buckleton was able to
analyze mixed source profiles using STRmix. As we have concluded, the STRmix results were
properly admitted at trial.
12
Defendant argues that there was inconsistency with respect to Detective Neher’s testimony
about the shoe insole. Even assuming that there was inconsistency with respect to whether the
insole had previously been tested, defendant fails to articulate how this was relevant to the
defense when Holland testified that previous testing would not have impacted her conclusions.
Trial counsel was not deficient in cross-examining Detective Neher. “In any case, the
government need not prove a perfect chain of custody for evidence to be admitted at trial; gaps in
the chain normally go to the weight of the evidence rather than its admissibility.” White, 208
Mich. App. at 132 (quotation marks and citation omitted).
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and principled outcomes, or makes an error of law.” People v Swain, 288 Mich. App. 609, 628-
629; 794 NW2d 92 (2010) (citations omitted).
The trial court did not abuse its discretion in denying defendant’s motion to strike the
information or in permitting the prosecution to amend the information. Pursuant to MCR
6.112(H), the trial court had discretion to allow the prosecution to amend the information before,
during, or after trial “unless the proposed amendment would unfairly surprise or prejudice the
defendant.” See McGee, 258 Mich. App. at 686, 689; see also MCL 767.76 (providing that a trial
court has discretion to grant a motion to amend the information). Here, there was nothing in the
amended or second amended information that amounted to unfair surprise or prejudice. The
amended information removed Mayberry as a codefendant. Defendant cannot show that this
amounted to unfair surprise or prejudice in that removal of the codefendant did not alter the
defense that defendant advanced at trial. Similarly, the initial information put defendant on
notice that the prosecution intended to seek a fourth-offense habitual offender enhancement. The
first amended information simply notified defendant that this enhancement would result in a
mandatory minimum 25-year sentence. The second amended information simply added a fourth
previous conviction. This did not amount to unfair surprise in that the trial court could have
inferred that defendant was aware of his own criminal record.
In addition, the substance of the information complied with the requirements of MCR
6.112(D). The information contained defendant’s name, the citations to the charged offenses,
and the penalties for the offenses. The included descriptions of the offenses were sufficient to
“fairly apprise the accused and the court of the offense[s] charged.” MCL 767.45(1)(a). In
addition, the prosecutor signed the initial information and both amended versions of the
information. Furthermore, the initial information contained a witness list; although the second
amended information did not contain a witness list, this amounted to no more than harmless
error; defendant was apprised of the potential witnesses and the prosecution filed a witness list
such that defendant cannot show that failure to file a subsequent witness list amounted to
prejudice. See MCR 6.112(G). Additionally, the trial court had discretion to permit the
prosecution to file an amended information without Mayberry’s name. See MCR 6.112(H).
Defendant also argues that after Mayberry was removed from the information, all
reference to Mayberry should have been barred from the trial and the prosecution should have
been required to produce Mayberry as a res gestae witness. These arguments lack merit.
Mayberry’s absence from the list of accomplices did not mean that the prosecution could not
refer to Mayberry at trial. Reference to Mayberry was relevant and therefore admissible. See
MRE 401. To the extent defendant argues that the prosecution was required to list Mayberry as a
res gestae witness on the amended and second amended information, defendant is correct that the
prosecution must attach a list of all known res gestae witnesses. See MCR 6.112(D). However,
assuming that Mayberry was a res gestae witness, defendant has not shown that the prosecution’s
failure to include him on an attached list amounted to anything more than harmless error. See
MCR 6.112(G). The defense was aware of Mayberry’s potential involvement in the robbery
from the outset of the case, as trial counsel testified at the Ginther hearing that he contacted
Mayberry and that Mayberry insisted that he was not in Muskegon on the morning of the
robbery. Thus, defendant was aware of Mayberry before trial, and Mayberry would not have
offered favorable testimony for the defense. Accordingly, defendant was not prejudiced and he
is not entitled to relief.
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We likewise reject defendant’s argument that Detective Neher offered false testimony at
various points during the proceedings, including the preliminary examination and the bench trial.
However, to the extent that defendant points out inconsistencies in Detective Neher’s testimony,
this involves an issue of witness credibility, and “[t]his Court will not interfere with the trier of
fact’s determinations regarding the weight of the evidence or the credibility of witnesses.”
Stevens, 306 Mich. App. at 628.
Finally, defendant also contends that fabricated evidence and false testimony of Detective
Neher led to the issuance of the arrest warrant. Defendant appears to contend that because the
arrest warrant was invalid, his convictions are void, and he requests a remand for a hearing on
the evidence underlying the warrant. However, “a court’s jurisdiction to try an accused person
cannot be challenged on the ground that physical custody of the accused was obtained in an
unlawful manner.” People v Burrill, 391 Mich. 124, 133; 214 NW2d 823 (1974). Indeed,
“[t]here is nothing in the Constitution that requires a court to permit a guilty person rightfully
convicted to escape justice because he was brought to trial against his will.” Id. (quotation marks
and citation omitted). Defendant has failed to show that he was denied a fair trial; accordingly,
irrespective of whether there were errors associated with the warrant, defendant is not entitled to
relief. 13
Affirmed.
/s/ Christopher M. Murray
/s/ Thomas C. Cameron
/s/ Anica Letica
13
We are unable to decipher defendant’s other arguments related to the information, the warrant,
and Detective Neher’s testimony. Accordingly, such arguments are abandoned. See Kelly, 231
Mich. App. at 640-641 (“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.”).
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