Request for a DNA expert; MCL 775.15; Ake v. Oklahoma; People v. Tanner; People v. Jacobsen; The “reasonable probability” standard; Moore v. Kemp (11th Cir.)

The court held that the trial court did not err by denying defendant’s request for a DNA expert to assist in his defense. He was convicted of first-degree murder, based on DNA evidence, in the cold case of a woman who had been strangled to death. The trial court sentenced him to life imprisonment. In a prior appeal, the court rejected his argument that the trial court abused its discretion by denying his motion to appoint a DNA expert to assist the defense in its preparation for trial. The Supreme Court then overruled Jacobsen and Tanner, “‘to the extent that they h[e]ld or suggest[ed]’ that an indigent defendant’s request for the appointment of an expert at state expense is governed by MCL 775.15.” It then vacated and remanded, instructing the court to apply “the Ake due process analysis and, in particular, consider[] whether defendant made a sufficient showing that there [was] 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.” The court granted the parties’ motion to remand to the trial court to expand the appellate record. On remand, defense counsel indicated that he had retained the expert at his own expense, but not for “‘all of the assistance sought.’” The court then found that although defendant’s motion to appoint the DNA expert was “sufficient to satisfy the Moore ‘reasonable probability’ standard,” he was still not entitled to appellate relief. The motion “informed the trial court of the nature of the prosecution’s case, the identity and background of the desired expert, how his appointment would be useful to the defense, and why counsel believed that it was necessary to ensure a fair trial.” Moreover, “given the highly technical, scientific nature of DNA evidence, that counsel indicated he would be unable to understand that evidence or to meaningfully cross-examine the prosecution’s experts concerning it without expert assistance, and that DNA evidence was the sole foundation of the charges against defendant, it seems that defendant demonstrated that there was ‘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.’” However, he failed to show that the error was outcome determinative. Although “counsel asserted that he would have consulted [the expert] further had he not been personally responsible for paying the resultant fees, he was unable to specify what, exactly, the defense would have gained through further consultation . . . .” Thus, he failed to show that the DNA expert’s “greater involvement in this case would have altered the outcome" at trial. Affirmed.