PEOPLE OF MI V GARY MATTHEW CARNICOM
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
October 31, 2006
9:00 a.m.
Plaintiff-Appellee,
v
No. 259713
St. Joseph Circuit Court
LC No. 04-012272-FH
GARY MATTHEW CARNICOM,
Defendant-Appellant.
Official Reported Version
Before: Borrello, P.J., and Jansen and Cooper, JJ.
PER CURIAM.
Defendant was convicted by a jury of possession of methamphetamine, MCL
333.7403(2)(b)(i), and was sentenced to five months in jail. He appeals as of right. We affirm.
This appeal is being decided without oral argument pursuant to MCR 7.214(E).
On February 21, 2004, Officer Nicholas Allen stopped defendant for a suspected seat belt
violation. Upon investigation, it was discovered that defendant was operating the vehicle with a
suspended Indiana driver's license and that an arrest warrant had been issued for his failure to
appear in a court in St. Joseph County. Defendant was placed under arrest.
Before it was impounded, an officer inventoried defendant's vehicle. The officer found
what appeared to be a controlled substance in the vehicle. The substance field-tested positive for
methamphetamine.
Defendant's blood was drawn pursuant to a search warrant and sent to the Michigan State
Police Forensic Science Division laboratory.1
At his interview at the police station, defendant proposed that the prescription
medications he was taking, Avapro and Adderall, caused a false positive test for
methamphetamine in his blood. Defendant insisted he had not used methamphetamine for 10 to
12 years.
1
Defendant was also originally charged with operating a motor vehicle while under the influence
of a controlled substance, MCL 257.625(1). The prosecution dismissed that charge before trial.
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A forensic scientist with the state police laboratory confirmed that the substance found in
defendant's vehicle contained methamphetamine. Defendant's blood sample, which was tested
by the Michigan State Police Toxicology Unit, contained traces of both amphetamine and
methamphetamine.
The jury found defendant guilty of possession of methamphetamine.
Defendant argues on appeal that he was denied due process when the trial court denied
his motion to authorize funds to conduct an independent test of his blood sample. Defendant
claims that he was denied the opportunity to present a defense and asserts that the error requires
a new trial.
This Court reviews for abuse of discretion a trial court's decision whether to grant an
indigent defendant's motion for the appointment of an expert witness. MCL 775.15. The abuse
of discretion standard recognizes "'that there will be circumstances in which there will be no
single correct outcome; rather, there will be more than one reasonable and principled outcome.'"
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006), quoting People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). Under this standard, "[a]n abuse of
discretion occurs when the decision results in an outcome falling outside the principled range of
outcomes." Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).
MCL 775.15 authorizes payment for an expert witness, provided that an indigent
defendant is able to show "that there is a material witness in his favor within the jurisdiction of
the court, without whose testimony he cannot safely proceed to trial . . . ." If the defendant
makes this showing, the judge, "in his discretion," may grant funds for the retention of an expert
witness. Id., A trial court is not compelled to provide funds for the appointment of an expert on
demand. Id.; People v Tanner, 469 Mich 437, 442; 671 NW2d 728 (2003).
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. People v Jacobsen, 448 Mich 639, 641;
532 NW2d 838 (1995). It is not enough for the defendant to show a mere possibility of
assistance from the requested expert. Tanner, supra at 443. 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. Jacobsen, supra at 641.
In the instant case, defendant is indigent and requested an expert witness at a motion
hearing on July 29, 2004. In his motion, defendant told the trial court that he had discussed the
parameters of the case with Speckin Forensic Laboratories in Okemos, Michigan, and that this
laboratory was willing to do independent testing of defendant's blood, as well as present expert
witness testimony at trial. Defendant did not state whether the expert's testimony would be in his
favor.
Defendant believed that his expert witness would be able to offer testimony that would
explain the presence of methamphetamine in his bloodstream at the time of arrest—specifically,
that the presence of methamphetamine was caused by defendant's use of prescription Adderall.
Besides defendant's assertion, there was nothing before the trial court to suggest that Adderall
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could cause a false positive for methamphetamine. Defendant did not make any indication or
offer any evidence that expert testimony would likely benefit him.
In the prosecution's brief in response to defendant's motion for an expert witness, the
prosecution averred that the active ingredients of Adderall contain amphetamines, but not
methamphetamines. At the motion hearing on the matter, the prosecution also pointed out that a
toxicologist at the Michigan State Police Crime Laboratory confirmed that Adderall does not
contain methamphetamines. Moreover, a prosecution witness testified at trial that, according to
the Physicians' Desk Reference, methamphetamine is not found in Adderall. The witness also
suggested that amphetamine and methamphetamine cannot be mistaken for one another because
they have two distinct "spectrums" and were, therefore, two distinct drugs within the blood. The
defense presented no witnesses to dispute this testimony and did not even claim that the expert
would have testified favorably to the defense. Consequently, we find it doubtful that an
appointed expert toxicologist would have benefited the defense. Jacobsen, supra at 641.
Moreover, defendant has not shown that an expert, even if he or she attributed the
methamphetamine in defendant's blood to Adderall, would have anything directly relevant to say
about the possession offense, which was based on the substance found in the plastic bag and the
Wellbutrin pill bottle in defendant's vehicle. Defendant has not demonstrated a nexus between
the facts of this case and the need for an expert. Absent an indication that the expert testimony
would have likely benefited the defense, the trial court did not abuse its discretion in denying
defendant's motion for appointment of an expert toxicologist.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
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