PEOPLE OF MI V SCOTT GORDON PAYNEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
July 28, 2009
Kent Circuit Court
LC Nos. 06-011607-FC;
Advance Sheets Version
SCOTT GORDON PAYNE,
Before: Saad, C.J., and Jansen and Hoekstra, JJ.
Defendant appeals by right his jury-trial convictions in four separate cases, all of which
were joined for trial. In Kent Circuit Court Case No. 06-011607-FC, defendant was convicted of
first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(f).1 In Kent Circuit Court Case
No. 06-011875-FC, defendant was convicted of two counts of CSC I, MCL 750.520b(1)(e)
(Count 1), and MCL 750.520b(1)(f) (Count 2).2 In Kent Circuit Court Case No. 06-011944-FC,
defendant was convicted of third-degree criminal sexual conduct (CSC III), MCL
750.520d(1)(a).3 In Kent Circuit Court Case No. 06-012819-FH, defendant was convicted of
CSC III, MCL 750.520d(1)(b).4 Defendant was acquitted in a fifth, separate case. We affirm in
part and reverse in part.
In Kent Circuit Court Case No. 06-011607-FC, defendant was sentenced as a third-offense
habitual offender, MCL 769.11, to life imprisonment.
In Kent Circuit Court Case No. 06-011875-FC, defendant was sentenced as a third-offense
habitual offender, MCL 769.11, to life imprisonment for Count 1 and to 40 to 60 years in prison
for Count 2.
In Kent Circuit Court Case No. 06-011944-FC, defendant was sentenced as a third-offense
habitual offender, MCL 769.11, to 10 to 30 years in prison.
In Kent Circuit Court Case No. 06-012819-FH, defendant was sentenced as a fourth-offense
habitual offender, MCL 769.12, to 20 to 40 years in prison.
Defendant first argues that he was denied his right to a fair trial when he was forced to
appear in court with an unshaven face, wearing leg shackles, and surrounded by armed guards in
the courtroom during the first two days of trial. We review a trial court’s decision to shackle a
defendant for an abuse of discretion under the totality of the circumstances. People v Dixon, 217
Mich App 400, 404-405; 552 NW2d 663 (1996). With respect to a defendant’s physical
appearance during trial, we also review the trial court’s decision for an abuse of discretion. See
People v Harris, 201 Mich App 147, 151; 505 NW2d 889 (1993). We defer to the trial court’s
superior opportunity to observe the defendant and to determine whether the defendant’s
appearance prejudicially marks him or her as a prisoner. Id. at 152.
Included within the right to a fair trial, absent extraordinary circumstances, is the right to
be free of shackles or handcuffs in the courtroom. Dixon, 217 Mich App at 404. While this right
is not absolute, a defendant “may be shackled only on a finding supported by record evidence
that this is necessary to prevent escape, injury to persons in the courtroom or to maintain order.”
People v Dunn, 446 Mich 409, 425; 521 NW2d 255 (1994). But even if a trial court abuses its
discretion and requires a defendant to wear restraints, the defendant must show that he suffered
prejudice as a result of the restraints to be entitled to relief. People v Horn, 279 Mich App 31,
36; 755 NW2d 212 (2008). “[A] defendant is not prejudiced if the jury was unable to see the
shackles on the defendant.” Id. We conclude that the trial court abused its discretion by
requiring defendant to wear leg shackles in the courtroom because the court’s decision in this
regard was not supported by the record evidence. There was quite simply no evidence to suggest
that defendant was a flight risk, that he was likely to attempt to escape, or that shackles were
needed to maintain order in the courtroom. However, defendant has failed to show that he
suffered prejudice. Indeed, the record shows that the defense table in the courtroom was skirted
with paper, which prevented the jury from seeing the shackles. Moreover, defendant entered and
left the courtroom while the jury was not present. We perceive no actual prejudice to defendant
on the facts of this case.
We conclude that the trial court did not abuse its discretion with respect to defendant’s
personal appearance. It is true that a criminal defendant generally has the right to appear before
the court “‘with the appearance, dignity, and self-respect of a free and innocent man . . . .’”
People v Shaw, 381 Mich 467, 474; 164 NW2d 7 (1969) (citation omitted). Defendant contends
that he was required to appear before the jury with eight months of beard growth because jail
personnel had not allowed him to shave. We cannot conclude that defendant’s beard, alone,
constituted an impermissibly distinctive reminder of defendant’s incarcerated status or
prejudicially marked him as a prisoner. See Harris, 201 Mich App at 152. Moreover, defendant
did not object to his appearance in court until the second day of trial, at which time the trial court
took immediate measures to provide him with access to grooming supplies before his next
appearance in court. Under these circumstances, we find no abuse of discretion. Defendant was
not denied his right to a fair trial.
Defendant also refers in his statement of the questions presented to his appearance in
court “surrounded by armed guards.” Defendant has abandoned this issue by failing to provide
any analysis in the text of his brief on appeal. MCR 7.212(C)(7); People v Anderson, 209 Mich
App 527, 538; 531 NW2d 780 (1995). Even more importantly, we note that the record is devoid
of any evidence that defendant was “surrounded” by armed guards at any time during trial. We
perceive no error in this regard.
Defendant next argues that he was denied the constitutional right to effective assistance
of counsel. Although the trial court rejected his motion, defendant preserved his claim of
ineffective assistance of counsel by moving for a new trial or Ginther5 hearing in the court
below. People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19
(2000). Nonetheless, because no Ginther hearing was held, our review is limited to mistakes
apparent on the record. Id.; see also People v Jordan, 275 Mich App 659, 667; 739 NW2d 706
In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), our Supreme Court
explained the test for determining whether a criminal defendant has been denied the effective
assistance of counsel. A defendant must first show that defense counsel’s performance was
deficient and, second, that counsel’s “‘deficient performance prejudiced the defense.’” Id. at 600
(citation omitted); see also Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d
674 (1984). Whether defense counsel’s performance was deficient is measured against an
objective standard of reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694
(2000). “To demonstrate prejudice, the defendant must show the existence of a reasonable
probability that, but for counsel’s error, the result of the proceeding would have been different.”
Carbin, 463 Mich at 600.
Defendant first contends that defense counsel’s failure to meet with him during the time
between the preliminary examination and the first day of trial amounted to ineffective assistance
of counsel. However, the record reveals that defense counsel was prepared for trial, displayed an
adequate knowledge of the evidence, and was fully prepared to cross-examine the prosecution’s
witnesses. We cannot conclude that counsel’s performance in this regard fell below an objective
standard of reasonableness. Toma, 462 Mich at 302. Similarly, defendant asserts that defense
counsel’s failure to secure his attendance at a “single pretrial hearing” amounted to ineffective
assistance of counsel. But the record indicates that defendant waived formal arraignment and
that there were no pretrial hearings that took place between the preliminary examination and the
first day of trial. Thus, we cannot conclude that defense counsel was ineffective in this regard.
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
Defendant next contends that several strategic decisions made by his trial attorney
constituted ineffective assistance of counsel. Specifically, defendant asserts that defense counsel
should have retained independent expert witnesses to review the work of the prosecution’s DNA
experts, that defense counsel improperly cross-examined two of the victims, and that defense
counsel should not have waived his opening statement. An attorney’s decision whether to retain
witnesses, including expert witnesses, is a matter of trial strategy. People v Ackerman, 257 Mich
App 434, 455; 669 NW2d 818 (2003). A defendant must meet a heavy burden to overcome the
presumption that counsel employed effective trial strategy. Id. In general, the failure to call a
witness can constitute ineffective assistance of counsel only when it “deprives the defendant of a
substantial defense.” People v Hoyt, 185 Mich App 531, 537-538; 462 NW2d 793 (1990).
Similarly, the waiver of an opening statement involves “a subjective judgment on the part of trial
counsel which can rarely, if ever, be the basis for a successful claim of ineffective assistance of
counsel.” People v Pawelczak, 125 Mich App 231, 242; 336 NW2d 453 (1983). “We will not
substitute our judgment for that of counsel on matters of trial strategy, nor will we use the benefit
of hindsight when assessing counsel’s competence.” People v Unger, 278 Mich App 210, 242243; 749 NW2d 272 (2008).
In addition, we note that irrespective of whether defense counsel’s decision concerning
whether to retain independent experts was proper trial strategy, defendant has merely speculated
that an independent expert could have provided favorable testimony. In other words, defendant
has failed to show that the retention of an independent expert would have altered the outcome of
the lower court proceedings. Carbin, 463 Mich at 600. Similarly, with respect to defense
counsel’s cross-examination of the two victims, as well as counsel’s decision to forgo an opening
statement, defendant has failed to establish that his attorney performed deficiently under an
objective standard of reasonableness or that counsel’s specific actions affected the outcome of
the lower court proceedings. Id.
Defendant contends that defense counsel was ineffective for failing to object to
defendant’s appearance in court with a “wild beard” and leg shackles. As we have already
stated, defendant cannot show that the shackles prejudiced him because the jury never saw them.
Horn, 279 Mich App at 36. Nor has defendant shown that he was in any way prejudiced by his
appearance at trial, including the presence of facial hair. Trial counsel is not ineffective for
failing to advocate a meritless position. People v Goodin, 257 Mich App 425, 433; 668 NW2d
392 (2003). And even assuming that counsel did err by failing to object in this regard, defendant
cannot demonstrate that, but for counsel’s alleged errors, the outcome of trial would have been
different. People v Mitchell, 454 Mich 145, 167; 560 NW2d 600 (1997).
Defendant next argues that the trial court erred by accepting waivers of arraignment by
mail, thus denying him the right to engage in plea negotiations. Defendant waived formal
arraignment on the informations and pleaded “not guilty” to the charges when he and his
attorney signed waiver forms and provided them to the trial court. The trial court properly
accepted the waivers and did not deny defendant any of his pretrial rights in this respect. See
MCR 6.113(C). Further, we note that defendant’s contention that he had the “right” to engage in
plea negotiations with the prosecution lacks merit. As our Supreme Court has noted, “neither
this Court nor the United States Supreme Court has recognized that the parties have a right to
present a plea.” People v Grove, 455 Mich 439, 469 n 36; 566 NW2d 547 (1997); see also
Santobello v New York, 404 US 257, 261-262; 92 S Ct 495; 30 L Ed 2d 427 (1971). In addition,
defendant rejected a plea bargain on the first day of trial and indicated during his testimony that
he did so because he “was innocent.” We find no error.
Next, defendant argues that the trial court improperly exceeded the sentencing guidelines
by sentencing him to 40 to 60 years in prison for Count 2 in Kent Circuit Court Case No. 06011875-FC. The offense for which defendant was convicted, and which gave rise to this
sentencing issue, occurred in August 1989. Therefore, the former judicial sentencing guidelines
promulgated by the Michigan Supreme Court would normally apply in this case. MCL
769.34(1); People v Reynolds, 240 Mich App 250, 253; 611 NW2d 316 (2000). However,
defendant was sentenced for this conviction as an habitual offender, and the judicial sentencing
guidelines are inapplicable to the sentencing of habitual offenders. People v Coy, 258 Mich App
1, 23; 669 NW2d 831 (2003); People v Hansford (After Remand), 454 Mich 320, 323; 562
NW2d 460 (1997). “Nevertheless, the principle of proportionality applies.” Coy, 258 Mich App
In cases such as this, we review the trial court’s sentencing of an habitual offender for an
abuse of discretion. Hansford, 454 Mich at 324. In the context of sentencing before the
legislative guidelines, “a trial court does not abuse its discretion in giving a sentence within the
statutory limits established by the Legislature when an habitual offender’s underlying felony, in
the context of his previous felonies, evidences that the defendant has an inability to conform his
conduct to the laws of society.” Id. at 326.
Defendant’s criminal history and underlying felonies showed that he could not conform
his conduct to the laws of society, and the sentence imposed by the trial court was within the
statutory limits established by the Legislature. Id. Defendant’s criminal history at the time he
committed the offense at issue showed that he had committed prior violent sexual assaults. With
respect to the felony giving rise to the challenged sentence, itself, defendant attacked the victim
while she was alone in a field at night. He brutally beat her by punching and hitting her in the
face, and he choked her before throwing her to the ground and tying her hands and feet so she
could not escape. Defendant threatened to kill the victim and informed her that she would soon
be dead. In addition, defendant held a knife to the victim’s throat, and forced her to perform
fellatio after penetrating her on two separate occasions with his penis. Defendant then left the
victim alone, naked, and tied up in a field. The Legislature has prescribed a sentence of
“imprisonment for life or for any term of years” for CSC I, MCL 750.520b(2)(a), and has
likewise specified that upon sentencing a defendant as a third-offense habitual offender, “[i]f the
subsequent felony is punishable upon a first conviction by imprisonment for life, the
court . . . may sentence the person to imprisonment for life or for a lesser term,” MCL
769.11(1)(b). In light of the nature of the sentencing offense, and given defendant’s criminal
history at the time, we conclude that the sentence of 40 to 60 years in prison did not violate the
principle of proportionality. See Coy, 258 Mich App at 23. We find no abuse of discretion.
Hansford, 454 Mich at 326.
Defendant also argues that the trial court improperly considered his lack of remorse
during sentencing. Specifically, defendant argues that the trial court improperly based its
sentencing decision on his assertion of innocence. “A sentencing court cannot base a sentence
even in part on a defendant’s refusal to admit guilt.” People v Dobek, 274 Mich App 58, 104;
732 NW2d 546 (2007). We look to three factors to determine if a sentencing court improperly
considered a defendant’s refusal to admit guilt: “(1) the defendant’s maintenance of innocence
after conviction; (2) the judge’s attempt to get the defendant to admit guilt; and (3) the
appearance that had the defendant affirmatively admitted guilt, his sentence would not have been
so severe.” People v Wesley, 428 Mich 708, 713; 411 NW2d 159 (1987). Applying these
factors, it does not appear to us that the trial court improperly attempted to make defendant admit
his guilt or improperly considered defendant’s refusal to admit guilt at sentencing. While it is
true that defendant maintained his innocence at the sentencing hearing, nothing in the record
suggests that the trial court would have been more lenient had defendant admitted guilt.
Resentencing is not warranted on these facts. Dobek, 274 Mich App at 106.
Defendant has raised certain additional claims of error in his supplemental brief, filed in
propria persona. We address these issues seriatim.
Defendant first contends in his supplemental brief that several laboratory reports
containing the results of DNA testing should not have been admitted into evidence under Federal
Rules of Evidence 1002 and 1003. As an initial matter, we note that this was a state prosecution
in state court, and that the Federal Rules of Evidence were accordingly inapplicable. It is true
that MRE 1002 and 1003—like FRE 1002 and 1003—govern the requirement of an original
document and the admissibility of duplicate documents into evidence. However, there is quite
simply no evidence that the laboratory reports admitted in this case were anything other than
accurate and complete copies of the originals. See MRE 1003. Defendant has not sufficiently
developed this argument, and we therefore decline to consider it further. “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.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998).
Defendant also contends that the trial court erred by admitting the laboratory reports over
his objection in Kent Circuit Court Case Nos. 06-011607-FC and 06-011944-FC6 because the
Unlike the laboratory reports admitted in Kent Circuit Court Case Nos. 06-011875-FC and 06012819-FH, which were prepared by analysts who did testify at trial, a nontestifying analyst
prepared the laboratory reports admitted in Kent Circuit Court Case Nos. 06-011607-FC and 06011944-FC.
reports constituted inadmissible hearsay. Defendant asserts that the reports were not admissible
pursuant to MRE 803(6) as business records. He also argues that because foundation witness
Allisa Gindlesperger did not prepare the reports herself, she was unqualified to provide
foundation testimony as a “custodian or other qualified witness.” We conclude that the reports
constituted inadmissible hearsay, and were admitted in error.
At trial there was no dispute that the contents of the laboratory reports amounted to
hearsay evidence. MRE 801 and 802. But the trial court admitted the records under MRE
803(6), which excepts from the hearsay rule
[a] memorandum, report, record, or data compilation, in any form, of acts,
transactions, occurrences, events, conditions, opinions, or diagnoses, made at or
near the time by, or from information transmitted by, a person with knowledge, if
kept in the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum, report, record,
or data compilation, all as shown by the testimony of the custodian or other
qualified witness . . . unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness.
Our Supreme Court has made clear that a laboratory report prepared by a nontestifying
analyst “is, without question, hearsay.” People v McDaniel, 469 Mich 409, 412; 670 NW2d 659
(2003). “As such, pursuant to MRE 802, it is not admissible unless it fits within at least one
category of the allowable exceptions outlined in MRE 803 and 804.” Id. Because the laboratory
reports at issue were adversarial and were intended to establish an element of the CSC charges
against defendant through the hearsay DNA evidence they contained, the reports were not
admissible as business records under MRE 803(6) or as public records under 803(8). McDaniel,
469 Mich at 413-414. Furthermore, the erroneous admission of the hearsay laboratory reports
was not harmless because the reports were the only evidence that established an essential
element of the CSC charges against defendant in Kent Circuit Court Case Nos. 06-011607-FC
and 06-011944-FC. Id. at 413.
Defendant lastly contends that the admission of the hearsay laboratory reports in Kent
Circuit Court Case Nos. 06-011607-FC and 06-011944-FC violated his Sixth Amendment right
to confront the witnesses against him. We agree.
The Confrontation Clause of the Sixth Amendment bars the admission of testimonial
hearsay unless the declarant is unavailable and the defendant has had a prior opportunity for
cross-examination. Crawford v Washington, 541 US 36, 68; 124 S Ct 1354; 158 L Ed 2d 177
(2004); People v Walker, 273 Mich App 56, 60-61; 728 NW2d 902 (2006).
In People v Lonsby, 268 Mich App 375, 392-393; 707 NW2d 610 (2005), now-Chief
Judge Saad concluded that a laboratory report prepared by a nontestifying analyst was
testimonial hearsay within the meaning of Crawford. In Lonsby, the in-court testimony of one
analyst was offered for the purpose of introducing the laboratory report, findings, and
conclusions of a different, nontestifying analyst. Judge Saad concluded that the inculpatory
laboratory report, prepared by the nontestifying analyst, constituted testimonial hearsay within
the meaning of Crawford. Lonsby, 268 Mich App at 392-393. Specifically, Judge Saad wrote
that because there was “no showing that [the nontestifying analyst] was unavailable to testify and
that defendant had a prior opportunity to cross-examine her, the admission of the evidence
violated defendant’s Confrontation Clause rights, as defined by the United States Supreme Court
in Crawford.” Lonsby, 268 Mich App at 393.
We acknowledge that because the other members of the Lonsby panel concurred in the
result only, Lonsby is not binding precedent. See Fogarty v Dep’t of Transportation, 200 Mich
App 572, 574-575; 504 NW2d 710 (1993). However, Judge Saad’s well-reasoned opinion in
Lonsby is fully consistent with the United States Supreme Court’s recent decision in MelendezDiaz v Massachusetts, 557 US ___; 129 S Ct 2527; 174 L Ed 2d 314 (2009). In Melendez-Diaz,
the United States Supreme Court concluded that certain affidavits—which certified the out-ofcourt findings of nontestifying laboratory analysts—constituted testimonial hearsay because they
had been prepared for the purpose of establishing an element of the criminal charges against the
defendant. The Melendez-Diaz Court concluded that the hearsay affidavits were consequently
inadmissible against the defendant “[a]bsent a showing that the analysts were unavailable to
testify at trial and that [the defendant] had a prior opportunity to cross-examine them . . . .” Id. at
___; 129 S Ct at 2532 (emphasis in original). Because Judge Saad’s opinion in Lonsby fully
comports with the recent decision in Melendez-Diaz, we adopt the reasoning of Lonsby as our
Similar to the facts of Lonsby and Melendez-Diaz, in the instant case, DNA testing was
conducted and it resulted in the generation of laboratory reports that were used against defendant
at trial. Just as the nontestifying laboratory analysts in Melendez-Diaz knew that their affidavits
would later be used in criminal proceedings to establish that the defendant in that case had
possessed cocaine, it is clear to us that the nontestifying analyst who generated the reports in the
present case must have known that the purpose was to ultimately establish the perpetrator’s
identity through DNA evidence. Although the witnesses who actually testified concerning the
laboratory reports at issue here had basic knowledge concerning DNA testing and the methods
used to prepare the reports in general, they had not personally conducted the testing, had not
personally examined the evidence collected from the victims, and had not personally reached any
of the scientific conclusions contained in the reports. In short, the laboratory reports admitted in
Kent Circuit Court Case Nos. 06-011607-FC and 06-011944-FC constituted testimonial hearsay,
Lonsby, 268 Mich App at 392-393, and “[a]bsent a showing that the analyst[ was] unavailable to
testify at trial and that [defendant] had a prior opportunity to cross-examine [the analyst],”
defendant “was entitled to ‘“be confronted with”’ the analyst at trial,” Melendez Diaz, 557 US
at ___; 129 S Ct at 2532, quoting Crawford, 541 US at 54. No such showing was ever made.
Accordingly, the trial court plainly erred by admitting the laboratory reports of the nontestifying
analyst in Kent Circuit Court Case Nos. 06-011607-FC and 06-011944-FC.
Of course, although defense counsel did object to the admission of the laboratory reports
on the ground that they were inadmissible under the rules of evidence, counsel did not object to
the admission of the reports on Confrontation Clause grounds. Therefore, defendant’s
Confrontation Clause argument was not preserved, People v Bauder, 269 Mich App 174, 177178; 712 NW2d 506 (2005), and we must therefore determine whether the plain constitutional
error affected defendant’s substantial rights, People v Carines, 460 Mich 750, 763-764; 597
NW2d 130 (1999). In order to avoid forfeiture under the plain-error rule, it must be shown that
the plain error affected the outcome of lower court proceedings. Id. at 763. And even then, we
will generally reverse only if the defendant is actually innocent or the error has seriously affected
the fairness, integrity, or public reputation of the judicial proceedings independent of the
defendant’s innocence. Id. at 763-764.
After reviewing the record, we are compelled to conclude that the improperly admitted
laboratory reports were decisive to the outcome of defendant’s trial. Taken together, the DNA
laboratory reports far and away constituted the single most condemning piece of evidence
introduced against defendant in Kent Circuit Court Case Nos. 06-011607-FC and 06-011944-FC.
Unlike Kent Circuit Court Case No. 06-012819-FH, in which defendant admitted that he had
solicited the victim for sex, defendant never admitted to any contact whatsoever with the victims
in Kent Circuit Court Case Nos. 06-011607-FC and 06-011944-FC. No other physical evidence
linked defendant to the crimes. Indeed, only the DNA evidence contained in the hearsay
laboratory reports tied defendant to the victims in Kent Circuit Court Case Nos. 06-011607-FC
and 06-011944-FC. Albeit in a different context, this Court has recognized the “significant
possibility” that a jury might attribute preemptive or undue weight to improperly admitted DNA
evidence. People v Coy, 243 Mich App 283, 302-303; 620 NW2d 888 (2000). We simply
cannot say that the jury would have convicted defendant in Kent Circuit Court Case Nos. 06011607-FC and 06-011944-FC if the improper hearsay reports had been excluded from
consideration. Defendant has sufficiently demonstrated that the plainly erroneous admission of
the testimonial hearsay reports affected the outcome of the lower court proceedings. Carines,
460 Mich at 763-764.
We also believe that the erroneous admission of the testimonial hearsay evidence affected
the fairness and integrity of defendant’s trial. Id. at 764. There simply was no other independent
and properly admitted evidence of defendant’s guilt sufficient to erase or overcome the
overwhelming taint of the improperly admitted hearsay reports. See Coy, 243 Mich App at 313.
Although the Carines plain-error rule sets a high bar for appellate review in cases of unpreserved
error, we conclude that the plainly erroneous admission of the testimonial DNA reports in Kent
Circuit Court Case Nos. 06-011607-FC and 06-011944-FC affected the fairness and integrity of
the judicial proceedings. Carines, 460 Mich at 764.7
Given the preserved evidentiary error and outcome-determinative plain constitutional
error discussed earlier, we must reverse defendant’s convictions and sentences in Kent Circuit
Court Case Nos. 06-011607-FC and 06-011944-FC. In general, the constitutional principle of
double jeopardy does not bar reprosecution after a defendant’s original conviction has been
reversed on appeal. Green v United States, 355 US 184, 189; 78 S Ct 221; 2 L Ed 2d 199
(1957); United States v Wilson, 534 F2d 76, 78 (CA 6, 1976). The exception to this rule, of
In contrast to Kent Circuit Court Case Nos. 06-011607-FC and 06-011944-FC, the laboratory
analysts who conducted the DNA testing and prepared the laboratory reports in Kent Circuit
Court Case Nos. 06-011875-FC and 06-012819-FH did testify at trial. We perceive no
evidentiary or Confrontation Clause error with respect to the admission of the laboratory reports
in Kent Circuit Court Case Nos. 06-011875-FC and 06-012819-FH.
course, is that double jeopardy bars reprosecution after a conviction has been reversed on the
ground of “evidentiary insufficiency” or “failure of proof at trial.” Burks v United States, 437
US 1, 15-16; 98 S Ct 2141; 57 L Ed 2d 1 (1978). However, we have reversed defendant’s
convictions in Kent Circuit Court Case Nos. 06-011607-FC and 06-011944-FC on the basis of
trial error rather than evidentiary insufficiency. Thus, the prosecution may retry defendant on
these charges if it so chooses.
Defendant’s convictions and sentences in Kent Circuit Court Case Nos. 06-011875-FC
and 06-012819-FH are affirmed. Defendant’s convictions and sentences in Kent Circuit Court
Case Nos. 06-011607-FC and 06-011944-FC are reversed.
Affirmed in part and reversed in part. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Henry William Saad
/s/ Joel P. Hoekstra