PEOPLE OF MI V MICHAEL DARNELL HARRIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 10, 2005
Plaintiff-Appellee,
v
No. 248247
Washtenaw Circuit Court
LC No. 01-002001-FC
MICHAEL DARNELL HARRIS,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 253337
Washtenaw Circuit Court
LC No. 01-002003-FC
MICHAEL DARNELL HARRIS, a/k/a
MALCOLM HAKEEM ABDUL ALI, a/k/a
MICHAEL STIGGLES,
Defendant-Appellant.
Before: Murphy, P.J., and White and Kelly, JJ.
PER CURIAM.
In Docket No. 248247, defendant was charged in December 2001 with three counts of
first-degree murder, (1) felony murder committed in the course of a breaking and entering, MCL
750.316(1)(b), (2) felony murder committed while perpetrating first-degree criminal sexual
conduct (CSC I), and (3) premeditated murder, MCL 750.316(1)(a), arising from the September
1982 death of Margorie Upson.1 After a jury trial, defendant was convicted of one count of firstdegree premeditated murder, and one count of first-degree felony murder “committed while in
1
Pursuant to a circuit court order, the prosecutor filed an amended information on December 20,
2002, that charged defendant with two counts in Upson’s murder: felony murder committed
either during a breaking and entering or the commission of CSC I, and premeditated murder.
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the perpetration or attempted perpetration of both breaking and entering of a dwelling with intent
to commit criminal sexual conduct in the third degree or larceny and criminal sexual conduct in
the third degree.” The circuit court sentenced defendant to one term of life imprisonment
without parole for a single first-degree murder conviction, supported by two alternate theories.
In Docket No. 253337, defendant also was charged in December 2001 with two counts of
first-degree felony murder and one count of first-degree premeditated murder arising from the
late September 1982 or early October 1982 death of Louise Koebnick. After a separate jury trial,
defendant was convicted of one count of first-degree premeditated murder and one count of firstdegree felony murder. The circuit court sentenced defendant to a term of life imprisonment
without parole for one first-degree murder conviction supported by two alternate theories.2
Defendant appeals of right from his convictions in both cases, which were consolidated
by this Court, and we affirm in both cases.
I
The evidence introduced during defendant’s trials showed that within several days in late
September 1982 and October 1, 1982, eighty-five year-old Upson, a resident of Ypsilanti, and
eighty-five year-old Koebnick, who resided in Ann Arbor, were murdered in their homes. Both
women, who had lived alone for many years after the deaths of their husbands, and who had
remained active by engaging in activities like gardening, walking to neighborhood destinations,
and performing some outdoor maintenance activities, were beaten, raped, and strangled.
During defendant’s February 20033 trial for murdering Upson, the prosecutor introduced
evidence concerning the Koebnick’s murder, and during defendant’s November 2003 trial for
killing Koebnick, the prosecutor introduced evidence regarding Upson’s murder. The prosecutor
also introduced during both trials evidence regarding the early January 1982 killing of ninety-one
year-old Florence Bell, who had lived in Ypsilanti. Bell, who also had lived alone for many
years and kept active by walking and gardening, was found dead in the parlor of her house, lying
on the floor with her legs spread apart; someone had forcefully cut Bell’s throat, and Bell also
had suffered blunt force trauma and several broken ribs. The prosecutor linked defendant to all
three murders through the testimony of forensic scientists at the Michigan State Police crime
laboratory, who performed DNA testing on various items from the Upson, Koebnick and Bell
murder scenes, and matched the DNA profile of sperm found on objects from each murder scene
with the DNA profile of defendant.
2
According to a Department of Corrections offender profile of defendant, at the time of his
trials, he was serving two terms of life imprisonment for two convictions of second-degree
murder in Ingham County with which he was charged in 1983, as well as a sixty to ninety year
prison term for a Jackson County assault with which he was charged in late 1982.
3
Although by late 1982 the police suspected defendant as the murderer of Upson, Koebnick and
Bell, they could not closely link him to the crimes through eyewitness testimony or fingerprint
identification. The cases were revisited in the late 1990s, when police and forensic experts
believed that scientific advances would permit successful testing of the many items of physical
evidence that still existed from the murder scenes.
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II
In Docket No. 248247, defendant first contends that the circuit court erred by denying his
pretrial motion in limine that sought suppression of evidence relating to the murders of Koebnick
and Bell, and a pornographic magazine entitled “Over 50” that the police seized during a search
of defendant’s prison cell on January 18, 2001. This Court reviews a circuit court’s decision
whether to admit evidence for an abuse of discretion. People v Starr, 457 Mich 490, 494; 577
NW2d 673 (1998).
A
Defendant asserts that the magazine was irrelevant, that the unfair prejudice from its
admission was not outweighed by its probative value, and that its admission violated MRE
404(b). MRE 404(b)(1)4 prohibits the admission of evidence of a defendant’s other acts or
crimes when introduced solely for the purpose of showing the defendant’s action in conformity
with his criminal character. People v Sabin (After Remand), 463 Mich 43, 56; 614 NW2d 888
(2000). But evidence of a defendant’s other acts or crimes qualifies as admissible under the
following circumstances: (1) the prosecutor offers the evidence for a proper purpose under MRE
404(b)(1), including to prove the defendant’s motive for committing a charged crime, or his
scheme, plan or system in doing an act; (2) the other acts evidence satisfies the definition of
logical relevance within MRE 401; and (3) any unfair prejudice arising from the admission of the
other acts evidence does not substantially outweigh its probative value, MRE 403. Starr, supra
at 496; People v Ackerman, 257 Mich App 434, 439-440; 669 NW2d 818 (2003).
In support of the people’s request to admit the “Over 50” pornographic magazine, the
prosecutor offered noncharacter reasons under MRE 404(b)(1), specifically to prove defendant’s
identity as the killer of Upson, Bell and Koebnick, and to establish defendant’s motive for
attacking them. The evidence that defendant possessed under his bunk pillow the “Over 50”
pornographic magazine, which depicted some women well beyond fifty years of age,5 tends to
4
According to MRE 404(b)(1),
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
5
The transcripts of the Upson murder trial in Docket No. 248247 do not contain the portion of
the trial during which the prosecutor introduced the “Over 50” magazine into evidence. In the
transcripts of the Koebnick murder trial, the magazine was admitted during the testimony of Ann
Arbor police Detective-Lieutenant Michael Zsenyuk, who participated in the search of
(continued…)
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show that defendant had a sexual interest in elderly women. Defendant’s sexual interest in the
elderly has some probative force toward explaining his potential motivation for the invasion of
their residences and the sexual assault. The probative value of evidence regarding defendant’s
motive for committing the sexual assaults was heightened by the fact that defendant challenged
his identity as the assailant at both trials. People v Fisher, 449 Mich 441, 450, 453; 537 NW2d
577 (1995) (observing that in cases in which the proofs are circumstantial and the only witness is
the accused, evidence of motive is highly relevant).6
Despite defendant’s complaint on appeal that the “Over 50” magazine simply smeared his
character, we detect no danger of unfair prejudice in the form of jury bias, sympathy, anger or
shock inherent in the evidence that would substantially outweigh its significant probative value.
MRE 403; Fisher, supra at 452-453; People v Herndon, 246 Mich App 371, 412-413; 633
NW2d 376 (2001). Further, the circuit court read each jury a cautionary instruction against
drawing any bad character inferences on the basis of defendant’s alleged commission of other
improper acts or crimes. We conclude that any unfair prejudice arising from the admission of
the “Over 50” magazine did not substantially outweigh its probative value in tending to establish
defendant’s motive for selecting and attacking his elderly victims, MRE 403, and that the circuit
court did not abuse its discretion by admitting the pornographic magazine at defendant’s trials.
B
Defendant further asserts that it was error to permit the prosecutor’s introduction in each
of the two trials of evidence concerning the two other 1982 murders, one purpose for which the
prosecutor offered the evidence was to establish defendant’s identity as the murderer in each of
the charged crimes by showing his modus operandi in committing the other two murders. We
disagree. When a prosecutor offers similar act evidence to identify a defendant as the perpetrator
of a crime by means of a particular modus operandi, Michigan courts continue to analyze the
admissibility of the similar act evidence pursuant to the test set forth by the Michigan Supreme
Court in People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982); People v Ho, 231 Mich
App 178, 186; 585 NW2d 357 (1998). Four elements must be satisfied to support the
introduction of similar act evidence to prove identity through modus operandi: (1) substantial
(…continued)
defendant’s prison cell on January 18, 2001. Although the Upson murder trial transcripts reflect
that Zsenyuk also testified there and that his testimony “was previously transcribed by another
reporter” in a separate transcript, our review of the record revealed no transcription of Zsenyuk’s
testimony. In his testimony at the Koebnick murder trial regarding the contents of the “Over 50”
magazine, Zsenyuk indicated that he had leafed through the magazine, which contained an article
entitled “Eighty-five and still horny for sex.”
6
To the extent that defendant suggests that the “Over 50” magazine did not depict violence and
showcased mostly women in their fifties, these facts do not render the magazine inadmissible,
but affect the weight of the motive evidence, and, indeed, make its admission less prejudicial.
People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002) (explaining that if evidence is
relevant and admissible, it does not matter that the evidence gives rise to multiple inferences, and
that “[i]t is for the trier of fact, not the appellate court, to determine what inferences may be
fairly drawn from the evidence and to determine the weight to be accorded those inferences”).
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evidence must exist showing that the defendant in fact committed the proffered similar act, (2)
some special circumstance or quality of the proffered similar act must tend “to prove the
defendant’s identity, or . . . scheme, plan or system in doing the act . . . [or] opportunity,
preparation, [or] knowledge,” (3) the similar act evidence tends to prove defendant’s guilt of the
charged offense, and (4) admission of the similar act evidence satisfies the balancing inquiry
within MRE 403. Golochowicz, supra at 309; Ho, supra at 186.
The testimony by the several forensic scientists that defendant’s DNA profile matched
the male genetic profile obtained from items of evidence recovered from each of the Upson,
Koebnick and Bell murder scenes, with the likelihood of a random match amounting to one in
294.7 trillion Caucasians, one in 3.3 trillion African-Americans,7 and one in 289.5 trillion
Hispanic-Americans, constitutes substantial evidence that defendant in fact committed the two
other similar murders that the prosecutor offered into evidence during his trials for the Upson
and Koebnick murders. Golochowicz, supra at 309; Ho, supra at 186.
Further, facts concerning the 1982 murders of Bell, Upson and Koebnick combine to
demonstrate special qualities or circumstances that tend to prove defendant’s scheme, plan or
system in committing the murders. Golochowicz, supra at 309; Ho, supra at 186. The victims
all were in their mid eighties or nineties in age, lived alone, and remained active at the times of
their deaths, including by tending to various outdoor tasks like gardening and by walking to
different places in their neighborhoods. Upson lived on the same Ypsilanti block where a
Greyhound bus station was located, Bell lived within five or six blocks of Upson, and Koebnick
lived in neighboring Ann Arbor.8 Upson’s assailant and Bell’s assailant broke into their homes,
and although the trial testimony did not specifically describe any visible remnants of a breaking
and entering into Koebnick’s house, her family testified that she never would have let a stranger
inside. The assailant of Upson, Koebnick and Bell (1) struggled with and injured each of the
victims by applying blunt force, (2) forcefully penetrated and caused bruising and other injuries
in Upson’s and Koebnick’s vaginal areas, and although he apparently did not penetrate Bell
because she was wearing a pessary9 inside her vagina, he left his semen at each of the three
crime scenes, (3) strangled Upson and Koebnick with nylon stockings, and inflicted a deep slit in
Bell’s throat, before covering the victims to varying degrees and leaving their bodies partially
7
Defendant is African-American.
8
Before the murders defendant had lived in both Ann Arbor and Ypsilanti, and had possibly
traveled to the Greyhound bus station in Ypsilanti for the purpose of visiting his daughter, who
lived in Belleville with her mother.
9
Forensic pathologist Michael Caplan testified that during Bell’s autopsy, it was observed that
she had uterine prolapse, or relaxation of pelvic floor muscles that “causes the uterus to move . . .
into the area of the vagina so that the cervix and the uterus keep[] moving forward.” In treatment
of this condition, she wore in her vagina a pessary, which Caplan described as a plastic or rubber
object that “distends the vagina . . . , elevates the cervix . . . and prevents the uterus from
prolapsing into the vagina.” Caplan believed that the pessary could have hampered vaginal
penetration by another object, but explained that semen still could exist on swabs of Bell’s
vagina if her assailant had ejaculated close to her vaginal opening, or deposited semen on her
inner thighs, which gravity then pulled toward her vaginal opening.
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unclothed or with their clothing in disarray, and lying on their backs with their legs spread apart.
At some point, the assailant in each case emptied the victims’ wallets or purses on their beds, and
left most of the areas of the victims’ residences undisturbed.
The evidence of the similarities between defendant’s commission of the Koebnick and
Bell murders and the murder of Upson was strongly probative of defendant’s identity as Upson’s
murderer, the issue centrally disputed by defendant at trial. Golochowicz, supra at 309; Ho,
supra at 186. Pursuant to the same logic, the significant similarities between defendant’s
murders of Upson and Bell and his murder of Koebnick strongly tended to prove his identity as
Koebnick’s killer, the centrally contested issue during the second trial. Given the high probative
value of the evidence of the other murders toward proving defendant’s identity as the murderer,
the centrally contested question at each of his trials, and defendant’s failure to identify any
specific and significant unfair prejudice inherent in the admission of the similar act evidence, we
conclude that the circuit court did not abuse its discretion in admitting the similar acts evidence
under MRE 403. Ho, supra at 187.
III
We also reject defendant’s next argument in both Docket No. 248247 and Docket No.
253337 that the circuit court should have suppressed the “Over 50” magazine because the police
violated MCL 780.652 when they seized the magazine and other documents from his prison cell.
Defendant essentially argues that the magazine and various other papers were wrongfully seized
because they were not evidence of any crime.
Defendant relies on MCL 780.652, which authorizes the issuance of a search warrant for,
among other things, “[e]vidence of crime or criminal conduct on the part of any person,” and
“[c]ontraband.” But even assuming as defendant maintains that none of the seized documents
qualifies as evidence of crime as required by MCL 780.652(d),10 and that the police therefore
10
According to the circuit court’s summary of the affidavit Zsenyuk provided in support of the
warrant to search defendant’s cell on January 18, 2001, the “Over 50” magazine and the police
and forensic reports and court documents pertaining to defendant’s past sexual assaults against
elderly women all qualify as evidence of crime pursuant to MCL 780.652(d). The circuit court
summarized the following relevant allegations that Zsenyuk set forth in support of the search
warrant:
The warrant was supported by an affidavit signed by Lt. Zsenyuk
indicating that preliminary DNA testing of a sample of defendant’s blood drawn
during his prosecution for homicide in Ingham County and Criminal sexual
conduct in Jackson County matched biological evidence collected from the crime
scenes of two of the murders with which defendant is charged.
The affidavit also stated that Lt. Zsenyuk had consulted FBI Supervisory
Special Agent James J. McNamara, a Criminal Investigations Analyst for the
National Center for the Analysis of Violent Crime, regarding the behavioral
characteristics and investigation of serial sexual offenders. Lt. Zsenyuk obtained
the following information: to be classified as a serial sexual offender, an
(continued…)
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abused their authority in seizing these items during the search of his prison cell, this does not
provide a basis for suppression of the “Over 50” magazine, the only seized item that the
prosecutor introduced at defendant’s trials. Although defendant suggests that exclusion must
occur because the prosecution “lost jurisdiction” over the property by violating MCL 780.652,
nowhere within the plain language of MCL 780.652 does the statute suggest that the Legislature
contemplated the exclusion of items seized in violation of the section. See People v Stevens
(After Remand), 460 Mich 626, 643-644; 597 NW2d 53 (1999) (holding the exclusionary rule
inapplicable to an asserted violation of MCL 780.656 because nothing within the language of the
statute alluded to the exclusionary rule as a valid remedy for a statutory violation). Concerning
MCL 780.657, which defendant also invokes in his brief, the Michigan Supreme Court has
observed that instead of creating an exclusionary rule provision within the statutory search
warrant sections, the Legislature included section 7, which contemplates a fine of up to $1,000 or
imprisonment up to one year, as the only statutory penalty “for someone who exceeds or
exercises authority unnecessarily when executing a search warrant.” Stevens, supra at 644.
IV
In his briefs on appeal in both Docket No. 248247 and Docket No. 253337, defendant
additionally raises several allegations of error related to his preliminary examination on
separately filed charges that he killed Upson, Koebnick and Bell, which charges the district court
consolidated for purposes of the examination. The manner in which a preliminary examination
is conducted generally falls within the sound discretion of the district judge or magistrate that
conducts it. People v Gaines, 53 Mich App 443, 447; 220 NW2d 76 (1974); People v East
(…continued)
individual must have been involved in at least three sexual offenses; serial sexual
offenders share common behaviors, including keeping material written about his
crime(s), items taken from the victim and any planning materials such as maps or
schedules, all of which are used to enhance the offender’s sexual fantasy; and
materials a serial sexual offender uses to enhance his sexual fantasy must be in an
area readily accessible to him.
Lt. Zsenyuk also indicated in the affidavit that defendant had been
identified as the offender in five prior sexual assaults and therefore fit the
classification of serial sexual offender; and that because he resided in a prison
cell, any materials he used for sexual fantasy would most likely be discovered in
his cell.
We cannot conclude that the circuit court clearly erred by finding that the “Over 50”
pornography magazine and the many other papers, which according to the court consisted of
“transcripts reports and legal documents . . . related to earlier prosecutions against defendant for
sexual offenses” and “contained graphic accounts of the crime scenes of the sexual assaults and
homicides of elderly women,” constituted “potential evidence of the subject crimes [as required
by MCL 780.652(d)] because they are consistent with defendant’s being a serial sexual offender
with a pattern of attacking elderly women.” People v Wilson, 257 Mich App 337, 351; 668
NW2d 371 (2003), vacated in part on other grounds 469 Mich 1018 (2004). Moreover, as
discussed above in section II, the “Over 50” magazine amounted to probative evidence of crime
in each case, specifically defendant’s motive for attacking Upson, Koebnick and Bell.
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Lansing Municipal Judge, 42 Mich App 32, 37-38; 201 NW2d 318 (1972).
A
Defendant first asserts that the district court improperly consolidated the three separate
murder charges into the same examination hearing. Statutory provisions and court rules govern
the conduct of preliminary examinations. MCL 766.4; MCR 6.110. Nothing within MCL 766.4,
or the court rules, or elsewhere, restricts the district court’s or magistrate’s discretion with
respect to its procedural handling of the preliminary examination. See East Lansing Municipal
Judge, supra at 39. Further, defendant directs this Court to no authority for the proposition that
any Michigan court rule or statute, or federal or Michigan constitutional provision, precluded the
district court from consolidating the three preliminary examinations regarding the deaths of
Upson, Koebnick and Bell. People v Harmon, 248 Mich App 522, 533; 640 NW2d 314 (2001).
Even assuming that such authority existed, defendant nonetheless fails to demonstrate
that the district court’s consolidation of the preliminary examinations affected the fair and
impartial nature of the examination. Defendant points to no concrete and specific prejudice
arising from the consolidation that improperly influenced the district court’s decision to bind him
over on the charges in all three cases, and offers only speculation that the district court may have
operated under some unidentified handicap in denying his motion to dismiss all charges
premised on speedy arrest violations. MCL 769.26; MCR 2.163(A).
Although defendant suggests that the district court probably considered inappropriately
some evidence concerning the related cases in making the probable cause determinations in each
individual case, (1) defendant identifies no specific evidence that the district court might have
improperly considered, and (2) this Court has recognized that when a court occupies the position
of fact finder in a proceeding, any evidentiary error presumably qualifies as harmless. To the
extent that defendant expresses concern regarding the sufficiency of proper evidence supporting
the district court’s findings of probable cause to bind defendant over in each of the three cases,
“any error in the sufficiency of the proofs at the preliminary examination is considered harmless”
where the jury’s verdicts are supported by the evidence presented at trial. People v Moorer, 246
Mich App 680, 682; 635 NW2d 47 (2001), citing People v Hall, 435 Mich App 599, 600-601;
460 NW2d 520 (1990). Although defendant suggests in subsequent issues that insufficient
evidence supported his convictions of the murders of Upson and Koebnick, as we discuss in
section VIII, infra, his claims lack merit.
B
Defendant next maintains that his district court counsel was ineffective for failing to
object to the prosecutor’s introduction of written DNA reports during the examination, instead of
calling the forensic experts as live witnesses. To establish ineffective assistance of counsel, a
defendant must demonstrate that his counsel’s performance fell below an objective standard of
reasonableness and that counsel’s representation so prejudiced the defendant that he was
deprived of a fair trial. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). With
respect to the prejudice aspect of the test for ineffective assistance, the defendant must
demonstrate the reasonable probability that but for counsel’s errors the result of the proceedings
would have been different, and that the attendant proceedings were fundamentally unfair and
unreliable. Id. at 312, 326-327; People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294
(2001).
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The prosecutor properly admitted the reports pursuant to MCL 600.2167(1), which
expressly authorizes a prosecutor to introduce at a preliminary examination “a report of the
findings of a technician of the division of the department of state police concerned with forensic
science, signed by that technician . . . in place of the technician’s appearance and testimony.”
Defense counsel need not have lodged a meritless objection to the prosecutor’s introduction of
the written reports. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).
Even assuming that defense counsel unreasonably failed to timely request pursuant to
MCL 600.2197(4) that the prosecutor present the forensic experts to testify at defendant’s
preliminary examinations, the error did not prejudice defendant. Rodgers, supra at 714.
Although defendant asserts an entitlement to have cross-examined the authors of the DNA
reports at the preliminary examination, presumably to attack the weight their conclusions
contributed toward the prosecutor’s showing of probable cause that defendant committed the
charged murders, we reiterate that “any error in the sufficiency of the proofs at the preliminary
examination is considered harmless” where the jury’s verdicts are supported by the evidence
presented at trial. Moorer, supra at 682. As discussed in section VIII, infra, sufficient evidence
at trial supported defendant’s convictions of the murders of Upson and Koebnick.11
C
Defendant further asserts that the district court erred by denying his request to present
defense witnesses during the consolidated preliminary examination. During the examination,
defendant expressed his desire to call witnesses on his behalf who would substantiate the false
and unreliable nature of the DNA reports proffered by the prosecutor, and the prosecutor’s lack
of good faith in waiting twenty years to file murder charges against him. In support of his claim,
defendant asserted his Sixth Amendment right to confront the witnesses against him, but did not
mention his Sixth Amendment right to compulsory process, which he raises on appeal.
Consequently, this issue is unpreserved for appellate review. People v Dowdy, 211 Mich App
562, 570; 536 NW2d 794 (1995). This Court reviews unpreserved claims of constitutional error
only for plain error that affected the defendant’s substantial rights. People v Geno, 261 Mich
App 624, 626-627; 683 NW2d 687 (2004).
Defendant fails to identify in his brief any specific witnesses that the district court should
have permitted him to call, or to explain the substance of any allegedly improperly precluded
witness’ testimony, and offers no authority supporting his contention that his inability to call
witnesses during his examination violated his Sixth Amendment right to compulsory process.
People v McPherson, 263 Mich App 124, 136; 687 NW2d 370 (2004); Harmon, supra at 533.
11
Defendant offers no authority in support of the notion that in the context of a preliminary
examination that the Michigan Legislature created by statute and that neither the United States
nor Michigan constitutions require, MCL 600.2197(1) might violate his Sixth Amendment right
to confront the witnesses against him, and defendant fails to develop or explain in any detail his
assertion that the admission of the reports violated the Sixth Amendment. Harmon, supra at 533.
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Defendant also fails to establish that his inability to call witnesses prejudiced him in any fashion,
either at the preliminary examinations or at trial.
Defendant repeatedly voiced before the district court that his goal in calling many desired
witnesses, who would counter the soundness of the DNA reports and substantiate bad faith by
the prosecutor in neglecting to timely pursue charges, was “to challenge the issue of probable
cause,” “to challenge the prosecutor’s request for a bind-over.” Once again, “any error in the
sufficiency of the proofs at the preliminary examinations is considered harmless” where the
jury’s verdicts are supported by the evidence presented at trial. Moorer, supra at 682. As
discussed in section VIII, infra, sufficient evidence at each trial supported defendant’s
convictions of the murders of Upson and Koebnick.
V
Defendant further contends in Docket No. 248247 that the prosecutor infringed on his
protection against double jeopardy by charging him with two murders arising from the death of
one victim, Upson.12 This Court reviews de novo questions of constitutional law involving
double jeopardy. People v Rodriguez, 251 Mich App 10, 17; 650 NW2d 96 (2002).
Defendant correctly asserts that the prosecutor committed error by charging him with two
discrete counts of murder arising from the death of an individual victim. Herndon, supra at 392.
This Court has recognized that convictions of both first-degree felony murder and first-degree
premeditated murder arising from the death of one victim violate double jeopardy principles, and
that in such circumstances “the appropriate remedy to protect defendant’s rights against double
jeopardy is to modify defendant’s judgment of sentence to specify that defendant’s conviction is
for one count and one sentence of first-degree murder supported by two theories: premeditated
murder and felony murder.” People v Bigelow, 229 Mich App 218, 220-221; 581 NW2d 744
(1998).
Our review of the record reflects that the circuit court expressly recognized at the time of
sentencing in each case the impropriety of imposing two separate convictions and sentences for
the murder of one victim. In the Upson case, the circuit court entered a judgment of sentence
reflecting that the premeditated murder count (Count 2) was merged into the same count as the
felony-murder conviction (Count 1), with one resulting term of imprisonment, and in the
Koebnick case, the court entered a judgment of sentence for only a single count of first-degree
murder supported by multiple theories, with one resultant term of imprisonment. Under these
12
The initial informations in the Upson case (LC #01-002001-FC) and the Koebnick case (LC
#01-002003-FC), filed on May 15, 2002, both charged defendant with three distinct counts of
murder: (1) first-degree felony murder committed in the course of a breaking and entering, (2)
first-degree felony murder committed during a CSC I, and (3) first-degree premeditated murder.
On December 24, 2002, the prosecutor filed in each case an amended information that charged
defendant with two counts of murder arising from each victim’s death: (1) first-degree felony
murder committed during a breaking and entering or CSC I; and (2) first-degree premeditated
murder. In each case, the circuit court instructed the jury with respect to the two separate counts
of murder within the amended informations, and the jury found defendant guilty of both counts
in each case.
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circumstances, we find that no double jeopardy violation exists that entitles defendant to relief.
Herndon, supra at 392 (concluding that the prosecutor’s excessive charging of the defendant did
not require reversal of the ultimate conviction because the judgment of sentence reflected that the
defendant actually was sentenced only for one murder conviction, “which is all that is necessary
to protect his rights”).
VI
Defendant next argues that the prosecutor violated his Sixth Amendment right of
confrontation when he failed to call as a witness Charlotte Day, a retired crime scene technician
who allegedly collected semen-encrusted pubic hairs from Upson’s body at the scene of her
murder. This issue is unpreserved because we located nowhere in the record that defendant
invoked his Sixth Amendment right to confront Day, or asked for assistance in securing Day’s
testimony. We will consider this unpreserved constitutional claim for the first time on appeal
only if an error occurred, it was plain, and it affected defendant’s substantial rights. People v
Wyngaard, 462 Mich 659, 668; 614 NW2d 143 (2000).
The only witness lists of the prosecutor contained within the record of the Upson case
include an original “Notice of additional witnesses prosecuting attorney intends to produce at
trial and . . . not to product [sic] at trial” filed on August 22, 2002, and an amended notice filed
on January 2, 2003, neither of which mentions Day. Defendant filed no notice of his intent to
call Day as a witness, and neither the prosecutor nor defendant ultimately called Day to testify.
This Court has recognized repeatedly that under circumstances such as these, no violation of the
Sixth Amendment right to confront witnesses exists:
The defendant has a constitutional right to be confronted with the
witnesses against him. However, defendant does not claim that he was denied the
right to confront witnesses whose testimony in some form was considered by the
jury. Instead, defendant claims that various individuals should have been called
to testify in the second trial. Defendant does not explain why he was unable to
call these individuals on his own. Thus, there has been no violation of defendant's
right to confrontation or due process. While the prosecutor has certain obligations
with respect to witnesses, it is not the prosecutor's responsibility to call any
witness whom the defendant believes may support his defense in some way.
[People v Lee, 212 Mich App 228, 257-258; 537 NW2d 233 (1995).]
See also People v Cooper, 236 Mich App 643, 659; 601 NW2d 409 (1999). We conclude that
defendant’s Sixth Amendment right of confrontation claim lacks merit. Further, it is pure
speculation that Day would have provided testimony helpful to the defense.
VII
In Docket No. 248247 and Docket No. 253337, defendant alleges that the prosecutor
violated his due process entitlement to a speedy arrest by waiting until December 2001 to charge
him with the 1982 murders of Upson and Koebnick. This Court reviews for an abuse of
discretion a trial court’s decision concerning a motion to dismiss premised on prearrest delay.
Herndon, supra at 389. To the extent that this claim of prearrest delay implicates defendant’s
constitutional due process rights, we review de novo such constitutional questions. People v
Crear, 242 Mich App 158, 166; 618 NW2d 91 (2000); People v Cain, 238 Mich App 95, 108;
-11-
605 NW2d 28 (1999).
The federal “‘Due Process Clause plays a limited role in preventing unjustified
preindictment or prearrest delay.’” Cain, supra at 109, quoting People v White, 208 Mich App
126, 134; 527 NW2d 34 (1994). The mere occurrence of delay between the commission of a
crime and the defendant’s arrest for it does not amount to a denial of due process. People v
Anderson, 88 Mich App 513, 515; 276 NW2d 924 (1979). “Before dismissal may be granted
because of prearrest delay there must be actual and substantial prejudice to the defendant’s right
to a fair trial and an intent by the prosecution to gain a tactical advantage.” Crear, supra at 166.
The defendant bears the burden to “come forward with evidence of prejudice resulting from the
delay while the prosecutor has the burden of persuading the reviewing court that the delay was
not deliberate and did not prejudice the defendant.” Cain, supra at 108.
We find that defendant has failed to satisfy his initial burden to demonstrate that the years
of prearrest delay in these cases actually and substantially prejudiced his right to fair trials. “To
be substantial, the prejudice to the defendant must meaningfully impair his ability to defend
against the charges against him in such a manner that the outcome of the proceedings will likely
be affected.” Crear, supra at 166. In his briefs on appeal, defendant asserts that the many years
of delay prevented him from having the ability to raise an alibi defense during his trials, but
defendant fails to suggest any specific alibi, or evidence that would have supported his claim of
alibi, that the prearrest delay somehow precluded him from developing or introducing.13 People
v Adams, 232 Mich App 128, 134-135; 591 NW2d 44 (1998) (explaining that the defendant must
submit more than generalized allegations to show actual and substantial prejudice, and that
nonspecific allegations of prejudice arising from alleged imperfections in witness’ memory are
generally insufficient).
With respect to defendant’s complaint that because of the delay he could not locate
former students Eric Jackson and Darnell Jones, who in September and October 1982 attended
the Bach Elementary School located across the street from Koebnick’s house, defendant
successfully introduced during both the trials testimony and other evidence that in 1982 these
students advised the police that they had seen a Caucasian man with a motorcycle enter
Koebnick’s house around the time of her murder. Because the jury considered the statements
containing the recollections of Jackson and Jones that defendant purportedly hoped to introduce
through their testimony during his trials, we cannot conclude that defendant’s inability to call
Jackson and Jones as witnesses actually prejudiced him, or meaningfully impaired “his ability to
defend against the charges against him in such a manner that the outcome of the proceedings . . .
likely [was] affected.” Crear, supra at 166.14
13
Defendant elicited testimony indicating that he was aware by at least 1983 or 1984 that he had
become a suspect in the 1982 murders of Upson, Koebnick and Bell.
14
Even assuming that the prearrest delay in this case actually and substantially prejudiced
defendant in some respect, our review of the records reveals no evidence suggesting that the
prosecutor delayed charging defendant because he hoped to gain a tactical advantage. Although
defendant’s briefs on appeal opine that the prosecutor’s proffered excuse for the delay—that the
police waited until the late 1990s when advanced DNA technology permitted them to arrange for
testing of the trace evidence from the 1982 crime scenes—did not qualify as a good faith excuse
(continued…)
-12-
VIII
Defendant next argues in Docket No. 248247 and Docket No. 253337 that the circuit
court should have granted his motions for directed verdicts of acquittal in each case because the
prosecutor failed to adequately “produce, authenticate, or admit into evidence at trial, any DNA
evidence, which was the chief and only claim of evidence against” him.
A
In reviewing a challenge to the sufficiency of the evidence, or the circuit court’s denial of
a motion for a directed verdict of acquittal, this Court considers all the evidence presented in the
light most favorable to the prosecution to determine whether a reasonable juror could find the
defendant’s guilt proven beyond a reasonable doubt. People v Riley, 468 Mich 135, 139; 659
NW2d 611 (2003); People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000). This Court
must draw all reasonable inferences and make credibility choices in support of the jury’s verdict;
this Court should not interfere with the factfinder’s role in determining witness credibility or the
weight of the evidence. Nowack, supra at 400; People v Elkhoja, 251 Mich App 417, 442; 651
NW2d 408 (2002), vacated in part on other grounds 467 Mich 916 (2003).
We initially observe that defendant disputes only that sufficient evidence tended to prove
his identity as the assailant in each case, and that he does not contest other requisite elements of
his felony murder and premeditated murder convictions. We conclude that when viewed in the
light most favorable to the prosecution, the evidence introduced during each trial that (1) at nine
different genetic locations, defendant’s DNA profile matched, or was consistent with, the DNA
profile found within semen located on (a) swabs of Upson’s vagina, (b) Upson’s semenencrusted pubic hair, (c) Koebnick’s corset, (d) scrapings from under Koebnick’s right
fingernails, and (e) swabs of Koebnick’s vagina, and (2) the likelihood of a random match
between defendant’s DNA profile and the DNA profiles detected on these items of evidence
amounted to one in 3.3 trillion African-Americans, the jury rationally found beyond a reasonable
doubt that defendant committed the charged murders of Upson and Koebnick. Riley, supra at
139; Nowack, supra at 399-400.
B
Defendant attempts to avoid or nullify the highly probative DNA identification evidence
by complaining that the prosecutor failed to introduce physical samples of the DNA evidence
(…continued)
for the delay, defendant’s briefs do not allege any acts of deliberate delay by the prosecution or
police intended to gain a tactical advantage. Moreover, the prosecutor amply showed that the
prearrest delay in these cases occurred because of the need for further investigation, in light of
the evidence indicating that (1) the police recovered no fingerprints from the 1982 murder scenes
that matched defendant’s, (2) the limitations of other forensic tools of early 1980s like blood
typing evidence precluded specific identification of an assailant, and (3) only beginning in the
mid 1990s did the state police crime lab begin DNA analysis utilizing the PCR/STR technique,
which yielded results from much smaller quantities of genetic material than the amounts required
to support earlier testing techniques. Adams, supra at 144 (rejecting a claim of improper
prearrest delay because investigative rather than tactical concerns governed the prosecution’s
course of action).
-13-
and other physical evidence like his blood samples, and that an insufficient showing of
authentication or chain of custody established that the DNA experts in fact tested evidence from
the three murder scenes. After carefully reviewing the lengthy trial records, we conclude that the
testimony adequately establishes in each case that the forensic experts performed analysis of and
gained results regarding, various items of physical evidence that incriminated defendant in the
charged crimes.
1
With respect to the evidence recovered in the Upson case, on which the state police crime
lab ultimately performed DNA analysis linking defendant to Upson’s murder, former Ypsilanti
police sergeant Michael John Vincent testified that on September 29, 1982, he arrived first at
Upson’s residence and secured it until evidence technicians arrived from the state police crime
lab. According to (1) the testimony of Charles Barna, a forensic scientist and supervisor of the
DNA unit at the Michigan State Police crime laboratory, and who in 1982 was an evidence
technician at the murder scenes of Bell and Koebnick, and (2) Ypsilanti police sergeant Amy
Walker’s description of police reports that she prepared, retired state police crime scene
technician Day went to Upson’s house on September 29, 1982, collected from Upson’s body a
sample of her encrusted pubic hair, and on the same day delivered the hairs to Barna.15 Barna’s
forensic testing of the item confirmed the presence of semen. Barna and Walker believed that
the state police crime lab had preserved the semen-encrusted hair (L-7), as well as vaginal swabs
from Upson’s autopsy, since September 29, 1982 and September 30, 1982, respectively.
Concerning the vaginal swabs, retired Michigan State Police Detective-Lieutenant Jon
Stanton and Dr. Jean Freitag, who in 1982 participated in a forensic pathology residency with
medical examiner Dr. Robert Hendrix, testified that they attended Upson’s autopsy on September
30, 1982, and that at the autopsy Dr. Hendrix collected evidence including pubic hairs of Upson
encrusted in a dried, white substance, air-dried vaginal swabs (L-15), and a blood sample from
Upson, all of which Stanton delivered, in packaging marked with a unique case number, directly
to Barna at the Michigan State Police crime lab for serological analysis. Barna testified that he
analyzed the vaginal swabs of Upson, on which he detected A and H type substances.16
Walker averred that in the late 1990s, she arranged for the submission to the state police
crime lab of several items related to Upson’s murder, including semen-encrusted pubic hairs of
Upson (L-7), and vaginal swabs of Upson (366[3].00D). Jeffrey Nye, a forensic scientist who
worked in the biology subunit of the state police crime lab, testified that in October 2000, Barna
15
Defendant offered no objection to Barna’s and Walker’s testimony that Day had collected the
semen-encrusted pubic hair. Defendant in fact elicited this fact from Barna, and specifically
cross-examined Barna with respect to the fact that Day brought to him for serological testing on
September 29, 1982 several encrusted pubic hairs of Upson that Day collected at 309 West
Cross.
16
Barna explained that individuals having type O blood, like defendant, could produce type H
substances, while only individuals having type A blood, like Upson, could produce type A
substances. Barna further explained that some bacteria, including bacteria located inside the
vagina, could produce substances that mimicked A substances.
-14-
placed in a particular refrigerator at the state police crime lab, and Nye retrieved for DNA
testing, several cryovials containing items related to Upson’s murder (lab case number 1351482), including a vial containing semen-encrusted pubic hairs (L-7), which were labeled, dated
9/29/82, and initialed by Barna, and a vial containing two vaginal swabs from Upson’s autopsy
that bore semen (3663.00D). Nye believed that the state police crime lab had maintained
possession of these items of evidence since lab personnel had collected the items on September
29, 1982 and September 30, 1982.
After examining the evidence related to Upson’s murder, Nye received a purple-capped
vial of defendant’s blood with instructions from Zsenyuk to compare defendant’s DNA profile
with the genetic profile of the semen found on Upson’s pubic hair and on the vaginal swabs.
Nye testified that his comparisons revealed that (1) the genetic profile of the male contributor to
the vaginal swab was consistent with the DNA profile from defendant’s blood sample at the nine
locations examined, (2) the genetic profile obtained from defendant’s blood sample also was
consistent with the DNA profile found within the male fraction of the semen-encrusted pubic
hair at all nine locations considered, and (3) if Nye “were to go out in the population and select
people at random that were unrelated,” he would expect to see the DNA profile” of “the semen
donor from the pubic hair as well as the primary donor on [the] vaginal swab” “once in every 3.3
trillion people in the African-American population.”
2
With respect to the evidence arising from Koebnick’s murder, retired Ann Arbor police
detective Robin Winter testified that he went to Koebnick’s house on October 1, 1982, and
remained there while state police crime lab technicians, including Barna, processed the scene.
The testimony of Barna and Winter indicated that they both attended Koebnick’s autopsy on
October 2, 1982, and that Barna received several items of evidence collected by Dr. Hendrix,
including a box containing Koebnick’s clothing (L-21), vaginal swabs, and scrapings from
Koebnick’s fingernails (L-25, right hand; L-26, left). Barna confirmed that he had placed the
nonclothing items of evidence from Koebnick’s autopsy inside “an empty Kodak photographic
paper box,” on which he placed his initials and state police laboratory number 13551-82. Barna
averred that he took the items obtained during Koebnick’s autopsy to the state police lab in
Northville, shortly thereafter performed serological examinations that revealed the presence of
semen on the vaginal swabs, and maintained the remaining portion of the swabs for future
testing.
Forensic scientist Lynne Helton, who worked in the DNA unit of the state police crime
lab in Lansing, and Zsenyuk testified that on April 7, 1998, Zsenyuk delivered to Helton for
DNA testing several items related to the Koebnick murder scene (lab number 13551-82),
including a corset and other clothing of Koebnick, as well as scrapings from Koebnick’s
fingernails (L-25). Helton testified to her opinion that Zsenyuk had believed that after
Koebnick’s autopsy, “the integrity of the evidence had been maintained since it had been
examined at the Northville Laboratory and then returned to the Ann Arbor Police Department.”17
17
Winter testified that he had delivered to Barna for forensic examination several items of
evidence related to Koebnick’s murder, including her clothing and vaginal swabs, and that he
(continued…)
-15-
At trial, Helton identified the bag containing the corset of Koebnick that she examined,
which bag, labeled L-21B, bore Helton’s initials and her written description that the bag
contained a “ladies corset.” Helton also identified the stained white corset itself, which had “a
piece of . . . Michigan State Police evidence tape that bears the lab number 13551-82 and
[Helton’s] initials.” Helton confirmed the presence of semen on Koebnick’s corset.18 Helton
averred that the profile of the male or sperm fraction she identified on Koebnick’s corset
matched defendant’s DNA profile19 at each of the nine genetic regions examined, and that the
likelihood of a random match between the DNA profiles found in the semen on Koebnick’s
corset and a random, unrelated individual amounted to “one in 294.7 trillion for the Caucasian
population group; for the African-American population group, one in 3.3 trillion; and in the
Hispanic group, one in 289.5 trillion.”
Helton also identified at defendant’s trials a bag that contained several items of evidence
including the fingernail scrapings obtained during the autopsy of Koebnick. On the bag, Helton
had written the “unique laboratory number assigned to this case, which is 13551-82, the name of
the agency, Ann Arbor, . . . [her] initials,” and “a description of the contents of the box which is
in this bag.” From the scrapings of Koebnick’s right hand fingernails, Helton described that she
identified a profile of “a single DNA donor,” “and that the DNA types at each genetic location
matched the DNA types from the known DNA sample from Michael Harris.”20 Helton averred
that the same probability estimate that applied to the DNA profile match of the sperm fraction
found on Koebnick’s corset applied to a random match of the DNA profile found under
Koebnick’s right fingernails.
(…continued)
retrieved the items from the state police crime lab on August 25, 1983, for storage in the property
division of the Ann Arbor Police Department. Zsenyuk identified several Ann Arbor Police
Department property room release forms that were prepared with respect to Koebnick’s clothing,
vaginal swabs, blood sample, and fingernail scrapings.
18
Helton explained that she cut small pieces of cloth from the corset for testing purposes, that
“biological material remain[ed] on the corset,” and that “there still is a portion of the cutting that
[she] preserved and froze in storage at the Northville Crime Lab that would be available for
testing purposes.”
19
Helton confirmed that on May 19, 1999, she received for DNA comparison purposes a dried
blood sample of defendant from East Lansing crime lab forensic scientist Julie Howenstein. The
testimony of Walker, retired Ann Arbor police officer Joseph Wesolowski, Zsenyuk and Helton
reflected that on January 18, 2001, Walker and Wesolowski visited the Brooks Correctional
Facility where they watched as registered nurse Gloria Smith drew blood from defendant and
placed it inside three purple-capped vials; Walker, Wesolowski and Smith marked each of the
vials with their initials; Walker and Wesolowski took the vials to Zsenyuk; on January 22, 2001,
Wesolowski received from Zsenyuk two of the vials of defendant’s blood, which Wesolowski
logged into then immediately out of the Ann Arbor Police Department’s property storage unit;
and on January 22, 2001, Wesolowski traveled to the state police crime lab in Northville where
he personally handed two vials of defendant’s blood to Helton.
20
Helton recounted that she also received from Zsenyuk an envelope labeled “vaginal swabs,”
but that the envelope contained only “broken sticks . . . consistent with the stick remaining after
the vaginal swab was removed, . . . and one microscope slide with dried biological material still
adhering to it.”
-16-
Stephen Milligan, a forensic scientist at the Michigan State Police crime lab who
specialized in DNA identification, testified that on October 18, 2000, Barna placed in a
laboratory refrigerator for his examination several pieces of evidence related to laboratory case
number 13551-82. Milligan recounted that on November 13, 2000, he retrieved from the
laboratory refrigerator a plastic cryobox that contained a cryotube, in which he found three
cotton swabs labeled “vaginal swabs” and “laboratory number 13551-82.” Milligan preserved
one swab for future testing. Milligan recalled that on February 6, 2001, he received for the
purpose of comparing defendant’s DNA profile with the profiles he identified from the vaginal
swabs of Koebnick a report by Nye that had developed a DNA profile of defendant. According
to Milligan, the lone DNA profile that he identified within the sperm fraction from the vaginal
swab of Koebnick matched defendant’s DNA profile at each of the nine genetic locations
examined, and the “probability of selecting an unrelated individual at random from the
population having the profile matching that of the sperm fraction of the vaginal swab that was
typed . . . is one in 294.7 trillion in the Caucasian population, one in 3.3 trillion in the AfricanAmerican population and one in 289.5 trillion in the Hispanic-American population.”
The above testimony by police personnel and forensic scientists tracing the incriminating
evidence from the Upson and Koebnick crime scenes to the state police forensic laboratories
sufficiently demonstrates that the various samples ultimately examined were indeed what the
forensic experts reported them to be. See MRE 901(b)(1) (explaining that “[t]estimony that a
matter is what it is claimed to be” satisfies the authentication condition precedent to admissibility
of evidence).21 While defendant (1) questioned witnesses at length concerning perceived breaks
or deficiencies in the chain of custody of the forensic evidence received by the state police crime
lab, including with respect to the facts that (a) Helton received an empty envelope labeled as the
vaginal swabs from Koebnick, (b) Condron had signed a report in June 1983 indicating that he
transported to the Ypsilanti Police Department for storage several types of items related to the
Upson case that were similar to items allegedly maintained by the state police crime lab, and (c)
at some point between 1982 and the DNA testing performed in these cases, items of evidence
might have been transported between state police crime laboratories in Northville and East
Lansing,22 and (2) complains on appeal that retired technician Day, who collected some evidence
at the scene of Upson’s murder, did not testify at his trials, any alleged defects in the chains of
custody go toward weight of the DNA testimony by the forensic experts, not its admissibility.
People v Berkey, 437 Mich 40, 52; 467 NW2d 6 (1991) (observing that “[i]t is axiomatic that
proposed evidence need not tell the whole story of a case, nor need it be free of weakness or
doubt,” but it “need only meet the minimum requirements for admissibility” under MRE 901);
People v King, 58 Mich App 390, 398-399; 228 NW2d 391 (1975) (rejecting that the defendant’s
allegations of breaks in the chain of custody of evidence precluded its admissibility, and finding
21
Defendant offers no authority in support of his suggestion that the forensic experts’ testimony
lacked any probative value because the prosecutor failed to introduce the physical samples of
defendant’s blood or samples of the actual DNA that they examined. Harmon, supra at 533.
22
Barna testified that DNA testing by the state police became centralized in the Lansing
laboratory beginning in 1996, and that he supervised the relocation process by which “there were
samples that were transferred [from Northville] for long-term storage to Lansing during that
period of time.”
-17-
that the objections went only toward the weight of the evidence). In these cases, the juries
plainly found probative the DNA evidence to which the forensic experts testified, and this Court
will not revisit on appeal the jury’s weighing of the evidence. Nowack, supra at 400; Elkhoja,
supra at 442.
IX
In Docket No. 248247 and Docket No. 253337, defendant claims that the prosecutor’s
failure to call endorsed fingerprint expert witness Margaret Huston at his trials, and the circuit
court’s admission of fingerprint testimony by an unqualified witness, Helton, violated his due
process right to exculpatory material and his Sixth Amendment right of confrontation. Although
the prosecutor periodically updated the circuit court during the trials with respect to the
remaining witnesses it intended to call, and ultimately rested without calling Huston to the
witness stand, at no time did defendant object or otherwise suggest that the failure to call Huston
affected his constitutional rights. Consequently, we will review this claim for plain error
affecting defendant’s substantial rights. Geno, supra at 626. Defendant did object during both
trials, and thus preserved his objection, to Helton’s brief fingerprint testimony, the admission of
which we review for a clear abuse of discretion. Starr, supra at 494.
With respect to the prosecutor’s failure to call Huston at either trial, no violation of
defendant’s due process right of access to exculpatory information occurred because (1) the
prosecutor did not suppress evidence of Huston’s conclusions that no prints obtained by the
police matched those of defendant, (2) on January 28, 2003, shortly before the commencement of
the Upson murder trial and many months before the Koebnick trial began, defendant filed a
notice of proposed defense exhibits that listed “michigan state police report by margaret huston,
in the marjori [sic] upson case, dated 1-14-83,” “michigan state police report by margaret huston
in the florence bell case, dated 1-14-82,” and “Michigan State Police report by Margaret Huston,
in the Louise Koebnick case, dated 2-28-83,” which notice plainly reflects defendant’s
knowledge of and access to Huston’s conclusions, and (3) defendant suffered no prejudice
arising from Huston’s failure to appear at the trials, given that at each proceeding he repeatedly
elicited from various witnesses that no fingerprints obtained from any of the three 1982 murder
scenes matched his prints. MCL 769.26; People v Fox, 232 Mich App 541, 549, 551-552; 591
NW2d 384 (1998); People v Lester, 232 Mich App 262, 281-282; 591 NW2d 267 (1998). To the
extent that defendant asserts an infringement of his right of confrontation arising from the
prosecutor’s failure to call Huston, as discussed above, a defendant has no right to cross-examine
a witness not produced by the prosecution when he “does not explain why he was unable to call
the[ witness] . . . on his own.” Lee, supra at 257-258.
Concerning Helton, she testified that during her forensic examination of the knife blade
and knife handle found near Bell’s body, she observed along the top edge of the knife handle
some uniformly spaced ridges in black fingerprint detection powder that possibly represented a
partial finger or palm print, or an imprint by a fabric glove. The circuit court did not abuse its
discretion by overruling defendant’s objections premised on Helton’s lack of expertise in light of
Helton’s testimony that she regularly worked in the field as a crime scene technician and
-18-
attended ongoing training concerning crime scene evidence location and collection.23 Starr,
supra at 494. Although the circuit court did not specifically declare Helton an expert in the area
of fingerprint collection and examination, her description of the possible fingerprint or glove
imprint represented an “opinion[] or inference[] . . . rationally based on the perception of the
witness.” MRE 701(a).
Even assuming that the circuit court erred by admitting Helton’s print observation
testimony, defendant fails to explain how Helton’s testimony may have prejudiced him.
Harmon, supra at 533. In light of the fact that Helton testified only briefly to her observation
and made no attempt to offer opinion testimony concerning a comparison of the potential
fingerprint or glove imprint with defendant’s prints or any other evidence presented during either
trial, we conclude that no prejudice exists that warrants appellate relief. MCL 769.26; MRE
103(a); MCR 2.613(A).
X
Defendant contends in Docket No. 253337 that his trial for Koebnick’s murder, after
already having undergone a trial for Upson’s murder during which the prosecutor introduced
evidence that defendant allegedly killed Koebnick, violated collateral estoppel and double
jeopardy principles. We disagree.
We review de novo issues involving double jeopardy principles and the application of
collateral estoppel. Geno, supra at 627; Minicuci v Scientific Data Management, Inc, 243 Mich
App 28, 33-34; 620 NW2d 657 (2000).
The prosecutor did not previously place defendant in jeopardy of conviction for
Koebnick’s murder during the Upson trial in LC #01-002001-FC given that (1) the amended
information in LC #01-002001-FC asserts charges against defendant arising only from the death
of Upson, (2) the jury found defendant guilty of murdering only Upson in LC #01-002001-FC,
and (3) the circuit court imposed sentence in LC #01-002001-FC only for defendant’s murder of
Upson. Collateral estoppel does not apply because no questions of fact essential to a conviction
of defendant for murdering Koebnick were actually litigated and determined by a valid and final
judgment in LC #01-002001-FC. Minicuci, supra at 33.
XI
In Docket No. 253337, defendant lastly argues that the prosecutor violated a stipulation
concerning independent testing of the DNA evidence by apprising the independent laboratory,
Lab Corp, of the nature of the substances the state police allegedly found on the items of physical
evidence, and by failing to request that Lab Corp preliminarily identify the nature of the
biological fluids on the items of physical evidence. Defendant suggests that the prosecutor’s
actions deprived him of exculpatory evidence, a fair trial, and his right to present a defense.
Defendant has not preserved for appellate review the several claims of constitutional violations
23
At the Koebnick murder trial, Helton further explained that she had examined hundreds of
items bearing fingerprints or glove imprints.
-19-
that he raises in his brief on appeal,24 which this Court will review only for plain error that
affected his substantial rights. Geno, supra at 626.
We conclude that the prosecutor’s alleged violation of the terms of the parties’
independent testing agreement did not result in a plain constitutional error that affected the
outcome of defendant’s trial. Defendant’s varied allegations of constitutional violations stem
from his complaint that the prosecutor precluded him from presenting exculpatory information to
the jury, specifically evidence supporting his contention that the biological material tested by the
Michigan State Police experts derived from a biological substance other than semen. According
to defendant, a conclusion by the independent expert that the biological substances tested did not
include semen would have supported his theory that the police or forensic experts somehow
obtained saliva or skin or blood samples that they falsely labeled as semen to obtain his
conviction for the murders.
To resolve this issue, we may assume that the prosecutor violated an agreement with
defendant concerning the terms of the independent testing by permitting Lab Corp to receive two
items already identified as semen (on a doily from Bell’s house and on Koebnick’s corset), and
by failing to ensure that Lab Corp determined what substances might exist on the various items
of evidence it received for independent testing. To the extent that defendant suggests the
prosecutor suppressed exculpatory evidence, his claim fails because no indication exists that the
prosecutor possessed serological testing evidence favorable to defendant, i.e., testing evidence
suggesting that some biological fluid other than semen existed on the tested items, let alone that
the prosecutor suppressed this favorable evidence. Lester, supra at 281-282.
Furthermore, even assuming that the prosecutor engaged in willful misconduct when it
failed to arrange for preliminary serological testing of the fluids on the items submitted to Lab
Corp, the prosecutor’s action did not affect the outcome of defendant’s trial for Koebnick’s
murder in light of the facts that (1) defendant successfully elicited from Lab Corp expert Shawn
Weiss, and thus placed before the jury, the notion that the items of evidence related to the Upson
and Koebnick murders might have contained blood, saliva, urine or other biological material
instead of semen; (2) during his closing argument, defendant repeatedly emphasized to the jury
his belief that the police and forensic experts had conspired to fabricate evidence against him,
including by placing DNA from his blood samples on the crime scene evidence and then falsely
characterizing the DNA found thereon as deriving from semen; (3) as discussed above, the
prosecutor presented ample testimony to establish the chain of custody of the various items of
evidence tested by forensic scientists at the state police crime lab, which testing resulted in
matches or inclusions of defendant’s DNA profile as that existing on various items of evidence
from each of the Upson, Koebnick and Bell murder scenes; and (4) the independent testing by
24
The parties discussed before the circuit court the appointment of an independent DNA expert
and the scope of the testing the expert should provide, and the court addressed this question. But
after the parties’ submission of particular items of evidence to Lab Corp for independent testing,
defendant at no time raised a constitutional or other objection of any kind to the prosecutor’s
alleged violation of the terms of the parties’ agreement with respect to independent testing.
-20-
Lab Corp similarly linked defendant’s DNA profile to the crime scene evidence. People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Affirmed.
/s/ William B. Murphy
/s/ Helene N. White
/s/ Kirsten Frank Kelly
-21-
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