IN RE DONTAE LAVELLE NANCE (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DONTAE LAVELLE NANCE,
Minor.
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 28, 2011
Petitioner-Appellee,
v
No. 297578
Wayne Circuit Court
Family Division
LC No. 10-491620
DONTAE LAVELLE NANCE,
Respondent-Appellant.
Before: FITZGERALD, P.J., and SAWYER and BECKERING, JJ.
PER CURIAM.
Respondent, a minor, appeals by leave granted an order of adjudication sustaining a
petition’s allegations regarding the charges of carrying a concealed weapon, MCL 750.227, and
possession by a minor of a firearm in public, MCL 750.234f. We affirm.
This case arises out of a January 4, 2010, incident wherein respondent allegedly fled from
police upon being approached about a possible curfew violation and, while fleeing, threw from
his possession an object later identified as a loaded blue steel automatic handgun.
On appeal, respondent contends that the trial court erred when it denied his motion to
compel the police to dust the gun he allegedly possessed for fingerprints or, in the alternative,
appoint an expert to conduct the fingerprint analysis on the gun. We disagree. We review a trial
court’s decision regarding a motion for discovery for an abuse of discretion. People v Phillips,
468 Mich 583, 587; 663 NW2d 463 (2003). We also review a trial court’s decision on whether
to appoint an expert for an indigent defendant for an abuse of discretion. People v Lueth, 253
Mich App 670, 689; 660 NW2d 322 (2002). An abuse of discretion occurs when the trial court’s
decision is not within “the range of reasonable and principled outcomes.” People v Unger (On
Remand), 278 Mich App 210, 217; 749 NW2d 272 (2008).
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The trial court did not abuse its discretion when it denied respondent’s motion to compel
the police to dust the gun for fingerprints. MCR 3.922 governs discovery in juvenile
proceedings and sets forth, in pertinent part:
(A) Discovery.
(1) The following materials are discoverable as of right in all proceedings
provided they are requested no later than 21 days before trial unless the interests
of justice otherwise dictate:
***
(e) a list of all physical or tangible objects that are prospective evidence
that are in the possession or control of petitioner or a law enforcement
agency;
(f) the results of all scientific, medical, or other expert tests or
experiments, including the reports or findings of all experts, that are
relevant to the subject matter of the petition;
***
(2) On motion of a party, the court may permit discovery of any other materials
and evidence, including untimely requested materials and evidence that would
have been discoverable of right under subrule (A)(1) if timely requested. Absent
manifest injustice, no motion for discovery will be granted unless the moving
party has requested and has not been provided the materials or evidence sought
through an order of discovery.
MCR 3.922 requires a party to request the results of expert tests, such as a fingerprint analysis on
a handgun, no later than 21 days before trial. Under the court rule, the key to the production of
the requested material is that the material or evidence be available in the first instance. That is,
experts must first conduct tests and experiments, yielding results, before there can be any
material or evidence to be sought through an order of discovery pursuant to MCR 3.922. Here,
there was no material or evidence relating to fingerprint testing of the gun for respondent to
request. Instead, respondent requested that the trial court compel petitioner to create or develop
evidence by dusting the gun for fingerprints. MCR 3.922 does not require a party to create
evidence; rather, the court rule requires a party to reveal already available and existing evidence
or material to the requesting party. Contrary to respondent’s assertion, there is nothing in MCR
3.922 that permits a court to compel the police or petitioner to perform a fingerprint analysis on
the handgun where one had not yet been completed.
Our Supreme Court addressed a similar issue and court rule in Phillips, 468 Mich at 583.
In Phillips, the Court considered whether MCR 6.201, governing discovery in criminal cases,
permitted a trial court to compel a party to create an expert witness report where no such report
existed. Phillips, 468 Mich at 584, 587-589. The prosecutor contended that, under the court
rule, the trial court could compel the creation of a report. Id. at 589. At the time Phillips was
decided, MCR 6.201(A)(3) stated “that a party must provide ‘any report of any kind produced by
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or for an expert witness whom the party intends to call at trial.’”1 Phillips, 468 Mich at 590
(citation omitted). The Court rejected the prosecutor’s contention because it was contrary to the
plain language of MCR 6.201(A). Phillips, 468 Mich at 590. The Court held:
According to the plain meaning of the words, a “report” is an account of
something. A report that has been “produced” has already been brought forth or
created. In other words, the report must already exist. There is nothing in the
plain language of MCR 6.201(A) that permits a trial court to compel such a report
to be created when it does not exist. [Id.] 2
Similarly, there is nothing in MCR 3.922 that allows a court to compel the creation of evidence
that does not already exist, i.e., fingerprint testing on the gun. Accordingly, the trial court did
not abuse its discretion in denying respondent’s motion to compel the police or petitioner to dust
the gun for fingerprints.
Next, the trial court’s denial of respondent’s alternative request to appoint an expert to
perform a fingerprint analysis on the handgun was also not an abuse of discretion.
This Court reviews a trial court’s decision whether to grant an indigent
defendant’s motion for the appointment of an expert for an abuse of discretion.
MCL 775.15. “A mere difference in judicial opinion does not establish an abuse
of discretion.” People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003).
***
As MCL 775.15 makes clear, a trial court is not compelled to provide
funds for the appointment of an expert on demand. In People v Jacobsen, 448
Mich 639, 641; 532 NW2d 838 (1995), this Court held that, to obtain appointment
of an expert, an indigent defendant must demonstrate a “‘nexus between the facts
of the case and the need for an expert.’” (Citation omitted.) It is not enough for
the defendant to show a mere possibility of assistance from the requested expert.
“Without an indication that expert testimony would likely benefit the defense,” a
trial court does not abuse its discretion in denying a defendant's motion for
appointment of an expert witness. Id. [People v Tanner, 469 Mich 437, 442-443;
671 NW2d 728 (2003).]
Further, respondent has the burden of showing that he could not safely proceed to trial without
such expert assistance. See id at 440-441, 444, citing MCL 775.15.
1
MCR 6.201(A)(3) has since been revised.
2
Although the Court acknowledged that there may be circumstances where “good cause” is
shown to permit a trial court to compel a party to create expert witness reports under MCR
6.201(I), such as where “a trial court believes a party is intentionally suppressing reports by an
expert witness,” such circumstances were not present in Phillips. Phillips, 468 Mich at 591-593.
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Respondent requested the appointment of a fingerprint expert to dust the gun for
fingerprints. On appeal, he argues that the expert testimony would have been beneficial to his
defense because the absence of his fingerprints on the handgun could have exonerated him.
Although it would not have been unreasonable for the trial court to appoint a fingerprint expert
for respondent, we find that it was not an abuse of discretion for the court to decline to do so
under the circumstances. First, respondent apparently made no mention of another person being
with him on the night of his arrest, raising a “wrong person” theory, until the day he testified at
trial. Furthermore, respondent did not establish that a fingerprint expert would likely benefit his
defense. A fingerprint analysis on the gun could have further inculpated respondent. It could
also have shown no fingerprints, or even another person’s fingerprints. Although the expert
testimony could possibly have bolstered respondent’s defense theory, it would not guarantee his
exoneration because there was other evidence, specifically the testimony of Officer Barry
Hayward, that respondent possessed the gun. While expert testimony regarding the absence of
respondent’s fingerprints on the gun might have bolstered his defense, the mere possibility of
assistance from the requested expert is not enough to establish that the trial court abused its
discretion. See id. at 443.
Further, the trial court did not abuse its discretion in denying respondent’s motion to
appoint an expert witness because respondent was able to safely proceed to trial without an
expert. See id. at 444. Respondent’s defense theory was that he was not the one who ran away
from the police, and he did not possess a gun. In support of his theory, respondent presented
evidence from Maurice Cuff, his mother, and himself. Respondent testified that he was walking
with “occupant,” who he later identified as a friend named Cornelius,3 when two officers
approached them in a squad car, and that it was Cornelius who ran away as one of the officers
approached. The officer who had approached them chased Cornelius on foot, and the other
officer drove away in the squad car. Respondent continued walking and came upon an officer
looking for something on the side of the street with a flashlight. Soon thereafter, as respondent
continued walking, he was approached by another squad car and one of the officers got out and
arrested him. Respondent testified that he told the officer he was “not the one you two are
looking for; I’m not that one.” Respondent also testified that he did not have a gun.
Respondent’s mother testified that she knew of respondent’s acquaintance named Cornelius,
corroborating respondent’s testimony that such an individual existed and boosting respondent’s
credibility. Cuff testified that respondent appeared to be minding his own business when the
police approached and arrested him. According to Cuff, one of the officers appeared to be
searching for something in the area where respondent was arrested, but Cuff did not see them
recover anything. If believed, respondent’s witnesses could have cast doubt on Officer
Hayward’s and Officer Randall Craig’s testimony that it was respondent who took off running,
with no mention of another person being with him, as well as Officer Hayward’s testimony
linking respondent to the gun. Moreover, respondent was able to cross-examine the officers
about their intentions and observations on the night of the incident. Thus, we conclude that
respondent was able to challenge petitioner’s case and present his defense theory, i.e., that he did
3
Respondent and his mother testified that they did not know Cornelius’s last name.
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not possess the gun, without the assistance of a fingerprint expert.4 Accordingly, respondent has
not shown that expert testimony was necessary in order to safely proceed to trial, and the trial
court did not abuse its discretion in denying his motion to appoint an expert.
Respondent next briefly asserts that the failure of both the police and petitioner to dust
the handgun for fingerprints violated his due process rights. It is well established in Michigan
that the police are not required to seek and find exculpatory evidence. People v Miller (After
Remand), 211 Mich App 30, 43; 535 NW2d 518 (1995), citing People v Stephens, 58 Mich App
701; 228 NW2d 527 (1975). In Miller, this Court found no violation of the defendant’s right to
due process where the police did not test his hands for gunpowder residue. Id. Similarly, in
Stephens, this Court rejected the defendant’s claim that the failure to dust a weapon for
fingerprints was the same as suppressing or withholding evidence to the detriment of the
defendant in violation of his due process rights. Stephens, 58 Mich App at 705-706. The
Stephens Court reasoned:
The crucial distinction is between failing to disclose evidence that has
been developed and failing to develop evidence in the first instance. When the
police fail to run any tests, the lack of evidence will tend to injure their case more
than defendant’s since the prosecution has the burden of proving guilt beyond a
reasonable doubt. Whether or not to run fingerprint tests is a legitimate police
investigative decision. Defendant’s rights were not violated. [Id.]
Here, neither petitioner nor the police suppressed evidence or failed to disclose evidence that had
already been developed. In fact, as discussed, there was no evidence regarding fingerprints on
the gun to disclose in the first instance. Further, the decision whether to test the handgun for
fingerprints was a legitimate police investigative determination. Accordingly, respondent’s right
to due process of law was not violated.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ David H. Sawyer
/s/ Jane M. Beckering
4
Respondent was also free to argue at trial that petitioner’s failure to produce evidence of his
fingerprints on the gun further weakened the case against him, although it does not appear that he
did so.
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