            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 22, 2019
              Plaintiff-Appellee,

v                                                                   No. 332376
                                                                    Midland Circuit Court
JACK CHRIS BIERI,                                                   LC No. 15-006074-FC

              Defendant-Appellant.


                                         ON REMAND

Before: CAVANAGH, P.J., and METER and M. J. KELLY, JJ.

PER CURIAM.

        In our prior opinion in this case, we affirmed defendant’s convictions of two counts of
first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), and one count of second-
degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a). This case now returns to this
Court on remand from our Supreme Court for consideration of the trial court’s denial of
defendant’s pretrial motion for state funds to procure an independent DNA expert. Applying the
standard set forth in People v Kennedy, 502 Mich 206; 917 NW2d 355 (2018), we conclude that
the trial court did not err by denying defendant’s motion. Accordingly, we affirm defendant’s
convictions.

                                 I. PROCEDURAL HISTORY

       The basic facts underlying these proceedings were set forth in detail in our prior opinion:

              The complainant, JE, was 11 years old in December 2014. Defendant,
       who was in a relationship with the complainant’s mother at the time, had moved
       into their home in or around November 2014. On December 31, the
       complainant’s mother drank alcohol and defendant gave the complainant’s mother
       some type of medication, perhaps Paxil. JE was on prescription medication,
       including a sleep aid, which she took on December 31. JE went to bed around
       11:30 p.m. in her mother’s bedroom. The complainant’s mother took a shower
       sometime after that, and while she was in the shower, defendant called to her
       several times, asking whether she was “done yet.” When she got out of the
       shower but was still in the bathroom, the complainant’s mother heard defendant
       talking to JE, so she looked in the bedroom and saw defendant rubbing JE’s back
       and shoulders and asking her repeatedly, “Are you doing good? Are you all
       right? Doing good?”

               Later that evening, defendant left the living room, where he had been with
       the complainant’s mother. During his absence, the complainant’s mother needed
       to use the bathroom, and when she got to the bathroom she heard defendant in her
       bedroom again. The complainant’s mother testified that she “peeked” in the
       bedroom, where she again saw defendant rubbing JE’s back and shoulders and
       asking her whether she was all right. At some point after that, defendant
       suggested that the three of them watch a movie together in the bedroom. The
       complainant’s mother and defendant joined JE on the bed, with JE in between her
       mother and defendant. Defendant shared a blanket with JE while her mother had
       a separate blanket. The complainant’s mother began to fall asleep, but she
       remembered that at some point, JE left to take a shower, complaining that she felt
       “really dirty.”

               The next morning, JE told her mother that defendant had “had sex with
       her.” The complainant’s mother took JE to the hospital, where she was examined
       by a sexual assault nurse examiner (SANE) and treated for a genital laceration.
       According to the nurse, the laceration was probably caused by a forced
       penetration. The nurse also testified that JE told her that she had been sleeping
       when defendant “pulled down his pants, then he pulled down her pants on the bed
       and put his private parts in her private parts.” JE also told her that defendant had
       “licked my pee-pee,” fondled her “[i]n my pee-pee and my butt,” and “French
       kissed” her on the mouth, neck, and ear. According to the nurse, JE also stated
       that defendant “told her not to tell her mom and to keep it a secret.” [People v
       Bieri, unpublished per curiam opinion of the Court of Appeals, issued August 3,
       2017 (Docket No. 332376), p 1-2.]

        As noted already, the jury found defendant guilty of two counts of CSC-I and one count
of CSC-II. The trial court sentenced defendant to 450 months to 70 years in prison for both
counts of CSC-I and 172 months to 70 years in prison for the CSC-II conviction. Defendant
appealed his convictions to this Court, arguing that he was unconstitutionally deprived of the
effective assistance of counsel and that the trial court erred by denying his request for state funds
to pay for an independent DNA expert. We denied both claims.

        After we released our prior opinion, our Supreme Court decided Kennedy, 502 Mich 206,
which clarified the standard that the trial court should apply when analyzing a criminal
defendant’s request for state funding to procure expert assistance with his or her defense.
Defendant applied for leave to appeal our prior opinion to the Supreme Court. In lieu of granting
leave, our Supreme Court vacated that part of our “judgment addressing the denial of the
defendant’s pretrial request for funds to pay for an independent DNA expert” and remanded the
case to this Court for reconsideration of that issue in light of Kennedy. People v Bieri, ___ Mich
___, ___; 919 NW2d 270, 270-271 (2018). Our Supreme Court denied leave to appeal in “all

                                                -2-
other respects.” Id. at ___; 919 NW2d at 271. Hence, the only issue now before this Court is
whether the trial court erred by denying defendant’s request for state funds to pay for an
independent DNA expert.

                                     II. PEOPLE V KENNEDY

         Before our Supreme Court’s holding in Kennedy, issues regarding the funding of experts
at state expense were decided under MCL 775.15.1 Kennedy, 502 Mich at 220. See also People
v Jacobsen, 448 Mich 639, 641; 532 NW2d 838 (1995); People v Tanner, 469 Mich 437, 442-
443; 671 NW2d 728 (2003). MCL 775.15, however, “by its express terms, does not provide for
the appointment of expert witnesses. It merely provides a means for subpoenaing certain
witnesses and for paying their cost of attending trial.” Kennedy, 502 Mich at 222. Rather than
invoking the court’s subpoena power, parties usually invite an expert witness to participate in the
proceedings and pay the expert a fee for his or her assistance. See id. at 222-223. Thus,
recognizing the distinction between compelling a lay witness to testify and engaging an expert,
our Supreme Court concluded in Kennedy, 502 Mich at 225, that “the Legislature did not intend
MCL 775.15 to encompass requests by an indigent criminal defendant for the appointment of an
expert at government expense.” Accordingly, our Supreme Court overruled its prior decisions to
the extent that they applied MCL 775.15 to a defendant’s request for state funds to procure an
expert. Id.

       Following Kennedy, an indigent defendant’s request for state funds to pay for an expert is
analyzed under the due-process framework set forth in Ake v Oklahoma, 470 US 68; 105 S Ct
1087; 84 L Ed 2d 53 (1985). Kennedy, 502 Mich at 225. In Ake, 470 US at 77, the federal
Supreme Court recognized that “fundamental fairness entitles indigent defendants to an adequate
opportunity to present their claims fairly within the adversarial system.” (Internal citation and


1
    MCL 775.15 provides:
         If any person accused of any crime or misdemeanor, and about to be tried
         therefore in any court of record in this state, shall make it appear to the
         satisfaction of the judge presiding over the court wherein such trial is to be had,
         by his own oath, or otherwise, that there is a material witness in his favor within
         the jurisdiction of the court, without whose testimony he cannot safely proceed to
         a trial, giving the name and place of residence of such witness, and that such
         accused person is poor and has not and cannot obtain the means to procure the
         attendance of such witness at the place of trial, the judge in his discretion may, at
         a time when the prosecuting officer of the county is present, make an order that a
         subpoena be issued from such court for such witness in his favor, and that it be
         served by the proper officer of the court. And it shall be the duty of such officer
         to serve such subpoena, and of the witness or witnesses named therein to attend
         the trial, and the officer serving such subpoena shall be paid therefore, and the
         witness therein named shall be paid for attending such trial, in the same manner as
         if such witness or witnesses had been subpoenaed in behalf of the people. [See
         also Kennedy, 502 Mich at 220-221.]


                                                  -3-
quotation marks omitted). See also Kennedy, 502 Mich at 214. Accordingly, the Ake court, 470
US at 77, held that the Fourteenth Amendment requires the state to provide the “basic tools of an
adequate defense or appeal . . . to those defendants who cannot afford to pay for them.” (Internal
citation and quotation marks omitted). See also Kennedy, 502 Mich at 214.

       Thus, when faced with an indigent defendant’s request for government funding, due
process requires the trial court to weigh the following factors:

       (1) “the private interest that will be affected by the action of the State,” (2) “the
       governmental interest that will be affected if the safeguard is to be provided,” and
       (3) “the probable value of the additional or substitute procedural safeguards that
       are sought, and the risk of an erroneous deprivation of the affected interest if
       those safeguards are not provided.” [Kennedy, 502 Mich at 214-215, quoting Ake,
       470 US at 77. See also Matthews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L
       Ed 2d 18 (1976).]

Regarding the first two factors, the interests of the state and the defendant will generally
converge in a criminal case which places the defendant’s liberty at risk—the accuracy of the
proceedings being the chief concern. Id. at 215-216. Therefore, the third due-process factor—
the probable value of the requested safeguard—will usually determine whether the defendant is
entitled to state fees to pay for an expert. See id. at 216-220.

        In addressing this third due-process factor, the standard the trial court should employ is
one of reasonable probability. Id. at 226-228. Under this standard:

       [A] defendant must demonstrate something more than a mere possibility of
       assistance from a requested expert; due process does not require the government
       automatically to provide indigent defendants with expert assistance upon demand.
       Rather . . . a defendant must show the trial court that there exists a reasonable
       probability both that an expert would be of assistance to the defense and that
       denial of expert assistance would result in a fundamentally unfair trial. Thus, if a
       defendant wants an expert to assist his attorney in confronting the prosecution’s
       proof—by preparing counsel to cross-examine the prosecution’s experts or by
       providing rebuttal testimony—he must inform the court of the nature of the
       prosecution’s case and how the requested expert would be useful. At the very
       least, he must inform the trial court about the nature of the crime and the evidence
       linking him to the crime. . . . In each instance, the defendant’s showing must also
       include a specific description of the expert or experts desired; without this basic
       information, the court would be unable to grant the defendant’s motion, because
       the court would not know what type of expert was needed. [Id. at 227, quoting
       Moore v Kemp, 809 F2d 702, 712 (CA 11, 1987) (brackets and first ellipsis in
       original).

The defendant is required to demonstrate “why the particular expert is necessary.” Id., quoting
Moore, 809 F2d at 712. While the defendant is not required to provide a detailed analysis of the
specific scientific evidence the expert may provide, the defendant is obligated to “provide the


                                                -4-
court with as much information as possible concerning the usefulness of the requested expert to
the defense’s case.” Id., quoting Moore, 809 F2d at 712.

                                         III. ANALYSIS

        We review de novo, as an issue of constitutional law implicating a defendant’s due-
process rights, the trial court’s grant or denial of a defendant’s request for state funds to procure
an expert. People v Cain, 238 Mich App 95, 108; 605 NW2d 28 (1999). We must consider
whether, based upon the defendant’s explanation as to why he needed the expert, the trial court
should have concluded that state funds were necessary to afford the defendant a fair opportunity
to confront the prosecution’s evidence and present his defense. See Moore, 809 F2d at 710.

       Here, defendant was notified before trial of the DNA evidence against him. The
prosecution’s witness list included several forensic scientists and DNA analysts. At a pretrial
hearing, the prosecution informed the trial court that DNA analysis was performed on two swabs
from the victim. A DNA-analysis report was provided to defendant. Two DNA profiles were
found on an oral swab of the victim and defendant’s DNA matched one of these profiles.
Additionally, a partial DNA profile from a swab of the victim’s underwear matched defendant’s
DNA within a probability of one in 2,457.

         Defendant moved the trial court in pro per for state funds to hire an independent forensics
laboratory to retest the DNA evidence. Defendant argued that the evidence changed hands on
three or four occasions and that he was concerned that the evidence had been tampered with.
The trial court denied the request. Because defendant did not show a reasonable probability that
the expert was necessary to assist the defense or that the absence of the expert would render the
trial fundamentally unfair, we affirm the trial court’s ruling.

        It is important to note that the only argument defendant raised before the trial court was
that the evidence could have been tampered with during one of the exchanges before testing.
Defendant claimed that further DNA testing was necessary to prove or disprove this argument.
Yet, as the prosecution points out, if the DNA evidence was contaminated before the original
testing, subsequent testing would be unlikely to produce a different result. Practically,
defendant’s tampering argument posits that someone in the chain of custody placed something in
the sample that yielded the positive result. Defendant, however, did not argue that testing exists
that can differentiate between DNA present at the time of the offense and DNA subsequently
added to the sample. Thus, defendant failed to show that further testing of the sample would be
useful to his tampering argument.

       Moreover, the record shows that an expert was not necessary for defendant to present this
argument. The prosecution informed defendant before trial that its witnesses would testify
regarding the DNA samples’ chain of custody. Defendant did not argue that his counsel was
unprepared to cross examine these witnesses on their handling of the evidence or that defense
counsel was otherwise unprepared to challenge the admission of the DNA evidence.
Additionally, several forensic experts were listed on the prosecution’s witness list and were
available for defendant to discover. Defendant did not argue that these experts were unequipped
to address the potential of contamination in the samples or to address whether evidence of


                                                -5-
contamination was revealed by the DNA analysis. Similarly, defendant did not argue that his
counsel was ill prepared to cross examine these witnesses on the subject.

       Accordingly, defendant failed to show the trial court that an expert would provide him
with anything that he could not already receive through the prosecution’s witnesses. See
Stephens v Kemp, 846 F2d 642, 647 (CA 11, 1988) (concluding that the reviewing court may
inquire whether the information beneficial to the defendant was available through the state’s
experts). Therefore, defendant cannot show that a state-funded expert was necessary to afford
him a fair opportunity to confront the prosecution’s evidence and present his defense. Moore,
809 F2d at 710.

          In his brief on appeal, defendant presents additional reasons why an expert was
necessary to his defense. Defendant argues that he sought an expert to counsel his attorney
regarding the accuracy of the techniques employed by the DNA analysts and the likelihood of
transferring DNA through means other that sexual assault. Defendant, however, did not raise
these additional arguments before the trial court. Thus, because we must evaluate the “trial
judge’s action at the time he took it,” these arguments are immaterial to our analysis. Moore,
809 F2d at 710. See also Conklin v Schofield, 366 F3d 1191, 1208 (CA 11, 2004) (“In
determining the reasonableness of the trial court’s refusal to provide independent expert
assistance, we consider only the facts available to the trial judge when he made a ruling on the
particular motion.”).

        Finally, defendant argues that defense counsel was ineffective for failing to assist
defendant in preparing his motion for a state-funded expert. As noted previously, defense
counsel did not participate in defendant’s motion for a state-funded expert. In our prior opinion,
we rejected this claim of ineffective assistance. Bieri, unpub op at 6-7. We noted that defendant
had not provided any evidence suggesting that the DNA testing in this case was not scientifically
reliable and that the prosecution’s case did not rest solely upon the DNA evidence. Id. at 7.
Thus, we concluded that counsel was not ineffective for choosing not to pursue a state-funded
independent DNA expert. Id.

        Our Supreme Court’s remand order limits our consideration to that part of our “judgment
addressing the denial of the defendant’s pretrial request for funds to pay for an independent DNA
expert” in light of its decision in Kennedy. Bieri, ___ Mich at ___; 919 NW2d at 270-271. As
explained earlier, the Kennedy court clarified the standard by which a trial court analyzes a
defendant’s request for state funding to procure an expert. Kennedy, however, does not address
an attorney’s choice not to seek state funding. Similarly, Kennedy does not address any claim of
ineffective assistance. Thus, Kennedy does not call into question our prior conclusion that
defense counsel was not ineffective for failing to move for a state-funded expert. Thus,
defendant’s ineffective-assistance argument is outside the scope of our Supreme Court’s remand
order and will not be addressed by this Court. See People v Kincade (On Remand), 206 Mich
App 477, 481; 522 NW2d 880 (1994).




                                               -6-
Affirmed.



                  /s/ Mark J. Cavanagh
                  /s/ Patrick M. Meter
                  /s/ Michael J. Kelly




            -7-
