                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      October 23, 2018
                 Plaintiff-Appellee,

v                                                                     No. 337346
                                                                      Wayne Circuit Court
TORIUS INGE,                                                          LC No. 16-008119-01-FC

                 Defendant-Appellant.


Before: SHAPIRO, P.J., and SERVITTO and GADOLA, JJ.

PER CURIAM.

        Defendant appeals his jury trial conviction of second-degree murder, MCL 750.317, for
which he was sentenced to 450 to 800 months’ imprisonment.1 Defendant contends that the
admission of DNA evidence at trial violated his rights under the Confrontation Clause of the
Sixth Amendment, and that his counsel was ineffective for failing to object to the evidence. We
conclude that the admission of the DNA evidence against defendant constituted plain error, but
that this error was harmless given that defendant testified and admitted that it was the victim’s
blood on his clothing. Therefore, we affirm.

                                   I. FACTUAL BACKGROUND

        While responding to a dwelling fire, firefighters found the body of Grace Hughes in the
burning house. The medical examiner determined that Hughes’s cause of death was the 67 stab
wounds observed on her body. Defendant became a suspect after police discovered surveillance
video recordings placing him near the scene of the crime around the time that the fire was
started. When defendant was found and arrested, officers observed blood on defendant’s
clothing and scratches on his face.

       Defendant’s clothing was sent to the Michigan State Police DNA Laboratory for testing,
and three laboratory reports were generated and admitted into evidence at trial. The first report,
authored by Rebecca Skaglin, tested several items for the presence of blood. Defendant’s jacket
and sweatpants tested positive for blood, but Skaglin did not perform any testing intended to


1
    The jury acquitted defendant of third-degree arson, MCL 750.74.



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identify whose blood was on these items. The second report, authored by Ann Hunt, involved
the extraction of DNA from these items, as well as from the samples obtained from the victim
and defendant, and the creation of DNA profiles as to each sample in graph form. With respect
to defendant’s sweatpants, Hunt detected a DNA profile “consistent with a female contributor”
that would require further analysis. Hunt also determined that the DNA profiles extracted from
defendant’s jacket indicated “a mixture of multiple contributors” that would require further
analysis. Michelle Schmitt authored the final report, which involved taking the DNA profiles
determined and recorded by Hunt and inputting them into a computer program that compared
them against the victim’s and defendant’s DNA profiles. Schmitt concluded that the bloodstains
on defendant’s clothing contained the victim’s DNA.

        At trial, Schmitt was the only forensic analyst who testified. Defendant testified in his
defense and admitted that the blood on his clothing belonged to the victim. According to
defendant, a few days before the victim’s death she cut her hand and some of her blood made it
onto his clothing while they were “fooling around.”

                                          II. ANALYSIS

        Defendant argues on appeal that admission of the laboratory reports without testimony
from Skaglin and Hunt violated his confrontation rights, and that Schmitt’s testimony was
rendered inadmissible as a result. We agree with defendant that the trial court improperly
admitted Hunt’s report and Schmitt’s expert opinion, but conclude that the error was harmless in
this case.

        Because defendant did not object at any point to the admission of the reports at issue or
argue that the reports violated his confrontation rights, this issue is unpreserved. People v Coy,
258 Mich App 1, 12; 669 NW2d 831 (2003). We review unpreserved constitutional errors under
a plain-error analysis. Id. Under this standard, defendant must show (1) an error occurred, (2)
the error was clear and obvious, and (3) the error affected defendant’s substantial rights. People
v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Generally, an error affects a defendant’s
substantial rights when it prejudices him, or when it “affect[s] the outcome of the lower court
proceedings.” Id.

        “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” US Const, Am VI; see also Const 1963, Art 1 § 20. “The
Confrontation Clause of the Sixth Amendment bars the admission of testimonial hearsay unless
the declarant is unavailable and the defendant has had a prior opportunity for cross-
examination.” People v Payne, 285 Mich App 181, 197; 774 NW2d 714 (2009). Hearsay is “a
statement, other than the one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” MRE 801(c). The admission of a
non-testifying expert’s report offends a defendant’s confrontation rights when the report is used
as substantive evidence against the defendant. People v Fackelman, 489 Mich 515, 528; 802
NW2d 552 (2011). More specifically, this Court has concluded that laboratory reports
containing the results of DNA testing prepared by non-testifying analysts are testimonial hearsay
subject to the Confrontation Clause of the Sixth Amendment. Payne, 285 Mich App at 198-199.




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       To begin, we conclude that the prosecution did not use Skaglin’s report to prove the truth
of the matter asserted therein, i.e., that blood was found on defendant’s clothing, but instead to
provide background information to explain why Hunt was then tasked with analyzing the items
for DNA. Indeed, multiple witnesses testified to observing blood on defendant.

         However, unlike Skaglin’s report, Hunt’s report was central to the determination that
defendant’s clothing contained the victim’s DNA. Hunt extracted DNA from known samples
from defendant and the victim and determined their DNA profiles, which she set forth in graph
form. Hunt also conducted testing on the evidentiary items and determined that the blood on
defendant’s sweatpants had a DNA profile indicating that it was from a female but required
further analysis. She also determined that defendant’s jacket contained DNA from numerous
individuals that required further analysis. These DNA profiles were set forth in graph form as
well. Schmitt then took the graphs prepared by Hunt and used a computer program that
statistically compares DNA profiles. Schmitt reported the program’s finding that the blood on
defendant’s pants and jacket matched the victim’s DNA. This determination, however, rested on
Hunt’s isolation of the DNA and her findings as to the DNA profile for each donor. We thus
conclude that Hunt’s report constituted substantive evidence used for the truth of the matter
asserted within. Defendant did not have the opportunity to cross-examine Hunt, and the
prosecutor did not prove her unavailability to testify. For those reasons, it is clear that the report
prepared by Hill was testimonial hearsay and its admission into evidence violated defendant’s
constitutional rights under the Confrontation Clause.

       Further, because Hunt’s extraction of the DNA profiles was a necessary basis for
Schmitt’s opinion, that opinion itself was inadmissible in the absence of Hunt’s report being
properly admitted into evidence. See MRE 703 (“The facts or data in the particular case upon
which an expert bases an opinion or inference shall be in evidence.”); see also People v Dendel
(On Second Remand), 289 Mich App 445, 471-473; 797 NW2d 645 (2010) (holding that expert
testimony based on a report prepared by non-testifying forensic analysts violated defendant’s
confrontation rights).2 Thus, Schmitt’s conclusion that defendant’s clothing contained the
victim’s DNA was erroneously presented to the jury.



2
  Since Dendel, the United States Supreme Court decided Williams v Illinois, 567 US 50; 132 S
Ct 2221; 183 L Ed 2d 89 (2012), holding that under the circumstances in that case, it was not a
violation of the Confrontation Clause to allow an expert to rely on laboratory results performed
by another technician. That plurality decision rested on the Court’s determination that the
testifying expert’s reference to a DNA profile obtained from an outside laboratory was not
presented for the truth of the matter asserted therein and that the outside lab’s report was not
testimonial because it was produced before the defendant was identified as a suspect. Id. at 57-
58. This case is distinguishable on both grounds. First, in Williams—a bench trial—the
testifying expert merely confirmed that the outside lab found a male DNA profile in the tested
material; the outside report was not admitted into evidence. Id. at 70-72. Here, Hunt’s report
was admitted into evidence and showed that she was testing the items for the presence of
defendant’s and the victim’s DNA. Schmitt then testified at length about Hunt’s procedure and
results. For the reasons discussed, we conclude that Hunt’s report and Schmitt’s testimony



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         We nevertheless affirm defendant’s conviction because we conclude that this error was
harmless in light of defendant’s testimony in which he admitted that the victim’s blood was on
his clothing. Defendant does not argue that he would not have testified but for the DNA
evidence presented against him. Indeed, there are several other reasons why defendant may have
chosen to testify. Defendant’s testimony gave context to his relationship with the victim, and he
testified to his whereabouts at the time the victim as killed. Defendant’s testimony also
addressed the witnesses who observed blood on defendant around the time of offense and
provided the jury an explanation for a scratch on his face that witnesses observed and testified to.
In sum, we are not convinced that the absence of the laboratory DNA evidence would have led to
a different result in this case. Accordingly, defendant has not established that he is entitled to
relief under plain-error review.

        For the same reason, defendant does not establish that he was denied effective assistance
of counsel. “To establish a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the defense.” People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611
(2003). To show prejudice, “the defendant must show the existence of a reasonable probability
that, but for counsel’s error, the result of the proceeding would have been different.” People v
Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). As discussed, defendant’s claim of
ineffective assistance of counsel fails because he cannot show that he was prejudiced by defense
counsel’s failure to object to the admission of the DNA evidence.

       Affirmed.



                                                             /s/ Douglas B. Shapiro
                                                             /s/ Deborah A. Servitto
                                                             /s/ Michael F. Gadola




thereof constituted out-of-court statements used to prove the truth asserted therein, i.e., hearsay.
Second, Hunt’s report was testimonial because her work was performed for the purpose of
obtaining evidence against defendant. Further, the relevant state rule of evidence in Williams,
like Federal Rule of Evidence 703, allowed an expert to testify based upon material that had not
been admitted into evidence. Id. at 69. In significant contrast, MRE 703 requires that “the facts
and data in the particular case upon which an expert bases and opinion or inference shall be in
evidence.”




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