            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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  August 6, 2019
              Plaintiff-Appellee,

v                                                                 No. 323741
                                                                  Wayne Circuit Court
JOHNNY RAY KENNEDY,                                               LC No. 14-001748-FC

              Defendant-Appellant.


                                         ON REMAND

Before: MURRAY, C.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

        This case is once again before us following a remand by our Supreme Court which
instructs this Court to re-examine defendant’s claim of error concerning his request for a DNA
expert by applying the due process analysis set forth in Ake v Oklahoma, 470 US 68; 105 S Ct
1087; 84 L Ed 2d 53 (1985), utilizing the “reasonable probability” standard announced in Moore
v Kemp, 809 F2d 702 (CA 11, 1987). People v Kennedy, 502 Mich 206, 210; 917 NW2d 355
(2018) (Kennedy II). We affirm.

                           I. FACTS & PROCEDURAL HISTORY

        On November 17, 1993, a dead body was discovered in the basement of an abandoned
office building in Detroit. The body was identified as Tanya Harris, and the medical examiner
determined that she died by strangulation. After an investigation, the police had no leads as to
who murdered her. In 2011, while “working on cold cases,” the Detroit Police Department sent
a vaginal and rectal swab taken from Harris to the Michigan State Police Crime Lab for DNA
testing. After testing, it was determined that the swabs contained DNA from Harris and
defendant. As a result, defendant was charged with open murder for the death of Harris, and
following a jury trial, he was convicted of first-degree murder and sentenced to life
imprisonment.

        Defendant appealed as of right to this Court, raising several claims of error. Of
significance here, defendant argued that the trial court abused its discretion by denying


                                              -1-
defendant’s motion to appoint a DNA expert, Brian Zubel, to assist the defense in its preparation
for trial.1 The majority in this Court rejected that claim of error, in part, relying on the now-
overruled holding in People v Tanner, 469 Mich 437; 671 NW2d 728 (2003), and affirmed
defendant’s conviction and sentence. People v Kennedy, unpublished per curiam opinion of the
Court of Appeals, issued July 26, 2016 (Docket No. 323741) (Kennedy I). Defendant sought
leave to appeal, and the Supreme Court, after hearing oral arguments on defendant’s application,
issued an opinion overruling People v Jacobsen, 448 Mich 639, 641; 532 NW2d 838 (1995), and
Tanner, 469 Mich 437, “to the extent that they h[e]ld or suggest[ed]” that an indigent
defendant’s request for the appointment of an expert at state expense is governed by MCL
775.15. Kennedy II, 502 Mich 206. The Supreme Court vacated Kennedy I and remanded the
instant case to this Court with these instructions:

       . . . we REMAND to the Court of Appeals for application of the Ake due process
       analysis and, in particular, consideration of whether defendant made a sufficient
       showing 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. We leave to the Court of Appeals on remand all
       remaining issues, which shall be resolved consistently with this opinion.
       [Kennedy II, 502 Mich at 228 n 53.]

        On remand in this Court, the parties filed a stipulated motion to remand to the trial court
to expand the appellate record. Specifically, the parties agreed that “[a]bout a week before oral
argument” in the Supreme Court, the parties’ attorneys each spoke with the defendant’s trial
attorney, who informed them that after the trial court denied his request to appoint the requested
DNA expert, Zubel, counsel nevertheless hired Zubel with his own funds, although he “claim[ed]
that he could not afford to retain [Zubel] for all of the assistance sought.” The parties sought
remand to the trial court to expand the record with regard to “all of the relevant facts and details”
concerning counsel’s consultation with Zubel. This Court granted the requested relief,
remanding to the trial court and retaining jurisdiction. People v Kennedy, unpublished order of
the Court of Appeals, entered August 8, 2018 (Docket No. 323741).2

        On remand, the trial court held an evidentiary hearing. Defendant’s trial counsel
explained that after the trial court denied his motion to retain Zubel at state expense, counsel
nevertheless retained Zubel at his own expense because counsel felt that, without Zubel’s
assistance, he would have been unable to competently represent defendant at trial. Even so,
counsel testified that because he knew that he would be personally responsible for paying



1
  Because Zubel is now deceased, he was unavailable to participate in the remand proceedings
on February 8, 2019.
2
   In Kennedy II, 502 Mich at 211-212 n 4, the Supreme Court held that on remand in this Court,
the parties were permitted to “argue the effect of this stipulation on defendant’s claim that the
trial court’s denial of his motion for the appointment of an expert violated his constitutional right
to present a defense.”


                                                -2-
Zubel’s fees, counsel limited his consultations with Zubel, and counsel would have consulted the
expert further but for the associated expense.

        Specifically, counsel opined that, had he been able to consult Zubel further, counsel
“perhaps could have done a better cross examination” of one of the prosecution’s expert
witnesses. Counsel also admitted that he had personally “thought that the DNA was compelling
that they [i.e., the defendant and the victim] had sex” before her death, and Zubel had reached
the same conclusion. Moreover, counsel acknowledged that after initially reviewing the DNA
evidence against defendant, that Zubel told counsel, “looks like they’ve got your guy[.]” which
counsel understood as meaning, “that they had a prima facie hit, as they called it, that was
sufficient for the prosecutor to move forward.” Zubel opined that based on the information
available to him before trial, he could not specifically identify admissible evidence that would
show any problems with the DNA testing in this case.

                II. ISSUE PRESERVATION AND STANDARD OF REVIEW

        At trial, defendant cited the Sixth Amendment in support of his motion to appoint Zubel
at state expense. However, he did not cite any of the due process clauses of either our state or
federal constitutions, nor did he argue that the trial court’s failure to grant his motion would
deprive him of due process as he now contends in his supplemental brief on remand. It is well-
settled that “an objection based on one ground at trial is insufficient to preserve an appellate
attack based on a different ground,” People v Bulmer, 256 Mich App 33, 35; 662 NW2d 117
(2003), and ergo “[c]onstitutional challenges must be raised in the trial court; otherwise, those
challenges are ‘not properly preserved for appellate review,’ ” People v Green, 322 Mich App
676, 681; 913 NW2d 385 (2018), quoting People v Hogan, 225 Mich App 431, 438; 571 NW2d
737 (1997). Thus, defendant’s constitutional challenge is unpreserved.

       Unpreserved claims of constitutional error are reviewed under the plain-error test, People
v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999) 3 which “has four elements”:

       1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) . . .
       the plain error affected substantial rights . . . [, and 4) ] once a defendant satisfies
       these three requirements, an appellate court must exercise its discretion in
       deciding whether to reverse. Reversal is warranted only when the plain, forfeited
       error resulted in the conviction of an actually innocent defendant or when an error
       seriously affected the fairness, integrity or public reputation of judicial
       proceedings independent of the defendant’s innocence. [People v Randolph, 502
       Mich 1, 10; 917 NW2d 249 (2018), quoting Carines, 460 Mich at 763 (alterations
       and ellipses in Randolph).]



3
  Federal courts have also recognized the propriety of applying plain-error review to unpreserved
claims of error such as this one. See, e.g., United States v Perez, 503 Fed Appx 688, 691 (CA
11, 2013) (“[W]e have never expressly applied Ake’s rule outside of the context of psychiatric
experts. Thus, the district court did not plainly err.”) (citation omitted).


                                                 -3-
“A ‘clear or obvious’ error under the second prong is one that is not subject to reasonable
dispute.” Randolph, 502 Mich at 10. The third element “generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Carines, 460
Mich at 763. “It is the defendant rather than the Government who bears the burden of persuasion
with respect to prejudice.” Id. (quotation marks and citation omitted).

                                         III. ANALYSIS

       Although defendant’s motion is sufficient to satisfy the Moore “reasonable probability”
standard, defendant is not entitled to appellate relief under the plain-error test.

        “ ‘[A] defendant [seeking appointment of an expert under Ake] 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.’ ” Kennedy II,
502 Mich at 228, quoting Moore, 809 F2d at 712. “ ‘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.’ ” Id. at
225, quoting Moore, 809 F2d at 712. “ ‘At the very least, he must inform the trial court about
the nature of the crime and the evidence linking him to the crime.’ ” Id., quoting Moore, 809
F2d at 712. “[T]he defendant’s showing must also include a specific description of the expert or
experts desired” and “should inform the court why the particular expert is necessary.” Id.,
quoting Moore, 809 F2d at 712.

       In pertinent part, the motion to appoint Zubel stated:

               1. That . . . the defendant is charged with murder in the first degree.

              2. That the decedent victim is one Tanya Harris, whose body was found in
       an abandoned building in November 1993.

             3. That the only evidence against the defendant, who is an inmate in the
       Michigan Department of Corrections, is a test of DNA material performed by one
       Amy Altesleben, a forensic scientist employed by the Michigan State Police.

               4. That, a prosecution based largely or entirely upon the presentation of
       identification evidence based upon DNA poses an especially technical and
       complex range of issues for defense counsel, as the essence of the prosecutions’
       case is the presentation of a report from a qualified technician or scientist. That
       report is conclusory and counsel who would render constitutionally effective
       assistance to his client and zealously confront the witnesses and evidence called in
       the prosecution’s case in chief, must be educated and schooled to no small extent
       in the science and accepted protocols of DNA extraction, preservation, testing, as
       well as dangers of contamination and the steps and measures taken to document a
       particular test, and to maintain the proper calibration of testing equipment, all just
       to some of the areas in which counsel must be prepared to cross-examine.



                                                -4-
             5. That counsel seeks an order of the court to appoint as an expert in what
       may be called “DNA litigation” one Brian Zubel of Fenton, Michigan.

              6. Mr. Zubel is an attorney licensed to practice in Michigan, who has been
       a member of the American Academy of Forensic Sciences since 2008. He has
       presented DNA evidence as a prosecuting attorney in Oakland, Berrien, and
       Genesee counties and has litigated in similar fashion as an assistant attorney
       general of the state of Michigan in the case of People v Unger, 278 Mich App
       210 (2008).

              7. That Mr. Zubel’s Curriculum Vitae is attached . . . , as well as a
       scholarly article from the September 2013 issue of the Criminal Law Section
       newsletter.

              8. That in Wayne County Circuit Court, Mr. Zubel has been recognized as
       an expert by the Honorable Annette Jurkewicz Berry and by the Honorable Vonda
       Evans.

              9. That, without the active assistance of a learned expert, counsel will not
       be able to confront the witnesses and to shed light on any questionable issues that
       may have occurred during the lengthy storage and testing procedures.

Notably, when counsel filed the above motion, he had yet to receive requested discovery
materials from the prosecution concerning the DNA “collection/processing/analysis in this case,”
which counsel had specifically requested at Zubel’s recommendation.

        Defendant’s motion was sufficient to satisfy the Moore reasonable probability standard in
light of the limited discovery concerning the DNA evidence that had been provided to defense
counsel at the time the motion was filed. See Moore, 809 F2d at 712 n 10 (“The difficulty of the
defendant’s task will vary depending on the scope of the jurisdiction’s discovery rules.”).
Among other things, the motion informed the trial court of the nature of the prosecution’s case,
the identity and background of the desired expert, how his appointment would be useful to the
defense, and why counsel believed that it was necessary to ensure a fair trial. Moreover, given
the highly technical, scientific nature of DNA evidence, that counsel indicated he would be
unable to understand that evidence or to meaningfully cross-examine the prosecution’s experts
concerning it without expert assistance, and that DNA evidence was the sole foundation of the
charges against defendant, it seems that defendant demonstrated that there was “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.” See Kennedy II, 502 Mich at 228,
quoting Moore, 809 F2d at 712.

       Nonetheless, defendant is not entitled to appellate relief under the plain-error test.
Specifically, defendant fails to carry his burden of demonstrating that the error in question was
outcome determinative. Defendant’s trial counsel ultimately did retain Zubel for a fairly
extensive consultation concerning the DNA evidence. Zubel spent more than 10 hours on the
case and prepared a written report for counsel. Although counsel asserted that he would have
consulted Zubel further had he not been personally responsible for paying the resultant fees, he

                                               -5-
was unable to specify what, exactly, the defense would have gained through further consultation
with Zubel. Rather, counsel, and now the dissent, speculates that it was possible that further
consultation might have allowed for better cross-examination of one of the prosecution’s
witnesses. However, counsel also acknowledged that neither he nor Zubel were able to identify
any specific problems with the DNA testing that was performed in this case.4 In other words,
defendant has failed to establish that Zubel’s greater involvement in this case would have altered
the outcome in some way at trial in defendant’s favor. Therefore, defendant has not
demonstrated that he is entitled to relief under the Carines test.

                                       IV. CONCLUSION

       Affirmed.

                                                              /s/ Christopher M. Murray
                                                              /s/ Michael J. Riordan




4
  The dissent notes that it was revealed at the evidentiary hearing on remand that defendant was
not the only match to the DNA sample. During that hearing, defense counsel testified that there
were three possible DNA contributors to a sample taken from the under the fingernails of the
victim’s left hand. As defense counsel explained at the evidentiary hearing, this information was
discussed in Zubel’s report to defense counsel, and defense counsel cross-examined the
prosecution’s expert witness about it at trial. Thus, this information was known to defense
counsel before trial, the jury was presented with this evidence at trial, and it was contained in the
record on appeal. Therefore, this “revelation” of information does not influence our analysis of
defendant’s assertion of error under the plain-error standard of review.


                                                -6-
