People v. Brown

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TROY ANTONIO BROWN, Defendant-Appellant.

No. 365451

Court of Appeals of Michigan

December 21, 2023

UNPUBLISHED

Macomb Circuit Court LC No. 2015-002617-FC

Before: JANSEN, P.J., and CAVANAGH and GADOLA, JJ.

PER CURIAM.

Defendant appeals by right his jury conviction of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (victim under 13 years old), for which he was sentenced to serve a prison term of 300 to 720 months (25 to 60 years). We affirm.

I. BACKGROUND

Defendant's conviction was the result of a report by the complainant that defendant had sexually penetrated her in April 2015, when she was 12 years old and in defendant's care. The complainant's guardian, her brother, dropped her off at her usual babysitter's home when he went to work for the evening. The babysitter allowed her children and the complainant to visit defendant's nearby home to play with his children. While the other children were in a playroom and defendant and the complainant were alone, he directed her to his bedroom. He brandished a belt and instructed her to disrobe. The complainant testified that she initially refused, but eventually complied out of fear. The complainant continued that defendant instructed her to lie on the floor then spread her legs and penetrated her digitally, then, after forcing her legs open again and placing a pillow over her face, penetrated her with his penis. Afterwards, the complainant felt "nasty" so she washed herself with soap and then later took a shower at the babysitter's home. The guardian testified that the complainant was upset when he picked her up from the babysitter the following morning, and that she telephoned asking to be picked up from school later that day. When the guardian picked her up, the complainant tearfully disclosed that defendant had raped her. The complainant was taken to the police station and then to a hospital where she underwent medical and forensic examinations. Eventually, as stated above, defendant was charged and convicted of CSC-I.

On appeal, defendant argues that (1) he was denied a fair trial by the admission of DNA evidence which did not implicate him; (2) sentencing variables were incorrectly scored; and (3) his trial counsel provided ineffective assistance by not objecting to the removal of the only African-American member of the jury pool, and by not negotiating a favorable plea deal. We disagree.

II. SCIENTIFIC EVIDENCE

This Court reviews a trial court's evidentiary decisions for an abuse of discretion. People v Martzke, 251 Mich.App. 282, 286; 651 N.W.2d 490 (2002). However, unpreserved claims of evidentiary error are reviewed for plain error affecting substantial rights. People v Coy, 243 Mich.App. 283, 287; 620 N.W.2d 888 (2000). Reversal is then warranted only if plain error resulted in the conviction of an innocent defendant, or if "the error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).

An unpreserved claim of prosecutorial error is also reviewed for plain error affecting substantial rights. Id. at 761-762. Comporting with this standard is this Court's pronouncement in People v Unger, 278 Mich.App. 210, 234-235; 749 N.W.2d 272 (2008), that "[r]eview of alleged prosecutorial misconduct is precluded unless the defendant timely and specifically objects, except when an objection could not have cured the error, or failure to review the issue would result in a miscarriage of justice." (Quotation marks and citation omitted.).

Defendant challenges the admission of testimony from six forensic scientists with the State Police regarding the DNA evidence in this case. Billie Hooker testified that a vaginal swab from the complainant excluded defendant as a DNA donor, and that swabs from each of the complainant's hands contained DNA from an unidentifiable minor donor. Andrea Young testified that the samples from the complainant's hands had DNA from three males but that the test results were otherwise inconclusive. Dr. Hafner testified that four samples from the complainant did not contain male DNA, and three had insufficient levels of male DNA to determine a match.

Melinda Jackson testified that she examined swabs of defendant's genitals and found no seminal fluid on the penis swab. Jennifer Dillon testified that swabs from defendant's penis and hands each contained a mixture of DNA from defendant plus an individual whose sample was insufficient to make any comparison. Kirk Deleeuw's testing excluded the complainant as a contributor to any sample. Thus, no expert testified that forensic evidence linked defendant to the crime.

The prosecutor also asked the experts about the limits of their findings. Hooker testified that it was possible for a person to have sexual relations with another and not leave any DNA, that the quality of a DNA sample erodes over time, and that washing would degrade a DNA sample. Jackson, Young, Dillon, and Deleeuw each testified that washing might interfere with what could be collected. Dr. Hafner testified that fluid was detected in samples taken from the complainant, but that there were multiple possible origins for it.

A. RELEVANCE

Defendant argues that evidence of negative and inconclusive results was irrelevant because it is not probative of anything when unaccompanied by "statistical evidence or probability assessment bearing on whether [defendant] was in physical contact with the complainant."

"Generally, all relevant evidence is admissible at trial." People v Aldrich, 246 Mich.App. 101, 114; 631 N.W.2d 67 (2001). See also MRE 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. "Under this broad definition," evidence that is useful in shedding light on any material point is admissible. Aldrich, 246 Mich.App. at 114. To be material, evidence need not necessarily relate to an element of the charged crime or an applicable defense. People v Brooks, 453 Mich. 511, 517-518; 557 N.W.2d 106 (1996) (citation omitted). Rather, the "relationship of the elements of the charge, the theories of admissibility, and the defenses asserted governs what is relevant and material." People v Yost, 278 Mich.App. 341, 403; 749 N.W.2d 753 (2008) (quotation marks and citation omitted).

In this case, the relevance of the DNA evidence at trial was to show that sexual assaults do not always leave DNA samples identifying the perpetrator, to show that some of the samples at issue did not exclude defendant as a contributor, and also to inform the jury that the case had been thoroughly investigated. As it turns out, the DNA evidence did not implicate defendant in the assault, thus its relevance was especially important to defendant's denial of his involvement in the crime. With the admission of DNA evidence that did not incriminate defendant, he was free to argue, and did argue, that his claim of innocence was supported by this evidence. Thus, the evidence was relevant to both the prosecution and the defense.

Defendant argues that the prosecutor's questions regarding the scientific evidence insinuated that the evidence was incriminating even though, for various reasons, no DNA link between defendant and the complainant was detected. However, the evidence did not prejudice defendant, but actually benefited him, because it did not identify him as involved in the crime. Although the prosecutor testified about the limits of DNA testing, these limitations were not presented as if preventing defendant's identification in particular, and the experts were subject to defendant's cross-examination to clarify that the results did not implicate him at all.

B. PROSECUTORIAL ERROR

The prosecutor has a duty to ensure that the defendant receives a fair trial. People v Farrar, 36 Mich.App. 294, 299; 193 N.W.2d 363 (1971). The responsibility of a prosecutor is to seek justice, rather than merely to convict. People v Dobek, 274 Mich.App. 58, 63; 732 N.W.2d 546 (2007). "[T]he test of prosecutorial misconduct is whether a defendant was denied a fair and impartial trial." Id.^[1] A fair trial "can be jeopardized when the prosecutor interjects issues broader than the guilt or innocence of the accused." Id. at 63-64. However, "[a] finding of prosecutorial misconduct may not be based on a prosecutor's good-faith effort to admit evidence." People v Abraham, 256 Mich.App. 265, 278; 662 N.W.2d 836 (2003).

Defendant argues that it was prosecutorial error to elicit from the experts that the lack of a DNA match had explanations other than defendant's innocence. Defendant states that there were "insinuations by the prosecutor in her questioning, in the case of each expert who testified, that there was incriminating DNA evidence but for various reasons it was not detected, or it had been washed away." The right to a fair trial requires that a guilty verdict be based on the evidence and "not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial." People v Banks, 249 Mich.App. 247, 256; 642 N.W.2d 351 (2002) (quotation marks and citation omitted).

In this case, the prosecutor's questioning of the experts about the DNA results did not unfairly suggest that the evidence actually incriminated defendant. Instead, the questioning concerned the readily apparent limitations of DNA testing and highlighted some of the reasons that DNA may not be present in a sample. Moreover, the defense emphasized that defendant's DNA was not present in any sample as...