People v. Propp

508 Mich. 374

976 N.W.2d 1

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Robert Lance PROPP, Defendant-Appellant.

Docket No. 160551

Calendar No. 2

Supreme Court of Michigan.

Argued October 6, 2021

Decided December 6, 2021

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, John A. McColgan, Jr., Prosecuting Attorney, and Carmen R. Fillmore, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Douglas W. Baker and Steven D. Helton) for defendant.

BEFORE THE ENTIRE BENCH

Bernstein, J.

This case concerns a death where the only issue is defendant's intent. Defendant argues both that an expert was necessary to support his theory that the death was accidental and that evidence of other acts of domestic violence was improperly admitted. We hold that the Court of Appeals erred by holding that defendant was required to make the additional showing necessary for affirmative defenses in order to be entitled to expert assistance and by holding that rules of evidence other than MRE 403 do not apply to other-acts evidence admitted under MCL 768.27b. Accordingly, we vacate the judgment of the Court of Appeals in part, reverse the judgment in part, and remand to the Court of Appeals for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

On July 6, 2016, emergency responders found Melissa Thornton dead in her own bed. Thornton was defendant Robert Propp's ex-girlfriend and the mother of his child. Although the relationship between defendant and Thornton had been described as tumultuous, defendant had spent the night with Thornton after socializing with both Thornton and her sister. Defendant placed the 911 call that morning, and he gave the police several conflicting accounts of what had happened in the preceding hours. The autopsy report attributed Thornton's death to neck compression.

Defendant was bound over for trial on one count of open murder.¹ Two pretrial motions were filed that are of particular significance. In one, defendant moved for funds to retain an expert in the area of erotic asphyxiation, on the theory that Thornton's death was accidental.² The trial court denied the motion, reasoning that the facts on the record did not support the theory. In the other, the prosecution moved to introduce evidence of defendant's other acts of domestic violence under MCL 768.27b. These other acts can generally be separated into two groups: statements that Thornton had made to friends and family concerning her relationship with defendant and testimony by defendant's ex-wife about abuse she had endured during their marriage. Defendant objected to the admission of these prior acts, arguing that this evidence was either inadmissible hearsay or more prejudicial than probative, but the trial court granted the prosecution's motion to admit the evidence in its entirety.

Defendant thus proceeded to trial without the assistance of an expert and with the other acts of domestic violence admitted against him. Following a jury trial, defendant was convicted of first-degree premeditated murder, pursuant to MCL 750.316(a)(1), for which defendant received a mandatory sentence of life in prison without parole.

Defendant appealed as of right. On October 3, 2019, the Court of Appeals affirmed his conviction in a published opinion. People v Propp , 330 Mich App 151, 946 NW2d 786 (2019). Defendant timely sought leave to appeal in this Court. On October 21, 2020, this Court granted leave to appeal, directing the parties to address:

(1) whether the Court of Appeals correctly applied People v Kennedy , 502 Mich 206, 917 NW2d 355 (2018), when it affirmed the trial court's decision to deny the defendant's motion for expert funding; and (2) whether the Court of Appeals correctly held that evidence of other acts of domestic violence is admissible under MCL 768.27b regardless of whether it might be otherwise inadmissible under the hearsay rules of evidence. [ People v Propp , 506 Mich 939, 949 NW2d 459 (2020).]

II. REQUEST FOR EXPERT WITNESS

A. STANDARD OF REVIEW

Defendant alleges a violation of his due-process rights, which is an issue of constitutional law that this Court reviews de novo. People v Smith , 498 Mich 466, 475, 870 NW2d 299 (2015).

B. ANALYSIS

In People v Kennedy , 502 Mich 206, 211-212, 917 NW2d 355 (2018), the defendant's request for a DNA expert had been denied for failure to show that expert testimony would benefit his defense as purportedly required by MCL 775.15. In Kennedy , we clarified that MCL 775.15 was inapplicable to such requests and that the due-process analysis laid out in Ake v Oklahoma , 470 US 68, 105 S Ct 1087, 84 L Ed 2d 53 (1985), instead controlled. Kennedy , 502 Mich at 219-220, 917 NW2d 355. Ake itself involved a defendant's claim of insanity and his request for a psychiatric expert; we held that the Ake due-process analysis applied beyond that context and more broadly governed requests by indigent criminal defendants for the appointment of an expert at government expense. Id. at 219-220, 225, 917 N.W.2d 355.³

In determining the standard for courts to review such requests, this Court adopted the reasonable-probability standard articulated in Moore v Kemp , 809 F2d 702 (CA 11, 1987). Specifically, this Court held that " ‘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.’ " Kennedy , 502 Mich at 227, 917 NW2d 355, quoting Moore , 809 F2d at 712. Generally, when requesting an expert " ‘to assist ... in confronting the prosecution's proof,’ " a defendant " ‘must inform the court of the nature of the prosecution's case and how the requested expert would be useful.’ " Kennedy , 502 Mich at 227, 917 NW2d 355, quoting Moore , 809 F2d at 712. At a minimum, this requires a defendant to inform the trial court about the nature of the crime and the evidence linking him to the crime. Kennedy , 502 Mich at 227, 917 NW2d 355. However, when a defendant requests an expert to present an affirmative defense, a defendant must make the additional showing of a substantial basis for the defense. Id.

In this case, the Court of Appeals held that "defendant sought appointment of an expert in order to assert the affirmative defense that the victim died accidentally while she and defendant engaged in erotic asphyxiation. Accordingly, defendant was required to demonstrate a ‘substantial basis for the defense.’ " Propp , 330 Mich App at 163, 946 NW2d 786, quoting Moore , 809 F2d at 712.

The Court of Appeals did not explain why it characterized the defense at issue here as an affirmative defense. "An affirmative defense admits the crime but seeks to excuse or justify its commission. It does not negate specific elements of the crime."

People v Dupree , 486 Mich 693, 704 n 11, 788 NW2d 399 (2010). Black's Law Dictionary similarly defines "affirmative defense" as follows:

A defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true. The defendant bears the burden of proving an affirmative defense. Examples of affirmative defenses are duress (in a civil case) and insanity and self-defense (in a criminal case). [Black's Law Dictionary (11th ed.), p. 528 (emphasis added).]

Recall two things: Defendant requested an expert here to pursue his theory that the killing was accidental, and defendant was convicted of first-degree premeditated murder. One of the elements of first-degree premediated murder is the intent to kill; moreover, that intent to kill must be both deliberate and premeditated. People v Dykhouse , 418 Mich 488, 495, 345 NW2d 150 (1984). See also People v Oros , 502 Mich 229, 240, 917 NW2d 559 (2018). Unlike insanity, which was the defense at issue in Ake , a defendant who advances a defense of accident does not bear the burden of proving a lack of intent for a crime that includes intent as an element. In other words, because intent to kill is an element of first-degree premeditated murder, it was the prosecution's burden to prove intent beyond a reasonable doubt in order to secure the conviction. The defense of accident was not an affirmative defense because defendant did not bear the burden of negating intent.

Accordingly, the Court of Appeals erred by applying the standard for affirmative defenses to defendant's request for expert assistance. Because the Court of Appeals failed to apply the correct standard, we vacate the Court of Appeals’ analysis on this issue and remand to the Court of Appeals for consideration of the correct standard under Kennedy —namely, whether there was a reasonable probability that the expert would have been helpful to the defense and whether the denial of expert assistance rendered the trial fundamentally unfair.

III. OTHER ACTS

A. STANDARD OF REVIEW

A trial court's decision to admit evidence will not be disturbed absent an abuse of discretion. People v Mardlin , 487 Mich 609, 614, 790 NW2d 607 (2010). However, whether a rule or statute precludes admission of evidence is a preliminary question of law that this Court reviews de novo. Id. A trial court necessarily abuses its discretion when it admits evidence that is inadmissible as a matter of law. People v Lukity , 460 Mich 484, 488, 596 NW2d 607 (1999).

In this case, the admissibility of evidence depends on the application of a statute. "Questions of statutory interpretation are reviewed de novo." People v Mazur , 497 Mich 302, 308, 872 NW2d 201 (2015). Statutes are to be interpreted in accordance with legislative intent, the most reliable evidence of which is the plain language of the statute itself. Id. "When interpreting a statute, we must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory."

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