People v. Leonard, Docket Nos. 178121

• Decision Date: 18 July 1997
• Docket Number: 186776,Docket Nos. 178121
• Citation: 569 N.W.2d 663,224 Mich.App. 569
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Orlandus Carl LEONARD, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Orlandus Carl LEONARD, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 663

569 N.W.2d 663

224 Mich.App. 569

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Orlandus Carl LEONARD, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Orlandus Carl LEONARD, Defendant-Appellee.

Docket Nos. 178121, 186776.

Court of Appeals of Michigan.

Submitted June 11, 1997, at Grand Rapids.

Decided July 18, 1997, at 9:00 a.m.

Released for Publication Oct. 8, 1997.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., James J. Gregart, Pros. Atty., and Judith B. Ketchum, Asst. Pros. Atty., for People.

State Appellate Defender by F. Michael Schuck, for Defendant-Appellant on appeal.

Before REILLY, P.J., and HOOD and MURPHY, JJ.

HOOD, Judge.

Defendant was convicted, following a bench trial, of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2), two counts of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305. He was sentenced to eighteen to forty years' imprisonment for the criminal sexual conduct conviction, ten to thirty years' imprisonment for each armed robbery conviction, and four to fifteen years' imprisonment for the breaking and entering conviction, the sentences to be served concurrently. In Docket No. 178121, defendant appeals his sentences and convictions as of right. In Docket No. 186776, the prosecution appeals by leave granted the trial court's order granting defendant a new trial. The appeals were consolidated. We affirm defendant's convictions and sentences and vacate the trial court's orders granting defendant a new trial and releasing the defendant on bond.

On August 30, 1986, two unidentified men broke into an apartment in Kalamazoo in which a woman, her boyfriend and her five-year-old daughter were sleeping. The victims testified that they were awakened when one of the men put a knife to the male victim's throat or back and demanded money. The men took the male victim out of the bedroom, blindfolded him, tied his hands with a vacuum sweeper cord, and placed him in a closet in another room. The female victim testified that when the two men left the bedroom, she locked the door, screamed, and attempted to escape through a window, but one of the men kicked in the door. One man instructed the female victim to follow instructions or her child would be hurt. The child was told to cover her face with blankets. The female victim testified that one man then put her face down on the bed and vaginally raped her from behind. The man then placed a pillowcase over her head and walked her into the bathroom, where the other intruder forced her to engage in oral sex and then vaginally raped her from behind. Both men ejaculated in the victim. The man who last raped the victim placed the victim and her child in the bathtub after tying their hands.

The male victim testified that he heard the men ransacking the apartment. One man repeatedly returned to him ranting and raving, demanding money, drugs, and liquor, and threatening to kill all the victims. The female victim testified that, after it was quiet, she untied her hands and the other victims' hands. The victims immediately called the police. The female victim was rushed to the hospital, where she underwent a sexual assault evaluation. The seminal fluid samples taken from the victim were sent to the Michigan State Police (MSP) crime laboratory. The police found several fingerprints at the crime scene but were unable to make a match at that time. All potential suspects the police considered at the time were eliminated, the victim's vaginal samples were frozen, and the case was placed on inactive status in 1987, pending new information.

In February 1991, after reanalyzing the latent fingerprints found at the crime scene, the MSP lab identified several of the prints as belonging to Eric Schippers. Kalamazoo Township Police Officer David Caswell testified that Schippers was located in August 1991, interviewed, and ultimately arrested in August 1992. Blood samples were taken from Schippers and a positive match was made of his deoxyribonucleic acid (DNA) with some of the DNA found in the samples extracted from the female victim. Schippers positively and unequivocally identified defendant as the other perpetrator involved in the crimes. Schippers' description of the events surrounding the crimes generally comported with that of the victims. ¹

Upon defendant's arrest in August 1992, a sample of his blood was taken, and his DNA matched the seminal fluids taken from the victim when she underwent the sexual assault evaluation. Defendant was released on bond and granted an adjournment of trial "due to need for expert research and testimony." On December 1, 1992, defense counsel filed a motion to suppress the DNA identification evidence. Hearings regarding the motion and the trial were adjourned several times. During that period, defense counsel retained Dr. Benjamin Grunbaum of California to review the DNA evidence.

At the suppression hearing, the prosecution presented three experts: Dr. Julie Howenstein, who performed the DNA tests at the MSP lab; Charles Barna, supervisor of the MSP lab DNA unit; and Dr. Paul Coussens of Michigan State University, who directs his own molecular biology, molecular virology, and molecular genetics lab, and who was presented as an independent expert on DNA testing procedures.

Dr. Howenstein explained DNA and the restriction fragment length polymorphism (RFLP) DNA testing procedures utilized by the lab, which are a slightly modified version of the Federal Bureau of Investigation's protocol. ² Dr. Howenstein used five probes in this case and tested three male donors: the female victim's boyfriend, Schippers, and defendant. The DNA evidence indicated that there was more than one semen donor. There was a definite match of defendant's DNA on three of the probes, and a match on the other two probes could not be excluded. Based upon a three-probe match, the DNA pattern that resulted was one that is found in approximately 1 of every 59,000 people. In discussing the MSP lab's proficiency, Dr. Howenstein indicated that in ten independent proficiency exams conducted on the MSP lab and its personnel, which occurred every three months by Cellmark Labs, no errors regarding the lab's proficiency were documented. Barna stated that he reviewed Dr. Howenstein's lab work and independently evaluated the DNA tests and the calculations.

Dr. Coussens agreed with the three-probe match determined by Dr. Howenstein. He further opined that the statistical result of 1 in 59,000 for this DNA pattern was conservative. Dr. Coussens testified that the RFLP protocol applied in this case was well above norms for quality control and quality assurance. According to Dr. Coussens, the techniques used are firmly established and accepted in the scientific community, and any possible error in the analysis would make the result more conservative (i.e., favoring defendant). Dr. Coussens found nothing improper in either the procedure or the analysis of the data by the MSP lab in this case.

Following the expert testimony, defense counsel requested authorization to hire a DNA expert to review the testimony and exhibits. The court authorized defense counsel to retain an expert at the court's top rate of $125 an hour, but found that Dr. Grunbaum's fees and planned hours were excessive. The court noted that the case had been pending for years, the hearing regarding the suppression motion had been adjourned many times at the request of defense counsel, and that it was planning to proceed.

On May 10, 1994, defense counsel presented a written waiver of jury trial signed by defendant, which the trial court accepted. On May 11, 1994, before commencement of trial, the court continued the DNA suppression hearing. Defense counsel advised the court that the fee being requested by Dr. Grunbaum remained in excess of the fee authorized by the court and that defense counsel was unable to obtain another DNA expert. Defense counsel requested that the court deny the admissibility of the DNA evidence on the basis of his cross-examination of the expert witnesses and because People v. Adams, 195 Mich.App. 267, 489 N.W.2d 192 (1992), modified on other grounds, 441 Mich. 916, 497 N.W.2d 182 (1993), was wrongly decided. The trial court denied defendant's motion.

Defendant and Schippers testified at trial, and the DNA expert testimony was admitted by stipulation of the parties. In addition, Dr. Patrick Conneally, a population geneticist from Indiana University Medical Center, testified regarding his review of the RFLP procedures and statistical analysis performed in this case, Dr. Conneally opined that the three-probe match was highly significant and agreed that a match of defendant was not excluded on the other bands. In fact, Dr. Conneally would have declared a match on all bands. He further testified that the MSP lab produces an excellent quality of work that is equal to or better than the national labs.

Defendant testified in his own behalf, he indicated that he lived in Three Rivers with his mother between 1983 and 1986; he would have been twenty years old in 1986. Defendant claimed that he did not know Schippers. He admitted that he had seen Schippers in Three Rivers and that he had worked with Schipper's cousin at a local restaurant. Defendant lived in Florida from 1986 to 1990, and then moved to Chicago, where he remained with his wife and three children. Defendant claimed that, despite conferences with his wife and mother, he could not pinpoint his whereabouts on August 30, 1986.

Defendant was convicted of all counts. Defendant's appellate counsel filed a motion (with no brief in support) for a new trial on December 5, 1994. Defendant argued that he was denied due process because the court failed to appoint a DNA expert and denied defendant a continuance to obtain an expert. He...