People v. Propp

• Decision Date: 03 October 2019
• Docket Number: No. 343255,343255
• Citation: 946 N.W.2d 786,330 Mich.App. 151
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lance PROPP, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

330 Mich.App. 151

946 N.W.2d 786

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Robert Lance PROPP, Defendant-Appellant.

No. 343255

Court of Appeals of Michigan.

Submitted September 4, 2019, at Lansing.

Decided October 3, 2019, 9:10 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, John A. McColgan, Jr., Prosecuting Attorney, Nathan J. Collison, Chief Appellate 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: Murray, C.J., and Meter and Fort Hood, JJ.

Fort Hood, J. Defendant appeals as of right his jury conviction of first-degree premeditated murder, MCL 750.316(a)(1), for which he was sentenced, as a fourth-offense habitual offender, MCL 769.12, to a mandatory term of life in prison without the possibility of parole, MCL 750.316(1). Defendant contends on appeal that (1) the trial court violated defendant's rights to due process and equal protection by denying defendant's motion for the appointment of an expert witness and denying his ability to present a defense, and (2) the trial court abused its discretion by permitting the introduction of hearsay and unduly prejudicial other-acts evidence. We affirm.

I. BACKGROUND

It is undisputed that defendant killed the victim by constricting her airway. The sole issue is whether defendant did so with the intent to kill her, or, as defendant claims, whether the victim's death occurred accidentally while she and defendant were engaged in erotic asphyxiation.¹ On the morning of July 6, 2016, defendant called 911 to report that he had discovered the victim unresponsive in her bed. When emergency responders arrived, they found defendant attempting to administer chest compressions to the victim. The victim's body, however, was stiff and cold to the touch, and the emergency responders informed defendant that the victim was deceased. Defendant proceeded to describe a number of different versions of the events that occurred on the night preceding and the morning of the victim's death.

At defendant's preliminary examination, an officer testified that he responded to defendant's 911 call and testified that when he arrived on the scene, defendant told him that defendant had become concerned when the victim did not answer her phone that morning, so defendant went to the victim's house and discovered that her car was still there when she was supposed to be at work. Defendant stated that he found the back door of the victim's house forced open and found the victim unresponsive in her bed. Defendant made no claims that he had choked the victim at that time. That officer also noted that defendant had a black eye, which defendant explained came from a bar fight the night before.

A second officer also spoke with defendant on the day of the victim's death. Defendant purportedly told that officer that the victim's back door had not been forced open and that defendant himself pried the door open with a crowbar. Defendant told the officer that on the night before the victim died, defendant and the victim were lying in the victim's bed when they began arguing. Defendant stated that the victim elbowed him in the eye, causing his black eye and a physical altercation. During the altercation, the victim fell off the bed, defendant fell on top of her, and then a dresser fell on both of them. Defendant stated that he had his hand on the victim's neck and that he "pressed down" with his weight. When the victim stopped moving, defendant figured she was unconscious, and so he picked her up, put her back on the bed, and left.

Before trial, defendant presented the argument that the victim's death was the accidental result of erotic asphyxiation. Defendant moved for the appointment of a state-funded expert witness on the practice, arguing that such an expert would assist the jury in understanding why people engage in erotic asphyxiation and its associated risks. Defendant noted as a basis for his defense that the victim did not have any defensive wounds or other injuries to suggest that she died during a struggle. The trial court denied defendant's request for appointment of such an expert, however, concluding that there were no facts in the record to support defendant's assertion that the victim died as a result of erotic asphyxiation. The only facts in the record that explained the victim's injuries were defendant's statements to the police that the victim died when she and defendant fell out of bed during a fight while defendant had his hand on her throat.

The prosecution also filed their own pretrial motion, seeking to introduce evidence of defendant's prior acts of domestic violence against the victim as well as stalking behaviors. The prosecution alleged that defendant repeatedly called and texted the victim, drove by her house, and appeared uninvited at places the victim went. The majority of the evidence of defendant's prior acts came in the form of statements the victim made to friends and family members. The prosecution also sought to introduce evidence that defendant sexually abused his ex-wife during their marriage. Defendant argued that the testimony of the victim's friends and family members was inadmissible hearsay and that the testimony of defendant's ex-wife was inadmissible under MRE 403 because it was more prejudicial than probative. The trial court disagreed and granted the prosecution's motion to admit the evidence in its entirety.

At trial, defendant testified that on the night that the victim died, she asked him to choke her while they had sex. In the process of doing so, defendant and the victim fell off the bed and a dresser fell on top of them. Defendant was unsure of how long he and the victim were on the floor with the dresser on top of them and his hand on her throat, but when he got up, the victim was unconscious. Defendant testified that he was not concerned about this because the victim often passed out when they engaged in erotic asphyxiation and defendant believed that she was still alive when he left her house shortly after. Defendant stated that he did not initially tell the police that he choked the victim because he was embarrassed and ashamed. The jury convicted defendant of first-degree premeditated murder, and the trial court sentenced him to mandatory life in prison without the possibility of parole.

II. DUE PROCESS

Defendant first contends that the trial court violated defendant's rights to due process by denying defendant's motion for the appointment of an expert witness and subsequently prohibiting any testimony from that witness. We disagree.

We review de novo, as an issue of constitutional law implicating a defendant's due-process rights, the trial court's grant or denial of a defendant's request for state funds to retain an expert. See People v. Cain , 238 Mich. App. 95, 108, 605 N.W.2d 28 (1999). We must consider whether, in light of defendant's explanation as to why the requested expert was necessary for his defense, the trial court should have determined that state funds were required to afford defendant a fair opportunity to confront the prosecution's evidence and present his defense. See People v. Kennedy , 502 Mich. 206, 226-227, 917 N.W.2d 355 (2018).²

A. WHETHER DEFENDANT WAS ENTITLED TO A STATE-FUNDED EXPERT WITNESS

At the time that the trial court denied defendant's request for appointment of an expert witness, issues pertaining to the funding of experts at state expense were governed by MCL 775.15³ and People v. Tanner , 469 Mich. 437, 442-443, 671 N.W.2d 728 (2003), overruled by Kennedy , 502 Mich. at 222-223, 917 N.W.2d 355. Tanner held that under MCL 775.15, "to obtain appointment of an expert, an indigent defendant must demonstrate a nexus between the facts of the case and the need for an expert." Tanner , 469 Mich. at 442-443, 671 N.W.2d 728 (quotation marks omitted), citing People v. Jacobsen , 448 Mich. 639, 641, 532 N.W.2d 838 (1995), overruled by Kennedy , 502 Mich. at 222-223, 917 N.W.2d 355. The Kennedy Court recently clarified, however, "that MCL 775.15 does not apply in [the] context" of an indigent defendant's request for appointment of an expert. Kennedy , 502 Mich. at 210, 917 N.W.2d 355.

" MCL 775.15, by its express terms, does not provide for the appointment of expert witnesses." Id. at 222, 917 N.W.2d 355. In addition, "the statute, which only contemplates ‘testimony,’ falls short of the constitutional standard set forth in Ake ,^{[4 ]} which clearly requires the assistance of an expert in conducting an appropriate examination and in evaluation, preparation, and presentation of the defense." Id. at 223, 917 N.W.2d 355 (quotation marks, brackers, and citation omitted). We have no doubt that Kennedy applies because, although Kennedy was decided after defendant's trial, "it is well-established that a new rule for the conduct of criminal prosecutions that is grounded in the United States Constitution applies retroactively to all cases ... pending on direct review or not yet final." People v. Lonsby , 268 Mich. App. 375, 389, 707 N.W.2d 610 (2005).

Following Kennedy , an indigent defendant's entitlement to state funds to pay for an expert is analyzed under the due-process framework outlined in Ake v. Oklahoma , 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). Kennedy , 502 Mich. at 225, 917 N.W.2d 355. Now, when a trial court analyzes an indigent defendant's request for government funds to procure an expert, it must consider the following factors:

(1) "the private interest that will be affected by the action of the State," (2) "the governmental interest that will be affected if the safeguard is to be provided," and (3) "the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided." [ Id. at 215, 917 N.W.2d 355, quoting Ake , 470 U.S. at 77, 105 S.Ct.

...