Opinion
No. 342663
02-12-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TANAKA JAYVON WELLS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 11-004731-01-FC Before: JANSEN, P.J., and BECKERING and O'BRIEN, JJ. PER CURIAM.
Defendant appeals as of right his 2012 jury convictions of first-degree felony murder, MCL 750.316(1)(b), three counts of armed robbery, MCL 750.529, and one count of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life imprisonment without parole for the murder conviction, three terms of life imprisonment for the armed robbery convictions, and a consecutive two-year term of imprisonment for the felony-firearm conviction. We affirm.
I. RELEVANT FACTUAL BACKGROUND
Defendant's convictions arise from the March 15, 2011 shooting death of Jay Shin during a robbery at Shin's business, Sunrise Beauty Supply, in Dearborn, Michigan. Two customers at the store, Monique Shepherd and Maricela Rodriguez, were also robbed of their money and cell phones during the offense. The prosecution's theory at trial was that defendant committed the offense with codefendant Ronnie Matthews. At trial, Shepherd identified defendant as the person who had threatened her with a gun during the offense, and she also overheard defendant tell a second man at the store that he had killed someone. Pursuant to a plea agreement, Matthews pleaded guilty to second-degree murder and received a sentence of 10 to 20 years in exchange for his testimony against defendant. Matthews testified that he and defendant planned to rob the store, but did not intend to hurt anyone. However, while Matthews was attempting to distract Shin inside the store, defendant shot Shin in the head. Defendant testified at trial and denied shooting Shin. Although defendant admitted participating in a planned robbery, he maintained that it was Matthews's girlfriend, Qiana Harris, who actually shot Shin.
II. DNA EVIDENCE
The police arrested defendant three days after the offense. At the time of his arrest, defendant was wearing boots with apparent blood spots on them. Forensic testing confirmed the presence of blood on defendant's boots, and DNA testing of a blood sample from defendant's right boot matched Shin's DNA profile. The forensic analyst, Mikehl Hafner, testified that the statistical probability that the DNA would match another person's DNA profile was one in 66.16 quadrillion in the Caucasian population, one in 366.3 quadrillion in the African-American population, and one in 1.168 quadrillion in the Hispanic population. Because Shin appeared to be Asian, Hafner was asked about the statistical probability of a match in the Asian population. He did not have that data. Hafner explained, however, that the statistical probability of a match for each of the population groups mentioned exceeded the earth's population. There was no objection to this testimony at trial.
Information in the record indicates that Shin was originally from South Korea.
Defendant now argues that Hafner's testimony should not have been introduced because he did not offer evidence of the statistical probability of a DNA match for the Asian population. Defendant further argues that because Shin was not Caucasian, African-American, or Hispanic, it was improper to introduce evidence of the statistical probability of a match for those population groups because such evidence was meaningless, and therefore, irrelevant. We disagree.
Preliminarily, because defendant did not object to Hafner's testimony at trial, this issue is unpreserved. Therefore, defendant has the burden of demonstrating a plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An error is plain if it is clear or obvious, and an error affects substantial rights if it is prejudicial, i.e., if it affects the outcome of the proceedings. Id.; People v Jones, 468 Mich 345, 355-356; 662 NW2d 376 (2003).
Defendant additionally argues, however, that defense counsel was ineffective for failing to object to the testimony. Because defendant did not raise an ineffective-assistance claim in a motion for a new trial or request for an evidentiary hearing in the trial court, we review that issue for errors apparent from the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). To establish ineffective assistance of counsel, defendant must show that counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced defendant that he was denied the right to a fair trial. People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). Defendant must overcome the presumption that the challenged action might be considered sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). To establish prejudice, defendant must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. People v Johnson, 451 Mich 115, 124; 545 NW2d 637 (1996).
Defendant primarily relies on People v Coy, 243 Mich App 283; 620 NW2d 888 (2000), in support of his argument that Hafner's DNA testimony was inadmissible absent evidence of the statistical probability of a DNA match for the Asian population. In that case, this Court addressed the admissibility of evidence of a possible DNA match where no statistical interpretation accompanied the potential match evidence. This Court held that evidence of a potential match between blood on a weapon and a DNA sample from the victim was inadmissible "absent some accompanying interpretive evidence regarding the likelihood of the potential match." Id. at 294. After discussing the admissibility of expert testimony regarding DNA evidence under MRE 702, this Court stated:
We conclude that absent some analytic or interpretive evidence concerning the likelihood or significance of a DNA profile match, Matthews' testimony concerning the potential match between defendant's DNA and the DNA contained in the mixed blood samples found on the knife blade and the doorknob was insufficient to assist the jury in determining whether defendant contributed DNA to the mixed sample. MRE 702 . . . . We emphasize that we do not now declare or delineate the appropriate articulations for expressing the extent or meaning of a potential match, but merely hold that some qualitative or quantitative interpretation must accompany evidence of the potential match. [Id. at 301-302 (footnotes and citation omitted).]This Court further explained that MRE 403 also supported its decision, reasoning:
MRE 403 represents another basis for excluding evidence of the potential match between defendant's DNA and the mixed DNA samples obtained from the knife blade and the doorknob. This rule operates to exclude evidence when "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." As we have discussed, we find the instant evidence of a potential match between defendant's DNA and the mixed samples to possess minimal probative value absent accompanying interpretive statistical analysis evidence. Because no evidence conveys the likelihood that defendant's DNA could not be excluded as present in the mixed samples, the significant possibility exists that the jury might have attributed the potential DNA match preemptive or undue weight, thus unfairly prejudicing defendant. We find that the risks of confusion of the jury, especially in light of the testimony regarding the enormous probability that defendant contributed the sperm samples removed from the victim, specifically that one in 543 million African-Americans might possess the same DNA profile matching defendant's and the sperm sample's characteristics, and consequent unfair prejudice to defendant substantially outweighed any minimal probative value possessed by evidence of the potential DNA match between defendant's DNA and the mixed samples. See People v Rice (On Remand), 235 Mich App 429, 441; 597 NW2d 843 (1999) (noting that "[p]rejudice inures when marginally probative evidence would be given undue or preemptive weight by the jury").
We therefore conclude that the admission of Matthews' incomplete testimony concerning the potential donors to the mixed samples constituted plain
violations of Michigan Rules of Evidence 702 and 403. Grant, supra at 548-549 (plain error represents a clear or obvious deviation from a legal rule). [Coy, 243 Mich App at 302-303 (footnote omitted).]
This case is distinguishable from Coy because, in this case, Hafner offered a statistical analysis of the probability of a match for the DNA profile associated with defendant's boot. He provided statistical probabilities of finding a DNA match among various racial and ethnic groups, although he did not have any available data for persons of Asian ethnicity. The question therefore becomes whether this statistical evidence was relevant to assist the jury in deciding whether Shin was a contributor of the DNA in the blood sample from defendant's boot.
Here, defendant erroneously assumes that because Shin was Asian, it was necessary to introduce evidence of the statistical probability of a match among the Asian population, and that the proffered statistical evidence of other population groups was meaningless. The following discussion from People v Cua, 191 Cal App 4th 582, 601-604; 119 Cal Rptr 3d 391, 408-410 (2011), is particularly instructive in demonstrating the fallacy of defendant's argument:
" 'One strangely persistent fallacy in the interpretation of DNA evidence is that the relevant ethnic or racial population in which to estimate a DNA profile frequency necessarily is that of the defendant. The issue has been cogently analyzed, and it should be clear that the relevant population is the entire class of plausible perpetrators.' " (People v. Wilson, [38 Cal 4th 1237, 1243; 45 Cal Rptr 3d 73 (2006)], quoting Kaye, Logical Relevance, supra, 3 Law, Probability & Risk at p. 211, fn. omitted.) As Professor Kaye notes, "it is critical to understand the limited role that the defendant's ethnic or racial status plays in evaluating the evidence of a match. . . . The relevant population consists of all people who might have been the source of the evidence sample. In most cases, this will not be people with a defendant's peculiar ancestry, but people of many ethnic groups." (Kaye, DNA Evidence, supra, 7 Harv. J.L. & Tech. at pp. 137-138, fn. omitted.)
As the Supreme Court emphasized in People v. Wilson, " '[t]he random-match probability is meant to measure the rarity of the genetic profile detected in the evidence sample and in the defendant by estimating the frequency with which it occurs in the population of possible suspects. As explained in the 1996 NRC Report: [¶] "Suppose that a DNA sample from a crime scene and one from a suspect are compared, and the two profiles match at every locus tested. Either the suspect left the DNA or someone else did. We want to evaluate the probability of finding this profile in the 'someone else' case. That person is assumed to be a random member of the population of possible suspects. So we calculate the frequency of the profile in the most relevant population or populations. The frequency can be called the random-match probability, and it can be regarded as an estimate of the answer to the question: What is the probability that a person other than the suspect, randomly selected from the population, will have this profile? The smaller that probability, the greater the likelihood that the two DNA samples came from the same person." (1996 NRC Rep., supra, p. 127, italics added.)' " (People v. Wilson, supra, 38 Cal.4th at pp. 1244-1245, 45 Cal.Rptr.3d 73, 136 P.3d 864.)
Therefore, "[i]t is relevant for the jury to know that most persons of at least major portions of the general population could not have left the evidence samples. This conclusion is consistent with the recommendations of the 1996 NRC Report." (People v. Wilson, supra, 38 Cal.4th at p. 1245, 45 Cal.Rptr.3d 73, 136 P.3d 864, citing 1996 NRC Rep., supra, p. 122, rec. 4.1 ["[i]f the race of the person who left the evidence-sample DNA is known, the database for the person's race should be used; if the race is not known, calculations for all racial groups to which possible suspects belong should be made"].) The Supreme Court also agreed, however, that " 'as the science underlying DNA comparisons continues to improve, the practical significance of the different racial frequencies diminishes.' " (People v. Wilson, at p. 1248, 45 Cal.Rptr.3d 73, 136 P.3d 864.)See also Commonwealth v Heang, 458 Mass 827, 834 n 12; 942 NE2d 927 (2011).
As this Court observed in Coy, 243 Mich App at 294-299, statistical evidence regarding the probability of a DNA match is necessary to a jury's consideration of DNA evidence so that the jury can weigh the probative value of the DNA evidence. This is true whether the evidence is offered to establish the identity of a suspect or a victim. In this case, Hafner testified that the DNA from the blood sample on defendant's boot was consistent with Shin's DNA profile, and he provided statistical evidence of the likelihood that the DNA profile would match another person in the population groups of Caucasians, African-Americans, and Hispanics. Contrary to what defendant argues, the fact that Shin did not belong to one of these population groups did not render the statistical evidence for those groups irrelevant. The issue that the jury had to decide was whether the DNA in the blood sample, although consistent with Shin's DNA profile, could have come from some other person. The fact that Shin was Asian did not mean that the relevant population group of other possible contributors was limited to Asians. If the sample was not left by Shin, it could have come from a member of any of several other population groups. In this regard, statistical data of the likelihood of a random probability match among Caucasians, African-Americas, and Hispanics, three of the major population groups in the United States, was highly relevant to assist the jury in determining the likelihood that the blood on defendant's boot may have come from some other unknown contributor.
In addition, Hafner provided additional context for understanding the statistical probabilities among different population groups by providing statistical evidence of the world's population, which he said was approximately seven billion, and explaining the significance of that number. Hafner explained that a trillion is a thousand times a billion, and that a quadrillion is a thousand times a trillion. In other words, a quadrillion is a million times a billion. Hafner further explained:
So if you were to take the view of the earth from space, . . . and multiply that single earth by a million that's how many people you'd have to test and you'd have to test every person on each one of those earths before you even get to the level of quadrillion compared to a billion on earth right now. So an astronomical number.This statistical evidence provided the jury with the necessary "analytic or interpretive evidence concerning the likelihood or significance of a DNA profile match" required by Coy, 243 Mich App at 301. Accordingly, there was no plain error with regard to Hafner's testimony regarding the potential DNA match.
We also reject defendant's ineffective-assistance claim with respect to this issue. Because defendant has not established a legal basis for objecting to Hafner's testimony, counsel was not ineffective for failing to object. "Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Furthermore, the defense theory at trial was that the DNA evidence was not significant. In his testimony, defendant admitted being present when Shin was shot, and he also testified that he checked Shin's body to make sure it was covered, during which he kicked a shirt that was near some of the blood. In his closing argument, defense counsel explained why the blood on defendant's boots was not significant:
Let's take the boots. Okay. What do they show? They show the blood of Jay Shin on them, but if any of us walked passed that body that day when there was a pool of blood it would have picked up some specs, it would have picked up some drops on our shoes as we walked by.In light of this defense theory, even assuming that there may have been some basis for objecting to the DNA evidence, counsel's failure to object was not objectively unreasonable. Moreover, the significance of the DNA evidence was that it linked defendant to the charged offense. But because defendant did not dispute being present when Shin was shot, and admitted walking near Shin's body and kicking some of the clothing next to Shin's blood, there is no reasonable probability that the DNA evidence affected the outcome of defendant's trial. Accordingly, defendant was not prejudiced by counsel's failure to object.
The police did not look at the boots of anybody and everybody that day. I'm quite sure if they had, they would have found something. When you walk past a pool of blood you're going to pick up something. It's just common sense so they don't mean anything.
III. BATSON V KENTUCKY
Defendant argues that the trial court erred by overruling his Batson challenge to the prosecutor's use of peremptory challenges to remove two African-American jurors from the jury during voir dire. We disagree.
Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). --------
The trial court ruled that defendant failed to establish a prima facie case of discrimination under Batson. We review the trial court's ruling under the following standards:
A defendant's preserved challenge to the prosecutor's use of a peremptory challenge on the basis that it violated the Equal Protection Clause is a mixed question of fact and law. When reviewing whether a defendant has shown a prima facie case of discrimination, we review for clear error the trial court's findings of fact and review de novo whether those facts constitute discrimination as a matter of law. The trial court's findings are clearly erroneous if, after we have reviewed the entire record, we are definitely and firmly convinced that it made a mistake. [People v Armstrong, 305 Mich App 230, 237; 851 NW2d 856 (2014) (footnotes omitted).]
Under the Equal Protection Clause of the Fourteenth Amendment, a prosecutor may not exercise a peremptory challenge to remove a prospective juror solely on the basis of the person's race. Batson v Kentucky, 476 US 79, 89; 106 S Ct 1712; 90 L Ed 2d 69 (1986). The burden initially is on the defendant to make out a prima facie case of purposeful discrimination. Id. at 93-94. In People v Tennille, 315 Mich App 51, 61; 888 NW2d 278 (2016), this Court explained:
Under the first step of a Batson challenge, a defendant must make a prima facie showing that (1) he or she is a member of a particular racial group, (2) the prosecution used a peremptory challenge to exclude from the jury a member of that racial group, and (3) the circumstances raise an inference that the challenge was race based. Batson, 476 US at 96. [People v Tennille, 315 Mich App 51, 61; 888 NW2d 278 (2016).]If a defendant makes such a prima facie showing of a discriminatory purpose, the burden shifts to the prosecutor, who must articulate a racially neutral explanation for challenging African-American jurors. Batson, 476 US at 97-98. The trial court must then determine if the defendant has established "purposeful discrimination."
During voir dire, the prosecutor used peremptory challenges to excuse three prospective jurors at once: Juror No. 3, Juror No. 10, and Juror No. 11. The first excused juror, Juror No. 3, was Caucasian, but Juror Nos. 10 and 11, like defendant, were both African-American. After the prosecutor excused the three jurors, defense counsel presented the following argument in support of a Batson challenge:
Your Honor, Mr. Wells is an African American and he is entitled to a jury of his peers. Right now the fourteen people who are seated on the jury we've had I believe four African Americans of which the prosecutor exercised a peremptory and excused two African Americans.After additional arguments, the following exchange occurred on the record:
We do have a jury pool of forty-one individuals. Out of those remaining in the jury pool, your Honor, out of those which remain from the forty-one I just saw a couple, at the most, who were African American.
So Mr. Wells wants a race neutral reason for excusing the two African American jurors because now he's not going to have a jury of his peers in the pool.
THE COURT: . . . First of all, Mr. Wells is an African American and the two jurors that were excused were African Americans so the third thing is whether or not all the relevant considerations raise an inference that the proponent of the challenge excluded the prospective jurors on the basis of race and it says, in Knight, . . . , at 473 Michigan at 336, that the opponent of the challenge, being Mr. Wells, is not required to actually prove discrimination as long as the sum of the proffered facts give rise to an inference of discriminatory purpose, the first Batson step is satisfied.
So Mr. Haradhvala, what are the sum of the facts that give rise to an inference of discriminatory purpose?
MR. HARADHVALA [defense counsel]: Your Honor, the sum of the facts would simply be that in a city which has a ninety-nine percent African American population we have five jurors — five African American jurors on the —
THE COURT: In the box.
MR. HARADHVALA: — in the box and one or two just outside the box. With two jurors being gone who are African American and the possibility of getting another African American juror from the remaining jury pool being slender that would be my basis, Judge.
THE COURT: Okay. Miss Screen.
MS. SCREEN [the prosecutor]: I'm saying that that's insufficient, your Honor, because the prosecution kicked off a total of three people, one that was not African American and then two African Americans. There is no pattern. There's nothing that the Defendant can articulate to make that showing.
THE COURT: Right. In fact, your first peremptory challenge was to a Caucasian?
MS. SCREEN: That is correct.
* * *
THE COURT: I think Mr. Haradhvala's argument doesn't go to Batson. It may be a different argument, but the Court finds that he has not established the first step according to Batson. He has not — the Court's not satisfied that some of the proffered facts argued by Mr. Haradhvala give rise to an inference of discriminatory purpose.
So, therefore, the Court does not believe that that first step is satisfied and since that step is not satisfied the Court is not required to ask — the burden does not shift then to the prosecution in this case, the one that made the peremptory challenges, to articulate a race neutral explanation for this trial.
The trial court did not err by ruling that defendant failed to make a prima facie showing of discrimination under Batson. Although defendant pointed out that two of the three jurors removed by the prosecutor were African-American, his argument focused not on the prosecutor's reasons for removing the two jurors, but on the impact it would have on the remaining venire. When asked why the excusal of the two jurors created an inference of discrimination, defendant merely argued that the remaining jurors in the venire did not reflect the percentage of African-Americans in defendant's community. Even assuming that defendant's observations were accurate, because defendant did not offer any reasons to support an inference that the jurors were excused because of their race, the trial court did not err by ruling that defendant had not satisfied the first step under Batson.
It is true that one method of establishing a prima case of discrimination under Batson is to "prov[e] that in the particular jurisdiction members of [the defendant's] race have not been summoned for jury service over an extended period of time." Batson, 476 US at 94. Here, however, defendant offered no such proof. He merely argued that the remaining members in his particular jury pool did not represent the percentage of African-Americans in the community. In Batson, the Supreme Court identified additional factors that can support a prima facie case of discrimination:
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors. [Id. at 96-97.]
Here the three excused jurors were the first jurors removed by the prosecutor, and the first excused juror was Caucasian. Thus, there was no pattern of excusing African-American jurors. Furthermore, the excused jurors' statements during voir dire do not support an inference of discrimination. Juror No. 10's response to a question suggested that she had difficulty understanding the concept of burden of proof. Juror No. 11 explained that she had health problems that could potentially interfere with her ability to sit through the trial or view the evidence. In addition, Juror No. 11 expressed sympathy for youthful offenders and expressed an unwillingness to follow an instruction that she not let sympathy influence her verdict. Considering these nondiscriminatory factors, and the fact that the focus of defendant's Batson challenge was the impact of excusing the jurors on the remaining members of defendant's particular jury pool, the trial court did not err by ruling that defendant failed to establish a prima facie case of discrimination necessary to satisfy the first step of a Batson challenge.
Affirmed.
/s/ Kathleen Jansen
/s/ Jane M. Beckering
/s/ Colleen A. O'Brien