The judge's role in a Medical Marijuana Section 8 motion.

In People v Anderson, __ Mich App __ (#300641, 9/18/2012) the defendant was arrested after police officers discovered marijuana plants and plant material in his home in June 2009. The prosecutor charged him with manufacturing marijuana, see MCL 333.7401(1) and (2)(d)(iii), and the district court bound Anderson over for trial in March 2010. Id. at 41. In April 2010, Anderson moved for dismissal of the charge under § 8 of the Medical Marijuana Act. Id. at 41-42.

On remand from the Supreme Court, the Court of Appeals further remanded the case to the trial court for an evidentiary hearing under People v Kolanek, 491 Mich 382 (2012).  As set forth in Kolanek, the trial court’s role at the evidentiary hearing is limited: it must determine whether the defendant has presented sufficient evidence from which a reasonable jury could conclude that the defendant established the elements of his or her § 8 defense and then determine, given the evidence presented at the hearing, if there is a material factual dispute concerning one or more of those elements. Id. at 411-413. The trial court may not weigh the evidence, assess credibility, or resolve factual disputes at the hearing. Id. at 411 (“Questions of fact are the province of the jury, while questions of law are reserved to the courts.”). Rather, the trial court must determine—as a matter of law—if the defendant established his or her right to have the charges dismissed under § 8, or if there are material factual disputes that must be resolved by a jury. Id. at 411-413.

Appointment of a DNA expert for the defense.

In People v Webb, Unpub (#305017, 8/16/2012) the Court of Appeals reversed convictions of first-degree home invasion, safe breaking, felon in possession of a firearm, and two counts of felony-firearm. 

At trial DNA evidence was the only evidence linking defendant to the crime. Before trial, defendant requested the appointment of a DNA expert witnessed, which the trial court denied.  According to the Court of Appeals, the trial court abused its discretion in denying defendant’s request for an expert witness.

“Under the Due Process Clause, states may not condition the exercise of basic trial and appeal rights on a defendant’s ability to pay for such rights.” People v Leonard, 224 Mich App 569, 580 (1997). MCL 775.15 provides that an indigent defendant may request that the judge, “in his discretion[,] . . . make an order that a subpoena be issued” for a material

witness favorable to defendant “without whose testimony [defendant] cannot safely proceed to a trial[.]” As reflected in this permissive language, it is a discretionary decision and “a trial court is not compelled to provide funds for the appointment of an expert on demand.” People v Tanner, 469 Mich 437, 442 (2003). “[A] defendant must show a nexus between the facts of the case and the need for an expert.” Leonard, 224 Mich App at 582. Also, “[i]t is not enough for the defendant to show a mere possibility of assistance from the requested expert. Without an indication that expert testimony would likely benefit the defense, a trial court does not abuse its discretion in denying a defendant’s motion for appointment of an expert witness.” Tanner, 469 Mich at 443 (internal quotations and citation omitted).

In this case the only evidence linking defendant to the crime was the DNA evidence. Thus, there was a nexus between the facts of the case and the need for a DNA expert, Leonard, 224 Mich App at 582. Without the ability to have an independent DNA expert examine the blood samples, defendant was deprived of an opportunity to present a defense to the charged crimes. “[F]undamental fairness requires that the state not deny [indigents] an adequate opportunity to present their claims fairly within the adversary system.” Leonard, 224 Mich App at 580 (internal quotations and citation omitted). In spite of this concern for fundamental fairness, the trial court failed to articulate any reasons justifying the denial of defendant’s request for an independent DNA expert.  This was reversible error.