935 N.W.2d 369
Mich. Ct. App.2019Background
- Dennis Tomasik was convicted in 2007 of two counts of first-degree criminal sexual conduct and served nearly 9 years in prison.
- Post-conviction litigation produced counseling records (Zwart report; Joseph‑Enders form) that defense said impeached the victim; courts repeatedly found the records cumulative.
- The Michigan Supreme Court ultimately reversed in part and remanded for a new trial, holding the trial court abused its discretion by admitting the full recording of Tomasik’s interrogation (Musser error); the Court declined to address whether newly disclosed counseling records warranted a new trial.
- Tomasik was retried, additional witnesses/exhibits were presented, and he was acquitted.
- Tomasik sued Michigan under the Wrongful Imprisonment Compensation Act (WICA), claiming his conviction was reversed based on new evidence; the Court of Claims granted summary disposition for the State.
- The Court of Appeals affirmed: WICA requires that the reversal/vacatur itself be caused by new evidence, and the Supreme Court’s written order shows the reversal was grounded on improper admission of the interrogation (Musser), not on new evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WICA requires the reversal/vacatur to be based on "new evidence" | WICA should be read to require only that new evidence ultimately led to acquittal on retrial; the earlier reversal/vacatur can be for other reasons | WICA unambiguously requires that new evidence itself demonstrate innocence and result in the reversal/vacatur and dismissal or not‑guilty finding | Statute unambiguous: Subsec. (c) requires new evidence to (1) demonstrate innocence, (2) result in reversal/vacatur or pardon, and (3) result in dismissal or not‑guilty on retrial; affirm State |
| Whether the Supreme Court’s reversal was based on new evidence (Zwart/Joseph‑Enders records) | Tomasik contends the Supreme Court must have relied on new evidence (including records and later trial evidence) despite its written order | The Supreme Court’s written order says reversal was for Musser error (admission of interrogation); it expressly declined to address the new‑evidence claim | The Court will not read into the written order an unexpressed reliance on new evidence; Tomasik cannot prove reversal was based on new evidence |
| Whether appellate/oral argument materials can be used to interpret the Supreme Court’s decision | Oral argument/questions show Court considered new‑evidence claim; those materials should inform interpretation | Court decisions speak through written opinions/orders, not oral argument; cannot rely on questions/arguments to override the written holding | Declined to consider oral argument as a substitute for the written order; relied on the plain written order |
| Whether discovery (including depositions of justices/staff) should be permitted to show the Court relied on new evidence | Discovery could reveal judicial reasoning showing reversal relied on new evidence | Judicial decisionmaking is protected; discovery cannot probe judges’ mental processes or reasons; no amount of discovery can change written holding | Denied remand for discovery; judicial deliberative process and written order control |
Key Cases Cited
- People v Musser, 494 Mich 337 (recognizing Musser error where officer vouches and expresses opinion of guilt)
- People v Kowalski, 492 Mich 106 (Daubert/MRE 702 context for expert testimony)
- People v Grissom, 492 Mich 296 (new‑evidence/impeachment grounds for new trial)
- Daubert v Merrell Dow Pharm., 509 US 579 (trial courts must assess relevance and reliability of expert testimony)
- People v Carines, 460 Mich 750 (plain‑error standard in criminal appeals)
- People v Stanaway, 446 Mich 643 (standard for in‑camera review of impeachment evidence)
- In re Ginther, 390 Mich 436 (remand for ineffective‑assistance evidentiary hearing)
- Potter v McLeary, 484 Mich 397 (statutory construction principles)