People v. Grissom

296 492 Mich 296 PEOPLE v GRISSOM (Calendar 1). January 11, Argued Docket No. 140147. 2012 No. Decided July 31, 2012. James E. Grissom was convicted in in 2003 the St. Clair Circuit first-degree conduct, Court of two counts of criminal sexual MCL 750.520b(l)(f), years prison raping and sentenced to 15 to 35 in for grocery parking in a Appeals, woman store lot. The Court of RJ., JJ., unpub- and and Murphy affirmed an Boreello, Neff, (Docket opinion per 18, lished curiam issued November No. 251427), Supreme application and the Court denied defendant’s (2005). appeal, 2006, for leave to 472 Mich 919 In defendant moved judgment newly for relief from and for a new trial on the basis of police reports indicating assault, alleged discovered that after the allegation kidnapping made a false and a false allegation rape, recanted, both of which she later and several allegations complain- other of criminal sexual conduct that father, husband, police they ant’s and friend told the believed were court, Deegan, J., motion, also false. The Peter E. denied the and Appeals application the Court of denied defendant’s for leave to appeal. Court, Supreme however, The remanded the case to the Appeals Court of reasonably to consider whether defendant had a likely acquittal light newly chance of of both the discovered presented against evidence and the evidence him at trial that did (2008). complainant’s credibility. not involve the 480 Mich 1140 Appeals, PJ., J., The Court of and J. (Gleicher, Borrello, Davis, dissenting), unpublished opinion per affirmed in an curiam issued (Docket 274148), holding newly October No. provide grounds discovered evidence did not for a new trial because, admissible, only impeachment even if it had been it was evidence and it probable would not have made a different result on Supreme granted retrial. application Court defendant’s for (2011). appeal. leave 488 Mich opinion by joined by In an Justice Marilyn Justices Kelly, Supreme Court held:

Cavanagh, Markman, Hathaway, Newly impeachment may grounds discovered granting four-part a new trial if it satisfies the test set forth in People Cress, (2003), material, 468 Mich 678 if there is a exculpatory connection between the discovered evidence testimony presented and the witness’s at trial and a different probable result is retrial. The general be of a character and need not contradict testimony specific granting trial form the order to basis for a new trial. Cress, may granted newly 1. a Under new trial because of merely discovered evidence if the evidence itself and not its materiality newly discovered, was the evidence was not cumula- tive, party presenting the evidence could not have discovered produced using diligence, it at trial reasonable and the probable evidence makes a different result on retrial. While ordinarily granted newly a new trial will not be because of impeach witness, Michigan discovered evidence that is offered a to exception and federal cases have made an for cases in which the sufficiently important guilt evidence is to the determination of or change Newly innocence that it could the result on retrial. impeachment discovered evidence satisfies Cress when there is an exculpatory connection on a material matter between a witness’s testimony at trial and the new evidence and a different result is probable newly impeachment on retrial. The discovered evidence general specific ofbe character and need not contradict trial granting in order to form the basis for a new trial. Accordingly, by denying the trial court abused its discretion judgment ground defendant’s motion for relief from the on the impeachment granting evidence cannot form the basis for new trial. any Michigan impose per 2. To the extent that decisions se prohibition against granting light newly a new trial in of discov- evidence, impeachment they ered were overruled. prosecution 3. The conceded that the evidence at issue in this newly discovered, cumulative, case was and that defendant produced using could not have discovered and it at trial reasonable remand, diligence. On the trial court must evaluate the new exculpatory evidence and determine whether there exists an connection between it and the heart of the testi- mony. facts that the trial court should consider deciding grant newly whether a new trial are those in the discovered evidence and those in the record. Appeals’ judgment vacated; Court of case remanded to the trial newly

court to evaluate whether the discovered evidence satisfies Cress. concurring, separately Justice Marilyn wrote to state Kelly, that she would have vacated defendant’s convictions and re- Mich 296 newly trial discovered manded the case for a new because material, exculpatory that would evidence constituted evidence probable on retrial. She would have make a different result exculpatory decided that a material connection exists between newly complainant’s testimony. discovered evidence and Justice would have decided that a different result was Kelly precedent question probable on retrial and established on the satisfy can when briefed, thoroughly because the was fourth Cress factor issue Supreme already considered and remanded the Court has once, years, and case the case has been unresolved for six judge who will consider the case on remand will not have knowledge presented superior of the facts that were trial given judge that the trial has since retired. concurring, separately clarify wrote Justice Markman, join he did not Justice MARILYN concurrence or the dissent- Kelly’s ing opinion opinions because he was less certain than those given that, regarding proper resolution of the case while there suggesting guilt, it not clear that his defendant’s was guilt could have been on the almost exclusive basis established complainant’s testimony had the discovered evidence jury. summary provided been available to the He also a of both the existing newly and the trial discovered evidence court could consider on remand. joined by Young Justice Chief Justice and Justice Mary Zahra, concurring part dissenting part, agreed in and with Beth Kelly, majority applied that the Cress test must be to determine newly whether a defendant is entitled a new trial and that impeachment may grounds discovered evidence in rare cases be for material, agreed a new trial if it satisfies the Cress test. He that a exculpatory newly connection must exist between the discovered trial, significantly important presented and at evidence evidence disagreed may general

but that the evidence be of a character and testimony. Moreover, specific need not contradict trial he would case, stating affirmed in have this new evidence offered to any impeach did not contradict of her trial testimony address the events in this case and that or defendant’s hinge convictions did not on the uncorroborated given independent of events the substantial evidence that account raped impeach- defendant had her. He would have held that new probable a ment evidence could make different result on retrial directly testimony in if it contradicted material trial a manner exculpate that tended to the defendant. Court — — — — Newly Impeachment Criminal Law Evidence Discovered Evidence New Trial. Newly impeachment may grounds for a discovered new (1) merely materiality trial if evidence itself and not its (2) (3) discovered, cumulative, it not have was not it could produced using diligence, been discovered and trial at reasonable (4) (5) retrial, probable a it makes different result there is and material, exculpatory connection between it and the witness’s testimony; general trial this be of connection character specific need not contradict trial. Schuette, General, Bill Bursch, John Attorney J. General, Solicitor Michael D. Wendling, Prosecuting Attorney, Timothy K. Morris and S. Arm- Mona strong, Attorneys, Assistant Prosecuting people. for (by

State Defender Appellate Pagac) Christine A. for defendant.

Amicus Curiae:

Foley & Lardner LLP (by Raymond Carey, J. Brandi Wienner) Walkowiak, F. Erin Adam Toomey, and J. the Innocence Network. J. This presents question case MARILYN Kelly,

whether impeachment discovered can and, so, constitute for a if grounds new trial under what circumstances. Defendant a retrial seeks on the basis of the newly impeachment evidence. The trial court and Court concluded Appeals evidence cannot be used as a basis for granting new trial because, part, it evidence. The Court of also Appeals concluded that the evidence did not warrant a new trial if it because were admitted on retrial, was no there reasonable chance of a different result.

We may grounds hold that if a new trial it forth four-part satisfies the test set MICH296 op the Court material, hold that further v Cress.1 We People

exculpatory must exist between connection important significantly evi- and general presented charac- be of a at trial. It dence specific trial. need not contradict ter and prob- result a different must make Also, the evidence Accordingly, the Court of we vacate able on retrial. judgment Appeals’ the trial case to and remand this discov- determination of whether court for ered evidence satisfies Cress. AND PROCEDURAL HISTORY

I. FACTUAL BACKGROUND DEFENDANT’S CONVICTIONS STORY AND A. THE COMPLAINANT’S alleged rape that occurred an This case involves May 2001, that on The testified 2001. parking Fort lot of the into the she drove her van p.m. Meijer 12:30 She noon and store between Gratiot stepped retrieve her and turned to out claimed she purse so, did While she the front seats. from between scraggly long dirty beard, and a hat hair, a man with grabbed open appeared her He arm door. in front of that she She testified her into the van. and ordered causing her, her to fall him, the man but struck resisted being struck resist, but after continued to inside. She briefly again, lost consciousness. regained senses, her head was between her

When she by pinned legs man, seats, her front one of steering pinned wheel. and the other was pulled pants her them and man unbuttoned her unzipped He then her knees. down around underwear penis. pants The man erect saw his his own and she again stated, with his hand times struck several you up.” ring with several He slid a will shut “This Cress, Mich 678; 664 NW2d 174 (2003). People v Grissom Opinion of the Court and, on it his fingers stones down one of to the knuckle testified, her finger vagina. she forced that into The that she to complainant attempted claimed because, her, scream but could not the man struck after However, she was having difficulty breathing. she was able to call man responded by a “bastard” and he her. backhanding complainant The indicated that she could taste from cut blood on her face. She claimed then that man inserted her penis vagina his into and gripping striking thighs while her as she continued to The complainant again resist. testified that she lost consciousness, but revived, when she her attacker was gone. She home, claimed that she her way found but unable was to recall the got details of how she there. When she home, arrived she immediately into her went bedroom because she did not her want children to know had what happened.

The complainant’s husband testified that he knew wrong something when she returned home. He claimed that the complainant panicked looked and had a cut on her questioned mouth. He her about what had happened, and an complainant indicated in incoher- ent and rambling manner she had been physically However, attacked. she did not mention having been sexually assaulted. She testified that she did not tell her husband about the sexual assault because she “wasn’t ready face [her]self” “didn’t know how to break [her husband’s] heart.” The husband large testified that he noticed developing bruises on her legs days arms over the following the attack. May 14, 2001, days On following attack, two reported complainant the assault to the police. Again, she report did not its police sexual nature and the treated the incident as an attempted carjacking. How- ever, the did police large note a scratch on complain- 492 Mich 296 Opinion of the Court had extensive that she told them she

ant’s face and did not she bruising. complainant testified she police to the because the extent of attack report the details the assault yet fully disclosed her husband. 14, 2001, received May

Also Jerry for some of from Dr. Paul medical treatment com- he that the testified that observed injuries. Jerry she swollen and bruised and that arm was plainant’s testified that she tenderness her neck. She reported Jerry she report not the sexual assault to because did near She to him other beds. talking was uncomfortable helpful it would be reporting said she did not think had showered. given she since 2001, the told someone May 15, complainant On The sexually had the first time that she been assaulted. her as and friend she to described traumatized spoke the nature of the assault advised her to disclose sexual her her thereafter told complainant husband. penetrated. had been How- digitally husband that she not ever, that she did disclose further she claimed details because of his reaction. by the Dr. May 16, complainant was seen

On full Russell, reported her She the gynecologist. Deborah attack, penile the including penetration. account worn a explained that because her attacker had not She health- condom, possible concerned about she was complainant related Russell directed issues. room doctors hospital emergency return to the because treat her for a sexual there would be better able to assault. advice, the to the complainant returned

On Russell’s Dr. her She was treated along with husband. hospital present Because her she Thabit Bahhur. husband assault, told yet not him the nature of she had told Opinion of the Court Bahhur that she had been digitally penetrated. Bahhur on observed abrasions the outside and inside of as complainant’s vagina, well as on her cervix. He testified that the abrasions were consistent with forceful digital penile or he penetration but could not rule out injuries. other causes of the He did collect evidence for “rape kit” because how much time had elapsed since attack. alleged Also, complainant had changed clothes and reported only digital penetration. Addition- ally, complainant away clothing thrown all the she had worn during alleged assault before it could be tested. She admitted that she knew at the time that it could been have tested for DNA evidence. later,

One May 23, 2001, week on the complainant returned to for a follow-up Russell examination that arm, revealed bruising legs as well as along abrasions her inner labia. Russell opined that the complainant’s vaginal time, area was normal but noted that the “vaginal area heals so very quickly,” any abrasions more than a days few old would have healed.

Several months elapsed before the told her husband the full account of her alleged assault.

Thirteen months after the in alleged rape, 2002, June the complainant reported to the police that she was driving near the Fort Meijer Gratiot when she saw a black leave a Jeep driveway. itWhile was behind her stopped at a traffic light, she said that recognized she person the she believed to her assailant rearview mirror. She indicated that the driver had scraggly hair, beard, a ring and a on It his hand. was then that she police notified the for the first time that she sexually this, had been assaulted. She did she claimed, because she did not want to live in fear and believed that she might “get be able the person off the street who hurt . . . .” [her] 492 MICH Opinion of the Court 2002, complain- the five-day October period

Over a police the 7,500 photographs more than reviewed ant picture. in one That her attacker identified station. She afterward, of- police defendant. Sometime person was own- initially He denied defendant. ficers interviewed complainant, one ring a like the described ing owned such a that he had although he later admitted it. had ring pawned but 2002, arranged corpo- a police

On November an complainant given was at which lineup real Police officers identify her assailant. opportunity be at the his that he should defendant at home advised so, did defendant they a certain time. When station at beard. scraggly hair and unkempt, long looked with had lineup, for the he shaved his But when he arrived defen- identify did not complainant head and face. The person a different attacker, selecting as her instead dant charged Nonetheless, lineup. defendant from involving sexual conduct two counts of criminal with resulting in personal use force or coercion injury to the victim.2 trial, claimed complainant

Several months before that her attacker had skull tattoo to have remembered any did not recall other arm, although his she upper on when it. recalled tattoo details about Nor she Trial any or other occasion. was held lineup had a tattoo that defendant skull testimony established testimony that arm. There was also upper on his store Meijer at the Fort Gratiot defendant had worked day on the of the assault. deputy

A sheriff testified County St. Clair defendant and never made a connection between police she vehicle that the asserted Jeep-type 750.520b(1)(f). MCL People v 305 Grissom op the Court Furthermore, him had seen estab- driving. pawned ring lished that defendant had a in 2001. May year more That was than a before the victim reported man in seeing wearing a black she Jeep ring that claimed could positively she identify.

Defendant did not A testify jury at trial. convicted him charged as of first-degree two counts of criminal sexual conduct. He was sentenced to 15 to 35 years prison. direct appeal, On Court Appeals affirmed his convictions.3 We denied his application for leave to appeal.4

B. THE NEWLY DISCOVERED EVIDENCE Two after years convictions, defendant’s the com- plainant called one detectives who had investi- gated against the case defendant. She him informed that she had been sexually assaulted her brother and her father when she was child. Another spoke officer with complainant, who then been reported having raped prosecutor California. The then obtained police reports Fresno, California, from Bakersfield and provided them to defendant.

1. THE BAKERSFIELD, CALIFORNIA POLICE REPORTS The first report, 28, dated September 2001, included a missing-persons form that mother had filed with the Bakersfield indi- police. form cated been at a having lunch with restaurant her mother and a friend when her telephone cellular She left rang. the restaurant with phone but never returned. to the According officer who Appeals, ^[3] People v People Grissom, issued November Grissom, unpublished Mich opinion per (Docket (2005). No. curiam of the Court of 251427) (Grissom I). 296 492 Mich Court Lerman, the form, complainant’s L. completed ” “ of for the it was ‘out character’ that

mother said police also told the take off.” She “just complainant several months raped had been complainant that herself.” had “not been and since then earlier the Bakersfield included a claim that The also report father fol- from the received police complainant that the Her father indicated lowing day. had him “told him she been recently called had police The police.” he needed to call the kidnaped and if him he believed father’s house and asked went “ just ‘No. I’m afraid it’s replied: He daughter. his a lot daughter to have of My likes smoke screen. ” police The father also told the attention.’ sexually between the had been assaulted complainant church and 12 a female member of their ages by “the were police further stated that congregation. He made, [the contacted, report was never never any counseling.” complainant] type never received complain- that the The determined police Bakersfield instead had been had not been but kidnapped, ant Fresno, California. Officers staying with friends friends, of her who indicated contacted one and ‘her “had been several times complainant raped ” explained also husband was on it.’ friend had been out in Colorado “hiding the complainant week, assaulted her where she was earlier Finally, complainant the friend noted that brother.” her. raped that her brother alleged had reflect that reports The Bakersfield also police had called her father to admitted that she complainant told Lerman that kidnapped. had been She report that she adult, 20’s, late by a “white male kidnapped had been she hair, black, length medium 5’9”, curly, pounds, with and a mustache, wearing pants black light complexion, Opinion of the Court white and striped blue shirt.” Lerman indicated that the complainant claimed that man had taken her to “a room or concrete block where there were no win- lights and forced her large pills dows” to swallow six white Lerman noted knifepoint. also that the “later incident, recanted this version of the it stating never occurred,” and that her friends picked from Fresno had at the had up restaurant where she been lunching with her mother and a friend. police investigation

Another Bakersfield “revealed a possible place assault taken against complain- [the ant], injuries as had she some consistent with a sexual assault.” Lerman again the complainant, interviewed who claimed that she had been accosted by “a white adult, male short, hair, with black wearing a green and gray mask, which mouth, covered his nose; chin and dirty jeans; and a short-sleeve shirt with the sleeves rolled The up.” complainant further claimed that man had her raped “between in parked two cars parking lot” of the restaurant that and she had been sexually assaulted at a Colorado motel traveling while However, California. Lerman noted that the com- plainant provided no details regarding the assault and was “very uncooperative.” She also refused to submit to a sexual-assault examination at a hospital.

The complainant also told Lerman that the 15- minute attack had occurred while she was outside the restaurant entering before and eating with her family. Lerman asked the complainant’s mother if daugh- her ter had appeared to be upset they while having were lunch, her said mother that her daughter seemed fine. Lerman asked colleague a if he believed complainant needed “psychiatric evaluation.”

Lerman later contacted one of the complainant’s friends in Fresno. The friend explained she had 492 MICH Court of the day on the at the restaurant up complainant

picked friend also disappearance. of a “made no mention complainant that the indicated told the time.” When Lerman assault at sexual had alleged had that she complainant friend location, and taken to an unknown kidnapped, been That is so friend said: “That is true. pills, the given asked When Lerman happened.” That never untrue. Ler- tell would why she believed stated, “I idea.” have no thing, man such a the friend October report, dated police The second Bakersfield the com- 2001, day, that on the previous indicated room in a California emergency at an appeared plainant raped. had been and announced that she hospital her at Officer Gavin talked with Bakersfield Police A. told him that she been accosted hospital. She 30’s, male, 5’6”, pounds, Hispanic early 20’s late black, hair, build, curly short in front and medium with back, plastic, type long wearing green surgical last seen face, light shirt emblem mask blue work with no over his it, dirty appearance, dirty up, on with the sleeves rolled jeans dirty tennis blue shoes. further stated:

Gavin’s report they the south complainant] [The said when reached restaurant, next to parking parked saw two vans lot of the she these two suspect pushed each then her between other. hand-held, wearing small, suspect vans. She said the was type leather gray flashlight belt with some hooked his flashlight strap. complainant] removed the from [The said he hand, right down the front of her his belt his reached with He then pants, her underwear aside. inserted moved complainant] flashlight vagina. I she [the her asked what into wearing and she told me it was the was when this occurred currently wearing. She me she had clothing same told she [the changed clothing since incident occurred. I asked said she complainant] if or douched and she she showered Opinion op the Court had taken one shower since the I [the incident. asked com- plainant] suspect anything if the said to her when he was putting flashlight vagina into her and she said he never anything. said She said did he this for a few seconds and he flashlight fingers then removed the and inserted one of his vagina. inside her complainant] began screaming

[The said she and the suspect yelled stop screaming. at her to She said he undid pants exposed penis. his his erect He was able move pants her penis and underwear aside and insert his into her vagina. complainant] began [The hitting said she him and put thighs he his hands on her keep and tried to her from squirming again around. She said she screamed and the suspect through parking ran south lot toward the businesses located south of the restaurant. She never saw complainant] [The vehicle. suspect said the did not ejaculate vagina. inside her complainant]

[The said she does not believe she could identify suspect again if she again were to see him wearing type because he was some of mask over his face. green She described this mask as and said it reminded her gardener of a mask a might or doctor wear. complainant]

I [the asked happened what suspect after the fled and she said purse she retrieved her from the sidewalkin front of the restaurant dropped where she had it. She then went back inside the business and sat with her mother and two aunts and acted nothing happened. like complain- [The ant] said cup she ordered a silently of tea and sat while the three others why conversed. I asked say she did not anything family to her and she said she inwas shock. I asked complainant] [the family if her members would find it odd they had made lunch arrangements, but she had not any ordered lunch silently and sat while the other three women socialized. typical She said that was behavior for her. I complainant] why [the asked she was afraid to tell her family, police, anyone or else about the incident in the parking lot. She told me she was afraid no one would believe her happened because this had once before. She told approximately me ago, six Michigan, months while in she 492 MICH Opinion the Court parking grocery store while raped in the lot of had been was complainant] [The said she getting out of her vehicle. again. happened it not believe in shock and could she had met also told Gavin that complainant The rape support an online through her Fresno friend group joined that she had explained She group. because had been Michigan in she being raped before old.” She further years she was six “raped when support had been “in and out of explained that she However, therapy years.” and Gavin’s groups ex- husband report noted believing complainant] [the “a difficult time pressed telling the truth.” was

2. THE CALIFORNIA POLICE REPORT FRESNO, third and final made the Fresno report was from friend report Police That stemmed Department. complainant’s allegations. concern about the expressing complainant “possibl[y] The friend that the stated may try allega- and to file false mentally unstable complain- . . . .” The also reflected that the report tions ant had met one of her Fresno friends “about 18 months to her online and on the ago talking online and has been since then.” It further stated: phone city complainant], from an unknown [The who is Michigan, approximately ago, her claims that months gang-raped reported her. brother and his friends She this suspects crime and the were arrested and convicted. got jail ago that her out of a week She states brother Colorado, staying her found her where she was with complainant] [a told [The husband to hide from her brother. Monday raped again her her and was friend] that brother supposed and her to know where she husband were. report officer who police completed The Fresno had lied to her Fresno believed People v Grissom Court friends, family, and law enforcement. The report complainant] concluded that told her family “[the Department] Bakersfield she was held being [Police Fresno, her will in which not against [The was true. mentally is complainant] possibly unstable.” C. PROCEDURAL HISTORY OF THIS APPEAL Armed with these newly police reports, in March 2006 defendant filed pro se motion for judgment relief from the and requesting a new trial. The trial court denied the motion. The court acknowl- edged that the newly discovered evidence would have been admissible at trial to test the complainant’s credibility. But the court concluded that it was bound by several Court of Appeals holding decisions newly discovered impeachment evidence cannot be the basis for a new granting trial.

The Court of denied Appeals defendant’s application appeal.5 leave to We remanded the case to the Court of Appeals for consideration as on granted, leave direct- ing it “to consider whether defendant has a reasonably likely acquittal chance of light discov- ered evidence and in light of the evidence presented against defendant that did not involve the complain- ant’s credibility.”6 remand,

On the Court of Appeals majority held that newly discovered evidence cannot form the basis for granting a if new trial its sole purpose impeach credibility.7 that, witness’s It also held even if the newly 5 Grissom, People unpublished Appeals, v order of the Court issued (Docket 274148). July 2, 2007 No. 6 (2008). Grissom, People v 480 Mich 1140 7 Grissom, unpublished opinion per v curiam of the Court of (Docket (Grissom II). Appeals, 274148), p issued October No. 10 Appeals majority People Duncan, The Court of cited 414 Mich 877 492 Mich Opinion of the Court pro-

discovered evidence were admissible could have trial, defendant had no granting vided a basis for new chance It that there was opined reasonable of acquittal.8 that was supporting other evidence defendant’s conviction There- dependent credibility.9 fore, the Court affirmed the trial court’s denial of defen- relief judgment. dant’s motion for from the Judge opined GLEICHER dissented. She that defendant on retrial in reasonably likely acquitted light to be newly discovered evidence.10 granted app defendant’s for leave to application We eal.1

II. ANALYSIS We review for an abuse of discretion a trial court’s deny decision to or a motion for grant new trial.12 A. LEGAL BACKGROUND Historically, courts been reluctant Michigan have grant newly new trials on the basis of discovered policy This is consistent with requiring evidence.13 “ care, parties to ‘use and diligence, vigilance secur- and ing presenting evidence.’ We have identified ”14 Davis, (1982), People 502, 516; (1993), App and v 199 Mich 503 NW2d 457 proposition newly for the evidence cannot be the basis for new trial. 8 II, unpub op Grissom at 11. 9 Id. 10 J., dissenting). Id. at 15 (Gleicher, 11 (2011). Grissom, People v 488 Mich 1031 12 (1960). Andrews, 572, 578; People v 104 360 Mich NW2d 199 13 See, Pizzino, 97, 109; (1945), e.g., People v 313 Mich 20 824 NW2d (1897). Jackson, 120, 123; citing City 444 v Mich 70 NW Canfield of 14Pizzino, 109, quoting Canfield, 313 Mich at 112 Mich at 123 (citations omitted). quotation marks Opinion op the Court several evaluative criteria to when apply determining granted whether new trial be because of newly discovered evidence. explained We have that a defen- dant must show that

(1) itself, merely materiality, newly its (2) discovered; discovered evidence was not (3) cumulative; not, party using could reasonable diligence, produced have discovered and the evidence at (4) trial; and the new evidence makes a different result retrial.[15] probable on

This applied test has been consistently for more than a century.16

In v Spray Ayotte, the Court added a caveat to the four-part test in the context of newly discovered im- peachment evidence, noting that “[o]rdinarily a new trial will not granted because of newly discovered impeach a witness.”17 Like the traditional four-part test, Spray’s caveat has also endured since its inception.18 15People Cress, 678, (2003) (citations 692; v 468 Mich 664 NW2d 174 omitted). quotation marks 16 See, e.g., People Clark, 643, 647; v (1961); 363 Mich 110 NW2d 638 Canfield, 112 Mich at 123. 17Spray Ayotte, (1910). 595; v 161 Mich 126 NW 530 18 See, e.g., Schroeder, 487, 499-500; Luckhurst v 183 Mich 149 NW (1914) (“Ordinarily, grant the court will not a new trial on the ground discovered evidence where that evidence is for the purpose impeachment.”), citing Spray, 593-595; People 161 Mich at v Serra, (1942) (“A 124, 133; 301 Mich 3 NW2d 35 new trial will not ordinarily granted newly-discovered he impeach because of evidence to witness.”), citing Spray, 593; People Barbara, 161 Mich see also (1977) 352, 363; Mich (“Generally, too, 255 NW2d 171 where the new only witness, impeach evidence is useful merely it is deemed cumulative.”). Thus, merely cumulative, newly if discovered evidence satisfy four-part would granting the Nonetheless, test for a new trial. impeachment

Barbara noted that “particularly new signifi evidence was only cant when . . . the evidence that an offense was ever committed was Mich 296 492

314 the of Court the reconsidered Recently, Armstrong, v we and its use as of evidence significance concluded that a a new trial.19 We grounds granting telephone introduce attorney’s failure to defense trial testi- complainant’s that contradicted records ineffective assistance of counsel mony amounted to noted the specifically for a new trial. We was sufficient attacking complainant’s importance evidence theory credibility defense’s whole “[t]he because falsely accused case was that The attacks on the rape. defendant of inconclusive, mere ‘he credibility providing at trial were said, testimony contradicting complain- she said’ Thus, the impeachment ant’s version of events.”20 sufficiently important was found to be to the that it could guilt change determination of or innocence circumstances, In on retrial. these we held result trial. might that a defendant be entitled to a new approach Federal courts have an similar to employed newly discovered Michigan’s respect impeach- with example, ment evidence. For the United States Court of has “Of course Appeals opined, for the Seventh Circuit impeaching it will be the rare case which trial, ordinarily such evidence warrants new because testimony only doubt at most on the one of will cast recognized Yet the Circuit witnesses.”21 Seventh merely because deny practice [t]he has been to new trials where the prac- impeaching[,] ... discovered evidence if imply tice should not be taken to a rule that even largely credibility might based on the of individuals whose Barbara, put question Mich at into these new witnesses.” 363-364. (2011). 281; People Armstrong, 490 Mich 806 NW2d 676 20Id. at 291. (CA 1991). 7, Taglia, United States v 922 F2d 315 Opinion of the Court proves defendant certainly that his conviction almost rests trial.”[22] lie, judge on a helpless grant [trial] to a new The Court further noted that government’s

[i]f entirely case rested on the uncorrobo single rated of a witness who was discovered utterly unworthy after trial to being be of believed because consistently string cases, he had lied in a previous judge power grant district would have the a new trial in prevent order to person being an innocent from conv icted.[23]

Thus, newly discovered evidence that impeaches a wit- ness’s testimony with false statements in made other cases is expressly permitted under Taglia.

Likewise, the United States Court of Appeals for the Third Circuit has held that “[trial] courts do not and should not ignore a claim that there has been a miscar- riage of justice just because the newly discovered evi- dence supporting the claim could categorized as impeachment Rather, character.”24 “[w]hen asked to grant solely a new trial on the basis of impeach- new evidence, ment carefully court should examine whether the defendant has demonstrated necessary exculpatory connection between the evidence and the offense or has demonstrated that the newly discovered evidence totally undermined critical inculpatory evi- dence.”25In evaluating evidence, the Third Circuit noted that “[t]here must be something more, i.e. a factual link between the heart of the witness’s testi- mony at trial and the new evidence. This link must suggest directly that the defendant was convicted 22 added). Id. (emphasis 23 added). Id. (emphasis Quiles, (CA 2010). United v 3, States 618 F3d

25 Id. at 392. Mich 296 the Court have reached and authorities Other circuits wrongly.”26 conclusions.27 similar Court of the United States Coplan,28

And White rejected explicitly the First Circuit Appeals power lacks the notion It held: jury alter a verdict. merely case, [the defendant’s] evidence was

In this credibility applies to the “general” evidence. That label reputa- through character or proofs traditional —offered specific through proof of and sometimes tion witnesses misbehavior, especially prior convictions—to instances of tendency to lie. that the witness has a support an inference trials, ... have staple modern evidence rules Once a of totally pre- without significantly restricted such evidence cluding it in all cases. considerably power- more in this case was The evidence assaults, not about sexual past

ful. The accusations were may have subjects; and while sexual assaults lies on other by generic similarity, past accusations here some present [their] bore a close resemblance to [witnesses] regard testimony markedly In one case so. —in prior allegations unusual. evidence of is false, suggests pattern prior If it accusations were (although suggests underlying motive pattern and a an character). strength of pinpointing precise without its 26Id. 27 1992) (CA 9, See, Davis, e.g., F2d 825 United States v 960 that, powerful (“[N]ewly-discovered impeachment if evidence be so fact, it could render the witness’

it to the trier of were be believed incredible.”). testimony totally of im Davis allowed the introduction entirely peachment immaterial to the witness’s testi evidence that was mony example that would an of discovered evidence at trial. As trial, stated, newly-discovered granting “If warrant a new Davis solely has been convicted that a defendant in a narcotics case establishes stealing testimony cop in involved the uncorroborated of a crooked on Davis, justice support drug money, a new trial.” the interest of would omitted). (quotation marks F2d 2005). (CA 1, Coplan, 399 F3d 18 White Court along evidence falls a continuum. That a grade defendant told lies to his teacher in school is at one end; that the testimony witness was bribed for his court Many jurors regard at another. past would a set of similar charges by [witnesses], false, very if shown as potent proof [the in defendant’s] favor. “if,” course,

This is the heart of the matter. If the prepared were prior witness to admit on the stand that a false, accusation of similar imagine nature was it is hard to good excluding reason for the evidence. Prior admitted lies powerfully same kind similar circumstances could discredit time-consuming witness. No excursion be yond required. Further, the witness would be the accusa being untrue, tion conceded inquiry to be require would not assault.[29] prior the witness to admit activity sexual or analysis White's stands as strong recognition of the utility of impeachment evidence in the prior context of false accusations. The newly discovered case did not directly contradict the witnesses’ at trial. It was nonetheless held sufficient to warrant new trial because it significantly undermined the vic- credibility tims’ question of whether the crime ever occurred.

Finally, the United Supreme States recog- Court has significance nized the of newly discovered impeachment In evidence. v Napue Illinois, the Court stated that jury’s “[t]he estimate of the truthfulness and reliability of a given witness may well be guilt determinative of or innocence, and it is upon such subtle factors as the possible interest of the in witness testifying falsely that a defendant’s life or liberty may depend.”30

It bears emphasizing that, as recognized this Court more than a century ago, newly discovered impeach-

29Id. at 24-25. 30 Illinois, Napue 264, 269; 1173; 360 US 79 S Ct 3 L Ed 2d 1217 (1959). 296 492 MICH

318 Opinion of the Court grant ordinarily justify will not ment evidence therefore, not dis- today, does trial. Our decision new the rare It will be unremarkable statement. turb this (1) connection necessary exculpatory in case which testimony the heart of the witness’s exists between (2) impeachment trial and the new on retrial.31 But when that probable different result is not to itself, a court should refuse presents rare case ground newly on the that solely a new trial grant evidence. It should impeachment evidence is discovered directly if the new evidence is not refuse even testimony.32 trial contradictory specific to Quiles, F3d See at 392. Mack, Spray Cyclopedia of Law & The dissent relies on “newly Procedure, 918-921, proposition pp that discovered for the particular in a wit that contradicts and material statements satisfy granting potentially [the Cress] could factors ness’s trial, newly only opposed to as discovered evidence that serves a new credibility.” Spray’s impeach Post at 347. This misstates a witness’s that, proposition holding. Spray stands for the uncontroversial newly granted generally, discovered a new trial will not be because of impeachment evidence. support Cyclopedia the limitation of Law & Procedure Nor does places evidence. the dissent on specifically no reference to a need for the evidence treatise makes “[n]ewly particular dis- contradict statements. The treatise states successfully upon contradict a witness a material covered evidence to trial, objection allowing and it no to such matter be cause for a new is may incidentally impeach a that the evidence witness.” Our allowance Accordingly, holding entirely with this statement. the entire consistent that the discovered evidence does basis for the dissent’s conclusion probable retrial is based on a flawed and not make a different result particular assumption: must contradict a baseless this evidence testimony. telling prosecution statement in a witness’s It is nor the Court to this Court that “neither this Court conceded its brief entry Cyclopedia Appeals that the entire from the has ever indicated event, any incorporated Michigan law.” In the dissent has been into judicially engrafts “particular” passage quoted onto the from the word meaning and, doing so, gives 100-year-old passage a its the treatise imagined. authors never People v 319 Grissom Opinion op the Court sum, In ample authority there is that undercuts the Appeals’ Court of conclusion that newly discovered impeachment evidence can never be grounds for a new Rather, trial. impeachment grounds for a trial if new it satisfies the four-part test set forth in specifically, newly Cress. More impeach- discovered (1) ment evidence satisfies Cress when there is an exculpatory connection on material matter between a testimony witness’s at trial and the new evidence33and (2) a different result is probable on retrial.34

The Court of Appeals majority in this case relied on People v Duncan35 and v People Davis36for the proposi- tion that newly discovered impeachment evidence is never grounds for a new trial. Duncan awas mere peremptory order of this Court. The Court of Appeals dissenting opinion whose reasoning this Court adopted in did Duncan impose a blanket prohibition on granting new trial newly because of discovered im- peachment evidence.37 alleged

Davis’s prohibition of new trials based on newly discovered impeachment evidence can be traced sum, precedent, In there Michigan elsewhere, is no recognizing or utility newly such a limited impeachment discovered evidence. The authority dissent newly has no impeachment for its claim that discovered evidence can directly be considered if particular it contradicts a testimony. statement in a witness’s Quiles, See 618 F3d at 392. Cress, See prosecution 468 Mich at 692. The contends that for impeachment satisfy Cress, discovered directly evidence to it must disagree. contradict a witness’s at trial. We There is no precedent Michigan interpretation for such a proper narrow scope evidence. 35Duncan, 414 Mich 877. 36Davis, App 199 Mich at 516. Duncan, 614, 618-620; See App 96 Mich 293 NW2d 648 (1980) (R. P.J., dissenting). B. Burns, 492 Mich 296 Opinion of the Court decision in Graham v Appeals of the 1967 Court

to consistent language employed Yet Graham Inskeep.38 that held noting generally that “it is today, our rule with newly-discovered if the granted not be a new trial will left the open Graham merely impeach.”39 is evidence under be circumstances there possibility evidence war- newly impeachment discovered which Thus, transformed progeny trial. Graham’s rants a new any extent that into a se one. To the per rule general prohibition against se impose per decisions Michigan im- light newly trial in of discovered a new granting evidence, they hereby are overruled.40 peachment TRIAL ABUSED ITS DISCRETION B. THE COURT earlier, a new trial on the basis granting As discussed a defendant requires discovered evidence newly (1) itself, materi- merely not its show that evidence (2) discovered, newly discovered newly ality, (3) cumulative, dili- using reasonable evidence is not pro- could not have discovered and gence, party (4) trial, and the new evidence duced the evidence at probable different result on retrial. makes a did the first case, In this not contest prosecution in the courts. It conceded three of these criteria lower discovered, cumulative, newly that the evidence was could not have discovered and that defendant diligence.41 reasonable using it at trial produced 38 (1967). 514; Inskeep, App v 5 Mich 147 NW2d 436 Graham 39 omitted). added; (emphasis quotation marks Id. at 523 94; (1989); See, Sharbnow, App e.g., People NW2d 772 v 174 Mich (1982). 750; Snell, App People 325 NW2d 563 118 Mich prosecution argues for the first time that The before this Court merely and thus evidence is cumulative defendant’s any satisfy unpreserved, in four-part This issue is but test. does not event, not cumulative The discovered evidence is it lacks merit. Opinion op the Court its discretion abused However, the trial court judg- relief from motion denying defendant’s form “cannot evidence ment. It ruled ruling This trial.” ... a new granting] . basis for .. rul- the trial court’s Accordingly, incorrect. legally discretion. an abuse of necessarily ing was trial to have the is entitled remand, defendant On newly discovered consider the carefully court The trial at trial. presented the evidence light and determine the new must evaluate court be- connection exculpatory an there exists whether testimony. the heart of it and tween consider trial court should facts in the are those a new trial grant to deciding whether in the record. those evidence and newly discovered

III. CONCLUSION evi- impeachment newly discovered hold that We trial. to a new insufficient warrant is generally dence for a new trial grounds However, such Newly in Cress. test set forth four-part if it satisfies immate- concerning impeachment discovered But if it Cress. satisfy cannot matters rial or collateral testimony concerning connection to exculpatory has an probable, different result matter and a a material necessary It is not trial is warranted. new Because testimony at trial. specific evidence contradict of this clarifica- the benefit court did not have the trial evi- newly discovered the role of tion of credibility impugn trial defendant did not because at rape previous accusations. false she had made with evidence that kind to the same present of the same “evidence Defendant was unable (1894). 758; Murray Weber, 60 NW point” 92 Iowa at trial. defen- Thus, was correct because prosecution’s initial concession newly cumulative. evidence is not dant’s 492 MICH Opinion by Concurring Marilyn Kelly, J. dence, application a remand for of the standards clari- fied here is appropriate. reasons,

For these we reverse the Court of Appeals’ judgment. We remand the case trial to the court for a determination whether discovered evi- dence satisfies Cress. The facts that the trial court should consider in deciding grant whether to a new trial are those in the and discovered evidence those in trial record. The court’s determination is to be made and communicated to this Court within 60 days of opinion. date of this

We retain jurisdiction. CAVANAGH,MARKMAN, HATHAWAY, JJ., concurred Marilyn Kelly, J. with J. Kelly, I MARILYN (concurring). Although am will- ing to remand agree to this case the trial court for application and test, resolution of the I Cress believe this Hence, Court do that I should itself. sepa- write rately to explain why.

First, appeal lingered has unresolved in the state appellate courts for the past years. six This Court already considered remanded it once before during period. parties diligently, have now thoroughly, and thoughtfully briefed and argued question whether defendant should be afforded a new trial. Not only is it for us appropriate give answer, to them an there is no to our impediment so. doing

Second, the rationale for a to the remand trial court rests in on large part the theory judge that the there has the benefit having tried the case. trial judge would have normally superior knowledge of the facts that were at presented trial. He or apply she would knowledge question to the of whether different result People J. Concurring by Marilyn Kelly, evi- discovered newly the retrial were on probable is trial case, judge the But in this dence to be admitted. remand Court’s bench, and this from the retired has nothing of in all likelihood knows who judge to a gowill case. the facts of this for leave application defendant’s

Third, granting to address parties the ordered specifically we appeal, a new evidence warrants newly discovered whether to resolve attempt Hence, it that we should trial. follows the issue. issue, the Court can establish by resolving

Lastly, newly discovered of when question on precedent Cress the fourth satisfy evidence can factor. I write

Nonetheless, fully join majority opinion. I on which question answer definitively separately appeal: leave to application defendant’s granted we evidence consti- newly discovered I hold that would that it makes evidence and exculpatory material tutes satisfying the retrial, probable different result would Accordingly, my preference Cress factor. fourth and remand defendant’s convictions to vacate case for a new trial.

I. ANALYSIS granting new majority opinion, in my As discussed requires a basis of trial on the (1) itself, merely not the evidence defendant to show (2) discovered, newly discov- materiality, its (3) reasonable cumulative, using ered evidence is pro- not have discovered could diligence, party (4) trial, and the new duced the evidence Because the on retrial.1 probable a different result makes Cress, Mich 678, 692; NW2d 174 (2003). 492 MICH296 Concurring Opinion by Marilyn Kelly, J. prosecution correctly that conceded defendant has factors, satisfied the first three remaining question newly is whether discovered evidence a makes different result probable on retrial. I would answer question that the affirmative.2

A. ADMISSIBILITYOF THE NEWLYDISCOVEREDEVIDENCE Merely a presenting court with newly discovered evidence does not automatically support grant Rather, a new trial. potentially to effect a different result on thereby retrial and satisfy the fourth Cress factor, newly discovered evidence must be admis- Thus, sible. a question prefatory to the trial court’s resolution of whether defendant’s newly discovered evidence would make different result probable retrial is whether that evidence could be admissible. The Court of Appeals majority hinted that it could be admissible in circumstances, limited namely, to show the complainant admitted she had lied about being kidnapped and about being raped in California. It also noted that police California reports con- Inskeep, App 514, 524; In Graham v (1967), 5 Mich 147 NW2d 436 Appeals opined Court of generally that trial position courts are in the best newly to determine whether produce discovered evidence would tend to Graham, different result on retrial. reasoned that trial courts are in parties. They case, closest contact with the have tried the have heard the testimony, relevant witnesses’ position and are therefore in the best proper weight evaluate the to be afforded discovered evidence. However, judge presided who over defendant’s triad and denied judgment defendant’s motion Thus, for relief from the has retired. reasoning applicability Graham’s legitimate has no here. There is no reason to remand assignment this case to the trial court for to a new judge lengthy history, background, unfamiliar with its legal factual Thus, intricacies. possesses the dissent’s claim “[t]he trial court superior ability strength impor assess in the first instance the tance of the discovered evidence in to the relation presented trial,” post at is unfounded. Grissom by Marilyn Concurring Opinion Kelly, J. under generally not admissible hearsay,3 tain which that, least, reports very conclude at the MRE 802.1 and contain information evidentiary have value presented. if properly could be admitted retrial, deny if the were to First, complainant on fact of police report rape, ever made a false having in 2001 admissible. did so in California could be she be relevant inconsistency MRE this would Under that she made credibility. testify her If she were to her severely impeach the false it would also report, was vital to credibility. veracity of defendant’s convictions. In relevant.

Second, newly discovered evidence is “relevant evidence” as MRE 401 defines regard, the existence of any tendency to make having “evidence to the determination of consequence fact that is of any it or than would probable probable the action more less the evidence.” be without 404(b)(1) provides:

MRE crimes, wrongs, not admis- of other or acts is Evidence person prove character of a in order to show sible to may, however, conformity It be admis- action in therewith. proof motive, opportu- purposes, as sible for other such scheme, doing intent, plan, system in nity, preparation, or act, identity, or knowledge, or absence of mistake an material, other the same is whether such accident when with, crimes, prior wrongs, contemporaneous or or acts are subsequent at in the case. or to the conduct issue discovered evidence Accordingly, parts that the had a complainant be admissible to show could It could falsely for a sexual assault. reporting motive consisting falsely in a engaged that she scheme show 801(c) statement, “hearsay” “a other than the one MRE defines as testifying hearing, offered in at the trial or made the declarant while prove of the matter asserted.” evidence to the truth 492 MICH296 Concurring Opinion by Marilyn Kelly, J.

accusing various individuals of raping her. The police show that reports complainant to the reported police, family, or friends that raped by she been eight least people different on at least nine separate 404(b) Thus, occasions.4 yet MRE could be another basis the introduction of information contained in police California reports.5 Third, evidentiary evidence has because, retrial, value it permit defendant access to complainant’s medical, counseling, psychological records. This could include from records the online rape support group participated in alleged rape by defendant before this case. The trial court denied defendant’s motion for discovery of trial, these records at and the Court of 6.201(C)(2)7 Appeals decision,6 affirmed this citing MCR (1) alleged rape Michigan These instances include an when the (2) complainant years old, alleged by was 6 an sexual assault a female complainant’s congregation of member the church complainant when the (3) old, years alleged was between 10 and 12 by sexual assaults (4) complainant’s child, alleged by brother when she was a sexual assaults (5) complainant’s child, alleged rape by father when she was a (6) case, alleged rapes defendant in this in California that her husband and (7) on,” alleged rape brother were “in that occurred in a California (8) parking lot, (9) allegation rape hotel, the recanted of aat Colorado and an alleged gang rape committed her brother and his friends. 5 argues, post 34, The developed dissent n exculpa at 352 that I have an tory theory complainant engaged defense that the in a “scheme” to make rape simply explained why, false accusations. I Not so. have under MRE 404(b), complainant’s admittedly accusations, evidence of the false as well as alleged the other police reports, might assaults unearthed in the California scheme, part pattern, system making admissible as of a or of those allegations. My analysis regard 404(b). language in this tracks the of MRE 6 Grissom, People unpublished opinion per v curiam of the Court of (Docket Appeals, 18, 251427), p issued November 2004 No. 4. 7 6.201(C)(2) provides, good-faith MCR “If a defendant demonstrates a belief, grounded fact, probability articulable that there ais reasonable protected by privilege likely that records are to contain material infor necessary defense, mation to the the trial court shall conduct an in inspection camera of the records.” People 327 by Marilyn Concurring Kelly, J. Stanaway.8 and rea “a to establish defendant requires

Stanaway likely are records privileged that the probability sonable to his de necessary information material to contain pursu conducted review is in camera an fense” before 6.201(C)(2) those whether to ascertain to MCR. ant “reasonably necessary that is contain records newly discov that the It appears ... .”9 the defense to rule and Stana court satisfy the could ered evidence way.10 to this evi- not apply does statute11 rape-shield a com- preclude impeaching it does

dence because false accusation. prior complainant’s with plainant instances specific of that evidence provides The statute of a conduct, opinion sexual a complainant’s of (1994). 643, 677; Stanaway, NW2d 557 446 Mich People v Id. at 684. theory “[t]he defense Stanaway in which a situation considered past troubled, maladjusted [person] whose claimant is a 682. The . . . .” Id. at make a false accusation has caused her to trauma provided support factual good-faith “a belief” defendant asserted discovery “the suffered motion that in camera for his abuse, allegation of the nonresolution abuse . . . before sexual . Id. The Court concluded produced a false accusation ...” which requisite circumstances, might met the defendant have in those review. Id. at 683. for an in camera standard clear, conduct an the trial court must I would not hold that To be Rather, psychological con- records. camera review of 6.201(C)(2), may if Stanaway it conduct review sistently MCR with likely privileged are probability records that the there is a reasonable necessary the defense. information contain complainant’s psychologicalrecords in rely Similarly, I do not showing that a assessing has met his burden defendant whether simply note how the probable retrial. I is on different result those records might possible the admission of make evidence remand. 750.520j. MCL 492 MICH 296 Concurring Opinion Marilyn Kelly, J. conduct, sexual complainant’s reputation of a complainant’s sexual generally conduct are inad- However, Jackson, missible. in People v we held that testimony concerning prior false sexual-assault allega- tions does not implicate the statute.12 rape-shield And as the Court explained Hackett, v Legislature

[t]he fact has determined that evidence of sexual conduct not is admissible as character prove evidence to general consensual conduct or for impeachment purposes not is however a declaration that evidence of sexual conduct is never admissible. We recognize situations, in certain limited such evi may relevant, dence may be but its admission required preserve to right a defendant’s constitutional to example, confrontation. For prof where the defendant fers complainant’s prior evidence of a sexual conduct for purpose showing complaining narrow witness’ bias, always this would almost be material and should be circumstances, admitted. Moreover in certain complainant’s of a may sexual conduct probative also be of a making ulterior motive for a false charge. Additionally, permitted should be defendant complainant show that the has made accusations false rape past.[13] in the (2004). People Jackson, v 477 Mich 1019 (1984) People Hackett, 338, 348; 421 Mich (emphasis 365 NW2d 120 omitted). added; dispositive question regarding citations timing past rape of a admissibility false accusation and its is not when a false rape allegation Rather, occurred given relative to the case at bar. right confrontation, defendant’s Sixth Amendment it is sufficient that any prior allegation complainant false occurred before a testifies at trial. unjust To hold otherwise would lead to results. following hypothetical situation, Consider the situations. In the first complainant alleges raped that defendant A her. While the case against pending, A rape allegations makes other against B, C, allegations defendants and D. against Then she recants her A, B, undisputed and C. It is that defendant D cross-examine the complainant regarding allegations against A, B, her recanted and C. Concurring Opinion by Marilyn Kelly, J. minimum, retrial, Thus, at a the rape-shield statute preclude of the complainant’s would admission admittedly false accusation of made to the rape Bakers- field Police. addition,

In type Hackett discussed another of evi- that, admissible, dence of sexual conduct if otherwise rape-shield does not run afoul of the statute: of complainant’s probative a sexual conduct a complain- making ant’s ulterior motive for a false charge.14 This exception may germane also be because evidence of the complainant’s past false accusation and purported arguably childhood sexual abuse could an un- suggest motive derlying making charge.15 false In light evidentiary, statutory, of these and judicially rules, if properly crafted defendant offered the evi- dence, complainant’s he could introduce the false prior rape Potentially, claim. he could also to show attempt that she made reports rape years numerous over the involving many different Finally, individuals. under 2.601(C)(2), Stanaway newly MCR discovered might permit defendant to the access com- medical, plainant’s counseling, psychological situation, complainant alleges In the second A defendant raped against pending, her. the case A While is makes allegations B, C, rape against other defendants and D that later she view, recants. Under dissent’s erroneous defendant A would not be permitted complainant regarding rape to cross-examine the the false C, allegations against B, defendants and D. This would be because he was enough unfortunate to have been accused first. Such a result unten- able. 14 Id. (CA 2005) (“If 1, Coplan, prior See White v 399 F3d false, suggests pattern pattern suggests accusations were it and a an ...”);

underlying Stanaway, (recogniz . motive see also 446 Mich at 682 ing prior produce that a unresolved sexual abuse could accusation). false 492 MICH296 Concurring Opinion Marilyn Kelly, J. retrial,

records on which were denied to him at trial. I this is not an evaluation of the note exhaustive potential admissibility discovered evi- dence.16

B. EXCULPATORYCONNECTION For impeachment evidence to sat- Cress, there must an isfy exculpatory connection offense, between the evidence and the if even the new evidence does not contradict a specific witness’s testi- mony. Alternatively, totally evidence must under- Hence, mine critical in inculpatory evidence.17 evaluat- issue, a ing identify this court must a factual link any supporting analysis, Without consideration of our rules of evidence, application governing caselaw, ipse or of the dissent states as an newly might dixit that the discovered evidence not be admissible on By contrast, carefully portions retrial. I have at outlined how least notwithstanding discovered evidence could be admissible the fact hearsay that is involved. Furthermore, remand, the dissent claims that on the trial court determining should consider admissible evidence when whether the newly discovered evidence satisfies Cress. This incorrect. MCR 6.507 provides parties may “expand by including any that the the record [the court] additional materials deems relevant to the decision on the expanded letters, affidavits, merits of the motion. The record include documents, [and] exhibits . ...” indulges speculation also in dissent considerable about evidence prosecution might seek to enter into the record on remand to defeat grant speculation part of a new trial. I have avoided such in because legal analysis astray appropriate it tends to lead the far for no useful or purpose. unavailing. example, speculates And it is For the dissent that prosecution may complainant’s show that the false California assault product post-traumatic by claims were the of stress disorder caused course, alleged But, might defendant’s assault. defendant show complainant’s against product claim him in this case was the post-traumatic stress disorder caused sexual assaults she suffered as a child. (CA 2010). Quiles, 3, United States v 618 F3d People v Grissom Opinion by Marilyn Concurring Kelly, J. at trial key between the heart of witness’s and the I hold that a newly discovered evidence. would clear the newly connection exists between exculpatory in discovered evidence this case and the heart of the testimony at complainant’s trial. This is because into question alleged new evidence calls whether crime she testified about ever occurred.

The new evidence impeaches complainant’s most incriminating testimony. Defendant’s convictions were predicated on allegation defendant sexually her. Her credibility assaulted was central to the case. But the discovered evidence casts serious doubt on credibility, just but general, with respect to the most crucial evidence trial: her testi- mony that brutally she was in a assaulted commercial lot in parking the middle of the day and defendant perpetrated the attack.

The newly police are reports highly sig- they nificant because render complainant’s allegations in this case more difficult to Relevant believe.

respect is the final version of complainant’s story docu- mented in the California police reports, details of which bear a remarkable resemblance to case. Both allegations involved rape lot in the parking cases, middle of the In both day. reported no one seeing an cases, assault. In both no physical definitive evidence of a sexual assault was obtained complainant because did not seek immediate medical treatment. And in both cases, the complainant alleged that her attacker pen- etrated foreign object, her with a his then his finger, penis. sum,

In discovered evidence creates a serious question about whether sexual any assault occurred at all in a history this case. It of at discloses one, least many nine, and as as false sexual- prior MICH 296 by Marilyn Concurring Opinion Kelly, J. about the it questions And raises allegations. assault testimony as veracity pertains complainant’s Barbara, v People noted in defendant. As we inculpating significant “particularly evidence is new ever that an offense was . . evidence when. testimony [an] based on largely committed was ques- into credibility might put whose individual[] reasons, I hold that would tion . . . .”18For these con- exculpatory evidence contains an newly discovered link between the heart nection, i.e. “a factual the new evi- testimony at trial and [complainant’s] defendant was that the directly . . . suggesting] dence wrongly.”19 convicted PROBABLEON RETRIAL

C. A DIFFERENT RESULT IS considerations, I that a believe light In of these First, pros- retrial. is probable different result Sev- strong. defendant was not against ecution’s case alleged the date of the had from elapsed eral months told her husband by complainant the time the rape complain- before the elapsed about it. Thirteen months raped claiming that someone police ant went to police her husband and the Initially, her. she told both direct had been beaten. No story different she —that There linked defendant to the crime. physical did not seek complainant and the was no DNA evidence (1977). 352, 363-364; Barbara, 255 NW2d 171 400 Mich Quiles, argues, post at that “the at 392. The dissent 618 F3d trial, any presented at let alone reports do not contradict exculpatory connection between material evidence” and that there is no testimony argu complainant’s at trial. This and the the new evidence point. exculpatory between the new connection ment misses trial that the evidence in this case and the innocence. It does evidence tends to show defendant’s new might showing him of never have accused that the crime occurred. Concurring Opinion by Marilyn Kelly, J.

medical any care until such longer evidence could no Indeed, although identified. admitted complainant that she the clothing during knew she wore the alleged attack evidence, could be for tested DNA she threw it away before it could be tested. identified complainant someone other than de-

fendant as her assailant at the police lineup. She did not tell two of the who physicians examined after the alleged attack she had that been There raped. were no eyewitnesses to the alleged attack, supposedly which occurred in daylight broad in a crowded parking lot. videotape Surveillance of the Meijer lot did not parking reveal any evidence of criminal activity. Nor did it reveal that defendant or the complainant was even present in the lot on of the parking day alleged assault.20

Second, only evidence offered to corroborate the that allegation physical she in- suffered juries that could have been signs rape of a was testi- mony from Dr. Thabit Bahhur and Dr. Deborah Russell. These are the physicians two of who examined her. Bahhur that indicated he observed abrasions on the outside and inside complainant’s vagina, as well as on her Although cervix. he that testified the abra- sions assault, were with a consistent sexual he specifi- cally indicated he could not other rule out causes the injuries.

Similarly, Russell observed on abrasions the com- plainant’s reported labia. She also bruises the com- prosecution’s explanation why The dissent reiterates tape complainant’s allegations. surveillance does not corroborate the But conjecture. it is based on utter There was no defendant ever watched, studied, Meijer system. much less store surveillance Simi larly, premise: the dissent from reasons one the assault definitively occurred and that the details the testified about were factual. 492 Mich by Marilyn Concurring Kelly, J. that the testified But Russell legs. arms

plainant’s of the time “normal” at area was vaginal complainant’s by Bahhur testimony offered Thus, the her exam. had been complainant that the establish did not Russell was that defendant assaulted, less much sexually attacker. pre- prosecutor closing argument,

Third, during a setting forth as allegations complainant’s sented really ques- no really, case, stating, “There’s slam-dunk There’s happened. assault or not this tion as to whether discovered newly of the light In no really question.” of the characterization an accurate evidence, this is not evi- discovered The allegations. complainant’s any whether about question a serious dence creates Moreover, it discloses in this case. at all assault occurred nine, many as one, and as possibly at least history a of questions It raises allegations. false sexual-assault that at a new I believe veracity. the complainant’s about find this evidence a would trial, jury probable it is defendant. acquit sufficiently compelling conclusion, not overlook I do reaching In defendant’s corroborating at trial presented entirely independent that was not convictions includes the This evidence credibility. complainant’s Meijer store where at the defendant worked fact that includes the com- It also assault occurred. alleged array. photo in a of defendant identification plainant’s having about police lie to the includes defendant’s It fitting ring a pawned owned or includes the And it ring.21 attacker’s of her description complain questions However, about the raises even this evidence complainant observed someone who veracity. testified that she ant’s year ring wearing than one thought more assailant was her she after Thus, light defendant’s new pawned and in it. on retrial had defendant evidence, jury might credible if it believes less find ring. seeing wrong and the defendant about she v Grissom Concurring Opinion by Marilyn Kelly, J. on fact defendant a skull tattoo his arm. right Furthermore, defendant altered his appearance before However, corporeal given his lineup. circumstantial evidence, nature of this the likelihood that a jury would acquit presented defendant after being with the is great enough to warrant new trial. considerations,

Given these I believe defendant has forth set a sufficient basis for new trial. As we noted Barbara, new impeachment evidence “particularly significant when . .. the only evidence that an offense was ever committed was largely based the testimony [an] whose credibility might be put into individúalo ,”22 is, . I question .. That believe there ais factual link between the heart of the complainant’s testimony at trial and the newly discovered evidence that suggests that defendant might have wrongly been convicted.23 I say cannot that a different result will occur on certainly retrial. But the newly discovered evidence undermines my confidence in the complainant’s and I testimony, believe a different result probable is on retrial.

As Judge aptly concluded her dissent in GLEICHER this case: summary, prosecutor

In presented [the the the com- plainant] ordinary mother, as an engaged wife and in a trip, shopping senselessly routine whom defendant and brutally jury attacked. The ignorant remained of other facts, highly including relevant prior the victim’s partici- pation rape in an support group, likely online which would engendered have regarding delayed reasonable doubt description Meijer’s inconsistent of the attack in the parking impeachment supplied by lot. The evidence the police reports, California likely and the further information 22 Barbara, 400 Mich at 363-364. Quiles, See 618 F3d at 392. MICH by Marilyn Concurring Opinion Kelly, J. by investigation triggered directly from additional

to flow [com reports, probably than not renders the more those incredible.[24] testimony plainant’s] believe the jury Whether would agree. I light of events in version note I question. simply an open remains evidence it would hold that makes evidence and gravity on retrial. probable different result THE COURT’S RULING II. TRIAL holds that trial opinion correctly majority denying defendant’s its discretion court abused it because ruled judgment for relief from the motion form the basis “cannot ... new trial.” granting] . . . for gave trial court insufficient I also believe newly discovered to effect of the weight potential motion for new considering defendant’s evidence when on the that went Instead, it commented trial. jury: strong exception Finally, takes to defense this Court facts that came out at trial counsel’s version jury’s in his Motion for New as contained consideration Prosecu- facts as contained Trial. The statement of my remem- is much closer tor’s brief on this motion My commenting point in of the trial brance evidence. competent ample strong there was independent [the jury Defendant convict testimony. complainant’s] that the analysis recognize failed to

This And testimony to defendant’s convictions. essential Grissom, unpublished opinion per curiam of the Court of v (Docket 29, 274148), J., p 15 Appeals, No. issued October (Gleicher, dissenting). People v Grissom Concurring by J. Markman, ignores it powerful effect of on the complainant’s credibility. Accordingly, I hold would further trial court abused its by failing to properly weigh discretion discov- ered evidence.

III. CONCLUSION I would hold that the newly discovered evidence constitutes material exculpatory evidence and satisfies factor, the fourth Cress a making different result prob- able on retrial. Accordingly, my preference would be to vacate defendant’s convictions and remand this case to the trial court for new trial.

MARKMAN, J. (concurring). I concur with the majority that the test forth in People Cress, set Mich 692; (2003), 664 NW2d 174 for determining when a new trial is warranted on grounds newly-discovered evidence, can be satisfied impeachment evidence. I further agree that such of a general character and need not specific testimony contradict at Rather, trial. it is sufficient that such evidence have an exculpatory and material connection at trial, and satisfy otherwise Particularly Cress test. involving cases credibility contests, one-on-one I believe the test adopted by the dissent may deprive a defendant of a new trial newly-discovered where evidence does not contradict specific testimony but nonetheless renders new result probable upon retrial because no crime all was committed. I also agree that newly-discovered evidence will rarely justify the grant trial, of new that this evidence cannot if satisfy Cress it concerns immaterial or collat- matters, eral and that it will be the exceptional case necessary which the “exculpatory connection” to testi- MICH by Concurring Markman,J. matter will exist and a material concerning mony I Finally, on retrial. probable will be different result case the to remand this appropriate that it is agree motion for it evaluate defendant’s court so that can trial of clarified Cress test. light trial in our a new First, I however, for two reasons. separately, I write I join that do not Justice clarify towish MARILYN KELLY’s for the same majority opinion with own concurrence the disagree dissenting opinion. Con- that I with reason this one these I find to be of opinions, to each of trary has that come puzzling criminal cases most difficult considerably I am years, in recent this Court before my as how matter colleagues less certain than four I join cannot Justice presently should resolved. KELLY’s because, dissenting opinion concurring as opinion evi- observes, significant existing there is compellingly I suggests guilt. of conduct that also dence defendant’s because, as join dissenting opinion Justice cannot observes, there is much about KELLY compellingly guilt could never suggests accuser’s conduct exclusively of almost basis have been established newly-discovered evi- the accuser’s I jury. result, As a am satisfied dence been available to the entirety court to assess the to remand to allow the trial evidence in the Cress test. applying the available Second, to summarize both the separately I write and the evidence that must be newly-discovered existing trial upon trial remand. The court considered court evidence could never clearly believed that trial, a new and therefore can be establish the basis for a matter of law.Koon to have its discretion as said abused 2035; 135 L Ed States, 81, 100; 116 S Ct 518 US United (1996). Now that this Court has clarified such 2d 392 proper under the circumstances establish evidence can trial basis, court’s appropriate a remand such Opinion by Concurring Markman, J. Cress. A the newly-discovered consideration review of evidence in this case indicates following: California, approximately

—In four months after the re- (but ported at complain- assault issue in this case before the assault), reported complainant ant that the her called father being told she kidnapped and him had been and held was in police a room with no Her windows. father told the he did not complainant, explaining believe the he “afraid that was it’s just complainant a smoke screen” because have a “likesto lot Finally, complainant’s police of attention.” the husband told clothing her missing. that and toothbrush were complainant actually —Police discovered that the was in staying friends, California with and that she had told those raped times, including by friends that had been she several Colorado, her brother in and that her husband been “in had it.” by police, complainant —When contacted the that a stated kidnapped and point, man woman had her at knife driven lights windows, her to a block with concrete room no or and given large, pills. complainant her six white The stated that jewelry. the man her her robbed of (cid:127) —The complainant report robbery then recanted her kidnapping, stating and that it “never occurred” and that friends, her rape support whom she had met in online an earlier, group picked up 18 months had her from the restaurant. complainant explained joined

—The rape that she had the support being group raped Michigan because “she before raped years was when she six was old” and “she has been support groups in and therapy years.” out of and However, complainant’s expressed the husband “a difficult telling believing [she] time was the truth.” police complainant —The told planned the that she had night spend telling the with her friends without her family husband or and kidnapping story had fabricated the “buy time” some to be alone. complainant gave —The then a third version what happened restaurant, strikingly the outside one that was complainant similar to the assault at issue here. The told 492 Mich Opinion by Concurring Markman, J. restaurant; instead, a in the police she never went that back, her, her assaulted and grabbed put a knife to and man parking two restaurant lot between raped her in the that she went in complainant then stated parked cars. The family. had with her and lunch to the restaurant rape reported about —When asked restaurant, reported her parking mother lot of parking lot of the complainant never alone in Rather, gone had in the complainant res- restaurant. family fine appeared and with the rest taurant lunch. report- hospital after complainant went to the

—When lot, rape parking she told the ing the in the restaurant hand-held, small, gray police that the man inserted flashlight vagina, penetrating as as well her into complainant digitally penis. then said with his began green fled she the man mask and when wore complainant screaming hitting “had some him. The injuries with sexual assault.” consistent police in Colorado —The then told the friend, by who had raped had been her brother’s she at her She later recanted this “tracked her down” motel. any story had occurred in Colorado. and denied that assault complainant of her friend from the —The told the fiancé rape group his support that her brother and friends online they had gang-rapedher earlier and that been had 18 months complainant that her had found said brother convicted. jail raped after he released from and her Colorado was thought her husband also involved. again and that she was fiancé, officer, complainant’s a police —The friend’s re- them, complainant ported that had lied she the unstable, mentally he might be and that was worried she allegations him. might raise about false observes, police opinion the majority the California —As complainant reported police, family reports “show that raped by eight least friends that she been at or separate at nine occasions.” people different least remand, newly- trial court should consider On evidence, with conjunction Concurring Opinion Markman, J. both inculpatory exculpatory, previously offered at trial. This includes at the following: least

—Although complainant raped claimed that defendant Meijer parking her in a during lot day, the middle of the no reported seeing witnesses hearing anything Meijer or day. complainant considerably delayed —The reporting the alleged sexual assault. complainant provided

—The varying accounts of the al- leged assault. physician

—The who examined complainant after the alleged assault testified that possible there were other explanations rape than for the physical injuries. complainant picked

—The person other than defendant corporeal out lineup. complainant

—The claimed that she believed she saw wearing gold defendant ring during he wore alleged assault year more than a after pawned defendant had ring.

—Although complainant admitted that she knew that DNA evidence could be obtained clothing, from she threw away all the clothing during she had worn alleged assault. employed

—Defendant was at the store at which the allegedly assault date, occurred and worked on that with beginning his shift shortly after the allegedly assault took place. complainant

—The identified defendant viewing after 7,500 more than photographs.

—The having described her attacker as a skull upper right arm, tattoo on his and defendant had such a upper right tattoo on his arm. owning

—Defendant lied pawning ring about and a that fit description ring. of her attacker’s dramatically —Defendant appearance shortly altered his corporeal lineup. before his Mich 296 Zahra, J. testimony that the lay reflected

—Medical and arms, face, shoulder, neck, thighs, injuries her suffered testimony that vagina that consistent with and were sexually assaulted. she had been a to a motion for new the Cress factors applying When trial, may consider two classes the trial court evidence newly-discovered the claimed evidence: evi- previous Any at the trial. presented the evidence beyond plainly that falls outside these classes is dence scope process. of the Cress very strengths considerable Precisely because weaknesses of evidence very and the considerable in a defendant, is a case which arrayed against that the trial court can appropriate remand is so rendering before evaluate all evidence properly trial warranted. judgment final on whether a new case, truly perplexing difficult and which This is that the trial court itself important makes it even more in clarification of light the evidence of our consider first the Cress test. in part dissenting part). J. (concurring

ZAHRA, set forth majority four-part I concur with the that test v Cress1 is used to determine whether People trial, to a defendant has established entitlement new and I further concur cases, grounds in rare be may, a witness impeaches Specifically, if the Cress test.

for a new trial it satisfies material, connection must exculpatory I that a agree sig- discovered evidence and exist between trial, but I nificantly presented important “it of a character disagree general strongly at trial.” specific and need not contradict Rather, I new impeachment Ante at 300. believe that (2003). 678; Cress, 468 Mich 664 NW2d Opinion by Zahra, J. evidence could make a different result probable retrial if it directly contradicts material trial in a manner testimony tends to exculpate the defendant.2 Because I do not believe that defendant’s new case, satisfies the Cress test in this I dissent from the majority’s application of the Cress test and its decision to remand this case to the trial court to again address this The issue. new evidence offered to impeach complainant any does not contradict of her testimony at trial or address in any manner the events in importantly, this case. More case did hinge this not on the complainant’s uncorroborated account of this assault. independent Substantial evidence at trial corroborated the complainant’s testimony that raped defendant her: (cid:127) The identified complainant defendant after reviewing 7,800 at a photographs police station over the course of days. four to five

(cid:127) Defendant worked at the very Meijer store in whose parking rape occurred, lot the began his shift after shortly rape.

(cid:127) The complainant described a “gold nugget” ring that her attacker wore and her, used to rape and defendant pawned such a just ring mere days rape, four after but then denied the police that he had ever owned such a ring presented until with evidence that he had pawned it.

(cid:127) described a skull tattoo that defen- dant had upper right arm, on his a tattoo that was not visible when defendant was wearing Meijer his uniform. (cid:127) radically Defendant altered his appearance shortly lineup, before a to such an extent that police officer 2 See, e.g., People Armstrong, 281, 291-292; 490 Mich 806 NW2d 676 (2011). 492 MICH296 Opinion by Zahra, J. to tell him day defendant earlier had seen

who recognize him. lineup about the could (cid:127) testimony reflected that the com- lay Medical and face, shoulder, neck, injuries to her plainant suffered arms, that were consistent with her thighs, vagina had beaten and her. raped that defendant my view, majority adequately

In fails to account for that a remand concluding independent a prob- to determine whether different result is required a have to believe jury able on retrial. Consider what would complainant rape in order to find that the fabricated her the jury claim. The would have to be convinced claim, spent four to complainant, perpetrating false 8,000 days looking nearly at the station police five a and then was somehow able to select photographs (1) Meijer at the at which person who worked store (2) occurred, began claimed the his shift complainant rape (3) shortly alleged rape, happened after the time of the ring just complainant a like the one the gold nugget own (4) described, after happened pawn ring days few (5) alleged rape, subsequently pawning denied (6) so, ring until with evidence that he did and presented upper right to have a skull tattoo on his arm as happened only jury described. Not would the have to this, all of but it would also have to conclude that believe defendant, innocence, despite his chose for some reason to and appearance by shaving alter his his head beard before lay And a to discount and lineup. jury would also have testimony regarding complainant’s multiple medical beating with the and injuries rape that were consistent that she described.

In that did not light of the substantial evidence credibility, I cannot con- depend on jury probably acquit clude that a on retrial would evi- defendant on the basis of the new Opinion by Zahra, J. dence. The trial did court not abuse its discretion denying Accordingly, defendant’s motion for a new trial. I would affirm trial court’s decision.

ANALYSIS A trial court’s decision to or grant deny motion for a new trial is reviewed for an abuse of An discretion.3 abuse of discretion occurs when trial court’s decision falls outside the range prin- reasonable and “A cipled outcomes.4 mere difference in judicial opinion not

does establish an abuse of discretion.”5 majority correctly articulates the four-factor test that must be met before a new trial be granted on the basis newly discovered evidence: granted For a newly new trial to be on the basis of (1) evidence, a defendant must show that: itself, merely materiality, its discov (2) ered; cumulative; discovered evidence was not (3) party not, using diligence, could reasonable have (4) produced trial; discovered the evidence at the new retrial.[6] probable makes a different result This test has existed our caselaw for more than a century.7 The only factor in dispute here is whether the new evidence probable makes different result retrial.8

3 Cress, 468 Mich at 691. 4 (2008). People Blackston, 451, 460; v 481 Mich 751 NW2d 408 5 Cress, 468 Mich at 691. 6 omitted). (quotation Id. at 692 marks and citations 7 See, e.g., City Jackson, 120, 123; v 112 Mich 70 444 NW Canfield of (1897); (1945). Pizzino, 97, 110; v 313 Mich 20 824 NW2d 8 prosecution The in conceded the trial court that defendant had Therefore, agree satisfied the majority other three factors. I with the that prosecution’s argument, presented we should not consider the for the Court, newly first time in this that the discovered evidence is cumulative. 492 MICH296

346 Zahra, J. explained, “Ordinarily Ayotte, In v this Court Spray newly because of discov granted trial will not be new cases Subsequent a witness.”9 impeach ered evidence to I in criminal context.10 applied principle have has not majority that our caselaw with agree strict, se rule per as a principle characterized this newly of a new trial because grant prohibiting evidence, though even some impeachment discovered it treated as Appeals panels apparently Court of have 11 in Rather, Spray simply enunciated principle such. newly it is rare cases recognizes satisfy the tradi impeachment evidence will discovered a new trial.12 granting tional four-factor test for regarding what unusual question thus arises newly impeach- discovered permit circumstances could satisfy ment the Cress test. This Court Procedure, Spray Cyclopedia cited the of Law general to the rule: exceptions which delineates the Ordinarily granted a new trial will not be any event, argument regarding prosecution’s that factor lacks In goes beyond given merit that the new evidence contains information that presented at trial. the evidence 9 595; (1910), 593, quoting Spray Ayotte, 29 v 161 Mich 126 NW 630 Mack, Procedure, Cyclopedia p of Law & 918. 10 (1942) (“A See, Serra, 124, 133; e.g., People v 301 Mich 3 NW2d 35 ordinarily granted newly-discovered new trial will not be because witness.”), impeach citing Spray, 161 Mich 593. evidence to 11See, Davis, 502, 516; e.g., People App v 199 Mich 503 NW2d 457 (1993). observes, majority the case to which these decisions can be As 514; (1967), back, Inskeep, App Mich 436 traced Graham v NW2d disfavoring language general trials consistent with the rule new used evidence, leaving thereby open based on granted possibility that a new trial in unusual circumstances. (1958) 82-83; See, Neuenfeldt, 74, e.g., Kube v 353 Mich 90 NW2d (concluding newly discovered evidence did not warrant a new trial solely impeach “merely and “offered when it was cumulative” witness); Quiles, United 618 F3d 391-392 of” a States 2010). (CA 3, v Grissom Opinion by Zahra, J. discovered impeach evidence to a witness. Thus evidence to show that a witness had made statements inconsistent with his or to contradict him on immaterial or collateral ground matters is seldom for a new trial. But evidence of contradictory by statements made a witness on whose testi mony a doubtful verdict was founded has sometimes been held setting sufficient cause for Newly aside the verdict. successfully discovered evidence to upon contradict a witness may a material matter allowing trial, be cause for a new objection it is no to such allowance may that the evidence witness.[13] incidentally impeach a Thus, newly discovered evidence that par- contradicts ticular and material statements in a witness’s testi- mony could potentially satisfy the four factors granting trial, new as opposed to newly discovered impeach serves to a witness’s cred- ibility.14

Both federal and Michigan support caselaw this expla- nation for when a new trial is warranted. For example, United States Saada, a prosecution witness who testi- pursuant fied ato cooperation agreement gov- with the ernment was later caught on tape urging another indi- 13 Mack, Cyclopedia Procedure, pp of Law & 918-921. 14 Contrary majority’s assertion, accurately to the I have described the principles Cyclopedia. majority expresses disagree enunciated in the my “particular” ment with describing use of the word types material statements that must be contradicted in order to warrant a new majority recognizes, however, trial. As the Cyclopedia states “[n]ewly successfully upon evidence to contradict a witness may allowing trial, material matter be cause for a new and it no objection to such incidentally impeach allowance that the evidence majority witness.” It is interprets difficult to discern how the language referring as to material statements that are somehow not particular. any event, opinion discuss, In as this will federal and state support proposition authorities discovered evidence to impeach probable a witness could make a different result on retrial if it directly testimony by contradicts material that witness at trial in a exculpate manner that tends to the defendant. 492 MICH Zahra, J. in another an innocent falsely implicate person

vidual to pending on a a reduced sentence in to receive case order new trial on the basis sought a The defendants charge.15 Court of Appeals The United States evidence.16 this new did that the new evidence concluded for the Third Circuit In trial.17 granting new satisfy requirements the new was noted that the court particular, exculpatory there was “no and that “only impeaching” urging someone the witness’s act of connection” between Innocent in another case falsely person an implicate Moreover, the new evidence defendants’ crimes.18 an because produced acquittal not have probably would independent of guilt there sufficient evidence testimony.19 witness’s in United Saada, in on the Third Circuit

Relying part Quiles re- general principle v summarized States evidence as garding newly impeachment discovered follows:

[L]ong experience has shown that unlikely merely impeaching is to reveal evidence that miscarriage justice. There must be that there has been more, something i.e. a factual link between the heart of the link at trial and the new evidence. This witness’s directly suggest the defendant was convicted must present, then the wrongly. ... this connection is not When merely impeaching and its revelation does new evidence is trial.[20] granting a not warrant new solely trial Therefore, grant asked to a new “[w]hen evidence, a court care- the basis of new 15 (CA 2000). 210, 3, Saada, 212 F3d 215-216 United States 16Id. at 215.

17 216. Id. at 18Id. at 217. Id. Quiles, F3d 392. United States v Opinion by Zahra, J. fully should examine whether the defendant has dem- onstrated the necessary exculpatory connection be- tween the evidence and the offense or has demonstrated totally discovered evidence undermined critical inculpatory evidence.”21 The exculpatory con- nection must be Moreover, “[d]etermining “strong.”22 the strength and importance of the exculpatory connec- tion or the significance of the newly discovered evidence with respect to the credibility of critical given at the trial is a difficult task that is left in the first instance to the discretion of the [trial] court.”23

Recently, People v Armstrong, applied we a similar analysis the analogous context of a claim of ineffec- tive assistance of counsel.24 In Armstrong, defen- dant’s attorney failed to introduce cellular telephone records that revealed the complainant’s frequent at- tempts to contact the defendant after his alleged In concluding that the defendant was preju- rapes.25 failure, diced this acknowledged we the com- plainant’s credibility at trial had been challenged in ways, various including with evidence that she had falsely accused person another of rape on a prior “Although unquestionably significant, such occasion.26 attacks had less of a tendency to undermine the com- plainant’s credibility than the cell phone records, which would have provided documentary proof strongly sug- gesting that the complainant lied jury to this regarding actions connection with the alleged rapes

21Id.

22Id. at 395.

23Id. at 393.

24Armstrong, 490 Mich 281.

25Id. at 286-287. 26Id. at 291. 492 MICH Opinion by Zahra, J. revealing records is, phone That cell “[t]he

case.”27 following the with defendant communication frequent cast serious doubt on would have alleged rapes her accusations.”28 substance of authorities, I conclude that In these light of potentially could impeach witness discovered evidence directly retrial if it different result on probable make a at trial in testimony by that witness material contradicts By the defendant. exculpate tends to a manner merely a witness contrast, impeaches evidence that new matter, unrelated to the or immaterial collateral hand, charges in the case at lacks substance of the a new trial. connection to warrant requisite exculpatory an case, has failed to establish In this defendant between the exculpatory connection the offense at issue. new evidence and events police reports concerning primarily consists than four months occurred in California more after contain no police reports in this case.29 The rape that contradicts or even addresses information regarding rape at trial Thus, do reports that occurred in this case. because trial, let alone any presented not contradict evidence, simply an connection exculpatory material not exist. does do contain can police reports

What the California confusing hearsay as a series only be described regarding attributed to the statements that occurred at vari- other sexual assaults purported 27id. Id. at 291-292 added). (emphasis police reports, complainant the California hut did not initiate Michigan years reporting police report did in three later she initiate a discovery abuse, alleged of the California childhood which led to the

reports. People Opinion by Zahra, J. life, in points ous her including during trip her during California and Some the childhood. of hear say statements are secondary tertiary hearsay or within hearsay. the Although reports suggest the com plainant retracted her regarding alleged accusation an assault in way Colorado on her to California and also retracted a claim California, that she was kidnapped the record contains no direct evidence of falsity regard the ing alleged other sexual assaults. It is thus not clear on what the grounds majority vast of the purported accusations would be admissible on retrial. is it Nor apparent theory on what the evidence of sexual-assault claims that occurred rape the in this case would be after admissible. Although “defendant should be permitted to show that the complainant has made accusa false tions of in the rape past,”30 no established theory of relevance has been identified for the admission of subsequent allegations of or rape allegations of which no falsity has been presented.31 Also, reports the contain no evidence of the complainant’s sexual conduct that would be probative of bias or an ulterior motive to make a charge.32 false Hackett, (1984) 338, 348; (emphasis 421 Mich 365 NW2d 120 added). 31Although complainant report police did not to the the sexual later, i.e., nature year of the assault in this case until more than a after police reports, events reflected in report the California she did rape to at days least four individuals within mere of the assault. In particular, complainant gynecologist told her and a friend about both penile digital penetrations days assault, and within a few emergency physician she told her husband digital and an room about the penetration days Thus, alleged regarding within as well. statements police reports, sexual assaults contained the California other than the vague abuse, rape references to childhood occurred in this case after reported rape people. to at least four after sense, then, In presented any no has evidence been accusations of false rape past in the be admitted under Hackett. 32Id.

[352] Opinion ^[492] Mich by Zahra, J. ^[296] concurrence, aggre- Justice In her KELLY MARILYN en- hearsay evidence to newly the discovered gates grant that would enterprise in a gage speculative never might that trial on the basis of evidence new not even be might indeed be admitted —and even However, considering when trial. admissible —at satisfies the Cress newly discovered evidence whether should consider standard, reviewing court evidence.33 admissible however, that the substance of assuming,

Even is somehow relevant and could police reports California find admitted, jury it is not clear whether would undermines the that this new evidence jury that the would disbe- credibility to such an extent in raped her her that defendant lieve exculpatory months earlier. Whatever Michigan four theory might explain defendant offer to evidence,34 simply he has not established likely accept theory more that than jury that a would that the in rape which is prosecution’s explanation, to suffer from an complainant this case caused the her actions subsequent emotional trauma that led to at the explained theory this prosecution California. judgment for relief from hearing on defendant’s motion or a new trial: (1898) 453; See, Martin, e.g., People 74 NW 653 v 116 Mich (stating properly a new trial was denied because that a motion for hearsay”); People “was evidence on which the motion was based (1951)

Borowski, 120, 128; (applying Martin to 330 Mich 47 NW2d deny requested trial because of discovered evidence new wholly hearsay”). “was based develops example, an excul Kelly’s Justice MARILYN concurrence For engaged theory complainant in a patory have defense considering rape Ante at 325-326. In “scheme” to make false accusations. theory, I note that there is no evidence this rape against never retracted her claim defendant. She has fabricated testimony regarding rape in this case. Zahra, J. Court, up on that represent to the I followed

I would expert to an I this material and I talked when received gave them the scenario and health and the area mental that’s specifically: Because what Is this unusual? asked representing to the Court here defense has been outrageous, just morning, this is unheard that this happen to months something like this would four five that professional me not rape. tells is it’s after a But what suffering got a from Post unusual at all. You’ve victim to not been able deal with Traumatic Stress Disorder. She’s happened parking Meijer. in lot at It to her that what reported It been to hasn’t been hasn’t even resolved. key decompensating and that’s people critical and so she’s Honor, fully your we had expect, what he told me and I jury, of a he other to hash in front that not but this out suggestion support in that that experts would come but, fact, in it this is unusual behavior corroborates happened her. It reinforces the fact that she had what to experience May year, through been a traumatic that ultimately to this which led behavior. short, any from that exculpatory

In it is far obvious to jury defense be more believable a than theory would caused an emo- theory rape that the prosecution’s to in California. Re- leading tional trauma the events member, satisfy it obligation is the defendant’s factors,35 including requiring the fourth factor Cress “the a different prob- that new evidence makes result on that defendant has failed to able retrial.”36 Given likely why jury articulate a retrial would more theory an over prosecu- believe defense exculpatory theory that is consistent with defen- tion’s alternative has not been guilt, simply dant’s the fourth Cress factor satisfied, a is not entitled to new trial.37 and defendant 35 (2012). People Rao, 271, 279; 105 491 Mich 815 NW2d 36 added). Cress, (emphasis at 692 Mich hearsay- purported new Defendant evidence includes

past present. They feeling and can often leave the survivor anxious, scared, powerless, any they other or emotions felt at the time of their assault. brief, moment, passing Some flashbacks are mild and a while may powerful long Many others a and last time. times the having individual does not even realize that is a flashback and s/he (citation omitted).] may feel faint or [Id. dissociate. Thus, given possible explanation complainant’s hearsay for the describing rape statement in California an incident similar the to in this prosecution’s representation expert case and the that it an has who support theory suffering would a post- that the from disorder, traumatic stress defendant has failed to that establish the support admission of the statement would tend the theory. defense 38 demanding establishing Even under the less standard for a violation Brady Maryland, 83; 1194; of v 373 83 S L US Ct 10 Ed 2d 215 (1963) apply undisputed Brady does not here because it is that no — which impeachment “[t]he violation force of ... is evidence dimin- occurred— 355 by Zahra, J. testifying contest. When credibility “he said” said/she penile pen- the and digital and regarding beating the defendant committed use of force that by etrations lot, in a Meijer parking her minivan approached he after ring, con- “gold nugget” a complainant described defen- ridges, chips stone taining several small finger the middle vagina into her with dant inserted questioned When during hand the assault. his left he had ever initially denied that defendant police, ring. But including gold nugget jewelry, any owned pawned he had evidence that with presented when Shop The Hock at a business called nugget ring gold defendant admit- alleged rape, days mere four after there. The ring indeed pawned that he had ted at trial as identified defendant Shop of The Hock owner after the ring days four pawned who person defendant confirmed that records owner’s rape, did so.39 supported by corrobo- is substantial when the witness’s

ished impeachment is cumulative or rating evidence or when the (D 280, Ramos-Gonzalez, collateral,” Supp 291 F 2d v 747 United States (CA 206, 1, PR, 2010), Connolly, 217 n 6 citing 504 F3d United States v 630; 627, Cain, L Ed 2d 2007); US_; Ct 181 v 565 132 S see also Smith (2012) (“We eyewitness impeaching an that evidence have observed 571 strong enough if the State’s other evidence not be material verdict.”). Moreover, widely recognized that it is in the sustain confidence “defendant-friendly” Brady than the standard more standard is See, e.g., granting discovered evidence. a new trial on the basis 2392; 97, 111; 49 L Ed 2d 342 Agurs, 96 S Ct v 427 US United States 346, Frost, 212; (1976); Connolly, v 125 F3d United States 504 F3d (CA 1995); (CA 571, 8, Duke, 6, 1997); 576-577 50 F3d United States 2005). (ED Pa, Thus, Johnson, Supp F 2d States v United defendant-friendly granting a new trial standard for under a more even here, recognized the force of applies it is than the one testimony is the witness’s is diminished when corroborating by strong supported evidence. might argument suggested that defendant at oral Defense counsel initially ring. given that defendant forgotten But that he owned have ring merely that he police he had owned such a hut denied to the 492 Mich 296 by Zahra, J. In addition, defendant worked at the Meijer store in parking whose lot the rape occurred. His shift started shortly after the rape. Defendant also had a skull tattoo on his upper right arm that would not have been visible he wearing when Meijer his uniform. The com- plainant identified such a tattoo when describing defen- dant, stating that she part saw of the tattoo during assault. A Meijer employee testified that employees are not required to wear their uniforms way work; on the are they permitted to wear street clothes and then change they when arrive.40 any jewelry whatsoever, had ever unlikely owned jury it seems that a entirely forgot would believe that gold defendant that he once owned a nugget ring pawned and then it. 40Although portions Meijer parking subject lot were to surveil video, lance tapes the officer “[tjhey’re who reviewed the testified that - absolutely poor quality. just barely Youcouldn’t see make out the cars quality, themselves. anything Poor we could tapes.” Also, not see on the Meijer employee acknowledged parking that there were areas of the lot that the cameras did identify not cover and that it people was difficult to they the further complainant were from the doors. The testified that she parked vehicles, “quite ways between two Further, from the doors.” parking displayed video of the Meijer lot is Thus, inside the store. defendant, Meijer employee, regularly could have watched the video to particular determine parking whether a by area of the lot was covered the prosecutor cameras. As during closingargument, observed defendant parking “knew that lot. He knew that store. He knew what the video showed and what it didn’t show. And when he found his vulnerable victim, he took his chance.” note, although On a related defendant notes that the attack occurred parking daylight in a lot in reported seeing hours and that no one assault, the circumstances of the assault steps reflect that defendant took to minimize being the chance of the seen or heard complainant, others. The getting who was out of her minivan when her, defendant attacked testified that she fell back into her vehicle after punched defendant her face with his fist. She then fell farther back into again, causing vehicle when he hit her her to lose consciousness with her head between the two front bucket seats vehicle. After the complainant regained up, consciousness and tried pulled to sit defendant pants underwear down around her knees. When the Zahra, J. looking after defendant identified complainant The period over a station police at the 7,800 photographs that she 6,800 photographs The first days. to five of four The books. in loose-leaf eight contained were reviewed re- information any identifying did not contain books then She photographs. in the the persons garding in digital 1,000 photographs approximately looked at did not also digital The format computer. a format on persons about identifying information any reveal complainant An testified that after officer shown. 1,000 photographs, digital approximately had reviewed computer, left the emotionally upset, “quite became she visibly very and crying room separate went into then informed the officer emotionally She upset.” her. the man who attacked picture she had found in the photograph. person depicted was the Defendant months more than two taken a little picture The was this case. rape after lineup, of the morning held. On the

A was then lineup him appear to tell to to defendant’s house an officer went happen, going tried penis was to she erect and realized what saw defendant’s in the chest and up partway, hit her several times but defendant to sit down, calling stupid Defendant her “a bitch.” her back collarbone to knock and, sliding ridged gold you up” stated, after his “[T]his will shut then finger finger, and the nugget ring inserted his the middle knuckle of his complainant Reacting pain, called defendant ring vagina. to the her into by striking “bastard,” her with the response cut her face and in defendant scream, complainant it difficult for her tried to but was hand. The back ofhis chest, having times in the which been struck several to breathe because of penis inserted his into out of her. After defendant knocked the wind again vagina, complainant’s she lost consciousness. (1) Thus, largely given inside the attack occurred parked pushed and which was vehicle, into which defendant (2) doors,” ways “quite defen- from the two other vehicles between battering complainant rendered her unconscious repeated dant’s scream, the for her to breathe or part and made it difficult of the assault the likelihood actions decreased that defendant’s own evidence indicates raped her. as he beat anyone or hear the would see 492 MICH296 Opinion by Zahba, J. for the lineup. When the officer saw defendant at his house that morning, he had “long hair, the long goatee- type, scraggly-looking beard. Unkept [sic]. He looked very unkept day, [sic].” Later that the officer went to the police lobby get station defendant for the lineup. The officer testified: “There [sic] several people sitting around in lobby in, and I went back he wasn’t -1 said he wasn’t there. I recognize didn’t him in lobby.” The officer then learned that defendant actually had been sitting the lobby when the officer went to look for him. officer had not recognized defendant in lobby because “[h]e shaved all of off, his hair all hair, of his facial completely, completely changed the way I’d him seen hours A earlier.” second officer who had seen a photo- graph of defendant also looked for him in the lobby, saw several people, and “didn’t believe he was there.” The second officer explained that she did not recognize defen- dant because appeared very “[h]e different from the photograph that I had seen of him.” In particular, when he arrived for the lineup defendant “was pretty well clean- shaven, head, his his face.” He also appeared heavier than in the photograph.41

In addition to independent evidence of defen- dant’s guilt, evidence of the complainant’s behavior and physical condition following the attack corroborated her testimony. The complainant’s husband testified that when she returned Meijer from that day, she looked panicked and terrified. She also had a cut near her mouth. The complainant immediately went to her bed- room.42 When her husband followed her into the bed- room and asked her what had happened, the complain- police Just like the identify officers who were unable to defendant lineup, complainant before the identify was also unable to defendant changed appearance after he his lineup. for the complainant The testified that she went to the bedroom because her sitting children were in the kitchen and she did not want them to see her. Opinion by Zahra, J. finishing any hard time She had a quite upset. ant “was incoherent, rambling.”43 Within Just kind of sentences. two, husband saw day next or including on legs, of her arms and bruises on both large when very upset was still thighs. complainant her The after the days room four emergency went to the she Also, relating the event. assault, difficulty and she had report days the initial two officer who took police complain- on the large scratch after the assault saw He testified that on her shoulder. ant’s face and bruises chest, arms, and on her soreness complaining she was complain- A all over.”44 friend whom much “pretty after it occurred rape days three ant had told about “very speak- slow complainant that the testified distant, and fearful. ing,” room emergency first went to the complainant did not disclose the after the assault. She days

two that time but was treated nature of the assault at sexual shoulder, neck, and arm.45 Her to her left injuries in a placed and was left arm was bruised swollen later, gyne- called days Two sling. sexually had been as- reported that she cologist 43 According complainant, about the she did not tell her husband ready point to face of the assault at that because “I wasn’t sexual nature later, days myself. I didn’t how to his heart.” Three [it] And know break digital penetration, but she did not she told her husband about pain penile penetration in because “it was obvious he was disclose the doing thinking digital penetration], I to [the I could see what was about go any I further.” him and couldn’t 44 complainant the sexual nature of The did not tell the officer about my point “I husband. I couldn’t at this because hadn’t told the assault imagine hearing I wasn’t comfortable. him it from someone else. And myself.” Admitting admitting [the officer] would he it to it to rape during complainant did not disclose the The testified she emergency six she was a room with this first visit to the room because already and did not think had taken a shower other beds and because she anything could be done. 492 MICH296 by Zahra, J.

saulted and wanted a full exam because she was grow- ing possible repercussions given worried about that her assailant had not used a condom. gynecolo- She told the gist about the penile penetration. The gynecologist directed the complainant go back to the emergency day, room. Later that the complainant returned to the emergency room reported digital penetration but penile penetration.46 not the A rape full kit was not prepared digital because penetration re- was ported and four days passed since the assault. The complainant reported An vaginal pain. examination revealed internal abrasions on the right side of the vagina and the cervical area deep vagina. The attending physician testified that although other expla- nations were possible, his findings were consistent with a forceful digital penetration and a penile forceful penetration. days

Eleven after the rape, the complainant saw her gynecologist, who testified that the complainant was anxious and depressed. An examination revealed abra- sions and scratches along the inner labia. The vaginal area normal, but vaginal “[t]he very area heals quickly. So over a matter aof few days those would probably no longer be visible.” Abrasions that had occurred days earlier would have been “healed that point.” The gynecologist also observed “obvious” bruises on the complainant’s arms and inner legs.

More than a year later, told the police about the sexual nature of the assault after she attending physician, male, The acknowledged patients that not all are comfortable with him and that female victims are sometimes uncom telling physicians being raped. fortable male physician about further explained alleged that he rape had “seen [sic] more victims seen at a later rape time than at the time that the was committed” and “[i]t’s patient unusual to obtain more and opens up more information as the gain days the matter to progress.” more information as the People 361 Opinion by Zahra, J. someone in a car behind her who matched the saw complainant explained of her assailant. The description police “stronger” that she went to the because she felt and point willing any- at that “wasn’t to live fear I ready more. I was to do what needed to do. To the get off the street who hurt me and person changed my 7,800 life.”47It was then that she reviewed the photo- graphs police at the and identified station defendant. that,

It is the noteworthy Appeals major- as Court of observed, defendant had ity already impeached com- plainant’s credibility at trial

by pointing immediately report out that she did not further, nature of the descriptions attack that her of attack, inconsistent, wholly while were incremental in the manner that she released information to her police husband and to the authorities. The [California] reports place of events that took the victim told after people raped objective several that she had been and after evidence thereof had been obtained does not cast much place doubt on events that took several months earlier in Michigan.[48] 47 preliminary testified examination that she identify ring person her, could on the hand of the in the car behind explained ring being she then at trial that she “identified that as in the position ring day same on his hand as the I was assaulted.” She did not, however, testify ring during that it was the same as the one worn prosecutor explained argument, point assault. As the at oral of this actually person was not to establish that defendant was the driving day person wearing ring behind or that the the same assault, wearing day

that defendant was on the of the but that person matching description observation of a defendant’s report police. was what led her to the sexual nature assault to the Grissom, unpublished opinion per curiam of the Court of (Docket Appeals, 274148), p issued October No. 10. The Court Appeals majority’s reasoning principle, is consistent with the discussed in context, demanding Brady “[ilmpeachment evidence, the less even credibility key that which tends to further undermine the Govern credibility already ment whose has witness been shaken due to extensive cross-examination, does not create a reasonable doubt that did not 492 MICH J. Zahra, that a differ- short,

In defendant has not established (1) retrial the ent result is because probable material any evidence does not contradict immaterial) matter, at (or, presented for that evidence in any way or in to the offenses committed pertain trial (2) im- case, already the been this in at trial her failure to ways regarding various peached (3) attack, of the and immediately report the nature objective complain- evidence corroborates significant raped that defendant her. As the Court ant’s Appeals majority explained: of — significant objective pres

[T]he evidence defendant’s crime, vicinity description ence in the of the the victim’s ring, defendant’s tattoo and defendant’s denial that he ring, ring only pawning owned the defendant’s four days attack, after the the victim’s identification of defen picture, change appearance defendant’s radical in dant’s during being lineup time told to attend a short between therein, inju appearance and his and medical evidence of — a sexual did not ries consistent with assault involve credibility legally support victim’s and were sufficient to Moreover, it defendant’s convictions. none of is affected any way by police reports.[49] the California retrial, then, jury To reach a different result on a conclude that the merely complain- would have to not claim, rape going ant fabricated her but that after 7,800 through she found the photographs, proverbial haystack, choosing photograph needle somehow (1) of an man coincidentally innocent who worked at (2) alleged vicinity the location of the was in the rape, (3) (4) described, time, ring had a like the one she (5) ring days later, subsequently four denied pawned or otherwise exist when cumulative collateral.” United (CA 1990) (citation Sanchez, 1, 917 F2d 618-619 and States omitted); Connolly, quotation internal see also 504 F3d at 217. 49 Grissom, unpub op at n10 16. Zahra, J. or, matter, owning ring any jewelry, such a for that ever (6) had a on his right upper skull tattoo arm like the one (7) described, inexplicably she and then shaved his head heard this right lineup.50 and before And conclusion despite medically must be reached the complainant’s injuries rape documented were consistent with a a beating. We must not overlook our review this issue is court, trial deferential. It was the members of Court, who tried case and heard thus question position was “without ... in the best to determine if new would [evidence] tend to a probable different result retrial.”51 The produce on a court possessed superior trial to assess in the ability first instance of strength importance and the evidence relation to the evidence pre- at majority sented trial.52 The states that the trial court 50 prosecutor during closing argument Or as the stated at trial: people right upper Lots of have skull tattoos on their arm who Meijer nugget gold ring working day? work at with a who were your logic I don’t think trust so. And I reason and and common testimony. assessing sense in people There could be dozens of walking tattoos, there, working around with skull but not not at

Meijer, gold nugget ring. photo- not with a And in the 7800 not graphs complainant] picked [the this Defendant out of. explain away. picks ... It’s not a coincidence. You can’t it She nearly 8,000. photograph Meijer. out that from He at works He’s working happened. got ring. an hour half and a after this He’s got exactly He’s explain tattoo where she said it You can’t was. away that evidence. 51 Graham., App 5 Mich 524. Quiles, strength (“Determining impor See 618 F3d at and exculpatory of significance tance connection or the of the respect credibility discovered evidence with to the of critical evidence given at the trial is a difficult task that is left in the first instance to Mich 296 Zahra, J. it trial because a new by denying its discretion

abused could evidence believed that erroneously However, the trial a new trial. the basis for never be guilt of evidence significant of the took note court also testimony: independent that was strong exception to defense Finally, Court takes at trial for the that came out of the facts counsel’s version for a New in his Motion jury’s as contained consideration in the Prosecu- facts as contained The statement of Trial. my remem- much closer to this motion is tor’s brief on commenting on My point in of the trial evidence. brance strong competent ample there was and this is that independent [the jury Defendant to convict for the testimony. complainant’s] independent regarding

This conclusion principled range of reasonable fell within guilt new deny to the decision fully supports outcomes the trial court also Therefore, the extent that trial. line of Court on an erroneous part its decision based “A correct caselaw, required. reversal is of Appeals on affirmed, although based reached and result wrong reason.”53 court.”). concurring opinion, separate [trial] In her discretion of the judge says tried this case has now that the who Kelly Justice Marilyn remand, my retired, judge assigned and that that a new will be thereby unfounded. to the trial court is of the deference owed discussion judge clear, deferring original my analysis trial I am But as makes trial; very same already new this is defendant’s motion for who denied Thus, entirely it is judge heard the evidence. tried the case and who that it is not trial court. I also note appropriate deference to the to accord assigned temporarily judge to address to be uncommon for a retired matter on remand. 53 (On 159, 162; Rehearing), People Cooper 328 Mich 43 NW2d v Charlevoix, 289, 310; (1950); City Mich also Klooster v see (2011). ignores majority inexplicably alternative this NW2d 578 Indeed, majority the trial court’s decision. basis on which to affirm the widely recognized acknowledge, apply, let alone fails even to affirmed entirely principle a correct result uncontroversial Grissom Zahra, J. Finally, majority authority no for its asser- cites tion that only facts that the trial court should “[t]he consider in deciding grant whether to a new trial are those in newly discovered evidence and those in the record.” Ante at 321. Whatever the merits of this unsupported assertion,54 square it difficult to with Kelly’s Justice concurrence, in which she MARILYN opines that “the newly discovered evidence has eviden- tiary because, trial, value it may permit defendant access complainant’s medical, to the counseling, and records,” psychological including the complainant’s rape-support-group records. Ante at 326. None those records are part evidence, nor they are Thus, the record. under the own majority’s opinion, consideration of appear those records would be entirely off limits in deciding the motion new trial.

CONCLUSION conclusion, In I concur that the Cress test is used to determine whether a defendant is entitled to new trial that new evidence may, cases, in rare satisfy the Cress test. In I particular, agree with the majority that material exculpatory connection must exist between new impeachment evidence and sig- nificantly important presented trial, but I even if an why majority reached for incorrect It reason. is not clear ground. declines to affirm on this alternative 54 Cress, In 468 Mich at Court noted that the trial court in that granted prosecution’s case reopen proofs regarding motion to my view, for a majority’s language defendant’s motion new trial. In here preclude should be read appropriate possible not when reopening express of the record as discussed in Cress. I no definitive view point respect on this with to this I case because conclude that a different probable given presented result is on retrial the facts in the original discovered evidence and at the trial. 492 MICH by Zahra, J. “may be of a disagree that such new evidence

strongly specific character and need not contradict tes- general Ante at evi- timony impeachment trial.” 300. New probable could a different result retrial dence make it material trial directly if contradicts I the defendant. exculpate manner tends from majority’s application dissent respectfully test to remand this case to the the Cress and its decision court reached a reasonable and trial court. The trial a new trial because the principled denying outcome here does not make a dif- new I ferent result on retrial. would therefore probable the trial court’s affirm decision. Mary

Young, C.J., Kelly, J., Beth concurred with Zahra, J. notes by allegedly reporting rape parking in a lot in statement Mich 296 Zahra, J. any Further undermining exculpatory defense theory independent is that substantial of guilt corroborated the complainant’s testimony defen- dant her.38The raped trial this case not a simple clear, rape however, California that was similar to the in this case. It is not similarity any against theory would cut in favor defense’s theoiy. prosecution’s According Health, to the National Institute Mental posttraumatic of a flashbacks are common side effect form of stress may person rape. having “A disorder that result from a a flashback lose reality happening touch with and believe that the traumatic incident again.” <http://www.nimh.nih.gov/health/publications/ all over (accessed anxiety-disorders/complete-index.shtml#pub4> 30, July 2012). Rape, Abuse & National Incest Network indicates: “A past they taking flashback is when memories of traumas feel as if are place Many in the current moment. survivors of sexual violence experience trauma, believing these emotional to the returns them- selves back to be scene of or attack abuse.” (accessed <http://rainn.org/effects-of-sexual-assault/flashbacks> July 2012). Moreover, triggered by many stimuli, [fllashbacks sensory can be such as or feelings. though emotional It can sometimes feel as flashbacks nowhere, making distinguish come from difficult it between

Case Details

Case Name: People v. Grissom

Court Name: Michigan Supreme Court

Date Published: Jul 31, 2012

Citation: 821 N.W.2d 50

Docket Number: Docket 140147

Court Abbreviation: Mich.