People of Michigan v. Thelonious Deshane-Ear Searcy ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 11, 2021
Plaintiff-Appellee,
v No. 349169
Wayne Circuit Court
THELONIOUS DESHANE-EAR SEARCY, LC No. 04-012890-01-FC
Defendant-Appellant.
Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ.
PER CURIAM.
Defendant, Thelonious Deshane-Ear Searcy, appeals the trial court’s order denying his
motion for a new trial and successive motion for relief from judgment following an evidentiary
hearing. We affirm in part, reverse in part, and remand for further proceedings consistent with this
opinion.
I. BACKGROUND
On September 5, 2004, a shooting occurred at the corner of Conner Street and Whithorn
Street near the Detroit City Airport. That night, an event known as a “Black Party” was taking
place in that area. The area was crowded with traffic and pedestrians. At around 9:00 p.m., several
eyewitnesses saw a man approach the back of a silver Corvette, which contained the murder victim
and the assault victim, and begin shooting. A bullet struck the assault victim’s hip, causing him
injury, and the murder victim died from multiple gunshot wounds, including one to the back of the
head and one to the chest. Although some of the eyewitnesses believed that the gunshots came
from two separate guns, the eyewitnesses did not see a second shooter.
Police officers Micah Hull, Shawn Stallard, and Scott Herzog were in a semi-marked police
car in the area of the shooting at around 9:00 p.m. Officer Hull heard the first volley of shots but
could not see a shooter or the Corvette. Officer Hull attempted to pull forward, but the police car
was hit by a burgundy Marauder. Officer Hull and Officer Stallard were then able to see a man
with a handgun shooting a second volley of shots. However, the officers could not tell if the shots
came from the same gun as the first volley. Officer Hull ran after the shooter, who ran east on
Whithorn Street. The pursuit was unsuccessful, however, because the shooter got into a car that
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sped away. The officers denied that they fired any shots and testified that they were only able to
see the shooter’s back. Casings from two different weapons were found at the scene, including
seven .45-caliber casings and eight .40-caliber casings.
Three eyewitnesses identified Searcy as the shooter from a photographic lineup. On the
morning of November 30, 2004, law enforcement went to an apartment in Clinton Township in an
attempt to locate and arrest Searcy. Officers had to force entry into the apartment, where they
initially only saw Searcy’s grandmother and Searcy’s wife. After searching the apartment,
however, officers found Searcy hiding behind a piece of drywall in a bedroom closet, in a crawl
space “behind and above a furnace.” Force and pepper spray had to be used to remove Searcy
from the crawl space. Officers also discovered a .45-caliber semi-automatic handgun on a dresser
in the bedroom where Searcy was hiding. Ballistics testing revealed that the .45-caliber casings
found at the scene of the shooting were fired from that gun.
Searcy was charged with first-degree premeditated murder, MCL 750.316(1)(a), assault
with intent to murder, MCL 750.83, and possession of a firearm during the commission of a felony,
MCL 750.227b. Trial was held over the course of several days in May 2005. The prosecution
presented a myriad of witnesses, and four eyewitnesses identified Searcy as the shooter at trial.
The prosecutor’s theory at trial revolved around a claim that Searcy mistakenly shot the victims in
an attempt to kill DeAnthony Witcher, who drove a Corvette that looked similar to the murder
victim’s Corvette. Witcher testified that Searcy had become upset with him after Searcy lost
several hundred dollars while gambling at Witcher’s home in the summer of 2003. According to
Witcher, in November 2003, Searcy shot him in the hand and “through the back through the lung
out [his] heart.” Before Searcy shot Witcher, he stated “I got to kill you.” After the November
2003 shooting, Searcy told Witcher that he was going to “get” or “kill” him. Although Witcher
did not see or hear the shooting on September 5, 2004, he was in the area in the silver Corvette
that he often drove.
Searcy did not testify at trial. Instead, he presented the testimony of several friends and
family members, each of whom testified that Searcy was at a barbecue at the home of his mother
throughout the evening of September 5, 2004. Additionally, Searcy’s mother and grandmother
testified that the apartment where Searcy was arrested belonged to his grandmother and that Searcy
did not live there. Instead, they testified that Searcy and his wife and children had merely been
visiting the apartment. Searcy’s grandmother explained that the gun did not belong to Searcy and
that it had been left in her apartment by a man named Jeffrey Daniels, who had driven her home
one day and who was killed in September 2004.
The jury convicted Searcy as charged. He was sentenced to life in prison without parole
for the first-degree murder conviction and to 15 to 30 years’ imprisonment for the assault with
intent to murder conviction, with the sentences to be served concurrently with each other and
consecutively to a sentence of two years’ imprisonment for the felony-firearm conviction. Searcy
appealed, and this Court affirmed Searcy’s convictions. People v Searcy, unpublished per curiam
opinion of the Court of Appeals, issued October 26, 2006 (Docket No. 263347). Searcy filed an
application for leave to appeal from this Court’s decision, and our Supreme Court denied leave.
People v Searcy, 477 Mich 1112; 729 NW2d 877 (2007). Thereafter, Searcy filed two motions
for relief from judgment, each of which was denied by the trial court. Searcy was unsuccessful at
obtaining appellate relief from the trial court’s decisions.
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In August 2015, Vincent Smothers, who was in prison and had already confessed to being
paid to commit multiple murders in Detroit, wrote a letter to Searcy. In the letter, Smothers
admitted that he had killed the murder victim “during a botched robbery on Whithorn and Conners
[sic] across from the city airport.” In December 2015, Smothers executed two affidavits, each of
which detailed his involvement in the September 2004 crimes. Specifically, Smothers averred that
he shot the murder victim with a .40-caliber handgun. Smothers also implicated Daniels in the
crimes, indicating that Daniels had fired a .45-caliber handgun near the murder victim’s Corvette.
After receiving one of Smothers’s affidavits from the Michigan Innocence Clinic,
Detective-Sergeant Christopher Corriveau interviewed Smothers. Detective-Sergeant Corriveau
was familiar with Smothers because he had interviewed him previously in relation to Davontae
Sanford, who was imprisoned in relation to several murders to which Smothers had confessed.
During the interview, Smothers acknowledged that the affidavit was “incorrect” and that he had
signed it at Searcy’s “behest.” Despite recanting to Detective-Sergeant Corriveau, Smothers
participated in an interview with Scott Lewis, who is a licensed private investigator and a former
journalist, on November 18, 2016. During the interview, Smothers told Lewis that he had killed
the murder victim and explained the details of the crimes and Daniels’s involvement. Smothers’s
statements to Lewis were largely consistent with the December 2015 affidavits, and Smothers
executed another affidavit after his interview with Lewis.
In 2017, Searcy filed his third motion for relief from judgment under MCR 6.502(G)(2)
and a motion for new trial under MCL 770.1, which is the subject of this appeal. The trial court
appointed counsel for Searcy and scheduled an evidentiary hearing, which took place over the
course of several days.
On the first day of the hearing, Smothers testified that he murdered the murder victim on
Conner Street “[n]ear the Detroit City Airport” on what he believed was September 6, 2004.
Smothers noted that, although he initially intended to rob the murder victim, he decided to kill him
“[a]s [he] got up to the back of the car.” Smothers testified in detail about the manner in which he
and Daniels carried out the crimes and the manner in which they escaped from the scene. Smothers
indicated that he decided to come forward when he learned that “somebody was locked up for” the
September 2004 crimes. Smothers denied that he was promised anything in exchange for his
testimony. Smothers also denied that he had “nothing to lose,” noting that he could be paroled in
his lifetime.1
During the testimony of Patricia Little, it was noted that an evidence envelope that
contained a bullet that was removed from the murder victim’s chest had conflicting descriptions.
Although Little tried to provide an explanation concerning the conflicting labels, the trial court
adjourned the hearing and ordered that the envelope be opened and examined to confirm the
contents. After the envelope was opened and the contents were examined, the hearing resumed.
1
Smothers testified that he had pleaded guilty to 11 counts of second-degree murder, as well as
several counts of felony firearm. At the time of the hearing, Smothers was 37 years old and was
serving “50 to 100 years and two years for felony firearm.”
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David Balash, who was qualified as a firearms expert at the hearing, testified that the envelope
contained “a .40 S&W . . . fired bullet.”
On December 3, 2018, the trial court issued an opinion and order, denying Searcy’s third
motion for relief from judgment and motion for a new trial. In relevant part, the trial court
concluded that a reasonable jury could not credit Smothers’s testimony that he committed the
crimes. The trial court also rejected Searcy’s reliance on the purported newly discovered forensic
evidence. Although the trial court acknowledged that the bullet that was removed from the murder
victim was at times mislabeled, the trial court found that it was clear that the envelope contained
a .40-caliber bullet and that the police had simply made a labeling error. This appeal followed.
II. STANDARDS OF REVIEW
A trial court’s decision on a motion for relief from judgment is reviewed for an abuse of
discretion, which exists when the court’s “decision falls outside the range of reasonable and
principled outcomes” or when the trial court makes an error of law. People v Swain, 288 Mich
App 609, 628-629; 794 NW2d 92 (2010). “This Court reviews a trial court’s decision to grant or
deny a motion for a new trial for an abuse of discretion.” People v Johnson, 502 Mich 541, 564;
918 NW2d 676 (2018). Additionally,
[a] trial court’s factual findings are reviewed for clear error. Clear error occurs if
the reviewing court is left with a definite and firm conviction that the trial court
made a mistake. MCR 2.613(C) provides that regard shall be given to the special
opportunity of the trial court to judge the credibility of the witnesses who appeared
before it. And appellate courts need not refrain from scrutinizing a trial court’s
factual findings, nor may appellate courts tacitly endorse obvious errors under the
guise of deference. [Id. at 565 (quotation marks and citations omitted; emphasis
omitted).]
“The interpretation of a court rule is a question of law that is reviewed de novo.” Swain,
288 Mich App at 629.
III. ANALYSIS
A. MOTION FOR A NEW TRIAL—MCL 770.1
Searcy argues that the trial court abused its discretion by denying his motion for a new trial
under MCL 770.1. We disagree, however, because our Supreme Court “superseded MCL 770.1
with the adoption of MCR 6.431.” People v Rogers, ___ Mich App ___, ___; ___ NW2d ___
(2020) (Docket No. 336000), slip op at 9. Because Searcy is not entitled to relief under MCL
770.1, the trial court did not abuse its discretion by denying Searcy’s motion for a new trial. See
id.
B. MOTION FOR RELIEF FROM JUDGMENT
Next, Searcy argues that the trial court abused its discretion by denying his motion for
relief from judgment. We agree in part.
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Subchapter 6.500 of the Michigan Court Rules sets forth the procedure for post-appeal
relief from a criminal conviction and provides the exclusive means for challenging a conviction
once a defendant has exhausted the normal appellate process. People v McSwain, 259 Mich App
654, 678; 676 NW2d 236 (2003). Because Searcy’s motion was a successive motion for post-
judgment relief, Searcy was required to first meet a threshold requirement of presenting “new
evidence that was not discovered before the first such motion.” MCR 6.502(G)(2).
We conclude that the type of bullet that was removed from the murder victim’s body did
not constitute newly discovered forensic evidence. It is undisputed that the bullet that was removed
from the murder victim’s body had an evidence number of “E07191604.” “ET # E 07191604”
was labeled as a “.40 caliber, Metal jacket bullet” in People’s Exhibit 23, which was admitted into
evidence at trial. Kevin Reed, who worked for the firearms identification unit, testified at trial that
the items listed in People’s Exhibit 23 could not have been fired from the .45-caliber gun that was
found in the room where Searcy was hiding at the time of his arrest because “they were not caliber
consistent.” Although what “ET # E 07191604” consisted of was not specifically identified by
Reed at trial, Dr. Carl Schmidt testified that he removed four bullets from the murder victim’s
body so that they could be turned over to law enforcement. The bullet that was removed from the
murder victim’s chest was labeled as “E07191604” and was described by the morgue as a “bullet”
from the murder victim’s chest. However, it was also labeled by the police department as a nine-
millimeter casing. These are entirely inconsistent descriptions.
Searcy filed his first motion for relief from judgment in March 2008. In July 2008, Searcy’s
attorney requested that the “firearm evidence be retested by the Michigan State Police to confirm
or contradict the evidence that was presented at . . . trial.” The firearm evidence was retested, and
a report was completed by the Department of State Police Forensic Science Division. In relevant
part, the report indicated that “E07191604” was tested and that it revealed a “.40 metal jacket
bullet, 6R.” Consequently, the bullet that was removed from the murder victim’s body was not
new at the time Searcy filed his first motion for relief from judgment. Indeed, the bullet was listed
as a .40-caliber bullet on a trial exhibit. Although there were conflicting labels and the motion for
relief from judgment had already been filed by the time Searcy sought retesting of the evidence,
Searcy would have been able to move to amend or supplement the motion under MCR 6.502(F).
Instead of doing so, Searcy decided not to pursue the issue once the evidence was retested and the
report was received. In sum, because Searcy did not meet MCR 6.502(G)(2)’s requirements, the
trial court was prohibited from granting Searcy’s motion with respect to the bullet that was
removed from the murder victim’s body. Therefore, the trial court did not abuse its discretion in
this respect. See Swain, 288 Mich App at 636.
Although it is undisputed that Searcy satisfied MCR 6.502(G)(2)’s threshold requirements
with respect to Smothers’s testimony, this was only the initial qualifying step for Searcy to receive
a review of the merits of his motion for post-judgment relief. See id. at 635-636. In order to obtain
relief, once that initial threshold for reviewing a successive motion was met, Searcy still needed to
separately satisfy the requirements of MCR 6.508(D)(3), which “by its own language, applies to
successive motions.” See id. at 632.
“MCR 6.508(D)(3) provides that a court may not grant relief to a defendant if the motion
alleges grounds for relief that could have been previously raised, unless the defendant
demonstrates both good cause for failing to raise such grounds earlier as well as actual prejudice.”
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Johnson, 502 Mich at 565. “ ‘Cause’ for excusing procedural default is established . . . by showing
that some external factor prevented counsel from previously raising the issue.” People v Reed,
449 Mich 375, 378; 535 NW2d 496 (1995). In this case, no evidence was introduced that Searcy
was aware of Smothers’s alleged involvement in the crimes until Smothers wrote Searcy a letter
in August 2015. Indeed, the record is replete with evidence that, although Smothers knew of
Searcy, Smothers and Searcy had never met in person. Additionally, although Marzell Black
allegedly knew of Smothers’s involvement as early as 2008 or 2009, there is no indication that
Black told anyone about Smothers’s involvement until early 2017, which was when he and Searcy
became lodged in the same prison. Soon thereafter, Black executed affidavits, outlining what
Smothers had allegedly divulged to him in 2008 or 2009. Given the record evidence, Searcy could
not have raised his claims concerning Smothers at an earlier juncture. See Johnson, 502 Mich at
565.
Next, in order to obtain relief, Searcy had to establish “actual prejudice.” MCR
6.508(D)(3)(b) defines “actual prejudice” as, in relevant part,
(i) in a conviction following a trial,
(A) but for the alleged error, the defendant would have had a reasonably
likely chance of acquittal[.]
* * *
(iii) in any case, the irregularity was so offensive to the maintenance of a sound
judicial process that the conviction should not be allowed to stand regardless of its
effect on the outcome of the case[.]
This Court has held that the “actual prejudice” requirement for obtaining post-judgment
relief “is similar to the prejudice standard in an ineffective assistance-of-counsel claim.” Swain,
288 Mich App at 638. Stated simply, to obtain relief, Searcy did not need to demonstrate that no
reasonable juror would have found him guilty. See id. at 638-639. Rather, he needed only to
establish a reasonable probability that the result of his jury trial would have been different. See
People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). This determination hinges not on
“whether the defendant would have been more likely than not to have received a different verdict,
but whether he received a fair trial in the absence of the evidence, i.e., a trial resulting in a verdict
worthy of confidence.” See People v Fink, 456 Mich 449, 454; 574 NW2d 28 (1998).
Our Supreme Court’s recent decision in Johnson is dispositive. In that decision, our
Supreme Court held that, “[i]n order to determine whether newly discovered evidence makes a
different result probable on retrial, a trial court must first determine whether the evidence is
credible.” See Johnson, 502 Mich at 566-567 (emphasis added). The Johnson Court explained:
In making this assessment, the trial court should consider all relevant factors
tending to either bolster or diminish the veracity of the witness’s testimony. A trial
court’s function is limited when reviewing newly discovered evidence, as it is not
the ultimate fact-finder; should a trial court grant a motion for relief from judgment,
the case would be remanded for retrial, not dismissal. In other words, a trial court’s
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credibility determination is concerned with whether a reasonable juror could find
the testimony credible on retrial . . . .
* * *
If a witness’s lack of credibility is such that no reasonable juror would
consciously entertain a reasonable belief in the witness’s veracity, then the trial
court should deny a defendant’s motion for relief from judgment. However, if a
witness is not patently incredible, a trial court’s credibility determination must bear
in mind what a reasonable juror might make of the testimony, and not what the trial
court itself might decide, were it the ultimate fact-finder. [Id. at 567-568 (citations
omitted).]
In this case, Smothers provided detailed testimony concerning the location of the crimes,
the manner in which the crimes were carried out, and the weapons that were used. Smothers’s
testimony that he approached the Corvette from behind and then began shooting is consistent with
eyewitness testimony. The physical evidence also supports Smothers’s testimony that he moved
toward the driver’s side window, where he fired his gun once. Importantly, a bullet hole was
located in “the side panel on the driver’s side,” and there were at least seven bullet holes in the
Corvette. Furthermore, Dr. Schmidt testified at trial that there were gunshots to the back of the
murder victim’s body, including one gunshot to the back of the head, and that the trajectory of the
other shots “went from left to the right.”
Smothers also provided an explanation for the crimes: he wanted to rob the murder victim
because he knew him to be a drug dealer who was making a large sum of money. Although the
murder victim’s wife testified that the murder victim was not a drug dealer in September 2004,
evidence supported that the murder victim had been convicted of drug-related crimes in the past
and had been sentenced to lengthy terms of imprisonment. Indeed, according to Smothers, the
murder victim had several hundred dollars in his hand, and evidence at trial supports that $294
was found in the Corvette’s center console.
While Detective-Sergeant Corriveau testified that Smothers was usually more calculated
in carrying out his crimes, Smothers testified that he took more precautions with his “contract”
cases. Smothers noted that the crimes that he perpetrated in September 2004 were not contract
cases. Smothers’s affidavits also support that he had been tracking the murder victim for months,
which is consistent with Detective-Sergeant Corriveau’s testimony about how Smothers carried
out other murders. Moreover, Smothers’s affidavits support that he carried out the crimes in the
manner that he did, i.e., seemingly on a whim in a large group of people, because he had been
unsuccessful in getting the murder victim alone and without his large “crew” during the months
that he had been attempting to rob him.
Smothers also testified in detail about the “crash” that occurred between the vehicle that
was being driven by police officers and a burgundy Marauder. Specifically, Smothers testified
that the driver of the unmarked police vehicle did not get out of the vehicle and that it appeared
that the airbag had deployed. Smothers further testified that the passenger was able to get out of
the vehicle, at which time he began firing his gun at Daniels. Smothers’s description was
somewhat consistent with testimony at trial. Specifically, one of the eyewitnesses testified that a
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Marauder got into an accident with another vehicle a short period of time after the shooting.
Officer Hull testified that he was driving a semi-marked police car that collided with a Marauder
a short period of time after the shooting. Although Officer Hull agreed that the airbags of the
police car deployed, Officer Hull testified that he got out of the car and pursued the shooter on
foot. The officers who were at the scene immediately after the shooting denied firing their
weapons. Although Smothers’s testimony is not entirely consistent with the testimony offered at
trial, there were similarities and perhaps most importantly, Officer Hull’s testimony is consistent
with Smothers’s testimony that Daniels was able to escape by getting into the car that Smothers
was driving.
Furthermore, Smothers described Daniels’s alleged involvement in the crimes in detail.
Importantly, Smothers indicated that Daniels was using a .45-caliber handgun. While Smothers
believed that Daniels only shot into the air, Smothers testified that he was not surprised that
multiple .45-caliber casings were found at the scene. Smothers’s description of Daniels at the
evidentiary hearing is also somewhat consistent with an eyewitness’s testimony, who described
the shooter as being about six feet tall and weighing “maybe 150 pounds.” According to Smothers,
Daniels looked similar to Searcy, and testimony at trial supported that Searcy was about six feet
tall and that he weighed between 140 and 145 pounds.
Additionally, Smothers testified at the hearing that the .40-caliber and .45-caliber handguns
belonged to him and that he gave them to Daniels and told him to get rid of them. Although the
trial court found it unbelievable that Smothers “would turn over his weapons to someone who
mysteriously turn[ed] up dead weeks after the homicide,” Smothers testified that Daniels was his
“associate[]” and that he had known Daniels for “several years.” Smothers also testified that he
often gave murder weapons to others to keep because Smothers lived in “the suburbs.”
Importantly, Searcy’s grandmother testified at trial that the .45-caliber gun that was associated
with some of the casings found at the crime scene was brought into her apartment by Daniels.
Testimony at trial supported that Daniels was killed a short period of time after the crimes were
committed, and this is consistent with Smothers’s testimony concerning Daniels.
Smothers’s testimony was also supported by Black, who testified that Smothers disclosed
to him in 2008 or 2009 that he had committed the crimes to which Searcy had been convicted.
Although the trial court concluded that it is unlikely that Smothers would have made such a
disclosure to Black given that Black had implicated Smothers in a different murder, the record
does not support that Black and/or Smothers had any sort of vendetta against one another. Rather,
they had been friends for many years, and Black testified that he did not really think much of
Smothers’s disclosure at the time it was made. Rather, Black was more concerned about the
criminal charge(s) that he was facing.2 Indeed, the record supports that it was not until Black
executed affidavits in March 2017 that he publicly disclosed Smothers’s alleged involvement.
Black’s affidavits were executed more than one year after Smothers wrote letters and executed two
affidavits, which outlined his involvement in the crimes.
2
Black and Smothers were facing criminal charges in relation to the murder of a Detroit woman,
whose husband had allegedly contracted with Black and Smothers for her murder.
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To support that Smothers’s testimony was incredible, the trial court also relied on the fact
that Smothers had recanted one of his affidavits when he was interviewed by law enforcement and
that Detective-Sergeant Corriveau believed that Smothers had been threatened. However,
Detective-Sergeant Corriveau was only under the impression that Smothers had been threatened.
Detective-Sergeant Corriveau testified that the way that he “recall[ed] the conversation was that
[Smothers] indicated that Mr. Searcy told him that he had friends on the outside, and they had seen
his wife and children playing, and he kind of—and we asked him if he felt threatened.” According
to Detective-Sergeant Corriveau, Smothers “kind of said yes, something to that effect.” The
interview was not recorded and Detective-Sergeant Corriveau did not take notes, so it is impossible
to know exactly what Smothers said during the interview. Furthermore, Smothers was able to
explain why he had recanted the affidavit: he did not want Sanford’s release from prison to be
“held up” by another investigation being opened. According to Smothers, “investigators” had told
him that Sanford “wouldn’t be able to get out” of prison if a new investigation was opened.
While Detective-Sergeant Corriveau denied that Smothers was told that Sanford’s
investigation would be delayed if Smothers did not recant, we find it notable that, although
Smothers initially agreed to execute an affidavit that recanted his confession, Smothers never did
so. Rather, Smothers continued to assert that he and Daniels were involved in the crimes in
question. Smothers went so far as to testify about his involvement at an evidentiary hearing against
the advice of his counsel. Furthermore, although Detective-Sergeant Corriveau did not believe
that the affidavit that he received from the Michigan Innocence Clinic was consistent with the
manner in which Smothers spoke or wrote, Smothers testified that he did not draft the December
10, 2015 affidavit. Rather, Smothers indicated that another inmate, whose name Smothers could
not recall, wrote it for him. Smothers confirmed under oath that he had signed all of the affidavits
and that the affidavits were factually accurate. Thus, although the fact that Smothers recanted
during his interview with law enforcement and Detective-Sergeant Corriveau’s testimony certainly
damages Smothers’s credibility, we conclude that a reasonable juror could nonetheless find that
Smothers was telling the truth about his involvement in the crimes.
The trial court acknowledged that Smothers knew details about the shooting, but concluded
that this was explained by the fact that Smothers and Searcy had been lodged in the same prison
for a period of time and that Searcy had trial materials in his possession. After reviewing motions
for relief from judgment that Searcy obviously drafted himself, it is clear that Searcy had trial
transcripts and other trial materials in his possession. Smothers was also able to get a letter to
Searcy in August 2015. However, as noted by Searcy, the prosecutor never presented this theory
or any evidence to support the trial court’s finding that Searcy and Smothers had shared
information while they were at the same prison. Consequently, because the trial court’s factual
finding that Smothers and Searcy were able to share records was not rooted in anything in the
record, the trial court clearly erred in this respect.
As our Supreme Court made clear in Johnson, “a trial court’s credibility determination is
concerned with whether a reasonable juror could find the testimony credible on retrial.” Johnson,
502 Mich at 567. We conclude that, when considering Smothers’s testimony in its entirety, it is
clear that his testimony is not wholly incredible, as the trial court found, and that a reasonable juror
could find his testimony worthy of belief on retrial. Consequently, the trial court clearly erred
when it concluded that Smother’s testimony was entirely incredible. See id. at 571.
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The next step is to consider “what a reasonable juror might make of the testimony” at a
future retrial. See id. at 568. In doing so, this Court “must consider the evidence that was
previously introduced at trial” and “the evidence that would be admitted at retrial,” which in this
case includes Smothers’s admissions and the information concerning the type of bullet that was
removed from the murder victim’s body.3 Id. at 571. The Johnson Court noted that, when “the
verdict is already of questionable validity, additional evidence of relatively minor importance
might be sufficient to create a reasonable doubt.” Id. at 576 n 16 (quotation marks and citation
omitted).
Smothers testified that he intended to rob the murder victim because he believed that he
was making a substantial sum of money selling drugs. However, according to Smothers, he
decided to murder the murder victim once he and Daniels approached the back of the Corvette.
Smothers then testified in detail about what occurred after the shooting, including how he and
Daniels had escaped and the involvement of the police. Some of this testimony is supported by
trial testimony. Additionally, the manner in which Smothers reported approaching the Corvette
and shooting the murder victim is consistent with evidence presented at trial. Although none of
the eyewitnesses saw two shooters, witnesses provided different physical descriptions of the
shooter, and .40 and .45-caliber casings were recovered from the scene. Importantly, at trial, the
prosecutor proceeded under the theory that there were two shooters.
Although a .45-caliber gun was located in the area where Searcy was hiding when he was
arrested and the gun was found to be the gun that fired the .45-caliber casings that were found at
the scene, only the .45-caliber gun could be tied to Searcy at trial because the .40-caliber gun was
never recovered. The jury began deliberating on Friday, May 6, 2005 at 12:22 p.m. The jury
asked whether the casings were “45 cal or 40 cal.” The jury also asked “what type of caliber of
bullet was found in the deceased.” In the same note, the jury asked to review “the video”;4 Officer
Velma Tutt’s report, which described the location and type of casings that were recovered at the
scene; and the medical examiner’s report. At 2:30 p.m., the jury was brought into the court room,
and the trial court indicated that the jury was given the medical examiner’s report and the portion
of Officer Tutt’s report that was admitted into evidence. The trial court then stated as follows:
Now with regard to your first question, what type of caliber bullet was found
in the deceased?
3
Searcy argues that this Court should also consider an October 2004 memorandum and evidence
of Witcher’s November 2004 arrest. Because Searcy fails to explain or rationalize in a detailed
manner how such evidence would be admissible, we decline to consider it. In declining to do so,
however, we express no opinion as to whether the evidence should be admitted at retrial.
4
At trial, the prosecutor presented a ten-seconds-long video recording from the camera that was
mounted on the front of the semi-marked police car. The prosecutor claimed that the recording
showed that the crowd scattered and that a man who could be the first shooter could been seen
running before a second man appeared to fire. It does not appear from the transcript that either
man was particularly identifiable from the recording.
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After speaking with the attorneys they have agreed to my sharing with you
the fact that the testimony presented in the case, and there is a report on one of the
Exhibits that the bullets that were recovered from the deceased were too deformed
to be able to identify what gun it came from or what caliber it came from.
The trial court then provided the jury with different options for watching the video and
noted that the members of the jury could review the video as many times as they deemed necessary.
At some point, the jury was sent home for the weekend.
The jury resumed deliberations on Monday, May 9, 2005. At some point, the jury indicated
that they “would like to identify the spent casings[.]” In the same note, the jury also asked to
review Officer Tutt’s testimony. At 9:48 a.m., the jury was brought back into the court room, and
Officer Tutt’s testimony was read back to the jury. The jury resumed deliberations at 10:32 a.m.
Thereafter, the jurors asked to “see the spent casings” and asked “what type of gun was recovered.”
At 12:10 p.m., the jury was brought back into the court room. The trial court indicated that “the
gun that is in evidence is a .45 caliber semiautomatic handgun.” The trial court further indicated
as follows:
Now your second request that you asked was if I understood [it] correctly,
is that you wanted to see the actual shell casings that were marked A through O.
Let me explain to you that with regards to the shell casings, A through O,
for purposes of the trial the firearm’s examiner who testified, testified with regards
to, you know, examining a number of them and testified and actually examined here
two of them. That was Item A and Item B, which were both .45 caliber spent
casings.[5]
So only two of the actual shell casings were physically introduced into
evidence, both of them being .45 caliber shell casings. And we’ll arrange to send
those two into the jury room for you to examine.
* * *
Testimony was that with regards to shell casing, A and B, which are both
.45 caliber casings, the testimony from the firearm’s examiner was that those two
casings were fired from the same weapon. Okay.
However, the shell casings, the actual casing itself in A and the casing in B
came from, the actual casings from the bullets came from different companies.
Okay. The ammunition supplier was different, but the testimony was that they
came from the same gun.
5
Only two .45-caliber casings were tested because it was determined that all of the .45-caliber
casings “came from the same gun.”
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The trial court noted that the remaining shell casings were “covered in the report, the actual
written report of the firearm’s examiner.” The trial court also noted that the report “kind of breaks
them down in terms of certain caliber casings,” i.e., .40 caliber and .45 caliber. However, the trial
court noted that the casings were not referenced in the firearm examiner’s report like they were in
Officer Tutt’s report, which referenced the casings based on a letter A through O. The trial court
indicated that, if the jury wanted the firearm examiner’s report, the foreperson should send a note.
The jury resumed deliberating at 12:18 p.m.
Later, the jury asked to see “the firearm expert report.” The jury indicated that they wanted
to “compare [the] report with the other.” For purposes of the record, the jury returned to the court
room at 2:05 p.m. The trial court explained as follows:
With regards to your request, what we have done is with regard to the shell
casings that were marked A through O, we have marked them on what is People’s
Exhibit Number 18, and People’s Exhibit Number 21 in red ink is the letter that
corresponds with Evidence Technician Tutt’s evidence lettering regarding the
casings that she found, and it will match up then with the evidence tag number, as
well as whether or not it’s a .40 caliber or whether or not it’s a .45 caliber.
The jury was excused from the court room at 2:07 p.m. At 2:35 p.m., the jury found Searcy guilty
as charged.
Thus, the jury had some difficulty with reaching a verdict and, at one point, indicated that
they were unable to reach a unanimous verdict.6 The jury was very interested in information
concerning the casings, the type of gun that was recovered, and the type of bullet that was found
in the murder victim. Importantly, the jury was informed that “the gun that is in evidence is a .45
caliber semiautomatic handgun” and was then informed that the bullet that was removed from the
murder victim could not be tested because it was “too deformed.” However, as already discussed,
the type of bullet was able to be discerned and had been accurately described as a .40-caliber bullet
before trial. Without this important evidence, the jury was left to decide whether, based on the
location of the .45-caliber casings and other record evidence, Searcy committed the crimes.
Although four eyewitnesses identified Searcy as the shooter at trial and three eyewitnesses
had identified Searcy in a photographic lineup, some of the eyewitnesses gave different physical
descriptions of the shooter. Additionally, one of the eyewitnesses acknowledged that he could not
identify the shooter “by face.” The prosecutor was also unable to provide a motive as to why
Searcy would want to murder the murder victim, instead relying on a theory that Searcy actually
intended to murder Witcher. While the prosecutor correctly notes on appeal that Searcy was found
hiding in a room where the .45-caliber gun was located and that the gun was associated with
casings at the scene, Searcy’s grandmother provided an explanation as to why the gun was in that
location. Specifically, she testified that Daniels had brought the gun into her apartment in August
2004. While this explanation is problematic given that the crimes were committed in September
2004, there could be other reasons why Searcy was hiding from the police, some of which could
be somewhat innocent or simply unrelated to the crimes at issue in this case. Importantly, it is
6
This note was not addressed on the record. It appears that it was written on May 6, 2005.
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ultimately for the jury to determine whether a defendant’s conduct was indicative of consciousness
of guilt. See People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996).
Although the jury disregarded the many witnesses who provided alibi testimony on behalf
of Searcy at trial, if the jury was aware that the bullet that was found in the murder victim was
from a .40-caliber gun and that Smothers was taking responsibility for the crimes, they may have
put more stock in Searcy’s alibi defense. As already stated, when “the verdict is already of
questionable validity, additional evidence of relatively minor importance might be sufficient to
create a reasonable doubt.” Johnson, 502 Mich at 576 n 16 (quotation marks and citation omitted).
In sum, when considering the trial evidence in light of the other evidence that would be presented
at retrial, we conclude that Searcy has a reasonably likely chance of acquittal. See MCR
6.508(D)(3)(b)(i)(A). Therefore, the trial court abused its discretion by denying Searcy’s motion
for relief from judgment with respect to Searcy’s claim of new evidence relating to Smothers.7
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
/s/ Thomas C. Cameron
7
To the extent that Searcy argues that the trial court abused its discretion by denying his motion
for relief from judgment in relation to his claims concerning Witcher’s November 2004 arrest, we
conclude that Searcy is not entitled to relief. Searcy already raised this argument in his second
motion for relief from judgment, which was denied by the trial court. This Court dismissed
Searcy’s application for leave to appeal, People v Searcy, unpublished order of the Court of
Appeals, entered December 29, 2015 (Docket No. 330257), and our Supreme Court denied leave
because Searcy “failed to meet the burden of establishing entitlement to relief under MCR
6.508(D),” People v Searcy, 500 Mich 880; 886 NW2d 436 (2016). See MCR 6.508(D)(2) (“The
court may not grant relief to the defendant if the motion . . . alleges grounds for relief which were
decided against the defendant in a prior appeal or proceeding under this subchapter[.]”).
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