People of Michigan v. Ricky Eugene Gross ( 2024 )


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  •             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    PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
    October 25, 2024
    Plaintiff-Appellant,                                 2:10 PM
    v                                                                   No. 369876
    Wayne Circuit Court
    RICKY EUGENE GROSS,                                                 LC No. 03-009154-01-FC
    Defendant-Appellee.
    Before: RIORDAN, P.J., and YOUNG and WALLACE, JJ.
    PER CURIAM.
    In this interlocutory appeal, the prosecution appeals by leave granted 1 the order granting
    defendant’s 2019 successive motion for relief from judgment (MRJ) and request for a new trial.
    We affirm.
    The jury convicted defendant of felony murder, MCL 750.316(b), first-degree murder,
    MCL 750.316(a), two counts of assault with intent to commit murder, MCL 750.83, and possession
    of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant’s
    convictions arose from a shooting at Club Med, a Detroit nightclub, in 2002. The testimony at
    trial established that an unknown male attempted to rob Eugene Harris of his watch while he was
    standing in line to enter Club Med. Harris evaded the man and dove into the vestibule of the club.
    Officer Derrick Mason, an off-duty member of the Detroit Police Department, was standing at the
    entrance to the club when this occurred. Officer Mason attempted to remove his gun from its
    holster, but the man shot Officer Mason before he could get his weapon. The man fired several
    other shots into the club, killing one female. The shooter disappeared after the shooting. Marcia
    Spivey observed the shooter during the incident and helped the police draw a sketch of the shooter.
    A few months later, Officer Mason saw defendant’s picture appear on a television show,
    Detroit’s Most Wanted, and identified him as the Club Med shooter. Officer Mason was unable
    1
    People v Gross, unpublished order of the Court of Appeals, entered April 15, 2024 (Docket
    No. 369876).
    -1-
    to identify defendant’s picture from a photograph array, but did note that defendant’s picture
    looked like the shooter. A month later, Officer Mason happened to see defendant in jail on
    unrelated charges and identified him as the shooter. Spivey immediately recognized defendant as
    the shooter when she viewed a lineup. At trial, both Officer Mason and Spivey identified defendant
    as the shooter.
    Defendant raised numerous appeals and MRJs during his incarceration. The instant appeal
    stems from defendant’s 2019 MRJ, wherein he argued that he was entitled to a new trial on the
    basis of newly discovered evidence pursuant to Brady v Maryland, 
    373 US 83
    ; 
    83 S Ct 1194
    ; 
    10 L Ed 2d 215
     (1963). In 2019, defendant received the prosecutor’s file for his case pursuant to his
    request under the Freedom of Information Act (FOIA), MCL 15.231 et seq. Defendant found
    police reports in his file that he alleged the prosecution did not provide to him at the time of trial.
    The trial court denied defendant’s MRJ after finding that defendant had access to the police reports
    because there were no reported discovery problems at the time of trial. A panel of this Court
    denied defendant’s delayed application for leave to appeal the trial court’s decision. People v
    Gross, unpublished order of the Court of Appeals, entered May 20, 2021 (Docket No. 356670).
    However, the Michigan Supreme Court vacated the trial court’s order and remanded the case for
    an evidentiary hearing to determine if the evidence in the police reports was discovered before
    defendant’s first MRJ and, if it was not, whether defendant was entitled to a new trial. People v
    Gross, 
    509 Mich 875
     (2022). After holding two evidentiary hearings, the trial court concluded
    that the police reports were newly discovered evidence. The trial court also determined that the
    newly discovered evidence entitled defendant to a new trial pursuant to Brady because the evidence
    made a different result probable on retrial. Thereafter, the trial court entered an order vacating
    defendant’s convictions and sentences. The prosecution then sought leave to appeal, which was
    granted.
    The prosecution argues that the trial court abused its discretion when it granted defendant’s
    MRJ because the evidence on which defendant relied was neither new nor admissible at retrial.
    We conclude that a violation of Brady occurred in this case where the prosecution suppressed the
    police reports, the evidence contained in the police reports was favorable to defendant, and the
    evidence was material. As such, we hold that the trial court did not abuse its discretion when it
    granted defendant’s MRJ.
    “A trial court’s decision on a motion for relief from judgment is reviewed for an abuse of
    discretion.” People v Christian, 
    510 Mich 52
    , 74-75; 
    987 NW2d 29
     (2022). “An abuse of
    discretion occurs when the court makes a decision that falls outside the range of reasonable and
    principled outcomes, or makes an error of law.” Id. at 75 (quotation marks and citations omitted).
    A trial court’s findings of fact are reviewed for clear error. People v Swain, 
    288 Mich App 609
    ,
    628; 
    794 NW2d 92
     (2010). “Clear error occurs when the reviewing Court is left with a firm
    conviction that the trial court made a mistake.” People v Caswell, 
    336 Mich App 59
    , 70; 
    969 NW2d 538
     (2021) (quotation marks and citation omitted). “A trial court’s decision on a Brady
    claim is reviewed de novo.” Christian, 510 Mich at 75.
    “Generally speaking, one and only one motion for relief from judgment may be filed with
    regard to a conviction[.]” People v Johnson, 
    502 Mich 541
    , 565; 
    918 NW2d 676
     (2018) (quotation
    marks and citation omitted). However, a defendant may file a successive MRJ on the basis of a
    claim of new evidence that was not discovered before the first motion. MCR 6.502(G)(2)(b).
    -2-
    The police reports that were sent to defendant in 2019 constituted new evidence. Defendant
    testified that the police reports were not contained in the file that his lead trial counsel, Richard
    Powers, gave to him after trial, though at the time defendant believed that the file he received
    contained all of the evidence in the case. Defendant testified that he did not receive the police
    reports until 2019, after his four prior MRJs were filed. Further, Che A. Karega II, an attorney
    who served as second chair at defendant’s trial, signed an affidavit stating that he had never seen
    the seven-page report that was emailed to him (by an investigator working for defense counsel) on
    August 14, 2023, and that, “It definitely was not provided before trial.” He affirmed the facts
    stated in his affidavit at the evidentiary hearing held on January 4, 2024. Karega testified that he
    had not seen the documents until they were recently emailed to him, that he reviewed all of the
    discovery in the case during the time of defendant’s trial, and that the care progress reports were
    not part of that file. Importantly, Karega testified the defense would have utilized the reports if it
    had them.
    Defendant’s lead trial counsel, Powers, has since passed away, and an investigator was
    unable to locate whatever files Powers retained for defendant’s case. However, none of the
    information contained in the reports was mentioned at trial, indicating that Powers likely did not
    possess the reports. The only indication that defendant may have had the reports at the time of
    trial was the prosecutor’s statement at the evidentiary hearing that it is the policy of the
    prosecutor’s office to supply defendants with their entire file during a trial. This statement from
    the prosecutor is insufficient to demonstrate that the trial court clearly erred by finding that the
    reports constituted new evidence, especially in light of the foregoing evidence suggesting the
    defense did not possess the reports before 2019.
    We disagree with the prosecution’s argument that none of the information in the police
    reports constituted evidence because it would all be inadmissible at retrial, and thus, could not
    constitute “new evidence” under MCR 6.502(G)(2)(b). As discussed later, the police reports
    revealed new evidence that the defense could present through witnesses at retrial. Accordingly,
    defendant was permitted to file a successive MRJ on the basis of newly discovered evidence. MCR
    6.502(G)(2)(b).
    With respect to defendant’s entitlement to the relief requested in the MRJ, MCR
    6.508(D)(3) provides that, if the grounds raised in an MRJ could have been raised in a prior appeal
    or MRJ, a trial court is not permitted to grant relief unless the defendant demonstrates “good cause
    for failure to raise such grounds on appeal or in the prior motion” and “actual prejudice from the
    alleged irregularities that support the claim for relief.” MCR 6.508(D)(3)(a) and (b). As discussed
    above, the trial court did not clearly err by finding that defendant did not receive the police reports
    until his 2019 FOIA request. Since defendant did not know about the police reports until 2019, he
    could not have sought relief in conjunction with the reports in a prior MRJ or his first appeal. See
    Johnson, 
    502 Mich at 565
     (explaining that the subject claim could not have been raised in the
    defendant’s previous appeal because the defendant did not know about the new evidence when he
    appealed). Accordingly, the requirements set forth in MCR 6.508(D)(3) are not applicable in this
    case.
    Since the trial court was permitted to grant the relief requested in defendant’s 2019 MRJ,
    we must determine whether defendant demonstrated that he was entitled to relief. See MCR
    6.508(D). Defendant argues he was entitled to relief because the prosecution violated Brady, 373
    -3-
    US 83. “To establish a Brady violation, a defendant must show that: (1) the prosecution has
    suppressed evidence; (2) that is favorable to the accused; and (3) that is material.” Christian, 510
    Mich at 76 (quotation marks and citation omitted).
    “The evidence at issue must be favorable to the accused, either because it is exculpatory,
    or because it is impeaching . . . .” Strickler v Greene, 
    527 US 263
    , 281-282; 
    119 S Ct 1936
    ; 
    144 L Ed 2d 286
     (1999).
    To establish that exculpatory evidence is material, a defendant must show that there
    is a reasonable probability that, had the evidence been disclosed to the defense, the
    result of the proceeding would have been different. A reasonable probability means
    a probability sufficient to undermine confidence in the outcome. A defendant need
    not demonstrate by a preponderance that disclosure of the suppressed evidence
    would have resulted ultimately in the defendant’s acquittal. Rather, the relevant
    question is whether the defendant received a fair trial, understood as a trial resulting
    in a verdict worthy of confidence. [Christian, 510 Mich at 76 (internal quotation
    marks and citations omitted).]
    The materiality of suppressed evidence should be evaluated in the context of the entire record. Id.
    at 77. “[D]etermining whether defendants received a trial resulting in a verdict worth [sic] of
    confidence requires an analysis not just of the evidence presented, but of the quality of the
    investigation.” Id. at 80 (quotation marks and citation omitted).
    Defendant identifies the following information from the police reports as pertinent to his
    MRJ: (1) Officer Michael Carlisle’s opinion that Harris was lying; (2) Spivey’s statements that she
    knew Harris for a long time, believed Harris was shady, did not think an attempted robbery
    occurred, and believed the shooter intended to shoot Harris; (3) Spivey’s statement that Harris and
    an unknown male argued over a girl the week before the shooting; and (4) Investigator Mack’s2
    opinion that the drawing of the shooter strongly resembled Officer Michael McLean, whom
    Internal Affairs was allegedly preparing to arrest on suspicion of robbing drug dealers. Defendant
    also mentions that Officer McLean carried a gun that could have produced the .40 caliber shell
    casings found at Club Med.3
    With respect to the first Brady prong, as discussed earlier, it appears the trial court did not
    clearly err when it found that the prosecution suppressed evidence. The police reports were part
    of the prosecutor’s file but the prosecution did not give the reports to the defense at the time of
    trial.
    2
    Investigator Mack’s full name was not provided below.
    3
    While the police reports do not contain information regarding the caliber of McLean’s weapon,
    the record does establish that McLean’s fellow City of Detroit police officer, Officer Mason, did
    carry a .40 caliber Smith and Wesson Glock (the parties stipulated at trial that none of the casings
    found at the scene of the shooting were fired from Mason’s weapon).
    -4-
    Regarding the second Brady prong, the subject information contained in the reports was
    favorable to defendant. Officer Carlisle’s opinion that Harris was lying and Spivey’s opinion that
    Harris was shady were favorable to defendant because both undercut the testimony of Harris, a
    witness for the prosecution. Further, Spivey’s adamant belief that a robbery was not attempted
    was favorable to defendant because that undermined defendant’s conviction of felony murder, and
    it contradicted the prosecution’s theory of the case, which was that the victims were shot during a
    robbery attempt. Additionally, Spivey’s statement regarding the argument in which Harris
    engaged, and her belief that the shooter intended to harm Harris, was favorable to defendant
    because those pieces of information supported defendant’s argument that he was not the shooter,
    i.e., defendant could argue that the unknown man who argued with Harris the prior week could
    have been the shooter. Finally, that the sketch of the shooter closely resembled Officer McLean
    was favorable to defendant because it indicated there could be another suspect for the shooting.
    Regarding the third prong of Brady:
    The evidence is material only if there is a reasonable probability that, had the
    evidence been disclosed to the defense, the result of the proceeding would have
    been different. A “reasonable probability” is a probability sufficient to undermine
    confidence in the outcome. [US v Bagley, 
    473 US 667
    , 682; 
    105 S Ct 3375
    ; 
    87 L Ed 2d 481
     (1985).]
    The subject information in the police reports at issue here was material. The fact that Spivey had
    known Harris for years, coupled with the fact that Spivey had opined that Harris was “shady,”
    could have allowed defendant to examine Spivey about Harris’ reputation for untruthfulness, or
    by testimony in the form of an opinion about that character, pursuant to MRE 608(a).4 5 If Spivey’s
    answer contradicted her prior statement, she could have been impeached with the statement she
    made to Officer Carlisle, i.e., that she believed Harris was “shady.”6 Spivey’s adamant impression
    that a robbery was not taking place, and that the shooter was attempting to shoot Harris, was
    relevant pursuant to MRE 401 as it would have rebutted the testimony of Harris on the issue of the
    underlying felony, as well as the prosecution’s theory of the case (i.e., the testimony would make
    the fact of the underlying felony, and the prosecution’s theory of the case less probable). Even if
    4
    While it is improper for a witness to comment on the credibility of testimony offered by another
    witness, see People v Musser, 
    494 Mich 337
    , 349; 
    835 NW2d 319
     (2013), testimony can be offered
    about the witness’s character for untruthfulness. Pursuant to MRE 608(a), “A witness’s credibility
    may be attacked or supported by testimony about the witness’s reputation for having a character
    for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.”
    5
    The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective
    January 1, 2024. See 
    512 Mich lxiii
     (2023). We rely on the version of the Michigan Rules of
    Evidence that would foreseeably be in effect on retrial—the current version of the rules.
    6
    Although the prosecution has questioned the significance of that term used by Spivey, the
    implication is that Spivey opined that Harris had a reputation for untruthfulness. The New Oxford
    American Dictionary Third Edition (2010) defines the word “shady” as “of doubtful honesty or
    legality.”
    -5-
    Spivey changed course at the time of trial and testified that a robbery had been taking place, the
    statement would have been admissible for impeachment purposes.
    Defendant has argued that Harris knew the person who shot him, i.e., that it was the male
    with whom he had argued about a girl the week before, meaning that he knew defendant was not
    the shooter, and that he knew no robbery took place. To bolster that argument, in addition to the
    evidence contained in the report, he points to the 2010 affidavit of Lavoy Alexander who swears
    that Harris admitted those facts to him.
    Had the police reports been produced, defendant could have investigated the allegation that
    an argument had occurred between Harris and an unknown male a week before the shooting, in an
    attempt to obtain corroborative evidence, including interviewing Spivey about the matter, and
    potentially examining her about it at the time of trial. Also, defendant would have been able to
    examine Harris about that issue at trial.
    Additionally, the evidence would have allowed defendant to introduce yet another piece of
    evidence suggesting that he had been misidentified. One of defendant’s arguments at trial
    pertained to a statement, by Officer Mason, that Ricky Michael Gross could have been the shooter,
    after Officer Mason saw him in a six-photograph lineup. Defendant’s argument was that his theory
    of misidentification was made more probable by the fact that one of the witnesses to the shooting
    had tentatively identified someone whose only connection to the case was that he had the same
    first and last name as defendant. Looking at the suppressed police reports, they included a
    statement by Officer Mack in which he said the composite sketch strongly resembled Officer
    McLean. That statement prompted his colleague, Investigator Higgins, to go to central photo and
    retrieve a plain clothes photo of Officer McLean. Considering that the only evidence tying
    defendant to the crime was identification testimony by two witnesses, any evidence that put into
    doubt that testimony would have been important. The above evidence would have allowed
    defendant to argue that TWO other people who were a part of the investigation of this case, not
    just one, resembled the shooter, i.e., that information would have bolstered his misidentification
    argument.7
    “In determining the materiality of undisclosed information, a reviewing court may consider
    any adverse effect that the prosecutor’s failure to respond might have had on the preparation or
    presentation of the defendant’s case.” People v Lester, 
    232 Mich App 262
    , 282; 
    591 NW2d 267
    (1998), overruled in part on other grounds by People v Chenault, 
    495 Mich 142
    , 145; 
    845 NW2d 731
     (2014). Also, when determining whether the new evidence is material, the Michigan Supreme
    Court has noted that the test articulated in Strickler requires that the evidence be viewed in its
    totality. Chenault, 
    495 Mich at 155
    . The adverse effects that the prosecutor’s failure to disclose
    might have had on the preparation and/or presentation of the defendant’s case is significant. The
    police reports indicated that Spivey had twice contacted the police about an unknown male arguing
    with Harris about a girl and said that the owner of Pinnacle Clothing Store had information on that
    7
    It should be noted that the information contained in the police reports about Officer McLean
    allegedly being investigated by internal affairs would not by itself be admissible as it involves
    multiple levels of hearsay, based upon what is currently in the record. But, if defendant had been
    given the police reports, he could have investigated those allegations.
    -6-
    topic. Had defendant known about that information, he could have attempted to interview the
    owner of the clothing store, in an attempt to identify the girl and the unknown male; however,
    defendant never had any such chance because the information was not disclosed. Had defendant
    known that Officer Mack opined that the composite sketch strongly resembled Officer McLean,
    defendant could have attempted to interview Officer Mack and Officer McLean. After hearing
    about Officer Mack’s opinion, Investigator Higgins went to central photo and retrieved a plain-
    clothes photograph of Officer McLean. Had defendant known about that fact, he could have
    requested a copy of the photograph of Officer McLean and potentially offered it as evidence at
    trial. However, because defendant did not know about the above information, he had no
    opportunity to prepare his case using the information or to present it to the jury.
    Finally, had the police reports been produced, it would have “ ‘raised opportunities to
    attack . . . the thoroughness and even good faith of the investigation . . . .’ ” Christian, 510 Mich
    at 80, quoting Kyles v Whitley, 
    514 US 419
    , 445; 
    115 S Ct 1555
    ; 
    131 L Ed 2d 490
     (1995). In
    Christian, the Michigan Supreme Court found important the facts and analysis of Kyles, restating
    those facts as follows:
    The defendant was convicted of the murder of Dolores Dye, who was shot in the
    head while putting grocery bags in her car. Id. at 423, 
    115 S Ct 1555
    . The man
    who shot her took her keys and drove away. Two days later, a man named Beanie
    called the police station and reported that he had bought a car matching the
    description of the stolen car from the defendant. Id. at 424, 
    115 S Ct 1555
    . Beanie
    claimed he came forward to the police because he feared the defendant had stolen
    the car. But Beanie’s story changed over time and grew inconsistent with the details
    of the crime known to the police. And yet, “[t]he police neither noted the
    inconsistencies nor questioned [him] about them.” Id. at 427, 
    115 S Ct 1555
    .
    The prosecution withheld recordings of the conversations between the police and
    Beanie in which his story changed. Id. at 428, 
    115 S Ct 1555
    . The Court found
    that the suppressed evidence was material in part because it “would have raised
    opportunities to attack . . . the thoroughness and even the good faith of the
    investigation . . . .” Id. at 445, 
    115 S Ct 1555
    . Beanie’s statements to the police
    “were replete with inconsistencies and would have allowed the jury to infer that
    Beanie was anxious to see [the defendant] arrested” for the murder. 
    Id.
     The
    statements would have “revealed a remarkably uncritical attitude on the part of the
    police.” 
    Id.
     Kyles shows that determining whether defendants received “a trial
    resulting in a verdict worth[y] of confidence” requires an analysis not just of the
    evidence presented, but of the quality of the investigation. [Christian, 510 Mich at
    80.]
    Just as in Kyles, the police reports in the present case would have allowed defendant to attack the
    quality of the investigation. Defendant could have argued that the police had information, obtained
    from Spivey, that Harris had an argument with an unknown male a week before the shooting, that
    she adamantly believed that no robbery attempt had been made at the time of the shooting, and
    that she had questioned Harris’ reputation for truthfulness, yet police failed to even attempt to
    investigate those issues. Defendant could have argued that police knew that one of the officers
    investigating the case believed that the composite photograph strongly resembled Officer McLean,
    -7-
    a plain-clothes picture of whom police had in their possession, yet they never even interviewed
    McLean or followed up on that issue.
    To summarize, viewing the evidence in its totality, had the police reports been provided to
    defendant, he could have introduced evidence via Detective Mack that there was yet another person
    investigated who closely resembled the composite sketch. He could have presented evidence via
    Spivey rebutting the story told by one of the victims, Harris, that the shooter was a stranger
    attempting to rob him. Further, he could have introduced evidence via Spivey that Harris had been
    involved in an argument with another male regarding a woman the week before, and potentially
    that Harris has a reputation for being untruthful (i.e., “shady”). That evidence would have
    supported defendant’s theory that someone who Harris already knew was attempting to shoot him.
    As described above, the failure to disclose the police reports had significant adverse effects on the
    preparation and/or presentation of the defendant’s case. See Lester, 232 Mich App at 282. Finally,
    he could have argued that the investigation by police was not thorough and was not conducted in
    good faith as police failed to follow up on the allegations made by Spivey or the fact that the
    composite sketch was alleged to strongly resemble Officer McLean. Taken as a whole, the above
    evidence would have arguably bolstered defendant’s argument that he was misidentified and that
    another person was the shooter. Therefore, we believe the evidence was material because there is
    a reasonable probability—“a probability sufficient to undermine confidence in the outcome”—
    that, viewed in totality, the result of the proceeding would have been different if it had been
    disclosed to the defense. See Bagley, 473 US at 682.
    Accordingly, we conclude that the trial court did not abuse its discretion when it granted
    defendant’s MRJ, after properly concluding defendant established that a Brady violation had
    occurred, entitling him to a new trial.
    Affirmed.
    /s/ Adrienne N. Young
    /s/ Randy J. Wallace
    -8-
    

Document Info

Docket Number: 369876

Filed Date: 10/25/2024

Precedential Status: Non-Precedential

Modified Date: 10/26/2024