People of Michigan v. Ricky Eugene Gross ( 2024 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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People v Gross, unpublished order of the Court of Appeals, entered April 15, 2024 (Docket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-