People of Michigan v. Anthony Wayne Hubbard

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 15, 2023
Plaintiff-Appellee,
v No. 359885
Jackson Circuit Court
ANTHONY WAYNE HUBBARD, LC No. 03-004124-FC
Defendant-Appellant.
Before: CAMERON, P.J., and MURRAY and GADOLA, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted1 the trial court’s order denying his successive
motion for relief from judgment. We affirm.
I. BACKGROUND
In May 2004, defendant was convicted of one count of first-degree murder, MCL
750.316(1)(a), for slashing the throat of Yatasha Bush. He was sentenced to life imprisonment.
At trial, Shaylene Clark testified that she went to a party with Bush in August 2003. After the
party, defendant picked up Clark and Bush in a van and took them to a vacant house. At the vacant
house, they smoked cocaine together, and defendant argued with Bush. During the argument,
defendant choked Bush. Bush briefly escaped defendant, but defendant choked Bush again and
threatened to kill her. Defendant proceeded to slit Bush’s throat. Clark ran away after defendant
slit Bush’s throat, but defendant caught up with her. They spent the next couple days in a motel
together. Bush’s body was eventually found decomposing in the vacant house.
1
People v Hubbard, unpublished order of the Court of Appeals, entered July 18, 2022 (Docket
No. 359885).
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In his direct appeal, defendant claimed evidentiary error, instructional error, prosecutorial
misconduct, and ineffective assistance of trial counsel. This Court rejected the majority of
defendant’s arguments but held that the trial court improperly admitted other-acts evidence and
hearsay.2 In regard to inadmissible evidence, the Court held that the error was harmless given the
overwhelming evidence against defendant:
Shaylene Clark testified that she was with [Bush] on the night she was killed
and, in fact, witnessed her murder. According to Clark, after picking up both her
and [Bush] from a party at the home of a man named “Timmy,” defendant drove
the girls in a green minivan to an unoccupied house where, during an argument
regarding [Bush] having lost defendant’s baby “and the things she was doing to get
money,” defendant murdered [Bush] by cutting her throat outside a bedroom
located on the first floor of the home. Although defendant challenges the credibility
of Clark’s testimony on the basis of her admitted inability to vividly and
consistently recall the events during the weeks following the murder, we note that
Clark’s recount of the murder itself was, nonetheless, both detailed and consistent
with other evidence admitted at trial.
With respect to the scene of the crime, although indicating that she had
never before or since the murder visited the house in which [Bush] killed, Clark’s
testimony regarding the floor plan of the home and the location of the murder
therein were consistent with the testimony and photographic evidence provided by
the investigating officers who discovered [Bush’s] body just inside the doorway of
a first floor bedroom approximately two weeks after the killing. Clark’s testimony
that the three entered the unoccupied home through a rear entrance that had been
boarded shut was also consistent with the condition of the home as testified to by
the investigating officers, who recalled at trial that, with the exception of a rear door
that had been boarded shut but appeared to at sometime have been pried open, the
home was secure.
Clark’s testimony concerning the manner in which [Bush] was killed was
also strikingly consistent with that of the medical examiner who performed the
autopsy on [Bush’s] body. The medical examiner testified that a reddish-brown
stain found on the carpeting inside the home near the neck of the body was shown
through testing to be human blood that had soaked the carpeting near the area of
the neck. The medical examiner further testified that this evidence, when viewed
in combination with the excessive decomposition of the throat area, indicated
“trauma” to the neck consistent with [Bush’s] throat having been “cut [or] slashed
so that a large amount of blood was lost from there,” causing her death.
The condition of the scene and the evidence derived from the body were
not, however, the only evidence to lend credence to Clark’s testimony and support
defendant’s guilt independent of the erroneously admitted hearsay testimony.
2
People v Hubbard, unpublished per curiam opinion of the Court of Appeals, issued December 6,
2005 (Docket No. 256831).
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Indeed, Detective Gary Schuette of the Jackson Police Department testified that at
the time Clark first relayed to him her account of the murder he had yet to positively
identify either the body or a cause of death. Schuette further testified that before
either of these facts were known to the public, defendant arrived at the police station
requesting to speak with someone about a body recently found by the police in a
house. Schuette testified that defendant thereafter indicated with extreme certainty
that the body found by the police was that of his girlfriend, Yatasha Bush, who had
been raped and then murdered by having her throat slashed. Although initially
hypothesizing that [Bush] had been killed by her new boyfriend at the behest of her
father, when presented with both a photograph of [Bush] and Schuette’s theory of
defendant’s involvement in her death, defendant began to cry uncontrollably before
stating, “F--- it. I’m just going to tell you what happened.” After then describing
having picked up both Clark and [Bush] from the home of a man named “Timmy”
using a van borrowed from a friend, defendant paused momentarily before stating,
“I ain’t confessing. You gotta prove it. You can’t place me in that house.”
These inculpatory statements corroborating at least a portion of Clark’s
testimony and evincing knowledge of the identity of the victim prior in time to any
public release of that information were not the only such statements made by
defendant. Tammy Hurley testified that sometime in early August 2003 she
observed defendant enter a green minivan being driven by a woman and that, as he
entered the van, defendant stated that he was going to get [Bush]. Hurley also
testified that on the day [Bush’s] body was found she was approached by defendant
while at a party store on Biddle Street. Hurley testified that as defendant
approached her, he began to cry while telling her that [Bush] was dead and that it
was her body that had been found in the house on Biddle Street. Hurley noted,
however, that at the time defendant made this statement to her the police had not
yet even brought the body out from the house.
In light of the foregoing evidence, including defendant’s own statements
evincing knowledge of the identity of the victim and the manner in which she was
killed prior in time to any public release of that information, defendant cannot show
that any error in the admission of [Bush’s] extra-judicial statements was outcome
determinative. [Id. at 5-6.]
In 2006, defendant moved for relief from judgment asserting newly discovered evidence.
Defendant also asserted claims of prosecutorial misconduct and ineffective assistance of trial
counsel and appellate counsel. The trial court denied that motion, and defendant unsuccessfully
sought leave to appeal that decision.3
Twelve years later, defendant again moved for relief from judgment. The trial court denied
defendant’s motion because there was not a significant possibility that defendant was actually
3
People v Hubbard, unpublished order of the Court of Appeals, entered May 3, 2007 (Docket No.
273749), lv den; People v Hubbard, 480 Mich 888 (2007).
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innocent. The trial court also concluded that defendant had not submitted new evidence and did
not satisfy the procedural threshold of MCR 6.502(G)(2) because none of the evidence satisfied
the four-prong Cress test. See People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003). This
Court dismissed defendant’s delayed application for leave to appeal,4 but the Supreme Court
vacated the order and remanded this case to the trial court for reconsideration of the motion for
relief from judgment,5 explaining that the trial court erred in applying the Cress factors to the
procedural threshold of MCR 6.502(G)(2).
On remand, the trial court again denied defendant’s motion for relief from judgment. The
trial court declined to waive the provisions of MCR 6.502(G)(2) because it did not find a
significant possibility that defendant was innocent. Additionally, the trial court held that defendant
failed to present new evidence to meet the procedural threshold of MCR 6.502(G)(2). The trial
court also rejected defendant’s arguments of prosecutorial misconduct and ineffective assistance
of trial and appellate counsel because they were barred by MCR 6.502(G).
II. ANALYSIS
A. NEW EVIDENCE
This Court reviews a trial court’s decision on a motion for relief from judgment for an
abuse of discretion. People v Swain (On Remand), 288 Mich App 609, 628-629; 794 NW2d 92(2010). A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes, People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008), which
includes an error of law, People v Giovannini, 271 Mich App 409, 417; 722 NW2d 237 (2006).
Findings of fact are reviewed for clear error. People v McSwain, 259 Mich App 654, 861; 676
NW2d 236 (2003).
Defendant first asserts that the trial court erred when it held that defendant failed to present
new evidence to meet the threshold of MCR 6.502(G)(2) in order for the trial court to consider a
successive motion for relief from judgment. We conclude that, except as to the records sent from
the city of Jackson and the 12th District Court, none of the evidence is “new” for purposes of the
court rule.
A criminal defendant is only entitled to file one motion for relief from judgment. MCR
6.502(G)(1). An exception to this rule is found in MCR 6.502(G)(2), which states:
(G) Successive Motions.
(1) Except as provided in subrule (G)(2), regardless of whether a defendant
has previously filed a motion for relief from judgment, after August 1, 1995, one
and only one motion for relief from judgment may be filed with regard to a
conviction.
4
People v Hubbard, unpublished order of the Court of Appeals, entered June 29, 2020 (Docket
No. 353356).
5
People v Hubbard, 507 Mich 953 (2021).
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(2) A defendant may file a second or subsequent motion based on any of the
following:
(a) a retroactive change in law that occurred after the first motion for relief
from judgment was filed,
(b) a claim of new evidence that was not discovered before the first such
motion was filed, or
(c) a final court order vacating one or more of the defendant’s convictions
either described in the judgment from which the defendant is seeking relief or upon
which the judgment was based.
The clerk shall refer a successive motion to the judge to whom the case is
assigned for a determination whether the motion is within one of the exceptions.
The court may waive the provisions of this rule if it concludes that there is
a significant possibility that the defendant is innocent of the crime. For motions
filed under both (G)(1) and (G)(2), the court shall enter an appropriate order
disposing of the motion.
This is not defendant’s first motion for relief from judgment. Because the trial court did
not waive the procedural requirements of MCR 6.502(G) and defendant does not argue that a
retroactive change in the law occurred, defendant was required to present “a claim of new evidence
that was not discovered before the first such motion was filed” before the trial court could consider
the substance of defendant’s motion. MCR 6.502(G)(2). Defendant need not satisfy the Cress test
to meet the procedural threshold of MCR 6.502(G)(2). See Swain, 499 Mich 920. Instead,
defendant must only show that he has “new evidence that was not discovered before the first such
motion was filed.” MCR 6.502(G)(2).
The trial court addressed each of the seven pieces of alleged new evidence submitted by
defendant. The first piece of alleged new evidence was a written report of a September 17, 2003
interview of Walter Timmy Pryor by Detective Schuette. In the interview, Pryor told Detective
Schuette that he could not recall the date of the party, but believed it “to be about August 12,
2003.” He stated that Bush wore “black sweatpants and sweat shirt, a large grey T-shirt and dirty
socks with ‘Tenny’ shoes” at the party and that he saw her the day after the party wearing different
clothing. Pryor also stated that Bush left the party alone and that Clark received a ride from
someone at a store. In a 2017 affidavit, Pryor stated that the party was “[o]n or about August 12,
2003” and that he believed that he spoke truthfully to Detective Schuette in the 2003 interview.
The trial court concluded that the report was not new evidence because (1) defense counsel
indicated his intent to call Pryor as a witness in his answer to the prosecution’s pre-trial discovery
request, and (2) the report was attached to defendant’s first motion for relief from judgment as part
of Appendix A. Although the trial court erroneously relied on the due-diligence factor from Cress
when it reasoned that the document was discoverable, see Hubbard, 507 Mich 953, defendant did
not rebut the trial court’s additional reasoning that the report was attached to his first motion for
relief from judgment in Appendix A and was subject to mandatory disclosure at trial. Because
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defendant made use of this statement with his first motion for relief from judgment, it was not new
evidence under MCR 6.502(G)(2). Therefore, defendant has not shown that Pryor’s statements
were new evidence not discovered before his first motion for relief from judgment.
The trial court also found that the second group of evidence, several affidavits from
defendant’s family members who asserted that defendant attended his sister’s wedding reception
on August 16, 2003, was not new evidence because such alibi evidence was offered at trial. The
trial court did not err in this regard. In fact, one of the affiants was defendant’s sister, who testified
at trial. Therefore, her affidavit does not meet the threshold of MCR 6.502(G)(2), and nor do the
rest of the wedding affidavits. Contrary to defendant’s contention, additional wedding affidavits
are not new because defendant presented testimony at trial regarding the wedding alibi. To that
point, the testimony of the additional wedding attendees was known to defendant before his first
motion for relief from judgment because the wedding reception occurred on August 16, 2003, and
defendant claimed that he attended the reception.
The third piece of alleged new evidence is two crime laboratory reports. The first report
indicated that Bush’s underwear and pants were around her ankles and made no mention of a skirt,
while the second report indicated that DNA obtained from Bush’s fingernails revealed the presence
of more than one donor but excluded defendant as one of those donors. Additionally, the second
report discussed a Budweiser beer bottle found near Bush’s body that revealed the presence of a
male donor and defendant was excluded as that donor. The trial court held that these reports were
not new evidence because the court file contained proof of service that defendant was served the
Michigan State University Entomology Report before trial on January 14, 2004. Further,
defendant was served with the autopsy report, entomologist report, odontologist report, JPD
supplemental report #03-024291, laboratory reports, and supplements #1644-03 on April 28, 2004.
Defendant does not refute that these items were served on him before trial as expressed in the
lower court record. Therefore, as the trial court concluded, the laboratory reports did not meet the
new evidence threshold of MCR 6.502(G)(2).
The fourth piece of alleged new evidence is two probable cause affidavits for the issuance
of search warrants. Defendant contends that he received these affidavits through a Freedom of
Information Act request years after trial. See MCL 15.231 et seq. The trial court correctly held
that these affidavits were not new evidence because both were attached as exhibits to defendant’s
first motion for relief from judgment as part of Appendix B. Therefore, defendant has failed to
show that the affidavits were new evidence not discovered before his first motion for relief from
judgment.
The fifth piece of alleged new evidence was a written report of a November 4, 2003,
interview of Robert Walters by Detective Schuette. Amongst other things, in the interview Walters
indicated that he had given Clark and an older black man rides in the past, and that he gave Clark
and the man a ride to a motel on one occasion, but he could not recall the specific occasion in
which he was alleged to have driven Clark and defendant to the Best Motel. The trial court held
that this interview was not new evidence because defense counsel indicated his intent to call
Walters as a witness in his answer to the prosecution’s discovery request before trial. Like the
Pryor statement, the trial court cannot rely on the fact that the report was discoverable. See
Hubbard, 507 Mich 953. However, defendant provides no documentary evidence to refute that
these reports were provided during discovery before trial as required by MCR 6.201(B). Again,
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“defendant bore the burden of furnishing the reviewing court with a record to verify the factual
basis of any argument upon which reversal was predicated,” Elston, 462 Mich at 761, and he failed
to do so. Therefore, defendant has not shown that Walters’s statements were new evidence not
discovered before his first motion for relief from judgment.
The sixth piece of evidence are letters obtained from the city of Jackson and 12th District
Court. The letter from the 12th District Court stated that the court did not handle nuisance
abatement claims and would not have any records pertaining to nuisance abatement, while the
Jackson city attorney’s office stated that it was unable to locate a docket number for a nuisance
abatement proceeding in 2003 or 2004 for 121 East Addison. The city of Jackson also provided
defendant with documents, which stated that Pryor, the owner of 121 East Addison Street, had
been cited for housing code violations in August 2004 and the property was subsequently brought
into compliance by December 2004. Defendant contends that these documents show that
Detective Schuette falsely testified that he could not serve Pryor a subpoena on May 4, 2004 at
121 East Addison Street as the property was padlocked by the city in response to drug raids that
were conducted at the residence.
The trial court held that these documents were not new evidence because they were
discoverable with due diligence before trial. However, again, the Cress test does not apply to the
procedural threshold of MCR 6.502(G)(2). Swain, 499 Mich 920. Hence, the records from the
12th District Court and the city of Jackson are new evidence because defendant did not receive
these documents until 2017 and, unlike Pryor’s and Walters’s statements, were not previously
disclosed and subject to disclosure under MCR 6.201(B). Therefore, the trial court erred in
concluding that the records from the 12th District Court and the city of Jackson were not new
evidence.
The seventh and final piece of alleged new evidence are the results of defendant’s June 23,
2015 polygraph examination, which were that defendant did not indicate any deception when he
answered that he did not cut Bush’s throat, hurt her neck, or participate in her death. The trial
court held that the polygraph results did not satisfy the conditions of admissibility and that, at best,
were cumulative evidence because defendant maintained his innocence throughout trial.
“[T]he judge in a post-conviction hearing on a motion for new trial based on newly found
evidence may in his or her discretion consider the results of a polygraph examination.” People v
Barbara, 400 Mich 352, 412; 255 NW2d 171 (1977). The polygraph test results may be considered
in deciding a motion for a new trial when:
(1) they are offered on behalf of the defendant, (2) the test was taken voluntarily,
(3) the professional qualifications and the quality of the polygraph equipment meet
with the approval of the court, (4) either the prosecutor or the court is able to obtain
an independent examination of the subject or of the test results by an operator of
the court’s choice, and (5) the results are considered only with regard to the general
credibility of the subject. [People v Mechura, 205 Mich App 481, 484; 517 NW2d
797 (1994).]
When the new evidence produced by the polygraph is useful only to impeach a witness, it is
deemed cumulative. Barbara, 400 Mich at 363. Further, if the polygraph results are duplicative
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to what was heard at trial, it is considered cumulative evidence. Id. at 363 n 2. Defendant is not a
new or recanting witness. Defendant claimed that he was innocent at trial, and he asserts that the
polygraph results state the same. The results of the examination are duplicative to what the jury
heard at trial and, as a result, are cumulative. See id. Because defendant is not a new witness and
the polygraph results are cumulative, the trial court correctly held that the polygraph examination
results are not new evidence discovered before the first motion for relief from judgment. See MCR
6.502(G)(2).
Defendant’s successive motion for relief is barred under MCR 6.502(G)(1) and (2), except
for any claim that relates to the records from the city of Jackson and 12th District Court.
II. WAIVER OF MCR 6.502(G)(2)
Defendant next asserts that the trial court erred when it declined to waive MCR 6.502(G)(2)
because defendant established through new evidence a significant possibility of actual innocence.
According to defendant, the trial court impermissibly made ultimate credibility determinations
when it determined there was not a significant possibility of actual innocence.
The “significant possibility that the defendant is innocent” standard as applied to waive the
substantive requirements in MCR 6.502(G)(2) was addressed in Swain (On Remand), 288 Mich
App at 638-639. To satisfy this standard, a defendant “must show that it is more likely than not
that no reasonable juror would have found [the defendant] guilty beyond a reasonable doubt.” Id.
at 638, quoting Schlup v Delo, 513 US 298, 327; 115 S Ct 851; 130 L Ed 2d 808 (1995) (quotation
marks omitted). This standard “permits review only in extraordinary cases,” but “does not require
absolute certainty about the defendant’s guilt or innocence.” Id. at 288 (quotation marks and
citations omitted).
Defendant cites People v Johnson, 502 Mich 541; 918 NW2d 676 (2018), for the
contention that the trial court impermissibly took on the role of ultimate fact-finder. The Supreme
Court explained that a new trial may be granted on the basis of newly discovered evidence when:
“(1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered
evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered
and produced the evidence at trial; and (4) the new evidence makes a different result probable on
retrial.” Id. at 566, citing Cress, 468 Mich at 692. Under the fourth factor, “a trial court must first
determine whether the evidence is credible,” but the trial court’s “function is limited when
reviewing newly discovered evidence, as it is not the ultimate fact-finder.” Johnson, 502 Mich at
567. However, these requirements apply to a defendant’s substantive entitlement to relief after a
defendant has met MCR 6.502(G)(2)’s procedural threshold. Hubbard, 507 Mich 953 (explaining
that “the plain text of the court rule does not require that a defendant satisfy all elements of the
[Cress] test”); see also People v Swain, 499 Mich 920; 878 NW2d 476 (2016). This was plain in
Johnson, 502 Mich at 566, as the Court noted that the “prosecutor does not argue that defendants’
claim of newly discovered evidence . . . is procedurally barred, either under MCR 6.502(G) or
MCR 6.508(D)(3)(a).” Thus, defendant’s reliance on Johnson and Cress is misplaced.
Nevertheless, in addressing the threshold issue, the trial court still must assess whether it
“is more likely than not that no reasonable juror would have found [the defendant] guilty beyond
a reasonable doubt.” Swain, 288 Mich App at 638 (quotation marks and citation omitted). The
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thrust of defendant’s argument was that the new evidence undermined the credibility of the
prosecution’s witnesses, particularly Clark and Detective Schuette. In assessing the alleged new
evidence in the context of the evidence presented at trial, the trial court held that there was not a
significant possibility of innocence.
Although defendant contends that the trial court usurped the role of the fact-finder and
made ultimate credibility determinations when it rejected Pryor’s statements, the trial court
properly addressed Pryor’s statements in the context of the trial and considered whether no
reasonable juror would have found defendant guilty beyond a reasonable doubt. In its opinion, the
trial court explained that viewing Pryor’s statements in conjunction with the testimony of Clark,
Detective Schuette, and defendant’s alibi witness did not show that no reasonable juror would have
convicted defendant. The trial court explained that had Pryor testified at trial, defendant would
not have been more likely to be acquitted because the jury found Clark credible, despite
discrepancies in her testimony that defendant repeatedly pointed out at trial. The jury also heard
testimony that defendant was at his sister’s wedding reception the night of the murder.
The trial court did not err when it found that there was not a significant possibility that
defendant was innocent of the crime and by refusing to waive the provisions of MCR 6.502(G).
First, the trial court’s decision to waive the procedural threshold of MCR 6.502(G)(2) is
discretionary because “the court may waive the provisions of this rule if it concludes that there is
a significant possibility that the defendant is innocent of the crime.” People v Bell, 276 Mich App
342, 347; 741 NW2d 57 (2007). Second, the alleged new evidence that defendant presents to
support his claim of actual innocence does not establish that a reasonable jury would not have
found defendant guilty beyond a reasonable doubt.
Pryor stated in his 2017 affidavit that the party occurred “[o]n or about August 12, 2003,”
that he spoke truthfully to Detective Schuette in 2003, and that his “recollection of the events is
vague because many years have passed.” As the trial court concluded, this statement does not
undermine Clark’s testimony any more than it was already undermined at trial, as the trial
testimony did not establish the date of the party or homicide definitively as August 16, 2003.
Indeed, Clark only testified that she sat down with Detective Schuette to figure out the date over a
calendar and approximated that the party occurred on August 16, 2003.
With respect to the statements by Walters regarding giving Clark and an older black man
rides in the past to a motel on one occasion, this record would not have had an impact at trial.
Detective Schuette did not testify that he was able to confirm whether Walters gave Clark and
defendant a ride the night of the murder. Detective Schuette only referred to attempting to confirm
with the cab company in the context of Clark’s inability to recollect specific details.
The same holds true with respect to the wedding affidavits, as they were cumulative of the
alibi witness whom defendant presented to suggest that he was at the wedding reception during
the time of the murder. Additionally, defendant’s polygraph examination was cumulative of
defendant’s assertion of innocence at trial. Finally, the records from the city of Jackson and 12th
District Court were not relevant at trial. The jury did not hear Detective Schuette testify that
Pryor’s residence was padlocked when he attempted to serve a subpoena, as he only made this
statement during a due-diligence hearing outside the presence of the jury.
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Defendant’s alleged new evidence that defendant’s DNA evidence was not found on
Bush’s fingernail clippings or on the Budweiser bottle found near Bush’s body was cumulative of
the testimony about DNA heard at trial. The jury heard evidence that no DNA evidence tied
defendant to the scene of the murder, and that defendant was excluded both as a contributor to the
semen DNA found in Bush’s underwear, and as a donor to the DNA found on the cigarette at the
scene. The jury also heard that LabCorp did not receive a Budweiser bottle to test for DNA.
On direct appeal, this Court concluded that the evidence against defendant was
“overwhelming,” Hubbard, unpub op at 4-5, explaining that Clark provided detailed consistent
testimony that was corroborated by other evidence at trial. She was able to describe the layout of
the house, despite never going to the Biddle house before or after the murder, and testified that
Bush was killed in a manner consistent with the testimony of the medical examiner. Further,
testimony at trial established that defendant made inculpatory statements to the police and other
witnesses. Before the police identified Bush as the victim or removed her from the house,
defendant told Hurley that it was Bush’s body in the house. Additionally, defendant told Detective
Schuette that the body was Bush and that her throat had been slit before the police had identified
the body. After defendant was shown a picture of Bush by Detective Schuette, defendant stated:
“F--k it. I’m just going to tell you what happened,” and proceeded to tell Detective Schuette that
he picked up Bush and Clark from Timmy’s house in a van, and then said; “I ain’t confessing.
You gotta prove it. You can’t put me in that house.”
None of the alleged new evidence overcomes the overwhelming evidence at trial or
establishes that a reasonable jury could not find defendant guilty beyond a reasonable doubt.
Therefore, the trial court did not err when it held that defendant did not establish a significant
possibility that he was innocent. See MCR 6.502(G).
III. PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE
Defendant next contends that the trial court erred when it concluded defendant’s claims of
prosecutorial misconduct and ineffective assistance of trial, and appellate counsel was barred under
MCR 6.502(G)(2). We disagree, except to the extent defendant’s claims relate to the records from
the city of Jackson and the 12th District Court. However, defendant has failed to establish
prosecutorial misconduct or ineffective assistance of counsel in relation to those records.
This Court reviews allegations of Brady6 violations de novo. People v Dimambro, 318
Mich App 204, 212; 897 NW2d 233 (2016). The components of a Brady claim are “[t]he evidence
at issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Id. at 212 (quotation marks and citation omitted).
“The government is held responsible for evidence within its control, even evidence unknown to
the prosecution, without regard to the prosecution’s good or bad faith.” People v Chenault, 495
Mich 142, 150; 845 NW2d (2014) (citation omitted). “Evidence is favorable to the defense when
it is either exculpatory or impeaching.” Id. “To establish materiality, a defendant must show that
6
Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
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there is a reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” Id. (quotation marks and citation omitted).
Defendant’s only prosecutorial misconduct argument related to the city of Jackson and 12th
District Court records is that Detective Schuette falsely testified that he attempted to serve Pryor
with a subpoena at his house, but the city of Jackson had padlocked it. At the due-diligence
hearing, Detective Schuette stated that he believed that the house was padlocked because of drug
raids that were conducted on the house in May 2004. Defendant has presented new evidence that
showed in August 2004, Pryor’s residence was cited for violations of the housing code and brought
into compliance in December 2004. The letters further show that the city of Jackson and 12th
District Court could not locate a docket number for nuisance abatement proceedings. Defendant
does not explain how these records establish that Detective Schuette was lying in the due-diligence
hearing. The city’s inability to locate a docket number does not necessitate the conclusion that the
house was not padlocked in May 2004.
Even if the city’s and court’s records established that Detective Schuette lied about the
padlock on Pryor’s residence, defendant did not present evidence that the prosecution knew or
should have known that Detective Schuette’s testimony was false and knowingly, or inadvertently
suppressed that evidence. See Dimambro, 318 Mich App at 212. Further, defendant cannot
establish that there is a reasonable probability that, had the evidence been disclosed to the defense,
the results of the trial would have been different. See id. Detective Schuette’s testimony regarding
Pryor was only heard at the due-diligence hearing, outside the presence of the jury. As a
consequence of Detective Schuette’s testimony, the trial court held that the prosecution engaged
in due diligence to locate Pryor for trial. Had the trial court held that the prosecution failed to
engage in due diligence, the trial court would have given a missing witness instruction regarding
Pryor, see People v Perez, 469 Mich 415, 420; 670 NW2d 655 (2003). Defendant has failed to
argue that the missing witness instruction would have affected the jury’s verdict. Therefore,
defendant has failed to show he is entitled to relief for prosecutorial misconduct premised on the
city of Jackson and 12th District Court records.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant asserts that both trial and appellate counsel were ineffective. In order to
obtain a new trial for ineffective assistance of counsel, a defendant must establish that “(1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
Defendant raised extensive arguments regarding ineffective assistance of trial counsel;
however, only one of defendant’s arguments pertains to new evidence. Defendant argues that trial
counsel failed to investigate and impeach Detective Schuette for claiming Pryor’s house was
padlocked because of a drug raid when he attempted to serve him a subpoena. However, trial
counsel had no reason to investigate this claim before trial because trial counsel had no knowledge
that Pryor would not show. Trial counsel would have no reason to question the veracity of
Detective Schuette’s testimony at the due-diligence hearing because the new evidence was not yet
discovered.
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Further, the city of Jackson and 12th District Court records do not establish that Detective
Schuette lied when he testified that the house was padlocked. Even assuming that trial counsel
was ineffective for failing to discover that Detective Schuette was lying, defendant has not alleged
how this failure to investigate and impeach was prejudicial. Detective Schuette made this
statement outside the presence of the jury. Further, defendant has made no argument that had the
trial court given a missing witness instruction, the outcome at trial would have been different. See
id. Defendant has failed to establish ineffective assistance of trial counsel in relation to the newly
discovered evidence.
The test for ineffective assistance of appellate counsel is the same test as that for trial
counsel. People v Uphaus (On Remand), 278 Mich App 174, 186; 748 NW2d 899 (2008).
Defendant did not raise ineffective assistance of appellate counsel in relation to the new records,
so that argument is barred by defendant’s failure to meet the strictures of MCR 6.502(G).
Affirmed.
/s/ Thomas C. Cameron
/s/ Christopher M. Murray
/s/ Michael F. Gadola
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