Successive motion for relief from judgment; People v Cress test; Expert report; Freedom of Information Act (FOIA); Michigan State Police (MSP)

The court held that “the trial court did not abuse its discretion by dismissing defendant’s successive motion for lack of newly discovered evidence.” Also, although it erred by declining to review the report submitted by his firearms expert, the court found the error was harmless. He pled no contest to second-degree murder and felony-firearm. Defendant argued “that the trial court abused its discretion by denying his motion for relief from judgment under MCR 6.502(G)(2) because newly discovered, exculpatory evidence entitled him to relief.” He also argued that the prosecutor violated Brady by failing to turn over the photographs of the bullet that killed the victim. He alleged “that he only became aware of the photographs after hiring a private investigator, who then made a FOIA request.” He did “not contest awareness of the autopsy report; therefore, defendant was aware that photographs existed of the bullet, such that they cannot be considered newly discovered evidence.” This fact also addressed “the third prong of the Cress test, because defendant could have used reasonable diligence to discover and produce the photographs mentioned in the autopsy report.” And as the trial court noted, he “also could have used reasonable diligence to solicit his ballistics expert to examine the bullet itself before he decided to take a plea deal. Accordingly, the evidence was neither newly discovered nor incapable of being discovered and produced through reasonable diligence.” Further, defendant “failed to satisfy the second prong of the Cress test by showing that the evidence was not cumulative.” The court found “photographs of the bullet offered no new, additional, or different information from what the bullet itself and the MSP forensics reports offered. Likewise, defendant’s ballistics expert did not report findings about the nature of the bullet that differed from the MSP forensics reports, which were made available to defendant before he pleaded no contest. Thus, the photographs would merely have been cumulative of other evidence in the record.” Finally, the court held that “the evidence would not have made a different result probable on retrial.” Defendant likewise could not “show that the prosecutor violated Brady by failing to turn over the photographs.” Thus, no Brady violation occurred in this matter. Affirmed.