Motion for relief from judgment; MCR 6.502; Whether defendant was entitled to a new trial; People v Cress; People v Johnson; Probability of a different result; People v Rogers; Whether the court should direct the entry of a second-degree murder conviction; People v Williams; Conviction Integrity Unit (CIU)

Concluding that a different result on retrial was probable, the court held that the trial court abused its discretion in determining otherwise and that defendant was entitled to a new trial. Thus, it reversed the denial of a joint motion for reconsideration of the denial of defendant’s motion for relief from judgment, and remanded. He was convicted of first-degree murder and felony-firearm. “After two witnesses recanted their testimony, and because of prosecutorial misconduct during trial and indications that the jury struggled with the verdict,” the county CIU recommended “the conviction be vacated in exchange for a guilty plea to second-degree murder.” On appeal, the court reviewed “the trial court’s decision as a denial of a motion for relief from judgment under MCR 6.502, rather than as a motion for reconsideration.” The trial court determined “that defendant met the first three Cress factors, and” the court found no abuse of discretion as to that finding. Thus, the primary issue was “whether ‘the new evidence makes a different result probable on retrial.’” The trial court found that one witness’s (B) recantation testimony was not credible but that the other witness’s (S) testimony was credible. Once it “concluded that a reasonable juror could find that [S’s] recantation testimony was credible, [it] was required to consider all of the evidence that would be admitted at a new trial to determine whether a different result would be probable.” This would include B’s recantation. “Thus, during a new trial, [S] would not testify that defendant threatened the victim and his son in the months leading up to the shooting, while [B] would testify that the victim lunged at defendant before defendant shot him. The trial court did not make clear in its opinion that, once it had concluded that a reasonable juror could find [S’s] recantation credible, it must then consider the likely effect of both recantations on a reasonable juror.” Further, it failed to “address the recantation evidence within the context of the prosecutorial misconduct that occurred in” the original trial. The court noted that at a new trial, the prosecution would avoid the “plainly improper remarks” made at the first one, “and there would be more evidence of self-defense than was presented at” that trial. Lastly, a “jury question indicated that the jury was struggling to arrive at a decision, and this was confirmed by the foreperson, who said that the jury’s decision was not an ‘easy’ one.”