Opinion
368104
02-08-2024
PEOPLE OF MI v. DWAYNE DARNELL BALLINGER JR
LC No. 06-008244-01-FC
Christopher P. Yates Presiding Judge Kathleen Jansen Michael J. Riordan Judges
ORDER
Pursuant to MCR 7.205(E)(2), in lieu of granting the delayed application for leave to appeal, we VACATE the Wayne Circuit Court's June 28, 2023 order and REMAND this matter to that court for further proceedings consistent with both this order and our Supreme Court's order in People v Ballinger, 504 Mich. 962 (2019) (Ballinger II).
The trial court erred in two distinct respects. First, in analyzing defendant's argument under Cress (i.e., his claim that he is entitled to a new trial on grounds of newly discovered evidence), the trial court repeatedly cited People v Terrell, 289 Mich.App. 553, 555; 797 N.W.2d 684 (2010), overruled in part on other grounds by People v Grissom, 492 Mich. 296 (2012), for the proposition that "newly available" evidence is not "newly discovered" and thus can never warrant the grant of a new trial under Cress. Specifically, the trial court reasoned that because the disputed evidence all existed before trial, it followed that such evidence was merely newly available, not newly discovered, and was therefore categorically unable to pass muster under Cress. However, as expressly noted in Terrell, 289 Mich.App. at 570, its holding concerning "newly available" evidence was not categorical; rather, "[t]here may be cases in which such evidence does indeed constitute newly discovered evidence" that might warrant granting a new trial. More importantly, the categorical rule described by the trial court is fundamentally inconsistent with our Supreme Court's later binding decision in People v Rao, 491 Mich. 271, 283-284; 815 N.W.2d 105 (2012) (holding that, "under Cress, when a defendant is aware of evidence before trial, he or she is charged with the burden of using reasonable diligence to make that evidence available and produce it at trial," and further holding "that what constitutes reasonable diligence in producing evidence at trial depends on the circumstances of the case").
People v Cress, 468 Mich. 678; 664 N.W.2d 174 (2003).
Secondly, the trial court erred by conflating the analyses under Cress and Brady - See People v Milton, 506 Mich. 999 (2020) (MCCORMACK, C.J., concurring) ("Though Brady claims and Cress claims are often intertwined, trial courts must address each claim separately.") (footnote omitted). In rejecting defendant's Brady claim, the trial court relied on the same TUre/Lbased rationale, reasoning that, because the allegedly suppressed evidence existed at the time of trial-i.e., was "newly available" rather than "newly discovered"-it followed that defendant could not "satisfy the complete Cress standard." But by their very nature, all meritorious claims of Brady error involve evidence that existed at the time of trial; otherwise, the government could not have suppressed it. See Wearry v Cain, 577 U.S. 385, 394 n 8; 136 S.Ct. 1002; 194 L.Ed.2d 78 (2016). And unlike an analysis under Cress, when reviewing a claim of Brady error, no "due diligence" requirement applies to the defendant. People v Chenault, 495 Mich. 142, 159-160; 845 N.W.2d 731 (2014) ("We conclude that Brady does not support the adoption of a diligence requirement.... In order to establish a Brady violation, a defendant need only demonstrate that the government suppressed evidence that is both favorable to the defendant and material."). Indeed, a defendant raising such a claim of error on collateral review satisfies the "good cause" requirement under MCR 6.508(D)(3) by simply demonstrating that the evidence was suppressed by the government. People v Christian, 510 Mich. 52, 81; 987 N.W.2d 29 (2022) ("[T]he prosecution suppressed the transcript. That suppression was an 'external factor' that prevented] appellate counsel from raising a Brady violation on direct appeal[.]"). For those reasons, the trial court erred by applying the Cress "due diligence" standard to defendant's claim of Brady error.
Brady v Maryland, 373 U.S. 83; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963).
On remand, the trial court should promptly reconsider this matter in light of both this order and our Supreme Court's order in Ballinger IL The trial court may hold whatever further proceedings it deems appropriate to that end.
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.