Where a motion for relief from judgment was denied, that decision should not be overturned despite the defendant’s claim of newly discovered evidence.
“Defendant, Tyrone Kennedy, appeals by delayed leave granted the trial court’s April 4, 2022 order denying his motion for relief from judgment on the basis of newly discovered evidence. In an earlier April 9, 2021 order, the trial court denied defendant’s motion for relief from judgment to the extent that defendant argued that his trial and appellate counsel were ineffective and that the prosecution withheld evidence in violation of Brady v Maryland , 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). As set forth below, this Court does not have jurisdiction over the April 9, 2021 order, and the trial court did not abuse its discretion by denying defendant’s motion for relief from judgment on the basis of newly discovered evidence. We accordingly affirm.
“In May 1988, defendant was convicted by a jury of armed robbery, MCL 750.529; assault with intent to commit murder, MCL 750.83; and breaking and entering an occupied dwelling, MCL 750.110. Defendant’s convictions arose out of the attack and robbery of 81-year-old Elsie Watson at her home in Albion, Michigan, on the evening of September 4, 1987.
“Defendant’s motion for relief from judgment based on newly discovered evidence principally relied on (1) witness affidavits claiming that Wilson confessed to committing the crime for which defendant was convicted and (2) new scientific evidence related to eyewitness identification that was not available at the time of defendant’s trial in 1988.
“The court concluded that defendant’s newly discovered evidence, to the extent that it was relevant and admissible, was ‘insufficient to make a different result probable on retrial when weighed against the testimony presented at trial.’
“On appeal, defendant contends that the trial court abused its discretion by denying his motion for relief from judgment based on newly discovered evidence.
“Based on the trial court’s proper findings, it did not abuse its discretion by concluding that defendant’s new evidence would not make a different result probable upon retrial.
“To summarize, defendant’s new evidence that would be admitted at retrial would consist of (1) the note from the prosecutor’s office, (2) Etchison’s testimony about Wilson’s confessions, and (3) Kovera’s expert opinion about the reliability of Vandevender’s identification based primarily on Kagan-Kans’ measurements.
“On this record, the trial court’s conclusion that the ‘relevant and admissible evidence is insufficient to make a different result probable on retrial when weighed against the testimony presented at trial’ was not outside the range of reasonable and principled outcomes. Accordingly, the trial court did not abuse its discretion by denying defendant’s motion for relief from judgment.”
Concurring judge’s comments
MURRAY, J. (concurring). “In the end, defendant is simply seeking a new trial based not on any different theory, or because of a missing but now located witness, new DNA evidence, or other similar objective and new evidence. Instead, he simply wants a second chance of presenting evidence to a new jury showing that it was dark out the night Mrs. Vandevender identified defendant, and she might have been wrong because it is harder to see at night the further away one is from the object being viewed. Not only is this simply common sense, but the entire issue was already heavily and fairly litigated, and nothing defendant has presented raises a legitimate question about the jury’s decision.”
People v. Kennedy; MiLW 08-108052, 18 pages; Michigan Court of Appeals unpublished per curiam; Jansen, J., O’Brien, J.; Murray, J., concurring; on appeal from Calhoun Circuit Court; Imran J. Syed for appellant; Jennifer S. Raucci for appellee. Click here to read the full opinion Click here to read the full concurrence Copyright © 2024 BridgeTower Media. All Rights Reserved.
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