Opinion
SC 164045 COA 358769
01-11-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KENNETH COOPER, Defendant-Appellant.
Wayne CC: 01-005593-FC
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
By order of May 31, 2022, the prosecuting attorney was directed to answer the application for leave to appeal the December 27, 2021 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Wayne Circuit Court for an evidentiary hearing on the defendant's motion for relief from judgment. On remand, the trial court shall assess whether the defendant's purported newly discovered evidence would be admissible at a new trial and "whether a reasonable juror could find the testimony credible on retrial." People v Johnson, 502 Mich. 541, 567 (2018) (emphasis in original). If so, the trial court shall then assess "the effect of the newly discovered evidence in conjunction with the evidence that was presented at the original trial[]," and whether the newly discovered evidence makes a different result probable on retrial. Id. at 572. As conceded by the prosecution, at the evidentiary hearing the trial court should also consider evidence pertaining to the defendant's Brady v Maryland, 373 U.S. 83 (1963) claim. In all other respects, the application for leave to appeal is DENIED, because we are not persuaded that the remaining question presented should be reviewed by this Court.
We do not retain jurisdiction.
Zahra, J., did not participate because he was on the Court of Appeals panel that decided defendant's direct appeal and defendant's current appeal involves similar issues raised in that prior appeal.