Opinion
SC 166226 COA 365218
04-12-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. GLEN LAVELLE VARY, Defendant-Appellant.
Genesee CC: 04-014350-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
On order of the Court, the application for leave to appeal the August 24, 2023 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
WELCH, J. (dissenting).
A jury convicted defendant Glen Lavelle Vary of first-degree premeditated murder, first-degree felony murder, assault with intent to commit murder, assault with intent to rob while armed, and possession of a firearm during the commission of a felony. Defendant asserts that new evidence supports his claim that he is actually innocent. Because I believe that the trial court failed to apply the standard we articulated in People v Johnson, 502 Mich. 541 (2018), for analyzing new evidence, I respectfully dissent from the Court's order denying defendant's application for leave to appeal.
I. BACKGROUND
Defendant's convictions arise from an assault and attempted robbery that led to the shooting death of Robert Montgomery and nonfatal gunshot wound of Darwin McMullen. At first, McMullen could not identify the perpetrators. Eleven days after the assault, however, McMullen told investigators that he heard rumors that "Fred-Fred" and "Bay-Bay"-a nickname associated with defendant-had committed the assaults. Investigators subsequently presented McMullen with a photo lineup, and McMullen identified defendant.
At trial, McMullen testified to the facts summarized above and identified defendant and codefendant Fredrick Relerford as the perpetrators. Ivan Warren also testified against defendant. Warren shared a jail cell with defendant, and he testified that defendant had confessed to him. Defendant rebutted Warren's testimony with testimony from Keith Dantzler. Dantzler testified that Warren told him that he set defendant up in exchange for a sentence agreement. Defendant also provided an alibi defense through the testimony of two witnesses who testified that defendant was at their house during the night of the assault. The jury convicted defendant as charged.
Through the instant motion for relief from judgment, defendant contends that newly discovered witness evidence establishes that he is actually innocent. At the parties' mutual request, the trial court held an evidentiary hearing to evaluate the new evidence.
Several witnesses testified at the hearing. First, Coredon Clark testified that he was in jail with McMullen-the victim. Clark averred that McMullen admitted to being unable to identify the perpetrators and that he identified defendant because of the rumors and police threats. Second, codefendant Relerford testified that he participated in the robbery, but that defendant did not. Relerford claimed that his co-robber is now dead. Third, Michael Powels testified that he became friends with Releford in prison and that Releford told him that defendant was innocent. Finally, Haywood Ogburn, also known as Cawon Lyles, testified that he saw the robbers around the time of the incident and that defendant was not one of them. The trial court denied defendant's motion. The Court of Appeals denied leave to appeal.
II. DISCUSSION
"For a new trial to be granted on the basis of newly discovered evidence, a defendant must show that: (1) 'the evidence itself, not merely its materiality, was newly discovered'; (2) 'the newly discovered evidence was not cumulative'; (3) 'the party could not, using reasonable diligence, have discovered and produced the evidence at trial'; and (4) the new evidence makes a different result probable on retrial." People v Cress, 468 Mich. 678, 692 (2003), quoting People v Johnson, 451 Mich. 115, 118 n 6 (1996).
"In order to determine whether newly discovered evidence makes a different result probable on retrial, a trial court must first determine whether the evidence is credible." Johnson, 502 Mich. at 566-567, citing Cress, 468 Mich. at 692-693. "A trial court's function is limited when reviewing newly discovered evidence, as it is not the ultimate fact-finder; should a trial court grant a motion for relief from judgment, the case would be remanded for retrial, not dismissal. In other words, a trial court's credibility determination is concerned with whether a reasonable juror could find the testimony credible on retrial." Johnson, 502 Mich. at 567. To that end:
If a witness's lack of credibility is such that no reasonable juror would consciously entertain a reasonable belief in the witness's veracity, then the trial court should deny a defendant's motion for relief from judgment. However, if a witness is not patently incredible, a trial court's credibility determination must bear in mind what a reasonable juror might make of the testimony, and not what the trial court itself might decide, were it the ultimate fact-finder. [Id. at 568 (second emphasis added)].
The trial court in this case failed to apply the correct legal standard. When conducting the initial credibility test under Johnson, the trial court must determine whether the witness is "patently incredible." Id. If the trial court does not find the new evidence "patently incredible," then it must put itself in the shoes of a reasonable juror in the context of a new trial. See id. But the trial court in this case instead considered only whether the witnesses offered ¶awed or inconclusive testimony.
First, the trial court dismissed Clark's testimony because it conflicted with a police officer's testimony. The fact that a witness's testimony conflicts with that of a police officer does not render the witness's testimony "patently incredible," nor does it mean that a reasonable juror would believe one witness over another. Instead, it renders the testimony disputed. Second, the trial court discounted Relerford's recantation testimony because it conflicted with his earlier testimony. The trial court failed to consider that by conceding his own guilt, Releford gave up any chance of relief from judgment himself. Indeed, Releford and defendant were in procedurally similar positions, so a reasonable juror could interpret the fact that Releford is conceding guilt as being indicative of honesty. Finally, the trial court found Lyles incredible because he could not remember some details regarding his testimony. However, a reasonable juror might find that Lyles admitting that he cannot remember certain details to be a sign of his truthfulness. In short, the trial court did not view the evidence from the vantage point of an objective factfinder trying to determine whether any reasonable juror might find their testimony credible. See Johnson, 502 Mich. at 567. Most importantly, the trial court evaluated whether the new evidence was flawed, rather than whether it was "patently incredible." Id. at 568.
Importantly, it is not clear that this analytical error was harmless. The only evidence of defendant's guilt presented at trial was McMullen's testimony and the testimony of a jailhouse informant. On direct appeal, the Court of Appeals conceded that "there were some problems with McMullen's testimony ...." People v Vary, unpublished per curiam opinion of the Court of Appeals, issued April 20, 2006 (Docket No. 259499), p 2. Ultimately, however, the Court of Appeals determined that his "testimony was not deprived of all probative value nor was it such that the jury could not possibly believe it." Id. That is not exactly a ringing endorsement. As to the testimony of the jailhouse informant, such testimony is often unreliable.
See, e.g., Covey, Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L Rev 1375 (2014); Krinsky and Serpas, Stop Letting Prosecutors Get Away With Threatening Murder, USA Today (September 9, 2019), available at <https://www.usatoday.com/story/opinion/policing/2019/09/09/prosecutors-jailhouse-informants- murder-policing-the-usa/1689301001/> (accessed April 4, 2024) [https://perma.cc/R7RV-3N5T]; Natapoff, The Shadowy World of Jailhouse Informants: Explained, The Appeal (July 11, 2018); National Registry of Exonerations, Walter Ogrod, <https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5752> (accessed April 4, 2024) [https://perma.cc/5CUQ-KFF5].
McMullen did not identify defendant right away, and the Court of Appeals acknowledged that his testimony was notably flawed. The jailhouse testimony, moreover, should be afforded little weight given the problems already noted by the Court of Appeals. Indeed, on retrial, defense counsel could likely present the new scholarly consensus against jailhouse testimony. Thus, although the new evidence is not dispositive of innocence, it weakens a case that was already weak.
For those reasons, I think one juror might find that in light of this new evidence, defendant is not guilty beyond a reasonable doubt. Accordingly, I respectfully dissent from the Court's denial order.