Opinion
SC: 155193-4 COA: 323251 332319
10-06-2017
PEOPLE of the State of Michigan, Plaintiff–Appellant, v. Ronald Anthony DIMAMBRO, Jr., Defendant–Appellee.
Order
On order of the Court, the application for leave to appeal the December 6, 2016 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Zahra, J. (dissenting).I respectfully dissent from this Court's order denying the prosecutor's application for leave to appeal. I write separately because I would vacate the judgment of the Court of Appeals addressing whether defendant demonstrated the materiality of 32 suppressed autopsy photographs. The Court of Appeals failed to assess the materiality of the photographs in relation to the totality of the evidence presented in this case. I would remand this case to the Court of Appeals for reconsideration of the materiality of the photographs in relation to the totality of the evidence presented at trial.
To establish that suppressed evidence was material under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), "a defendant must show that ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ " People v. Chenault , 495 Mich. 142, 150, 845 N.W.2d 731 (2014), quoting United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). See also Cone v. Bell , 556 U.S. 449, 469–470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) ("[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. In other words, favorable evidence is subject to constitutionally mandated disclosure when it ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ "), quoting Kyles v. Whitley , 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (emphasis added). Notably, courts must view the evidence "in its totality," Chenault , 495 Mich. at 155, 845 N.W.2d 731, and "consider the suppressed evidence collectively, rather than piecemeal," when "assessing the materiality of the evidence," id . at 151, 845 N.W.2d 731. See also Strickler v. Greene , 527 U.S. 263, 290–294, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (petitioner failed to demonstrate a reasonable probability of a different result for purposes of materiality in light of other evidence); accord Thomas v. Westbrooks , 849 F.3d 659, 663 (C.A.6, 2017) ("Evidence is ‘material’ for Brady purposes when, in view of all relevant evidence , its absence deprives the defendant of a fair trial, understood as a trial resulting in a verdict worthy of confidence.") (quotation marks and citations omitted; emphasis added); Henness v. Bagley , 644 F.3d 308, 325 (C.A.6, 2011) ("The evidence supporting the defendant's conviction also must be considered when determining potential prejudice from a Brady violation."), citing Towns v. Smith , 395 F.3d 251, 260 (C.A.6, 2005). Although the Court of Appeals majority concluded that the suppression of the photographs was material, People v. Dimambro , 318 Mich. App. 204, 220, 897 N.W.2d 233 (2016), it failed to view the suppressed evidence in relation to the totality of all the other relevant evidence, including evidence supporting defendant's conviction, in reaching that conclusion. Moreover, notwithstanding that the materiality analysis tests " ‘the result of the proceeding ,’ " Chenault , 495 Mich. at 150, 845 N.W.2d 731, quoting Bagley , 473 U.S. at 682, 105 S.Ct. 3375 (emphasis added), that is, the original trial, I believe that the Court of Appeals majority may have failed to afford due consideration to the assertion of the Court of Appeals dissent that, by presenting the testimony of a different expert during the posttrial Brady proceedings than had been presented during the trial itself, defendant failed to "establish that the testimony presented at trial would have been different had the defense received the 32 photographs," Dimambro , 318 Mich. App. at 228, 897 N.W.2d 233 ( JANSEN , J., dissenting).Accordingly, I would vacate the portion of the judgment of the Court of Appeals dealing with materiality and remand to that court for reconsideration of the materiality of the photographs in relation to the totality of the evidence presented at trial.
Markman, C.J. and Wilder, J., join the statement of Zahra, J.