Opinion
SC 165691 (14) COA 363838
10-20-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEREK JAMES RAINBOLT, Defendant-Appellant.
Muskegon CC: 2014-064458-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 motion for immediate consideration is GRANTED. The application for leave to appeal the March 29, 2023 order 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. The request for peremptory reversal is DENIED.
Cavanagh, J. (concurring).
I concur in the Court's denial of leave to appeal in this case. However, I write separately to clarify that the circuit court remains free to consider the matters defendant has asked it to consider.
Defendant filed pro se a motion for relief from judgment, which the circuit court denied. This Court remanded this case to the circuit court for reconsideration in light of People v Thorpe, 504 Mich. 230 (2019). People v Rainbolt, 505 Mich. 881 (2019). On remand defendant requested appointment of counsel, but the circuit court denied the request. The circuit court then addressed an extremely limited amount of testimony, and it again denied defendant's motion for relief from judgment. This Court remanded the case again in light of People v Peterson, 450 Mich. 349, 376-377 (1995), and People v Thorpe, 504 Mich. 230, 256-259 (2019), and directed the trial court to consider specific testimony. People v Rainbolt, 508 Mich. 957 (2021). After the second remand, the circuit court appointed the State Appellate Defender Office to represent defendant. Appellate counsel reviewed the record and moved to supplement the previously filed pro se motion for relief from judgment under MCR 6.502(F). In this motion, through appellate counsel, defendant raised additional instances of vouching and also raised the issue of prosecutorial misconduct for the first time. The circuit court denied the motion, ruling that those arguments had already been addressed. Those arguments have not been addressed.
Because MCR 6.502(F) is phrased in the permissive "may" rather than the mandatory "shall," the circuit court possessed discretion to deny the motion. However, because these arguments have not been addressed, defendant is able to raise them in a successive motion for relief from judgment, or the circuit court could simply allow defendant to amend the current motion.