Opinion
362627
01-13-2023
People of Michigan v. Hassan Mohamad Rizk
LC No. 05-011168-01-FC
Kirsten Frank Kelly Presiding Judge, Thomas C. Cameron, Anica Letica Judges
ORDER
The motion to waive fees is GRANTED for this case only.
Pursuant to MCR 7.205(E)(2), in lieu of granting leave to appeal, we peremptorily VACATE the Wayne Circuit Court's June 21, 2022 order and REMAND this matter to that court for further proceedings consistent with this order. The trial court erred by making a unilateral credibility determination concerning the affidavit testimony presented by defendant. See People v Johnson, 502 Mich. 541, 567; 918 N.W.2d 676 (2018) ("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."). On remand, the trial court should reconsider this matter utilizing the credibility test set forth in Johnson.
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.