People of Michigan v. Justly Ernest Johnson

• Court: Michigan Supreme Court
• Decided: July 23, 2018
• Docket: 154128
• Status: Published

Opinion

Michigan Supreme Court Lansing, Michigan Chief Justice: Justices:

Syllabus Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis

PEOPLE v JOHNSON PEOPLE v SCOTT

Docket Nos. 154128 and 154130. Argued April 11, 2018 (Calendar No. 2). Decided July 23, 2018.

In Docket No. 154128, Justly E. Johnson was convicted following a bench trial in the Wayne Circuit Court, Prentis Edwards, J., of first-degree felony murder, MCL 750.316(1)(b), assault with intent to rob while armed, MCL 750.89, and carrying or possessing a firearm when committing or attempting to commit a felony, MCL 750.227b. In Docket No. 154130, Kendrick Scott was convicted following a jury trial in the Wayne Circuit Court, Prentis Edwards, J., of the same offenses as Johnson. On the evening of May 8, 1999, the victim, her husband, and the victim’s three children, including Charmous Skinner Jr. (Skinner), who was 8 years old at the time, went to see a movie, “Life,” at a drive-in theater. On the way home, the family stopped at a house on the east side of Detroit. The victim, who was driving, waited in the van with the children while her husband went inside. While inside, her husband heard a noise, which turned out to be gunfire, and he went to the front door just in time to see both the victim’s van speeding away and a man fleeing on foot. The victim, who had been struck in the chest by a single gunshot, drove the van to a nearby gas station, where she stopped and collapsed out of the vehicle. She later died at the hospital. Two individuals who were in the same neighborhood at the time of the crime, Antonio Burnette and Raymond Jackson, implicated defendants in the shooting and testified at both trials. Both defendants were convicted, and both defendants appealed in the Court of Appeals. The Court of Appeals affirmed Johnson’s convictions, and the same Court of Appeals panel vacated on double-jeopardy grounds Scott’s conviction of assault with intent to rob while armed but otherwise affirmed his convictions and sentences. Defendants sought leave to appeal in the Supreme Court, and the Supreme Court denied both applications. Johnson subsequently filed three motions for relief from judgment. In his second motion for relief from judgement, Johnson presented, as a claim of newly discovered evidence, a recantation by Burnette and an affidavit signed by one of Jackson’s relatives indicating that Jackson lied at the trials. The trial court denied the motion, and the Court of Appeals and the Supreme Court denied leave to appeal. In his fourth motion for relief from judgment, Johnson asserted as a claim of newly discovered evidence that Skinner could attest that neither defendant was the shooter. The trial court denied the motion without a hearing. Johnson appealed in the Court of Appeals, and the Court of Appeals denied relief in an unpublished order entered May 30, 2013 (Docket No. 311625). Scott also filed his first and only motion for relief from judgment, raising the same claim concerning Skinner along with the claims of newly discovered evidence that Johnson had made in his previous motions for relief from judgment. The trial court also denied Scott’s motion without a hearing. Scott sought leave to appeal in the Court of Appeals, and the Court of Appeals denied relief in an unpublished order entered November 5, 2013 (Docket No. 317915). Both defendants sought leave to appeal in the Supreme Court, and the Supreme Court remanded the cases to the Court of Appeals for consideration as on leave granted, directing the Court of Appeals to first remand the cases to the trial court for an evidentiary hearing. People v Johnson, 497 Mich 897 (2014); People v Scott, 497 Mich 897 (2014). The Court of Appeals consolidated the cases and remanded to the trial court, retaining jurisdiction. At the evidentiary hearing, Skinner testified that he remembered the shooter’s face and that the shooter’s facial characteristics did not match those of either defendant. Burnette also testified at the evidentiary hearing, recanting much of the testimony he had given at defendants’ trials. Additionally, although Jackson had died in 2008, his cousin testified that Jackson told her that he had lied on the stand. The trial court, James A. Callahan, J., denied both defendants’ motions for relief from judgment, concluding that there was no reasonable probability of a different result if Skinner testified on retrial. The trial judge stated that Skinner, then 8 years old, would have been asleep in the car and could not have witnessed the shooting or, alternatively, if Skinner had not been asleep, he would not have been capable of seeing anyone outside the vehicle in the dark. The trial judge also questioned Skinner’s overall credibility because Skinner had previously been convicted of perjury in an unrelated matter. Finally, the trial judge stated that he found it difficult to believe that Skinner could remember what the assailant looked like when the judge himself had difficulty remembering what his deceased relatives looked like. With regard to Burnette’s and Jackson’s testimony, the trial court stated that the testimony had been consistent on four different occasions. Defendants moved for peremptory reversal, and the Court of Appeals, STEPHENS, P.J., and FORT HOOD, J. (WILDER, J., dissenting), denied the motion. The Court of Appeals, SAAD and O’BRIEN, JJ. (SERVITTO, J., concurring), then affirmed the trial court’s ruling in an unpublished per curiam opinion, issued May 31, 2016 (Docket No. 311625). Although the Court of Appeals disagreed with the trial court’s factual finding that Skinner had to have been asleep at the time of the shooting, the Court of Appeals nevertheless found that the trial court did not clearly err by finding Skinner’s testimony unreliable. Furthermore, the Court of Appeals held that the recantations were not part of the Supreme Court’s remand order and that the trial court had thus erred by considering these other claims. Even if the recantations could be considered, the Court of Appeals held that the trial court correctly determined that the recantations lacked any substantive weight. Defendants each sought leave to appeal in the Supreme Court, and the Supreme Court granted leave in both cases, ordering that the cases be argued together. People v Johnson, 501 Mich 914 (2017); People v Scott, 501 Mich 914 (2017).

In an opinion by Justice BERNSTEIN, joined by Chief Justice MARKMAN and Justices VIVIANO and CLEMENT, the Supreme Court held:

The newly discovered evidence of Skinner’s testimony in conjunction with the other evidence that would be presented on retrial would make a different result probable and therefore entitled both defendants to new trials. Accordingly, the Court of Appeals judgment was reversed in part and the cases were remanded to the Wayne Circuit Court for new trials.

1. MCR 6.508(D)(3) provides that a court may not grant relief to a defendant if the motion alleges grounds for relief that could have been previously raised, unless the defendant demonstrates both good cause for failing to raise such grounds earlier as well as actual prejudice. In this case, the claim of newly discovered evidence pertaining to Skinner’s eyewitness account could not have been raised on appeal from defendants’ convictions or in a prior motion for relief from judgment because defendants did not know that Skinner saw the shooting until 2011. Therefore, MCR 6.508(D)(3) did not bar the claims regarding Skinner’s account.

2. In order 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. In this case, it was undisputed that defendants satisfied their burden under the first three factors; therefore, the issue was whether the newly discovered evidence in the form of Skinner’s testimony would make a different result probable on retrial. To determine whether newly discovered evidence makes a different result probable on retrial, a trial court must first determine whether the evidence is credible. If the court determines that a reasonable juror could have found the newly discovered evidence to be credible, the court then considers the impact of that evidence in conjunction with the evidence that would be presented on retrial.

3. In determining whether newly discovered evidence is credible, the trial court should consider all relevant factors tending to either bolster or diminish the veracity of the witness’s testimony. 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. A trial court’s credibility determination is concerned with whether a reasonable juror could find the testimony credible on retrial. 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. In this case, the trial court found that Skinner was not a credible witness. The trial court’s finding that Skinner could not have witnessed the shooting because Skinner must have been asleep was not rooted in anything in the record, and therefore the trial court clearly erred by finding that Skinner had been asleep during the shooting. The trial court also clearly erred to the extent that the trial judge supported his finding that Skinner could not possibly remember the shooter’s face on the basis of the judge’s own ability to remember the faces of his deceased relatives. Because the focus is on whether a reasonable juror could credit Skinner’s testimony, the trial judge’s focus on his own personal gaps in memory was inappropriate. Moreover, the trial court failed to acknowledge the expert testimony of a psychologist, who testified that it would not be impossible for a child of Skinner’s age to recall specific details from a traumatic event several years later. The trial court additionally found that Skinner was not credible because Skinner could not have seen the shooter; however, the trial court failed to consider whether a reasonable juror could have believed that, depending on the angle of approach, the darkness of the street, and the lighting conditions in the car, Skinner might have been able to make out defining characteristics of the shooter’s face. Furthermore, although it was appropriate for the trial court to take into account Skinner’s prior perjury conviction, that conviction was obtained under circumstances very different from the case at hand, and a reasonable juror could have credited the fact that Skinner lacked any motive to lie in this case. When considering Skinner’s testimony in its entirety, it was clear that his testimony was not wholly incredible and that a reasonable juror could find his testimony worthy of belief on retrial. Therefore, the trial court clearly erred when it concluded that Skinner’s testimony was entirely incredible.

4. In examining whether newly discovered evidence makes a different result probable on retrial, the trial court must consider the evidence that was previously introduced at trial. The trial court must also consider the evidence that would be admitted at retrial. In this case, the trial court failed to properly assess the effect of the newly discovered evidence in conjunction with the evidence that was presented at the original trials. Skinner testified that neither defendant was the shooter, identifying physical characteristics of the shooter that were completely contrary to the physical characteristics of both defendants, and this testimony was only strengthened when considered in conjunction with the evidence presented at the previous trials. Additionally, the trial court judge who presided over the motions for relief from judgment was not the same judge who presided over the preliminary examination or the original trials and therefore was functionally in the same position as an appellate court where the credibility of witnesses at the preliminary examination and the original trials was concerned; accordingly, the trial court’s determination that Burnette’s trial testimony was credible did not need to be afforded any deference. Furthermore, the trial court’s finding that Burnette’s previous testimony was consistent and compelling was not supported by the record: the prosecutor had to repeatedly refresh Burnette’s memory at both Johnson’s trial and at the preliminary examination, there were significant inconsistencies between the testimonies Burnette gave at the two different trials, and Burnette was unable to give a coherent time line as to what happened on the night in question. Moreover, the trial court failed to note that Burnette’s and Jackson’s testimonies conflicted with one another and that both witnesses admitted to consuming copious amounts of alcohol and marijuana during the times that defendants purportedly made incriminating statements. Accordingly, the Court of Appeals erred by failing to examine the evidence presented at the original trials. When Skinner’s testimony is considered in conjunction with the other evidence presented at the original trials, a different result is reasonably probable on retrial.

5. While consideration of Skinner’s testimony alone would make a different result probable on retrial due to the weaknesses of the prosecutor’s witnesses, the evidence that would be presented at retrial may be considered, which included Burnette’s and Jackson’s recantation testimony. Even though Johnson already raised the recantation evidence in a prior motion for relief from judgment, and therefore was barred from raising the recantations as an independent ground for relief, the court rules do not prohibit considering this evidence in the context of the claim that Skinner’s testimony would make a different result probable on retrial. The Court of Appeals erred by holding that the recantation evidence was not part of the Supreme Court’s remand order. In considering the weight of these recantations, the trial court was correct to approach the recantations with suspicion. However, given the inherent weakness of Burnette’s prior testimony at the trials, his recantation should not be viewed with as much suspicion as is generally accorded, and without his testimony, there is scant other evidence to establish that defendants committed the crime. Also, while Jackson’s trial testimony was not inherently as weak as Burnette’s trial testimony, it was also not as material as Burnette’s trial testimony. Therefore, the recantation testimony supported the conclusion that a different result is probable on retrial. Court of Appeals judgment reversed in part; cases remanded to the trial court for new trials.

Justice ZAHRA, dissenting, would have held that the trial court did not clearly err by determining that Skinner’s testimony was not credible. The trial court did not fail to properly assess the effect of the newly discovered evidence in conjunction with the evidence that was presented at the original trials. Contrary to the majority’s assertion, Judge Callahan, who was the judge presiding over the postjudgment matters in defendants’ cases, did not position himself as an appellate court where the credibility of witnesses at the preliminary examination and the original trials was concerned. The majority failed to give regard to the special opportunity the circuit court judge (Judge Edwards) and the district court judge had to assess and weigh the credibility of the witnesses who appeared before them. Judge Edwards found that the witnesses, particularly Burnette, were fearful and attempted to tailor their testimony to provide Johnson an alibi. Because of this, Judge Edwards rejected this equivocating and inconsistent aspect of the witnesses’ testimony, and rightly so. Judge Callahan relied on four reasons to conclude that Skinner was not credible: (1) Skinner was only 8 years old at the time of the murder and his memory some 16 years later could not be certain; (2) it would have been incredibly difficult for Skinner to be inside a car at night and see someone outside the vehicle when the only illumination was from the vehicle’s interior dome light, especially when considering that both the victim and the car door were between Skinner and the shooter; (3) Skinner had already been convicted for perjury; and (4) in any event, Skinner likely would have been asleep inside the car at the time of the murder. The first three of these four findings clearly called Skinner’s credibility into question and were not clearly erroneous; accordingly, Justice ZAHRA would have held that Judge Callahan did not abuse his discretion by denying defendants a new trial. Additionally, even assuming that Skinner was credible, Skinner’s testimony would not make a different result on retrial probable given the evidence that defendants made threats to Burnette and Jackson in connection with their testimony and that Judge Edwards found Burnette and Jackson to be credible. A comprehensive examination of the evidence presented at defendants’ original proceedings demonstrated that Judge Edwards sifted through the testimony and discounted the arguably equivocal and inconsistent testimony, instead finding the circumstantial evidence against defendants to be persuasive. Accordingly, Justice ZAHRA would have held that the newly discovered evidence was not credible and that even assuming the evidence was credible, the evidence would not have made a difference on retrial.

Justice MCCORMACK did not participate because of her prior involvement in this case as counsel for a party.

Justice WILDER did not participate because he was on the Court of Appeals panel that decided defendants’ motions for peremptory reversal.

©2018 State of Michigan Michigan Supreme Court Lansing, Michigan

OPINION Chief Justice: Justices: Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

FILED July 23, 2018

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 154128

JUSTLY ERNEST JOHNSON,

Defendant-Appellant.

v No. 154130

KENDRICK SCOTT,

BEFORE THE ENTIRE BENCH (except MCCORMACK and WILDER, JJ.)

BERNSTEIN, J. In these consolidated cases, we consider whether the trial court erred by declining

to grant new trials following defendants’ motions for relief from judgment. After

weighing the evidence presented at the trials along with defendants’ claims of newly

discovered evidence, we hold that the evidence in the form of testimony given by

Charmous Skinner Jr. (Skinner) would make a different result probable on retrial.

Accordingly, we reverse the judgment of the Court of Appeals in part and remand these

cases to the trial court for new trials.1

I. FACTS AND PROCEDURAL HISTORY

These cases arise from the murder of Lisa Kindred. Between midnight and

1:00 a.m. on May 9, 1999, Lisa was shot and killed while in her vehicle with her three

children—Decola (newborn), Shelby (2 years old), and Skinner (8 years old). Earlier in

the evening, Lisa, her husband (William Kindred), and her three children had gone to see

a movie, “Life,” at a drive-in theater in Dearborn, Michigan. On their way home,

William announced that he wanted to make a stop on the east side of Detroit to talk to his

sister’s boyfriend, Verlin Miller, about purchasing a motorcycle. Lisa, who was driving,

parked their minivan across the street from Miller’s home and waited in the van with the

children while William went inside. At one point, Lisa went to the door of the house and

asked William to come back to the van, but William told her that he would be out shortly,

and Lisa returned to the van. Soon afterward, William heard a noise, which turned out to

1 Our holding that defendants are entitled to new trials due to their newly discovered evidence claims makes it unnecessary to consider their ineffective assistance of counsel claims. Therefore, we vacate the Court of Appeals’ analysis of those issues as moot.

2 be gunfire, and went to the front door just in time to see both Lisa’s van speeding away

and a man fleeing on foot. William chased after the fleeing individual but failed to catch

him.

Having been struck by the gunfire, Lisa drove the van to a nearby gas station,

stopped, and then collapsed out of the vehicle. She later died at the hospital. The

medical examiner’s report revealed that Lisa’s death was caused by a single gunshot

wound to the chest. The report also revealed that small wounds on her body were

consistent with her having been shot through an intervening medium. The driver’s

window had been shattered, but nothing had been stolen from the van. The children were

not harmed, and they were still in the vehicle when the police arrived at the scene. A .22

caliber spent casing was found in the street at the scene of the shooting.

Two individuals who were in the same neighborhood at the time of the crime,

Antonio Burnette and Raymond Jackson, implicated defendants Justly Johnson and

Kendrick Scott in the shooting.2 All four individuals knew each other from the same

neighborhood. Johnson and Scott were tried separately—Johnson by bench trial and

Scott by jury trial. Judge Prentis Edwards presided over both trials. Burnette and

Jackson testified at both trials.

2 Burnette testified at Scott’s trial that he was 14 years old when the shooting occurred and was 15 years old at the time of the trial. However, at the evidentiary hearing, Burnette testified that he was born in 1982, which would have made him 16 or 17 years old when the shooting occurred and 17 or 18 years old at the time of the trial. Jackson was 22 years old at the time of the preliminary examination. Johnson was 24 years old at the time of the shooting, and Scott was 20 years old.

3 A. JOHNSON’S BENCH TRIAL

In both trials, Burnette was the prosecutor’s key witness. However, it is difficult

to construct a linear time line of events from the night of the shooting according to

Burnette’s testimony, given the many inconsistencies in his testimony. According to

Burnette, he was initially with both defendants the evening before the shooting. Burnette

testified that Scott had discussed “planning something” but that Johnson had not said

anything. However, when the prosecutor pointed out that Burnette had previously

testified at the preliminary examination that both defendants had discussed plans for that

evening with him, Burnette agreed that such a conversation had occurred. Burnette also

failed to recall whether defendants had mentioned planning to “hit[] a lick,” which he

explained meant robbing someone. The prosecutor refreshed Burnette’s memory with his

preliminary examination testimony, and Burnette then clarified that defendants had

discussed hitting a lick.

Burnette then testified that his father picked him up at 10:30 p.m. Burnette

claimed that he again met up with both defendants around 2:30 a.m., at which point

Johnson told him that Scott had shot a lady because she owed Scott money. However,

Burnette also testified that he and Johnson drove around with an individual named Mike

at some point in the evening. It is unclear from Burnette’s testimony whether this drive

took place earlier in the evening, before Burnette’s father picked him up and before the

shooting, or whether it occurred after Burnette met up again with defendants at 2:30 a.m.

Burnette testified that Mike drove Johnson and him around and that Mike eventually

dropped them both off when their plans fell through. At one point during his testimony,

Burnette stated that he was dropped off at the same gas station that Lisa drove to.

4 Burnette also testified that he saw an ambulance and police vehicles at the gas station,

suggesting that this took place after the shooting. However, Burnette’s testimony

changed several times as to whether Johnson was with him when he saw the ambulance

at the gas station. Burnette also testified that, alternatively, he was dropped off elsewhere

in Detroit, that he did not return to the gas station, and that he did not see an ambulance

there.

Burnette further testified that when he met up with both defendants at 2:30 a.m.,

all three of them were smoking and drinking. Burnette testified that he had consumed 32

bottles of Budweiser and a half pint of Hennessy the day of the shooting, in addition to

smoking 10 marijuana cigars. Burnette claimed that, while he was in this state, Johnson

told him that Scott had shot a woman because she owed Scott money. Burnette also

testified that he had first learned that a woman had been shot when he went to purchase

marijuana earlier that evening and saw an ambulance and police officers in the

neighborhood. It is unclear from Burnette’s testimony whether this was related to his

purported sighting of an ambulance and police officers at the gas station, or whether this

was a separate incident. In any case, Burnette later contradicted himself yet again by

stating that defendants were the ones who first informed him that someone had been shot.

Burnette also testified unclearly about whether his knowledge of the victim’s

name came from defendants or the police. Burnette agreed that, in his police statement,

he stated that the woman who owed Scott money was named “Lisa.” However, when

Burnette was asked whether he knew anyone by that name, he testified that he did not.

When he was asked if the police had given him that name, Burnette said that they had.

5 Burnette claimed that he saw both defendants with guns that night, an AK-47 and

a .22 caliber rifle, albeit only after his memory was refreshed. Burnette testified that he

saw Johnson place a gun in a vehicle and that Scott, sometime around 7:00 or 8:00 a.m.

the morning after the shooting, placed the other gun in a different vehicle. Burnette went

to sleep in Scott’s car, where the police later found him. Burnette was taken in for

questioning, and he testified that the police told him that he would be charged with a

homicide offense.

Turning to Jackson’s testimony, Jackson stated that, in the early morning hours on

the day of the shooting, he woke up in his grandmother’s home after hearing a gunshot.3

When Jackson eventually went outside to see what had happened, he saw a police car in

front of the field next door to his grandmother’s house. Jackson testified that when he

looked down the street, he saw Scott standing on his girlfriend’s porch and saw Scott

hand his girlfriend something long and covered in clothing. Jackson testified that he

believed this object to be a dog leash. Shortly thereafter, the police took Jackson and

Scott downtown for questioning, and Jackson said that he eventually returned home while

the police kept Scott at the station. A police officer confirmed that Scott was still in

custody when the officer reported to work between 8:00 and 8:30 a.m. that morning.

Sometime after Jackson returned to his grandmother’s house, Johnson came over.

Jackson alleged that Johnson was drunk when they spoke. But Jackson admitted that he,

too, had consumed marijuana and three 40-ounce bottles of beer. It is unclear when, and

in what time frame, Jackson consumed these substances. Jackson also acknowledged that

3 Jackson’s grandmother’s house is across the street from Verlin Miller’s home.

6 he sometimes saw and heard things that were not there, that he was recently released

from the hospital after being admitted for mental health issues, and that he was taking

prescription medications for his mental health conditions when the shooting occurred. In

contrast to Burnette’s testimony, Jackson testified that Johnson, not Scott, had admitted

to “hit[ting] a lick” and that Johnson “messed up and had to shoot.” However, Jackson

clarified that the phrase “hit a lick” could mean a variety of things, only one of which was

to rob someone.4 Johnson also told Jackson that this occurred in the field next to

Jackson’s grandmother’s home and that Scott was with him. Later, police arrived at

Jackson’s home and arrested Johnson. Sometime after Johnson’s arrest, Jackson was

held again at the police station. Jackson claimed that, while he was in custody, Johnson

verbally threatened him for what he had told the police.

Like Burnette, Jackson’s testimony also suffered from some inconsistencies, most

notably whether Jackson was threatened by the police. On cross-examination, Jackson

testified that the police had not threatened him. However, Jackson later testified that the

second time he was at the police station, the police scared him, and he felt that if he did

not come forward with “the truth,” the police would try to pin the murder on him.

Johnson testified on his own behalf, denying any involvement in the shooting.

Johnson testified that he met up with Scott and Burnette at Scott’s home at around

9:30 p.m. the evening before the shooting. Johnson testified that he and Burnette were

then continuously together that evening. Johnson did not testify as to the first purported

conversation between him, Scott, and Burnette. Johnson testified that he later drove

4 Jackson’s brother testified that he was upset with Jackson for testifying against Johnson because Jackson had told his brother that Johnson hit a lick playing dice.

7 around with Mike and Burnette and that Johnson and Burnette were ultimately dropped

off at the gas station at around 1:00 or 1:15 a.m., where Johnson saw several police cars

gathered. From there, Burnette and Johnson returned to Scott’s home, and Johnson told

Scott that he had seen the police at the gas station. Johnson’s girlfriend then picked him

up around 2:30 a.m. Johnson confirmed that the next day he went over to Jackson’s

house, but Johnson denied speaking to Jackson about hitting a lick.

Judge Edwards found Johnson guilty of first-degree felony murder, MCL

750.316(1)(b), assault with intent to rob while armed, MCL 750.89, and carrying or

possessing a firearm when committing or attempting to commit a felony (felony-firearm),

MCL 750.227b. Johnson was sentenced to life imprisonment without parole for the first-

degree murder conviction, 20 to 30 years’ imprisonment for assault with intent to rob

while armed, and a consecutive two-year sentence for the felony-firearm conviction.

B. SCOTT’S JURY TRIAL

At Scott’s trial, Burnette’s testimony was more internally consistent but differed in

large portions from his testimony at Johnson’s bench trial. Burnette again testified that

on the night of the shooting, he was with both defendants at Scott’s house when

defendants mentioned that they were going to hit a lick. Burnette then testified that his

father picked him up at 10:30 p.m. and that they were together until around 2:00 a.m., at

which point Burnette went back to Scott’s house and met up with both defendants.

Notably missing from Burnette’s testimony was any indication that he had spent time that

night driving around with Johnson and Mike. Burnette also did not mention having seen

any ambulances or police cars in the neighborhood.

8 As before, Burnette testified that, at Scott’s house, all three of the men were

drinking and smoking marijuana and that he had personally consumed 32 bottles of

Budweiser and a half pint of Hennessy, in addition to smoking 10 marijuana cigars.

Burnette testified that Scott told him that “they had shot a lady” because she would not

give them any money, while Johnson told him that only Scott “had shot the lady.” This

time, Burnette claimed he distinctly remembered that this was the first time he learned a

lady had been shot, not when he saw police at the gas station. Burnette testified that both

defendants told him that the shooting happened at the gas station. Burnette also testified

that Scott was the one who told him that the woman’s name was “Lisa” and that Johnson

told him that Johnson and Scott had an “AK and a rifle.” According to Burnette, his

conversation with Johnson and Scott lasted until 3:00 a.m. or 4:30 a.m., at which point

Johnson left when his girlfriend arrived to pick him up.

Consistent with his prior testimony, Burnette claimed that he went to sleep in

Scott’s car, where he was later awakened by the police. Burnette then gave conflicting

testimony regarding whether the police threatened to charge him in connection with

Lisa’s murder. He first claimed that the police did not threaten him but then admitted

that he had previously testified that the police indicated they were going to charge him if

he did not state that defendants had killed Lisa. Burnette also testified that people in the

neighborhood had threatened him for speaking to the police and testifying.5

Jackson testified consistently with his testimony at Johnson’s trial that he heard a

gunshot, went outside to see a police vehicle, saw Scott, and was questioned by the police

5 This information had not been presented at Johnson’s trial.

9 that evening along with Scott. Jackson further explained that when the police questioned

him and Scott after the shooting, Scott told the police that he saw two men walking

through his girlfriend’s yard and that both men had rifles. Jackson said the police then

took him and Scott downtown for further questioning at around 1:15 a.m. Jackson then

returned to his grandmother’s home, and he was unaware if Scott was also released from

custody. Johnson visited the following morning. Jackson testified that he had started

drinking before Johnson came over, but Jackson did not mention how much he drank and

did not mention that he had ingested any other substances, like prescription medicine or

marijuana. Jackson’s testimony as to what Johnson said was consistent with his

testimony at Johnson’s trial. Jackson stated that he went to the police station the

following day because the police had told him that he was “hiding something.”

Scott did not testify or call any witnesses. A .22 caliber rifle was found at Scott’s

girlfriend’s home, but the parties stipulated that the rifle was inoperable. A jury

convicted Scott of the same offenses for which Johnson had been convicted, and Judge

Edwards imposed the same sentences.

C. DIRECT APPEALS AND MOTIONS FOR RELIEF FROM JUDGMENT

Both defendants appealed by right. The Court of Appeals affirmed Johnson’s

convictions. People v Johnson, unpublished per curiam opinion of the Court of Appeals,

issued March 26, 2002 (Docket No. 228547). The same Court of Appeals panel vacated

on double-jeopardy grounds Scott’s conviction of assault with intent to rob while armed

but otherwise affirmed his convictions and sentences. People v Scott, unpublished per

curiam opinion of the Court of Appeals, issued March 26, 2002 (Docket No. 228548).

10 This Court denied both defendants’ applications for leave to appeal. People v Johnson,

467 Mich 911 (2002); People v Scott, 467 Mich 911 (2002).

Johnson thereafter filed three motions for relief from judgment. In his second

motion for relief from judgment, Johnson presented, as a claim of newly discovered

evidence, Burnette’s recantation and an affidavit from Jackson’s relative that Jackson lied

at the trials. The trial court denied the motion, and the Court of Appeals and this Court

denied leave to appeal. People v Johnson, unpublished order of the Court of Appeals,

entered February 11, 2009 (Docket No. 287529); People v Johnson, 485 Mich 893

(2009). Johnson’s third motion for relief from judgment presented additional newly

discovered evidence, which included police reports regarding domestic violence disputes

between William and Lisa. Again, the trial court denied the motion, and the Court of

Appeals and this Court denied leave to appeal. People v Johnson, unpublished order of

the Court of Appeals, entered December 2, 2010 (Docket No. 298189); People v

Johnson, 489 Mich 990 (2011).

Johnson filed his current and fourth motion for relief from judgment in December

2011. In particular, Johnson claimed that there was newly discovered evidence that one

of the victim’s children, Skinner, could attest that neither defendant was the shooter. The

trial court denied the motion without a hearing, and the Court of Appeals denied relief.

People v Johnson, unpublished order of the Court of Appeals, entered May 30, 2013

(Docket No. 311625).

Scott filed his first and only motion for relief from judgment in March 2013. Scott

raised the same newly discovered evidence claim concerning Skinner, along with the

claims of newly discovered evidence that Johnson had made in his previous motions for

11 relief from judgment. The trial court6 denied the motion without a hearing, and the Court

of Appeals denied leave to appeal. People v Scott, unpublished order of the Court of

Appeals, entered November 5, 2013 (Docket No. 317915).

Both defendants filed applications for leave to appeal in this Court. This Court

remanded the cases to the Court of Appeals for consideration as on leave granted,

directing the Court of Appeals to first remand these cases to the trial court for an

evidentiary hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973),

to determine whether defendants were deprived of their right to the effective assistance of

counsel and whether defendants were entitled to new trials based on newly discovered

evidence. People v Johnson, 497 Mich 897 (2014); People v Scott, 497 Mich 897 (2014).

D. EVIDENTIARY HEARING

After consolidating the cases, the Court of Appeals remanded the case to the trial

court for an evidentiary hearing. At the evidentiary hearing, Skinner testified that he was

eight years old at the time his mother was killed. Skinner testified that on the evening in

question, he and his family went to a drive-in movie theater, specifically recalling that

they saw the movie “Life.” When they stopped at Miller’s house after the movie, Skinner

testified that William went in by himself, while everyone else waited in the car. Skinner

was originally sitting in the back seat of the van, but he had moved up to the front

passenger seat as they waited for William to return. Skinner remembered that Lisa

6 Judge Edwards has since retired, and his successor, Judge James Callahan, presided over Scott’s proceeding for motion for relief from judgment and the evidentiary hearing that followed.

12 appeared agitated and that she left the van at one point to briefly speak with William.

When she returned to the van and opened the door to get back in, Skinner saw a man

behind her. Skinner recalled that the man was African-American and in his mid-thirties,

with very short hair, a beard, and a big nose.7 Skinner testified that the man’s face was

visible, even though it was dark out, because the dome light of the van had turned on

when Lisa opened the door. Skinner stated that the man was standing behind Lisa and off

to the side, and he was able to see the man for “[a]bout 25 seconds.” When the man was

about 6 inches behind her, with the door between him and Lisa, Skinner heard a gunshot,

and the driver’s-side window shattered. Lisa got into the car and raced to the nearest gas

station, where she later collapsed.

After his mother’s death, Skinner never talked to William or the rest of his family

about what he saw that night. He was not interviewed by any police officers, but he

testified that if an officer had asked him about what he witnessed that night, he would

have told the truth and would have been able to identify the shooter. Some time after the

shooting, Skinner moved to Pennsylvania to live with his biological father’s family. His

family attempted to speak to him about his mother’s death, but Skinner refused. He

recalled seeing a counselor to talk about his mother, but he did not tell the counselor

about what he saw that night.

In 2007, the Wisconsin Innocence Project contacted Skinner by telephone, and

Skinner indicated that he saw what had happened to his mother. Skinner did not give the

7 Both defendants were in their twenties at the time of the shooting. The trial court also noted that Skinner’s description of the shooter was “completely contrary to the physical characteristics of both defendants in this case.”

13 Wisconsin Innocence Project a description of the shooter, and the Wisconsin Innocence

Project never followed up with Skinner. In 2011, Skinner was contacted by an

investigative reporter, who wrote a letter inquiring about his mother’s death. Skinner

testified that when he received the letter, he was surprised to learn that they were still

trying to find out who had killed his mother. Based on this letter and the news articles he

read, Skinner got the impression that defendants were wrongly convicted, so he spoke to

the reporter, revealing for the first time his account of the shooting and giving the

reporter a description of the shooter, noting that he “will never forget the person’s face.”

The Michigan Innocence Clinic subsequently showed Skinner a photo lineup that

included pictures of both defendants from the time of the incident, and he was confident

that the person who shot his mother was not in the lineup.

At the evidentiary hearing, Skinner acknowledged that he had been previously

convicted of perjury for falsely testifying in a case in which his friend was charged in

connection with a double homicide. But Skinner testified that he would not lie to protect

someone he did not know and that he would tell the truth in order to find his mother’s

killer.

Dr. Katherine Rosenblum, who was qualified as an expert in clinical and

developmental psychology, also testified at the evidentiary hearing. Rosenblum testified

that an eight-year-old child who witnessed a traumatic event would certainly be mature

enough to have clear memories of the event. Rosenblum noted that research suggests a

“narrowing of attention” in moments of high traumatic stress that leads people to “focus

on and remember very clearly particular details . . . to the exclusion of some other, more

peripheral details.”

14 Burnette also testified at the evidentiary hearing, recanting much of what he had

testified to at defendants’ trials. Burnette asserted that neither defendant confessed to

robbing or shooting a woman. Burnette also testified that he did not see either defendant

with a gun on the day in question and that he was with Johnson at a relative’s home at the

time of the shooting. Burnette took back his previous testimony that the police had not

threatened him, indicating that he had been afraid that he would be charged with the

murder if he did not implicate someone. Burnette also stated that he was not coerced by

either defendant or their families into giving his recantation testimony. On cross-

examination, the prosecutor cited Burnette’s preliminary examination testimony, in

which he had testified that he was afraid of defendants, but Burnette denied this, saying

he was coached by the police to say he was scared.

Though Jackson had died in 2008, his cousin, Lameda Thomas, testified at the

evidentiary hearing that Jackson had told her that he had lied on the stand out of fear of

prosecution on two separate occasions. Specifically, Thomas testified that Jackson had

stated he lied about Johnson telling him he hit a lick and had to shoot.

E. TRIAL COURT’S RULING

The trial court denied both defendants’ motions for relief from judgment,

concluding that there was no reasonable probability of a different result if Skinner

testified on retrial.

Specifically, the trial court found Skinner’s testimony to be incredible for several

reasons. First, the trial court concluded that Skinner could not have witnessed the

shooting because Skinner would have been asleep based on the fact that he was on the

15 way back from seeing the movie, “Life,” which was not “Fantasia here or a Mickey

Mouse cartoon. . . . So we’re talking about [a movie about] life imprisonment or

whatever . . . [s]omething that a child would have nothing to relate to.” Accordingly, the

trial court concluded that the children, including Skinner, “undoubtedly . . . were asleep

in the back of the van . . . .”

Second, even if Skinner had not been asleep, the trial court found that Skinner

“wouldn’t have been capable of seeing anybody outside,” much less be able to pick out

details regarding facial hair. The trial court reasoned that Lisa would have blocked

Skinner’s vision, as she stood between him and the shooter, and that the dome light

would not have shed any light outside the car.

Third, the trial court questioned Skinner’s overall credibility based on his perjury

conviction, stating: “Should we believe him, seeing as how he was in prison for perjury?

I mean good grief. Doesn’t that go right to the essence of it?”

Lastly, the trial court noted that a significant amount of time had passed since the

shooting had occurred. The trial court found it relevant that Skinner could not remember

the name of his teacher or the school that he attended at the time. The trial court also

found it hard to believe that Skinner would be able to remember what the shooter looked

like:

I bet [Skinner] couldn’t remember what his mother looked like today. . . . I have difficulty remembering what my father looked like, and it wasn’t that long ago or my wife for that matter, which wasn’t that long ago. But yet, he remembers what this shooter looked like at the time? I find it almost impossible to believe.

16 With regard to Burnette and Jackson, the trial court stated that “[e]very one of the

testimonies that were given during the course of the preliminary examination and the

trial[s], and we’re talking about four different occasions here, was the same by Mr.

Burnett [sic] and by Mr. Jackson.”8 The trial court also noted that both witnesses knew

the type of weapon that was used for the killing and both witnesses identified the victim

by name. As to Burnette’s testimony that he was coached by the police, the trial court

found this illogical, reasoning that the police would not be able to predict what would be

asked of Burnette. The trial court finally concluded that it could not find “any reasonable

probability that there would be a different result in this case, even if Mr. Skinner was

allowed to give testimony in regard to this matter, nothing.”9

F. COURT OF APPEALS’ RULING

The Court of Appeals majority affirmed the trial court’s ruling in an unpublished

per curiam opinion. People v Johnson, unpublished per curiam opinion of the Court of

Appeals, issued May 31, 2016 (Docket No. 311625). Although the Court of Appeals

disagreed with the trial court’s factual finding that Skinner had to have been asleep at the

time of the shooting, the Court of Appeals nevertheless found that the trial court did not

clearly err by finding Skinner’s testimony unreliable. Furthermore, the Court of Appeals

8 The preliminary examination was jointly held for both defendants. Thus, the trial court was incorrect to note that there were four occasions when the witnesses previously testified, as there were only three occasions: the joint preliminary examination, and then the separate trials. 9 The trial court also concluded that the domestic violence records would not make a different result probable on retrial.

17 held that the recantations were not part of this Court’s remand order and that the trial

court had thus erred by considering these other claims. Even if the recantations could be

considered, the Court of Appeals held that the trial court correctly determined that the

recantations “seriously lacked any substantive weight.” Id. at 10 n 8.10

Defendants each filed an application for leave to appeal in this Court. We granted

leave in both, ordering that the cases be argued together. People v Johnson, 501 Mich

914 (2017); People v Scott, 501 Mich 914 (2017).

II. STANDARD OF REVIEW

This Court reviews a trial court’s decision to grant or deny a motion for a new trial

for an abuse of discretion. People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003).

“An abuse of discretion occurs when a trial court’s decision falls outside the range of

reasonable and principled outcomes.” People v Franklin, 500 Mich 92, 100; 894 NW2d

561 (2017) (quotation marks and citation omitted). A mere difference in judicial opinion

does not establish an abuse of discretion. Alken-Ziegler, Inc v Waterbury Headers Corp,

461 Mich 219, 228; 600 NW2d 638 (1999).

A trial court’s factual findings are reviewed for clear error. MCR 2.613(C). Clear

error occurs if “the reviewing court is left with a definite and firm conviction that the trial

10 The Court of Appeals also held that the trial court erred by considering the domestic violence records because it was outside the scope of this Court’s remand order and, in any event, the records would be inadmissible hearsay. Because we conclude that Skinner’s testimony, in conjunction with the evidence presented at the original trials, is sufficient to find a different result probable on retrial, it is unnecessary for us to consider whether the domestic violence records would be admissible and what their potential impact would be on retrial.

18 court made a mistake.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014)

(quotation marks and citations omitted). MCR 2.613(C) provides that “regard shall be

given to the special opportunity of the trial court to judge the credibility of the witnesses

who appeared before it.” (Emphasis added.) And “appellate courts need not refrain from

scrutinizing a trial court’s factual findings, nor may appellate courts tacitly endorse

obvious errors under the guise of deference.” People v McSwain, 259 Mich App 654,

683; 676 NW2d 236 (2003) (quotation marks and citation omitted).

III. ANALYSIS

Motions for relief from judgment are governed by MCR 6.500 et seq. MCR

6.508(D)(3) provides that a court may not grant relief to a defendant if the motion alleges

grounds for relief that could have been previously raised, unless the defendant

demonstrates both good cause for failing to raise such grounds earlier as well as actual

prejudice. The newly discovered evidence claim pertaining to Skinner’s eyewitness

account could not have been raised on appeal from defendants’ convictions or in a prior

motion for relief from judgment because defendants did not know that Skinner saw the

shooting until 2011. Therefore, MCR 6.508(D)(3) does not bar the newly discovered

evidence claims regarding Skinner’s account.

Although Scott’s motion was his first motion for relief from judgment, Johnson’s

motion was a successive motion for relief from judgment, which is also governed by

MCR 6.502(G). Generally speaking, “one and only one motion for relief from judgment

may be filed with regard to a conviction. . . . A defendant may not appeal the denial or

rejection of a successive motion.” MCR 6.502(G)(1). However, a defendant may file a

19 successive motion based on “a claim of new evidence that was not discovered before the

first such motion.” MCR 6.502(G)(2). The prosecutor does not argue that defendants’

claim of newly discovered evidence in the form of Skinner’s testimony is procedurally

barred, either under MCR 6.502(G) or MCR 6.508(D)(3)(a).

In their current motions for relief from judgment, defendants raise the claim of

newly discovered evidence in the form of Skinner’s testimony.11 In order 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.” Cress, 468 Mich at 692 (quotation marks

and citation omitted). The Court of Appeals analyzed the first three Cress factors and

concluded that defendants satisfied their burden under each factor. On appeal, the

prosecutor does not contest the Court of Appeals’ conclusions as to the first three factors

of Cress. Thus, the central issue before this Court is the fourth prong of Cress, whether

“the new evidence makes a different result probable on retrial.” Id.

A. CREDIBILITY

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. Id.

11 Because this is Scott’s first motion for relief from judgment, his claim of newly discovered evidence also includes the witness recantations and the domestic violence records.

20 at 692-693. In making this assessment, the trial court should consider all relevant factors

tending to either bolster or diminish the veracity of the witness’s testimony. See id. at

692-694. 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. See Connelly v United States, 271 F2d 333, 335 (CA 8,

1959) (“The trial court has the right to determine the credibility of newly discovered

evidence for which a new trial is asked, and if the court is satisfied that, on a new trial,

such testimony would not be worthy of belief by the jury, the motion should be denied.”)

(quotation marks and citation omitted; emphasis added).

Recently, in People v Anderson, 501 Mich 175; 912 NW2d 503 (2018), we

compared the respective roles of a trial judge presiding over a motion for a new trial and

a magistrate presiding over a preliminary examination when rendering credibility

determinations. We held that, in the context of a preliminary examination, “[i]f a

witness’s lack of credibility, when considered together with the other evidence presented

during the examination, is so lacking that ‘a person of ordinary prudence and caution

[would not] conscientiously entertain a reasonable belief of the accused’s guilt,’ a

magistrate may not bind over the defendant for trial.” Id. at 188-189 (citation omitted).

See also People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998) (“As the trier of

fact, the jury is the final judge of credibility.”) (quotation marks and citation omitted);

Yaner v People, 34 Mich 286, 289 (1876) (“We do not desire to be understood that the

magistrate must nicely weigh evidence as a petit jury would, or that he must discharge the

21 accused where there is a conflict of evidence, or where there is a reasonable doubt as to

his guilt; all such questions should be left for the jury upon the trial.”) (emphasis added).

Although Anderson does not control in this context, as we are not now dealing with a

preliminary examination, a trial court similarly plays a preliminary gatekeeping role in

assessing a defendant’s motion for relief from judgment; in both situations, the trial court

is contemplating a future trial and the role of a future fact-finder.12 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.

In this case, the trial court found that Skinner was not a credible witness.

Importantly, the trial court noted that Skinner could not have witnessed the shooting,

because the trial court found that Skinner must have been asleep. If Skinner was asleep

for the shooting, then there could be no value to Skinner’s testimony. As this was a

factual determination, we review it for clear error, which exists if “the reviewing court is

left with a definite and firm conviction that the trial court made a mistake.” See Douglas,

496 Mich at 592 (quotation marks and citation omitted). We, like the Court of Appeals,

conclude that the trial court clearly erred by finding that Skinner was asleep during the

12 This Court noted in Anderson that there is some justification for “providing a magistrate with greater authority to examine credibility during a preliminary examination than a judge has in entertaining a motion for a new trial.” Anderson, 501 Mich at 187 n 4.

22 shooting. Nothing in the record suggested that Skinner had been asleep beyond the trial

court’s mere speculation that the movie “Life” would certainly put a child to sleep. Even

if the trial court were right to assume that Skinner was asleep during the movie, there is

nothing to suggest that Skinner could not have woken up afterwards. In fact, Skinner

specifically testified that, once William went into the house, he climbed into the front

passenger’s seat with his mother, indicating that he was awake and did witness the

events. Because the trial court’s factual finding was not rooted in anything in the record,

the trial court clearly erred by finding that Skinner was asleep during the shooting.13

The trial court also found that Skinner’s testimony was not credible even if he had

been awake. The trial court particularly questioned Skinner’s ability to remember the

shooter’s face, noting that Skinner could not possibly remember what his own mother

looked like, given that the trial judge had difficulty remembering his own father’s face or

his wife’s face, despite them passing more recently than Lisa. To the extent the trial

judge supported his credibility determination on the strength of his own memory, the trial

court clearly erred. Because the focus is on whether a reasonable juror could credit

Skinner’s testimony, the trial judge’s focus on his own personal gaps in memory was

inappropriate. Whether or not a judge has a particularly good or bad memory has no

legal relevance to whether a reasonable juror would find that a witness has the ability to

recall something, especially when an expert witness has testified in support of that ability.

In fact, the trial court failed to acknowledge Rosenblum’s expert testimony, which

13 The prosecutor conceded that the trial court’s finding that Skinner was actually asleep at the time of the murder was clearly erroneous because it was speculative and unsupported by the record.

23 indicated that it would not be impossible for a child of Skinner’s age to recall specific

details from a traumatic event several years later.

The trial court additionally found that Skinner was not credible because Skinner

could not have seen the shooter due to the position of Lisa’s body. The trial court also

considered the effect of Skinner’s prior perjury conviction on his credibility. See MRE

609. Although it is appropriate for a trial court to take into account such weaknesses in a

witness’s testimony, the trial court failed to determine whether a reasonable juror might

conclude that Skinner is nonetheless credible with regard to the facts at issue here. The

trial court failed to consider whether a reasonable juror could have believed that,

depending on the angle of approach, the darkness of the street, and the lighting conditions

in the car, Skinner might have been able to make out defining characteristics of the

shooter’s face. A reasonable juror also could have credited the fact that Skinner lacked

any motive to lie in this case. Although Skinner had a prior conviction for perjury, that

conviction was obtained under circumstances very different from the case at hand.

Indeed, Skinner’s testimony corroborated several specific details that took place

on the night of the shooting, such as the specific film his family had watched that night,

that Lisa had been driving the van, that William had visited a relative’s home while Lisa

and the others waited in the van, that Lisa momentarily left the car to speak with William,

and that the gunshot broke the driver’s window. While Skinner’s testimony contained

some questionable aspects, which the trial court appropriately noted, it also contained

some reliable aspects, which the trial court failed to acknowledge. When considering

Skinner’s testimony in its entirety, it is clear that his testimony is not wholly incredible,

as the trial court found, and that a reasonable juror could find his testimony worthy of

24 belief on retrial. Therefore, the trial court clearly erred when it concluded that Skinner’s

testimony was entirely incredible.

B. RESULT ON RETRIAL

Because a reasonable juror could have found Skinner’s testimony to be credible,

we now consider the impact of that testimony in conjunction with the evidence that

would be presented on retrial. In examining whether this “new evidence makes a

different result probable on retrial,” the trial court must consider the evidence that was

previously introduced at trial. Cress, 468 Mich at 692; see also People v Grissom, 492

Mich 296, 321; 821 NW2d 50 (2012) (ordering “the trial court [on remand to] carefully

consider the newly discovered evidence in light of the evidence presented at trial”)

(emphasis added). The trial court must also consider the evidence that would be admitted

at retrial, which in this case includes the recantation testimony. Cress specifically uses

the term “retrial,” which refers to a new trial. Thus, the evidence that must be taken into

consideration when assessing a claim of newly discovered evidence is not simply the

evidence presented at the original trial, but also the evidence that would be presented at a

new trial. Cress, 468 Mich at 694 (“[The confessor’s] testimony (even presuming he

would testify at a new trial) would not make a different result probable on retrial.”)

(emphasis added). Accordingly, the Court of Appeals erred by failing to examine the

evidence presented at the original trials and holding that the recantations were beyond the

scope of this Court’s remand order.

In this case, we find that the trial court failed to properly assess the effect of the

newly discovered evidence in conjunction with the evidence that was presented at the

25 original trials. Notably, Skinner testified that neither defendant was the shooter. Skinner

described the shooter as being in his mid-thirties, and neither defendant was in his thirties

at the time of the shooting. Additionally, Skinner stated that the shooter had a large nose

and a beard, which the trial court noted was “completely contrary to the physical

characteristics of both defendants in this case.” Although the trial court had reason to

question some aspects of Skinner’s testimony, Skinner’s testimony is only strengthened

when considered in conjunction with the evidence presented at the previous trials.

Burnette was the prosecutor’s key witness, as he was the only witness who

testified that defendants admitted to shooting Lisa, and he was the only witness who

testified that he saw defendants with weapons. In considering the value of Burnette’s

trial testimony, the trial court found “[e]very one of the testimonies that were given

during the course of the preliminary examination and the trial[s], and we’re talking about

four different occasions here, was the same by Mr. Burnett [sic] . . . .” However, the trial

court judge who presided over these motions for relief from judgment was not the same

judge who presided over the preliminary examination or the original trials. The trial

court judge thus was functionally in the same position as an appellate court where the

credibility of witnesses at the preliminary examination and the original trials was

concerned. Accordingly, the trial court’s determination that Burnette’s trial testimony

was credible need not be afforded any deference by this Court. See MCR 2.613(C)

(“[R]egard shall be given to the special opportunity of the trial court to judge the

credibility of the witnesses who appeared before it.”) (emphasis added).

The trial court’s finding that Burnette’s previous testimony was consistent and

compelling is also not supported by the record. To begin with, the prosecutor had to

26 repeatedly refresh Burnette’s memory at Johnson’s trial with his prior police statement

and his testimony at the preliminary examination when Burnette did not initially testify in

favor of the prosecutor’s position.14 Burnette was also unable to give a coherent time line

as to what happened on the night in question; in reviewing the record, it remains unclear

when and if Burnette and Johnson went on a ride with Mike, as multiple different

possibilities were suggested at Johnson’s trial, yet no mention of this was made at Scott’s

trial.15 Burnette’s discussion of his ride with Mike alone is confusing and internally

inconsistent, as Burnette alternatively testified that Mike dropped both him and Johnson

off at the gas station, that Mike dropped him and Johnson off somewhere else entirely,

and that Burnette never returned to the gas station.

14 For example, when Burnette was asked whether Johnson talked about hitting a lick, Burnette said, “No.” And when asked, “Did you tell the court that [Johnson] talked about hitting a lick?”, Burnette responded, “I can’t recall.” The prosecutor then pointed out that Burnette had previously testified at the preliminary examination that Johnson spoke about hitting a lick, and Burnette agreed that this was true. In addition, when asked if Johnson had told Burnette anything, Burnette said, “Not that I can recall.” Then, when Burnette was asked, “Did you ever tell the police what [Johnson] said to you at [Scott’s] house?”, Burnette again said, “I can’t recall.” Burnette was then asked to refresh his memory with his police statement, and after this, Burnette admitted that he told the police that Johnson said that Scott shot the lady. Furthermore, when asked if he saw either of the defendants with a gun that night, Burnette said, “Not if I can remember.” Burnette once again had to have his memory refreshed with his preliminary examination testimony, and once he did, he remembered that he saw defendants with guns. 15 Although this information would arguably be more relevant at Johnson’s trial than at Scott’s trial, Burnette did testify at Johnson’s trial that he was dropped off at the same gas station that Lisa drove to, where he saw an ambulance and police officers and first learned of this shooting. Were this true, this would clearly be relevant at Scott’s trial, but it goes unmentioned.

27 There were also significant inconsistencies between the testimonies Burnette gave

at the two different trials. At Johnson’s trial, Burnette initially testified that he first

learned that there had been a shooting due to the police presence in the neighborhood, but

he later suggested that the defendants were the ones who first told him about the

shooting. Burnette also did not clarify whether he learned the victim’s name from the

police or the defendants. Furthermore, Burnette could not recall if only one defendant or

both had mentioned “hitting a lick,” whether Johnson had confessed that Scott had shot

Lisa, and whether he had seen any weapons. At Scott’s trial, Burnette instead testified

that defendants were the ones who first told him about the shooting, that defendants were

the ones who told him the victim’s name, and that he saw defendants with guns. Clearly,

Burnette’s testimonies across both trials were not the same, contrary to the trial court’s

finding, and there is no larger consistent narrative to rely on in trying to uphold

Burnette’s prior trial testimonies as credible.

Moreover, the trial court failed to note that Burnette’s and Jackson’s testimonies

also conflicted with one another; in order to find one credible, the other would have to be

found not credible. Burnette testified that defendants told him around 2:30 a.m. that they

shot someone and that he later saw Scott place his gun in a vehicle at 7:00 or 8:00 a.m.

However, Jackson testified that he and Scott were taken into custody shortly after the

shooting at approximately 1:15 a.m., and an officer confirmed that Scott remained at the

police station until at least 8:00 or 8:30 a.m. Additionally, Jackson claimed that he and

Scott were in police custody at a time when Burnette claimed he spoke with Scott outside

of custody. It is thus impossible to fully credit both accounts, as they are incompatible

28 and cannot be reconciled. This is particularly significant because these early morning

hours are when Burnette testified that defendants admitted to shooting someone.

While Jackson’s testimony is not as questionable as Burnette’s testimony,

Jackson’s testimony alone provides scant evidence that defendants committed the crime.

Jackson testified that he witnessed Scott hand over an object to Scott’s girlfriend after the

shooting and that Johnson told him that he had hit a lick and had to shoot. However, he

also testified that he believed the object to be a dog leash and that “hitting a lick” could

refer to something that happens in a game of dice.

Burnette’s and Jackson’s testimonies were also inconsistent as to whether the

police threatened them. At Scott’s trial, Burnette testified that the police did not tell him

that they believed he was involved in the shooting, but Burnette later agreed that the

police told him he would be implicated in the murder if he did not state who did it. At

Johnson’s trial, Jackson initially testified that the police did not threaten him but later

claimed that the police scared him. Jackson stated that he also felt pressured to confess

or else he would have been implicated in the crime.

More inconsistencies abound: although the trial court stated that both witnesses

identified that a .22 caliber rifle was used, the record shows that only Burnette testified to

this, as Jackson never identified the object Scott handled as a gun. Moreover, while

Burnette testified that Johnson told him that Scott had shot someone, Jackson testified

that Johnson was the one who admitted being the shooter.

Finally, the trial court also failed to take into account that both witnesses admitted

to consuming copious amounts of alcohol and marijuana during the times that defendants

purportedly made incriminating statements, which severely undermines the reliability of

29 their assertions. Jackson even admitted to hearing and seeing things that did not exist,

which further weighs against his credibility.

An examination of the trial testimony alone indicates that defendants’ convictions

were based on shaky grounds.16 Consequently, when Skinner’s testimony is considered

in conjunction with the other evidence presented at the original trials, we find that a

different result is reasonably probable on retrial. See People v Tyner, 497 Mich 1001,

1001-1002 (2015).

While consideration of Skinner’s testimony alone would make a different result

probable on retrial due to the weaknesses of the prosecutor’s witnesses, this Court may

also consider the evidence that would be presented at retrial, which in this case includes

the recantation testimony.17 On retrial, we assume that Burnette would be called to

16 “[I]f the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” United States v Agurs, 427 US 97, 113; 96 S Ct 2392; 49 L Ed 2d 342 (1976). Similarly, in an ineffective assistance of counsel claim, when there is little evidence to support a conviction, then “the magnitude of errors necessary for a finding of prejudice will be less than where there is greater evidence of guilt.” People v Trakhtenberg, 493 Mich 38, 56; 826 NW2d 136 (2012) (quotation marks and citation omitted). While Agurs involved whether the defendant was deprived of a fair trial under Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), and Trakhtenberg involved whether the defendant was deprived of his right to the effective assistance of counsel under Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), both are instructive because Brady and Strickland require an assessment as to whether the new evidence or ineffective assistance calls into question the validity of a prior conviction. Brady, 373 US at 87; Strickland v Washington, 466 US at 694. 17 While Johnson already raised the recantation evidence in a prior motion for relief from judgment, the recantations may nonetheless be taken into consideration, as conceded by the prosecutor. Though Johnson is barred from raising the recantations as an independent ground for relief, the court rules do not prohibit considering this evidence in the context of the claim Johnson is now raising. This is not in contravention of MCR 6.508(D)(2), as

30 testify consistently with his recantation that he was with Johnson the night that Lisa was

shot and that neither defendant said anything in regards to the shooting. Additionally, if

the prosecutor chose to admit Jackson’s testimony from the original trials implicating

defendants on retrial, defendants would be able to impeach that testimony with his

cousin’s testimony that he committed perjury. MRE 804(b)(3); MRE 806.18

In considering the weight of these recantations, the trial court was correct to

approach the recantations with suspicion. See People v Barbara, 400 Mich 352, 362-

363; 255 NW2d 171 (1977) (“Where such [newly discovered] evidence, however, takes

the form of witnesses’ recantation testimony, it has been traditionally regarded as suspect

and untrustworthy.”); People v Van Den Dreissche, 233 Mich 38, 46; 206 NW 339

(1925) (“[R]ecanting testimony is exceedingly unreliable, and it is the duty of the court to

deny a new trial where it is not satisfied that such testimony is true.”) (quotation marks

the particular ground for relief that Johnson now raises, which concerns Skinner’s testimony, has never been decided against Johnson in a prior proceeding. This is further supported by Cress, which requires a determination of whether “the new evidence makes a different result probable on retrial.” Cress, 468 Mich at 692 (emphasis added). 18 The prosecutor argues that Jackson’s recantation would be inadmissible pursuant to MRE 804(b)(3): “A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” However, the recantation would be admissible because defendant has the right, per MRE 806, to attack the credibility of Jackson’s former testimony. MRE 806 (“When a hearsay statement . . . has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.”); see also Blackston v Rapelje, 780 F3d 340, 352-353 (CA 6, 2015) (holding that a refusal to allow a defendant to impeach unavailable witnesses’ prior testimony with the witnesses’ later recantations violated the Sixth Amendment right to confrontation of witnesses).

31 and citation omitted). However, given the inherent weakness of Burnette’s prior

testimony at the trials, his recantation should not be viewed with as much suspicion as

generally accorded. In fact, unlike Van Den Dreissche, in which there was no evidence

to support the witness’s recantation, here, Burnette’s recantation was supported by the

record. See Van Den Dreissche, 233 Mich at 41.

Again, Burnette’s previous testimony was incoherent at several points, and,

notably, Burnette likely did not speak to or see Scott after the shooting because Scott was

already in police custody at that point. This provides support that Burnette’s previous

testimony was not credible and that his recantation is more credible. See Barbara, 400

Mich at 363-364; Grissom, 492 Mich at 350 (ZAHRA, J., concurring in part and dissenting

in part) (“[N]ewly discovered evidence to impeach a witness could potentially make a

different result probable on retrial if it directly contradicts material testimony by that

witness at trial in a manner that tends to exculpate the defendant.”). Without Burnette’s

testimony, there is scant other evidence to establish that defendants committed the crime.

Thus, Burnette’s recantation further supports our conclusion that a different result is

probable on retrial.

While Jackson’s trial testimony was not inherently as weak as Burnette’s trial

testimony, it was also not as material as Burnette’s trial testimony. Even if Jackson’s

recantation is not presented, considering Jackson’s previous testimony in light of the

other evidence that would be presented at retrial, we believe that defendants have a

reasonably likely chance of acquittal.

Therefore, we conclude that Skinner’s testimony would make a different result

32 IV. CONCLUSION

For the aforementioned reasons, we hold that the newly discovered evidence of

Skinner’s testimony entitles both defendants to new trials. In balancing the evidence

presented at the trials along with Skinner’s testimony, the only principled outcome that

can be reached is that Skinner’s testimony would make a different result probable on

retrial. This is further supported when considering the impact of the recantations on

Burnette’s trial testimony. For these reasons, we reverse the Court of Appeals’ judgment

in part and remand this case to the trial court for new trials.

Richard H. Bernstein Stephen J. Markman David F. Viviano Elizabeth T. Clement

33 STATE OF MICHIGAN

ZAHRA, J. (dissenting). I dissent. The majority grants each defendant a new trial on the basis of new

evidence that is, in my view, implausible. The majority fails to provide a reasonable and

proper basis to reject the trial court’s credibility determination in regard to defendants’

newly discovered witness, Charmous Skinner Jr. In finding that Skinner’s testimony

lacked credibility, the trial court identified three pertinent facts: (1) Skinner was only 8

years old at the time of the murder and his previously undisclosed memory, offered some

16 years later, could not be certain, (2) Skinner’s view of the shooting likely would have been obstructed and limited by the existing conditions as well as Skinner’s proximity in

the car in which he was seated at the time of the shooting, and (3) Skinner’s prior perjury

conviction.1 These three findings are more than enough to conclude that the trial court

did not clearly err by determining that Skinner’s testimony was not credible.

Further, I disagree with the majority that the trial court failed to properly assess

the effect of the newly discovered evidence in conjunction with the evidence that was

presented at the original trials. Judge Prentis Edwards presided over both of defendants’

trials and presided over Johnson’s three previous motions for relief from judgment. After

the retirement of Judge Edwards, the instant postjudgment matters in defendants’ cases

were transferred to Judge James Callahan. Contrary to the conclusions reached by the

majority, Judge Callahan did not position himself “as an appellate court where the

credibility of witnesses at the preliminary examination and the original trials was

concerned.” Rather, Judge Callahan only highlighted that the evidence relied upon by

Judge Edwards at defendant Johnson’s bench trial was consistent with the district court’s

findings at the preliminary examination and the evidence supporting the jury’s verdict in

defendant Scott’s trial. Yet, the majority ignores these previous findings and fails to give

regard to the special opportunity Judge Edwards and the district judge had to assess and

weigh the credibility of the witnesses who appeared before them. The fact is Judge

Callahan merely acknowledged that the district judge and Judge Edwards both opined

1 The trial court also concluded that Skinner was, in all likelihood, asleep at the time of the shooting. The prosecutor conceded in the Court of Appeals that this reason was speculative and unsupported by the record, and thus clearly erroneous. Accordingly, this reason has not been disputed before this Court.

2 that witnesses Antonio Burnette and Raymond Jackson were credible. And their findings

were confirmed by Scott’s jury, which rendered a verdict of guilty after a mere 1½ hours

of deliberation.

Instead, the majority relies on alleged “inconsistencies” during the Johnson bench

trial to override the findings of Judge Edwards that supported Johnson’s murder

conviction. Significantly, Judge Edwards did not rely on a single piece of evidence upon

which the majority relies to vacate defendants’ convictions. Rather, Judge Edwards, a

seasoned trial judge with many years’ experience, considered and assessed this evidence

and properly dismissed it, attributing it to reluctant witnesses who were trying, in his

words, “to minimize the impact that [their testimonies] might have on [Johnson].” Judge

Edwards found that these witnesses, particularly Burnette, were fearful and attempted to

tailor their testimony to provide Johnson an alibi. Because of this, Judge Edwards

rejected this equivocating and inconsistent aspect of the witnesses’ testimony, and rightly

so.

In addition, the majority compounds its error by reviewing the testimony of

Burnette and Jackson in Scott’s jury trial in light of the so-called inconsistencies between

the testimony presented at the preliminary examination and the testimony presented at

Johnson’s bench trial. The majority does not, however, identify any inconsistencies

between these witnesses’ testimony presented at the preliminary examination and Scott’s

jury trial. Thus, the majority has undermined the jury’s verdict in the Scott case solely on

the basis of the so-called inconsistencies presented at the Johnson trial, which, again,

were explained and ultimately rejected by Judge Edwards. As explained more fully in

this opinion, I would affirm the judgment and opinion of the Court of Appeals.

3 I. STANDARD OF REVIEW

This Court reviews a trial court’s decision to grant or deny a motion for a new trial

for an abuse of discretion.2 An abuse of discretion occurs when the trial court renders a

decision that is outside the range of principled decisions.3 “A mere difference in judicial

opinion does not establish an abuse of discretion.”4 A trial court’s factual findings are

reviewed for clear error.5 A factual finding is clearly erroneous when “the reviewing

court, on the whole record, is left with a definite and firm conviction that a mistake has

been made.”6

“ ‘This Court has repeatedly held that a trial judge, in passing on a motion for a

new trial, is vested with a large discretion. The wisdom of such rule is obvious. The

judge has the advantage of seeing the witnesses on the stand, of listening to their

testimony, of noting the attitude of the jury to various matters that may arise during the

trial, and is in far better position than is an appellate court to pass on questions of possible

prejudice, sympathy, and matters generally that occur in the course of a trial but which do

not appear of record.’ ”7

2 People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). 3 People v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012). 4 Cress, 468 Mich at 691. 5 MCR 2.613(C) (“[R]egard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.”). 6 Bynum v ESAB Group, Inc, 467 Mich 280, 285; 651 NW2d 383 (2002). 7 People v Tyner, 497 Mich 1001, 1002 (2015), quoting Alder v Flint City Coach Lines, Inc, 364 Mich 29, 38; 110 NW2d 606 (1961) (CARR, J., concurring).

4 II. ANALYSIS

For a new trial to be granted on the basis of new 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.[8]

The defendant carries the burden of satisfying all four prongs of this test. Throughout the

litigation, the first three prongs of this test have not been disputed, and the focus of this

opinion is whether defendant has established that the newly discovered evidence makes a

different result probable on retrial.

Ordinarily “motions for a new trial on the ground of newly-discovered evidence

are looked upon with disfavor, and the cases where this court has held that there was an

abuse of discretion in denying a motion based on such grounds are few and far

between.”9 That is because “[t]he policy of the law is to require of parties care, diligence,

and vigilance in securing and presenting evidence”10 and “[t]he principle of finality is

8 Cress, 468 Mich at 692 (quotation marks and citation omitted). 9 Rao, 491 Mich at 279-280, quoting Webert v Maser, 247 Mich 245, 246; 225 NW 635 (1929) (quotation marks omitted). 10 Canfield v City of Jackson, 112 Mich 120, 123; 70 NW 444 (1897) (quotation marks and citation omitted). See also 39 Am Jur, New Trial, § 156, p 163 (“Such applications . . . are entertained with reluctance and granted with caution . . . because of the manifest injustice in allowing a party to allege that which may be the consequence of his own neglect in order to defeat an adverse verdict.”); 58 Am Jur 2d, New Trial, § 297, pp 318-319.

5 essential to the operation of our criminal justice system.”11 In fairness to both parties and

the overall justice system, the law requires that parties secure evidence and prepare for

trial with the full understanding that, absent very unusual circumstances, the trial will be

the one and only opportunity to present their case. It is the obligation of the parties to

undertake all reasonable efforts to marshal all the relevant evidence for that trial.

Evidence will not ordinarily be allowed in piecemeal. People v Cress12 set forth the

showing that a defendant must make in order to satisfy the exception to this rule and

struck a balance between upholding the finality of judgments and unsettling judgments in

the very unusual case in which justice under the law requires a new trial.13

A. THE TRIAL COURT PROPERLY REJECTED THE NEWLY DISCOVERED EVIDENCE I disagree with the majority that Judge Callahan clearly erred by concluding that

the testimony of Charmous Skinner Jr. was not credible. Consequently, I conclude that

Judge Callahan did not abuse his discretion by denying defendants’ motions for relief

from judgment. The Court of Appeals correctly focused on four reasons upon which

Judge Callahan relied to conclude that Skinner was not credible:

(1) Skinner was only eight years old at the time of the murder and his memory some 16 years later could not be certain; (2) it would have been incredibly difficult for Skinner to be inside a car at night and see someone outside the vehicle when the only illumination was from the vehicle’s

11 People v Maxson, 482 Mich 385, 398; 759 NW2d 817 (2008) (quotation marks and citation omitted). 12 Cress, 468 Mich 678. 13 See MCR 6.431(B) (providing that the trial court “may order a new trial . . . because it believes that the verdict has resulted in a miscarriage of justice”).

6 interior dome light, especially when considering that both [the victim] and the car door were between [Skinner] and the shooter; (3) Skinner had already been convicted for perjury; and (4) in any event, Skinner likely would have been asleep inside the car at the time of the murder.[14]

The first three of these four reasons15 support Judge Callahan’s opinion such that his

conclusion that Skinner was not credible is within the range of principled outcomes. For

the first reason, the Court of Appeals correctly stated that “[c]ommon sense dictates that

memories can fade and events that occurred such a long time ago would no longer be

fresh in the witness’s mind.”16 Defense expert Katherine Rosenblum, a clinical and

developmental psychology expert, testified to the possibility of a “narrowing of attention”

during moments of high traumatic stress. Rosenblum testified that an 8-year-old could

remember the face of a perpetrator 16 years later. She testified in general terms,

however, and could not testify as to Skinner’s memory because she had never actually

interviewed him. Rosenblum further conceded that exaggeration of facts is possible with

the passage of time. Rosenblum also acknowledged that it was possible that an

investigative reporter with whom Skinner had contact could have “planted a seed” in

Skinner’s mind that the wrong people were convicted. To this point, Skinner

acknowledged on cross-examination that, after the reporter contacted him, he read some

of the reporter’s news articles about the case on the Internet and developed an impression

that the police had done a poor job in investigating the case. Thus, it was only after the

14 People v Johnson, unpublished per curiam opinion of the Court of Appeals, issued May 31, 2016 (Docket No. 311625), p 6. 15 As to the remaining reason, see note 1 of this opinion. 16 Johnson, unpub op at 6.

7 reporter first contacted Skinner in 2011 and after Skinner’s own investigation about the

incident that he gave a description of the shooter to the reporter and later to the Michigan

Innocence Project (MIP).

I agree with the Court of Appeals that Judge Callahan’s concern regarding the

lengthy passage of time from the murder to the discovery of Skinner’s testimony was

well-founded. Skinner’s claim that he “will never forget the person’s face,” and his

certainty that he could “recognize that man if [he] saw him today,” is, at best, an

exaggeration of any memory that he did have of the event, and it is more likely that he

had no memory of it at all. At minimum, I cannot conclude that Judge Callahan’s

decision in this regard was clearly erroneous.17

17 Another aspect that I find troubling with Skinner’s testimony is his assertion that he told the Wisconsin Innocence Project (WIP) in 2007 that he could identify the shooter, and yet the WIP did not further inquire.

[The Prosecution]: When the Wisconsin Innocence Project contacted you, what did they say to you?

[Skinner]: “Did you see what happened to your mother?”

[The Prosecution]: And what did you say to them?

[Skinner]: “Yes.”

[The Prosecution]: You said “yes”?

[Skinner]: Yeah.

[The Prosecution]: And did they ask you if you could describe the person who did the shooting?

[Skinner]: No.

[The Prosecution]: They didn’t ask you that?

8 The majority gives short shrift to the second reason that Judge Callahan found

Skinner’s testimony incredible and does not expressly rule whether this finding was

clearly erroneous. Specifically, Judge Callahan concluded that Skinner’s view from

inside the van was obstructed and not illuminated. The evidentiary hearing transcript

demonstrates that Judge Callahan extensively questioned Skinner regarding his viewpoint

and the positioning of his mother with respect to the shooter. Skinner testified that he

had climbed into the front passenger seat and that his mother was shot while she was

entering the driver’s side of the van. He further testified that the shooter stood behind his

mother but “a little off to the side.”18 The Court of Appeals panel explained that “when

Skinner heard the gunshot, the door window shattered, and [the victim] managed to fully

get into the car, close the door, and speed away before eventually dying at the nearby gas

[The Prosecution]: Okay, you told them that you had seen the shooting, correct?

[Skinner]: Yes.

[The Prosecution]: And they didn’t ask you if you could identify the person, if you could describe them?

[Skinner]: No, they said they was [sic] going to fly out to Pennsylvania to come meet with me. Never heard from them again.

[The Prosecution]: Do you remember when that was?

[Skinner]: I was—’07. It was 2007.

I find this testimony dubious given the substantial amount of investigative work the WIP conducted into this matter. 18 The record contains a rough sketch by Skinner illustrating the respective positions.

9 station.”19 Judge Callahan reasonably opined that, based on this testimony, the position

of Skinner’s mother entering the car would have obstructed Skinner’s view of the

shooter. The Court of Appeals agreed, highlighting that “any view of the shooter from

the passenger seat would have been obstructed. Not only was [the victim] positioned

between Skinner and the shooter, but the car door was as well.”20

Further, Skinner also testified that, despite the darkness outside the van, he saw the

shooter only from the dome light in the car. The Court of Appeals noted that Judge

Callahan “correctly was skeptical that an interior dome light would enable one sitting

inside the vehicle to see outside the vehicle with any meaningful clarity.”21 Judge

Callahan stated: “Anyone who has ever been in a car in the pitch of night, pitch

black . . . nighttime and turns on a dome light, restricts the light. The light does not shine

outside. The light does confine itself to the interior of the van or the car.” And, as the

Court of Appeals pointed out, “Skinner did not testify that the shooter leaned inside the

car or was ever located near the door opening while the door was open, such that he

would have been more likely to have been illuminated by the interior light.”22 The Court

of Appeals panel reasonably concluded that “with the shooter having to shoot through the

door window, it is certain that he was positioned on the other side of the door and not

19 Johnson, unpub op at 6. 20 Id. at 7. 21 Id. at 6. 22 Id.

10 near the door opening, where the light would have been better.”23 In sum, this was a

common-sense finding with regard to Skinner’s ability to clearly see the shooter’s face.24

Like the Court of Appeals, I cannot conclude that this finding was clearly erroneous.

The majority accepts, and I agree, with the third reason upon which Judge

Callahan relied to reject Skinner’s credibility.25 “[C]rimes having an element of

dishonesty or false statement are directly probative of a witness’[s] truthfulness . . . .”26

Skinner was not only convicted of a crime of dishonesty, but he was convicted of a crime

that is arguably the most relevant to his credibility while under oath—perjury. As the

Court of Appeals majority properly concluded, “[T]he fact that [Skinner] had no qualms

23 Id. 24 See M Crim JI 3.5(5) (providing that the fact-finder “should only accept things the lawyers say that are supported by the evidence or by your own common sense and general knowledge”) (emphasis added). 25 Had Judge Callahan based his credibility determination solely on Skinner’s criminal record and not considered that record in the context of the other evidence presented at the evidentiary hearing and the trial, I would be more receptive to the majority’s view. See People v Love, ___ Mich ___ (2018) (Docket No. 155545) (ZAHRA, J., dissenting). But that is not the case here. As previously stated, the perjury conviction together with the 16-year lapse of time that allowed for Skinner’s memory to fade, Skinner’s proximity to the shooter, and the lighting conditions that existed at the time of the shooting combine to strongly support the credibility finding of Judge Callahan. 26 People v Allen, 429 Mich 558, 571; 420 NW2d 499 (1988); see also MRE 609(a)(1) (“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination, and . . . the crime contained an element of dishonesty or false statement . . . .”).

11 about violating his oath to tell the truth regarding something as serious as a murder

rightfully caused [Judge Callahan] here to be concerned.”27

And I agree with the majority that Judge Callahan improperly speculated when

surmising that Skinner was likely asleep at the time of the incident. But I conclude that

three of Judge Callahan’s proffered reasons clearly call Skinner’s credibility into

question. Accordingly, I cannot conclude that Judge Callahan abused his discretion by

denying defendants a new trial on this basis.

Having concluded that defendants are not entitled to relief on their claims of

newly discovered evidence under MCR 6.502(G)(2), I would not consider evidence that

Johnson presented in previous motions for relief from judgment because “[t]he court may

not grant relief to the defendant if the motion . . . alleges grounds for relief which were

decided against the defendant in a prior . . . proceeding under this subchapter . . . .” MCR

6.508(D)(2). But, because the majority disagrees and finds Skinner arguably credible, I

will further discuss whether, in my view, the new evidence in conjunction with this

previously presented evidence makes a different result probable on retrial.

B. THE EFFECTS OF THE NEWLY DISCOVERED EVIDENCE WERE CONSIDERED IN LIGHT OF THE TRIAL EVIDENCE AND PROPERLY REJECTED BY BOTH LOWER COURTS

The majority fails to appreciate the trial evidence that led to defendants’

convictions and instead focuses on the evidence set forth during defendants’ collateral

attacks. The prosecution’s cases against Scott and Johnson were unquestionably

27 Johnson, unpub op at 7.

12 grounded on circumstantial evidence. The evidence also consistently shows that the

prosecution’s key witnesses—Burnette and Jackson—were intimidated and reluctant to

testify against defendants. A comprehensive examination of the evidence presented at

defendants’ original proceedings is necessary to demonstrate overall consistency.

1. THE PRELIMINARY EXAMINATION

At the preliminary examination, Burnette’s testimony was straightforward. He

testified that on May 8, 1999, at around 6:00 p.m., he saw Scott at a store and they

returned to Scott’s house. Burnette testified that he was waiting for his father to pick him

up. At Scott’s house, he saw Johnson. At this point during the testimony, the

prosecution attempted to elicit testimony from Burnette that defendants told him they

planned to “hit a lick.” At first, Burnette said he could not recall. Then, notably, the

district court interjected and stated the following:

Officers, I want the courtroom all cleared out. I see people cringing and eye movement and I want as clear a conversation as can be. I don’t want any suggestions coming from the audience.

Now, the only one who . . . hasn’t been moving around and looking, is that man standing right there, holding his hand, and I will let him stay. Everyone else out.

I heard laughter from back there. I have been watching you all on the front, lady in the green going like this, and the woman with the red hair going like this. All of you out. The only one who hasn’t been moving around is this man.

Afterward, the prosecution confronted Burnette with the statement he made to the

police:

[The Prosecution]: You recall what you told the investigators about what [Johnson] and [Scott] were talking about that night, correct?

13 [Burnette]: Yes.

* * *

[The Prosecution]: Do you remember that now?

[Burnette]: Yes.

[The Prosecution]: Can you tell the Judge what they told you that night before your daddy came?

[Scott’s Attorney]: We would object to the witness reading from the statement, your Honor.

The Court: Well, I’ll let him read— He doesn’t have the statement.

[The Prosecution]: I’ve got the statement.

[Scott’s Attorney]: He was looking down. I didn’t know.

The Court: He’s looking down to keep from looking at your clients that keep looking at him and touching their face. I don’t know if it’s a threat, or sign language within the community, or what.

[Scott]: I wasn’t doing nothin’.

The Court: Oh, you did like this and you did like this.

[Scott]: I have a nervous problem.

The Court: And like this and like that. And the one named Stank, he did like this goes like this, glaring at him. I don’t know what those looks in the neighborhood mean. It’s just like I don’t know what lick means.[28]

28 If there is any doubt that defendants were threatening him, it was later resolved during his cross-examination:

The Court: Well, I’m watching [Burnette’s] demeanor and it seems like he’s scared to death of these two young men that you are representing.

[Scott’s Attorney]: That may be true, your Honor. That may be the Court’s interpretation. Maybe he’s not afraid of these guys.

Are you afraid of these men at this time?

14 The prosecution again asked Burnette what defendants told him. Scott’s attorney

again objected, and the district court overruled the objection. Burnette started to answer,

but Scott’s attorney interrupted, stating, “I can’t hear,” which prompted the court to state:

Come on, young man. I know you’re 16 and this is scary for you, but talk into the mic and tell the truth. That’s all the Court wants to hear, is the truth. Now, answer the question.

Finally, Burnette replied, “They was [sic] talking about hitting a lick,” which he

later explained means “[r]obbing somebody.” He also mentioned that defendants had

asked about his plans that evening, suggesting that he participate, but Burnette declined

and mentioned that his father was coming to pick him up.

Burnette then testified that he returned to Scott’s house at 2:30 a.m. Defendants

were at the house. Burnette testified, reluctantly, that Scott told him “a lady had got

shot.” Burnette further testified that Scott said “[h]e had a phone bill that he had to pay”

and “[s]he wouldn’t come out of no money.” He testified that Scott had a .22 rifle and

that Johnson had an AK-47. Burnette then testified that Scott’s girlfriend arrived in the

[Scott’s Attorney]: Terrible answer, your Honor.

[The Prosecution]: Well—

The Court: Well, I’ve been sitting here awhile and I’ve seen a number of cases, and I can usually call it pretty good.

[Scott’s Attorney]: You did a good job that time.

15 morning and that Scott took the weapon with him, that he heard a trunk pop, and that

Scott put the gun in the trunk. Similarly, he testified that Johnson’s girlfriend arrived

with a sheet and that Johnson wrapped up the gun and put it in the trunk.

Raymond Jackson testified that he knew Scott and that Scott’s girlfriend was his

neighbor. He testified that he was awoken on May 9, 1999, by a loud noise. He spoke

with his grandmother, put on some clothes, looked outside, and saw Scott hand

something to his girlfriend. He went outside. Scott joined him, but the police arrived and

took Scott and Jackson downtown for questioning. Later that day, after his interview,

Jackson returned home. Johnson stopped over while drinking a 40-ounce beer. Jackson

testified that Johnson told him that he and Scott had “hit a lick” and, in Jackson’s words,

Johnson “implicated” Scott, later explaining that Scott “fucked up and had to shoot.”

In binding defendants over for trial, the district court expressly stated, “I just want

to say both witnesses are very believable.” The court noted that Burnette had admitted in

open court that he was afraid of defendants yet still testified. The court also opined that

Jackson was afraid and pointed out that he was being held in protective custody but was

still housed on the same jail floor as defendants. Apparently, one defendant threatened

Burnette with violence and the other taunted him by calling out his name the previous

night.

2. JOHNSON’S BENCH TRIAL

Johnson opted for a bench trial. Unlike the majority, I believe we are bound to

accept Judge Edwards’s findings, none of which can be claimed to be clearly erroneous,

16 and all of which are consistent with the evidence presented at the preliminary

examination. After the bench trial, Judge Edwards opined:

The most important evidence that we received as part of the prosecution’s case was that from Antonio [Burnette] and Raymond Jackson. Antonio [Burnette], who apparently also is known by the name of Shortie, gave testimony regarding the fact that he was with this defendant and Kendrick Scott earlier in the evening, and that during the time that he was with the two of them there was a discussion regarding hitting a lick. He indicated that one interpretation or one definition of that term or phrase is pulling a holdup, sticking someone up. And he indicated that he was invited to participate in that activity, and apparently he declined. He indicated that around 10:30 p.m. his father picked him up and took him to visit some other relatives, and that at around 2:30 a.m. he returned to that area and again was in contact with this defendant and Kendrick Scott. He indicated that at that time, approximately that time this defendant made a statement indicating that Kendrick Scott had shot someone. The reason for the shooting, apparently that was offered was that she would not give up the money. That would suggest that something happened during the holdup that didn’t go as planned, and the person was shot.

The statement was made to Antonio, according to his testimony, that Kendrick Scott did the shooting and it was done because the money was not given up. He indicated also that he saw this defendant wrap what appeared to be a long gun in a sheet and later put it in his girlfriend’s car. The testimony of Raymond Jackson was somewhat supportive of the testimony given by Antonio [Burnette]. He indicated that he heard the shot outside of his home; he was asleep, he woke up, he went outside. The following day this defendant came to his home and he had [a] conversation with this defendant. And by the way, Raymond Jackson had indicated that he had been drinking. He indicated that when he saw this defendant on that morning, that the defendant appeared to have been drinking also. Raymond Jackson indicated that he been taking some drugs, but he said he did have the conversation with him, and that this defendant said that he had to hit a lick and that he messed up and he had to shoot. He indicated also that he was with Scott, Kendrick Scott at the time that that occurred. Raymond Jackson also told us about the threatening, what he interpreted as being threatening activities of the defendant towards him, threatening remarks that he made after he had been taken down to the lockup at the police station.

17 * * *

Eugene Jackson, who is the brother of Raymond Jackson testified. He indicated that Raymond had told him something about defendant hitting a lick, shooting dice; but he also indicated that he had told his brother that he didn’t appreciate, and this happened during the course of the trial, that he did not appreciate how he was testifying. And to that Raymond indicated that he was telling the truth.

We had the defendant Johnson, Mr. Johnson, Justly Johnson testify. He denied any involvement in the shooting. He denied having anything to drink, taking any type of drugs; denied that he made any statements to Antonio [Burnette] or to Raymond Jackson. He indicated that they’re lying. He indicated that he did go to the home of Raymond Jackson and that after he was there, he made a phone call; he was on the phone for 6 to 15 minutes, I believe he said, and that he knew that the police were looking for him, and that he went out and turned himself in to the police.

Judge Edwards acknowledged that credibility was the central issue in this case. He found

the following in regard to the credibility of Burnette and Raymond Jackson:

[A]lthough it seems to me that both were very reluctant, and they did everything that they could do to try to minimize the impact that it might have on this defendant.

It appears that they are friendly. It’s nothing to suggest that they have any ax to grind, any reason to come into this courtroom and to lie. Testimony of Raymond Jackson, I thought, was very sincere. And in spite of what appears to have been threats from his brother, threats from this defendant, he tried to hedge his testimony in a way that would be favorable to the defense, but he gave what I believed to be very honest and sincere testimony about this defendant’s involvement in the offense.

The testimony from [Burnette] was not as forth coming. We had some difficulty even in getting him to keep his voice up so that we could hear. He indeed appeared to me to be a very reluctant witness. He did not want to be a part of this, and that’s probably accounted for by the fact that he’s a good friend. At least at the time that this thing apparently took place, he was a good friend, they were together for a good deal of that evening preceding the shooting and even after the shooting, and the defendant had enough trust in him to confide in him that he was going to hit a lick and

18 later gave information that they did indeed hit a lick, and that someone was shot.

Judge Edwards convicted Johnson of felony murder, assault with intent to rob while

armed, and possession of a firearm during the commission of a felony.

The majority erroneously believes that Burnette’s prior trial testimonies are not

credible because Burnette failed to provide a “consistent narrative” throughout the

proceedings. As Burnette began to testify at Johnson’s bench trial, it quickly became

clear that he would again be a reluctant witness. Contrary to his preliminary examination

testimony, Burnette at first denied that Johnson participated in any conversation about

“hitting a lick.” He also testified that upon returning to Johnson’s house at around

2:30 a.m., he and Johnson went to a female’s home, got in a car with another person,

went to Burnette’s sister’s house, and found that she was not home, following which

Burnette and Johnson returned to Johnson’s house. Burnette further testified that after he

and Johnson returned to Johnson’s house, Scott was there. Burnette testified that there

was a conversation and that Johnson said that Scott had shot someone. Burnette denied

any indication that Johnson participated in the shooting and stated that he first learned of

the shooting when he saw an ambulance and police cars.

This testimony was not given at the preliminary examination. But while

Burnette’s differing testimony may appear at first to be a non sequitur, after reviewing

defense counsel’s cross-examination and defendant’s closing argument, it becomes clear

that Burnette’s sentiments, for whatever reason, favored Johnson. That is, Johnson would

eventually rely on this “new” testimony to argue that he and Burnette were together

without Scott at the time of the murder. Eventually, after the prosecution repeatedly

19 refreshed Burnette’s memory with his police statement and his testimony at the

preliminary examination, Burnette became more forthcoming and the prosecution was by

and large able to elicit testimony comparable with that given at the preliminary

examination. And sensing the motive for Burnette’s inconsistent testimony, the

prosecution laid the following foundation to admit his prior statements:

[The Prosecution]: Have you received any communications, also, about anything that was going to endanger you?

[The Prosecution]: Okay. And was that after you had given a statement to the police and until today?

[The Prosecution]: What specifically were you told?

[Burnette]: When I got out of lock-up I was going to get killed.

[The Prosecution]: Does that trouble you?

[Burnette]: Don’t bother me.

[The Prosecution]: You’re not concerned about it?

[Burnette]: No, I’m just concerned about my family.

[The Prosecution]: Okay. And your family still lives in that same area?

Clearly, Burnette’s prior statements from the preliminary examination were admissible

under MRE 801(d)(1) because he testified at the trial or hearing and was subject to cross-

examination concerning the statement and because the statement was “consistent with the

declarant’s testimony and is offered to rebut an express or implied charge against the

20 declarant of recent fabrication or improper influence or motive . . . .” The majority fails

to acknowledge the obvious “consistent narrative” that explains Burnette’s inconsistent

testimony, which is that he was under threat during the proceedings.

Judge Callahan expressly stated in his opinion that Judge Edwards “indicated that

he was impressed by the testimony of both of those individuals [Burnette and Jackson]

when confronted with adverse influences that might have affected them from expressions

by the defendants as well as communications that were had with Mr. Jackson by his

brother.” Also, Judge Edwards did not rely on a single piece of evidence that the

majority cites as inconsistent. He rejected this evidence, attributing it to the result of

reluctant witnesses who were trying, in his words, “to minimize the impact that [their

testimonies] might have on [Johnson].” Judge Edwards explained that witnesses Burnette

and Jackson had once been friends with defendants. But after being subpoenaed to testify

against defendants, these witnesses received death threats before and during the trials.

Judge Edwards sifted through the testimony and discounted the arguably equivocal and

inconsistent testimony and found persuasive the circumstantial evidence against

defendants. This is exactly the type of finding from a seasoned trial judge that deserves

deference. The prosecution takes the witnesses as it finds them. The prosecution rarely

has the luxury to parade cooperative witnesses with perfect character into court. This is

particularly true in cases that originate in high crime areas, where witnesses fear

retaliation for cooperating with the police. In this case, Judge Edwards observed these

witnesses while they testified. He considered their words and the manner in which they

were conveyed. In sum, Judge Edwards clearly understood that these witnesses,

21 particularly Burnette, attempted to tailor their testimony to provide Johnson an alibi.29

Therefore, even assuming that Skinner was credible, his testimony would not make a

different result on retrial probable given the evidence that defendants made threats to

Burnette and Jackson in connection with their testimony and given that Judge Edwards

found Burnette and Jackson to be credible. It is beyond dispute that it is within the

province of the fact-finder to resolve a conflict in the evidence.30

3. SCOTT’S JURY TRIAL

In addition, the majority compounds its usurpation of Judge Edwards’s findings by

reviewing the testimony of Burnette and Jackson in Scott’s jury trial in light of the so-

called inconsistencies between their testimony presented at the preliminary examination

and their testimony presented at Johnson’s waiver trial. The majority does not identify

any so-called inconsistencies between these witnesses’ testimony presented at the

preliminary examination and Scott’s jury trial. And the majority does not acknowledge

that the evidence against Scott was far stronger than the evidence presented in Johnson’s

bench trial.

29 Burnette’s recantation testimony, greatly relied on by the majority, is simply an extension of Burnette walking back his incriminating testimony that Judge Edwards rejected both at Johnson’s bench trial and Johnson’s second motion for relief from judgment (presenting new evidence that Burnette had recanted his trial testimony). Further, this Court has long stated that “recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true.” People v Van Den Dreissche, 233 Mich 38, 46; 206 NW 339 (1925) (quotation marks and citation omitted); see also 3 Wright & Welling, Federal Practice and Procedure (4th ed), § 585, pp 480-482 (“The judicial attitude is that recantation should be ‘looked on with the utmost suspicion.’ ”) (citation omitted). 30 See People v Henssler, 48 Mich 49, 51; 11 NW 804 (1882).

22 At Scott’s trial, Burnette’s testimony was concise and given without any apparent

reluctance despite the fact that Burnette had continued to receive threats in connection

with his involvement. At trial, he recalled additional details; for instance, Burnette

testified that Scott knew the victim’s first name, that Scott wanted to kidnap her, and that

defendants afterward told Burnette the exact location of the shooting. In addition, the

prosecution presented testimony from Lillie Harris, William Kindred’s sister. Harris was

then engaged to Verlin Miller, whose home Kindred had stopped by to discuss

purchasing a motorcycle. It was during this conversation that the victim was shot outside

the home, and both Kindred and Miller gave chase to a person across a field. Miller at

some point called Harris, and she went outside to look for him. Harris testified that at

this time a car approached her and that she recognized Scott from the old neighborhood.

She testified that Scott called out to her by her nickname, “Peggy,” and that she

approached the car. Scott then asked her if she saw “two guys run by here with a

shotgun.” She testified that she was immediately suspicious and that Scott then told her

that he saw two guys shoot a lady in a white van, which made her more suspicious.

While defense counsel did elicit on cross-examination that she had not mentioned that

Scott said anything in her statement to the police, her statement did identify Scott as one

of the two people in the car that approached her near the crime scene that evening. The

prosecution also presented evidence that a .22 rifle with the name “Snooky” etched into

the stock was discovered in the basement ceiling in the home of Faylynn Kenner, who

was Scott’s girlfriend at the time. The witnesses who knew Scott only referred to him at

trial as “Snooky,” “Snoop,” or “Snoopy.” The jury rendered a verdict of guilty after a

mere 1½ hours of deliberation.

23 The majority has failed to conduct an independent analysis of Scott’s trial and has

essentially undermined the jury’s verdict by relying solely on the so-called

inconsistencies presented at Johnson’s bench trial, which, again, were rejected by Judge

Edwards. With regard to the credibility of witnesses of concern at Johnson’s bench trial,

namely Burnette and Jackson, both testified about the continued threats made against

them before and during Scott’s jury trial and yet testified consistently with their

testimony given at the preliminary examination.

III. CONCLUSION

I agree with the trial court and the Court of Appeals that defendants’ newly

discovered evidence is not credible. Even assuming the evidence was credible, I disagree

with the majority that this evidence would have made a difference on retrial, particularly

in regard to Scott’s jury trial in which the evidence, albeit circumstantial, was just short

of overwhelming. Accordingly, I would affirm the Court of Appeals’ decision that the

trial court did not clearly err by denying defendants’ motions for relief from judgment.

Brian K. Zahra

MCCORMACK, J., did not participate because of her prior involvement in this case as counsel for a party.

WILDER, J., did not participate because he was on the Court of Appeals panel that decided defendants’ motions for peremptory reversal.