The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 16, 2026
Plaintiff-Appellee, 12:03 PM
v No. 363291
Kalamazoo Circuit Court
SCOTT KENNETH JONES, LC No. 2019-001510-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and MURRAY and MALDONADO, JJ.
PER CURIAM.
Defendant, Scott Kenneth Jones, appeals as of right his jury trial convictions of first-degree
murder, MCL 750.316(1)(a); and carrying a firearm during the commission of a felony (felony-
firearm), MCL 750.227b(1). The trial court sentenced defendant as a fourth-offense habitual
offender, MCL 769.12, to serve life imprisonment for the first-degree murder conviction following
a two-year term of imprisonment for his felony-firearm conviction. We affirm.
I. FACTS AND PROCEDURAL HISTORY
This case arises out of the shooting death of Antonio Reese-Manley on September 21,
2019, outside of an apartment building at the Fox Ridge apartment complex. The shooting
occurred at about 7:00 a.m. at an outdoor, all-night party. Rosarah Cottle was the only witness to
testify that she saw the shooting. Cottle testified that she was standing next to Reese-Manley when
a person whom she knew as Sleep G fired shots at Reese-Manley at close range. Cottle maintained
that she recognized defendant as the shooter because she knew him; she saw his face when the
shooting occurred; and the shooter was using a crutch for support, and she knew that defendant
was using crutches at that time. A video camera captured the shooting from a distance and showed
that, as people scattered, presumably after shots were fired, a person using a crutch or crutches
walked quickly away from the scene and got into a dark red SUV, which then drove quickly away.
Emmanuel Boyd testified that defendant, who was using crutches, paid him for a ride to
Fox Ridge on the morning of the shooting, and he drove defendant there in his dark red SUV
sometime between 6:00 a.m. and 7:00 a.m. Although Boyd maintained that it was not his plan to
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drive defendant anywhere afterward, he testified that he nearly ran over defendant while trying to
flee the gunfire, and defendant got back into his SUV before Boyd drove away.
Police officers from the Kalamazoo Department of Public Safety (KDPS) transported
Reese-Manley to Bronson Methodist Hospital where he was pronounced dead. Cottle told police
that Sleep G was the person who shot Reese-Manley, and she confirmed his “Sleep G Dadon”
Facebook profile picture to KDPS detectives later that morning. Cottle also stated that the shooter
was on crutches, and, on September 24, 2019, she identified defendant as the shooter in a photo
lineup.
Someone deleted the Facebook account for Sleep G Dadon at 5:17 p.m. on the day of the
shooting, but someone later set up a new Facebook account with the same e-mail address, and
police traced online activity on that account to a home in Montgomery, Illinois, where defendant
was living. Defendant was then extradited to Michigan to face open-murder and felony-firearm
charges in this case.
At trial, over defendant’s objection, the prosecutor introduced evidence that, nearly three
months before Reese-Manley was killed, defendant went to Bronson Hospital after someone shot
him in the leg at close range. KDPS Detective Ondreya Anderson testified that she interviewed
defendant at the hospital after that shooting, and defendant refused to disclose who shot him.
KDPS Officer Bradley Kendall similarly testified that defendant gave a brief statement that he was
shot at a party in Kalamazoo, and defendant simply described the shooter as “cold blooded.”
According to Officer Kendall, defendant said that he did not want to press charges, and, referring
to the shooter, defendant also said that “karma will come to him.” The trial court also admitted
messages from the “Sleep G Dadon” Facebook account that was traced to defendant. Defendant
sent messages after he was shot in the leg, stated that he needed to find the perpetrator at Fox
Ridge, and suggested that defendant planned to seek revenge when he found the shooter.
The jury found defendant guilty, and he was sentenced as described. Defendant moved for
a new trial, and, following a two-day evidentiary hearing, the trial court denied defendant’s motion.
Defendant now appeals.
II. SUFFICIENCY OF THE EVIDENCE
Defendant contends that the prosecutor presented insufficient evidence of premeditation
and deliberation to support his conviction of first-degree murder.
“Challenges to the sufficiency of the evidence are reviewed de novo.” People v Xun Wang,
505 Mich 239, 251; 952 NW2d 334 (2020). “In evaluating defendant’s claim regarding the
sufficiency of the evidence, this Court reviews the evidence in a light most favorable to the
prosecutor to determine whether any trier of fact could find the essential elements of the crime
were proven beyond a reasonable doubt.” Id. (quotation marks and citation omitted).
“The elements of first-degree murder are (1) the intentional killing of a human (2) with
premeditation and deliberation.” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627
(2010). “Premeditation and deliberation may be inferred from all the facts and circumstances, but
the inferences must have support in the record and cannot be arrived at by mere speculation.”
People v Plummer, 229 Mich App 293, 301; 581 NW2d 753 (1998).
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Though not exclusive, factors that may be considered to establish
premeditation include the following: (1) the previous relationship between the
defendant and the victim; (2) the defendant’s actions before and after the crime;
and (3) the circumstances of the killing itself, including the weapon used and the
location of the wounds inflicted. [Id. at 300.]
The evidence presented at trial was plainly sufficient to prove premeditation and
deliberation. Evidence showed that Reese-Manley was shot in the back, and Cottle testified that
there was no fight or confrontation between defendant and Reese-Manley immediately before the
shooting. Although defendant’s Facebook messages did not directly tie him to Reese-Manley,
they showed that defendant was on crutches, he suspected at least that someone from (or with ties
to) Fox Ridge may have some involvement in or knowledge of the shooting in June 2019, and that
he planned to kill the person who shot him. That defendant’s Facebook account was deleted on
the day of Reese-Manley’s murder and that defendant fled the state is also evidence that defendant
was conscious of guilt for his involvement in Reese-Manley’s murder. See People v Craft, 325
Mich App 598, 612; 927 NW2d 708 (2018); People v Sharpe, 319 Mich App 153, 172-173; 899
NW2d 787 (2017).
Additionally, with respect to defendant’s actions before and after the crime, Boyd testified
that he met defendant by chance at another apartment complex, defendant offered to pay him for
a ride to Fox Ridge, and Boyd planned to pick up his brother from his apartment there and leave.
Boyd explained that he made a U-turn in the parking lot to get to his brother’s door because his
SUV could not move in reverse, and almost ran into defendant in the parking lot on his way out
after the shooting However, security video of the scene showed that Boyd’s SUV clearly backed
out of a parking spot before making the U-turn, and shows that Boyd made the U-turn, idled in
front of a group of people, and waited there until the shooting was over and defendant made his
way to the SUV.
Contrary to Boyd’s assertions at trial, nothing in the video indicated that he almost ran over
defendant in an attempt to flee gunfire or that defendant got inside his vehicle in a panic. Instead,
people appeared to scatter away from the person in a white shirt using a crutch or crutches, Boyd’s
vehicle sat still in a position ready to exit the area until defendant got into the SUV, and only then
did Boyd drive quickly away from the scene. Viewing the video and Boyd’s testimony together,
the jury could infer that Boyd testified in a manner that would minimize his involvement in the
crime, but that defendant paid Boyd to drive him to Fox Ridge and that Boyd also intended to drive
defendant away from Fox Ridge immediately after the shooting.
Viewing the facts in a light most favorable to the prosecutor, see Xun Wang, 505 Mich
at 251, the evidence established that defendant acted with premeditation and deliberation and any
inferences were supported by the evidence. See People v Bass, 317 Mich App 241, 266; 893
NW2d 140 (2016).
III. ADMISSION OF PRIOR-ACTS EVIDENCE
Defendant next contends that the trial court erred by admitting evidence that he was shot
in June 2019, as his statements after the shooting constituted impermissible prior bad-acts
evidence.
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“The trial court’s decision whether to admit evidence is reviewed for an abuse of discretion,
but preliminary legal determinations of admissibility are reviewed de novo; it is necessarily an
abuse of discretion to admit legally inadmissible evidence.” People v Lowrey, 342 Mich App 99,
108; 993 NW2d 62 (2022).
At the time of defendant’s trial, MRE 404(b)(1) provided as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.[1]
“In determining the admissibility of other-acts evidence, the trial court must determine (1) whether
the evidence is offered for a proper purpose under MRE 404(b), (2) whether the evidence is
relevant under MRE 401 and MRE 402, and (3) whether the probative value of the evidence is
substantially outweighed by unfair prejudice under MRE 403.” People v Roscoe, 303 Mich App
633, 645-646; 846 NW2d 402 (2014). Statements reflecting a defendant’s general intent are not
considered as prior-acts evidence but instead as admissions of a party-opponent under
MRE 801(d)(2)(A). People v Goddard, 429 Mich 505, 514-515, 518; 418 NW2d 881 (1988).
Consequently, evidence that defendant suffered a gunshot wound to his leg two months
before Reese-Manley’s homicide did not involve a prior act by defendant or anyone else. See
People v Rockwell, 188 Mich App 405, 409-410; 470 NW2d 673 (1991). The evidence showed
that defendant was the victim of a crime and also served to explain to jurors why defendant was
on crutches in September 2019. But no evidence suggested that defendant committed any bad act
on that occasion. That defendant was shot did not tend to suggest or establish for purposes of
MRE 404(b)(1) that defendant shot someone or had a propensity to shoot someone. Further,
defendant’s Facebook messages, and the testimonies of Detective Anderson and Officer Kendall
that defendant said that he did not want to identify the shooter or press charges, that he wanted to
find the shooter, and that “karma” would come to the shooter, did not describe defendant’s
previous acts, but were defendant’s own statements that described his intent and state of mind.
See Goddard, 429 Mich at 515.
Defendant asserts that the trial court should have excluded the evidence because it tended
to show that defendant acted in conformity with a person who is vengeful. Defense counsel did
not raise this perspective of the evidence in the trial court but the position is unavailing because,
again, the “prior act” was that someone shot defendant in the leg, not that defendant shot someone
in revenge. Defendant’s statements were not prior acts.
1
The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective
January 1, 2024. See ADM File No. 2021-10, 512 Mich lxiii (2023). We rely on the version of
the rules in effect at the time of trial.
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With respect to Detective Anderson’s testimony that defendant was “uncooperative” when
he did not want to press charges or for police to find the shooter, defense counsel did not object to
that statement or raise any argument that this amounted to impermissible character evidence under
MRE 404(b) to preserve this issue on appeal. See People v Aldrich, 246 Mich App 101, 113; 631
NW2d 67 (2001). Moreover, defendant’s lack of cooperation was not presented to show that he
had a character of being uncooperative with police, or that he acted in conformity with that
character. Detective Anderson’s description did not transform defendant’s underlying statements
into prior acts such that they should have been excluded under MRE 404(b)(1).
IV. DENIAL OF COUNSEL
Defendant maintains that he was denied the assistance of counsel during the pretrial stage
of the proceedings and that, under the circumstance, no attorney could provide effective assistance
of counsel.
“Generally, whether a defendant’s right to counsel was violated is a constitutional issue
that this Court reviews de novo.” People v Hieu Van Hoang, 328 Mich App 45, 54; 935 NW2d
396 (2019). The trial court also denied defendant relief on this issue when it denied his motion for
new trial. “This Court reviews for an abuse of discretion a trial court’s decision to grant or deny
a motion for a new trial.” People v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012). “An abuse
of discretion occurs when the trial court renders a decision falling outside the range of principled
decisions.” Id.
Most arguments regarding the deprivation of a defendant’s constitutional right to counsel
require a defendant to “show that (1) his trial counsel’s performance fell below an objective
standard of reasonableness under the prevailing professional norms, and (2) there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been different.”
People v Uphaus (On Remand), 278 Mich App 174, 185; 748 NW2d 899 (2008). In rare cases,
certain circumstances are so likely to result in a constitutional violation of a defendant’s right to
counsel that prejudice is presumed. United States v Cronic, 466 US 648, 659;104 S Ct 2039; 80
L Ed 2d 657 (1984). The Cronic Court described three such situations, as follows:
Most obvious, of course, is the complete denial of counsel. The
presumption that counsel’s assistance is essential requires us to conclude that a trial
is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if
counsel entirely fails to subject the prosecution’s case to meaningful adversarial
testing, then there has been a denial of Sixth Amendment rights that makes the
adversary process itself presumptively unreliable. . . .
Circumstances of that magnitude may be present on some occasions when
although counsel is available to assist the accused during trial, the likelihood that
any lawyer, even a fully competent one, could provide effective assistance is so
small that a presumption of prejudice is appropriate without inquiry into the actual
conduct of the trial. [Id. at 659-660 (footnote omitted).]
Defendant contends that he was denied his right to counsel at a critical stage of the
proceedings because he and defense counsel could not meet and had difficulty communicating
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after his arraignment. “The pre-trial period constitutes a critical period because it encompasses
counsel’s constitutionally imposed duty to investigate the case and [c]ounsel’s actions are usually
based, quite properly, on informed strategic choices made by the defendant and on information
supplied by the defendant.” Hieu Van Hoang, 328 Mich App at 55-56 (quotation marks and
citations omitted).
Defendant was arraigned on March 4, 2020, shortly before the Supreme Court issued
Administrative Order No. 2020-2, 505 Mich 102 (2020), restricting trial court operations in
response to the COVID-19 pandemic. Numerous Administrative Orders followed, extending
restrictions on trial court operations for various periods. See People v Witkoski, 341 Mich App 54,
57-58; 988 NW2d 790 (2022). At the evidentiary hearing on defendant’s motion for new trial,
defense counsel testified that, although far from ideal during a global pandemic, she did her best
to defend and uphold defendant’s rights throughout her representation. Defense counsel preferred
to talk to clients weekly and meet in person every other week, but that was physically impossible
because defendant was housed at the Bellamy Creek Correctional Facility, which had frequently
recurring, deadly outbreaks of COVID-19.
These facts do not establish that defendant experienced a complete denial of counsel such
that prejudice should be presumed under Cronic. The record discloses that defense counsel
communicated and met with defendant numerous times between his arraignment and trial and that
she regularly spoke to and met with defendant in the two and a half months before his trial. This
gave defendant ample opportunity to confer with counsel about the facts, evidence, and strategic
decisions for counsel to fully prepare a robust defense.
Defendant further maintains that he was tried in circumstances in which no competent
counsel could provide adequate assistance. See Cronic, 466 US at 659-660. When the Cronic
Court recognized this deprivation of the right to counsel, it relied on cases in which counsel had
little or no time to prepare for the defense in complex trials. See, e.g., Powell v Alabama, 287 US
45; 53 S Ct 55; 77 L Ed 158 (1932). Accepting defendant’s argument would lead to the necessary
conclusion that most, if not all, attorneys were incapable of providing effective assistance of
counsel during the COVID-19 pandemic. To be sure, that defendant was arraigned days before
COVID-19 restrictions were put in place caused delays and communication difficulties.
Nonetheless, the circumstances were not such that defense counsel was prevented from adequately
preparing and defending his case and defendant is not entitled to automatic relief under Cronic.
V. DENIAL OF RIGHT TO SPEEDY TRIAL
For similar reasons, defendant contends that he was denied his constitutional right to a
speedy trial because in his view most of the delays in his case are attributable to the prosecutor.
“Whether a defendant was denied his constitutional right to a speedy trial is a mixed
question of fact and law.” People v Gilmore, 222 Mich App 442, 459; 564 NW2d 158 (1997).
This Court reviews a trial court’s factual findings under the clearly erroneous standard and
constitutional questions of law de novo. Id.
Both the United States and Michigan Constitutions guarantee criminal
defendants the right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20.
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“[A] defendant’s right to a speedy trial is not violated after a fixed number of days.”
People v Williams, 475 Mich 245, 261; 716 NW2d 208 (2006). Rather, when
evaluating a speedy-trial claim, the reviewing court is required to balance four
factors: “(1) the length of delay, (2) the reason for delay, (3) the defendant’s
assertion of the right, and (4) the prejudice to the defendant.” Id. at 261-262.
“Following a delay of eighteen months or more, prejudice is presumed, and the
burden shifts to the prosecution to show that there was no injury.” Id. at 262.
[People v Smith, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket
No. 362114); slip op at 3 (footnote omitted).]
It is undisputed that defendant was arrested in this case on January 22, 2020; he was
arraigned on March 4, 2020; his preliminary examination occurred on September 17, 2021; and
his trial began on July 21, 2022. On the basis of those dates, defendant’s trial took place nearly
30 months after his arrest.
On the cause of the delay, although defendant and the prosecutor agree that some delays
were caused by the COVID-19 pandemic, defendant contends that 23 months of delays should be
attributed to the prosecutor, but this vastly understates the impact the COVID-19 pandemic had on
the adjournments. The prosecutor concedes that the delay between defendant’s arrest and his
arraignment should be attributed to the prosecutor. However, following defendant’s arraignment
in March 2020, there were numerous adjournments of his preliminary examination because of
pandemic-related safety precautions and restrictions. Defendant asserts that the 12-month delay
from June 3, 2020 to June 21, 2021, should be attributed to the prosecutor because the district court
did not comply with the State Court Administrative Office order to conduct preliminary
examinations by video hearing and the Michigan Department of Corrections (MDOC) did not
comply with orders to transport defendant to court.
Defense counsel testified that, as a parole absconder, defendant was held at Bellamy Creek
instead of the Kalamazoo County jail from June 8, 2020 to October 26, 2021. She further testified
that Bellamy Creek had such a severe problem with cases of COVID-19 that it was often on
lockdown or the MDOC would not transport prisoners from the facility when positive cases of
COVID-19 were dangerously high. Although defendant urges this Court to weigh this factor
against the prosecutor, as this Court concluded in Smith, ___ Mich App at ___; slip op at 1, “[t]he
government simply cannot be faulted for a highly contagious and mutating virus.” (Quotation
marks and citation omitted.)
Although she knew that the MDOC was not allowing prison transports from Bellamy Creek
because of conditions related to the pandemic, defendant’s trial counsel stated that she would not
participate in the offer of a remote preliminary examination. Defendant complains that it was the
MDOC’s decision to house him at Bellamy Creek and that any related delays should be attributed
to the prosecutor. Defendant provides no factual or legal authority to show that defendant should
have been held elsewhere when he was arrested for open murder while on parole for another felony
conviction. Because defendant concedes that transportation problems continued until June 2021,
and no evidence suggests that the problems were related to anything other than the COVID-19
pandemic, delays between June 2020 and June 2021 are not attributed to the government pursuant
to the holding in Smith.
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Defendant argues that one delay was caused by a judge covering a different docket, but he
does not dispute that this was caused by the unexpected retirement of another judge. However,
“[a] delay which results from short-term docket congestion, attributable to exceptional
circumstances which hamper the normally efficient functioning of the trial court, constitutes an
excusable delay.” People v Schinzel (On Remand), 97 Mich App 508, 511-512; 296 NW2d 85
(1980). And, although defendant contends that trial was delayed without explanation for
approximately five months between January 2022 and May 2022, at the evidentiary hearing,
defense counsel agreed that jury trials were paused in Kalamazoo County in early 2022 because
of high COVID-19 levels. Again, pursuant to Smith, ___ Mich App at ___; slip op at 5, delay
caused by the COVID-19 pandemic are not attributable to the prosecution.2
The record reflects that the vast majority of delays in defendant’s case were caused by the
COVID-19 pandemic or did not weigh against either party.
With regard to the defendant’s assertion of his right to a speedy trial, it is undisputed that
defendant asserted his right to a speedy trial early and often, so this factor weighs in his favor. See
Barker v Wingo, 407 US 514, 532; 92 S Ct 2182; 33 L Ed 2d 101 (1972).
To weigh the prejudice to a defendant because of delays, this Court explained in People v
Jones, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 365590); slip op at 5:
“There are two types of prejudice which a defendant may experience, that is,
prejudice to his person and prejudice to his defense.” People v Collins, 388 Mich
680, 694; 202 NW2d 769 (1972). “Prejudice to his person would take the form of
oppressive pretrial incarceration leading to anxiety and concern. Prejudice to his
defense might include key witnesses being unavailable. Impairment of defense is
the most serious.” Id. “Every incarceration results in a degree of prejudice to the
person.” Id. We look to whether the ability to defend oneself “was in any
significant way prejudiced.” People v Chism, 390 Mich 104, 115; 211 NW2d 193
(1973).
The prosecutor concedes that defendant suffered some personal prejudice by being
incarcerated and exposed to repeated COVID-19 outbreaks at Bellamy Creek. Defendant asserts
that his defense was prejudiced by the delay of his trial. As discussed, prejudice is presumed
because the delay lasted longer than 18 months, and the burden, therefore, shifted to the prosecutor
to show that defendant did not suffer any injury. See Williams, 475 Mich at 262. Defendant
emphasizes that the delay interfered with trial preparation and that he lost the opportunity to
present the testimony of Mark Ford because Ford moved to another state before trial.
2
Defendant argues that the adjournment of defendant’s trial from May 2022 to July 2022 should
be weighed against the prosecutor because the prosecutor had a health issue that prevented him
from being able to try the case. Under these circumstances, a delay caused by a medical problem
of the prosecutor who handled the case from the outset justified the delay. Barker v Wingo, 407
US 514, 531; 92 S Ct 2182; 33 L Ed 2d 101 (1972).
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We see no reason that any delay prevented Ford from testifying at trial. Ford was a close
friend of defendant, and he testified that he maintained contact with defendant through the hearing
on defendant’s motion for new trial. Ford also admittedly did not see the shooting, and did not
speak to Cottle until well after defendant’s trial. Defendant has not established that any delays
prejudiced his case in this regard. Other than general claims about communicating with defense
counsel, defendant does not otherwise argue that any of his witnesses were unavailable or
unreachable because of the delay. Accordingly, the prosecutor has overcome the presumption that
defendant’s trial was prejudiced because of the delay in his trial, and the weight of the factors did
not justify granting defendant a new trial because of the denial of his right to a speedy trial.
Defendant contends in the alternative that, to the extent that defense counsel appeared to
stipulate or acquiesce to the adjournments, it constituted ineffective assistance of counsel. As this
Court explained in In re LT, 342 Mich App 126, 133-134; 992 NW2d 903 (2022):
The Sixth Amendment of the United States Constitution states that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance
of Counsel for his defence.” See also Const 1963, art 1, § 20. “The right to counsel
also encompasses the right to the effective assistance of counsel.” People v Pubrat,
451 Mich 589, 594, 548 NW2d 595 (1996).
“To establish ineffective assistance of counsel, defendant must first show
that (1) his trial counsel’s performance fell below an objective standard of
reasonableness under the prevailing professional norms, and (2) there is a
reasonable probability that, but for counsel’s error, the result of the proceedings
would have been different.” People v Uphaus (On Remand), 278 Mich App 174,
185; 748 NW2d 899 (2008). “Effective assistance of counsel is presumed and
defendant bears the burden of proving otherwise.” [People v] Petri, 279 Mich App
[407, 410; 760 NW2d 882 (2008)].
“The question whether defense counsel performed ineffectively is a mixed question of law and
fact; this Court reviews for clear error the trial court’s findings of fact and reviews de novo
questions of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).
As discussed, defense counsel was placed in the difficult position of rendering effective
assistant to defendant during a global pandemic. Defense counsel’s e-mails with the MDOC, the
courts, and the prosecutor show that she did not insist upon moving forward when courts were shut
down or other emergency protective measures were taken to protect the public during the
pandemic. Defense counsel was a seasoned attorney and chief defender of the Kalamazoo Public
Defender’s Office. The record does not disclose that defense counsel could have done much to
move defendant’s case forward when courts were simply not conducting hearings or trials for long
periods during the pendency of his case and when safety precautions related to the pandemic were
in place. Further, defense counsel believed, and it was the policy of the defender’s office, that, to
provide effective assistance, defendants should be physically present for preliminary
examinations. That defense counsel demanded that right at the expense of a speedier trial was a
matter of sound trial strategy. Particularly when it was difficult to communicate with defendant
during some lockdowns at Bellamy Creek, it is apparent that defense counsel saw the importance
of being able to personally confer with defendant during the preliminary examination to discuss
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the testimony and witnesses and decide matters of trial strategy. See In re LT, 342 Mich App
at 133-134.
VI. JUROR MISCONDUCT
For the first time on appeal, defendant argues that he was denied a fair trial because a juror
was not made an alternate after she fell asleep during the testimony of a prosecution witness.
Defendant failed to preserve this issue by raising it in his motion for new trial. People v
Benberry, 24 Mich App 188, 191-192; 180 NW2d 391 (1970). This Court reviews unpreserved
constitutional arguments under the plain error rule. People v Abraham, 256 Mich App 265, 274-
275; 662 NW2d 836 (2003). To establish plain error, “the defendant must establish that an error
occurred, that the error was plain, i.e., clear or obvious, and that the plain error affected substantial
rights.” People v Lockridge, 498 Mich 358, 392-393; 870 NW2d 502 (2015). “Reversal is
warranted only when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or when an error seriously affected the fairness, integrity or public reputation of judicial
proceedings independent of the defendant’s innocence.” People v Randolph, 502 Mich 1, 10; 917
NW2d 249 (2018) (quotation marks and citation omitted).
An allegation of juror misconduct, even if the alleged misconduct did
actually occur, will not warrant a new trial unless the party seeking the new trial
can show that the misconduct [was] such as to affect the impartiality of the jury or
disqualify them from exercising the powers of reason and judgment. [People v
Dunigan, 299 Mich App 579, 586; 831 NW2d 243 (2013) (quotation marks and
citation omitted).]
If the record does not disclose what testimony the juror missed, and if the defendant does not show
how he or she was prejudiced, then the assertion that a juror slept through trial testimony is not
enough to warrant a new trial. Id.
At a bench conference, defense counsel noted that a juror fell asleep during the testimony
of crime scene specialist Gary Latham. Most of the bench conference was not transcribed because
it was inaudible. Of the existing transcript, it appears that the trial court did not see the juror
sleeping, and the record does not reflect that the parties came to any agreement with the trial court
about how they would proceed. Although making the juror an alternate was raised, the record does
not disclose that the trial court ruled that the juror would be made an alternate. Rather, it was
equally likely from the transcript that counsel and the trial court agreed that they would consider
the issue further if the problem continued. Defendant has not shown that the juror falling asleep
during the beginning of Latham’s testimony, which contained little to no substantive evidence,
was sufficient to affect the impartiality of the jury or its powers of reason or judgment. See
Dunigan, 299 Mich App at 586.
VII. DISCLOSURE OF IMPEACHMENT EVIDENCE
Defendant next argues that the prosecutor violated Brady v Maryland, 373 US 83, 87; 83
S Ct 1194; 10 L Ed 2d 215 (1963), by not disclosing two of Cottle’s prior convictions that could
have been used to impeach her testimony. This Court “reviews due process claims, such as
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allegations of a Brady violation, de novo.” People v Dimambro, 318 Mich App 204, 212; 897
NW2d 233 (2016) (quotation marks and citation omitted).
“[T]he suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution.” People v Chenault, 495 Mich 142, 149; 845 NW2d
731 (2013) (quotation marks and citation omitted). “To establish a Brady violation, a defendant
must show that: ‘(1) the prosecution has suppressed evidence; (2) that is favorable to the accused;
and (3) that is material.’ ” People v Christian, 510 Mich 52, 76; 987 NW2d 29 (2022), quoting
Chenault, 495 Mich at 150.
The duty under Brady to disclose evidence applies to both exculpatory or impeaching
evidence and it applies even if the information is only known to police, and not the prosecutor.
Youngblood v West Virginia, 547 US 867, 869-870; 126 S Ct 2188; 165 L Ed 2d 269 (2006);
People v Brownridge (On Remand), 237 Mich App 210, 214; 602 NW2d 584 (1999). The parties
largely agree that both of Cottle’s prior convictions contained an element of dishonesty that could
have been used for impeachment under MRE 609(a).
But even assuming that the prosecutor had a duty to disclose Cottle’s two convictions
involving dishonesty, defendant is not entitled to relief under Brady because, as the trial court
correctly ruled, the evidence was not material. As stated in Christian, 510 Mich at 76:
To establish that exculpatory evidence is material, a defendant must show
that “ ‘there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.’ ” [Chenault, 495
Mich at 150], quoting Bagley, 473 US at 682. A “reasonable probability” means
“ ‘a probability sufficient to undermine confidence in the outcome.’ ” Chenault,
495 Mich at 150, quoting Bagley, 473 US at 682 (opinion of Blackmun, J.). A
defendant need not “demonstrat[e] by a preponderance that disclosure of the
suppressed evidence would have resulted ultimately in the defendant’s
acquittal . . . .” Kyles v Whitley, 514 US 419, 434; 115 S Ct 1555; 131 L Ed 2d 490
(1995). Rather, the relevant question is whether the defendant “received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.” Id. [Second
alteration and ellipsis in original.]
Defendant accurately observes that, as the only person testifying about who shot Reese-
Manley, Cottle was a crucial witness and evidence that tended to undermine her credibility was
particularly important for the defense. However, as the trial court observed, defense counsel
undermined Cottle’s credibility at trial in numerous other ways, including by emphasizing her
drunkenness and use of drugs; questioning her memory of the incident, defendant’s clothing, and
of talking to police; suggesting that she lied at the preliminary examination; pointing to conflicts
in her testimony and statements to police; suggesting that she had knowledge of another person
who could have shot Reese-Manley; suggesting that video evidence of her appeared to show she
may have been involved in the crime; and presenting testimony of her sometime romantic partner
who testified that she lied repeatedly and told him she lied about defendant’s involvement in
Reese-Manley’s murder.
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Notwithstanding defense counsel’s rigorous cross-examination of Cottle, the jury
apparently believed her testimony that defendant was the person who shot Reese-Manley, which
was corroborated by physical evidence and a video recording. Evidence that Cottle may have
obtained money through dishonesty or lied about her name to police in another incident was not
material to her ability to identify Reese-Manley’s shooter. The verdict was worthy of confidence
because it was supported by ample corroborating evidence. See Christian, 510 Mich at 76. For a
similar reason, defendant cannot show that defense counsel denied him his right to the effective
assistance of counsel for failing to impeach Cottle with the two convictions because defendant
cannot show that “there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different.” Uphaus, 278 Mich App at 185.
VIII. NEWLY DISCOVERED EVIDENCE
Defendant argues that he is entitled to a new trial because of newly discovered evidence
from witnesses Jerry Blackwell, Mark Ford, and Spencer Marbley.
For a new trial to be granted on the basis of newly discovered evidence, a defendant
must show that: (1) the evidence itself, not merely its materiality, was newly
discovered; (2) the newly discovered evidence was not cumulative; (3) the party
could not, using reasonable diligence, have discovered and produced the evidence
at trial; and (4) the new evidence makes a different result probable on retrial.
[People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003) (quotation marks and
citations omitted).]
A. BLACKWELL
Jerry Blackwell testified at trial that Cottle told him that she lied about defendant’s
involvement in Reese-Manley’s shooting, and he also maintained, contrary to Cottle’s testimony,
that he and Cottle were in a romantic relationship and intended to get married. On cross-
examination, Blackwell conceded that he and Cottle had an “on and off” relationship and went
long periods without communicating. At the evidentiary hearing, Blackwell testified that, after
defendant’s trial, Cottle sent him a message stating that she did not testify that they were not
together, but that she never told him that she lied on the stand or that she intended to change her
story. Blackwell further testified that Cottle sent him another message in February 2023 that she
was sad that they were no longer together.
Defendant is correct that the messages offered through Blackwell were newly discovered
because Blackwell received them after defendant’s trial, so counsel also could not be expected to
have discovered them with reasonable diligence. See Cress, 468 Mich at 692. “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.” People v Johnson, 502 Mich 541,
571; 918 NW2d 676 (2018), quoting Cress, 468 Mich at 692. As discussed, Blackwell and Cottle
already differed in their trial testimonies about the status of their relationship, so those references
would be cumulative of other testimony. Cottle’s first message reaffirmed her trial testimony that
she never told Blackwell that she lied about the crime. If anything, the message would bolster
Cottle’s trial testimony that defendant shot Reese-Manley and the new evidence would not make
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“a different result probable on retrial.” Johnson, 502 Mich at 571 (quotation marks and citation
omitted).
B. FORD
As discussed, defendant argued that counsel could have called Ford to testify if not for the
delays in his trial. After trial, Ford testified that he saw Cottle in June 2023, and she recanted her
trial testimony. Because of the timing of the conversation, Ford’s statement would qualify as
newly discovered because he did not talk to Cottle until nearly a year after defendant’s trial. See
Cress, 468 Mich at 692. For the same reason, Ford’s statement that Cottle said that she did not
see defendant shoot Reese-Manley and did not testify that way at trial could not have been
discovered at the time of defendant’s trial. See id.
But the trial court found that Ford’s testimony lacked credibility because he was a lifelong
friend of defendant’s and a reasonable juror would not believe his assertion about Cottle’s
recantation. “In order to determine whether newly discovered evidence makes a different result
probable on retrial, a trial court must first determine whether the evidence is credible.” Johnson,
502 Mich at 566-567. The trial court’s conclusion should focus on “whether a reasonable juror
could find the testimony credible on retrial.” Id. at 567.
Ford’s testimony was straightforward and primarily focused on Cottle volunteering “that
[defendant] did not shoot anyone and she didn’t see him shoot nobody and she says she didn’t
testify and say that.” He also testified that he was good friends with defendant, their friendship
was well-known in the community, defendant had a key to his apartment, and Ford remained in
contact with defendant. Pursuant to Johnson, the trial court properly focused on whether a
reasonable juror would find Ford’s testimony credible and ruled in the negative. This was not
clearly erroneous. When “newly discovered evidence takes the form of recantation testimony, it
is traditionally regarded as suspect and untrustworthy.” People v Canter, 197 Mich App 550, 559;
496 NW2d 336 (1992).
C. MARBLEY
At the evidentiary hearing, Spencer Marbley testified that Cottle was his adopted sister and
that she told him in a phone call to him in prison that she assumed defendant was the shooter
because he and Reese-Manley had a previous altercation. From prison phone records, there was
no evidence that the phone conversation Marbley described could have occurred. During his
testimony, Marbley also conceded that Blackwell and he met with defendant in prison to “clear
the air” because Cottle testified against defendant at trial. According to Marbley, he contacted
defendant’s appellate counsel and testified at the evidentiary hearing because he thought he “was
righting a wrong.”
Marbley’s testimony could be considered newly discovered evidence because Marbley
testified that he met defendant after the trial and only then did it occur to him to call defendant’s
appellate counsel to tell him about his phone call with Cottle. But the trial court again concluded
that no reasonable juror would find Marbley’s testimony was worthy of belief on retrial. The trial
court found that Marbley’s testimony was plainly influenced by his fear of defendant, as Marbley
himself testified that he and his family’s safety was at risk if someone in the family “snitched.”
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Under the circumstances, and because phone records showed that no such call occurred, the trial
court’s conclusion that Marbley’s testimony lacked credibility was not clearly erroneous.
Marbley’s testimony was not likely to change the verdict on retrial for other reasons. See
Cress, 468 Mich at 692. Cottle merely told Marbley that she “assumed” that defendant shot Reese-
Manley because the two had a previous altercation and defendant was at Fox Ridge on the night
of the crime. Again, video and other evidence corroborated her testimony that defendant shot
Reese-Manley. Indeed, Marbley’s testimony would arguably strengthen the prosecutor’s case
because, according to Marbley, Cottle disclosed that defendant and Reese-Manley had a previous
altercation, which gave defendant a motive to kill him.
IX. LOAN APPLICATIONS AND REQUEST FOR COUNSEL
Defendant maintains that other newly discovered evidence showed that Cottle committed
fraud in two loan applications and, as a result, also provided false information in a request for the
appointment of counsel or that defense counsel was ineffective for failing to find and present the
evidence.
We hold that the trial court did not abuse its discretion by concluding that defendant was
not entitled to a new trial on the ground of newly discovered evidence. Defendant did not establish
through documentation or testimony that the evidence was “newly discovered” or when it could
be found with reasonable diligence. A witness referred to an unspecified court ruling that the loan
information should be made public but, beyond the fact that the applications bore dates in April
2021 and that the defense found the applications in fall 2023, defendant provided no evidence to
show when the information was made public or when the documents with Cottle’s name were
available to the public. For that reason, defendant has not shown that the evidence was “newly
discovered” and that it could not have been discovered and produced at his trial in July 2022
through reasonable diligence. See Cress, 468 Mich at 692.
For the same reason, defendant cannot show that defense counsel’s failure to locate this
evidence fell below an objective standard of reasonableness under prevailing professional norms.
See Uphaus, 278 Mich App at 185. Because defendant failed to prove the first prong of an
ineffective assistance of counsel argument, we need not further address the issue.3
Affirmed.
/s/ Michael J. Riordan
/s/ Christopher M. Murray
/s/ Allie Greenleaf Maldonado
3
We also reject defendant’s argument that the cumulative effect of several errors denied him a fair
trial. See People v Mayhew, 236 Mich App 112, 128; 600 NW2d 370 (1999).
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