People of Michigan v. Tyrone Kennedy

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

May 23, 2024

Plaintiff-Appellee,

v No. 363001

Calhoun Circuit Court

TYRONE KENNEDY, LC No. 1987-002560-FC

Defendant-Appellant.

Before: JANSEN, P.J., and MURRAY and O’BRIEN, JJ.

PER CURIAM.

Defendant, Tyrone Kennedy, appeals by delayed leave granted 1 the trial court’s April 4,

2022 order denying his motion for relief from judgment on the basis of newly discovered evidence.

In an earlier April 9, 2021 order, the trial court denied defendant’s motion for relief from judgment

to the extent that defendant argued that his trial and appellate counsel were ineffective and that the

prosecution withheld evidence in violation of Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L

Ed 2d 215 (1963). As set forth below, this Court does not have jurisdiction over the April 9, 2021

order, and the trial court did not abuse its discretion by denying defendant’s motion for relief from

judgment on the basis of newly discovered evidence. We accordingly affirm.

I. BACKGROUND

In May 1988, defendant was convicted by a jury of armed robbery, MCL 750.529; assault

with intent to commit murder, MCL 750.83; and breaking and entering an occupied dwelling,

MCL 750.110. Defendant’s convictions arose out of the attack and robbery of 81-year-old Elsie

Watson at her home in Albion, Michigan, on the evening of September 4, 1987. Watson was

severely beaten with a brick in her upstairs bedroom, and her large black purse was stolen.

1

People v Kennedy, unpublished order of the Court of Appeals, entered April 4, 2023 (Docket

No. 363991).

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Watson lived on Linden Avenue, which runs parallel to South Monroe Street, separated by

a millrace (a small river). Erie Street runs roughly perpendicular to Linden and South Monroe,

and connects the two streets. East Porter Street runs parallel to Erie Street, and South Monroe

connects the two. The portion of South Monroe that connects East Porter and Erie is a narrow

one-way street. In September 1987, there was a streetlight on the corner of Erie and South Monroe,

and the house on the corner of South Monroe and Erie had a bright garage light that threw light on

South Monroe. There was a similar light on a garage on a home across the millrace from South

Monroe on Linden. There was also a streetlight on Linden across the millrace, and a third

streetlight where South Monroe intersects with East Porter. There were additional lights at the

corner of South Monroe and East Porter at an apartment complex.

Hazel Vandevender lived on South Monroe between Erie and East Porter. On the night

that Watson was attacked, Vandevender was at home babysitting for her neighbor, who was

supposed to be home around 11:00 p.m. Vandevender was waiting on her porch around that time

watching for her neighbor. While she was waiting, she saw a man walk down Erie over the

millrace and turn down South Monroe. Vandevender took interest in the man because he was

carrying a large purse under his arm. She watched the man as he walked down South Monroe

directly in front of her house. Vandevender recognized the man because she had seen him walking

around the neighborhood before.2 Vandevender watched as the man went to the sidewalk on the

corner of South Monroe and East Porter, dumped the contents of the purse on the sidewalk, and

placed something in his pocket. The man put the rest of the contents back in the purse, walked to

the middle of South Monroe, and threw the purse in the millrace. Vandevender watched as the

purse “flipped and everything went down in the water.” She yelled at the man after he threw the

purse, and he ran down East Porter.

Vandevender immediately called her neighbors, Carolyn and Walter Swyers, who lived on

the corner of South Monroe and East Porter. After getting Vandevender’s call, Carolyn called the

police, and Walter stepped outside and saw a man crossing the street two blocks away. When the

police arrived, Vandevender told the officers that she recognized the man as someone she had seen

walking around the neighborhood. One of the officers, Douglas Rogers, knew defendant and had

seen him walking around the area near Vandevender’s home. Vandevender later identified

defendant in a lineup.

James “Bud” Leslie Howard, defendant’s friend, made a written statement on October 10,

1987, in which he said that, while he was driving with defendant, defendant admitted to being

involved in the assault of Watson. According to Howard’s statement to police, Howard told

defendant that he had heard that defendant was involved in the incident. Defendant then told

Howard that he was drunk and needed money to pay some debts when he ran into Curtis “Jake”

Wilson, who also needed money. Wilson told defendant that he knew where to get some money,

and defendant and Wilson went to Watson’s house to steal from her. According to Howard’s

statement, defendant “was drunk and lost control of himself and was afraid [Watson] would

2

Vandevender said that she often sat on her porch taking note of people walking in the

neighborhood because she and another individual were trying to start a neighborhood watch.

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identify him in a line-up.” Defendant told Howard that he took Watson’s purse and left, later

“toss[ing]” the purse.

Howard admitted during cross-examination that he was intoxicated when defendant told

him this story, and he acknowledged it was possible that defendant admitted there were rumors

about his involvement in the attack of Watson but denied involvement. Howard also

acknowledged that he was drunk when he spoke to police, and admitted that he blacked out at

times from drinking. Howard also admitted that, after defendant was arrested, Howard sent letters

to defendant while he was in jail in which Howard expressed his belief that defendant was not

involved with the crime.

The Michigan Innocence Clinic became involved in defendant’s case in 2014. Pertinent to

this appeal, defendant moved for relief from judgment based on claims of ineffective assistance of

counsel, an alleged Brady violation, and newly discovered evidence. In an April 9, 2021 order,

the trial court dismissed defendant’s claims that he received ineffective assistance of counsel and

that a note discovered in the prosecution’s file violated Brady. But the court concluded that an

evidentiary hearing was necessary to address “(1) whether newly discovered scientific evidence

related to eye witness reliability would create a reasonable probability of a different outcome upon

retrial, and (2) whether the newly discovered witnesses who provided affidavits are credible and

if so, would their testimony create a reasonable probability of a different outcome upon retrial.”

After a two-day evidentiary hearing, the trial court denied defendant’s motion for relief from

judgment based on the newly discovered evidence in an April 4, 2022 order. This appeal followed.

II. JURISDICTION

Defendant filed an application for leave to appeal the trial court’s April 9, 2021 order

denying his motion for relief from judgment based on ineffective assistance and Brady claims, as

well as the trial court’s April 4, 2022 order denying his motion for relief from judgment based on

newly discovered evidence. In a September 27, 2022 order, this Court dismissed in part for lack

of jurisdiction defendant’s application to the extent that it sought to appeal the April 9, 2021 order.3

Defendant appealed this partial dismissal to the Michigan Supreme Court, which denied the appeal.

People v Kennedy, ___ Mich ___; 985 NW2d 833 (2023). In a concurring statement, Justice

CAVANAGH said that she was “not entirely persuaded that the Court of Appeals properly dismissed

in part defendant’s application for lack of jurisdiction” but recognized that the court rules did not

clearly speak on the issue. Id. at 833-834. Justice CAVANAGH went on to say:

I write to emphasize that in resolving this defendant’s appeal, the Court of

Appeals should consider all the claims raised in defendant’s motion for relief from

judgment as necessary for reviewing the order before it. Specifically, defendant

argued in the trial court that he was entitled to relief from judgment based on (1) a

Brady violation, (2) ineffective assistance of counsel, and (3) newly discovered

evidence. While only the order addressing defendant’s claim of newly discovered

evidence is currently before the Court of Appeals, defendant’s other claims may be

3

People v Kennedy, unpublished order of the Court of Appeals, entered September 27, 2022

(Docket No. 363991).

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relevant to what evidence “would be admitted at retrial” and therefore whether the

alleged newly discovered evidence entitles defendant to relief from judgment.

People v Johnson, 502 Mich 541, 571 (2018) (emphasis omitted); see also MCR

6.508(D)(2). [Kennedy, 985 NW2d at 834 (footnote omitted).]

This Court subsequently granted defendant’s application for leave to appeal “limited to the issues

raised in the application and supporting brief.”4

Based on the foregoing, this panel’s jurisdiction is plainly limited to reviewing defendant’s

appeal to the extent that it contests the rulings made by the trial court in its April 4, 2022 order,

meaning we can only review the lower court’s denial of defendant’s motion for relief from

judgment based on newly discovered evidence. While attempting to avoid this conclusion,

defendant’s statements on appeal reinforce it. He repeatedly says that the trial court dismissed

defendant’s ineffective assistance and Brady claims in the April 9, 2021 order. He also repeatedly

says that the trial court’s April 4, 2022 opinion “only addressed” defendant’s motion for relief

from judgment based on newly discovered evidence claim because the court “denied the Brady

and [ineffective assistance] claims before the hearing.” Defendant thus acknowledges that the trial

court resolved his motion for relief from judgment based on ineffective assistance of counsel and

an alleged Brady violation in the April 9, 2021 order, and that the April 4, 2022 order resolved

only defendant’s motion for relief from judgment based on newly discovered evidence. Because

this Court only has jurisdiction over the April 4, 2022 order, and because that order “only

addressed” defendant’s motion for relief from judgment based on newly discovered evidence, this

Court is limited to reviewing the trial court’s denial of defendant’s motion for relief from judgment

based on newly discovered evidence.

Defendant insists that this conclusion “runs afoul” of “the guidance in” Justice

CAVANAGH’s concurring statement. That statement, defendant emphasizes, said that this Court

“should consider all the claims raised in defendant’s motion for relief from judgment . . . .”

Kennedy, 985 NW2d at 834. This excerpt is misleading. The full sentence reads, “I write to

emphasize that in resolving this defendant’s appeal, the Court of Appeals should consider all the

claims raised in defendant’s motion for relief from judgment as necessary for reviewing the order

before it.” Id. (emphasis added). The order before this Court is the April 4, 2022 order that

addressed defendant’s motion for relief from judgment based on newly discovered evidence. This

is consistent with Justice CAVANAGH’s apparent understanding of the case—her statement later

says that “only the order addressing defendant’s claim of newly discovered evidence is currently

before the Court of Appeals . . . .” Id.

Still resisting this conclusion, defendant contends that this Court’s April 4, 2023 order

gives this Court jurisdiction to address his ineffective assistance and Brady claims because the

order granted defendant’s application “limited to the issues raised in the application and supporting

brief.” But that order was entered after the September 27, 2022 order in which this Court dismissed

defendant’s application to the extent it sought to appeal the April 9, 2021 order. Following that

order, the only issue left in defendant’s application related to defendant’s motion for relief from

4

Kennedy, unpub order, entered April 4, 2023.

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judgment based on newly discovered evidence. The ensuing April 4, 2023 order could only grant

leave on that issue, which it did.

That said, this Court will consider defendant’s ineffective assistance and Brady claims to

the extent that they are relevant to assessing whether defendant’s newly discovered evidence

entitles him to relief from judgment, as thoughtfully suggested by Justice CAVANAGH.

III. NEWLY DISCOVERED EVIDENCE

Defendant’s motion for relief from judgment based on newly discovered evidence

principally relied on (1) witness affidavits claiming that Wilson confessed to committing the crime

for which defendant was convicted and (2) new scientific evidence related to eyewitness

identification that was not available at the time of defendant’s trial in 1988. As stated above, the

trial court held a two-day evidentiary hearing at which it received defendant’s evidence supporting

his motion.

A. WILSON’S CONFESSION

Rechelle Etchison testified at the evidentiary hearing that she knew Wilson and defendant

from school. While her testimony is unclear, it appears that she dated Wilson at some point after

defendant’s trial. Etchison testified that Wilson told her that defendant was not involved in the

robbery and assault of Watson, and that Wilson and another unidentified individual were the ones

that broke into Watson’s home and hit her in the head with a brick.

Etchison admitted that she and Wilson were “drinking beers and doing things we ain’t

supposed to do” when Wilson confessed to her. Nevertheless, according to Etchison, “we weren’t

like in a state of fog or nothing like that. It was like you know, it—it got serious when he told

me.” She denied that she was misremembering what Wilson had told her. She added that his

confession was “burnt in my brain.”

Etchison said that she contacted defendant’s sister the next day, which was sometime

between 2001 and 2004, and informed her of Wilson’s confession. Eventually, the Michigan

Innocence Clinic contacted her about the confession. According to Etchison, she came forward

and agreed to testify because she

felt sad. I was hurt and it was wrong. And the truth need [sic] to come out. So,

that’s why I called his sister because I knew she was going to handle it. So, that’s

why I told her.

B. NEW SCIENTIFIC EVIDENCE

Jonathan Kagan-Kans testified at the evidentiary hearing that he worked on this case

beginning in September 2019 when he was participating as a student in the Michigan Innocence

Clinic. Kagan-Kans said that in early October 2019, he visited Vandevender’s former home where

she had identified defendant. During Vandevender’s testimony at defendant’s trial, after she said

that she saw a man walk down South Monroe from Erie to East Porter past where she was watching

from on her porch, Vandevender had the following exchange with the prosecutor:

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Q. As he walked past you up to this direction, did you recognize him?

A. Yes.

Q. When did you recognize him?

A. I could—well, I wasn’t sure if I got a good look at him until he got out

to the end of the drive and I could see better there, because the light—the light was

more brighter.

The “end of the drive” to which Vandevender was referring was the intersection of South Monroe

and East Porter. Kagan-Kans took a series of measurements from Vandevender’s porch to this

intersection. Kagan-Kans determined that the distance from Vandevender’s porch to where

defendant was standing when Vandevender identified him was approximately 73 feet.

Kagan-Kans then took measurements of the brightness at the corner of South Monroe and

East Porter after dark. Kagan-Kans used a light meter reading device, which measured brightness

in “lux.” Kagan-Kans measured the light directly under the light at South Monroe and East

Porter—which he said was emitting a whiter, brighter light than other lights in the area—and the

light meter registered 32.1 lux. He took another measurement while standing directly under a

streetlight on Linden, which was emitting a duller orange-yellow light, and the light meter

registered 15.7 lux.5 He also took a light reading from approximately where Vandevender said

defendant was standing when he was emptying the purse on the corner of South Monroe and East

Porter, and the light meter registered one lux.

Kagan-Kans also took a series of photos. Some of the photos documented where he took

the measurements from. Other photos depicted the area at night. In some of the photos depicting

the area at night, Kagan-Kans stood near Vandevender’s porch and photographed a colleague

standing approximately where defendant would have been when Vandevender identified him.

Kagan-Kans said that, as depicted in the photos, he could see that a person was standing on the

street corner “but not much more detail than that”; he could not discern the facial features of that

individual, including whether the person had facial hair.

Dr. Margaret Bull Kovera, an expert in eyewitness identification, was hired by defendant

to form an opinion about this case. Kovera described Vandevender’s eyewitness encounter with

defendant as follows:

Ms. Vandevender reported seeing somebody walk down the street at night. That

person got to the end of her street by a stop sign, was rifling through [the purse].

And it was at that point that she said she recognized the person that she saw as—as

5

A former public safety officer testified that the light at South Monroe and East Porter was

changed in 2019 from a sodium vaper light to an LED light, which “seem[ed] to be a little bit

brighter.” He clarified that not all the dimmer sodium vapor bulbs had been replaced.

-6-

Tyrone Kennedy. Again, basically, what he—what—the person who was there was

dumping some materials into the river.

Kovera described the following as “key” factors to consider when assessing the reliability

of an eyewitness identification:

We tend to look at factors that affect encoding, storage, and retrieval of a

memory. And in terms of encoding conditions, we’re thinking about things like

lighting and distance and the amount of time one’s exposed to a face. We’re also

thinking about things like post-event information and things like that, that can

happen. In terms of the retrieval, we think about what’s going on with the police

procedures in terms of lineup composition, instructions that are given, who’s

conducting the lineup, you know. Does the lineup administrator know who the

suspect is? And things like that.

She described the process of encoding a memory as follows:

In order to form a memory, you actually have to pay attention to something

and to have enough information—sensory information reach your eyes and ears in

order to be able to process that information in your brain to store up for later views.

So, encoding is really based on one’s ability to attend to and perceive detail of what

you’re trying to remember later.

According to Kovera, distance and lights affect a person’s ability to encode memories:

Well, not surprisingly, distance—the farther away somebody is, the harder

it is to see them and it’s also, you know—the farther away the harder it is to see

details of the face and that’s combined with the lighting conditions. And so, again,

lower light makes it more difficult for the—eyes, basically, are viewing through

light waves, and so if the light levels are low, there is no light waves reaching the

retina that the witness will then be able to process that information and encode it

into a memory.

Kovera explained that the “rule of 15” minimized mistaken identifications due to distance and

light. That rule, according to Kovera, states that identifications that occur at no more than 15

meters (roughly 50 feet) at a brightness of no less than 15 lux will result in only one mistaken

identification for every 15 correct identifications.

Kovera said that race also plays a role in encoding memories. She explained, “What we

find is that witnesses are better able to encode faces of people who are of the same race as they

are, and they do more poorly at recognizing faces from other racial or ethnic groups.”

Kovera said that she had reviewed the materials for this case and was able to render a

professional opinion about the reliability of Vandevender’s eyewitness identification of defendant.

She requested the measurements taken by Kagan-Kans to form her opinion. Consistent with

Kagan-Kans measurements, Kovera opined that Vandevender identified defendant from

approximately 21 meters (roughly 70 feet) away in one lux of brightness. At this distance, and

under these lighting conditions, “[i]t would be very difficult, especially at one lux, but also at that

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distance, to perceive any details about the face that would allow one to make reliable

identifications,” Kovera said. This is because “[i]f you have a very short exposure time to a face,

then you’re not going to be able to gather information to encode. And again, with less attention,

you will have a weaker memory encoded.” She added that the current scientific consensus is that

witnesses tend to overestimate the amount of time they spent observing a suspect.

Kovera further opined that, on the basis of the photographs taken by Kagan-Kans from

Vandevender’s porch to the area where Vandevender testified that she observed defendant, “I don’t

think that a witness under these conditions could have seen anything about the perpetrators, or a

target person’s face, that would have allowed them to make an identification. There is—it’s just

too far and the lighting is too low.”

Kovera also testified about problems with the conditions under which Vandevender

identified defendant at the lineup. Kovera testified that Vandevender was never instructed that the

perpetrator may not be in the lineup she was viewing, which was a best practice for reducing the

risk of misidentification. Kovera further testified that

[w]hen conducting—constructing a lineup and choosing fillers, the best practice is

to make sure that the—the fillers all match the description that the witness gave of

the suspect and to not have the suspect to stand out in any way. And the reason

why this is desirable is that for the lineup to serve the test of witness memory, the

witness should not be able to deduce or reason their way into choosing the suspect,

as the suspect is the only one who matches the description that the witness gave.

And so, that’s the best practice, to match the description, and then to ensure that the

suspect does not stand out from among the fillers.

Kovera opined that this best practice, first recognized in 1998, was not followed in the instant case.

This is because, in the instant case, “only the suspect had facial hair and was short, which was part

of the description given by Ms. Vandevender. The other fillers did not match this—these features,

causing the suspect to stand out.” These circumstances, according to Kovera, “could cause the

witness to choose the suspect just, again, through deduction, rather than through a recognition

process and recognition is memory and deduction is not. And so, it could—it could bias the

witness toward choosing the suspect.”

Kovera identified another best practice as blind administration of the lineup. By blind

administration, Kovera meant the officer conducting the lineup is unaware who the suspect is. A

nonblind administration could “cause witnesses to be more likely to identify the suspect than they

would be if they—those lineups were conducted by a blind administrator.” This is because

research shows that

people who just know who the suspect is emit cues, behavioral, nonverbal—either

behavioral or nonverbal cues that communicate information to the witness about

who to–who the suspect is and neither the person delivering those cues, nor the

witness, necessarily knows that they are happening.

Kovera further noted that the amount of time taken by a witness when identifying a suspect

in a lineup plays a role is determining the accuracy of the identification. She elaborated:

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What we know is that there is a tendency for witnesses who are accurate to

make their decisions very quickly. Again, if you think about the process of

recognition, it really is this idea of having a sense of familiarity when you see a

stimulus, and then recognizing it as if you have seen it before. So, if you are taking

a longer period—and that’s a very automatic process and it happens quickly. And

if you are taking a long time to make a decision, it’s more likely you’re engaging

in these kind—kind of deductive reasoning processes, as opposed to these—these

quick recognition processes. So, there has been a—a variety of studies that have

been done on this topic and they—they all suggest that identifications made more

quickly are more likely to be accurate than those that are made more slowly.

Thus, the longer the witness takes to identify a suspect, the less likely the identification is.

Accurate identifications usually occur within the first 36 seconds of the lineup, according to

Kovera.

Kovera also noted that “unconscious transference” plays a role in the accuracy of

identifications. Kovera explained the concept of unconscious transference as “the idea that

sometimes the—we mistakenly think somebody we’ve seen in one context is somebody that we’ve

seen in another.” She said, “The problem is, is when witnesses come in and it’s been a long time

or the encoding wasn’t particularly great and they see this person who was familiar to them, they

misattribute that familiarity to that person being the perpetrator and not their familiarity with them

from a different context.” Thus, [i]f the witness had seen somebody around the neighborhood

before, she could misremember–if that person was, then, in the lineup, she could misremember

that person as being the suspect because of that feeling of familiarity from having seen them

around.”

Dr. Kovera concluded that, in this case, there were poor witnessing conditions given the

lighting and the distance, and it was a cross-race identification. Vandevender’s subsequent

identifications of defendant suggested to Kovera that Vandevender had poor memory of the

identification, which was compounded by poor procedures used during the police lineup. Dr.

Kovera believed that, considering the totality of the conditions, this was one of the worst set of

factors for an identification case that she had reviewed in her career.

During cross-examination, Dr. Kovera said that she did not recall witnesses at defendant’s

trial saying that the area where Vandevender recognized defendant was well lit.6 She also admitted

that she did not know what the lighting conditions on September 4, 1987 were like. Kovera said

that she relied on the measurements of the area provided to her by the Innocence Project instead

of relying on testimony from defendant’s trial because she thought the testimony would be less

reliable. When asked whether her opinion would change if the conditions of Vandevender’s

identification were brighter, Kovera said, “Probably not given the distance, because what’s

6

Besides Vandevender’s testimony that the area was well lit, Carolyn described the area as “almost

like daylight” at night, and Walter and Officer Rogers both said that the area was light enough to

see clearly at night.

-9-

required is both light and distance being within those limits.” She clarified, however, that if it was

brighter, “it might not be the worst” conditions for identification that she had seen.

Kovera was also asked how her opinion would change if Vandevender had a longer

opportunity to observe the suspect “as, perhaps, they walked down the street” in front of

Vandevender’s house. Kovera replied that, while it would be a closer distance, “the exposure time

would not be that great,” and Kovera “would also be concerned . . . about attention.” This was

because, according to Kovera, Vandevender only became suspicious when she saw the man

“dumping material into the river, which he’s doing at the end of the street. So, there would be no

reason for her to be paying attention to his face prior to that.” Kovera later agreed, however, that

if someone in Vandevender’s position was paying attention and the lighting was as Vandevender

described, then they would “have a very good view” of a person walking in front of the home.

Kovera was also questioned further about the length of time a witness takes to make an

identification in a lineup. It was noted that, sometimes, witnesses are asked to wait during a lineup

while each person comes forward and turns to the left and right, and to only make an identification

after viewing the entire lineup in this way. Kovera explained that the 36-second time concerned

whether it was “an automatic recognition process,” not necessarily a firm rule. Kovera said that

she relied more on Vandevender’s statements that she deliberated and took her time when

identifying defendant, and less on the amount of time that Vandevender said it took to make the

identification. But she nevertheless acknowledged that, had Vandevender received instructions to

not make an identification until she had viewed the entire lineup, and had she followed those

instructions, the identification would have taken longer.

C. THE TRIAL COURT’S RULING

In a written opinion, the trial court denied defendant’s motion for relief from judgment

based on newly discovered evidence. The court began by addressing Etchison’s testimony that

Wilson confessed to the crime for which defendant was convicted. The court observed that

Etchison “was quite candid about the fact that she was probably using narcotics” when Wilson

confessed, and that “the alleged confession was made approximately 15 years after the assault in

question.” The court further observed that Wilson’s statement to Etchison did not include any

“specific information or facts that would convince” the court “of its reliability.” The court lastly

noted Etchison’s testimony that she wanted to help defendant’s family. All of this, the court

opined, made Etchison’s testimony lack credibility. The court also questioned whether Etchison’s

testimony would be admissible. In addition, the court noted that Wilson was identified as a

possible co-defendant at the time of trial, so Wilson’s potential involvement in the crime was not

newly discovered evidence. The court concluded that “the testimony of the newly discovered

witness would not create a reasonable probability of a different trial outcome in the instant case.”

Turning to defendant’s motion for relief from judgment based on new scientific evidence,

the court observed that Kagan-Kans measurements were taken in 2019, “30 years after the event

in question.” This led the court to believe that the measurements did not “reliably demonstrate

what the conditions were at the time Vandevender observed the person she identified as”

defendant. The court emphasized the testimony of the witnesses at trial who all said that the area

was well lit, and concluded, “It is pure speculation to assume that the conditions in 2019 reflect

the conditions in 1987.” The court acknowledged the testimony of the public safety officer about

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the position of the street lights, but noted that, while important, “much of the ambient light in 1987

came from lights affixed to neighborhood homes and garages.”

Turning to Kovera’s opinion that the eyewitness identification in this case was unreliable,

the court opined that a problem with Kovera’s opinion was that it was rendered using “observations

of the area in 2019, not at the time of the identification.” The court also noted that Kovera’s

concerns about delay in Vandevender’s identification at the lineup were due to directions that

Vandevender received. The court further observed that Vandevender’s testimony was not the only

evidence of defendant’s guilt; there was also defendant’s admissions to Howard. The court

summarized, “When looked at in its entirety, the admissions of [defendant], combined with the

eye-witness statement and the supporting testimony about the lighting conditions at the time of the

original identification, there is strong evidence that [defendant] was the perpetrator of the assault

in question.” The court contrasted this with Kovera’s testimony, which the court found

“informative, but not necessarily reliable due to the fact that much of her analysis of the initial

identification is based upon the conditions as reported in 2019.”

The court concluded that defendant’s newly discovered evidence, to the extent that it was

relevant and admissible, was “insufficient to make a different result probable on retrial when

weighed against the testimony presented at trial.”

IV. DEFENDANT’S APPEAL

On appeal, defendant contends that the trial court abused its discretion by denying his

motion for relief from judgment based on newly discovered evidence.

A. STANDARD OF REVIEW

This Court reviews a trial court’s decision on a motion for relief from judgment for an

abuse of discretion. People v Swain (On Remand), 288 Mich App 609, 628; 794 NW2d 92 (2010).

A trial court abuses its discretion when its decision falls outside the range of reasonable and

principled outcomes. Id. at 628-629.

A trial court’s factual findings underlying its ruling are reviewed for clear error. MCR

2.613(C). A finding is clearly erroneous if the reviewing court is left with a definite and firm

conviction that a mistake has been made. People v Douglas, 496 Mich 557, 592; 852 NW2d 587

(2014).

B. STANDARD FOR RELIEF FROM JUDGMENT BASED ON NEWLY DISCOVERED

EVIDENCE

Motions for relief from criminal judgments 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 on appeal. Etchison’s testimony about her

conversation with Wilson roughly 15 years after defendant’s trial, as well as the scientific evidence

concerning eyewitness identification, were not available to defendant at the time of his trial or

appeal. It follows that claims based on this evidence could not have been raised on appeal by

defendant because the pertinent events did not occur until well after defendant was convicted.

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MCR 6.508(D)(3) therefore does not bar these newly discovered evidence claims. See People v

Johnson, 502 Mich 541, 565; 918 NW2d 676 (2018).

To obtain a new trial on the basis of newly discovered evidence, as defendant here seeks,

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).]

The dispute in this case largely centers on the fourth required showing—that defendant’s

new evidence would make a different result on retrial probable. As our Supreme Court explained

in Johnson, 502 Mich at 566-567:

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. [Cress, 468 Mich] 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.

The Johnson Court elaborated:

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. [Id. at 568.]

If a trial court concludes that a reasonable juror could have found the witness providing the

new evidence to be credible, the 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 . . . . 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

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confessor’s] testimony (even presuming he would testify at a new trial) would not

make a different result probable retrial.”) (emphasis added). [Johnson, 502 Mich

at 571-572.]

C. WILSON’S CONFESSION

Etchison testified that Wilson told her sometime between 2001 and 2004 that defendant

was not involved in the robbery and assault of Watson. Wilson then admitted to Etchison that he

and another individual, whom he did not identify, broke into Watson’s home, hit her in the head

with a brick, and took money that he used to pay a drug debt.

The trial court found that Etchison’s testimony lacked credibility because she candidly

admitted that she was using drugs at the time Wilson allegedly confessed and because Wilson’s

statement to Etchison, as reported by Etchison, lacked details that someone who committed the

offenses would have known. The court’s reasoning makes no mention of Etchison’s report that

she and Wilson were of clear minds at the time of disclosure. But the court’s credibility

determination suggests that the court found Etchison’s candid admission of controlled substance

use more credible than her claim of a clear mind. Because the trial court heard Etchison’s

testimony and had the opportunity to observe the witness’s demeanor, this credibility assessment

is entitled to deference. See People v McSwain, 259 Mich App 654, 683; 676 NW2d 236 (2003).

While Etchison noted that Wilson reported striking Watson with a brick, and although this

statement is consistent with the evidence at trial, the trial court correctly observed that the alleged

confession was made 14 to 17 years after the crime and after the facts of the crime had become

public knowledge. The reference to the use of the brick thus does not suggest that Wilson disclosed

facts to Etchison that would only have been known to someone involved in the commission of the

conviction offenses.

The trial court also correctly noted that little if anything in the substance of Etchison’s

testimony was new; the record contains evidence that Wilson admitted to participating in the

conviction offenses before defendant’s trial, as well as evidence that Wilson later denied

defendant’s involvement in the offenses before defendant’s trial. Wilson gave a statement to police

wherein he admitted to aiding defendant in the crime, stating:

On . . . Friday, Sept 4, 1987 around 9:30pm Me and Tyrone Kennedy went

up to the corner (600 Blk Austin Ave.) to do some gambling behind the restaurant.

Tyrone got in a game and lost about $50.00 in weed in the game. We left the game

and tyrone [sic] said lets [sic] go down town [sic] and see what we can get into.

We then started walking down town [sic] and he said he knew this old lady that he

could get some money from. We then walked in behind the bank. He asked if I

wanted involved [sic] because he was going to make a[] hit at this old lady’s house.

I told him no because I was already on probation and did not want anymore trouble.

We then went down to Erie St. and then down to the street by the river. I then told

him to go ahead and I would watch out for him. He then left down the street and I

waited on the . . . sidewalk by the bridge. I waited about 20 Minutes [sic] and

thought something was wrong so I went across the street to the alley and went to

the Goodrich Club. I started talking to Mike Root and . . . five minutes later tyrone

[sic] came back and called me outside. He was breathing hard like he had been

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running. He said man I got the money I got about $200.00. I then told him I am

already on probation and I can’t deal with . . . this I then left and went home. I

actually seen Tyrone with about $70.00 or $80.00 but not the $200.00. Tyrone did

mention that he owed a man some money . . . for drugs and had to score.

The record also contains evidence that Wilson provided “physiological responses” during a

December 8, 1987 polygraph examination indicating that Wilson was being deceptive when he

denied participating in the conviction offenses. This same report also suggests that defendant

identified Wilson as his accomplice. Finally, there is evidence that Wilson eventually recanted his

statements incriminating defendant, and said that defendant “did not do it.” Considering all this,

Wilson admitting that he and a third person, whom he did not identify, committed the conviction

offenses—and that defendant did not—would not qualify his confession as new evidence.

For these reasons, we discern no error in the trial court’s assessment of Etchison’s

testimony.

D. EYEWITNESS IDENTIFICATION

Defense witness Kagan-Kans presented demonstrative evidence in the form of

measurements of distance and illumination, as well as photographs. Defense expert Kovera relied

on this demonstrative evidence, primarily the measurements but also the photographs to a lesser

degree, to form an expert opinion regarding the reliability of Vandevender’s eyewitness

identification of defendant.

“Demonstrative evidence is admissible when it aids the fact-finder in reaching a conclusion

on a matter that is material to the case.” People v Bulmer, 256 Mich App 33, 35; 662 NW2d 117

(2003). Demonstrative evidence must be relevant and probative to be admissible. People v Unger,

278 Mich App 210, 247; 749 NW2d 272 (2008). When demonstrative evidence “is offered not in

an effort to recreate an event, but as an aid to illustrate an expert’s testimony regarding issues

related to the event, there need not be an exact replication of the circumstances of the event.”

Bulmer, 256 Mich App at 35. In other words,

[w]hen evidence is offered to show how an event occurred, the focus is upon the

conditions surrounding that event. [Green v General Motors Corp, 104 Mich App

447, 450, 304 NW2d 600 (1981).] Consequently, it is appropriate that those

conditions be faithfully replicated. Id. By contrast, when the evidence is being

offered not to re-create a specific event, but as an aid to illustrate an expert's

testimony concerning issues associated with the event, then there need not be as

exacting a replication of the circumstances of the event. Id. [Lopez v General

Motors Corp, 224 Mich App 618, 628 n 13; 569 NW2d 861 (1997).]

Kovera relied on the measurements taken by Kagan-Kans to determine that Vandevender’s

identification of defendant was made at one lux of light from approximately 21 meters away.

Kovera opined that these circumstances were inhospitable to encoding into memory a reliable

identification of the person seen rifling through Watson’s purse. Kovera’s opinion testimony

establishes that she “focus[ed] upon the conditions surrounding that event” and relied on those

circumstances “to show how an event occurred.” Lopez, 224 Mich App at 628 n 13. Stated another

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way, she relied on the demonstrative evidence to recreate an event—Vandevender’s observation

of the suspect. Id. The trial court determined, however, that Kovera’s reliance on the illumination

measurements taken by Kagan-Kans in 2019 undermined the credibility and usefulness of her

expert testimony.

Kagan-Kans sought to recreate the conditions of Vandevender’s identification of defendant

shortly after 11 p.m. on September 4, 1987. To do this, Kagan-Kans collected measurements of

illumination levels after 8 p.m. on an early October 2019 evening. Circumstances that affect

illumination levels are dynamic; they change over time. For example, a public safety officer

testified that the street light located at the intersection of South Monroe and East Porter had been

changed in 2019 from a sodium vaper light to an LED light, which provided brighter illumination.

The parties also agree that there was trial testimony about a light on a garage on South Monroe

that resembled the lights used by farmers to illuminate the areas about their homes and outbuildings

that was providing some degree of illumination in the area. Kagan-Kans had no memory of any

such light being on when he was measuring illumination and taking photographs. There was

additional testimony that another street light had been moved since September 4, 1987, and

Vandevender testified that there was another bright “farmer type” light on a garage on the other

side of the millrace. There was no testimony explaining how these sources of light were accounted

for, or why they were not accounted for.

Under these circumstances, there was clearly no attempt to faithfully replicate the

illumination present on September 4, 1987, before Kagan-Kans took his illumination

measurements and photographs. The illumination measurements and photographs thus have little

probative value concerning the actual conditions surrounding Vandevender’s identification of

defendant. The trial court did not err by concluding that Kovera’s reliance on this information

rendered her expert opinion regarding the reliability of Vandevender’s identification of defendant

largely unhelpful to the trier of fact.

During cross-examination, Kovera acknowledged that she did not know what the actual

lighting conditions were on September 4, 1987. She nevertheless opined that, even if the

conditions in 1987 were brighter than they were in 2019, her opinion about the reliability of

Vandevender’s identification would not change because Vandevender was just too far away from

the individual to make an accurate identification. But Kovera’s testimony demonstrated that this

conclusion ignored the actual events leading to Vandevender’s identification of defendant on

September 4, 1987.

On the night of September 4, 1987, Vandevender was babysitting a child, whose mother

lived across the street from Vandevender. The mother told Vandevender that she would be home

around 11 p.m. As 11 p.m. neared, Vandevender stepped onto her front porch to watch for the

mother, who would be returning home on foot. While waiting, Vandevender watched a man cross

Erie street and turn down South Monroe towards Vandevender’s house. Vandevender took notice

of the man because he was carrying a large purse under his arm. Vandevender watched as the man

walked past the front of her house to the intersection of South Monroe and East Porter, where he

stopped, rifled through the purse, put something into his pocket, and threw the purse into the nearby

river. Vandevender affirmed that she recognized the man “[a]s he walked past [her],” and said

that she “wasn’t sure if [she] got a good look at him” until he reached the “end of the drive” where

the light was brighter. Vandevender said that she watched the neighborhood frequently because

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she was trying to start a neighborhood watch, and that she recognized the man as someone she had

seen walking around the neighborhood. She told this to the officers that responded to the scene.

One of those officers testified that he knew defendant and had seen him walking around the area

near Vandevender’s home.

Kovera’s expert opinion failed to consider Vandevender’s testimony about her

observations occurring before the individual stopped and rifled through the purse. Kovera

admitted that Vandevender would have been closer when he walked by her house, but Kovera said

that she “would be concerned . . . about attention” because, according to Kovera, Vandevender

only started paying attention to the man walking down the street on September 4, 1987, when she

saw the man “dumping material into the river, which he’s doing at the end of the street.” But

Vandevender testified that she was paying attention to the man while he was walking by her house

because he was carrying a large purse under his arm. Kovera agreed that if someone in

Vandevender’s position was paying attention and the lighting was as Vandevender described, then

they would “have a very good view” of a person walking in front of the home. These

considerations largely undermine Kovera’s expert opinion regarding the reliability of

Vandevender’s identification predicated solely on distance.

For these reasons, we discern no error in the trial court’s finding that Kovera’s testimony

was “not necessarily reliable.”

E. WHETHER NEW EVIDENCE MAKES A DIFFERENT RESULT PROBABLE

Based on the trial court’s proper findings, it did not abuse its discretion by concluding that

defendant’s new evidence would not make a different result probable upon retrial.

The new evidence presented at the evidentiary hearing, as recounted above, consisted of

Etchinson’s testimony about Wilson’s confessions, Kagan-Kans’ demonstrative evidence, and

Kovera’s expert opinion about the reliability of Vandevender’s identification. Consistent with

Justice CAVANAGH’s concurrence, we will also consider the evidence supporting defendant’s

ineffective assistance claim and the alleged Brady violation.

Turning first to defendant’s ineffective assistance claim, the evidence supporting that claim

is redundant to the evidence supporting his claim based on newly discovered evidence. Defendant

argued that his trial and appellate counsel were ineffective for failing to investigate and present

evidence about the distance and lighting conditions surrounding Vandevender’s identification of

defendant. The evidence supporting this claim is Kagan-Kans’ measurements and Kovera’s

testimony about whether Vandevender would have been able to identify defendant under

conditions consistent with Kagan-Kans’ measurements. Therefore, reviewing this claim as part of

looking at what evidence would be admitted at retrial, see Johnson, 502 Mich at 571, there is no

additional evidence to consider.

There is additional evidence that defendant submitted in support of the alleged Brady

violation, however. Defendant offered into evidence a “note” prepared by someone in the

prosecutor’s office, the text of which reads:

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“Hazel [Vandevender] says she has to talk to Jerry. She doesn’t want to

testify until she clears something up about what she can see from her house. You

may wish to talk to her since Jerry’s tied up.

No one provided any context or explanation for this note. Kagan-Kans testified that he asked the

original prosecutor about the note, and the prosecutor said that he did not recall anything about it.

The prosecutor said that “Jerry,” an investigator in the prosecutor’s office, is deceased. The note

was allegedly written by the witness coordinator in the prosecutor’s office, but the defense did not

attempt to reach him. It is thus unclear what prompted the note or what was done as a result of the

note.

Defendant characterizes the content of this note as showing that Vandevender doubted the

reliability of her identification testimony. But the language of the note itself does not call into

question Vandevender’s confidence in her identification. At best, the note reflects Vandevender’s

desire to discuss her upcoming testimony with the prosecutor. What concerns she had, if any, are

not disclosed. The note lacks the specificity necessary to support a reasonable inference that

Vandevender was second-guessing her identification of defendant. Defendant’s conclusion to the

contrary is pure speculation.

To summarize, defendant’s new evidence that would be admitted at retrial would consist

of (1) the note from the prosecutor’s office, (2) Etchison’s testimony about Wilson’s confessions,

and (3) Kovera’s expert opinion about the reliability of Vandevender’s identification based

primarily on Kagan-Kans’ measurements.

The trial court properly considered whether this new evidence would make a different

result probable on retrial by considering this evidence in conjunction with the evidence that was

previously introduced at trial. See Johnson, 502 Mich at 571. The trial court highlighted

defendant’s admissions to Howard, Vandevender’s account of the identification, and “the

supporting testimony about the lighting conditions at the time of the original identification.” To

reiterate, every witness who testified about the lighting conditions at South Monroe and East Porter

on September 4, 1987, said that it was bright and that they could see clearly. Vandevender testified

that there was a light on the corner of Erie and South Monroe, as well as a bright garage light on

South Monroe next to her house. She said that she watched a man carrying a purse under his arm

walk down Erie, turn down South Monroe, then stop at the corner of South Monroe and East Porter

to rifle through the purse. Vandevender continued to watch as the man placed something in his

pocket, put the rest of the contents back in the purse, walked into the middle of South Monroe, and

threw the purse into the millrace. She saw the contents of the purse fall out in the air, and some of

those contents were later recovered. Vandevender affirmed that she recognized the man “[a]s he

walked past [her],” and said that she “wasn’t sure if [she] got a good look at him” until he reached

the intersection of South Monroe and East Porter where the light was brighter. She said that she

recognized the man as someone that she had seen walking around the neighborhood, and she told

this to the officers that responded to the emergency call that night. One of the officers testified

that he knew defendant and that he had seen defendant walking near the area of Vandevender’s

house. Finally, Howard testified that defendant told him that defendant and Wilson went to

Watson’s house to steal from her, that defendant “was drunk and lost control of himself and was

afraid [Watson] would identify him in a line-up,” and that defendant said he took Watson’s purse

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and later “tossed” it. Based on the foregoing, we agree with the trial court that “there is strong

evidence that [defendant] was the perpetrator of the assault in question.”

The prosecutor’s note would be minimally helpful against this evidence because it only

indicated that Vandevender wished to discuss her upcoming testimony with the prosecutor.

Etchison’s testimony would likewise be minimally helpful because, as the trial court found,

Etchison lacked credibility, and little if any of the substance of her testimony was new. Lastly,

Kovera’s expert testimony about the reliability of Vandevender’s identification of defendant would

be largely unhelpful to the trier of fact for the reasons explained above.

On this record, the trial court’s conclusion that the “relevant and admissible evidence is

insufficient to make a different result probable on retrial when weighed against the testimony

presented at trial” was not outside the range of reasonable and principled outcomes. Accordingly,

the trial court did not abuse its discretion by denying defendant’s motion for relief from judgment.

Affirmed.

/s/ Kathleen Jansen

/s/ Colleen A. O’Brien

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