Opposition Brief — Micquel Shemario Thomas, Petitioner v. Michigan

Supreme Court briefNov 21, 2022

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Micquel Thomas v State of Michigan

Docket No. 22-5495

STATE OF MICHIGAN

17th CIRCUIT COURT

AMENDED

INFORMATION

FELONY

Circuit Court ORI: Ml-410025J

Victim or complainant

Defendant's name and address

THE PEOPLE OF THE

STATE OF MICHIGAN

THOMAS, MICQUEL SHEMARIO

880 CAULFIELD AVENUE SW

GRAND RAPIDS, Ml 49503

OFFICER AARON GRAY

Complaining Witness

DETECTIVE DENNIS PITTMAN

Date:

Co-defendant(s)

City/Twp.Nillage

WYOMING

Police agency report no.

WY1828362

CASE NO.:

DISTRICT: 18FY3495

CIRCUIT: 19-02661-FH

ON OR ABOUT 10/07/2018

County in

Michigan

A219067638A

4118 013140 99

I Charge

I Defendant DLN

I Location

KENT

See below

Witnesses

DETECTIVE DENNIS PITTMAN

JULIECOON /

CONSTANCE BALOND IVY-MAZE

Defendant TCN

Defendant CTN

T520603765929

Defendant SID

2422496A

2900 BURTLINGAME AVENUE SW

SERGEANT COREY WALENDZIK

17TH CIR CT CLK AGENT/

OFFICER AARON GRAY

Defendant DOB

12/16/1988

I Maximum Penalty

See below

___,,,..,

OFFICER JACOB TERPSTRA

DARRELL ODEN JR . /

STATE OF MICHIGAN, COUNTY OF KENT

IN THE NAME OF THE PEOPLE OF THE STATE OF MICHIGAN: The prosecuting attorney for this county appears before the court and informs the

court that on the date and at the location described above, the defendant:

COUNT 4- DISMISSED/NOT BOUND OVER

COUNT 1 CONTROLLED SUBSTANCE - DELIVERY/MANUFACTURE - METHAMPHETAMINE

did possess with intent to deliver the controlled substance methamphetamine; contrary to MCL 333.7401 (2)(b)(i). [333.74012B1-A] FELONY: 20 Years

md/or $25,000.00. Unless sentenced to more than 1 year in prison, the court shall impose license sanctions pursuant to MCL 333.7408a.

COUNT 2 WEAPONS - CARRYING CONCEALED

did carry a dangerous weapon, to wit: 40 CAL SMITH AND WESSON HANDGUN, whether concealed or otherwise in a vehicle operated or occupied by

said defendant, to wit: BLACK 2014 CADILLAC XTS; contrary to MCL 750.227. [750.227]

FELONY: 5 Years or $2,500.00; Mandatory forfeiture of weapon or device [See MCL 750.239]

COUNT 3 WEAPONS - FIREARMS - POSSESSION BY FELON

did possess a firearm when ineligible to do so because he or she had been convicted of POSSESS WITH INTENT TO DELIVER CONTROLLED

SUBSTANCE LESS THAN 50 GRAMS, a felony punishable by imprisonment for 4 or more years, and the requirements for regaining eligibility had not

been met; contrary to MCL 750.224f. [750.224F] FELONY: 5 Years and/or $5,000.00; Mandatory forfeiture of weapon or device [See MCL 750.239]

2ND OR SUBSEQUENT OFFENSE NOTICE

Although the People are not required to notify the court or defendant of prior convictions that may result in an enhanced sentence, we are voluntarily

informing the court that according to our current information, the defendant was previously convicted of violating MCL 333. 74032D, POSSESSION OF

MARIJUANA, on or about 5/14/10, and therefore, upon conviction, may be subject to an enhanced sentence under MCL 333.7413(1). [333.74132-A]

FELONY: twice the maximum imprisonment and/or twice the maximum fine for the current offense. Pursuant to People v Lowe, MSC No. 137284

(8/13/09) the court can also double the guidelines minimum sentence. Unless sentenced to more than 1 year in prison, the court shall impose license

sanctions pursuant to MCL 333.7408a.

HABITUAL OFFENDER - FOURTH OFFENSE NOTICE

Take notice that the defendant was previously convicted of three or more felonies or attempts to commit felonies in that on or about 2/25/13, he or

she was convicted of the offense of ARMED ROBBERY in violation of MCL 750.529; in the CIRCUIT Court for KENT COUNTY, State of MICHIGAN;

And on or about 1/31/07, he or she was convicted of the offense of CONSPIRE DELIVER/MANUFACTURE COCAINE LESS THAN 50 GRAMS in

violation of MCL 333.74012A4[C]; in the CIRCUIT Court for KENT COUNTY, State of MICHIGAN;

And on or about 1/31/07, he or she was convicted of the offense of DELIVER/MANUFACTURE COCAINE LESS THAN 50 GRAMS in violation of

MCL 333.74012A4; in the CIRCUIT Court for KENT COUNTY, State of MICHIGAN;

Therefore, defendant is subject to the penalties provided by MCL 769.12. [769.12]

PENALTY:

Life if primary offense has penalty of 5 Years or more; 15 Years or less if primary offense has penalty under 5 Years. The maximum

. penalty cannot be less than the maximum term for a first conviction.

and against the peace and dignity of the State of Michigan.

Prosecuting Attorney

By:

04/03/2019

Date

Appendix Page -1-

Original - Court; 1st copy- Correctiom:· s9d copy- Corrections (for return);

Micquel3rd

Thomas

v State

of Michigan

copy - State

Police

CJIC; 4th coi: {

'endant; 5th copy - Prosecutor

Docket

22-5495

JUDGMENT

OF No.

SENTENCE

·._

CASE NO.

STATE OF MICHIGAN

17TH JUDICIAL CIRCUIT

COMMITMENT TO

DEPARTMENT OF CORRECTIONS

KENT COUNTY

19-02661-FH

Court address:

Kent County Courthouse 180 Ottawa NW, Grand Rapids, Ml 49503

ORI

Ml -410025J

Police Report No.

Court telephone number

616-632-5480

Defendant name, address, and telephone no.

THE PEOPLE OF THE STATE OF MICHIGAN

MICQUEL SHEMARIO THOMAS

CTN/TCN

SID

4118 013140 99

2422496A

Defendant's attorney name

Bar no.

PUBLIC DEFENDER

Bar no.

Prosecuting attorney's name

P53752

Christopher R. Becker

1. The defendant was found guilty on ----=0=5'-'/1-=-5=/2=0_,_19=---- of the crime(s) stated below.

Date

DISMISSED

CONVICTED BY

CRIME

BY*

Count Plea* Court Jury

I;12/16/1988

DOB

CHARGE CODE(S)

MCL citation/PACC Code

CONT SUB-DEUMANF-METHAMPHETAMINE

333.74012B1-A

HABITUAL OFFENDER 4TH OFFENSE NOTICE.

WEAPONS - CARRYING CONCEALED

750.227

HABITUAL OFFENDER 4TH OFFENSE NOTICE

WEAPONS - FIREARMS - POSSESSION BY FELON

750.224F

,·•·

!'"•.-:>

HABITUAL OFFENDER 4TH OFFENSE NOTICE.

,:::--::.:,

,,,.0

CONT SUB-2ND OR SUB OFF NOTICE-DOUBLE

333.7413~~A...

t__

PENALTY-FELONY

. ·••-"-~

*For Plea. insert G for guilty plea,. " NC" for nolo contend ere, or "Ml for guilty but mentally Iii. For d1sm1ssal. insert D for d1sm1ssed by court or "NP " for d1,mtssed

by .

prosecutor/plaintiff

C~11

2. The conviction is reportable to the Secretary of State under MCL 257.625(21)(b). ----~T~5_2~06_0~3~7~6_59~2~9_ _ __

3. HIV testing and sex offender registration is completed.

Defendant's driver's license n_Uf11ber

[gl 4. The defendant has been fingerprinted according to MCL 28.243.

D 5. A DNA sample is already on file with the Michigan State Police from a previous case. No assessment is required.

IT IS ORDERED:

6. Probation is revoked

7. Participating in a special alternative incarceration unit is D prohibited. D permitted.

8. De fen d ant 1s sent ence d t o cus t odIY of th e M.1ch.1gan D epa rt men t of Correcfions. Th.1s sen ence s haII b e execute d.1mmed.,ate1y.

MINIMUM

MAXIMUM

DATE SENTENCE

JAIL CREDIT

SENTENCE

Count

Years Mos.

BEGINS

Mos. Days

DATE

Years Mos. Days

OTHER INFORMATION

06/20/2019

06-20-2019

06/20/2019

06-20-2019

06/13/2019

06-20-2019

REC'D & Fn -er.

'·,

,..._

,,.

,JU/\J i U LU 1.9

HON. AIARK A TRU

1710 f'TDrr r· · _

D 9. Sentence(s) to be served consecutively to (1fth1s item ,snot checked, the sentence 1s concurrent.)

D each other. D case numbers _ _ _ _ _ _ _ _ _ _ _ _ _ __

10. Defendant shall a :

State Minimum

Crime Victim

$204.00

$130.00

Restitution

DNA Assess.

Court Costs

Attorne Fees

$1,000.00

$.00

·---~-, J

Fine

SOCK

-UUK.T

Other Costs

Total

The due date for payment is Date of Sentence. Fine, costs, and fees not paid within 56 days of the due date are subject to a 20% late penalty on

the amount owed.

D 11. The defendant is subject to lifetime monitoring pursuant to MCL 750.520n.

D 12. Courtrecommendation:

"'--~

06-20-2019

Date

~Judge HONORABLE MARK A TRUSOCK

Bar. no. P38156

I certify that this is a correct and complete abstract from the original court records. The sheriff shall, without nee

Michigan Department of Corrections at a place designated by the1 department. ~ : ~_-?

(SEAL)

v ~'/)

Jla-c--c3:

Deputy court

~--c--...__,,

delay, deliver defendant to the

~:7-Z~~

MCL 765.15(2); MCL 769.1k; MCL 769.16a; MCL 775.22, MCL 780.766

MCR 6.427

CC 219b (3/16) JUDGMENT OF SENTENCE, COMMITMENT TO DEPARTMENT OF CORRECTIONS

Appendix Page -2-

Micquel Thomas v State of Michigan

Docket No. 22-5495

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 13, 2021

Plaintiff-Appellee,

No. 349711

Kent Circuit Court

LC No. 19-002661-FH

MICQUEL SHEMARIO THOMAS,

Defendant-Appellant.

Before: MURRAY, C.J., and FORT HOOD and GLEICHER, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of possession with intent to deliver

methamphetamine, MCL 333.7401(2)(b)(i);1 carrying a concealed weapon (CCW), MCL 750.227;

and possession of a firearm by a felon (felon-in-possession), MCL 750.224f. The trial court

sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent sentences

of 20 to 60 years’ imprisonment for each offense. We affirm.

I. FACTUAL BACKGROUND

This case arises out of a traffic stop that resulted in defendant fleeing from the stopped car

while in possession of a firearm and methamphetamine. Darrell Oden, an acquaintance of

defendant, was the driver of the vehicle that was stopped. Oden testified that he picked up

defendant with the intention of purchasing marijuana from him, and thereafter, they were pulled

over by Wyoming Police Officer Aaron Gray. Oden testified that Oden was driving, Oden’s friend

was in the passenger seat, and defendant was sitting in the backseat. Before pulling over, Oden

thought defendant encouraged him to keep driving, but he could not completely recall. After Oden

stopped in a grocery store parking lot, defendant jumped out of the car and ran. Oden testified

that, before defendant jumped out of the car, “he moved a little bit,” like “he was wiggling” around.

Oden stated that he turned around after defendant fled from the car and saw the butt of a gun

This conviction carried a double penalty enhancement for a controlled substance second or

subsequent offense, MCL 333.7413.

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Appendix Page -3-

Micquel Thomas v State of Michigan

Docket No. 22-5495

underneath the passenger seat on the floorboard. Oden denied that it was his gun or that he had

ever seen the gun before.

Relevant to this appeal are statements Oden made to Officer Gray that were introduced

during Officer Gray’s testimony:

Q. Okay. Did you ask [Oden] whether the defendant had stashed a gun?

A. Yes.

Q. And what did he tell you? What did Mr. Oden tell you?

A. Initially he told me that he was unsure, but he knew that [defendant] had

stashed something under there and did believe it was a gun.

Q. [Oden] did believe it was a gun, correct?

A. Yes.

Q. Did you ask him whether it appeared to him [defendant] had concealed

or fled with anything else?

A. Yes, he said [defendant] was also stashing something but [Oden] didn’t

see it, the stash was on [defendant’s] person though.

Q. Before he fled.

A. Correct.

Q. All right. And so ultimately does [Oden] admit to you, let’s say in the

second interview, that the defendant had, in fact, stashed a gun under that seat?

A. Yes.

Q. And ultimately admits to you that he saw him conceal something, not

sure what it was, before [defendant] fled. Correct?

A. Yes.

Q. Did you ask [Oden] whether the—did he indicate to you whether the

defendant had asked him to keep driving or stop?

A. Yes.

Q. And what did he tell you about that?

A. [Oden] told me that the defendant told him to continue driving, in which

[Oden] responded that he didn’t want to flee, so he was going to pull over.

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Appendix Page -4-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Officer Gray further testified that he noticed Oden’s backseat passenger, later identified as

defendant, “moving around quite a bit” while Officer Gray ran the license plate on the vehicle.

While Officer Gray ran the license plate, defendant opened the rear passenger door, exited the car,

and began running.2 According to Officer Gray, when defendant exited the car, “he was holding

his waist area, whether he was holding his pants up or trying to hold something in, I wasn’t sure.”

Officer Gray further testified that defendant wore dark colored pants and a “blue puffy jacket.”

Several officers testified that methamphetamine was discovered by police in the direction

that defendant fled. Officer Gray testified the drugs were found inside an area enclosed with a

barbed-wire fence. Near the drugs, the barbed-wire portion of the fence was found broken and

hanging toward the ground, and a piece of blue cloth was found attached to the wire. Officer Gray

testified that the cloth found on the fence matched the color of the jacket that defendant wore at

the time he fled Oden’s car. Officer Gray also testified that the damage to the fence was consistent,

from his experience, with damage that would occur when someone jumped a fence. Sergeant

Corey Walendzik further testified that the ground in the area was wet because it had been raining

that day, and that the bag holding the methamphetamine was dry, as if it had been recently

deposited.

II. OTHER-ACTS EVIDENCE

Defendant first argues that the trial court abused its discretion by admitting other-acts

evidence. Specifically, defendant challenges the testimony of an undercover police officer who

testified that he was involved in two, unrelated heroin transactions with defendant. The undercover

officer testified that, during the first transaction, the officer purchased $140 worth of heroin, or

just under a half gram. During the second transaction, the officer purchased $400 worth of heroin,

or 1 or 1.5 grams. The prosecutor sought admission of the undercover officer’s testimony in order

to evidence defendant’s intent in the related charge of possession with intent to deliver

methamphetamine in the instant case.

We review claims of evidentiary error for an abuse of discretion. See People v Bergman,

312 Mich App 471, 482; 879 NW2d 278 (2015). “An abuse of discretion occurs when the court

chooses an outcome that falls outside the range of reasonable and principled outcomes.” Id. at 483

(quotation marks and citation omitted). “If the court’s evidentiary error is nonconstitutional and

preserved, then it is presumed not to be a ground for reversal unless it affirmatively appears that,

more probably than not, it was outcome determinative—i.e., that it undermined the reliability of

the verdict.” People v Douglas, 496 Mich 557, 565-566; 852 NW2d 587 (2014) (quotation marks

and citation omitted).

In order for evidence to be admissible under MRE 404(b)(1), “(1) the evidence must be

offered for a proper purpose; (2) the evidence must be relevant; and (3) the probative value of the

Officer Gray identified defendant as the individual that fled from the car on the basis that, during

the encounter, defendant turned around to see where Officer Gray was located, and Officer Gray

saw defendant’s face.

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Appendix Page -5-

Micquel Thomas v State of Michigan

Docket No. 22-5495

evidence must not be substantially outweighed by [the danger of] unfair prejudice.” People v

Danto, 294 Mich App 596, 599; 822 NW2d 600 (2011) (quotation marks and citation omitted;

alteration in original). This Court has described MRE 404(b)(1) as an inclusionary rule “because

it provides a nonexhaustive list of reasons to properly admit evidence that may nonetheless also

give rise to an inference about the defendant’s character.” Id. (quotation marks and citations

omitted). “ ‘Evidence is inadmissible under this rule only if it is relevant solely to the defendant’s

character or criminal propensity.’ ” Id., quoting People v Mardlin, 487 Mich 609, 615; 790 NW2d

607 (2010). Furthermore:

All relevant evidence is prejudicial; only unfairly prejudicial evidence may be

excluded. People v McGhee, 268 Mich App 600, 613-614; 709 NW2d 595 (2005).

“Unfair prejudice exists when there is a tendency that evidence with little probative

value will be given too much weight by the jury.” Id. at 614. Unfair prejudice may

arise where considerations extraneous to the merits of the case, such as jury bias,

sympathy, anger, or shock, are injected. Id. [Danto, 294 Mich App at 600.]

In this case, the other-acts evidence was offered for the proper purpose of establishing

defendant’s intent to deliver the methamphetamine in his possession. “Possession with intent to

deliver can be established by circumstantial evidence and reasonable inferences arising from that

evidence, just as it can be established by direct evidence.” Id. at 526. “Evidence of intent is

relevant because it negates the reasonable assumption that the incident was an accident.” McGhee,

268 Mich App at 611. Here, defendant’s previous possession and delivery of heroin negated the

assumption that defendant was simply possessing the methamphetamine for personal use.

The evidence was also relevant. Logical relevance is determined by MRE 401 and MRE

402. “Other-acts evidence is logically relevant if two components are present: materiality and

probative value.” People v Denson, 500 Mich 385, 401; 902 NW2d 306, 316 (2017). “Materiality

is the requirement that the other-acts evidence be related to any fact that is of consequence to the

action.” Id. (quotation marks and citation omitted). Evidence has probative value when it “tends

to make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Id. at 401-402 (quotation marks

and citation omitted). The demonstration is easily satisfied because “any tendency is sufficient

probative force.” Id. (quotation marks and citation omitted). Here, evidence of defendant’s prior

possessions and deliveries of heroin was probative of defendant’s intent in the charge for

possession with intent to deliver methamphetamine because it made it more probable than not that

defendant intended to deliver the methamphetamine as opposed to using it himself, and it was of

the same general category of possession with intent to deliver a controlled substance. See People

v VanderVliet, 444 Mich 52, 79-80; 508 NW2d 114 (1993) (“When other acts are offered to show

intent, logical relevance dictates only that the charged crime and the proffered other acts are of the

same general category.”).

Finally, the probative value of the proffered other-acts evidence was not substantially

outweighed by the danger of unfair prejudice. See MRE 403. Although all relevant evidence is

prejudicial, only unfairly prejudicial evidence may be excluded. Danto, 294 Mich App at 600. As

noted above, evidence of defendant’s prior-bad acts of possessing and delivering heroin on two

separate occasions was highly relevant to negate the assumption that defendant merely possessed

the methamphetamine for personal use. Because the jury was required to determine defendant’s

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Appendix Page -6-

Micquel Thomas v State of Michigan

Docket No. 22-5495

intent, the probative value of the other-acts evidence was not substantially outweighed by a danger

of unfair prejudice. Therefore, the trial court’s decision to admit the other-acts evidence did not

fall outside the range of reasonable and principled outcomes. See Bergman, 312 Mich App at 482.

Defendant relies on People v Crawford, 458 Mich 376; 582 NW2d 785 (1998), for the

contention that there was an insufficient factual nexus between the other-acts evidence and the

charged offenses. In Crawford, the other-acts evidence was of a 1988 offense in which an officer

testified that defendant sold him $5,000 worth of cocaine. Id. at 396. The offense for which the

defendant stood trial did not involve an act of selling. Id. The defendant in Crawford “was stopped

for a routine traffic violation, which ultimately led to the discovery of cocaine hidden in the

dashboard of his car.” Id. The distinguishing fact in Crawford was that there “was evidence at

trial that the defendant had purchased the car just five to ten days before his arrest, and that the car

had been in the possession of others during that time, lending support to the defense theory that

the prior owner or someone else left the drugs in the car, unwittingly or in an attempt to frame the

defendant.” Id. In this case, the other-acts evidence was admitted to demonstrate that defendant

had previously possessed and delivered another controlled substance. Unlike Crawford, the

evidence was not admitted to demonstrate that defendant had “been around drugs in the past and,

thus, [was] the kind of person who would knowingly possess and intend to deliver large amounts

of [methamphetamine].” Id. at 397.

III. INADMISSIBLE HEARSAY

Next, defendant argues that the trial court erred when it admitted inadmissible hearsay.

Defendant specifically takes issue with the testimony of Officer Gray, who testified to out-of-court

statements made to him by Oden. According to Officer Gray, Oden told him that Oden believed

defendant may have hidden a gun in the back of the vehicle, and that defendant had concealed

something else on his person. The statements were, largely, complimentary to Oden’s own

testimony that he witnessed the gun in the vehicle after defendant fled, although Oden testified he

was unsure as to whether defendant had anything else stashed on his person. Defendant notes that

it is problematic that Officer Gray’s testimony was offered in order to impeach Oden, but yet

largely corroborated Oden’s testimony. We agree that some of these statements were improperly

admitted as impeachment evidence, but also agree with the prosecution that they could have been

properly admitted as prior consistent statements.3

MRE 801 defines hearsay as “a statement, other than the one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Generally, hearsay is inadmissible. MRE 802. However, hearsay is admissible if one of the

enumerated exceptions apply under MRE 803, or the statements are excluded as hearsay under

MRE 801(d). Under certain circumstances, prior consistent statements of a witness may be

admitted. See MRE 801(d)(1)(B); People v Jones, 240 Mich App 704; 613 NW2d 411 (2000).

MRE 801(d)(1)(B) provides that a statement is not hearsay if

As previously noted, we review claims of evidentiary error for an abuse of discretion. See

Bergman, 312 Mich App at 482.

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Appendix Page -7-

Micquel Thomas v State of Michigan

Docket No. 22-5495

[t]he declarant testifies at trial or hearing and is subject to cross-examination

concerning the statement, and the statement is . . . consistent with the declarant’s

testimony and is offered to rebut an express or implied charge against the declarant

of recent fabrication or improper influence or motive.

The party offering the prior consistent statement must establish four elements:

(1) the declarant must testify at trial and be subject to cross-examination;

(2) there must be an express or implied charge of recent fabrication or improper

influence or motive of the declarant’s testimony; (3) the proponent must offer a

prior consistent statement that is consistent with the declarant’s challenged in-court

testimony and, (4) the prior consistent statement must be made prior to the time that

the supposed motive to falsify arose. [Jones, 240 Mich App at 707 (quotation

marks omitted).]

Again, we agree with both defendant and the prosecution4 that the hearsay statements made

about the gun and defendant’s encouragement not to stop for the police should not have been

admitted as impeachment evidence. The statements were largely corroborative and not

contradictory. However, to that end, noting that the statements were largely consistent with his

testimony, Oden was subject to cross-examination, and there was a clear implication that Oden’s

testimony may have been improperly influenced after making the prior consistent statements. The

prosecution elicited testimony at trial that defendant called Oden and asked Oden not to appear in

court, and this is particularly notable in light of the fact that, before Oden admitted the same,

Oden’s testimony up to that point led him to be warned outside the presence of the jury about the

penalties of perjury. Although the prosecution did not explicitly seek to introduce the statements

on the basis of improper influence or motive, our review of the record indicates that the concern

certainly existed and the statements were proper in order to dispense of the same. 5

Moreover, even assuming the statements would have been improper as both impeachment

evidence and prior consistent statements, we cannot conclude on the basis of the available record

that they were outcome-determinative. In addition to Officer Gray’s testimony, there was also

evidence that defendant’s DNA was on the gun. There was testimony that the quantity of

defendant’s DNA found on the gun would be consistent with him holding the gun and not simply

pushing the gun underneath the seat. There was circumstantial evidence establishing that

defendant was a mid-level drug dealer and that dealers of that type typically carry firearms to

protect themselves and their drugs. This made it more likely that defendant stashed the gun in

The prosecution agreed in its brief on appeal that the statements concerning the gun should not

have been admitted as impeachment evidence. The prosecution contends that they were admissible

nonetheless as prior consistent statements.

As an aside, we note Oden’s testimony at trial that he did not know whether defendant had

anything stashed on him, and that he did not see anything. Officer Gray recounted that Oden told

him that defendant “was also stashing something but [Oden] didn’t see it, the stash was on

[defendant’s] person though.” This contradictory statement was properly introduced as

impeachment evidence. See MRE 613(b).

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Appendix Page -8-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Oden’s car because defendant knew that he had previous felonies and should not be in possession

of a firearm. There was also evidence of defendant’s fleeing the car when Oden pulled over,

evidence of defendant’s blue, puffy jacket linking him to the methamphetamine found near the

scene, and Officer Gray’s and Oden’s testimonies identifying defendant as the individual who fled

the car. Accordingly, the admission of Officer Gray’s testimony did not undermine the reliability

of the verdict. See Douglas, 496 Mich at 565-566.

IV. LIMITING INSTRUCTION

Defendant next contends that the trial court should have given limiting instructions to cure

the defects caused by introduction of all of the evidence outlined above. Having concluded that

the evidence was properly admitted, a limiting instruction was not necessary. Moreover, we note

that defendant never requested a limiting instruction below. "A trial court, upon request, may

provide a limiting instruction for the proper use of MRE 404(b) evidence.” People v Rice (On

Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999). However, “in the absence of a request

or objection, the appellate courts have declined to impose a duty on trial courts to give sua sponte

limiting instructions . . . even if such an instruction should have been given.” Id. In this case,

defense counsel did not request a limiting instruction related to admission of the evidence below.

V. ADJOURNMENT AND BRADY VIOLATION

Defendant also argues that the trial court should have adjourned the trial on the basis of

DNA evidence that became available one day before trial, and that the prosecutor committed a

Brady6 violation. “This Court reviews the grant or denial of an adjournment for an abuse of

discretion. In addition, a defendant must show prejudice as a result of the trial court’s abuse of

discretion.” People v Snider, 239 Mich App 393, 421; 608 NW2d 502 (2000) (citation omitted).

With respect to alleged Brady violations, this Court reviews de novo a defendant’s constitutional

due-process claim. See People v Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007).

Unpreserved claims are reviewed for plain error affecting substantial rights. See Carines, 460

Mich at 763.

With respect to the adjournment, defendant’s argument is premised on the fact that the

prosecutor became aware of DNA evidence linking defendant to the gun found in Oden’s car one

day before trial, and defendant was therefore unable to prepare a proper defense. “[T]he

Constitution guarantees criminal defendants a meaningful opportunity to present a complete

defense.” People v King, 297 Mich App 465, 473; 824 NW2d 258 (2012) (quotation marks and

citations omitted). The record does not support defendant’s position that the trial court violated

his right to present a defense by failing to grant an adjournment. As the prosecutor and trial court

noted, defense counsel became aware in November 2018 that untested DNA evidence existed.

Notably, defense counsel never requested an adjournment to wait for the DNA test results. More

importantly, defendant has not established what defense, if any, he would have provided the jury

to rebut the DNA evidence. See People v Burwick, 450 Mich 281, 295; 537 NW2d 813 (1995)

(discussing how the defendant could not establish prejudice because there was “no colorable claim

that defendant would have proceeded any differently had advance notice been given”). With that

Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).

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Appendix Page -9-

Micquel Thomas v State of Michigan

Docket No. 22-5495

in mind, we discern no abuse of discretion on the trial court’s part, nor prejudice resulting from

the failure to adjourn.

We further conclude that no Brady violation occurred. In order 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) viewed in its totality, is material.” People v Chenault, 495 Mich

142, 155; 845 NW2d 731 (2014). Defendant’s argument as to this issue is without merit because

the DNA evidence was never suppressed. Rather, both the prosecutor and defense counsel were

aware that DNA test results were pending. The record demonstrates that the prosecutor became

aware of the results one day before trial, and reached out to defense counsel thereafter. 7 Therefore,

the DNA evidence was never suppressed, and defendant’s claim that a Brady violation occurred

must fail.8

VI. CUMULATIVE EFFECT OF ERRORS

Finally, defendant argues that the cumulative effect of the errors requires reversal.

Generally, we review the issue of cumulative effect “to determine if the combination of alleged

errors denied defendant a fair trial.” People v Knapp, 244 Mich App 361, 387; 624 NW2d 227

(2001).

The cumulative effect of several minor errors may warrant reversal even

when individual errors in the case would not warrant reversal. In order to reverse

on the grounds of cumulative error, the errors at issue must be of consequence. In

other words, the effect of the errors must have been seriously prejudicial in order

to warrant a finding that defendant was denied a fair trial. [Knapp, 244 Mich App

at 388.]

As noted above, we discern no evidentiary errors requiring reversal in this case, nor, to the extent

that any errors occurred, do we think them outcome-determinative, see Douglas, 496 Mich at 565566, or so serious that they can be said to have denied defendant a fair trial, see Knapp, 244 Mich

App at 388.

We note defendant’s assertion that the prosecution was aware that there were multiple DNA

contributors on the gun “for at least several months prior to the disclosure of the results.” However,

there is no evidence in the record demonstrating this knowledge.

We note that defendant moved for a remand with this Court on the basis of additional video

evidence that he claimed was concealed by the prosecution. We denied the motion because it is

clear that defendant both (1) was provided access to the video evidence, and (2) failed to object to

entry of the same at trial.

-8-

Appendix Page -10-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Affirmed.

/s/ Christopher M. Murray

/s/ Karen M. Fort Hood

/s/ Elizabeth L. Gleicher

-9-

Appendix Page -11-

Micquel Thomas v State of Michigan

Docket No. 22-5495

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN

Appellee,

Court of Appeals No. 349711

MICQUEL SHEMARIO THOMAS,

Appellant.

--------------JAMES BENISON (P54429)

Chief Appellant Attorney, Kent County Prosecutor

Attorney for Appellee, People of State of M.ichigan

82 lonia NW, Ste 450

Grand Rapids, MI 49503 (616) 632-6710

LOUISE E. JOHNSON (P6 l 338)

Attorney for Appellant, Marquis Shemario Thomas

146 Monroe Center NW, Ste 1110

Grand Rapids, MI 49503 (61 f)) 634-5618

MOTION FOR REMAND and REQUEST THAT THE COURT HOLD ORAL

AGRUMENTS CURRENTLY SCHEDULED ?OR MAY 4, 2020, IN

ABEYANCE UNTIL A HEARING ON THE ISSUE OF ACTIVE

POLICE/PROSECUTOR CONCEALMENT IN VIOLATION OF MR.

THOMAS' DUE PROCESS RIGHTS

Now comes Defendant/Appellant, Micquel She1nario Thomas, and

pursuant to MCR 7.21 l(C)(l), requests that this Court remand the case to

the lower court for development of non-record facts and for further

.......

Z.·WPDOCS\MJMS\20,18F l6aamotionrernand

Appendix Page -12-

Micquel Thomas v State of Michigan

Docket No. 22-5495

proceedings. In support of this ·motion, Appellant Counsel makes the

following proffer of facts as to what facts need to be developed on

remand:

After timely appeal and response was filed by the parties, this

case was scheduled for oral argument in the Court of Appeals

on December 4, 2020.

Prior to that date, appellant counsel became aware of Mr.

Thomas' desire for remand back to the Circuit Court to

develop various claims of ineffective assistance of trial

counsel and prosecutorial misconduct.

Counsel requested and was granted an adjournment of oral

argument unti1 these issues could be investigated.

Counsel filed a Motion for Remand based upon ineffective

assistance of counsel.

+::,.

.,,..,,

The Honorable Court denied the Motion.

......

Z:·WPDOCS\MlMS:2048F I 6aammionrernand

Appendix Page -13-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Thereafter, Defense counsel received, via US mail, an

envelope containing a single disk from a private investigator

retained by Mr. Thomas.

After numerous attempts, defense counsel was able to open

the material contained on the disk.

The disk contained the last approximately five (5)

additional/material minutes of the original footage depicting

Officer Gray during the initial stop of the vehicle for which

Mr. Thomas was alleged to have exited. The additional

footage on this disk was not included in the discovery

materials provided by the prosecution.

Oflicer Gray and another unknown officer can be heard and

partially seen discussing the fact that Officer Gray showed

;.,:,

()

tTl

'<.

3;:

()

the driver of the automobile, who was placed during the stop

in the back seat of his squad car, his in-car computer screen

·------,...

Z:\WPDOCS\MIMS\2048fl6aamot1onremand

Appendix Page -14-

Micquel Thomas v State of Michigan

Docket No. 22-5495

for which he had pulled up the name and photo of Micquel

Thomas.

I 0.

The officers continue to discuss that Officer Gray is not to

include the fact that he showed the driver his computer

screen in his report.

11.

This omitted evidence goes to the issue of identity, motive,

and lack of personal knowledge, and clearly depicts "active

concealment" on the part of the Prosecution/Police as

recently explained by our Supren1e Court in People v Brown,

COA No. 158663, decided December 3, 2020.

12.

Further, in Brady v Maryland, 373 US 83; 83; S Ct 1194; 10

L Ed 2d 215 ( 1963), the United States Supreme Court held

that to secure a fair trial to the accused: "[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

7.. '-WPDOCS\M!MS\2048f 16aamotionrcmand

Appendix Page -15-

Micquel Thomas v State of Michigan

Docket No. 22-5495

or bad faith of the prosecution." 373 US 83, 87. Napue v

Illinois, 360 US 264, 269; 79 S Ct 1173; 3 L Ed 2d 1217

(1959), stated that: "The principle * * * does not cease to

apply merely because the false testimony goes only to the

credibility of the witness. The jury's estimate of the

truthfulness and reliability of a given witness may well be

determinative of guilt or innocence* * *. Failure to do so

was a violation of Defendant's due process rights and denied

him of a fair trial.

WHEREFORE, Defendant request the following:

a. Stay of the Oral Argument in this matter;

b. Production of an "unredacted video of the police stop as

recorded by Officer Gray.

c. Remand to the Circuit Court for an evidentiary hearing

about the active concealment as provided for in People v

Z:: WPDO('S:MfMS,2048F Il>amnotionremand

Appendix Page -16-

.....

Micquel Thomas v State of Michigan

Docket No. 22-5495

d. Brown and pursuant to Brady and its prodigy.

All of the matters recited in this motion are true to the best of my

information and belief as gleamed rqm the record.

Date: April 12, 2021

.......

(.,.)

Z ·WP!X)CS\MlMS\2048FI 6aamotionrcmand

Appendix Page -17-

.......

Micquel Thomas v State of Michigan

Docket No. 22-5495

STATE OF MICHIGAN

IN THE COURT OF APPEALS

PEOPLE OF THE STATE

OF MICHIGAN,

Plaintiff-Appellee,

Court of Appeals

No. 349711

Kent County Circuit Court

No. 19-002661-FH

MICQUEL SHEMARIO THOMAS,

Defendant-Appellant.

- - - - - - - - - - - - -I

ANSWER IN OPPOSITION TO MOTION TO REMAND

NOW COMES Plaintiff-Appellee, the People of the State of Michigan, through the

Prosecuting Attorney for the County of Kent, and in opposition to Defendant-Appellant's Motion to

Remand, shows this Honorable Court as follows:

Defendant was charged as a fourth-offense habitual offender, MCL 769.12, with

possession of methamphetamine with intent to deliver, MCL 333.7401(2)(b)(i), fourth-offense,

MCL 333.7413(1); carrying a concealed weapon, MCL 750.227; and possession of a firearm by a

felon, MCL 750.224f.

He was convicted following a jury trial and was sentenced to three,

concurrent terms of 20 to 60 years' imprisonment (S Tr, 7). Defendant appealed to this Court,

raising various issues, then requested that the case be adjourned to allow for the filing of a

supplemental brief. Defendant filed a motion to remand for a Ginther hearing, which was denied.

See People v Thomas, unpublished order of the Court of Appeals, issued March 2, 2021 (Docket

No. 349771). He now files another motion to remand, this time alleging a violation of Brady v

Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963).

Appendix Page -18-

;:o

Micquel Thomas v State of Michigan

Docket No. 22-5495

In responding to this motion to remand, this writer opened and watched the in-car video

admitted at trial as Exhibit 15. The CD labeled "Exhibit 15" includes two separate video files

from in-car video (Part 1 and Part 2), as well as a third file that consists of Parts 1 and 2 playing

consecutively. 1 The portion of the video defen_dant now challenges can be seen and heard in the

Part 2 video, beginning at around 00:47:15.

Specifically, one police officer can be heard asking another officer, "Does that work, I got

the guy in the back and he IDed him [inaudible wind sound] and he's like, yeah, that's the guy"

(Exhibit 15, 00:47: 18-28). The officer explained that the man in the back of the car identified

defendant by name before the officer showed him anything on his computer, and he asked the other

officer about whether the photo identification should be included in report (Exhibit 15, 00:47:2840). The other officer can be heard responding, "we're not supposed to show them anything on our

computers and have them do a photo ID" (Exhibit 15, 00:47:28-40). The first officer responded

and confirmed that he would not put the witness's photo identification in the report and would

instead include only the fact that the witness identified defendant by name (Exhibit 15, 00:47:4450). The other officer also instructed that it would be appropriate for the first officer to include

his own identification of defendant in the report based on the photo he saw on the computer and

his own observations (Exhibit 15, 00:4 7:45-48:05). After that statement, the audio began to sound

::r

'·<

1 Part 1 begins at 23 :58: 18 and ends at 00:40:05, and Part 2 begins at 00:40:05 and ends at 00:50:57.

The combined video begins at 23:58~18 and ends at 00:50:57. The People will provide a copy of

the CD for the Court's review. If the Court chooses to review this video, the People would

recommend clicking "AutoPlay" on the CD, as that seems to be the easiest way to access these

videos.

Appendix Page -19-

Micquel Thomas v State of Michigan

Docket No. 22-5495

very windy and ultimately stopped, and the brief remainder of the video appears to proceed in

silence.

Exhibit 15 was admitted into evidence at trial (Tr II, 94). Upon admitting the CD into

evidence, the trial court asked defense counsel if there was. any objection, and defense counsel

responded, "No objection to 15" (Tr II, 94). This response reflects that defense counsel had

received Exhibit 15 prior to trial and had a chance to review it, as he agreed that it could be admitted

into evidence. 2 It does not appear that the entirety of Exhibit 15 was played for the jury; instead,

the record reflects that the video was stopped at 00:06:40, then stopped and started again at various

time stamps (Tr II, 94-97). The record reflects that the latest timestamp that was played began at

00:40:24 and lasted approximately 42 seconds (Tr II, 97). Given that Part 1 of the video ends at

00:40:05, and Part 2 begins at 00:40:05, it appears that at least the beginning of Part 2 was shown

to the jury. Despite that the end of the recording was not played, the record reflects that the entirety

of Exhibit 15 was admitted into evidence, as the CD itself was marked with an evidence sticker

labeled "PEOPLE'S EXHIBIT 15" and was entered into evidence (Tr II, 94; see also copy of CD

and envelope provided to the Court).

"There is no general constitutional right to discovery in a criminal case," but "due process

requires the prosecution to disclose evidence in its possession that is exculpatory and material,

regardless of whether the defendant requests the evidence." People v Jackson, 292 Mich App 583,

590-591; 808 NW2d 541 (2011), citing Brady, 373 US at 87. To demonstrate that a violation of a

defendant's due process right to the disclosure of information has occurred, the defendant must

2 If this Court elects to remand this case to the trial court, the People will present copies of

correspondence between Assistant Prosecutor Alex Grimes and defendant's counsel, John Pyrski,

from May 9, 2019, wherein Mr. Pyrski indicated that he was able to play his copy of the in-car

video.

Appendix Page -20-

Micquel Thomas v State of Michigan

Docket No. 22-5495

show: "(l) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3)

that is material." People v Chenault, 495 Mich 142, 155; 845 NW2d 73 l (2014).

Given that the challenged evidence was actually admitted as an exhibit at trial (and with

no objection by defense counsel), defendant cannot show that the prosecution suppressed evidence.

Defendant also cannot show that the challenged portion of the video was favorable or material.

While it would have been preferable for the officer to have included every detail in his report, the

fact that the witness made a photographic identification of defendant is not favorable or material,

particularly given that there was no question about the identification. The witness had met

defendant before that night, was able to identify him by name before being shown any photographs,

and unequivocally identified defendant in court based on their previous encounters.

Because defendant cannot show that a Brady violation occurred, his motion to remand

should be denied.

Respectfully submitted,

Christopher R. Becker (P53752)

Kent County Prosecuting Attorney

James K. Benison (P54429)

Chief Appellate Attorney

Dated: April 16, 2021

By:

Isl Allison L. Freed

Allison L. Freed (P80249)

Assistant Prosecuting Attorney

Appendix Page -21-

Micquel Thomas v State of Michigan

Docket No. 22-5495

STATE OF MICHIGAN

MI Court of Appeals

Proof of Service

Case Title:

PEOPLE OF MI V MICQUEL SHEMARIO THOMAS

ase Number:

349711

I. Title(s) of the document(s) served:

Filing Type

nswer

Document Title

349711 Thomas - response to motion to remand

2. On 04-16-2021, I served the document(s) described above on:

Recipient

IK.ent County Prosecutor's Office

Self Represented

~llison Freed

IKent County Prosecutor's Office

80249

louise Johnson

~ttomey at Law

61338

Type

Address

~ppeals@kentcountymi.gov

~-Serve

allison. freed@kentcountymi.gov

e-Serve

~ohnsonle20 I O@aol.com

e-Serve

This proof of service was automatically created, submitted and signed on my behalf through my agreements

with MiFILE and its contents are true to the best ofmy information, knowledge, and belie£

04-16-2021

Date

Isl Allison Freed

Signature

Kent County Prosecutor's Office

Appendix Page -22-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Court of Appeals, State of Michigan

ORDER

Christopher M. Murray

People of MI v Micquel Shemario Thomas

Presiding Judge

Docket No.

349711

Karen M. Fort Hood

LC No.

19-002661-FH

Elizabeth L. Gleicher

Judges

The motion to remand is DENIED.

The motion to adjourn oral argument is DENIED.

_______________________________

Presiding Judge

April 19, 2021

Appendix Page -23-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Court of Appeals, State of Michigan

ORDER

Christopher M. Murray

People of MI v Micquel Shemario Thomas

Presiding Judge

Docket No.

349711

Karen M. Fort Hood

LC No.

19-002661-FH

Elizabeth L. Gleicher

Judges

The motion to adjourn oral argument is DENIED.

The motion for reconsideration is DENIED.

_______________________________

Presiding Judge

May 3, 2021

Appendix Page -24-

Micquel Thomas v State of Michigan

Docket No. 22-5495

March 11, 2022

163231

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

SC: 163231

COA: 349711

Kent CC: 19-002661-FH

MICQUEL SHEMARIO THOMAS,

Defendant-Appellant.

_________________________________________/

On order of the Court, the application for leave to appeal the May 13, 2021 judgment

of the Court of Appeals is considered. We DIRECT the Kent County Prosecuting Attorney

to answer the application for leave to appeal within 28 days after the date of this order.

The application for leave to appeal remains pending.

Appendix Page -25-

Micquel Thomas v State of Michigan

Docket No. 22-5495

May 31, 2022

163231

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

SC: 163231

COA: 349711

Kent CC: 19-002661-FH

MICQUEL SHEMARIO THOMAS,

Defendant-Appellant.

_________________________________________/

By order of March 11, 2022, the prosecuting attorney was directed to answer the

application for leave to appeal the May 13, 2021 judgment of the Court of Appeals. On

order of the Court, the answer having been received, the application for leave to appeal is

again considered, and it is DENIED, because we are not persuaded that the questions

presented should be reviewed by this Court.

Appendix Page -26-

Micquel Thomas v State of Michigan

Docket No. 22-5495

July 28, 2022

163231 (79)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

SC: 163231

COA: 349711

Kent CC: 19-002661-FH

MICQUEL SHEMARIO THOMAS,

Defendant-Appellant.

_________________________________________/

On order of the Court, the motion for reconsideration of this Court’s May 31, 2022

order is considered, and it is DENIED, because we are not persuaded that reconsideration

of our previous order is warranted. MCR 7.311(G).

Appendix Page -27-

Micquel Thomas v State of Michigan

Docket No. 22-5495

COVER LETTER

'ij

_JUL O8 2021

PEOPLE OF THE STATE OF MICHIGAN v

Supreme Court No.

MICQUEL: THOMAS

---------------------·(Print your name)

d:~ \

(Leave blank - the Clerk will assign a number for you.)

Court of Appeals No. ·3_4_9_71_1_ _ __

Trial Court No.

(Get this number from the Court of Appeals decision.)

19-002661-FH

---------

(Get this number from Court of Appeals brief or the

· PSI Report.)

Dear Clerk:

Enclosed please find the originals of the documents checked below. (Put a check mark in the boxes

of the documents you are sending.) I am indigent and cannot provide four copies.

XX Application for Leave to Appeal

Copy of Trial Court decision

Copy of Court of Appeals decision

D PSI Report (required only if you raise an issue related to the sentence imposed on your conviction)

D Transcript of jury instructions (required only if you are challenging an instruction on appeal)

Motion to Waive Fees / Affidavit of Indigency

Proof of Service

Other

--------------------------------

***You do not have to provide any briefs filed in the trial court or Court of Appeals***

1?1ur,~ '::lhPiiYKJ

(Sign yourname

MICQUEL TH01AS

(Print your name and MDOC number)

G.ROBERT COTTON, CORR. FAC.

(Print name of correctional facility if still incarcerated)

3500 N. EL'.M RD.

(Print your address or address of correctional facility)

JACKSON, MI 49201

Copy sent to:

Appendix Page -28Created 2/2016

s":·~.' ~·-·.·i,!_<,l<

Clerk's Office

Michigan Supreme Court

Hall of Justice

P.O. Box 30052

Lansing, MI 48909

RE:

.... ,., ,.,, ..

(Date of mailing to the Supreme Court)

Micquel Thomas v State of Michigan

Docket No. 22-5495

mLEPAGE

INSTRUCTIONS: This application is for use in criminal appeals only. If you are appealing a Court of Appeals

decision involving a civil action, use the form designed for that appeal type. Answer each question completely and

add more pages if necessary.

IN THE MICHIGAN SUPREME COURT

PRO PER CRIMINAL APPLICATION FOR LEAVE TO APPEAL

I am appealing a Court of Appeals decision that affirmed my convidion(s) and sentence(s) in whole or

in part, affirmed the trial court's denial of my motion for relief from judgment, or denied my application

for leave to appeal in that court.

Supreme Court No. _________

PEOPLE OF THE STATE OF MICHIGAN,

(Leave blank)

Plaintiff-Appellee,

Court of Appeals No. _34_97_1_1_ _ _ __

(See Court of Appeals decision)

MICQUEL Tf-mAS

(Print your name)

-19-002661-FH

Trial Court No. ___________

- (See Court of Appeals decision or PSIR report)

Defendant-Appellant.

I am currently incarcerated in a Michigan, federal, or other state correctional facility.

Yes

If Yes, provide the name and address of the correctional facility:

G.ROBERT COTTON, CORR. FAC.

(Print street address of correctional facility)

JACKSON,

MI 49201

(Print city, state and zip code of correctional facility)

FILING DEADLINE: For incarcerated persons, the application will be accepted as timely filed by the

Supreme Court if received on or before the 56-day filing deadline or if it bears a date stamp from the

correctional facility's mailroom on or before the filing d~adline and (1) the case involves a criminal

appeal, (2) you are incarcerated, (3) you are acting without an attorney, and (4) you include a sworn

statement identifying the date the papers were given to the correctional facility for mailing to the

Court and indicating that first-class postage was prepaid. MCR 7.305(()(4).

For persons who are not incarcerated, the application must be received by the Supreme Court on or

before the 56-day deadline or it will be rejected as untimely. No extensions can be given to the filing

deadline.

Page 2

Created 2/2016

Appendix Page -29-

Micquel Thomas v State of Michigan

Docket No. 22-5495

CRIMINAL PRO PER APPLICATION FOR LEAVE TO APPEAL (cont.)

MICQl£1.! TH(}1AS

Appellant

Court of Appeals No.

· (Print your name)

349711

INSTRUCTIONS: In the sections below, write out those issues you want to raise in the Supreme Court that were

raised in the Court of Appeals in either a brief prepared by your attorney or a supplemental brief that you

. prepared. To raise new issues, go to page 8.

ISSUES RAISED IN COURT OF APPEALS

ISSUE I:

A. (Write the issue exactly as it was phrased in the Court of Appeals brief.)

rt>tion-for rermd and reguest·that the court hold oral argurents in

cne~once until o Ginther Hearing could be held •

B. The Court should review the Court of Appeals decision on this issue because: (Check all the boxes you think

apply to this issue, but you must check af least 1.)

1. The issue raises a serious question about the legality of a law passed by the legislature.

0 2. The issue raises a legal principle that is very important to Michigan law.

[:,( 3. The Court of Appeals decision is clearly wrong and will cause material injustice Jo me.

4. The decision conflicts with a Supreme Court decision or another decision of th~ Court of Appeals.

C. (Explain why you think the choices you checked in "B" apply to this issue. List any cases and state any facts that

you want the Supreme Court to consider even if they were not included in your Court of Appeals brief. If you

think the Court of Appeals mixed up any facts about this issue, explain below. If you need more space, you

may add more pages.)

Ibe court of appeals Moreb 13,2021 order and opiaion

is of constitutional error because the court was under the misbelief tbat

the Newl~·Discovered Dash Can Video evidence was Qrovided to trial counsel

defendant has secured an affidavit fran his trial counsel attesting to the

fact that he was never provided with the second dash c011 video evidence

See attached affidavit of Attorney John Pryski. Defendant prays this·

Honorcble court pursuant to People v. Ginther, 390 Mich 436 (1973) rerond

this case back to the Court of Appeals with instructions for that court

to vacate it's Morch 13,2021 order and rerrond the case with instructions

for the C.O.A to order the trial court to conduct a Evidentiary Hearing

on prosecutional Misconduct claim in failing to disclose exculpatory

evidence that rore likely then not would have changed the outcare of

defendant's trial.

Appendix Page -30-

Created 2/2016

Page 3

Micquel Thomas v State of Michigan

Docket No. 22-5495

CRIMINAL PRO PER APPUCATION FOR LEAVE TO APPEAL (cont_)

MICCll.EL:

- - - -TH01AS

- - - - - - ~ - - _ _ _ , Appellant

349711

Court of Appeals No.__

·_ _ _ __

(Print your name)

1S$UEU:

A. (Write the issue exactly as ii¥1fas P.hrase,i:i in the CpuJ!_Qf ARP~~ls brief.)

It wos not proper to a 1ow testurony or ucrenaant prior criminal act

pursuant to MRE 404(h) for purpose.of den:nnstrating defendants intent,

over tirrely objection by defendant

B. The Court should review the Court of Appeals decision on this issue .because: (Check all the boxes you think

apply to this issue, but you must check at least 1.)

1. The issue raises a serious question about the legality of a law passed by the legislature.

2. The issue raises a legal principle that is very important to Michigan law.

3. The Court of Appeals decision is clearly W!ong and will cause material injustice to me.

4. The decision conflicts with a Supreme Court decision or another decision of the Court of Appeals.

C. -(Explain why you think the choices you checked in "B" apply to this issue. List any cases and state any facts that

you .want the Supreme Court to consider even if they were not included in your Court of Appeals brief. If you

think the Court of Appeals mixed up any facts about this issue, explain below. If you need more space, you

may add more pages.)

The court connitted constitutional error due to the

prosecution failure to disclose exculpatory (BRADY) in:peochrent evidence

see attached affidavit of Attorney John Prvski. The prosecution has a

Constitutional duty to correct the record when the court relies on evidence

he know to be false defendcrlt Tharos prays this Honorable Court focus on

the new reliable affidavit of Attorney John Pryski. See Attorney Louise

Ellie Johnson brief on ~ l title defendant appellate reply Brief Oral

Argurent Requested pages 1-10.

Page4

Appendix Page -31-

Created 2/2016

Micquel Thomas v State of Michigan

Docket No. 22-5495

CRIMINAL PRO PER APPLICATION FOR LEAVE TO APPEAL (cont.)

MICQUEL: Tt01AS

Appellant

Court of Appeals No.

349711

(Print your name)

ISSUEUI:

A. (Write the issue exactly as it was phrased in the Court of Appeals brief.)

It wos irrprOl)er to irrpeoch the testirrony of a witness with extrinsic

evidence of o prior consistent staterrent provided by way of testirrony

of a police officer where that hearsay evidence had no other basis for

nrfm"

•

UU-1-ll

SS 100

B. The Court should review the Court of Appeals decision on this issue because: (Check all the boxes you think

apply to this issue, but you must check at least 1.)

1. The issue raises a serious question about the legality of a law passed by the legislature.

2. The issue raises a legal principle that is very importanno Michigan law.

3. The Court of Appeals decision is clearly wrong and will cause material injustice to me.

4. The decision conflicts with a Supreme Court decision or another decision of the Court of Appeals.

C. (Explain why you think the choices you checked in "B" apply to this issue. List any cases and state any facts that

you want the Supreme Court to consider even if they were not included in your Court of Appeals brief. If you

think the Court of Appeals mixed up any facts about this issue, explain below. If you need more space, you

may add more pages.)

• ·

•

The court carm1tted const1tut1ono error ue tote

prosecution failure to disclose Exculpatory Brady Irrpeochrent evidence.

See attached affidavit of Attorney John Pryski. The prosecution has Constituti:>nal

duty to correct the record·wtien the court relies on evidence he knows to be

false defendant Tharos prays this Honorable Court focus.on the new relici:>le

affidavit of Attorney John Pryski. See Attorney Llouise Ellie Johnson Brief

on Appeal title defendant appellate Reply Brief Oral Argurents Requested

pages 1-10.

Appendix Page -32-

Created 2/2016

Page 5

Micquel Thomas v State of Michigan

Docket No. 22-5495

CRIMINAL PRO PER APPUCATION FOR LEAVE TO APPEAL (cont-) .

_M_I_CQUE

L_1l0\I\S

__________

____J

Appellant

34_9_71_1_ _ __

Court of Appeals No._

(Print your name)

ISSUE IV:

A. (Write the issue exactly as it was phrased in the Coll.l't of Appeals brief.)

he def

It wos port of the prosecutions Brody 0011gat1on to mKe t

ense aware

that there was DNA evidence of several individual present on the gun being

tested.

B. The Court should review the Court of Appeals decision on this issue because: (Check all the boxes you think

apply to this issue, but you must check r1t least 1.)

1. The issue raises a serious question about the legality of a law passed by the legislature.

2. The issue raises a legal principle that is very important to Michigan law.

l~ 3. The Court of Appeals decision is clearly wrong and will cause material injustice to me.

4. The decision conflicts with a Supreme Court decision or another decision of the Court of Appeals.

C. (Explain why you think the choices you checked in "B" apply to this issue. List any cases and state any facts that

you want the Supreme Court to consider even if they were not included in your Court of Appeals brief. If you

think the Court of Appeals mixed up any facts about this issue, explain below. If you need more space, you

may ·add more pages.)

•

The Court carm1tted a Const1tut1onal error due to

the prosecution failure to disclose Exculpatory Brody Irrpeachrent evidence

See attached Affidavit of John Pryski. The prosecution has a constitutional

- duty to correct the record when the court relies on evidence he knows to

be false defendant Tharos prays this Honorable Court focus on the NEW

-relid:>le affidavit of Attorney John Pryski. See attorney Louise Ellie

Johnson brief on appeal title defendant's Appellate Reply Brief oral

Argurent's Requested pages 1 - 10.

Appendix Page -33-

Created 2/2016

Page 6

Micquel Thomas v State of Michigan

Docket No. 22-5495

CRIMINAL PRO PER APPLICATION FOR LEAVE TO APPEAL (cont.)

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _....J

Appellant

Court of Appeals No,_ _ _ _ _ __

(Print your na,:ne)

ISSUEV:

A. (Write the issue exactly as it was phrased in the Court of Appeals brief.)

B. The Court should review the Court of Appeals decision on this issue because: (Check all the boxes you think

apply to this issue, but you must check at least 1.)

1. The issue raises a serious question about the legality of a law passed by the legislature.

2. The issue raises a legal principle that is very important to Michigan law.

3. The Court of Appeals decision is clearly wrong and will cause material injustice to me.

4. The decision conflicts with a Supreme Court decision or another decision of the Court of Appeals.

C. (Explain why you think the choices you checked in "B" apply to this issue.Ust any cases and state any facts that

you want the Supreme Court to consider even if they were not included in your Court of Appeals brief. If you

th ink the Court of Appeals mixed up any facts about this issue, explain below. If you need more space, you

may add more pages.)

Page 7

Appendix Page -34-

Created 2/2016

\IA-

Micquel Thomas v State of Michigan

Docket No. 22-5495

CRIMINAL PRO PER APPLICATION FOR LEAVE TO APPEAL (cont).

Appellant

Court of Appeals No.

(Print your name)

NEW ISSUE INSTRUCTIONS: If you want the Supreme Court to look at errors that were not raised in the Court of

Appeals, check Yes in the checkbox below and answer parts A, 8, and C for each new issue you raise. There are

pages provided for 2 new issues, You may include more pages to raise additional new issues. If you do not have

new issues, qo to the Relief Requested section on paqe 10.

YES, I want the Supreme Cpurt to consider the additional grounds for relief contained in the fol lowing issues.

The issues were not raised in my Court of Appeals brief.

NEW ISSUE I:

A. (Write the new issue you want the Court to consider:)

8. The Court should review this issue because: (Check all the boxes you think apply to this issue, but you must

check at least 1.)

Tlie issue raises a serious question about the legality of a law passed by the legislature.

The issue raises a legal principle that is very important to Michigan law.

The Court of Appeals decision is clearly wrong and will cause material injustice to me.

04. The decision conflicts with a Supreme Court decision or another decision of the Court of Appeals.

C. (Explain why you think the choices you checked in "B" apply to this issue. List any cases and citations, laws, or

court rules, etc. that support your argument and explain how they apply to this issue. State the facts that

support·and explain this issue. If any facts were not presented in the Court of Appeals, explain why. You may

add more pages.)

Appendix Page -35-

Page 8

---•-- .

-- - . -· -------- -·- .-:-:-:-:-:-.:::-·-::-.• ":::::-··-:-::-:-=:·---_.=-:::----~~

Micquel Thomas v State of Michigan

Docket No. 22-5495

CRIMINAL PRO PER APPLICATION FOR LEAVE TO APPEAL (cont)_

_ _ _ _ _ _ _ _ _ _ _ _ _ _ ____, Appellant

Court of Appeals No._ _ _ _ _ __

(Print your name)

NEW ISSUED:

A. (Write the new issue you want the Court to consider:)

B. The Court should review this issue because: (Check all the boxes you think apply to this issue, but you must

check at least 1.)

The issue raises a serious question about the legality of a law passed by the legislature.

The issue raises a legal principle that is very important to Michigan law.

The Court of Appeals decision is clearly wrong and will cause material injustice to me.

The decision conflicts with a Supreme Court decision or another decision of the Court of Appeals.

C. (Explain why you think the choices you checked in "B" apply to this issue. List any cases and citations, laws, or

court rules, etc. that support your argument and explain how they apply to this issue. State the facts that

support and explain this issue. If any facts were not presented in the Court of Appeals, explain why. You may

add more pages.)

Appendix Page -36-

Page 9

Micquel Thomas v State of Michigan

Docket No. 22-5495

RELIEF REQUESTED

9. For the above reasons I request that the Supreme Court grar\t my application for leave to appeal or order any

other relief that it decides I am entitled to receive.

(Date}

MICWEt! - ~ , - , . - - - - - - <Print your name and MDOC number)

G.ROBERT COTTON, CORR. FAC.

3500 N.ElM RD.

(Print your address or address of the correctional facility}

JACKSON, MI 49201

(Print the name of the correctional facility if still incarcerated}

After this page, you should attach copies of the trial court and Court of Appeals decisions,

the PSI Report (if you are raising an issue related to the sentence imposed on your conviction),

the jury instructions (if you are raising an issue regarding the instructions),

and other documents you want the Supreme Court to consider.

Page 10

Appendix Page -37-

Created 2/2016

Micquel Thomas v State of Michigan

Docket No. 22-5495

IN THE MICHIGAN SUPREME COURT

Supreme Court No. _ _ _ _ _ _ _ __

PEOPLE OF THE STATE OF MICHIGAN,

(Leave blank)

Court of Appeals No. 349711

Plaintiff-Appellee,

(--Se-e-Co-urt-o--fA:-p-p-eal-sd-e-cis-ion_)_

MICOOEl TH0'1AS

Trial Court No. 19-002661-:fH

(See Court of Appeals brief or PSI Report.)

(Print your name)

Defendant-Appellant.

MOTION TO WAIVE FEES

For the reasons stated in the affidavit of indigency below, I request that this Court GRANT a waiver

pursuant to MCR 7.319(() of all fees required for filing the attached pleading because I am indigent and

the provisions of MCL 600.2963 requiring prisoners to pay filing fees do not apply to appeals from a

decision involving a criminal conviction.

•

(Date)

MICQIJEe THOMAS /1636589

(Print }'OUr name and MDOC number)

AFFIDAVIT OF INDIGENCV

My name and MDOC number are _M_I_CQU_Ell_1_T_H01A

S_H_6_36_5_89_ _ _ _ _ _ _ _ _ _ _ __

I am incarcerated at

in JACK~. _tU 49201

G.ROBERT COTTON, CORR. FAC.

{City, state and zip code)

(Name of correctional facility)

I attest that I cannot pay the filing fee. (Check the boxes that apply to you.)

My only source of income is from my prison job and I make $_0_.2_1___,per day.

I have no income.

I have no assets that can be converted to cash.

D The Court of Appeals waived my fees in that court.

I declare that the statements above are true to the best of my knowledge, information and belief.

(Date)

MICQUEL THCX,1AS H636589

(Print your name and MDOC number)

G,ROBEBT CQTTQN CORR, EAC

3500 N. ELM RD.

(Print your address or address of correctional facility)

JACKSON. MI 49201

(Print name of correctional fa~ility if incarcerated)

Page 11

Appendix Page -38Created 2/2016

Micquel Thomas v State of Michigan

Docket No. 22-5495

IN THE MICHIGAN SUPREME COURT

Supreme Court No. _ _ _ _ _ _ _ __

PEOPLE OF THE STATE OF MICHIGAN,

Court of Appeals No.

Plaintiff-Appellee,

MICQUEI..'. TH<Jt\AS

Trial Court No.

(Print your name)

(Leave blank)

349711

(-Se-e-Co-urt_o_fA.-p-p-ea-ls-de-ci-sio-n)-

19-002661-FH

(See Court of Appeals brief or PSI Report)

Defendant-Appellant.

PROOF OF SERVICE

, 20..];d_, I mailed by U.S. mail 1 copy of the documents checked below:

XJ Application for Leave to Appeal

Copy of Trial Court decision

Copy of Court of Appeals decision

D PSI Report (if you are raising an issue related to the sentence imposed on your conviction) .

D Transcript of jury instructions (if you are raising an issue related to a jury instruction at trial)

Motion to Waive Fees / Affidavit of Indigency

Proof of Service

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

***You do not have to provide any briefs filed in the trial court or Court of Appeals***

TO:

KENT COUNTY

County Prosecutor

(Name of county)

82 Ionia NW, STE 450

(Street address)

· GRAND RAPIDS

~-----------_,J MI 49503.

(City)

(Zip Code)

I declare that the statements above are true to the best of my knowledge, information and beli~f.

,;;;;-1-L.-1

MICQUEL: THO'\I\S

(Print your name and MDOC number)

G.ROBERT COTTON, CORR. FAC.

(Print name of correctional facility if still incarcerated)

3500 N. ELM RD.

(Print your address or address of correctional facility)

JACKSON, MI 49201

Page 12

Appendix Page -39-

Created 2/2016

Micquel Thomas v State of Michigan

Docket No. 22-5495

NOTICE OF FIUNG APPUCATION

IN THE MICHIGAN SUPREME COURT

(Mail 1 copy to the Court of Appeals and 1 copy to the trial court)

(Today's Date)

D ______________ (Name ofTrial Court)

Michigan Court of Appeals

Clerk's Office

Hall of Justice

P.O. Box 30022

Lansing, MI 48909

PEOPLE OF THE STATE OF MICHIGAN v _

_ _ _ _ _ _ _ _ _ _ _ _ _ _ (Address)

____.._._M"""IC=QU=EL,...'.__T...._H()1.A='-"-=S----------,-----(Print your name)

Court of Appeals No. ____::; .·3. . :.;49=7-=-1-=- 1_ _ _ _ _ _ _ _ __

Trial Court No.

(Get this number from the Court of Appeals decision)

19-002661-FH

(Get this number from Court of Appeals brief or the PSI Report)

Dear Clerk:

On this date I have filed an application for leave to appeal with the Michigan Supreme Court in the

above-captioned matter.

~:UHN1

MICQUEL!

S #636589

(Print name of correctional facility, if applicable)

3500 N. ELM RD.

(Print your address or address of correctional facility)

JACKSON, MI 49201

Appendix Page -40Created 2/2016

Page 13

Micquel Thomas v State of Michigan

Docket No. 22-5495

STATE OF MICHIGAN

IN THE COURT OF APPEALS

STATE OF MICHIGAN

Plaintiff-Appellee.

COA: 349711

LC#: 19-002661-FH

MICQUEL SHEMARIO THOMAS

Defendant-Appellant

AFFIDAVIT OF JOHN PYRSKI

STATE OF MICHIGAN

COUNTY' OF KENT

)

1. I, John Pyrski, am the affiant of the following statements.

2. I have personal knowledge of the facts contained in this affidavit. MCR

2.119(8)(1 )(a) ·

3. If called as a witness I can truthfully and competently testify to the facts

cont~ined in this affidavit. MCR 2.119(8)(1 )(c)

4. I am a member of the State Bar of Michigan, P 41591.

5. I represented Defendant Thomas during the jury trial in 2019 in the Kent

County Circuit Court, file 19-002661-FH.

6. l·have read the complete Unpublished opinion of the Court of Appeals, in the

matter of the State of Michigan v Micquel Shemario Thomas, COA #349711,

released May 13, 2021, ("The Opinion").

7. The Kent County Prosecutor has a copy of The Opinion. MCR 2.119(B)(2)(c)

Appendix Page -41-

Micquel Thomas v State of Michigan

Docket No. 22-5495

8. The Opinion contains footnote 8 on page 8 that addresses additional video

evidence and states in its entirety:

8 We note that defendant moved for a remand with this Court on the

basis of additional video evidence that he claimed was concealed by the

prosecution. We denied the motion because it is clear that defendant

both (1) was provided access to the video evidence, and (2) failed to

object to entry of the same at trial

9. The additional video evidence was discovered after the trial in this matter and

after Defend ant was sentenced.

10. Contrary to the Court's assertion that the additional video evidence was

provided to me, it was not provided to me.

11.1 never knew the additional video evidence existed at the time of the trial.

12. I could not have objected to entry of the additional video evidence at tria:l

because it had not surfaced yet and was not introduced at trial.

Further Affiant sayeth not.

State of M hi n, County of Ke,nt

Subscribed cl sworn to before me

on this 17th day of June 2021.

t 11.u', ;;,00-lc-¼,

Anne Pham, Notary Public

My commission expires on: Y k-"h½} 3 ,, ,2 D ;i 3

Appendix Page -42-

Micquel Thomas v State of Michigan

Docket No. 22-5495

LOUISE E. JOHNSON

Attorney at Law

Monroe Center NW, Ste 630

Grand Rapids, MI 49503

April 20, 2021

Tele: 616-634-5618

Cell: 616-634-5618

Fax:

231-243-3339

Cynthia C. Bullington, Ass't Deputy Admin.

Buhl Building

535 Griswold, Suite 1700

Detroit, MI 48226

Re: Micquel Thomas as to Attorney Louise E. Johnson,

ACG File No. 21-0566

Dear Cynthia C. Bullington:

Enclosed please find my response with respect to the Request for Investigation

initiated by client, pursuant to MCR 9.113'.

To be sure, I continue to zealously represented Mr. Thomas's interest on

Appeal. Surely Covid has impacted Mr. Thomas and my communkation but I have

kept him informed of the various aspects of the process.

I strive to do the very best for my clients, all of them, ALWAYS! Thank you

for your anticipation consideration and please feel free to call if you have any

questions.

Very iTruly Yours,

'•.

C-~A.

r/L .')A__ "··

·· se "Ellie" Johns n

At orney at Law ·

Appendix Page -43-

Micquel Thomas v State of Michigan

Docket No. 22-5495

RESPOINSE TOJNVESTIGATION

RE: MICQUEL THOMAS, ACG NO. 21-0566

I was contacted and retained by Mr. Thomas and his family to appeal his

conviction. I met Mr. Thomas at the G. Robert Cotton Facility where he is

currently housed and discussed the case, my retainer, and the process. At th at

time, I had not received the transcripts nor the entire file on the matter. I filed the

appeal on July 10, 2019 and received the transcripts several weeks later.

During initial discussions I had with Mr. Thomas and his family who were

present during much of the trial, they both expressed serious concerns about

statements made during the trail, allegedly by the trial judge.

On October 23, 2019, I sent the trial transcripts along with a letter to Mr.

Thomas explaining that my review of the transcripts did not reveal any of his - nor

his family's concerns regarding statements made by the trial Judge. (Exhibit 1,

Letter to Mr. Thomas re transcripts).

Both Mr. Thomas and his family were still cert&in the statements were made.

Given this, I arranged to view the video/audio of the 3-day trial with the court clerk

on November 15, 2019. (Exhibit 2). I viewed the trial video/audio simultaneously

with the transcripts to ensure their accuracy and took notes of the areas where Mr.

Thomas remembered the trial differently. I did not observe any discrepancies

between the transcript and what I observed and conveyed this to Mr. Thomas and

his family.

On December 26, 2019; l filed the appeal brief and provided Mr. Thomas a

copy on December 27, 2019. (Exhibit 3, cover letter to Mr. Thomas re: brief).

On or about March 18, 2020, I sent Mr. Thomas a copy of the government's

response to our appeal brief and our rebuttal brief. (Exhibit 4, cover letter to Mr.

Thomas re Gov't response and rebuttal).

On or about July 18, 2020, I received a letter from Mr. Thomas that he was

impressed with my work stating that ·'all my friends I let read my brief says where

did you find her at I say she is a angel sent from heaven" and thanked me for

everything I have done. (Exhibit 5, letter from Mr. Thomas)

On or about September 15, 2020, l received a letter from Mr. Thomas

requesting among other coni.plete copy of police file and wanting me file a motion

Appendix Page -44-

Micquel Thomas v State of Michigan

Docket No. 22-5495

to hold oral argument in abeyance to file ineffective assistance of counsel.

(Exhibit 6, email from Mr. Thomas).

On or about September 29, 2020, I received another email from Mr. Thomas

now claiming, among other that I "did nothing but put a bunch of words on a ,

paper." He also indicated that he now wanted me to file a request to hold oral

arguments in abeyance while asking the Court of Appeals for remand to circuit

court for a Ginther hearing on ineffective assistance of counsel. (Exhibit 7, email

from Mr. Thomas).

On November 17, 2020, I filed a motion to adjourn oral argument to further

review and research this issue. (Exhibit 8). This motion was granted by the Court

of Appeals.

On December 28, 2020, I filed the motion for remand and request that the

Court hold oral arguments in abeyance until a Ginther hearing could be held.

Unfortunately, this motion was denied on March 2, 2021. (Exhibit 9)

·In late January 2021, I received a call from a Private Investigator who had

been retained by Mr. Thomas to send me a disk. He did not elaborate on the

contents of the disk. On or about.February 1, 2021, I received the envelope from

the PI containing a single disk, a copy of the freedom of information request made

by Mr. Diggers, and a copy cf the new paper article regarding Mr. Diggers release.

There was no information with respect to what was contained on the disk, nor did

the PI ever indicate what the disk revealed.

Initially, I could not open the contents of the disk. I was finally able to open the disk. Upon review, the video contained approximately 5 minutes of not

provided to defense counsel. In this counsel's opinior., the disk contained evidence

which supported 'active concealment' by the government.

Thus, April 12, 2021, I filed another motion to hold oral argument in

abeyance and a motion for remand based upon the newly discovered evidence. I

sent a copy of the motion to ·Mr. Thomas. Just today, I received notice from the

Court of Appeals denying ou:- motion again! (Exhibit 10). So, we are scheduled

for oral argument on May 4, 2021. I feel very confident about the strength of our

brief and the arguments contained therein.

It is unfortunate that the communication bet\veen attorney and client, across

the board, has been affected by the pandemic. However. I have communicated

Appendix Page -45-

Micquel Thomas v State of Michigan

Docket No. 22-5495

with Mr. Thomas about the matters of his appeal as evidenced by the exhibits

attached herein. If not formally through email, or letter, I have kept Mr. Th.omas

appraised through the many phone calls and pop in visits from his family and

friends.

I want nothing more than to continue representi~g Mr. Thomas throughout

this process as I truly believe he did not receive a fair trial as evidenced by our

appeal brief.

'R.est;~~~lly su.bmi ed,

('"''-·

/f;L/VL

'/A .. ·--

Lmi1se E. John 06,,,(Po-l-JJ-8)

Attorney at L

Appendix Page -46-

Micquel Thomas v State of Michigan

Docket No. 22-5495

STATE OF MICHIGAN

IN THE SUPREME COURT

PEOPLE OF THE STATE

OF MICHIGAN,

Michigan Supreme Court

No. 163231

Plaintiff-Appellee,

Court of Appeals

No. 349711

MICQUEL SHEMARIO THOMAS,

Kent County Circuit Court

No. 19-002661-FH

Defendant-Appellant.

_______________________________/

Christopher R. Becker (P53752)

Kent County Prosecuting Attorney

Audra J. Blodgett (P85776)

Assistant Prosecuting Attorney

Micquel Thomas #636589

In Propria Persona

G. Robert Cotton Corr. Fac.

3500 N. Elm Road

Jackson, MI 49201

Business Address:

82 Ionia NW – Suite 450

Grand Rapids, MI 49503

(616) 632-6710

PLAINTIFF-APPELLEE’S ANSWER IN OPPOSITION TO DEFENDANTAPPELLANT’S APPLICATION FOR LEAVE TO APPEAL TO THE

MICHIGAN SUPREME COURT

Now comes the Plaintiff-Appellee, the People of the State of Michigan, by Audra J.

Blodgett, Assistant Prosecuting Attorney, and in opposition to the Defendant-Appellant’s

Application for Leave to Appeal, which appears to contain the same arguments presented to the

Court of Appeals, hereby incorporates the arguments set forth in Plaintiff-Appellee’s Brief filed

in the Court of Appeals, a copy of which is attached.

Appendix Page -47-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Defendant-Appellant’s Application also contains an argument presented to the Court of

Appeals in a “Motion for Remand and Request that the Court Hold Oral Agruments [sic] Currently

Scheduled For May 4, 2020, in Abeyance Until a Hearing on the Issue of Active Police/Prosecutor

Concealment in Violation of Mr. Thomas’ Due Process Rights.” The People hereby incorporate

its argument set forth in Plaintiff-Appellee’s “Answer in Opposition to Motion to Remand” filed

in the Court of Appeals, a copy of which is attached. Although Defendant-Appellant continues

to argue that there is “additional video evidence” he was not given prior to trial,1 only one video

exists, and Defendant-Appellant was given a copy of this video to review prior to trial.2

Therefore, for the reasons stated in the attached Brief and Motion Answer, the People

respectfully request that Defendant’s application for leave to appeal be DENIED.

Respectfully submitted,

Christopher R. Becker (P53752)

Kent County Prosecuting Attorney

Dated: March 24, 2022

By: _/s/ Audra Blodgett____________

Audra J. Blodgett (P85776)

Assistant Prosecuting Attorney

Defendant-Appellant specifically argues that he was not given a 5-minute video clip of two

officers discussing the fact that the arresting officer showed a witness his in-car computer screen

which displayed the name and photo of Defendant and that the arresting officer was not to include

that fact in his report (Def. Motion, pp 3-4). However, this discussion is in fact captured in

People’s Exhibit 15, Combined Video File (“AutoPlay File”) at 00:47:18-00:48:05.

People’s Exhibit 15 is a CD which includes both a “Part 1” video, a “Part 2” video, and a

Combined Video file which combines Part 1 and Part 2. The entire CD was admitted as Exhibit

15 at trial, to which defense counsel stated he had no objection (Tr II p 94). The Court of Appeals

found it clear that Defendant was provided access to all existing video evidence. People v Thomas,

unpublished opinion per curiam of the Court of Appeals, decided May 13, 2021 (copy attached).

Appendix Page -48-

Micquel Thomas v State of Michigan

Docket No. 22-5495

STATE OF MICHIGAN

IN THE 17TH CIRCUIT COURT FOR THE COUNTY OF KENT

PEOPLE OF THE STATE OF MICHIGAN,

Case No. 19-02661-FH

MICQUEL SHEMARIO THOMAS,

Defendant.

- - - - - - - - - - - - - - - - - -I

JURY TRIAL - VOLUME II OF III

BEFORE HON. MARK A. TRUSOCK, CIRCUIT JUDGE

Grand Rapids, Michigan - Tuesday, May 14, 2019

APPEARANCES:

For the People:

MR. ALEX T. GRIMES (P76084)

Kent County Prosecutors Office

82 Ionia, N.W., Suite 450

Grand Rapids, MI 49503

(616) 632-6710

For the Defendant:

MR. JOHN PYRSKI

(P41591)

Attorney at Law

909 Fulton Street E

Grand Rapids, MI 49503-3564

(616) 454-3322

RECORDED ON FTR GOLD VIDEO

TRANSCRIBED BY:

SUSAN M. MASON, CER 3266

Certified Electronic Recorder

(616) 204-5101

Appendix Page -49-

Micquel Thomas v State of Michigan

Docket No. 22-5495

TABLE OF CONTENTS - VOLUME II OF III

Pretrial Matters

Preliminary Instructions

Opening Statement by Mr. Grimes

Opening Statement by Mr. Pyrski

WITNESSES:

(People)

DARRELL ODEN

Direct Examination by Mr. Grimes

Cross-Examination by Mr. Pyrski

Redirect Examination by Mr. Grimes

Recross-Examination by Mr. Pyrski

KIRK DELEEUW

Direct Examination by Mr. Grimes

Cross-Examination by Mr. Pyrski

Redirect Examination by Mr. Grimes

Recross-Examination by Mr. Pyrski

OFFICER AARON GRAY

Direct Examination by Mr. Grimes

Cross-Examination by Mr. Pyrski

Redirect Examination by Mr. Grimes

103

108

SGT. COREY WALENDZIK

Direct Examination by Mr. Grimes

Cross-Examination by Mr. Pyrski

110

116

JULIE COON

Direct Examination by Mr. Grimes

Cross-Examination by Mr. Pyrski

Redirect Examination by Mr. Grimes

119

123

125

TODD MASULA

Direct Examination by Mr. Grimes

127

DETECTIVE TYLER KEMPEMA

Direct Examination by Mr. Grimes

129

OFFICER TODD BUTLER

Direct Examination by Mr. Grimes

Cross-Examination by Mr. Pyrski

Juror Question

134

149

151

Appendix Page -50-

Micquel Thomas v State of Michigan

Docket No. 22-5495

TABLE OF CONTENTS - VOLUME II OF IV

JULIA CARMODY

Direct Examination by Mr. Grimes

154

DETECTIVE DENNIS PITTMAN

Direct Examination by Mr. Grimes

161

Motion for Directed Verdict

166

EXHIBITS:

IDENT

ADMITTED

I - Handout

165

PX# 1-Kirk DeLeeuw Curriculum Vitae

PX# 2-DNA Lab Report No. GR19-2569

PX# 3-Google Maps-scene

PX# 4-Google Maps-Closeup of Cherry Street Health

PX# 5-Google Maps-approximate vantage point

PX# 6-Photo-gun under seat

PX# 7-Photo-closeup of gun under seat

PX# 8-Photo-gun under seat

PX# 9-Photo-closeup of gun and loaded magazine

PX#l0-Pistol

PX#ll-Photo-fence-gated portion

PX#l2-Photo-damage to fence

PX#l3-Photo-damage to fence-closeup of pipe

PX#l4-Photo-cloth on fence

PX#l5-Officer Gray in car video

PX#l6-Photo-fence with crystal meth

PX#l7-Photo-ripped Ziploc bag

PX#l8-Photo-closeup of crystal meth

PX#l9-Evidence package containing meth

PX#20-Curriculum Vitae for Julia Carmody

PX#21-Meth confirmatory lab report

PX#22-Curriculum Vitae of Officer Todd Butler

PX#23-Certified Conviction

PX#24-Piece of cloth from fence

112

102

155

159

138

165

100

112

103

155

159

138

165

101

Appendix Page -51-

Micquel Thomas v State of Michigan

Docket No. 22-5495

so help you God?

MR. ODEN:

I do.

THE COURT:

Please be seated.

DARRELL ODEN

At 9:57 a.m., sworn by the Court, testified as follows:

DIRECT EXAMINATION

BY MR. GRIMES:

Mr. Oden, could you please state and spell your name?

Darrell Oden.

All right, thank you.

D-A-R-R-E-L-L

O-D-E-N.

Mr. Oden, you don't want to be here

today, right?

Correct.

All right.

In fact, we had conversation yesterday where I

had to threaten you with a material witness warrant to come

in, didn't I?

Yes.

All right.

Pretty much.

Okay.

Is that why you're here?

Explain why you don't want to be here today?

Kind of

put it simply?

Shit, I don't want nothin' to do with this.

Okay.

All right.

Well, let me take you back.

You know why

you're here today, right?

Yes.

All right.

Do you recall this incident back in October 7th,

Appendix Page -52-

Micquel Thomas v State of Michigan

Docket No. 22-5495

about midnight, into October 8th, early morning hours that

brings you here?

Yeah, I recall.

All right.

Were you in the company of a person you knew by

the name of Micquel Thomas?

Yes.

All right.

Yes.

Could you point to him and tell me something he's wearing?

Over there in the red.

All right, thank you.

Is he present in the courtroom today?

MR. GRIMES:

identification of the defendant?

May the record please reflect the

THE COURT:

It may.

MR. GRIMES:

Thank you.

BY MR. GRIMES:

All right.

Without saying from where, did you--were you

familiar with or did you know Micquel Thomas?

(No audible response)

Had you met him before?

Yeah.

All right.

And what was the occasion that you were together

him that evening?

Picking him up.

All right.

What were you doing?

And were you going to buy something from him?

Appendix Page -53-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Were you going to get something from him?

A little bag of weed.

All right.

So this appears to have been in the area of Taft

and 28th Street.

police?

Yes.

Okay.

police?

Do you remember getting pulled over by the

And how do you know you're getting pulled over by the

Do you see lights?

Lights.

Okay.

Continue up 28th Street, made a right on Burlingame, pulled

What happens when you see the lights?

in the store parking lot.

Okay.

A Cadillac.

Would that have been a black Cadillac?

Yes.

All right.

A friend of mine.

Would that have been Constance?

Yeah.

And also the defendant, correct?

Yeah.

Where was everybody sitting?

I was driving, she was in the passenger seat.

What kind of vehicle are you in?

Do you remember?

And who else was in that car with you?

sittin' behind her.

Appendix Page -54-

He was

Micquel Thomas v State of Michigan

Docket No. 22-5495

Okay.

So he would have been the rear passenger side,

correct?

Right.

All right.

So once you see the lights does anybody say

anything?

What happens?

I don't really recall, like it was a while ago.

All right.

No, I turned right on Burlingame and then pulled over in the

grocery store parking lot, or Clyde Park, one of them.

Did you stop right away?

Did anybody encourage you to keep driving and not stop for

the police?

Yeah.

Okay.

I know these questions aren't easy but why don't I

step back for a minute.

answer my questions truthfully?

Do you understand that you have to

Yes.

Do you know if you don't you could be charged with perjury?

Yeah.

All right.

I've relayed to you or told you that I don't

intend to charge you reference anything related to this

incident so long as you tell the truth here today, correct?

Right.

All right.

So I recognize from your sigh that you didn't

want to answer that question, but I appreciate the honest

answer, so you said the defendant encouraged you to not

Appendix Page -55-

Micquel Thomas v State of Michigan

Docket No. 22-5495

stop?

I don't really re--it's been six, seven months like.

Yeah, I think he said like, yeah, somethin' on that nature.

Okay.

Did you give a statement to the police after this

happened?

Yeah.

Okay.

All right.

Do you remember telling them that--

THE COURT:

Counsel, let's refresh his memory

MR. GRIMES:

I'm going to--I'll just move on, Your

Honor, at this point.

properly?

BY MR. GRIMES:

What happens next?

Do you decide to keep driving or do you

stop?

No, I stopped.

Okay.

In the parking lot of the grocery store.

At the Family Fare?

It was either Family Fare or D&W.

All right.

He jumped out and ran.

By he, who do you mean?

Micquel.

All right.

Yeah.

And do you remember where you stopped?

And what happens after you stop?

The defendant?

Appendix Page -56-

Micquel Thomas v State of Michigan

Docket No. 22-5495

All right.

Before he jumped out and ran what did you see

him do?

I mean, he moved a little bit, then he jumped out and ran.

All right.

Where did he--how did he move?

Tell me how his

body moved.

I mean, like just like he was wiggling.

Okay.

No.

--before or after he jumped out of the car and ran?

Did you see anything--

mean, after, I

looked back and I

seen the gun, but I

didn't see him with nothin'.

Okay.

Was that gun in the area that he was moving towards

or around?

Which is where he was sitting?

Correct.

All right.

No.

All right.

No.

All right.

No, shit, I didn't.

Okay.

Yup.

Okay.

mean, it was on the floor of the back seat.

mean, so--

Was that your gun?

Had you seen that gun before?

Did you ask him, hey man, what are you doing?

So he jumps out of the car and runs?

And before he gets out of the car and runs, can you

Appendix Page -57-

Micquel Thomas v State of Michigan

Docket No. 22-5495

tell whether he's holding anything else or trying to conceal

anything else?

I mean, he was--just looked like he was pullin' up his

pants,

I mean.

Okay.

I don't know what he had on him or--I didn't see him with

nothin', so I mean--

Okay.

Did--you say you didn't see him with anything but you

did buy some marijuana from him, correct?

Yeah.

All right.

Did he have more marijuana, what you thought was

more marijuana on him?

I don't know, I mean--

Well he--he's got a supply, right?

He gives you some

marijuana.

It was only a little nickel bag of weed, dime bag of weed.

I mean--

Did he seem like he had more?

I don't--that's what he gave me, so I couldn't tell you what

he had--you know what I'm sayin'?

Okay.

I didn't see.

Did he say anything before he jumped out of the car

and ran?

No.

Okay.

A bag of more drugs?

After that did you make contact with--did the police

come up to you, approach you and get your statement?

Appendix Page -58-

What

Micquel Thomas v State of Michigan

Docket No. 22-5495

was going on, ask you--

Yeah.

All right.

And you readily gave them the name of Micquel

Thomas as the individual that fled from the car, correct?

Yeah.

All right.

And were you honest with the police about what

you remember happening or what you saw before he fled the

car?

Yeah, I told you the same thing.

Okay.

Yes.

Did the police find some marijuana?

Yes.

And that was what you had gotten from the defendant,

Did you end up having any marijuana in the car?

correct?

Yeah.

All right.

A digital scale?

on you?

I think so.

Okay.

Marijuana, that was my scale.

All right.

Yes.

All right.

Did they find a digital scale

That would have been for the purpose of what?

Did you try to be cooperative with the police?

Aside from the marijuana did you see any drugs,

any other drugs in the car?

Appendix Page -59-

Micquel Thomas v State of Michigan

Docket No. 22-5495

No.

Did you have any other drugs in the car?

No.

Did you have any guns in the car?

No.

All right.

Has the defendant, let me phrase it this way,

we go back and observe or listen for any potentially

recorded phone calls between you and the defendant are we

going to find any?

No.

Be honest.

I mean, I mean,

mine.

Since the case started?

I think that that's your job to do, not

Shit.

Has the defendant called you?

Man, that's your job to do, bro.

THE COURT:

THE WITNESS:

BY MR. GRIMES:

He's called you hasn't he?

Like--

Sir, you need to answer his question.

I don't know, man.

I'm going to remind you that you have to be honest here

today.

I don't know if he called me,

somebody called me,

I don't know who it was, but

I don't know who it was, bro.

Okay.

I mean, I--he just asked--I don't know, bro.

And what did that person ask you to do?

man.

Appendix Page -60-

I don't know,

Micquel Thomas v State of Michigan

Docket No. 22-5495

MR. GRIMES:

May I deal with the witness as

adverse, please?

THE COURT:

You may.

MR. GRIMES:

Thank you.

BY MR. GRIMES:

We just spoke a minute ago, remember?

I told you that if we

have information that you needed to be honest about it,

correct?

(No audible response)

All right.

THE COURT:

Let's excuse the jury for one moment,

THE CLERK:

All rise, please.

THE COURT:

Tracy,

(At 10:06 a.m.,

THE COURT:

please.

just keep them in the hall.

jury exits courtroom)

Please be seated.

Sir, listen to me

very carefully.

questions honestly.

not--he's not--you're not going to get in trouble for

anything that you have to say.

will be charged with perjury, which is a very serious crime.

You need to answer the prosecutor's

He's given you immunity today.

However, if you lie, you

Do you understand that?

THE DEFENDANT:

THE COURT:

You're

Yes.

All right.

here.

Appendix Page -61-

Let's get the jury back in

Micquel Thomas v State of Michigan

Docket No. 22-5495

THE CLERK:

(At 10:07 a.m.,

THE COURT:

All rise, please.

jury enters courtroom)

Please be seated.

Counsel, do you

want to ask your questions?

MR. GRIMES:

BY MR. GRIMES:

Yes, thank you.

Sir, I'm going to ask you very clearly, and please realize

that we have recordings of the defendant's voice.

your phone number.

We know

Did the defendant, during the pendency

of this case, ever call you and ask you not to appear in

court?

Yes.

Thank you.

MR. GRIMES:

I have no other questions.

THE COURT:

Mr. Pyrski.

CROSS-EXAMINATION

BY MR. PYRSKI:

Mr. Oden, good morning.

Good morning.

My name is John Pyrski, I represent Micquel Thomas over

there.

So-THE COURT:

Mr. Pyrski, you need to speak louder

and when you're speaking over there-

MR. PYRSKI:

Got it.

THE COURT:

--it's not going to pick up.

Appendix Page -62-

Micquel Thomas v State of Michigan

Docket No. 22-5495

MR. PYRSKI:

BY MR. PYRSKI:

Bad habits die hard.

I'm Micquel Thomas's attorney, my name is John Pyrski.

morning.

there is that you didn't see Micquel with anything.

you didn't see him with any methamphetamine.

correct?

So what I gleaned from your testimony on direct

Meaning

Is that

Yeah.

You didn't see him with a gun, is that correct?

Correct.

Have you ever known him to have methamphetamine?

I don't know him like that, but no, no I don't know this

Good

man's business.

Okay.

Yeah.

And you bought some weed from him, a little bit, a small

You know that he has some weed, right?

amount, right?

A nickel bag, yeah.

And the scale was yours.

Yeah.

It wasn't his.

No, it was it mine.

And he didn't have any kind of packaging materials with him?

No, I didn't see none.

Okay.

And that was a hand-to-hand transaction?

Appendix Page -63-

Micquel Thomas v State of Michigan

Docket No. 22-5495

You said what?

It was a hand-to-hand transaction, you and him?

With the bag of weed?

Yeah.

Yeah, that's it.

Okay.

In the car.

All right.

You did that in the car or somewhere else?

Now you said earlier that--or you told the

police that you had been to the casino earlier?

Yup.

Okay.

And on your way back you met up with Micquel to buy

some weed?

Correct.

Okay.

Correct.

All right.

The owner of the car.

All right.

Yup.

Where was she sitting when you guys were pulled over?

Passenger.

Passenger seat where the gun was found under, right?

Yup.

All right.

No.

That's the only purpose to be with him, correct?

Now who else drives that car?

And that's Constance?

Had you touched that gun?

Appendix Page -64-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Okay.

Not that I recall, no.

Okay.

don't think I touched it.

didn't say was it your gun, I

No.

--touched it.

No.

Okay.

So you could have.

All right.

said have you, you know--

Now you say when the police flicked you,

put their lights on, turned you over, you said that Micquel

moved a little.

Yeah.

Well, didn't all three of you kind of move a little?

I mean, I don't know.

I was payin' attention in the rear

view lookin' at the police.

I mean, you had weed on you.

Yeah.

Right?

Right.

Now it is.

And it wasn't legal at that point.

And you're saying Micquel had some weed on him,

right?

He gave me a bag of weed, I don't know what he had on him.

You don't know if he had anything else on him.

I don't know.

All right.

And then when he got out of the car, he got out

Appendix Page -65-

Micquel Thomas v State of Michigan

Docket No. 22-5495

kind of casually, didn't he?

I mean, he just hopped out and ran, I mean.

He just hopped out.

THE COURT:

Mr. Pyrski, if you ask a question, let

him answer, don't talk over each other, please.

BY MR. PYRSKI:

So he just sort of hopped out of the car.

And ran.

And he closed the door, didn't he?

I don't remember.

All right.

Is there anything you remember that we haven't

asked you about?

No.

All right.

Now when the police come--when the policeman

walks up to your window and asks you for your identification

and all your paperwork you were able to give him that,

right?

Correct.

Okay.

But he found that you were driving on a suspended

license, correct?

Correct.

All right.

And he decided he wasn't going to arrest you

that night.

Correct.

Correct?

He was just going to let you slide, right?

Appendix Page -66-

Micquel Thomas v State of Michigan

Docket No. 22-5495

I guess.

Okay.

So the police never came to you or to Constance, who

owned the car, to do any kind of tests on the car, to take

any DNA samples from it.

No.

All right.

MR. PYRSKI:

Is that right?

I have no other questions, Your

Honor.

THE COURT:

Counsel?

REDIRECT EXAMINATION

BY MR. GRIMES:

Sir, was your impression about why he gave you a break

because you were being cooperative with him?

I mean,

All right.

yes.

And you indicated that you don't believe you

touched the gun, but I believe that kind of references or

insinuates that maybe you knew the gun was in the car at

some point.

gun to you?

No.

Did he ever--did the defendant ever show the

When I looked back after he jumped out and ran,

the butt of a gun.

All right.

MR. GRIMES:

No other questions.

THE COURT:

Counsel?

Appendix Page -67-

I seen

Micquel Thomas v State of Michigan

Docket No. 22-5495

CROSS-EXAMINATION

BY MR. PYRSKI:

So I take it you haven't seen the video from the police

cruiser,

right?

No.

You've got those big headrests on the back of the seats in

that car?

Yeah.

All right.

And you're saying you're sat in the front seat

driver's seat and you're--this is a big car, a Cadillac,

right?

Yeah.

It's a big car.

You're telling me, telling the jury that

you were able to see under the passenger seat from the back

from where you were sitting?

I just turned around and looked like this.

All right.

You can see the floor.

And why would you do that?

I just--that's what--I don't know,

Okay.

I just did it.

And you saw the butt of a gun sticking out from

underneath the passenger seat, right?

The rear passenger seat, correct.

What part did you see?

The butt of the gun.

Appendix Page -68-

Micquel Thomas v State of Michigan

Docket No. 22-5495

All right.

Did you see the hammer part or just the butt?

Just the butt.

MR. PYRSKI:

No other questions.

THE COURT:

All right.

Any questions from the

jurors?

JURY PANEL:

THE COURT:

All right.

MR. GRIMES:

Yes, Your Honor.

MR. PYRSKI:

Yes, Your Honor.

THE COURT:

All right.

(At 10:14 a.m., witness is excused)

THE COURT:

Next witness?

MR. GRIMES:

Kirk Deleeuw.

THE COURT:

Good morning.

MR. DELEEUW:

THE COURT:

(No audible response).

May this gentleman be

excused?

Sir, you may step down.

Good morning.

Do you solemnly swear to tell the

truth, the whole truth and nothing but the truth, so help

you God?

MR. DELEEUW:

THE COURT:

I do.

Please be seated.

KIRK DELEEUW

at 10:14 a.m~, sworn as a witness, testified as follows:

Appendix Page -69-

Micquel Thomas v State of Michigan

Docket No. 22-5495

DIRECT EXAMINATION

BY MR. GRIMES:

Good morning, sir.

Good morning.

Could you please state and spell your name for me?

My name is Kirk Deleeuw, K-I-R-K

Thank you.

I'm a forensic scientist with the Michigan State Police.

D-E-L-E-E-U-W.

What do you do for a living, sir?

work at the Grand Rapids laboratory, and I'm with the

Biology DNA unit.

All right.

Biology DNA division.

I assume you had to go

through some schooling to become a forensic scientist with

MSP, is that fair to say?

Yes.

I have a bachelor of science in biology from the

University of Michigan.

Michigan State police in 2003, I went through a two year

training program where I learned the different techniques

that we use for body fluid identification and for DNA

profiling and forensic DNA analysis.

When I was hired in with the

And do you hold any degrees?

(No audible response)

What are those degrees?

Bachelor of science in biology from the University of

Michigan.

And what all work experience?

Appendix Page -70-

Did you do anything before

Micquel Thomas v State of Michigan

Docket No. 22-5495

you joined the Michigan State Police?

Before the Michigan State Police I had a couple research

jobs in Kalamazoo, but I've been with the Michigan State

Police for about 16 years now.

Okay.

So in that period of time have you always worked in

the forensic science division?

That is correct.

Okay.

And part of that, is it fair to say you do DNA

analysis for comparison?

Yes.

Okay.

Is--I'm going to hand you what's been marked as

People's Proposed Exhibit 1.

date what we refer to as Curriculum Vitae or your resume

which contains your qualifications?

Is that an accurate and up-to-

Yes, it is.

MR. GRIMES:

Thank you.

THE COURT:

Any objection, Counsel?

MR. PYRSKI:

I'd move for admission of

1, please.

Judge, we had a hearing outside of

the presence of the jury which I registered an objection to

my objection to the whole DNA--

THE COURT:

Counsel, you know the rules of

evidence, once you've made an objection, placed it on the

record--

MR. PYRSKI:

Continue my objection.

Appendix Page -71-

Micquel Thomas v State of Michigan

Docket No. 22-5495

THE COURT:

--it's continuing in Michigan.

Do you

have any objection to moving Exhibit Number 1 into evidence?

MR.

THE COURT:

PYRSKI:

No, Your Honor.

All right.

Exhibit Number 1 is moved

into evidence.

Ladies and Gentlemen, the significance of moving

something into evidence is then it can be shown to you while

you're in the courtroom here.

request those things when you're in your deliberations.

Also your jury foreperson can

can actually look at them back in the jury room.

Go ahead, Counsel.

MR. GRIMES:

BY MR. GRIMES:

Thank you.

Sir, have you ever been qualified as an expert in the field

of forensic science as a DNA analysis?

Yes,

How many times?

I would say hundreds of times for court in different

You

I have.

counties throughout the State of Michigan.

All right.

Thank you.

MR. GRIMES:

I'd mcive for this witness to be

qualified as an expert in the field of DNA analysis.

THE COURT:

All right.

MR. PYRSKI:

No objection to the qualifications.

THE COURT:

All right.

Appendix Page -72-

Counsel, any voir dire?

Then he'll be qualified as

Micquel Thomas v State of Michigan

Docket No. 22-5495

an expert.

Ladies and Gentlemen, when we qualify somebody as

an expert then they can give you opinions in the field that

they are experts in and you may consider them.

Go ahead, Counsel.

MR. GRIMES:

Thank you, Your Honor.

BY MR. GRIMES:

Could you tell the jury what DNA is?

Specifically DNA stands for deoxyribonucleic acid.

It's

basically the blueprint for life.

So it codes for all of

the biological chemistry that goes on in your body.

percent of our DNA is actually the same and it's what makes

us human beings, but then there's that 1 percent that's

different so that can go for eye color, hair color,

color, height.

looking at areas of the DNA that don't code for anything

like this.

we're looking at an area that's called the short tandem

repeat.

depending on what your mother and your father pass on to

you, the number of repeat portions they have will come to

you and that's how we come up with the DNA profile.

skin

In forensic DNA analysis we're actually

So we're not looking at hair color or eye color,

And so basically it goes based on inheritance so

All right.

Correct.

How is DNA deposited?

Perfect.

So everybody has DNA,

correct?

Is DNA ever deposited onto an object?

Appendix Page -73-

Micquel Thomas v State of Michigan

Docket No. 22-5495

So DNA can be transferred to an object through body fluids

so through blood or saliva or semen, but we also can

transfer our DNA from our skin cells or sweat.

touching an item you can transfer DNA to something or by

your clothes rubbing on your neck you can transfer DNA or

skin cells to that item.

Okay.

So by

And so part of your responsibilities with the

Department of State police forensic science division, are

you called upon to analyze DNA from certain objects and see

if they match with DNA belonging to a certain individual.

Correct.

All right.

That's probably primarily what you do,

is that

correct?

Yes, when references are available for that comparison,

we'll do comparisons between evidence and a reference

sample.

And were you asked to do that in this particular case?

Yes,

What's the procedure if you could take the jury through it

I was.

briefly for analyzing DNA samples and comparing to see if

they match?

So for this case we received two swabs that were collected

from a gun, and the initial step on the processing for that

is we take--it's basically a cotton swab that was used to

swab the gun, and we're going to take a cutting from that

Appendix Page -74-

Micquel Thomas v State of Michigan

Docket No. 22-5495

cotton swab and place it into a DNA extraction tube.

first step or the screening, basically we're not doing any

testing for like saliva or blood.

looking for contact type DNA that was on the firearm.

So the

For this case we're

The process for doing a DNA profile is basically a

four step process.

Our first step is going to be

extraction.

chemicals to those swabs that were collected from the gun,

and what the chemicals are doing is they're breaking open

So what we're doing is we're adding various

this other material and purifying the DNA sample.

the extraction process it's chewing up all the proteins and

all the other cellular material and things that we don't

need and we're ending with a purified DNA sample.

So after

The next step is going to be quantification.

we need to determine how much DNA is present in that sample,

and so we have a process that we use that quantifies that

amount of DNA for our sample.

have from the gun swabs we then do a process called

polymerase chain reaction or PCR.

Once we know how much DNA we

When we're looking at a DNA profile we're looking

at 24 different areas of the DNA on different chromosomes of

the DNA to create your DNA profile.

allows us to replicate and copy the DNA that was found on

that gun so that we could better visualize the DNA profiles.

What it does is it makes millions of copies of those 24

Appendix Page -75-

What the PCR does is it

Micquel Thomas v State of Michigan

Docket No. 22-5495

different locations on the DNA molecule that were found on

the gun.

The last step is going to be called

electrophoresis.

DNA that was multiplied many times and we're going to

separate it out so that we can actually visualize the DNA

profile.

with an electric current through like a gel, and then we

have cameras that visualize the different chunks of DNA that

we looked at for those 24 areas and it comes up with a DNA

profile.

And so this is where we'll take all of the

And so basically it's running the DNA through--

So of the 24 locations the way the DNA profile

works is you will get one DNA type from your mother and one

DNA type from your father, so one of the locations we look

at is called D-3.

mother may have 15 repeat regions at this location, and your

father may have 16 repeat regions, and so through

inheritance your DNA type at that location would be a 15/16,

and we go through this through the 22, 24 different areas on

the DNA to come up with your DNA profile.

looking at a series of numbers which represents the numbers

of repeats and comparing the DNA types at all 24 of those

locations to the DNA from an evidence sample.

It's on the third chromosome.

So your

So it's basically

With the exception of identical twins is everybody's DNA

profile different, or should it be?

Appendix Page -76-

Micquel Thomas v State of Michigan

Docket No. 22-5495

That is correct.

Okay.

So in this case you receive a swab from the pistol

that was submitted to your lab, correct?

Yes.

Which would have collected what you referred to as contact

DNA or DNA which would have been deposited by perhaps skin

cells, is that correct?

That is correct.

All right.

DNA contributors?

Yes.

Okay.

And you were able to come up with a profile of

Is that correct?

And then you compare it to a swab taken from the

defendant himself, correct?

Yes, we also received a buccal swab from Micquel Thomas.

Basically what a buccal swab is, it's a swab from the inside

of your cheek.

or buccal cells, it's just a high concentration of DNA, so

an easy way to get a reference sample to be used for

comparison.

Those cells there are called buccal swabs--

Okay.

So the DNA results from the swab of the gun indicated that

And then you compare them to see what?

there was a mixture of multiple individuals on the firearm.

When I was speaking a little about inheritance earlier and

when we look at a DNA profile from a reference sample or a

single source individual you're going to have two--one or

Appendix Page -77-

Micquel Thomas v State of Michigan

Docket No. 22-5495

two called DNA types at each location because you get one

type from your mother and one type from your father.

get the same DNA type you're going to have just one peak

called, or one type called at that location.

If you

When we're looking at the evidence we can

determine the number of donors on the item by looking at how

many peaks are total at each of the locations.

look at the third chromosome at D-3, if there are four peaks

present we can say well, there's more than one donor here

because we have four different peaks present, and so we can

determine, okay, there's at least two donors, and so we can

determine the number of donors by looking at the number of

DNA types that are present at each location.

So when we

So for the mixture of contributors on the gun, we

determined that it was a mixture of at least four

individuals for our analysis on the gun.

All right.

Correct.

All right.

So four people's DNA on the gun at least.

And do you--once you have that, do you attempt

to compare that to determine whether the DNA on the swab

from Micquel Thomas is one of those contributors to the DNA

on the gun?

Yes, we do.

Okay.

Yes.

And were you able to do that in this particular case?

Appendix Page -78-

Micquel Thomas v State of Michigan

Docket No. 22-5495

And what were your findings and conclusions when

you did that analysis?

All right.

When we're doing a comparison of a reference sample to a

mixture of DNA types, we use a software program called

STRmix.

the mixture of DNA types from the evidence and it tries to

come up with the best fit for what four donors would

contribute to that mixture.

process of the mixture of DNA types and says, okay, Donor 1

would most likely be these types, and Donor 2 could be these

types, and so it gives kind of a weight to the best fit for

the data that we have.

our reference sample to those best fit of the mixture data.

When we're presenting the data in court we give a

And what this software program does is it looks at

So it does a deconvolution

And what it then does is it compares

weight or a probability to that match.

program it gives the resulting data and what's called the

likelihood ratio.

comparing the weight of two different scenarios.

So for this software

And the likelihood ratio is basically

So in this case we have two scenarios or two

hypothesis.

mixture of DNA types from the gun swabs is from Micquel

Thomas and three additional donors, because we have four

donors on the gun.

probability hypothesis would be that the DNA is from four

unknown unrelated individuals.

Our first scenario hypothesis would be that the

Then our other scenario, our other

Appendix Page -79-

Micquel Thomas v State of Michigan

Docket No. 22-5495

So we're looking at the data that's given, which

is more likely.

Is it more likely that when we compare the

reference sample from Micquel Thomas to be present on the

gun or would Micquel Thomas be excluded or would there be

more support that his DNA isn't present.

the ratio or the scenario that we're going to present.

So that's kind of

And when you made that comparison, what was your conclusion?

Could I refer to my report, please?

Yes, please.

So based on the DNA typing results obtained from the swabs

of the gun is at least 45 quintillion times more likely it

originated from Micquel Thomas and three unrelated

individuals than if it originated from four unrelated

individuals.

that Micquel Thomas is a contributor to the DNA results from

the swabs of the gun.

hypothesis that his DNA is present in the mixture versus

that his DNA would not be present in the mixture.

So this analysis provides very strong support

So there was more weight put on the

To the tune of it being 45 quintillion times more likely

that his DNA is on the gun, correct?

Correct.

And could you give the jury, I'm familiar with a million and

a trillion and a billion, could you give the jury some

concept of how many zeros a quintillion is?

I believe a quintillion is going to be 19, 18 zeros, so it

Appendix Page -80-

Micquel Thomas v State of Michigan

Docket No. 22-5495

would 45 with 18 zeros behind it.

45 with 18 zeros behind it?

Correct.

All right.

Are these findings and conclusions reflected in

People's Proposed Exhibit 2, which I'm handing you?

Yes, this is a signed copy of the report with the

conclusions that we just discussed on this case.

MR. GRIMES:

Move for the admission of 2, please,

Your Honor.

THE COURT:

Counsel?

MR. PYRSKI:

No objection, Your Honor.

THE COURT:

All right.

MR. GRIMES:

Thank you.

That will be entered into

evidence.

BY MR. GRIMES:

And for purposes of your analysis, you would have to have--

if you wanted to determine who the other three contributors

were you would have to have swabs, what was referred to as

buccal swabs,

they match, is that correct?

Correct.

from those potential contributors and see if

So we could compare--once we have the data from

the swabs from the gun, we can compare any reference sample

to it.

going to change the resulting comparison to Micquel Thomas.

The 45 quintillion times more likely supporting him being

However, as we do more--further comparisons it's not

Appendix Page -81-

Micquel Thomas v State of Michigan

Docket No. 22-5495

present isn't affected by however many other comparisons we

do to the firearm, but we could do additional comparisons in

the same faction to other reference samples.

And if--even if you did it would not affect the fact that

Micquel Thomas's DNA is on that gun to the tune of 45

septillion (sic) times more likely than it's not.

45 quintillion, correct.

Sorry.

Correct?

MR. GRIMES:

Thank you very much.

THE COURT:

Mr. Pyrski.

MR. PYRSKI:

Thank you, Your Honor.

MR. GRIMES:

May I publish 1 and 2 to the jury,

Your Honor?

THE COURT:

Yes.

MR. GRIMES:

Thank you.

THE COURT:

Why don't you put it on the overhead

projector, Counsel.

MR. GRIMES:

BY MR. GRIMES:

Wait, Mr.

Pyrski.

Go ahead.

Yes, Your Honor.

Sir, that conclusion is reflected right here on page two,

that correct?

Yes.

All right.

Thank you.

THE COURT:

Go ahead, Mr. Pyrski.

MR. PYRSKI:

Thank you, Your Honor.

Appendix Page -82-

Micquel Thomas v State of Michigan

Docket No. 22-5495

CROSS-EXAMINATION

BY MR. PYRSKI:

Mr. Deleeuw, good morning.

Good morning, sir.

So, you know, I don't know DNA like you do, but I've heard a

lot about it.

I'm not sure the jurors have caught

everything that you said, so rim going to go over some

basics with you again.

somebody swabbed--somebody somewhere swabbed the gun and

brought that swab to you, right?

Yes, that is correct.

All right.

What you're telling us is that

And then someone brought another swab from my

client, Micquel Thomas, and brought that to you.

Yes.

Okay.

And at some--so your chemical process, you compare

those two swabs, right?

Yes.

On the first swab from the gun you find four individuals'

DNA on the gun, right?

That's correct.

And no one told you what part of the gun that was taken

from,

right?

I do not believe that information was passed on to us, no.

It just said it was swabs off a gun is what you know.

Swabs on a gun, correct.

Appendix Page -83-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Okay.

You know that those swabs from Mr. Thomas came from

his mouth,

right?

It's a buccal swab.

Correct.

Buccal swab, all right?

The buccal cells.

All right.

you're now comparing those cells with the ones that appear

on the swab from the gun, right?

(No audible response)

And once again there are four individuals whose DNA was on

that gun,

is that correct?

Yes, that is correct.

That's what you testified to earlier?

(No audible response)

Now--and my client's DNA was one of those four,

is that

right?

Yes, sir.

Okay.

Now you--when you received the swab from the gun did

you receive swabs from anybody else other than Micquel

Thomas to compare those--who those other four individuals

are?

I believe we did not receive any other reference samples.

All right.

So you're just comparing the four sets of DNA to

Micquel Thomas,

That is correct.

All right.

jury.

Okay.

is that right?

I'm just trying to dilute this down for the

Now, did you--you may have already answered

Appendix Page -84-

Micquel Thomas v State of Michigan

Docket No. 22-5495

this question, but you did not receive a buccal swab from

Darrell Oden, did you?

No, I did not.

Okay.

And so you were unable to process any other

comparisons other than the one buccal swab that you had, is

that right?

Yes.

All right.

So you can confidently say that my client's DNA

was on that gun.

Yes.

Can you tell me how it got there?

I cannot.

All right.

You--I mean, there's DNA samples on the floor in

this room, isn't there?

There are cells on the floor--

Possibly, yes.

You could sweep this floor and find DNA on it, couldn't you.

Correct.

All right.

I do not.

All that you know is that somehow he touched it.

You don't know how that DNA got on that gun.

Or some of

his cells fell on the gun, right?

(No audible response)

His--some of his cells ended up on the gun, is that what

you're saying?

That's correct.

Appendix Page -85-

Micquel Thomas v State of Michigan

Docket No. 22-5495

And that could have come by any mode of contact, someone

could have touched him with the gun, right?

It's possible.

It could have been on the floor when he walked by and his

skin cells could have fell on it, correct?

More unlikely, but possible.

Well--

The quantity of DNA that was obtained on the gun, it's not

as if one or two cells were on the gun.

that we had present from the donor was a higher quantity

that would be more likely from touching or sweat type of

transfer, not a random shaking of skin cells.

The quantity of DNA

But do you know what the source of the DNA on the gun was?

Was it skin cells?

you?

No.

All right.

Was it oil on it?

You don't know, do

It could have--so it could have been just

someone touched the gun, other people touched the gun and my

client touched the gun.

Right.

You are unable to tell us today whether he actually had that

That is correct.

gun in his hand.

That is correct.

All right.

Is that right?

MR. PYRSKI:

No other questions, Your Honor.

Appendix Page -86-

Micquel Thomas v State of Michigan

Docket No. 22-5495

THE COURT:

Counsel?

REDIRECT EXAMINATION

BY MR. GRIMES:

Quantity of the defendant's DNA that you described, however,

would be consistent with him holding the gun, is that fair

to say?

It would be consistent with either holding the gun, or

somehow a higher quantity of DNA got on it.

So if we go

back to the scenario of it laying on the ground and he spit

on it or something, you have a lot of DNA in your saliva but

it's more in reference to like contact DNA.

dealing with contact type samples, basically there's this

theory called the Locard's Exchange Principle.

means if I take--you're holding your pen and so he's

transferred a lot of DNA to that pen throughout this

morning.

there's a chance that I'll place some of my DNA on that

item.

off some of his DNA.

get these multiple donors on items, like door handles,

because you have multiple people touching them, and so every

time there's a contact, there's potential for an exchange.

So whether you're leaving some of your DNA present or taking

off someone else's DNA, and so that's how we get these

mixtures on items through that type of principle.

So when you're

And so it

If he were to hand it to me and I touch it,

But then also during that exchange I could also take

And so that's how a lot of times we'll

Appendix Page -87-

Micquel Thomas v State of Michigan

Docket No. 22-5495

Perfect.

Thank you very much.

THE COURT:

Mr. Pyrski?

RECROSS-EXAMINATION

BY MR. PYRSKI:

So what you're saying is of the four sets of DNA that were

on that gun you don't know how any of those samples got on

that gun, do you?

I do not.

MR. PYRSKI:

That's all I have, Your Honor.

THE COURT:

Any questions from the jurors?

JURY PANEL:

THE COURT:

All right.

MR. PYRSKI:

Yes, Your Honor.

MR. GRIMES:

Yes, thank you, Your Honor.

THE COURT:

Thank you sir, you may step down.

THE WITNESS:

(At 10:37 a.m., witness is excused)

THE COURT:

Next witness?

MR. GRIMES:

Officer Aaron Gray, please.

THE COURT:

Good morning, Officer.

(No audible response) .

May this gentleman be

excused?

Thank you.

If you would,

come right up and stand behind the witness chair, please?

Do you solemnly swear to tell the truth, the whole truth and

nothing but the truth, so help you God?

OFFICER GRAY:

I do.

Appendix Page -88-

Micquel Thomas v State of Michigan

Docket No. 22-5495

THE COURT:

THE WITNESS:

Please be seated.

Thank you.

OFFICER AARON GRAY

At 10:38 a.m., sworn as a witness, testified as follows:

DIRECT EXAMINATION

BY MR. GRIMES:

Officer, good morning.

Good morning.

Could you please state and spell your name?

Aaron Gray, A-A-R-O-N

Thank you.

I'm a police officer with Wyoming Police Department.

How long have you been doing that?

Going on four years.

All right.

Yes, sir.

Where at and for how long?

Grand Rapids Community College for a year and a half.

All right.

Yes, sir.

And were you working the evening sort of around midnight of

G-R-A-Y.

What do you do for a living, sir?

Prior to that any law enforcement experience?

Were you--you're a road patrol officer you said?

October 7th, 2018, into October 8th, of 2018?

Yes, I was.

So you're a third shifter?

Second-75

Appendix Page -89-

Micquel Thomas v State of Michigan

Docket No. 22-5495

downstairs,

stretch your feet folks.

THE CLERK:

(At 10:58 a.m.,

(At 10:58 a.m., court in recess)

(At 11:15 a .m., court reconvened with all parties

and jury present)

(Witness has resumed the witness stand)

THE COURT:

All rise, please.

jury exits courtroom)

Please be seated.

Officer, you're still under oath.

BY MR. GRIMES:

All right.

Go ahead, Counsel.

Officer, have you had a chance to review Proposed Exhibit

15, in-car video related to this incident?

Yes, sir.

All right.

And what I showed you moments ago, that's this

incident or this scene as you recall it taking place,

correct?

Yes, sir.

All right.

Very good.

THE COURT:

Any objection, Counsel?

MR. PYRSKI:

No objection to 15.

THE COURT:

15 will be entered into evidence.

MR. GRIMES:

All right.

Right?

For the record,

15?

I'm going

to play Exhibit 15 at the beginning through 6 minutes and 40

seconds in.

Or time stamp 6:40 would be accurate.

(At 11:17:30 a.m., begin playing Exhibit 15)

Appendix Page -90-

Micquel Thomas v State of Michigan

Docket No. 22-5495

(At 11:24:34 a.m., pause playing Exhibit 15)

BY MR. GRIMES:

You indicate--

MR. GRIMES:

--for the record I'm stopping at 6:40

in the morning on the time stamp on the video.

pick it back up at 8:50 in the morning.

BY MR. GRIMES?

I'm going to

And you indicated that Mr. Oden was cooperative with you,

correct?

Yes, sir.

And at some point in time he identifies him by name,

correct?

That's correct.

All right.

I'm going to pick that up again at--

(At 11:25:06 a.m., continues to play Exhibit 15)

(At 11:25:26 a.m., pause playing)

All right.

I've stopped at 9:10 in the morning.

I'm going to pick it back up.

interview with him under Miranda, is that correct?

And then

You said you had a second

That's correct.

MR. GRIMES:

For the record, I'm starting at 15

minutes 32 seconds on the time stamp.

(At 11:25:49 a.m., continues to play)

(At 11:27:39 a.m., pause playing)

Appendix Page -91-

Micquel Thomas v State of Michigan

Docket No. 22-5495

BY MR. GRIMES:

Officer, what's going on right there?

Were you relaying

information he's giving you to dispatch to find out if you

can get an address for the defendant?

Correct.

Okay.

And what are you notified of through dispatch that

he's observing and confirming for you?

Dispatch was running kind of names in the area of Taft,

basically in the 2900 block to see if they couldn't find

something similar.

saying that they had a Katina Thomas at, I think it was 2939

Taft, and that's when he had pointed out--he was looking

over my shoulder, I think, and pointed out that that's--he

thought that it was his cousin.

They had sent me a message on my MDT

The defendant's.

Same last name in the same area where he indicated he had

picked up the defendant, correct?

Yes, sir.

All right.

(At 11:28:30 a.m., continues playing)

(At 11:30:15 a.m., pauses playing)

MR. GRIMES:

I'm going to stop it at 19 minutes and 8 seconds.

Do you

ultimately have a picture of him pop up on the screen and he

points him out as the person?

Yes,

sir.

Appendix Page -92-

Micquel Thomas v State of Michigan

Docket No. 22-5495

All right.

And then the last part I want to do.

At some

point are you notified that the other fellow officers have

discovered drugs in the flight path of the defendant?

At some point I was, when I went to the area.

Okay.

So at some point you leave the area to join fellow

officers, correct?

That's correct.

And that's over at the Cherry Street Health Clinic?

Yes, sir.

MR. GRIMES:

to 40 minutes and 25 seconds.

that I play, very brief.

seconds.

For the record, going to forward now

This will be the last portion

All right.

40 minutes and 24

(At 11:31:00 a.m., begin playing)

(At 11:31:42 a.m., pause playing)

BY MR. GRIMES:

And right there is the second scene where the drugs are

located, correct?

That's correct.

All right.

please?

Could you describe that scene for the jury,

What are you--what's in that area?

In that area it's basically chain link fencing from the

Cherry Health Building south till it hits the grass and then

it continues west to the wood line and the whole area is

basically fenced in.

Inside of it, as you can see, there

Appendix Page -93-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.