                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      July 30, 2015
               Plaintiff-Appellee,

v                                                                     No. 311257
                                                                      St. Clair Circuit Court
FREDERICK FREEMAN,                                                    LC No. 86-128340-FC

               Defendant-Appellant.


Before: SAAD, P.J., and M. J. KELLY and SHAPIRO, JJ.

SHAPIRO, J. (concurring).

       I reluctantly concur with the majority’s affirmance of the trial court’s denial of
defendant’s motion for relief from judgment. Defendant’s only claim before this Court—that the
newly discovered original photographic lineup shown to eyewitnesses required a new trial—
while not wholly devoid of merit, is insufficient to warrant relief under the standard for a
successive motion for relief from judgment under MCR 6.500 et seq.

       I write separately because, after reviewing the record, I conclude that defendant’s trial
was flawed in several respects and that the United States District Court for the Eastern District of
Michigan did not err in granting him habeas relief. Freeman v Trombley, 744 F Supp 2d 697
(ED Mich, 2010).1 However, the Sixth Circuit Court of Appeals reversed that decision and that
determination is not before this Court. Freeman v Tombley, 483 Fed Appx 51 (2012).
Nonetheless, these flaws warrant discussion.



1
  The federal district court granted defendant habeas relief on the following bases: (1) that trial
counsel obstructed defendant’s right to testify; (2) that trial counsel was ineffective for failing to
call a particular alibi witness; (3) that the prosecution failed to disclose promises made to a
jailhouse-informant witness, and; (4) that defendant’s original appellate counsel was ineffective
for failing to raise a claim regarding the active substance abuse of defendant’s trial attorney.
Freeman, 744 F Supp 2d 697. Defendant’s habeas petition also raised credible arguments
regarding the utter lack of evidence to support the prosecution’s theory that he traveled by
private plane from Escanaba to Port Huron and back on the day of the murder, and, to a lesser
degree, his claim that the jailhouse informant recanted his testimony. Id.



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        Defendant was convicted of first-degree murder, MCL 750.316, for shooting and killing
the victim in Port Huron in November 1985. Defendant was implicated by his identification in a
photographic lineup: one witness identified defendant as the individual he saw lurking in the
bushes near the scene of the shooting and another witness identified defendant as the individual
he saw driving out of the parking lot after the shooting. In his defense, defendant presented
significant evidence that he was actually in Escanaba at the time of the shooting. Nonetheless,
the jury convicted defendant as charged.

         At trial, the prosecution presented a wealth of “other acts” evidence that should not have
been admitted and was likely prejudicial. In particular, the victim’s girlfriend was allowed to
testify that, while she was dating defendant, he raped and otherwise stalked her. This Court, and
the federal district court, held that defendant was not deprived of the effective assistance of
counsel by his trial counsel’s failure to object to this testimony on MRE 404(b) grounds. See
Freeman, 744 F Supp 2d at 708-710; People v Freeman, unpublished opinion per curiam of the
Court of Appeals, issued September 13, 1993 (Docket No. 103276). Specifically, those courts
found counsel’s decision not to object to be reasonable in light of the fact that, on cross-
examination, he attempted to use this testimony to impugn the witness’s credibility, e.g., why
would she have continued to date defendant if he actually exhibited this behavior? I respectfully
disagree with this conclusion. As those courts noted, had counsel objected, the trial court would
likely have excluded, or at least significantly limited the extent of, this testimony.2 See
Freeman, 744 F Supp 2d at 708-710. In particular, the allegations of rape against defendant have
no bearing on whether defendant committed the murder for which he was on trial, other than
demonstrating a general propensity to commit violent acts. This is specifically the type of
evidence MRE 404(b) seeks to exclude. Moreover, the testimony was of very limited relevance
other than to establish propensity and the danger of unfair prejudice was high—by the time this
witness finished testifying on direct examination, defendant had been presented to the jury as a
man of very bad character and violent tendencies whose imprisonment would be justified even if
he was not guilty of the murder with which he was charged.

        Even less justified was the extensive testimony regarding defendant’s lengthy, frequent,
and very dubious claims to his acquaintances that he was a ninja and part of a deadly secret ninja
organization. The witnesses themselves testified that they did not believe defendant’s bizarre
claims. This testimony, which consumed a full day of trial, was admitted as other-acts evidence
despite the absence of a finding that such testimony was related to “proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of
mistake or accident[.]” MRE 404(b)(1). Indeed, the evidence appears to have been wholly
irrelevant to the trial. Defendant was convicted of shooting and killing the victim. Whether he
made bizarre and unbelievable claims regarding his status as a ninja had no “tendency to make


2
  There was testimony to the effect that defendant had threatened to kill the victim and his
girlfriend, which was certainly relevant to charge against defendant. Similarly, whether
defendant and the victim’s girlfriend were previously involved in a romantic relationship could
be admissible as motive evidence; however, the alleged rape was inadmissible other-acts
evidence.



                                                -2-
the existence of any fact . . . of consequence . . . more probable or less probable[.]” MRE 401.
These witnesses also testified to defendant’s possession, or claimed possession, of “ninja
weapons.” The instant murder was committed with a shotgun, which can hardly be characterized
as a “ninja weapon,” to the extent the term can be defined in this context, rendering that
testimony equally irrelevant and inadmissible under MRE 404(b).

        Finally, it cannot be said that the improper admission of this other-acts testimony was
harmless. MCR 2.613(A). There was extensive alibi testimony that the jury may well have
given more weight had defendant not been presented as a rapist with delusions about belonging
to a secret ninja organization. For these same reasons, there is a reasonable probability that, but
for counsel’s failure to object to the discussed testimony, the outcome of defendant’s trial would
have been different. Unfortunately, the Sixth Circuit’s decision precludes us from granting relief
on any of these grounds. And because I do not believe that the single claim before us merits
relief under MCR 6.500 et seq., I must concur in the decision to affirm the trial court’s denial of
defendant’s motion for relief from judgment.



                                                            /s/ Douglas B. Shapiro




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