                             STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    December 6, 2016
                Plaintiff-Appellee,

v                                                                   No. 323251
                                                                    Macomb Circuit Court
RONALD ANTHONY DIMAMBRO, JR.,                                       LC No. 2013-004215-FC

                Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

                Plaintiff-Appellant,

v                                                                   No. 332319
                                                                    Macomb Circuit Court
RONALD ANTHONY DIMAMBRO, JR.,                                       LC No. 2013-004215-FC

                Defendant-Appellee.


Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.

JANSEN, P.J. (dissenting).

        I respectfully dissent. I would reverse the trial court’s order granting defendant’s motion
for a new trial and affirm defendant’s convictions and sentences. I do not believe that a Brady1
violation occurred in this case for two reasons. First, I do not believe that the medical examiner
falls within the scope of the “government” for the purposes of determining whether the
prosecution suppressed evidence. Second, I do not believe that the 32 photographs from the
neurological portion of the autopsy were material.




1
    Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).


                                                -1-
                               I. SUPPRESSION OF EVIDENCE

       As stated in the majority opinion, in order to establish a Brady violation, three elements
must be established: “(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). With regard to the requirement that the prosecution suppressed evidence, our
Supreme Court has explained that the government is responsible for evidence within its control,
even if that evidence is unknown to the prosecution. Id. at 150. The United States Supreme
Court has explained that “the individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including the police.” Kyles v
Whitley, 514 US 419, 437; 115 S Ct 1555; 131 L Ed 2d 490 (1995).

        I disagree with the majority’s conclusion that a medical examiner falls within the scope
of the “government” for the purposes of establishing a Brady violation. My disagreement with
the majority stems from the fact that a medical examiner has a separate set of duties, independent
of the prosecution, to determine the cause and manner of suspicious deaths. Our Supreme Court
has established that a county medical examiner’s duties are owed to the state. See Maiden v
Rozwood, 461 Mich 109, 132; 597 NW2d 817 (1999). The county medical examiners act, MCL
52.201 et seq., details the duties that a medical examiner owes to the state. Specifically, MCL
52.202 provides that a medical examiner or deputy medical examiner has a duty to investigate
the cause and manner of a death under certain circumstances, including when “[t]he individual
dies by violence,” or “[t]he individual’s death is unexpected.” MCL 52.202(1). The county
medical examiner is therefore required to investigate suspicious deaths and come to an
independent conclusion on the cause and manner of death. The medical examiner is not under
the control of the prosecution. Unlike with the police or other law enforcement agencies, the
prosecution would not have any way of knowing if any documents created by the medical
examiner were missing. Therefore, I conclude that the medical examiner is not within the same
category as a police officer or other investigator working on behalf of the prosecution. See, e.g.,
People v Stern, 270 AD2d 118, 119; 704 NYS2d 569 (2000) (concluding that documents in the
possession of the chief medical examiner could not be attributed to the prosecution because the
medical examiner’s office was not a law enforcement agency).2

        The majority points out that the medical examiner may be required to testify on behalf of
the state at trial. While it is true that “[a]ny and all medical examiners or their deputies may be
required to testify in behalf of the state in any matter arising as the result of any investigation
required under this act,” MCL 52.212 (emphasis added), the medical examiner’s duty is broader
than simply obtaining evidence on behalf of the prosecution. MCL 52.212 provides that the
medical examiner may be required to testify on behalf of the state, suggesting that the medical
examiner is not bound to make findings regarding the cause and manner of death that are
favorable to the prosecution, but rather, is required to testify on behalf of the prosecution when
the medical examiner’s testimony aligns with the prosecution’s theory of the case. Accordingly,


2
 While cases from foreign jurisdictions are not binding on this Court, they may be persuasive.
See People v Daniels, 311 Mich App 257, 268 n 4; 874 NW2d 732 (2015).


                                                -2-
I conclude that a medical examiner does not constitute the “government” for the purposes of
determining whether the prosecution suppressed evidence.

                                       II. MATERIALITY

        I also disagree with the majority’s conclusion that the 32 photographs were material. As
outlined in the majority opinion, in order to establish that the evidence was material, “a
defendant must show that ‘there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.’ ” Chenault, 495 Mich at
150 (citation omitted). Further “ ‘[a] “reasonable probability” is a probability sufficient to
undermine confidence in the outcome.’ ” Id. (citation omitted). “The question is whether, in the
absence of the suppressed evidence, the defendant ‘received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.’ ” Id. at 150-151 (citation omitted).

        First, Dr. Cassin’s testimony regarding the effect of the surgical intervention on the right
side of the child’s head encompassed the testimony provided by Dr. Dragovic. At trial, Dr. Spitz
opined that the injury to the child’s brain was intentionally inflicted and that the manner of death
was homicide. He explained during the course of discussing his autopsy findings that the
bruising on the child’s brain indicated that there was a direct injury to the brain underneath the
area of impact. In other words, the bruising on the child’s brain was the result of the forceful
contact of the child’s head with a nonyielding object. Dr. Spitz explained that he was aware that
the child had undergone medical intervention, but explained that this did not affect his ability to
determine the cause and manner of the child’s death. In contrast, during the Ginther3 hearing,
Dr. Dragovic testified that the bruising on the child’s brain was related to the surgical
intervention following the incident and was not a direct result of the child’s injury. Dr. Dragovic
concluded that it was impossible to determine whether the injury was intentionally inflicted
based solely on the nature of the injury.

         Dr. Cassin also testified that the surgical intervention performed on the right side of the
child’s head made it difficult, if not impossible, to interpret the injury finding. Dr. Cassin noted
in his report that “bruising was described in the scalp and on the right side of the brain,” thus
indicating that he was aware of the bruising on the child’s brain. He testified, “Surgical
intervention can significantly complicate the injury finding and make the interpretation of injury
finding difficult, if not actually impossible, in some details.” When pressed for additional
details, Dr. Cassin clarified as follows:

                Q. Well, specifically, with this case, is there anything relevant with the
         surgical site or surgical intervention and the – I believe it’s Dr. Sptiz’s [sic]
         autopsy report indicating blood [sic] head trauma to the right side of the head.

               A. Yes, it did. And the surgical intervention that you mention also
         happened on the right side of the head. [Emphasis added.]



3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -3-
Thus, contrary to the majority’s conclusion, Dr. Cassin did testify that the surgical intervention
performed on the right side of the child’s head complicated, or even rendered impossible, the
interpretation of the child’s injuries. While Dr. Cassin did not specifically opine regarding the
effect of the surgical intervention on the cortex of the child’s brain, his testimony regarding the
effect of the surgical intervention broadly encompassed the entire right side of the head. The
testimony effectively contained the same conclusion that Dr. Dragovic made during the Ginther
hearing.

       In fact, Dr. Dragovic testified to as much during the Ginther hearing, explaining that Dr.
Cassin came to the same conclusion that he did regarding the surgical intervention, but did not
have the photograph evidence to support his opinion:

             Q. Is there something that would change based on those 32 photos that
       you were given?

              All you’re saying is he didn’t have the 32 photos. Based on the 32 photos
       you have, what are you saying that’s different than Dr. Cassin? What’s [sic] what
       I’m asking you.

              A. I am saying that there is no evidence of brain contusion there; that the
       contusions are all the result of complications of surgical procedure. That’s what
       I’m saying.

               Q. Isn’t that exactly what Dr. Cassin testified to?

                A. It’s pretty – that was his thought. Bus, he did not have anything to say
       here it is, here is the evidence.

Dr. Dragovic explained that although Dr. Cassin came to the same conclusion, Dr. Cassin lacked
the photographic evidence to support his position, which caused Dr. Cassin to be “limited in his
assessment.” However, as even Dr. Dragovic recognized, Dr. Cassin’s conclusion regarding the
effect of the surgical intervention on the injury finding was essentially the same as Dr.
Dragovic’s testimony.

        As noted by the majority, Dr. Cassin’s testimony was similar to Dr. Dragovic’s testimony
in several other important respects. Both doctors testified that the injury was most likely the
result of blunt force trauma stemming from the child’s head hitting a nonyielding surface. Most
notably, both medical examiners testified that it was not possible to determine from the nature of
the injury whether the injury was intentionally inflicted. Thus, both experts ultimately came to
the same conclusion regarding the manner of death. Dr. Cassin’s testimony establishes that he
provided the solid expert defense to which defendant was entitled. Accordingly, I do not believe
that there is a reasonable probability that, had the photographic evidence been disclosed to the
defense, the result of the proceeding would have been different.

        I further disagree with the trial court’s reliance on the testimony of Dr. Dragovic in
determining that the 32 photographs were material. Dr. Dragovic did not testify at trial and was
not otherwise involved in the case until after the trial concluded. Although the majority opinion

                                                -4-
assumes that Dr. Dragovic would have testified at trial, or that another expert would have
testified to the same conclusions regarding the photographs, defendant’s trial attorney did not
testify at the Ginther hearing that he would have sought to admit additional expert testimony as
the result of receiving the 32 photographs. Dr. Dragovic’s testimony, therefore, does not
establish that the testimony presented at trial would have been different had the defense received
the 32 photographs. I do not believe it is proper for the trial court to consider the opinion of an
expert who was not involved in the original case. It is possible for the defense in any case, once
the trial is complete, to find an expert whose testimony is at variance with the expert testimony
presented at trial. Therefore, I believe it is improper to consider the opinion of an expert who
was not involved in the original trial.

        Furthermore, neither Dr. Cassin nor Dr. Spitz testified at the Ginther hearing regarding
the effect that the 32 photographs would have had on their testimony. Without the testimony of
Dr. Cassin at the Ginther hearing, it is impossible to determine whether he would have referred
to the 32 photographs as additional support for his conclusions regarding the effect of the
surgical intervention on the child’s head or whether he would have come to the same conclusion
as Dr. Dragovic regarding the significance of the 32 photographs. Additionally, approximately
290 photographs were provided to the defense before trial. The evidence provided to the defense
was sufficient for Dr. Cassin to form an opinion on behalf of the defense. Therefore, the
evidence that was provided to the defense diminishes the materiality of the 32 additional
photographs.

       Finally, I believe that these 32 photographs cannot be viewed in isolation from the other
evidence of guilt presented by the prosecution. Instead, I believe that it is necessary to examine
the additional testimony and evidence presented at trial in order to determine whether the 32
photographs were material.

         Additional testimony was presented at trial on behalf of the prosecution. For example,
defendant’s 10-year-old niece testified that defendant shook the child on occasion, slapped the
child, and told his niece that he hated the child and wished the child would die. Further, the
parties do not contest the fact that defendant was watching the child during the time leading up to
the child’s death and was left alone with the child. According to the child’s mother, the child
was acting normal when the child’s mother left him that afternoon in defendant’s care.

        Defendant did not provide a concrete explanation for the child’s death. Instead, the
prosecution presented at trial the videotape of defendant’s highly incriminating police interview,
in which defendant initially stated that the child went limp after defendant left him alone in his
play pen. According to defendant’s initial story, the child was fine when defendant placed him
in the play pen, but was symptomatic almost immediately after defendant removed him from the
play pen. During the course of the police interview, defendant admitted to hitting the child in the
head with a ball while playing catch during the time that he was watching the child. He then
added that the child fell out of his arms and hit his head while defendant was holding him. He
finally admitted that he shook the child for up to 30 seconds because the child was crying.
Defendant’s constant alterations to his story and his admission that he shook and dropped the
child bolsters the prosecution’s argument that defendant intentionally caused the child’s injuries.



                                                -5-
        Additionally, Dr. Angelilli, who testified as an expert in pediatrics and child abuse,
opined that the child’s injuries were nonaccidental and were intentionally inflicted. She testified
that the explanations for the injury provided by the defense, such as the child falling off of a bar
stool or falling out of defendant’s arms, would have resulted in less severe injuries. She also
explained that the child would have been symptomatic immediately following the fatal injury.
Importantly, Dr. Angelilli testified as follows:

              Q. Now, Doctor, in your opinion, as an expert in the field of pediatrics
       and child abuse, what is your opinion in this case?

               A. I think that Damien was abused. I think this is child abuse.

               Q. And you’ve already stated non-accidental inflicted trauma.

               A. Yes, and I’m actually certain of that.

Thus, Dr. Angelilli’s testimony provided an independent basis for the jury to find that defendant
abused the child, resulting in the fatal injury.

        The majority notes in a footnote that Dr. Dragovic’s testimony indirectly challenges the
validity of Dr. Angelilli’s conclusions, but also acknowledges that Dr. Angelilli’s conclusions
were not based on the appearance of the brain. I fail to see how Dr. Dragovic’s testimony
regarding the 32 photographs challenges the validity of Dr. Angelilli’s testimony. As the
majority acknowledges, Dr. Angelilli did not rely on the appearance of the child’s brain in
rendering her opinion. Dr. Angelilli’s expert testimony also did not rely on Dr. Spitz’s autopsy
report. Accordingly, I conclude that Dr. Dragovic’s testimony regarding the 32 photographs
does not affect the validity of Dr. Angelilli’s opinion.4 Dr. Angelilli’s expert testimony,
therefore, provided an additional basis for the jury to conclude that defendant intentionally
caused the fatal injury.

        In light of the additional incriminating evidence presented at trial, I do not believe that
there is a reasonable probability that, had the prosecution disclosed the photographs to the
defense before trial, the result of the proceeding would have been different. Put another way, in
the absence of the 32 photographs, defendant received a trial resulting in a verdict worthy of
confidence. Therefore, I conclude that there was no Brady violation in this case because the
medical examiner did not constitute the “government” for the purposes of establishing whether
the prosecution suppressed evidence, and the 32 photographs were not material. I would reverse




4
 To the extent that the majority implies that Dr. Dragovic’s conclusion regarding the manner of
death was contrary to Dr. Angelilli’s conclusion that the injury was intentionally inflicted, Dr.
Cassin came to the same conclusion as Dr. Dragovic regarding the manner of death, and Dr.
Angelilli’s opinions were therefore refuted by Dr. Cassin’s testimony.


                                                -6-
the trial court’s order granting defendant a new trial and affirm defendant’s convictions and
sentences.



                                                         /s/ Kathleen Jansen




                                             -7-
