                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   December 6, 2016
              Plaintiff-Appellee,                                  9:05 a.m.

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.

RIORDAN, J.

       In Docket No. 323251, defendant appeals as of right his jury trial convictions of first-
degree felony murder, MCL 750.316(1)(b), and first-degree child abuse, MCL 750.236b(2). He
was sentenced to life imprisonment for his first-degree felony murder conviction and 15 to 25
years’ imprisonment for his first-degree child abuse conviction, with 338 days of jail credit.
While his appeal was pending, we granted his motion to remand this case for an evidentiary
hearing.1 After holding the evidentiary hearing, the trial court granted defendant’s motion for a
new trial.




1
 People v Dimambro, unpublished order of the Court of Appeals, entered May 22, 2015 (Docket
No. 323251).


                                               -1-
        In Docket No. 332319, the prosecution appeals by leave granted2 the trial court’s order
granting defendant’s motion for a new trial. For the reasons stated below, we affirm the trial
court’s order granting defendant’s motion for a new trial and remand for further proceedings.

               I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       This case arises from the death of Damien Sutton, the two-year-old child of defendant’s
former girlfriend, who went into a coma on August 21, 2013, and died on August 27, 2013. At
the time, the child and his mother were living with defendant and his parents. In the days before
August 21, 2013, the child had been injured during a series of incidents that had occurred while
he was in defendant’s care. Within a few days or a week before he went into the coma, he also
had fallen while sitting on top of phone books which had been stacked on top of a bar stool.
Defendant’s parents and the child’s mother provided conflicting reports as to whether the child
acted normally after the bar stool incident.

        On August 21, 2013, the child’s mother did not notice anything unusual about the child’s
behavior before she left for work at approximately 3:40 p.m. After she left, defendant was alone
with the child until approximately 5:00 p.m. During his interview with the police, defendant
indicated that he had left the child in a Pack ‘n Play for a period of time in order to answer a
phone call. When defendant returned, he noticed that something seemed off about the child.
Then, when defendant picked up the child, he went limp. Defendant ultimately called his father
for help and then called 911.

       When the police arrived, the child was unresponsive and critically ill. The child was
taken to Henry Ford Hospital and then transferred to Children’s Hospital, at which time he was
in a coma and put on a respirator. Six days later, the child’s mother decided to remove the child
from his respirator because of the extent of his brain damage and because surgeries to aid the
child were unsuccessful. After the child died, defendant was charged with first-degree child
abuse and first-degree felony murder.

        At trial, the prosecution presented testimony from Nikki Sutton, the child’s mother;
Lieutenant Michael Mackenzie, a paramedic who responded to the scene on August 21, 2013;
Dr. Mary Lu Angelilli, a Children’s Hospital of Michigan pediatrician who was familiar with this
case and who was certified as an expert in the field of child abuse;3 Deputy Bret Sypniewski, an
evidence technician who collected evidence related to this case in August 2013; Jason Foltz,
defendant’s half-brother; Madison Foltz, defendant’s niece and Foltz’s daughter, who testified,
inter alia, that she had seen defendant shake the child at issue in this case in the past; Detective
Eric Ehrler, who was the officer in charge of the case and who had interviewed defendant on
August 21, 2013; and Dr. Daniel Spitz, the chief medical examiner for Macomb County, who


2
  People v Dimambro, unpublished order of the Court of Appeals, entered April 15, 2016
(Docket No. 332319).
3
 Notably, Dr. Angelilli testified that the injuries in this case could be consistent with abusive
head trauma.


                                                -2-
completed the autopsy in this case. The defense presented testimony from Kit Dimambro,
defendant’s mother; Leslie Clarke, who was acquainted with defendant and had no knowledge
concerning the facts of this case; Alison Cucchiara, defendant’s friend and previous girlfriend
who also had no knowledge about this case; and Dr. Bader Cassin, a medical examiner who
testified as an expert witness. Defendant ultimately was convicted of first-degree felony murder,
MCL 750.316(1)(b), and first-degree child abuse, MCL 750.236b(2).

        After filing a claim of appeal in this Court, defendant filed a motion to remand so that he
could file a motion for a new trial in the trial court and develop the factual record necessary for
appellate review of his ineffective assistance of counsel claims. We granted defendant’s motion
to remand in May 2015, and he subsequently filed a motion for a new trial in the trial court based
on the two ineffective assistance of counsel claims that he had raised in his brief on appeal.

        A Ginther4 hearing was scheduled for June 30, 2015. At the beginning of the hearing,
one of the prosecutors stated:

               Last night I discussed the hearing with the medical examiner regarding the
       testimony of Dr. Dragovic, who’s going to testify today, and this morning, when I
       got to the office, I had a disk containing 33 pictures that I don’t believe we’ve
       ever seen, and I can’t imagine that they would have ever seen it, given the
       testimony and everything I’ve reviewed. I can’t be sure that they didn’t get it, but
       I think it’s safer to err on the side of them not getting it at this moment.

The hearing was adjourned so that the defense could have the opportunity to review the new
photographs. Subsequently, we granted the parties’ stipulated motion to expand the scope of the
remand proceedings to include any issues related to the newly disclosed photographs.5

       The evidentiary hearing was ultimately held on September 2, 2015, and September 15,
2015. The parties stipulated that Dr. Spitz had provided 32 photographs to the prosecution on
June 29, 2015, and that the photographs had not previously been provided to the prosecution, the
defense, or Dr. Cassin, the defense expert.6 The trial court also heard testimony from Dr. Ljubisa
J. Dragovic, defendant’s trial counsel, Dr. Chris A. Van Ee, and Imran Syed, an attorney who
contacted defense counsel prior to trial.

       After the hearing, defendant filed a supplemental brief in support of his motion for a new
trial. Along with his earlier arguments that he was entitled to a new trial because his trial



4
 People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).
5
 People v Dimambro, unpublished order of the Court of Appeals, entered July 14, 2015 (Docket
No. 323251).
6
  Notably, before trial, defense counsel filed a motion in which he requested “a copy of any and
all supplemental reports and interviews, statements, photographs and evidence,” and a motion in
which he expressly requested preservation of “the autopsy photographs, medical examiners [sic]
notes[,] and documents.”


                                                -3-
counsel was ineffective, he argued that the prosecution’s failure to disclose the photographs to
the defense was a Brady7 violation and that violation also entitled him to a new trial. The
prosecution disagreed, rejecting defendant’s claims and arguing that defendant’s motion should
be denied.

        In January 2016, the trial court entered an opinion and order granting defendant’s motion
for a new trial, concluding that defendant had demonstrated a Brady violation and had
established that defense counsel provided ineffective assistance. The prosecution then filed a
motion for reconsideration, or, in the alternative, to reopen the proofs so that the court could hear
testimony from Dr. Spitz and Dr. Cassin. The trial court denied the prosecution’s motion in
March 2016.

       On April 6, 2016, the prosecution filed an application for leave to appeal the trial court’s
order granting defendant’s motion for a new trial and its order denying the prosecution’s motion
for reconsideration. We granted the prosecution’s application and consolidated Docket No.
332319 with Docket No. 323251.8

                                     II. BRADY VIOLATION

        The parties dispute whether the trial court properly determined that a Brady violation had
occurred in this case. We agree with defendant that the trial court properly concluded that,
whether inadvertent or not, (1) the prosecution suppressed the photographs for Brady purposes,
despite the fact that the medical examiner had sole possession of them; (2) the photographs were
favorable to defendant; and (3) the photographs were material in this case.9

                                  A. STANDARD OF REVIEW

        A trial court’s decision on a motion for new trial is reviewed for an abuse of discretion,
which “occurs when the trial court renders a decision falling outside the range of principled
decisions.” People v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012). “Underlying questions of
law are reviewed de novo, while a trial court’s factual findings are reviewed for clear error.”
People v Terrell, 289 Mich App 553, 559; 797 NW2d 684 (2010) (citations omitted). Similarly,
“[t]his Court reviews due process claims, such as allegations of a Brady violation, de novo.”
People v Stokes, 312 Mich App 181, 189; 877 NW2d 752 (2015). Pursuant to MCR 6.431(B),
“[a] trial court may grant a new trial to a criminal defendant on the basis of any ground that


7
    Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
8
  People v Dimambro, unpublished order of the Court of Appeals, entered April 15, 2016
(Docket No. 332319).
9
   The prosecution emphasizes numerous purported inaccuracies in the trial court’s factual
findings in this matter. As explained below, the record clearly demonstrates that defendant
established the factual basis of a Brady violation. To the extent that any of the trial court’s
factual findings were inaccurate, we conclude that none of them warrant reversal of its opinion
and order granting defendant’s motion for a new trial.


                                                -4-
would support reversal on appeal or because it believes that the verdict has resulted in a
miscarriage of justice.” Terrell, 289 Mich App at 559 (quotation marks and citations omitted).

                                         B. ANALYSIS

        As the Michigan Supreme Court explained in People v Chenault, 495 Mich 142, 149; 845
NW2d 731 (2014), the United States Supreme Court held in Brady v Maryland, 373 US 83, 87;
83 S Ct 1194; 10 L Ed 2d 215 (1963), “that ‘the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ ” The
essential components of a Brady violation are as follows: “ ‘The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.’ ” Chenault, 495 Mich at 149-150, quoting Strickler v Greene, 527 US 263,
281-282; 119 S Ct 1936; 144 L Ed 2d 286 (1999). “Stated differently, the components of a ‘true
Brady violation,’ are that: (1) the prosecution has suppressed evidence; (2) that is favorable to
the accused; and (3) that is material.” Chenault, 495 Mich at 150.

                         1. SUPPRESSION BY THE PROSECUTION

        The parties dispute whether the prosecution’s expert witness, Macomb County Medical
Examiner Dr. Spitz, falls within the scope of “the government,” such that the prosecution’s
failure to learn of and disclose 32 additional autopsy photographs under the control of Dr. Spitz
qualifies as a suppression of evidence.

       The government is held responsible for evidence within its control, even evidence
       unknown to the prosecution, Kyles v Whitley, 514 US 419, 437; 115 S Ct 1555;
       131 L Ed 2d 490 (1995), without regard to the prosecution’s good or bad faith,
       United States v Agurs, 427 US 97, 110; 96 S Ct 2392; 49 L Ed 2d 342 (1976) (“If
       the suppression of evidence results in constitutional error, it is because of the
       character of the evidence, not the character of the prosecutor.”). [Chenault, 495
       Mich at 150.]

Accordingly, even though due process does not generally require the prosecution to seek and
find exculpatory evidence, or search for evidence that will support a defendant’s case, People v
Coy, 258 Mich App 1, 21; 669 NW2d 831(2003), “the individual prosecutor [does have] a duty
to learn of any favorable evidence known to the others acting on the government’s behalf in the
case, including police,” Kyles, 514 US at 437.

       The prosecution argues that defendant failed to fulfill the first prong of the test because
“it is absolutely undisputed that the prosecution never suppressed the additional autopsy
photographs when that evidence was under the sole possession and control of the medical




                                               -5-
examiner,” who “does not fall under the prosecution’s control.” (Emphasis omitted.)10 We
conclude that it is clear from the county medical examiners act, MCL 52.201 et seq., that
evidence under the control of a county medical examiner constitutes evidence within the control
of the government for Brady purposes in Michigan. Pursuant to MCL 52.202(1), “[a] county
medical examiner or deputy county medical examiner shall investigate the cause and manner of
death of an individual” in several circumstances, including if “[t]he individual dies by violence,”
or if “[t]he individual’s death is unexpected.” (Emphasis added.) See also MCL 52.205. Under
MCL 52.212, “[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,
and shall testify in behalf of the state and shall receive such actual and necessary expenses as the
court shall allow.” (Emphasis added.) Based on these statutes, the Michigan Supreme Court
concluded in Maiden v Rozwood, 461 Mich 109, 132; 597 NW2d 817 (1999), that a county
medical examiner’s “duty is owed to the state,” and it noted that a medical examiner fulfills his
or her statutory duty to investigate violent deaths by communicating his or her medical findings
to the prosecution and testifying on behalf of the prosecution regarding the results of his or her
investigation.

         In sum, it is apparent that a county medical examiner is expected to work closely with the
prosecution in cases related to the investigation of an unexpected or violent death and is expected
to testify on the prosecution’s behalf. Notably, the United States Supreme Court does not limit
the prosecution’s duty to learn of favorable evidence to only the police or law enforcement
agencies, but, instead, extends this duty to any “others acting on the government’s behalf.”
Kyles, 514 US at 437. Therefore, given a county’s medical examiner’s duty to act on the
government’s behalf in cases involving violent or unexpected deaths in Michigan, we conclude
that (1) the medical examiner may be understood as “acting on the government’s behalf” in a
particular case, and (2) evidence within the medical examiner’s control may be imputed to the
government, even if “unknown to the prosecution.” Kyles, 514 US at 437.

        Further, the record shows that defense counsel specifically asked for all of the autopsy
photographs before trial. Notably, he filed a motion, after receiving the initial set of discovery
from the prosecution, that requested “any and all supplemental” photographs and evidence, and
filed another motion that expressly requested preservation of “the autopsy photographs, medical
examiners [sic] notes[,] and documents.”

       Thus, we find that the trial court properly determined that, as defined by Brady, the
prosecution “suppressed” evidence.

                                       2. FAVORABILITY

       Next, contrary to the prosecution’s claims, we agree with defendant that the trial court
properly concluded that the photographs were favorable to the defense.


10
   In support of its claim, the prosecution relies on an unpublished opinion. Unpublished
opinions are not binding on this Court, see MCR 7.215(C)(1), and we are not persuaded by the
prosecution’s characterization of the case.


                                                -6-
       Evidence is favorable to the defense when it is either exculpatory or impeaching.
       Giglio v United States, 405 US 150, 154; 92 S Ct 763; 31 L Ed 2d 104 (1972)
       (“When the ‘reliability of a given witness may well be determinative of guilt or
       innocence,’ nondisclosure of evidence affecting credibility falls within this
       general rule [of Brady].”), quoting Napue v Illinois, 360 US 264, 269; 79 S Ct
       1173; 3 L Ed 2d 1217 (1959). [Chenault, 495 Mich at 150.]

The record confirms that the photographs provided a basis for impeaching the testimony of Dr.
Spitz.

        First, Dr. Spitz testified that he was aware that the child had undergone “a variety of
medical interventions” before the autopsy was performed, but the fact that the child had
undergone medical intervention did not impede his ability to determine the cause and manner of
death. He testified that the child in this case sustained “blunt force trauma or blunt force
injuries,” and he believed, based on bruising on the exterior and interior of the scalp, that there
were two separate impacts on the right side of the head, which he believed were from separate
and discrete contacts. He also testified that there was bruising on the surface of the brain on the
right side, which was underneath the areas of impact on the scalp, and explained that the entire
brain was swollen as a result of the injury. He specifically described the bruising on the brain as
“directly underlying the piece of bone that had been removed by the surgeon” and “extend[ing]
into the deeper layers of the brain[.]”

        His observation of bruising on the brain was a significant component of his findings, as
he repeatedly mentioned it in conjunction with his opinions regarding the amount of force that
would have been necessary to inflict the injuries in this case. It is apparent from his testimony
that his observations of the bruising affected his ultimate conclusion that the child’s injuries were
a result of blunt force trauma; that his injuries were caused by a force greater than that generated
by a household accident, such as a short or low-level fall; and that his injuries resulted from
“non-accidental inflicted trauma,” such that the child’s death was a homicide.

        However, Dr. Dragovic, testified, based on the additional 32 photographs, that the
bruising on the surface of the cortex of the brain solely resulted from medical intervention, and
that he saw no “evidence of any other bruising documented specifically on the cortex of the brain
that is not related to the surgery.” Additionally, he specifically confirmed that he was only able
to determine that the bruises on the brain were “all the result of complications of surgical
procedure” because he was given the additional 32 photographs to review. He ultimately
concluded that the “major flaw” in Dr. Spitz’s findings is “[t]he misrepresentation of the damage
of the right-half of Damian Sutton’s brain,” meaning that what Dr. Dragovic saw as the
consequence of the doctor’s attempts, through surgical intervention, to save the child’s life, Dr.
Spitz saw as inflicted head trauma.11 Stated differently, Dr. Dragovic believed, after reviewing
all of the photographs as well as the other evidence provided by the defense, that the medical
evidence in this case does not support Dr. Spitz’s conclusion that it can be determined, from the


11
  Dr. Dragovic believed that Dr. Cassin “hinted at that” during the trial, “but he did not expand
beyond that at all.”


                                                -7-
nature of injury alone, that the injury was intentionally inflicted, especially given the age of the
child and the physical circumstances.

        Moreover, Dr. Dragovic recognized that the right side of the child’s brain was swollen
due to the medical intervention, but he unequivocally testified that the swelling does not
necessarily mean that the injury sustained by the child was intentionally inflicted. Rather, he
explained that the brain was evenly swollen at the time of the radiographic imaging according to
the hospital reports, and the fact that there was swelling before the surgical intervention does not
indicate whether the injury was intentional; instead, the swelling was simply “the reaction of the
brain to the injury.” Based on all of this evidence, Dr. Dragovic testified that while he perceived
no issues with the manner in which Dr. Spitz conducted his neurological examination, he had
“problems with [his] interpretations at the time of the trial because there was no evidence” that
supported his conclusions.

        The prosecution contends that defendant’s trial expert “Dr. Cassin testified to everything
Dr. Dragovic did even without ever seeing the photographs. Thus, those photographs had
absolutely no value to the defense, whether impeachment or otherwise.” (Emphasis omitted.)
This claim is contrary to the record. As previously explained, Dr. Dragovic provided testimony
directly linked to the new photographs that undermined Dr. Spitz’s conclusions, particularly on
the issue of whether the child’s injuries were intentionally inflicted. Additionally, as discussed
further below, Dr. Dragovic’s testimony was not cumulative to Dr. Cassin’s. Further, given Dr.
Dragovic’s favorable testimony specifically based on the newly disclosed photographs, the clear
differences between Dr. Dragovic’s and Dr. Cassin’s testimony, and the undisputed fact that Dr.
Cassin did not have the additional photographs at his disposal when he testified at trial, the trial
court’s conclusion that the undisclosed photographs were favorable to defendant was not “based
on wild speculation,” contrary to the prosecution’s claims.

                                       3. MATERIALITY

       To establish materiality, 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. A ‘reasonable probability’ is a probability
       sufficient to undermine confidence in the outcome.” United States v Bagley, 473
       US 667, 682; 105 S Ct 3375; 87 L Ed 2d 481 (1985). This standard “does not
       require demonstration by a preponderance that disclosure of the suppressed
       evidence would have resulted ultimately in the defendant’s acquittal . . . .” Kyles,
       514 US at 434. 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. In assessing the materiality of the evidence,
       courts are to consider the suppressed evidence collectively, rather than piecemeal.
       Id. at 436. [Chenault, 495 Mich at 150-151.]

        Here, Dr. Dragovic agreed with Dr. Cassin that a subdural hemorrhage, like that present
in this case, most likely resulted from the child’s head striking a non-yielding surface, and that
the child’s cause of death was blunt force trauma of the head or complications therefrom, which
resulted in brain swelling and a subdural hemorrhage. Likewise, as the prosecution contends, Dr.
Cassin and Dr. Dragovic did provide similar opinions regarding whether the evidence in this case

                                                -8-
demonstrated that the child’s injuries were intentionally inflicted. Dr. Cassin opined that it is
always difficult to distinguish between “[a]ccident and intent,” and reiterated multiple times that
he was not convinced that the child’s death was a homicide in this case given the lack of any
indication of intent.12

        However, the undisclosed photographs, and Dr. Dragovic’s expert opinion based on those
photographs, undermined Dr. Spitz’s conclusions regarding the cause of the bruising on the
child’s brain and, therefore, challenged Dr. Spitz’s conclusion that the child’s injuries were
intentionally inflicted.13 Dr. Cassin did not provide similar testimony. Dr. Cassin opined
generally that “[s]urgical intervention can significantly complicate the injury finding and make
the interpretation of injury finding difficult, if not actually impossible, in some details.” Then,
Dr. Cassin noted that Dr. Spitz’s autopsy report indicated that blunt force trauma occurred on the
right side of the head, and that surgical intervention also occurred on that side of the head.
Notably, he made no reference to the effect of surgical intervention on the bruising on the brain;
he only stated that the “surgical events” “cause[d] changes in the scalp that had not been there,
since the injury or injuries had been sustained.”14 (Emphasis added.) Given this testimony, Dr.
Dragovic disagreed that his opinion was the exact same as Dr. Cassin’s. Dr. Dragovic explained
that he did not believe that Dr. Cassin “had the availability of critical evidence to consider the
distinction between the reported bruise of the brain and the artifact created by surgical
procedure.” Thus, as Dr. Dragovic concluded during the Ginther hearing, although Dr. Cassin
briefly mentioned the possibility that a medical intervention could affect the medical examiner’s
conclusions, he did not provide any concrete evidence in this regard that was favorable to
defendant, because, in Dr. Dragovic’s words, Dr. Cassin “did not have anything to say here it is,
here is the evidence.”15

       Therefore, it is apparent that Dr. Dragovic’s testimony was not merely cumulative to Dr.
Cassin’s testimony. It is clear that the undisclosed photographs provided a basis for the defense


12
   Notably, though, he expressly testified that he could not rule out homicide in this case,
although he later clarified that “without that indication of intent, we can’t distinguish specifically
between homicide and accident.”
13
   Likewise, Dr. Dragovic’s testimony also indirectly challenged the validity of Dr. Angelilli’s
conclusion that the child’s injury in this case was non-accidental and intentionally inflicted as
well as her conclusion that the child was abused, although these conclusions were not based on
the appearance of the brain.
14
   Dr. Cassin similarly stated, “So, by the time [the] autopsy had occurred, there were those
conflicting findings. And I say conflicting, only because injuries and surgical change all give the
same amount of change, which is hemorrhage into the scalp.” (Emphasis added.) Dr. Dragovic
also recognized that Dr. Cassin was referring to the scalp in his testimony.
15
  In its brief on appeal, the prosecution characterizes Dr. Cassin’s testimony regarding bleeding
on and around the child’s brain as being equivalent to Dr. Dragovic’s testimony regarding the
bruising of the brain. In reviewing the experts’ testimony in its entirety, we conclude that this
characterization is unfounded.


                                                 -9-
to directly challenge Dr. Spitz’s conclusion that the autopsy revealed that the child’s injuries
were intentionally inflicted. Given the importance of expert testimony in cases like this one,
which involve issues of abusive head trauma but include no eyewitnesses, no physical evidence
confirming the cause of death, and no explicit intent to kill, see People v Ackley, 497 Mich 381,
397; 870 NW2d 858 (2015), Dr. Dragovic’s testimony regarding the importance of the
undisclosed photographs demonstrates that there is a reasonable probability that the outcome of
the trial may have been different had the photographs been disclosed to the defense, see
Chenault, 495 Mich at 150-151. Likewise, given the significance of the photographic evidence,
it does not appear that defendant received “a trial resulting in a verdict worthy of confidence”
without it. Id. at 150-151 (quotation marks and citation omitted).

       Thus, the trial court properly concluded that defendant is entitled to a new trial based on
the government’s failure to disclose the 32 photographs before trial.16

                                       III. CONCLUSION

       The trial court properly granted defendant’s motion for a new trial because the
prosecution’s failure to disclose the 32 photographs constituted a Brady violation.

       Affirmed.

                                                            /s/ Michael J. Riordan
                                                            /s/ William B. Murphy




16
  Given our conclusion that defendant is entitled to a new trial on the basis of a Brady violation,
we need not consider, in the alternative, whether defendant is entitled to a new trial on
ineffective assistance of counsel grounds.


                                               -10-
