                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      December 27, 2016
               Plaintiff-Appellee,

v                                                                     No. 328532
                                                                      Wayne Circuit Court
DIALLO CORLEY,                                                        LC No. 14-007466-01-FC

               Defendant-Appellant.


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

JANSEN, P.J. (concurring in part and dissenting in part).

        I concur with the majority’s conclusions regarding defendant’s claims of prosecutorial
misconduct, sufficiency of the evidence, great weight of the evidence, judicial fact-finding, and
ineffective assistance of counsel. However, I disagree with the majority’s conclusion regarding
defendant’s newly discovered evidence claim. Instead, I believe that defendant’s convictions
and sentences should be reversed and the case remanded for a new trial based on newly
discovered evidence.

        As the majority explains, a new trial may be granted on the basis of newly discovered
evidence only if “(1) the evidence itself, not merely its materiality, was newly discovered; (2) the
newly discovered evidence was not cumulative; (3) the party could not, using reasonable
diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a
different result probable on retrial.” People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003)
(quotation marks and citations omitted). Only the last element is at issue in this case.

         I disagree with the majority’s conclusion that there was significant evidence in the record
supporting the trial court’s credibility determination. Instead, I believe that the trial court abused
its discretion by basing its decision on Johnson’s prior criminal history, rather than on the
substance of Johnson’s testimony. Indeed, Johnson’s testimony was consistent with regard to the
facts of the shooting. Johnson testified that he saw the shooting, the shooting occurred in a
different manner than Wray described, and defendant was not the shooter. Johnson explained
that he observed the shooter walk out from between two houses and shoot the victim. While
Johnson testified that he dodged behind a car during the shooting, he testified consistently
regarding the circumstances immediately before and after the shooting. Importantly, Johnson
unequivocally testified that he saw the shooter’s face and that he had not seen defendant before.


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        I disagree with the majority’s reasoning that the fact that Johnson left the area and
resumed his regular activities without rendering aid to the victim or telling anyone about the
incident indicates that his testimony was not credible. Johnson explained that he did not render
assistance or mention the shooting to anyone because he had prior criminal convictions, and he
did not want to get involved with the situation considering his history with the criminal justice
system. I do not believe that the fact that Johnson failed to report the incident or provide aid to
the victim following the incident rendered his testimony regarding the nature of the shooting
incredible. Instead, I believe that this is a factor for the jury to consider during a new trial.

        Further, I do not believe that Johnson’s prior armed robbery conviction is outcome-
determinative. While Johnson could be impeached with his armed robbery conviction at trial,
the jury is not bound to discredit Johnson for the sole reason that he has a prior armed robbery
conviction. I also disagree with the trial court’s conclusion that “to put [Johnson’s] testimony on
par with that of Calvin Wray and Anthony Day is a stretch.” Wray’s testimony raised numerous
credibility concerns. For example, Wray admitted to lying to a physical therapist about the
origin of his injuries, indicating that they occurred during an armed robbery rather than during a
drive-by shooting. In fact, Wray even admitted at trial to lying under oath regarding his middle
name during the preliminary examination. Further, like Johnson, Wray admitted to having a
criminal record involving theft. Wray explained that he used someone else’s credit card during a
transaction. Thus, I do not believe that Wray’s testimony was inherently more believable than
Johnson’s testimony. Additionally, Day did not witness the shooting, and the only incriminating
testimony he provided was that Wray told him that “Diallo” shot him. However, Day admitted
that he did not tell the police or anyone else that Wray identified “Diallo” as the shooter until the
trial. Further, Wray consistently referred to defendant as “Diablo” during trial, which creates an
inconsistency between Day’s testimony and Wray’s testimony.

        I also do not see the trial court’s rationale regarding its conclusion that Johnson’s distrust
of the criminal justice system rendered him incredible. The trial court failed to explain how
Johnson’s prior contact with the criminal justice system made his testimony regarding the
circumstances of the shooting in this case less believable. There does not seem to be any rational
basis for Johnson to make up a story regarding the shooting. At no point was Johnson accused of
being the shooter. Further, Johnson provided a consistent story regarding the manner of the
shooting when he was interviewed before the hearing, and there is no indication that Johnson
was made aware of Wray’s version of events before the hearing. Johnson did not know
defendant, and there is no basis to conclude that Johnson’s distrust of the criminal justice system
and his criminal history would cause him to make up a detailed story involving personal facts in
order to aid a stranger. Therefore, I do not believe that the trial court properly exercised its
discretion by concluding that Johnson’s distrust of the criminal justice system discredited his
testimony.

         In addition, contrary to the majority’s conclusion, Johnson did provide a detailed
description of the shooter. He described the shooter as a black male with a dark complexion. He
testified that the man was approximately 5’8” tall, and had a slim, muscular build. Johnson also
described the shooter as having a “waves” hairstyle. Thus, Johnson was able to describe the
shooter’s complexion, height, build, and even his hairstyle. It is unclear what additional
information Johnson could have provided regarding the shooter’s identity considering that
Johnson did not know the shooter and therefore could not identify the shooter by name.
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Therefore, I disagree with the majority that Johnson only provided minimal information
regarding the identity of the shooter and that Johnson’s failure to provide additional information
made his testimony incredible.

        I further disagree with the majority’s conclusion that there was no indication that Wray
was the victim of the shooting. I first note that the trial court did not consider this as a basis for
its conclusion. Additionally, contrary to the majority’s conclusion, I believe that the
circumstances indicate that Wray was the victim Johnson observed. Johnson testified that he
observed the victim to the extent that he was able to see that the victim had a scared expression
on his face. Johnson testified to being in the immediate vicinity of the shooting at the
approximate time of the shooting. Wray and Day testified that Wray was hosting a barbeque at
his house during the night of the incident, and Wray testified that he was walking outside when
he was shot. Neither Wray nor Day testified that they observed another shooting or its aftermath
in the area, and neither testified to observing anything else unusual regarding their surroundings
before the incident. None of the witnesses testified to seeing any police cars or ambulances in
the area unrelated to Wray’s shooting. Thus, there is no basis to conclude that Johnson observed
another shooting in the area. Therefore, I disagree with the majority’s conclusion that there was
no indication that Wray was the victim of the shooting.

         Finally, the majority notes that there were numerous discrepancies between Wray’s
testimony and Johnson’s testimony with regard to the essential facts of the shooting. However,
this is exactly why the new evidence makes a different result probable on retrial. Johnson and
Wray both testified that the shooting occurred in the same approximate area at the same
approximate time. The differences in their testimony were with regard to the manner of the
shooting itself. The differences only add to the probability that Johnson’s testimony would have
led to a different result on retrial. The majority fails to explain how the discrepancies made
Johnson’s testimony unbelievable or less credible than Wray’s testimony. Accordingly, I
conclude that the trial court abused its discretion by determining that a different result on retrial
was not probable. The trial court improperly considered Johnson’s prior convictions and
criminal history dispositive on the issue whether a different result was probable on retrial, and
the court failed to consider the content of Johnson’s testimony. I would therefore reverse
defendant’s convictions and sentences, and remand for a new trial based on newly discovered
evidence.




                                                              /s/ Kathleen Jansen




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