Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  October 6, 2017                                                                  Stephen J. Markman,
                                                                                              Chief Justice

                                                                                         Brian K. Zahra
                                                                                 Bridget M. McCormack
  155193-4                                                                             David F. Viviano
                                                                                   Richard H. Bernstein
                                                                                          Joan L. Larsen
                                                                                       Kurtis T. Wilder,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                 Justices
            Plaintiff-Appellant,
  v                                                      SC: 155193-4
                                                         COA: 323251; 332319
                                                         Macomb CC: 2013-004215-FC
  RONALD ANTHONY DIMAMBRO, JR,
           Defendant-Appellee.

  _________________________________________/

        On order of the Court, the application for leave to appeal the December 6, 2016
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

        ZAHRA, J. (dissenting).

         I respectfully dissent from this Court’s order denying the prosecutor’s application
  for leave to appeal. I write separately because I would vacate the judgment of the Court
  of Appeals addressing whether defendant demonstrated the materiality of 32 suppressed
  autopsy photographs. The Court of Appeals failed to assess the materiality of the
  photographs in relation to the totality of the evidence presented in this case. I would
  remand this case to the Court of Appeals for reconsideration of the materiality of the
  photographs in relation to the totality of the evidence presented at trial.

         To establish that suppressed evidence was material under Brady v Maryland, 373
  US 83 (1963), “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.’ ” People v Chenault, 495 Mich 142, 150 (2014), quoting United States v
  Bagley, 473 US 667, 682 (1985). See also Cone v Bell, 556 US 449, 469-470 (2009)
  (“[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable
  probability that, had the evidence been disclosed, the result of the proceeding would have
  been different. In other words, favorable evidence is subject to constitutionally mandated
                                                                                                                2

disclosure when it ‘could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.’ ”), quoting Kyles v Whitley, 514 US 419,
435 (1995) (emphasis added). Notably, courts must view the evidence “in its totality,”
Chenault, 495 Mich at 155, and “consider the suppressed evidence collectively, rather
than piecemeal,” when “assessing the materiality of the evidence,” id. at 151. See also
Strickler v Greene, 527 US 263, 290-294 (1999) (petitioner failed to demonstrate a
reasonable probability of a different result for purposes of materiality in light of other
evidence); accord Thomas v Westbrooks, 849 F3d 659, 663 (CA 6, 2017) (“Evidence is
‘material’ for Brady purposes when, in view of all relevant evidence, its absence deprives
the defendant of a fair trial, understood as a trial resulting in a verdict worthy of
confidence.”) (quotation marks and citations omitted; emphasis added); Henness v
Bagley, 644 F3d 308, 325 (CA 6, 2011) (“The evidence supporting the defendant’s
conviction also must be considered when determining potential prejudice from a Brady
violation.”), citing Towns v Smith, 395 F3d 251, 260 (CA 6, 2005). Although the Court
of Appeals majority concluded that the suppression of the photographs was material,
People v Dimambro, 318 Mich App 204, 220 (2016), it failed to view the suppressed
evidence in relation to the totality of all the other relevant evidence, including evidence
supporting defendant’s conviction, in reaching that conclusion.                     Moreover,
notwithstanding that the materiality analysis tests “ ‘the result of the proceeding,’ ”
Chenault, 495 Mich at 150, quoting Bagley, 473 US at 682 (emphasis added), that is, the
original trial, I believe that the Court of Appeals majority may have failed to afford due
consideration to the assertion of the Court of Appeals dissent that, by presenting the
testimony of a different expert during the posttrial Brady proceedings than had been
presented during the trial itself, defendant failed to “establish that the testimony presented
at trial would have been different had the defense received the 32 photographs,”
Dimambro, 318 Mich App at 228 (JANSEN, J., dissenting).

       Accordingly, I would vacate the portion of the judgment of the Court of Appeals
dealing with materiality and remand to that court for reconsideration of the materiality of
the photographs in relation to the totality of the evidence presented at trial.

       MARKMAN, C.J. and WILDER, J., join the statement of ZAHRA, J.




                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          October 6, 2017
        s1003
                                                                              Clerk
