            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



DONALD SULLIVAN, JR.,                                                FOR PUBLICATION
                                                                     May 7, 2019
               Plaintiff-Appellant,                                  9:10 a.m.

v                                                                    No. 343018
                                                                     Court of Claims
STATE OF MICHIGAN,                                                   LC No. 17-000265-MZ

               Defendant-Appellee.


Before: SWARTZLE, P.J., and CAVANAGH and CAMERON, JJ.

CAMERON, J.

       Plaintiff, Donald Sullivan, Jr. (Sullivan), filed this lawsuit for compensation based on the
Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq., after his murder
conviction was vacated and the charges were dismissed. Sullivan appeals the order of the Court
of Claims granting summary disposition in favor of defendant, the State of Michigan, and
dismissing Sullivan’s case. On appeal, Sullivan challenges the Court of Claims’s determination
that he was not entitled to compensation under the WICA because he failed to show “new
evidence” that satisfied the requirements of MCL 691.1755(1)(c). Finding no error, we affirm.

                           I. FACTS AND PROCEDURAL HISTORY

         In 1975, Sullivan was sentenced to life in prison after a jury convicted him of first-degree
felony murder for his role in the robbery of a jewelry store and the murder of its owner. A
codefendant, Lawrence Patton, entered into a plea agreement with the prosecution and provided
trial testimony that was the primary evidence used to support Sullivan’s conviction.

        Several years later, Patton recanted his trial testimony. He executed two affidavits in
1981, admitting in both that he lied about Sullivan’s involvement in the robbery and murder of
the jewelry store owner. In December 1981, Sullivan filed a motion for new trial based on
Patton’s recantation. In support of his motion, Sullivan provided Patton’s two affidavits, and the
trial court granted an evidentiary hearing. Patton testified at the evidentiary hearing,
authenticated his affidavits, and reiterated that his trial testimony offered against Sullivan was
false. The prosecution questioned Patton’s veracity and argued successfully to the trial court that
Patton take a polygraph examination administered by Michigan State Police regarding the


                                                -1-
truthfulness of his recantation. During the polygraph examination, Patton reaffirmed that
Sullivan was not involved in the crimes. In the opinion of the examiner, the test results indicated
that Patton was not deceptive in his exoneration of Sullivan. 1 Thereafter, the trial court granted
Sullivan’s motion for a new trial.

         The prosecution, apparently unpersuaded of Sullivan’s innocence, took steps to prosecute
Sullivan again for the robbery and murder. However, after the trial court denied the
prosecution’s motion to use Patton’s prior trial testimony as evidence against Sullivan for his
retrial, the prosecution conceded that “without the use of [Patton’s] previous testimony from the
previous trial, we cannot proceed at this time in this case.” Accordingly, the trial court dismissed
the charges against Sullivan, and he was released from custody.

        In September 2017, Sullivan filed a WICA complaint seeking compensation for the
approximate seven years that he was imprisoned. The Court of Claims granted the State of
Michigan’s motion for summary disposition and, in turn, denied Sullivan’s cross-motion for
summary disposition. In doing so, the Court of Claims concluded that Sullivan failed to prove
by clear and convincing evidence “new evidence” that demonstrated that he did not perpetrate
the crime, which resulted in the reversal or vacation of the charges in the judgment of conviction,
and ultimately resulted in the dismissal of the charges. MCL 691.1755(1)(c).

                                         II. ANALYSIS

      On appeal, Sullivan argues the court erred when it granted the State of Michigan’s
motion for summary disposition and denied Sullivan’s cross-motion for summary disposition.
We disagree.

        We initially note that the State of Michigan filed its motion for summary disposition
under MCR 2.116(C)(7), and Sullivan filed his cross-motion for summary disposition under
MCR 2.116(C)(7) or (C)(8). The Court of Claims, however, specified in its order that summary
disposition was granted under MCR 2.118(C)(8) and (C)(10). Importantly, a tort action against a
governmental entity generally raises two issues: (1) whether the plaintiff has pled in avoidance of
governmental immunity, and (2) whether the plaintiff can establish the elements of his or her
claim. Glancy v City of Roseville, 457 Mich 580, 588; 577 NW2d 897 (1998). We do not
construe the State of Michigan’s motion as one brought under MCR 2.116(C)(7) because
Sullivan’s claim concerns whether he can establish the elements under the WICA. “A trial court
is not necessarily constrained by the subrule under which a party moves for summary
disposition.” Computer Network, Inc v AM Gen Corp, 265 Mich App 309, 312; 696 NW2d 49
(2005). Furthermore, because the court ruled on the motion for summary disposition before the
commencement of discovery, we analyze the motions for summary dispositions under MCR
2.116(C)(8).



1
  The polygraph examiner concluded his report, stating: “It is the opinion of the undersigned
examiner, based on the analysis of [Patton’s] polygraph examination that in the area of
[plaintiff’s] being actively involved in the robbery/homicide, there is no deception.”


                                                -2-
        A trial court’s decision regarding a motion for summary disposition is reviewed de novo.
Old Kent Bank v Kal Kustom, Inc, 255 Mich App 524, 528; 660 NW2d 384 (2003). A motion
brought under MCR 2.116(C)(8) tests the legal sufficiency of the complaint solely on the basis of
the pleadings. Dalley v Dykema Gossett PLLC, 287 Mich App 296, 304; 788 NW2d 679 (2010).
“When deciding a motion under (C)(8), this Court accepts all well-pleaded factual allegations as
true and construes them in the light most favorable to the nonmoving party.” Id. at 304-305.

        We also review de novo issues of statutory interpretation. In re Mich Cable Telecom
Ass’n Complaint v Mich Pub Serv Comm, 239 Mich App 686, 690; 609 NW2d 854 (2000).
When interpreting a statute, our goal “is to ascertain and give effect to the intent of the
Legislature.” Portelli v IR Constr Prod Co, Inc, 218 Mich App 591, 606; 554 NW2d 591 (1996).
Undefined terms in a statute “must be given their plain and ordinary meanings, and it is proper to
consult a dictionary for definitions.” Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129
(2004). This Court must avoid interpreting a statute in a way that would make any part of it
meaningless or nugatory. Sweatt v Dep’t of Corrections, 468 Mich 172, 183; 661 NW2d 201
(2003).

       To prevail on a claim under the WICA, a plaintiff must prove by clear and convincing
evidence all of the following:

               (a) The plaintiff was convicted of 1 or more crimes under the law of this
       state, was sentenced to a term of imprisonment in a state correctional facility for
       the crime or crimes, and served at least part of the sentence.

               (b) The plaintiff’s judgment of conviction was reversed or vacated and
       either the charges were dismissed or the plaintiff was determined on retrial to be
       not guilty. However, the plaintiff is not entitled to compensation under this act if
       the plaintiff was convicted of another criminal offense arising from the same
       transaction and either that offense was not dismissed or the plaintiff was
       convicted of that offense on retrial.

              (c) New evidence demonstrates that the plaintiff did not perpetrate the
       crime and was not an accomplice or accessory to the acts that were the basis of
       the conviction, results in the reversal or vacation of the charges in the judgment
       of conviction or a gubernatorial pardon, and results in either dismissal of all of
       the charges or a finding of not guilty on all of the charges on retrial. [MCL
       691.1755(1)(a) to (c) (emphasis added).]

        WICA defines “new evidence” as “any evidence that was not presented in the
proceedings leading to plaintiff’s conviction, including new testimony, expert interpretation, the
results of DNA testing, or other test results relating to evidence that was presented in the
proceedings leading to plaintiff's conviction.” MCL 691.1752(b). However, when the proposed
new evidence depends upon the reliability of a recantation, the WICA provides an additional
requirement:

       New evidence does not include a recantation by a witness unless there is other
       evidence to support the recantation or unless the prosecuting attorney for the

                                               -3-
       county in which the plaintiff was convicted or, if the department of attorney
       general prosecuted the case, the attorney general agrees that the recantation
       constitutes new evidence without other evidence to support the recantation.
       [MCL 691.1752(b) (emphasis added).]

                         A. PATTON’S RECANTATION EVIDENCE

       Sullivan first argues that Patton’s recantation constituted “new evidence” sufficient to
meet the standards enumerated in MCL 691.1755(1)(c). We disagree.

       Sullivan claims that he is entitled to compensation under WICA because Patton’s
recantation constitutes “new evidence.” MCL 691.1752 precludes the use of a recantation as
new evidence unless it is supported by “other evidence.” In this case, Sullivan claims that
Patton’s affidavits, his testimony at the evidentiary hearing, and his answers to questions in the
polygraph report are separate and distinct pieces of “other evidence” which support Patton’s
recantation. Essentially, Sullivan argues that repeating the same recantation in different forms
meets the definition of “other evidence” because each is separate and distinct from the others.
This argument is without merit.

       The WICA does not define “other evidence.” Merriam-Webster’s Collegiate Dictionary
defines “other” as “not the same” or “different.” Merriam-Webster’s Collegiate Dictionary
(11th ed). Thus, Patton’s recantation must be supported by evidence that is “not the same” as his
recantation or is “different” from his recantation. With respect to Patton’s affidavits, his
testimony, and his oral statements made during the polygraph examination, the substance of each
piece of proposed evidence is essentially the same—Sullivan simply provided the same
recantation in three different forms. This proposed evidence does not meet the plain meaning of
“other evidence” under the statute because none of the evidence was materially “different” from
Patton’s actual recantation. Thus, we conclude that the evidence Sullivan provided in different
forms was not “other evidence” under MCL 691.1752(b).

        Moreover, the Legislature requires that the “other evidence” must “support the
recantation.” MCL 691.1752(b). The dictionary definition of “support” means “to provide with
substantiation,” “corroborate,” “assist,” or “help.” Merriam-Webster’s Collegiate Dictionary
(11th ed). Thus, the recantation must be substantiated or corroborated by evidence that is
different from the recantation. To allow Sullivan to use the affidavits and similar evidence to
support Patton’s recantation renders the statute’s requirement—that there is “other evidence to
support the recantation”—meaningless; a recantation cannot support itself. Otherwise, there
would be no need for the Legislature to use the verb “support” in the statute. We do not interpret
“other evidence” as Sullivan suggests because it would render the text of the WICA statute
meaningless or nugatory. See Sweatt, 468 Mich at 183. We conclude that the affadavits, new
trial hearing testimony, and assertions made at the polygraph test were merely different iterations
of the same recantation and did not support the “new evidence” as required under MCL
691.1752(b).




                                               -4-
                            B. PATTON’S POLYGRAPH RESULTS

        Sullivan also argues that the Court of Claims erred in concluding that the polygraph
results alone were not (1) “new evidence” sufficient to satisfy the statute by itself, or (2) “other
evidence” that supported Patton’s recantation as “new evidence.” We disagree.

        Results of a polygraph examination are not admissible at trial in criminal or civil cases.
People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003); see also Stone v Earp, 331 Mich
606, 610-611; 50 NW2d 172 (1951); Mich State Employees Ass’n v Mich Civil Service Comm,
126 Mich App 797, 805; 338 NW2d 220 (1983). This is because “there is simply no consensus
that polygraph evidence is reliable.” United States v Scheffer, 523 US 303, 309; 118 S Ct 1261;
140 L Ed 2d 413 (1998) (plurality opinion). However, the Michigan Supreme Court has carved
out one narrow exception for when the results of a polygraph examination may be considered:
“[P]olygraph results may be considered, within the discretion of the judge, to enable a decision
to be reached at a post-conviction hearing for a new trial.” People v Barbara, 400 Mich 352,
415; 255 NW2d 171 (1977). Our Supreme Court created this narrow exception for the admission
of polygraph results at post-conviction hearings, but has consistently declined to allow the results
of a polygraph examination to be used as admissible evidence in a party’s case-in-chief. See id.
at 416; see also Stone, 331 Mich at 610-611.

       Sullivan argues that because a civil proceeding under the WICA is more like a post-
conviction hearing on a motion for a new trial than an actual civil trial, the polygraph results
should be admissible evidence in his civil lawsuit under the narrow exception established in
Barbara. However, the rationale for the exception does not support its expansion in this case.
The Barbara Court explained that polygraph results could be considered at a post-conviction
motion for new trial but not as evidence at a criminal trial because:

               The answer is that the procedure at trial and at a post-conviction hearing
       for new trial is different and significantly so. The procedures are significantly
       different because their purposes are significantly different. The purpose of a trial
       is to determine the guilt or innocence of the defendant. The purpose of a post-
       conviction hearing for a new trial is, as its name suggests, an action to determine
       whether there should be such a trial. It is a preliminary, not a final procedure.
       [Barbara, 400 Mich at 411.]


        Although the Court in Barbara considered the admissibility of polygraph results in a
criminal case, the same logic applies to Sullivan’s WICA claim. As in Barbara, Sullivan’s
underlying criminal case involved a motion for a new trial. Indeed, the trial court considered the
polygraph evidence in deciding to grant Sullivan’s motion for a new trial. Here, as in Barbara, if
a case proceeds further (a new criminal trial in Barbara or a civil trial involving Sullivan’s
WICA claim), the polygraph results would not be admissible to prove Sullivan’s case-in-chief
because, as explained in Barbara, post-conviction motions are categorically different from a trial
on the merits, whether proving guilt versus innocence in a criminal trial or liability versus
nonliability in a civil trial. Thus, we decline Sullivan’s invitation to treat his WICA claim like a
motion for a new trial. Sullivan’s claim is a civil action and must be proved during his case-in-
chief, and polygraph results are not admissible during the case-in-chief. Accordingly, we hold

                                                -5-
that the Court of Claims did not err in granting the State of Michigan’s motion for summary
disposition and dismissing Sullivan’s WICA claim because the polygraph results are not
admissible to satisfy the definition of “new evidence” under MCL 691.1755(1)(c), nor are they
admissible to satisfy the “other evidence” standard under MCL 691.1752(b).

        Furthermore, even if the polygraph results were admissible and constituted “new
evidence” under MCL 691.1755, Sullivan still cannot prevail. There are four requirements under
MCL 691.1755(1)(c) that Sullivan must satisfy before he is entitled to compensation under the
WICA: (1) the proferred evidence must meet the definition of “new evidence” as defined under
MCL 691.1752(b); (2) the new evidence must demonstrate that Sullivan did not perpetrate the
crime and was not an accomplice or accessory to the acts that were the basis for the conviction;
(3) the new evidence must result in the reversal or vacation of the charges in the judgment of
conviction; and (4) the new evidence must result in dismissal of all the charges or a finding of
not guilty on the all of the charges on retrial.

        Sullivan must, therefore, show that the results of the polygraph examination resulted in
both the reversal or vacation of the charges, as well as the dismissal of those charges. We agree
that the results of the polygraph examination resulted in the reversal or vacation of Sullivan’s
robbery and murder convictions. Based on the polygraph results, the trial court concluded that
the recantation testimony was reliable and therefore vacated the convictions and granted a new
trial. However, the case was not dismissed as a result of the polygraph results. After the trial
court granted the motion for a new trial, the prosecution expressed its intent to pursue a new trial
by filing a motion to use Patton’s prior testimony from Sullivan’s trial. The trial court, however,
denied the prosecution’s attempt to use Patton’s testimony as evidence against Sullivan.
Thereafter, the prosecution explained that it could not proceed to trial without that testimony, and
for that reason, the trial court dismissed the charges. Thus, the dismissal of the charges was a
result of the prosecution’s inability to use Patton’s prior trial testimony—not that Patton
“passed” a polygraph examination.

       Affirmed.



                                                             /s/ Thomas C. Cameron
                                                             /s/ Brock A. Swartzle
                                                             /s/ Mark J. Cavanagh




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