Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  July 20, 2018                                                                      Stephen J. Markman,
                                                                                                Chief Justice

  155545                                                                                   Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                          Kurtis T. Wilder
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Elizabeth T. Clement,
            Plaintiff-Appellant,                                                                     Justices


  v                                                       SC: 155545
                                                          COA: 329217
                                                          Wayne CC: 14-002709-FC
  CARLOS MARQUIS LOVE, JR.,
             Defendant-Appellee,
  _________________________________________/

        On order of the Court, the application for leave to appeal the February 7, 2017
  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).

          In this case, a jury convicted defendant of three counts of first-degree criminal
  sexual conduct and four counts of assault with intent to commit criminal sexual conduct
  for his role in the gang-rape of a young woman at a party. Following an evidentiary
  hearing, the trial court granted defendant a new trial based solely on defendant’s claim
  that his counsel abandoned him during trial. The Court of Appeals reversed and
  remanded for the trial court to consider ineffective assistance of counsel under the correct
  standard, i.e., whether defendant was prejudiced. The trial court conducted a second
  evidentiary hearing. Afterward, the court issued an opinion from the bench granting
  defendant a new trial. In doing so, the court assumed that defendant’s newly discovered
  witness, Darrell Gleese, was credible because he lacked a criminal record. The court
  failed to properly evaluate Gleese’s credibility in light of the evidence presented during
  the entirety of the proceedings. Instead, the court injudiciously found him credible
  simply because he lacked a criminal record. I would remand to a different judge to
  evaluate Gleese’s credibility in light of the facts presented at trial.

         In my view, the trial court entirely failed in its obligations to determine whether
  Gleese’s testimony was believable when compared to the evidence already presented
  against defendant. As in all claims of ineffective assistance of counsel, the defendant
  must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,
  the result of the proceeding would have been different[.]” 1 In People v Toma, 2 this Court

  1
      People v Mitchell, 454 Mich 145, 167 (1997).
  2
      People v Toma, 462 Mich 281, 308 (2000).
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explained that even though the defendant’s testimony offered the only direct rebuttal of
the prosecutor’s theory, an effective rebuttal could only have been accomplished if the
testimony was believed. That is similar to the issue in the present case. Here, the trial
court stated in its ruling, “There is a reasonable probability of [a different outcome]
because [Gleese] would have called into question the testimony of the prosecution’s
witnesses . . . .” Previously, the court had mentioned that there was nothing to directly
impugn Gleese’s credibility, but the court seemed to reach that conclusion based solely
on Gleese’s lack of a criminal record. The court conceded that “there [were] other
questions that could be raised if he took the stand . . . . So timing would have been
important at the time that the trial took place concerning whether or not Mr. Gleese’s
testimony was going to be believed . . . .” But the court made no attempt to articulate
why Gleese should be believed in the first place, given the overwhelming evidence
presented at trial that called his credibility into question. In other words, while the court
acknowledged that “[t]he only attack on [Gleese’s] credibility conceivably would have
been that his testimony may have been inconsistent with the testimony of the
prosecution’s witnesses presented during the course of the trial,” the court absolutely
failed to evaluate whether Gleese should even be believed in light of that evidence.

      Gleese’s credibility was highly questionable and certainly warranted some
examination. Direct conflicts between Gleese’s testimony and testimony of the other
witnesses, along with a lack of corroborating evidence, raised questions as to whether
Gleese was even at the party, let alone whether his testimony could be believed.

        There was no testimony from other witnesses that suggests Gleese was at the
party; in fact, testimony from the trial suggests that Gleese was not at the party. At trial,
Destiny, Gina, Alison, and the victim were the only four party attendees to testify. They
all agreed that about 10 to 15 people attended the party. Gina specified that there were
eight boys; she knew defendant, Dantraz, Dalvyn, and Durell, plus there were four boys
whom she did not know. This fits neatly with Alison’s testimony that in addition to the
four boys Gina named, Craig, Joe, Dre, and Zay attended the party. Destiny testified that
in addition to herself, Gina, Alison, Shankey, the victim, Lakiya, Lenay, and Gina’s
friend (Stocey) were the female attendees. In their combined testimony, the witnesses
actually named 16 people at the party. 3 Significantly, Darrell Gleese was not mentioned
by any of the witnesses. Given the consensus estimate of 10 to 15 party attendees, it
seems highly unlikely that anyone went unnamed. It is even more suspicious that Gleese
claimed to have come with his friend Kenny and observed a man named Stan at the party,
since they were not mentioned by any of the other witnesses either.

       Further questions are raised about Gleese’s presence at the party by his seeming
lack of knowledge about basic facts of the evening. Gleese testified that he did not
remember playing any games. Every other witness testified that everyone at the party

3
  Gina’s boyfriend, Courtney Ellison, and the victim’s friend, someone named Juan,
stopped by after the party, but that was after the alleged rape.
                                                                                            3

played a game called “I Never.” By all other accounts, this game immediately preceded
the victim’s going into the bedroom, so it seems unsettling that Gleese would not
remember it, even when specifically asked about it. Additionally, Gleese, who claims to
have been at the apartment from 11 p.m. until 2 a.m. or 3 a.m., testified that he never saw
defendant leave the apartment. There is evidence (a text message and witnesses)
indicating that defendant left the apartment around 1:10 a.m. Finally, Gleese testified
that Gina never left the party. This again conflicts with the testimony of other witnesses
who said that Gina left to take a friend home and later returned with her boyfriend. There
is also a phone record that Destiny called Gina at 1:46 a.m., which suggests that she was
not in the apartment at that time.

       Even if Gleese did attend the party, there are other reasons to question his
credibility. First, Gleese claimed to have spoken with a male attorney before the original
trial. Two attorneys represented defendant, and both testified that only the female
attorney, Ms. Palmore-Bryant, communicated with Gleese. Second, Gleese initially said
that defendant fell asleep around 1 or 1:30 a.m., but later said it was 12 a.m. Gleese’s
testimony that the victim was still in the bedroom when he left the party (between 2 and 3
a.m.) is also dubious. Evidence presented at trial shows that the victim’s mother called 9-
1-1 before 3 a.m. The victim saw her mother in person before the call was made, so she
must have left the bedroom by that point. It is possible to fit this on Gleese’s timeline,
but barely. Finally, Gleese claims to have attended every day of defendant’s trial.
Despite this, and claiming to have exculpatory testimony, Gleese did not make defendant
or defendant’s attorneys aware of his presence. Further, defendant’s attorney, Palmore-
Bryant, claimed to have looked for him in the courthouse, but she did not find him.
While again this is possible, it seems incredible.

        As this Court explained in Toma, the posited testimony needs to be believed in
order to make a different outcome reasonably probable. There are many red flags raised
by Gleese’s testimony that warrant a closer look. While I cannot say for certain that
Gleese’s testimony is false, I believe that the trial court has not provided any factual basis
to conclude that he should be believed. MCR 6.431(B) provides that “the court may
order a new trial on any ground that would support appellate reversal of the conviction”
and that the court “must state its reasons for granting or denying a new trial orally on the
record or in a written ruling made a part of the record.” And while the Court of Appeals
properly noted that “[t]he trial court was present throughout the trial and had a ‘special
opportunity . . . to judge the credibility of the witnesses” and the other evidence,” 4 the
trial court’s assumption that Gleese was credible based on lack of a criminal record does
not implicate this special opportunity. I find the court’s failure to assess Gleese’s



4
  People v Love (After Remand), unpublished per curiam opinion of the Court of Appeals,
issued February 7, 2017 (Docket Nos. 324992 and 329217), p 6, citing MCR 2.612(C)
and MCR 6.001(D).
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testimony in light of evidence presented during the trial very troubling. Accordingly, I
believe this case should be remanded to a different judge to evaluate Gleese’s credibility
in light of the facts presented at trial.

      WILDER, J., joins the statement of ZAHRA, J.

       MARKMAN, C.J., would remand to the trial court for an evidentiary hearing to
reassess the credibility of the newly discovered witness for the reasons set forth by
Justice ZAHRA in his dissent, except that he would not remand to a different trial judge.




                         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.
                         July 20, 2018
       p0717
                                                                             Clerk
