Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  April 5, 2019                                                                Bridget M. McCormack,
                                                                                              Chief Justice

  155276                                                                             David F. Viviano,
                                                                                     Chief Justice Pro Tem

                                                                                   Stephen J. Markman
                                                                                        Brian K. Zahra
  PEOPLE OF THE STATE OF MICHIGAN,                                                Richard H. Bernstein
            Plaintiff-Appellee,                                                   Elizabeth T. Clement
                                                                                  Megan K. Cavanagh,
                                                                                                   Justices
  v                                                     SC: 155276
                                                        COA: 328532
                                                        Wayne CC: 14-007466-FC
  DIALLO CORLEY,
           Defendant-Appellant.

  ____________________________________/

         On January 24, 2019, the Court heard oral argument on the application for leave to
  appeal the December 27, 2016 judgment of the Court of Appeals. On order of the Court,
  the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to
  appeal, we REVERSE the judgment of the Court of Appeals, VACATE the defendant’s
  convictions and sentences, and REMAND this case to the Wayne Circuit Court for a new
  trial.

         In 2015, the defendant was convicted of assault with intent to commit murder,
  MCL 750.83, assault with a dangerous weapon, MCL 750.82(1), intentionally
  discharging a firearm from a motor vehicle, MCL 750.234a(1), and possession of a
  firearm during the commission of a felony, MCL 750.227b(1). The defendant filed a
  direct appeal and moved to supplement it when he discovered a new witness with
  exculpatory evidence. The Court of Appeals remanded to the trial court for an
  evidentiary hearing on the defendant’s claims relating to the new evidence.

         The trial court denied the defendant’s motion for a new trial, holding that as a
  matter of law—because the eyewitness had a criminal history—his testimony could not
  make the probability of a different result likely on retrial. The court did not otherwise
  evaluate the effect the witness’s testimony would have had on the result. In an
  unpublished per curiam opinion, issued December 27, 2016 (Docket No. 328532), the
  Court of Appeals affirmed the defendant’s conviction but remanded the case to the trial
  court to review his sentences under People v Lockridge, 498 Mich 358 (2015).

         A new trial should be granted on the basis of newly discovered evidence when a
  defendant shows: “(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 (2003) (quotation marks and citation omitted). The parties agree that the
  defendant met the first three elements. Only the fourth, prejudice, is in dispute.
                                                                                           2

        The prosecution’s case centered on the believability of the victim. The victim
testified that a person with long dreadlocks driving a red Mercury Mountaineer shot five
or six bullets at him before driving away. He identified the defendant—who had the
described hairstyle—in a photo lineup. But the jury also heard that the victim had a
criminal conviction involving theft and that he admitted to lying to a physical therapist
about his injuries and again under oath at the defendant’s preliminary hearing about his
middle name.

       At the posttrial evidentiary hearing, the newly discovered witness testified that on
the day of the shooting, he was in the neighborhood for an unrelated encounter. He was
never a suspect in the crime and had no connection to either the defendant or the victim.
The defendant found this witness after his mother learned from a family friend at a
funeral that he may have witnessed the shooting and hired a private investigator to locate
him based only on his social media alias. This witness’s account differed from the
victim’s considerably. He saw no red vehicle; instead, he testified that the shooter,
whose hairstyle was short, with brush waves in a circular pattern, approached the victim
on foot from in between two houses, fired at least three shots, and ran back in the same
direction he came from after the victim fell to the ground.

        The eyewitness’s testimony plainly undermined the prosecution’s evidence. But
the trial court did not evaluate that question, instead holding that the witness’s criminal
history made him not credible as a general matter. The Court of Appeals majority
affirmed but with additional reasoning—that the witness would not have been believed
due to his criminal history and the fact that his version of the shooting differed from the
victim’s. Alternatively, the majority believed that the witness would not be believable
due to his distrust of the criminal justice system.

        This is an unusual case because the trial court did not make findings of fact that
are owed deference. Its holding that the witness is not credible solely as a result of his
criminal conviction was erroneous. And we disagree with the Court of Appeals
majority’s analysis that the new testimony did not make a different result probable on
retrial. The prosecution’s evidence was not overwhelming, and the new witness’s
testimony would have undermined that evidence significantly. Notwithstanding his
criminal record, this disinterested witness’s detailed account makes a different result
probable on retrial.

       CLEMENT, J. (dissenting).

        I would not grant the defendant in this matter a new trial outright. Instead, I would
return this case to the trial court to perform a proper analysis of whether the newly
discovered witness could, legally, be impeached with his prior conviction, and to create a
better record for reviewing courts to assess on appeal.
                                                                                               3

        Because I disagree with the relief the majority is ordering, I must dissent, but in
reality there is less that separates me from the majority than it may seem. I entirely agree
that defendant should receive some relief, because the trial court’s handling of this case
was inadequate. But the trial court’s first error, which goes unaddressed in this Court’s
order, is that it never performed a proper analysis under MRE 609. Defendant’s new
witness had a prior conviction for armed robbery. The trial court opined that if the
witness “had given testimony at the time of trial . . . , certainly his testimony could be
impeached, pursuant to MRE 609 . . . .” But MRE 609(a)(2)(B) only allows a prior
conviction for a theft offense to be used to impeach a witness if “the court determines that
the evidence has significant probative value on the issue of credibility and . . . the court
further determines that the probative value of the evidence outweighs its prejudicial
effect.” A series of exclusive factors to consider in assessing probative value and
prejudicial effect is then provided in MRE 609(b), which also says that “[t]he court must
articulate, on the record, the analysis of each factor.”

        A trial court’s failure to properly perform an MRE 609 analysis is erroneous. “[A]
trial judge may in the exercise of discretion exclude reference to a prior conviction
record, and . . . it is error to fail to recognize that he has such discretion and, therefore, to
fail or to refuse to exercise it.” People v James Jackson, 391 Mich 323, 336 (1974),
overruled in part on other grounds by People v Hickman, 470 Mich 602 (2004), and
McDougall v Schanz, 461 Mich 15 (1999). “In order to comply with Jackson the trial
court must positively indicate and identify its exercise of discretion.” People v Cherry,
393 Mich 261, 261 (1974). In People v West, 408 Mich 332, 339-340 (1980), the trial
court simply announced “ ‘Motion in limine denied,’ ” which we held “d[id] not comply
with the dictates of Cherry and Jackson.” However, “[r]eversal of the defendant’s
convictions is not the proper remedy for the trial court’s failure to articulate its reasons
for admitting a prior conviction for impeachment on the record, as required by MRE
609(b).” People v Watts, 482 Mich 980, 980 (2008). Instead, in Watts, we ordered a
double remand, directing the Court of Appeals to retain jurisdiction while remanding the
case to the trial court “to make a record of its decision to permit impeachment of the
defendant with an armed robbery conviction.” Id. “Upon completion of that analysis by
the trial court,” we directed the Court of Appeals to “consider whether the trial court
abused its discretion in admitting the prior conviction . . . .” Id. (emphasis added).
                                                                                                               4



        Even if we are to assume that the trial court implicitly held that the prior
conviction here satisfied MRE 609, the court committed a second error: after noting the
possibility of impeaching the new witness on the basis of a prior conviction, the court
then said that “[t]he defendant’s contention that this newly discovered evidence . . .
would make a different result probable is therefore . . . untenable.” In other words, it
apparently concluded that the existence of the prior conviction would inevitably have
made the new witness incredible in the eyes of a fact-finder. As the Court’s order notes,
the trial court failed to “otherwise evaluate the effect the witness’s testimony would have
had on the result.” But the Court’s order also notes that “[t]his is an unusual case because
the trial court did not make findings of fact that are owed deference.” I agree that this
was an error on the part of the trial court, and that the lack of factual findings makes this
an unusual case. However, I believe the proper response is a remand for these missing
findings of fact. “[A] judge . . . is obliged to articulate the reasons for his decision in
findings of fact.” People v Robert Jackson, 390 Mich 621, 627 (1973) (addressing bench
trials). Where, as here, “[t]here is sufficient doubt whether the judge correctly applied
the law to the facts of this case,” the appropriate remedy is to “remand for additional fact
finding . . . .” Id. at 628.

        While I agree that defendant in this matter should receive relief, I disagree with
the Court’s decision to grant defendant a new trial outright, and would instead direct the
sort of double remand we indicated in Watts was the proper remedy for this error.

       ZAHRA, J., joins the statement of CLEMENT, 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.
                         April 5, 2019
       a0402
                                                                             Clerk
