Part B: Substantive Issues

1.6Motion for New Trial

In addition to the following discussion, see the Michigan Judicial Institute’s Motion for New Trial Checklist.

A.Time for Making Motion

“A motion for a new trial may be filed before the filing of a timely claim of appeal.” MCR 6.431(A)(1).

“If a claim of appeal has been filed, a motion for a new trial may only be filed in accordance with the procedure set forth in MCR 7.208(B)^[1] or the remand procedure set forth in MCR 7.211(C)(1)^[2].” MCR 6.431(A)(2). See People v LaPlaunt, 217 Mich App 733, 735-736 (1996) (“[w]here a claim of appeal has been filed, MCR 6.431(A)(2) governs a criminal defendant’s motion for a new trial”).

“If the defendant may only appeal by leave or fails to file a timely claim of appeal, a motion for a new trial may be filed within the time for filing an application for leave to appeal under MCR 7.205(A)(2)(a) and [MCR 7.205(A)(2)(b)(i)-(iii)].” MCR 6.431(A)(3).

MCR 7.205(A)(2) provides, in relevant part:

“In a criminal case involving a final judgment or final order entered in that case, an application for leave to appeal filed on behalf of the defendant must be filed within the later of:

(a) 6 months after entry of the judgment or order; or

(b) 42 days after:

(i) an order appointing appellate counsel or substitute counsel, or denying a request for appellate counsel, if the defendant requested counsel within 6 months after entry of the judgment or order to be appealed;

(ii) the filing of transcripts ordered under MCR 6.425(G)(1)(f), if the defendant requested counsel within 6 months after entry of the judgment or order to be appealed;

(iii) the filing of transcripts ordered under MCR 6.433, if the defendant requested the transcripts within 6 months after entry of the judgment or order to be appealed[.]”

Where “defendant argue[d] that the trial court delayed in appointing appellate counsel [and that] led to further delays that prejudiced his appeal,” the Court did not find “any legitimate problem or deficiency caused by proceeding by leave granted[.]” People v Jones, ___ Mich App ___, ___ (2024). The Court explained that “MCR 7.205(A)(2)(b)(i) specifically provides for an appellate deadline that takes account of when appellate counsel is actually appointed, and everything the trial court did was in line with [that].” Jones, ___ Mich App at ___. “Defendant [did] not identify any instance when the trial court used, or even announced, an incorrect deadline.” Id. at ___ (noting that “even if there had been an error made, the issue [was] moot” because “[d]efendant moved for leave to appeal, and [the] Court granted the motion”).

“If the defendant is no longer entitled to appeal by right or by leave, the defendant may seek relief pursuant to the procedure set forth in [MCR 6.500 et seq³].” MCR 6.431(A)(4).

“If filed by an unrepresented individual who is incarcerated in a prison or jail, a pleading or other document must be deemed timely filed if it was deposited in the institution’s outgoing mail on or before the filing deadline. Proof of timely filing may include a receipt of mailing, a sworn statement setting forth the date of deposit and that postage has been prepaid, or other evidence (such as a postmark or date stamp) showing that the document was timely deposited and that postage was prepaid.” MCR 1.112.

B.Reasons for Granting

“No . . . new trial [shall] be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” MCL 769.26. See also MCR 6.431(B) (“On the defendant’s motion, the court may order a new trial on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice.”);⁴ People v Terrell, 289 Mich App 553, 559 (2010). “MCR 6.431(B) allows the trial court to order a new trial in a criminal case only when a motion has been brought by the defendant.” People v Torres, 222 Mich App 411, 415 (1997). “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.” MCR 6.431(B). “A trial court abuses its discretion if it grants a new trial without providing a legally recognized basis for relief or if its basis for relief rests on an unreasonable interpretation of the record.” People v Loew, ___ Mich ___, ___ (2024).

MCL 769.26 “creates a presumption that preserved, nonconstitutional error is harmless, which presumption may be rebutted by a showing that the error resulted in a miscarriage of justice.” People v Lukity, 460 Mich 484, 493 (1999). The statute does not apply to preserved, constitutional error. Id. at 495 n 3. “[MCL 769.26] presumes that a preserved, nonconstitutional error is not a ground for reversal unless ‘after an examination of the entire cause, it shall affirmatively appear’ that it is more probable than not that the error was outcome determinative.” Lukity, 460 Mich at 495-496. “[T]he appropriate inquiry ‘focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.’” Id. at 495, quoting People v Mateo, 453 Mich 203, 215 (1996). See People v Snyder, 462 Mich 38, 45-46 (2000) (the conclusion that “exclusion of . . . impeachment evidence was error” “[wa]s based upon ‘an examination of the entire cause,’ as required by MCL 769.26[;]” “[t]herefore, [] the evidentiary error . . . was not harmless under the Lukity standard for assessing preserved, nonconstitutional error” and remand for a new trial was warranted). Even where “[t]he trial judge’s actions fell short of the high ethical standards that Michigan jurists are expected to uphold,” defendant was not entitled to a new trial under MCR 6.431(B) because “the trial judge’s failure to recuse herself did not result in a miscarriage of justice at defendant’s trial or deprive defendant of any constitutional right.” Loew, ___ Mich at ___.⁵

C.Trial Without Jury

“If the court tried the case without a jury, it may, on granting a new trial and with the defendant’s consent, vacate any judgment it has entered, take additional testimony, amend its findings of fact and conclusions of law, and order the entry of a new judgment.” MCR 6.431(C). The language of MCR 6.431(C) has been “construe[d] . . . to mean that where a defendant has been convicted in a bench trial, after the defendant’s motion for a new trial has been granted and if the defendant consents, the trial court may take additional testimony instead of commencing another trial from the beginning.” People v McEwan, 214 Mich App 690, 694-695 (1995).

D.Inclusion of Motion for Judgment of Acquittal

“The court must consider a motion for a new trial challenging the weight or sufficiency of the evidence as including a motion for a directed verdict of acquittal.” MCR 6.431(D).⁶

“When making findings pursuant to [MCR 6.431] the trial court should clearly distinguish on the record and in its order its disposition of the two motions [(motion for new trial and motion for directed verdict of acquittal)].” 1989 Staff Comment to MCR 6.431.⁷

See Order Vacating Conviction and Entering New Disposition, CC 387.

E.Standard of Review

Appellate courts “review for an abuse of discretion a trial court’s decision to grant or deny a new trial.” People v Terrell, 289 Mich App 553, 558 (2010). “An abuse of discretion occurs when the trial court’s decision is outside the range of principled outcomes.” Id. at 559. “Underlying questions of law are reviewed de novo, while a trial court’s factual findings are reviewed for clear error[.]” Id. (citations omitted).

F.Grounds for a New Trial

The following subsections address several common grounds on which a motion for a new trial may be based. For discussion of additional substantive bases for new trial motions, such as double jeopardy violations and prosecutorial error, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1.

1.Newly Discovered Evidence

“For a new trial to be granted on the basis of newly discovered evidence, a defendant must show that: (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), quoting People v Johnson, 451 Mich 115, 118 n 6 (1996). .“[T]he defendant carries the burden of making the requisite showing regarding each of the four parts of the Cress test.” People v Rao, 491 Mich 271, 274 (2012). See also People v Lemons, ___ Mich ___, ___ (2024) (holding that “the trial court abused its discretion by deeming defendant’s proposed expert testimony inadmissible,” and defendant overcame “the procedural threshold of MCR 6.502(G) and . . . established ‘good cause’ and ‘actual prejudice’ as required by MCR 6.508(D)(3) by demonstrating all four factors of Cress”). 

“‘[N]ewly discovered evidence’ for purposes of a motion for new trial is evidence about some purported thing or event that existed or took place prior to the original trial’s conclusion.” People v Rogers, 335 Mich App 172, 201 (2020). For example, recantation evidence is newly discovered evidence “because it is evidence of false testimony given during the trial,” and “new, previously unknown eyewitness testimony” is newly discovered evidence “because it is evidence about an event (i.e., the crime) that occurred before the trial.” Id.

Third prong of Cress test. “[U]nder Cress, when a defendant is aware of evidence before trial, he or she is charged with the burden of using reasonable diligence to make that evidence available and produce it at trial[;] [a] defendant who fails to do so cannot satisfy the first and third parts of the Cress test.” Rao, 491 Mich at 283. “When evidence is known to the defendant at the time of trial, but is claimed to have been unavailable, the third part of the Cress test is necessarily implicated because it requires a showing that the defendant ‘could not, using reasonable diligence, have discovered and produced the evidence at trial[.]’” Id., quoting Cress, 468 Mich at 692. “[W]hat constitutes reasonable diligence in producing evidence at trial depends on the circumstances of the case.” Rao, 491 Mich at 283-284. “[T]he law affords a defendant procedural avenues to secure and produce evidence and, under Cress, a defendant must employ these avenues in a timely manner because evidence that is known to the defendant, yet not produced until after trial, will not be considered grounds for a new trial.” Id. at 284.

Fourth prong of Cress test. “In order to determine whether newly discovered evidence makes a different result probable on retrial, a trial court must first determine whether the evidence is credible,” and “[i]n making this assessment, the trial court should consider all relevant factors tending to either bolster or diminish the veracity of the witness’s testimony.” People v Johnson, 502 Mich 541, 566-567 (2018). See also People v Lemons, ___ Mich ___, ___ (2024) (noting that the defendant satisfied all four prongs of Cress “in light of the conclusion that most of defendant’s proffered expert testimony would be admissible and because all evidence that would be presented at a new trial must be considered when deciding whether new evidence would make a different result probable[.]”) “A trial court’s function is limited when reviewing newly discovered evidence, as it is not the ultimate fact-finder; should a trial court grant a motion for relief from judgment, the case would be remanded for retrial, not dismissal.” Johnson, 502 Mich at 567. “In other words, a trial court’s credibility determination is concerned with whether a reasonable juror could find the testimony credible on retrial.” Id.  (holding defendants are entitled to a new trial where the trial court focused only on the “questionable aspects” of the newly-discovered testimony and failed to acknowledge the “reliable aspects” and when the testimony is considered “in its entirety,” “a reasonable juror could find [the witness’s] testimony worthy of belief on retrial”). See also Rogers, 335 Mich App at 203 (holding that the trial court erred with respect to its credibility determinations because it “reconciled conflicting testimony”— concluding the witness had a motive to recant her statements— “but it did not consider what a reasonable juror could make of the conflicting testimony”). A trial court may not conclude that a witness is not credible solely because of the witness’s criminal history. People v Corley, 503 Mich 1004, 1004, 1006 (2019) (remanding for a new trial where “[t]he prosecution’s evidence was not overwhelming, and the new [disinterested] witness’s testimony would have undermined that evidence significantly”).

“[W]hen evaluating a motion for new trial based on newly discovered evidence, the court must consider the evidence admitted at the original trial and all of the record evidence that has come to light to-date that could be used at the retrial.” Rogers, 335 Mich App at 202. For example, a different result was probable on retrial where the witness recanted her statements that the defendant sexually assaulted her, explained she lied because she wanted defendant’s family to help her, and after the original trial she admitted to falsely accusing different family members of sexual assault. Id. at 189-190, 203. Because the newly discovered evidence—the victim’s recantation—combined with the additional evidence that would be presented on retrial—the victim’s false accusations of sexual assault against different family members—discredited the victim “to a significant extent,” and “[t]he original trial was a classic ‘he said/she said’ credibility contest between the victim and the defendant,” defendant was entitled to a new trial. Id. at 205, 208.

Changed testimony. When a medical examiner, “who had testified at trial for the prosecution, testified at the evidentiary hearing that he had changed his mind about [the victim’s] diagnosis” based on new biomechanical scientific evidence, the Court noted that “in light of the conclusion that most of defendant’s proffered expert testimony would be admissible and because all evidence that would be presented at a new trial must be considered when deciding whether new evidence would make a different result probable . . . defendant has satisfied all four prongs of Cress.” People v Lemons, ___ Mich ___, ___ (2024) (conviction based on shaken baby syndrome (SBS)). “[U]nlike at the first trial, at retrial defendant could present evidence concerning the alleged controversy in the medical community regarding the SBS diagnosis.” Id. at ___. “The defense experts opined that other conditions could cause the triad of symptoms and questioned the scientific quality of the literature regarding the diagnostic accuracy of SBS based on the triad.” Id. at ___. “[Defense experts] cited published articles, reports, and studies in support of their opinions.” Id. at ___. “As the panel recognized, proponents of the SBS diagnosis as well as experts such as those presented by defendant, who disagree with or are skeptical of the SBS diagnosis, rely on the same sources of data.” Id. at ___. “They simply reach different conclusions by attaching different interpretations to that information. Id. at ___. “These divergences are a matter of weight, not admissibility.” Id. at ___.

“[A]t retrial, defendant could call [the medical examiner] to testify about his changed opinion regarding [the victim’s] cause of death as well as several expert witnesses who would testify that SBS is a questionable diagnosis, that [the victim’s] injuries were not consistent with abusive shaking, and who would provide the jury with a potential alternate cause of death.” Id. at ___. “In rejecting defendant’s claim for relief under Cress, the Court of Appeals relied heavily on her confession. But if a fact-finder believes the defense experts’ testimony that SBS cannot occur without an accompanying catastrophic neck injury, then the jury might conclude that defendant’s confession—obtained only after she was told that [the victim] died from shaking—was false.” Id. at ___. “As we have recognized elsewhere, suspects presented with seemingly incontrovertible physical evidence of their guilt may confess falsely to ameliorate their current conditions.” Id. at ___.

“And while, as the Court of Appeals noted, defendant’s actions prior to [the victim’s] death could easily be construed as indicating consciousness of guilt, . . , in light of the new evidence, a jury might also view defendant’s actions as those of a frantic and panicked parent. Id. at ___. These are questions properly left to the jury. Id. at ___. “Taken together, we conclude that defendant has presented enough evidence to demonstrate that a different result on retrial is ‘probable.’” Id. at ___. “That is, not that the chance of acquittal is a mere possibility, but instead, there is a reasonably probable likelihood that a jury would have a reasonable doubt as to defendant’s guilt.” Id. at ___.

Codefendant’s testimony. “[W]hen a defendant knew or should have known that a codefendant could provide exculpatory testimony, but did not obtain that testimony because the codefendant invoked the privilege against self-incrimination, the codefendant’s posttrial statements do not constitute newly discovered evidence, but are merely newly available evidence.” People v Terrell, 289 Mich App 553, 555 (2010) (emphasis added). There still exists “the possibility that a codefendant’s posttrial or postconviction exculpatory statements might qualify as newly discovered evidence under MCR 6.431(B).” Terrell, 289 Mich App at 570. However, where a “defendant knew or should have known that his codefendant could offer material testimony about defendant’s role in the charged crime, his [or her] inability or unwillingness to procure that testimony before or during trial should not be redressed by granting . . . a new trial.” Id.

False confession. “A false confession (i.e., one that does not coincide with established facts) will not warrant a new trial, and it is within the trial court’s discretion to determine the credibility of the confessor.” Cress, 468 Mich at 692.

Perjured testimony. “The discovery that testimony introduced at trial was perjured may be grounds for a new trial.” People v Mechura, 205 Mich App 481, 483 (1994).

Impeachment evidence. “[I]mpeachment evidence may be grounds for a new trial if it satisfies the four-part test set forth in [Cress, 468 Mich at 692; however,] . . . a material, exculpatory connection must exist between the newly discovered evidence and significantly important evidence presented at trial[, and] . . . the evidence must make a different result probable on retrial.” People v Grissom, 492 Mich 296, 299-300 (2012). Further, counsel must still be reasonably diligent in securing the evidence before trial. People v Armstrong (Parys), 305 Mich App 230, 241-243 (2014) (the trial court properly denied the defendant’s motion for a new trial where “defense counsel waited until the evening before trial to search for newly discovered impeachment witnesses[;]” had “defense counsel more actively attempted to secure impeachment witnesses, he could have discovered the witnesses in time for . . . trial”).

Newly discovered impeachment evidence that one of the witnesses in the case—a deputy—made a false statement in a search warrant affidavit in a different case was not grounds for a new trial where the “defendant fail[ed] to make any connection between [the] holding regarding [the deputy’s] untruthfulness in [the other case] and the search warrant affidavit or trial testimony in [the defendant’s] case.” People v Abcumby-Blair, 335 Mich App 210, 226-227 (2020). Specifically, defendant has not “pointed to any specific portion of the affidavit potentially tainted by [the deputy’s] input, nor has he offered either evidence or argumentation” making “it probable that the trial court would find the warrant invalid and suppress the evidence collected pursuant to the warrant.” Id. at 227-228 (holding that in light of the other evidence presented at the defendant’s trial, the new evidence did not make a different outcome probable).

2.In the Interest of Justice

a.Instructional Error

“Jury instructions must include all the elements of the offenses charged against the defendant and any material issues, defenses, and theories that are supported by the evidence.” People v Dobek, 274 Mich App 58, 82 (2007). “Jury instructions are reviewed in their entirety, and there is no error requiring reversal if the instructions sufficiently protected the rights of the defendant and fairly presented the triable issues to the jury.” Id.

“[A] jury instruction that improperly omits an element of a crime amounts to constitutional error.” People v Kowalski, 489 Mich 488, 503 (2011). However, “[w]hen defense counsel clearly expresses satisfaction with a trial court’s [jury instructions], counsel’s action will be deemed to constitute a waiver.” Id. “[J]ury instructions that [are] somewhat deficient may nonetheless, when viewed as a whole, . . . suffice[] to protect a defendant’s rights when the jury would have convicted the defendant on the basis of the evidence regardless of the instructional error.” Id. at 506. “If the evidence related to the missing element was overwhelming and uncontested, it cannot be said that the error affected the defendant’s substantial rights or otherwise undermined the outcome of the proceedings.” Id. See also People v Oros, 320 Mich App 146, 163 (2017), rev’d in part on other grounds 502 Mich 229 (2018)⁸ (“[g]iven th[e] standard [set out in Kowalski, 489 Mich at 506], [the Court of Appeals] reviewed the record . . . to determine whether the evidence related to larceny from a person [as the predicate offense for felony-murder] was ‘overwhelming and uncontested,’ and whether the erroneous instruction [(false pretenses as the predicate offense for felony-murder)] adequately served to protect defendant’s rights [and] concluded that [the] circumstances [fell] well short of that demanding standard”).

Failure to give a requested jury instruction constitutes “[e]rror requiring reversal[] . . . when the error is outcome determinative, meaning the error undermined the reliability of the jury verdict.” People v Mitchell (Bradford), 301 Mich App 282, 288-289 (2013) (the defendant was entitled to a new trial where trial court’s failure to give a requested instruction on a lesser included offense constituted error requiring reversal because an inquiry sent by the jury during deliberations “strongly suggest[ed] that it wanted to consider, and likely would have convicted defendant of, a lesser charge”). Cf. People v Lyles, 501 Mich 107, 112 (2017) (“[i]n defendant’s trial for first-degree murder, the trial court improperly denied defendant’s request for an instruction informing the jury that his evidence of good character could create a reasonable doubt[;]” however, “[d]efendant [did] not show[] that it [wa]s more likely than not that the outcome would have been different if the jury had been given th[e] instruction” and “reinstate[ment] [of the] defendant’s conviction” was warranted).

b.Juror Misconduct

“Before [an appellate court] will order a new trial on the ground of juror misconduct, some showing must be made that the misconduct affirmatively prejudiced the defendant’s right to a trial before a fair and impartial jury.” People v Fox (After Remand), 232 Mich App 541, 557 (1998).

“[M]isconduct on the part of a juror will not automatically warrant a new trial[;] [a] new trial will not be granted for misconduct unless it affects the impartiality of the jury.” People v Strand, 213 Mich App 100, 103-104 (1995) (citations omitted) (trial court did not abuse its discretion in denying the defendant’s motion for a new trial where two jurors admitted learning that the defendant had a prior sexual assault conviction, but indicated that it did not affect the impartiality of their verdicts and that they did not disclose the information to the other jurors).

To establish that an extrinsic influence is error requiring reversal, the defendant must prove: (1) that the jury was exposed to an extraneous influence, and (2) that the extraneous influence created a real and substantial possibility that it could have affected the jury’s verdict. People v Budzyn, 456 Mich 77, 80-81, 88-89 (1997) (defendant entitled to a new trial where the extrinsic influences of a movie and media reports were not harmless beyond a reasonable doubt). Cf. People v Stokes, 501 Mich 918, 918 (2017) (even assuming arguendo that a juror’s experiment where he tried to recreate the crime scene “constituted an improper extraneous influence on the jury, given that the juror did not share the results of his experiment with the other jurors, it did not create a real and substantial possibility that it could have affected the jury’s verdict”) (cleaned up).

“‘Generally speaking, information is deemed “extraneous” if it derives from a source “external” to the jury[;] “[e]xternal” matters include publicity and information related specifically to the case the jurors are meant to decide, while “internal” matters include the general body of experiences that jurors are understood to bring with them to the jury room.’” People v Garay, 320 Mich App 29, 41-42 (2017), rev’d and vacated in part on other grounds 506 Mich 936 (2020),⁹ quoting Warger v Shauers, 574 US 40, 51 (2014) (the “defendant [did] not establish[] that the jury was subject to any extraneous influence through the use of cell phones” where one juror “used his cell phone for text messaging, and he had no personal knowledge for what purposes the other jurors used their cell phones[;]” additionally, the “[d]efendant [did] not establish[] that the jury was subject to an extraneous influence through” a different juror where the juror’s “statements [to the other jurors] regarding [a police officer that testified in the case] were based on his own personal knowledge of and experience with the officer” and “were not based on anything that [the juror] had read or heard about the case”).

c.Misconduct Involving the Parties, Witnesses, or Attorneys

“If a conviction is obtained through the knowing use of perjured testimony, it ‘must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’” People v Aceval, 282 Mich App 379, 389 (2009), quoting United States v Agurs, 427 US 97, 103 (1976). “Stated differently, a conviction will be reversed and a new trial will be ordered, but only if the tainted evidence is material to the defendant’s guilt or punishment.” Aceval, 282 Mich App at 389. See also People v Brown, 506 Mich 440, 447 (2020).

“It is inconsistent with due process when the prosecution allows false testimony from a state’s witness to stand uncorrected.” People v Smith, 498 Mich 466, 475 (2015).   “‘[T]he effect of a prosecutor’s failure to correct false testimony  . . . is the crucial inquiry for due process purposes.’” Brown, 506 Mich at 447, quoting Smith, 498 Mich at 476.

New trial required. In Smith, 498 Mich at 470, “the prosecution breached a duty to correct the substantially misleading, if not false, testimony of a key witness about his formal and compensated cooperation in the government’s investigation.” The defendant was entitled to a new trial because, “[g]iven the overall weakness of the evidence against the defendant and the significance of the witness’s testimony, . . . there [was] a reasonable probability that the prosecution’s exploitation of the substantially misleading testimony affected the verdict.” Id. “Due process required that the jury be accurately apprised of the incentives underlying the testimony of this critical witness,” and “[c]apitalizing on [the witness]’s testimony that he had no paid involvement in the defendant’s case [was] inconsistent with a prosecutor’s duty to correct false testimony.” Id. at 480, 487. Because “there [was] a ‘reasonable likelihood’ that the false impression resulting from the prosecutor’s exploitation of the testimony affected the judgment of the jury[,] . . . the defendant [was] entitled to a new trial.” Id. at 483, quoting Napue v Illinois, 360 US 264, 271 (1959).

In Brown, 506 Mich at 447, 454, a detective falsely testified that the defendant admitted to engaging in some sexual activity with the victim during his interview, and the prosecutor not only failed to correct the testimony, but also “undertook affirmative actions to cloud defense counsel’s efforts to correct the record.”¹⁰ There was a “reasonable likelihood that [the uncorrected false testimony] affected the jury’s verdict” where the trial was a “credibility contest between defendant and the victim,” and the prosecutor’s use of the uncorrected false testimony “left it to the jury to decide if defendant made self-incriminatory statements during the interview.” Id. at 451, 454 (remanding for a new trial).

New trial not required. The trial court did not abuse its discretion by denying the defendant’s motion for a new trial based on perjury where, “[e]ven if the prosecution knowingly presented perjured testimony, the false testimony likely would not have affected the judgment of the jury”; although “the inconsistencies [in a key witness’s testimony] . . . certainly cast doubt on [the witness’s] testimony at trial and raised questions as to his involvement in the [defendant’s crimes],” “there was concrete evidence presented that implicated defendant, despite the level of [the witness’s] potential involvement.” People v Schrauben, 314 Mich App 181, 188-189 (2016), overruled in part on other grounds by People v Posey, 512 Mich 317, 326 (2023).¹¹

d.Ineffective Assistance of Counsel

The Michigan and United States Constitutions guarantee criminal defendants the right to the effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; People v LeBlanc, 465 Mich 575, 578 (2002).

“In order to preserve the issue of effective assistance of counsel for appellate review, the defendant should make a motion in the trial court for a new trial or for an evidentiary [Ginther¹²] hearing.” People v Sabin, 242 Mich App 656, 658 (2000).

“A claim of ineffective assistance of counsel presents a mixed question of fact and constitutional law,” and “[t]he trial court’s factual findings are reviewed for clear error, while the ultimate constitutional issue is reviewed de novo.” People v Traver (On Remand), 328 Mich App 418, 422 (2019).

“[T]o demonstrate ineffective assistance, a defendant must show that his [or her] attorney’s performance fell below an objective standard of reasonableness.” People v Grant (William), 470 Mich 477, 485 (2004). “The defendant must show also that this performance so prejudiced him [or her] that he [or she] was deprived of a fair trial.” Id. at 486. “To establish prejudice, he [or she] must show a reasonable probability that the outcome would have been different but for counsel’s errors.” Id. See Strickland v Washington, 466 US 668, 687-688 (1984); People v Pickens, 446 Mich 298, 302-303 (1994).¹³ “[A] defendant’s inability to satisfy the plain-error standard^[14] in connection with a specific trial court error does not necessarily mean that he or she cannot meet the ineffective-assistance standard regarding counsel’s alleged deficient performance relating to that same error.” People v Randolph, 502 Mich 1, 22 (2018). “Courts must independently analyze each claim, even if the subject of a defendant’s claim relates to the same error.” Id. at 22.

“Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy[.]” People v Davis (Marcus) (On Rehearing), 250 Mich App 357, 368 (2002). “[T]rial counsel cannot be faulted for failing to raise an objection or motion that would have been futile,” People v Fike, 228 Mich App 178, 182 (1998), and “[t]rial counsel is not required to advocate a meritless position.” People v Snider, 239 Mich App 393, 425 (2000). The “failure to conduct a reasonable investigation may constitute ineffective assistance of counsel” when counsel fails “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” and that failure “undermines confidence in the trial’s outcome.” People v Loew, 340 Mich App 100, 121 (2022) (quotation marks and citations omitted), aff’d on other grounds by People v Loew, ___ Mich ___, ___ (2024) (holding that trial judge should have recused herself under MCR 2.003(C)(1)(b)(ii), but her failure to do so did not result in a miscarriage of justice; and judge’s ex parte communications with prosecutor did not deprive defendant of any constitutional rights). “Trial counsel’s failure to request a jury instruction may constitute an unreasonably deficient level of performance,” and when a defendant establishes “both prongs of the ineffective-assistance-of-counsel analysis,” they are “entitled to relief in the form of a new trial.” People v Yeager, 511 Mich 478, 490, 503 (2023).

When defendant withdrew his guilty plea after having waived the protection in MRE 410(a)(1) that would have made evidence of his withdrawn or vacated guilty plea inadmissible against him, “[i]t was . . . reasonable for defense counsel to address defendant’s guilty plea before the prosecution could. Doing so allowed the defense to get ahead of the issue.”People v Gash, ___ Mich App ___, ___ (2024). “Under MRE 410(a)(1), evidence of ‘a guilty plea that was later withdrawn or vacated’ is inadmissible ‘against the defendant who made the plea or participated in the plea discussions.’” Gash, ___ Mich App at ___, quoting MRE 410(a)(1). “This protection, however, can be waived.” Gash, ___ Mich App at ___. Because defendant waived the protection, “MRE 410(a)(1) no longer constrained the prosecution from bringing up defendant’s guilty plea during trial.” Gash, ___ Mich App at ___. Having defense counsel bring it up before the prosecution could “gave defendant the opportunity to explain why he took the guilty plea—because he was scared. That explanation was not only rational but painted defendant in a sympathetic light.” Id. at ___. ”Calculated risks like this are often necessary to win difficult cases, . . . and it clearly constituted sound trial strategy under the circumstances.” Id. at ___. Accordingly, “defense counsel’s decision to ask defendant about his withdrawn guilty plea did not fall below an objective standard of reasonableness, so defendant cannot establish that he is entitled to relief on his ineffective-assistance claim.” Id. at ___.

Additionally, “‘[i]f a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest.’” People v Klungle, ___ Mich App ___, ___ (2024), quoting McCoy v Louisiana, 584 US 414, 424 (2018). In this case, “defendant argue[d] his Sixth Amendment right to counsel was violated when his trial counsel conceded his guilt as to the trespassing charge during closing argument . . . .” Klungle, ___ Mich App at ___. However, “defendant never expressly told counsel that he did not want to concede guilt,” id. at ___, and in fact, “was virtually nonresponsive by the time of trial.” Id. at ___ (quotation marks omitted). Further, “[i]n light of the evidence, trial counsel conceded the trespassing charge in an attempt to prevail against the more severe resisting or obstructing charges.” Id. at ___. “Because defendant did not express a contrary instruction, trial counsel properly exercised his discretion in implementing what he reasonably believed was the most prudent trial strategy.” Id. at ___. “Defendant argues McCoy extends to situations in which defendants make even a generalized expression of innocence.” Klungle, ___ Mich App at ___. However, “the defendant in McCoy asserted his innocence by challenging the factual basis for the charged offense, contesting the facts, and asserting he did not commit the crimes.” Klungle, ___ Mich App at ___. Here, “defendant’s own testimony did not challenge the factual basis for the trespassing charge.” Id. at ___. Despite the eviction order and his receipt of the eviction notice, “defendant acknowledged that he . . . knowingly remained on the property.” Id. at ___. “Accordingly, trial counsel’s concession of guilt as to the trespassing charge did not violate defendant’s Sixth Amendment right to counsel.” Id. at ___.

Where “[d]efense counsel failed to ask the trial court to instruct the jury on self-defense and defense-of-others with respect to the charge of felony-firearm,” and where defendant had been acquitted of first- and second-degree murder, “there [was] a reasonable probability that, but for counsel’s error, the result of the trial would have been different as to [the felony-firearm] conviction.” People v Kilgore, ___ Mich App ___, ___ (2024). In this case, defendant argued that “defense counsel was ineffective for failing to request the self-defense and defense-of-others jury instructions for the offense of felony-firearm.” Id. at ___. “The trial court’s instructions specifically connected these defenses to the murder charges, explaining that if defendant acted in lawful self-defense or defense-of-others, he was not guilty of murder.” Id. at ___ (quotation marks omitted). On the first element of ineffective assistance of counsel, the Court found that “[i]nstructions on these defenses would have been crucial to the defense on [the felony-firearm] charge, and defense counsel’s failure to request the instructions was objectively unreasonable.” Id. at ___. “On the second element of ineffective assistance of counsel, [the Court] conclude[d] that it [was] reasonably probable that, but for counsel’s error with respect to felony-firearm, the result of the proceeding would have been different.” Id. at ___. The Court noted that when “there is an error in the jury instructions that appear to (i) provide a defense for the charge on which the jury acquitted but (ii) foreclose the same defense on the related charge on which the jury convicted, the probability that the conviction resulted from jury confusion rather than jury choice is too high to ignore.” Id. at ___. “Given that there was no strategic reason not to ask for the instruction, and given that the jury returned inconsistent verdicts on the murder charges (not guilty) and the felony-firearm charge predicated on murder (guilty), [the Court] conclude[d] that there [was] a reasonable probability that, but for counsel’s error, the result of the trial would have been different as to that conviction.” Id. at ___.

e.Brady Violations

A defendant may be entitled to a new trial on the basis of a violation of Brady v Maryland, 373 US 83 (1963). See People v Dimambro, 318 Mich App 204, 221 (2016). In order to establish a Brady violation, a defendant must establish that “(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its totality, is material.” People v Chenault, 495 Mich 142, 155, 158-159 (2014) (“even in the absence of the suppressed evidence, the defendant received a trial that resulted in a verdict worthy of confidence[;] [t]he defendant’s Brady claim must fail because the suppressed evidence was not material to his guilt”). Cf. Dimambro, 318 Mich App at 221 (“the trial court properly concluded that defendant [was] entitled to a new trial based on the government’s failure to disclose . . . photographs before trial” because there was “a reasonable probability that the outcome of the trial might have been different had the photographs been disclosed to the defense,” and without them the defendant did not receive “a trial resulting in a verdict worthy of confidence”) (quotation marks and citation omitted).

f.Polygraph Examinations

“Polygraph test results may be considered in deciding a motion for a new trial where[] . . . (1) they are offered on behalf of the defendant, (2) the test was taken voluntarily, (3) the professional qualifications and the quality of the polygraph equipment meets with the approval of the court, (4) either the prosecutor or the court is able to obtain an independent examination of the subject or of the test results by an operator of the court’s choice, and (5) the results are considered only with regard to the general credibility of the subject.” Mechura, 205 Mich App at 484.

g.Counsel’s Admission of Client’s Guilt Over Client’s Objection

Under the Sixth Amendment of the United States Constitution, “a defendant has the right to insist that counsel refrain from admitting guilt[.]” McCoy v Louisiana, 584 US 414, 417 (2018).¹⁵ “With individual liberty . . . at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” Id. at 417-418, 427 (holding that defense counsel’s concession of the defendant’s guilt over his objection was a violation of the defendant’s “Sixth Amendment-secured autonomy” that constituted structural error requiring a new trial).

However, where “defendant did not express a contrary instruction, trial counsel properly exercised his discretion in implementing what he reasonably believed was the most prudent trial strategy.” People v Klungle, ___ Mich App ___, ___ (2024). In this case, “defendant argue[d] his Sixth Amendment right to counsel was violated when his trial counsel conceded his guilt as to the trespassing charge during closing argument . . . .” Id. at ___. However, “defendant never expressly told counsel that he did not want to concede guilt,” id. at ___, and in fact, “was virtually nonresponsive by the time of trial.” Id. at ___ (quotation marks omitted). “Accordingly, trial counsel’s concession of guilt as to the trespassing charge did not violate defendant’s Sixth Amendment right to counsel.” Id. at ___.

h.Verdict Against the Great Weight of the Evidence

A new trial is required “if the evidence preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the verdict to stand.” People v Lemmon, 456 Mich 625, 627 (1998). “A verdict may be vacated only when it does not find reasonable support in the evidence, but is more likely to be attributed to causes outside the record such as passion, prejudice, sympathy, or some extraneous influence.” People v Allen, 331 Mich App 587, 612 (2020) (quotation marks and citation omitted), vacated in part on other grounds 507 Mich 856 (2021).¹⁶ Generally, “issues of witness credibility are for the jury, and the trial court may not substitute its view of the credibility for the constitutionally guaranteed jury determination thereof.” Lemmon, 456 Mich at 642 (quotation marks and citation omitted). However, a new trial may be granted based on issues of witness credibility under “exceptional circumstances,” for example, where “testimony contradicts indisputable physical facts or law,” where “the testimony is patently incredible or is so inherently implausible that it could not be believed by a reasonable juror,” and where “testimony has been seriously impeached and the case marked by uncertainties and discrepancies.” Id. at 642, 644, 647 (quotation marks and citations omitted).

Under MCR 2.611(A)(1)(e), “a new trial may be granted to all or some of the parties, on all or some of the issues, whenever their substantial rights are materially affected [because] a verdict or decision is against the great weight of the evidence or contrary to law.” People v Knepper, ___ Mich App ___, ___ (2024), citing MCR 2.611(A)(1)(e) (quotation marks and brackets omitted). “‘[U]nless it can be said that directly contradictory testimony was so far impeached that it was deprived of all probative value or that the jury could not believe it, or contradicted indisputable physical facts or defied physical realities, the trial court must defer to the jury’s determination.’” Knepper, ___ Mich App at ___, quoting Lemmon, 456 Mich at 645-646 (alteration in original). In Knepper, “[t]he jury ultimately found defendant guilty of attempted CSC-I, but not guilty of CSC-I, unlawful imprisonment, and assault with intent to do great bodily harm less than murder or by strangulation.” Knepper, ___ Mich App at ___. Defendant argued “that the victim’s testimony was so patently implausible that it could not be believed by any reasonable juror.” Id. at ___. In reviewing the evidence, the Court noted that “although the evidence supporting defendant’s conviction was not strong, consisting primarily of the victim’s testimony which suffered from inconsistencies and an accompanying lack of credibility, the bar defendant must clear to obtain relief in the form of a new trial is exceedingly high.” Knepper, ___ Mich App at ___. There is “ample evidence to support defendant’s conviction for attempt to commit CSC-I, so defendant is not entitled to a new trial on the basis of the great weight of the evidence.” Id. at ___.

As the trier of fact, “[t]he jury [is] permitted to infer that [a defendant’s] implausible testimony [is] evidence of guilt.” People v Skippergosh, ___ Mich App ___, ___ (2024). “[I]f the jury [does] disbelieve the defendant, it [is] further entitled to consider whatever it concluded to be perjured testimony as affirmative evidence of guilt.” Id. at ___ (cleaned up). “In this case, [the defendant] was found guilty of domestic violence as a habitual offender under MCL 750.81(5).” Skippergosh, ___ Mich App at ___. Following testimony from the victim’s family members and neighbors, the defendant “provided implausible testimony to explain away . . . two assaults and the circumstances surrounding them.” Id. at ___. “For example, [the defendant] testified that the January 2020 assault against [the victim] was committed by four anonymous women in the living room while they were covering his eyes, and that [the victim] was screaming for help in December 2021 because she required assistance removing taco meat from the refrigerator.” Id. at ___. During sentencing, the trial court “characterized [the defendant’s] testimony as ‘almost laughable in terms of what you tried to convince the jury actually happened.’” Id. at ___.

In addition, the Skippergosh Court held that “[a] prosecutor cannot vouch for the credibility of his witnesses to the effect that he has some special knowledge concerning a witness’ truthfulness.” Id. at ___ (quotation marks and citation omitted). However, “a prosecutor may comment on his own witnesses’ credibility during closing argument, especially when there is conflicting evidence and the question of the defendant’s guilt depends on which witnesses the jury believes.” Id. at ___ (quotation marks and citation omitted). The Court noted that “in light of the testimony presented at trial, it was reasonable for the prosecution to infer and argue that [the victim’s] family members did not have any unusual or impermissible motivations for testifying, and that they were compelled to do so simply out of commonplace concern for the well-being of a family member.” Id. at ___. “Further, nothing in the prosecution’s closing argument . . . hint[ed] at having special knowledge of the family members’ truthfulness or reasons for testifying.” Id. at ___.

A trial court’s decision on a motion for a new trial grounded in a great weight of the evidence claim is reviewed for an abuse of discretion, and “[a] court necessarily abuses its discretion when it makes an error of law,” or “operates within an incorrect legal framework.” In re JP, 330 Mich App 1, 13 (2019) (quotation marks and citations omitted).

i.Evidence That Should Have Been Suppressed

A new trial is warranted where “there was a Fourth Amendment violation and critical evidence was presented that should have been suppressed under the exclusionary rule[.]” People v Hammerlund, 337 Mich App 598, 616 (2021).

j.Judicial Misconduct

“[A] judge’s violation of the Michigan Code of Judicial Conduct is not a legally recognized basis for relief.” People v Loew, ___ Mich ___, ___ (2024). “A judge’s violation of a canon may be grounds for us to exercise our power to discipline that judge, but the canons do not grant litigants any substantive or procedural rights.” Id. at ___ (citations omitted). “[T]o be entitled to a new trial under MCR 6.431(B), a defendant must do more than show that a judge violated the Michigan Code of Judicial Conduct.” Loew, ___ Mich at ___.

In Loew, the trial judge exchanged e-mails with the county prosecutor during defendant’s jury trial. Id. at ___. “In her e-mails, the trial judge expressed concern about mistakes law enforcement had made in its investigation and asked questions related to why those mistakes had occurred.” Id. at ___. “The trial judge never notified defendant or defense counsel of these e-mails or their contents.” Id. at ___. In determining whether the “ex parte communications warrant[ed] granting defendant a new trial under MCR 6.431(B),” the Court considered two components: (1) “whether the trial judge should have recused herself under MCR 2.003(C)(1)(b)(ii), and if so, whether her failure to do so resulted in a miscarriage of justice,” and (2) “whether defendant was deprived of any constitutional rights because of the ex parte communications.” Loew, ___ Mich at ___.

Under the first component, the Court considered “whether an ordinary person might reasonably question the judge’s integrity, impartiality, or competence on the basis of the judge’s observable conduct.” Id. at ___. “In a word, a judge may not initiate, permit, or consider ex parte communications, but a judge ‘may allow’ ex parte communications ‘for administrative purposes,’ so long as the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage and the judge promptly discloses the communication.” Id. at ___, quoting the Michigan Code of Judicial Conduct, Canon 3(A)(4). Here, the Court opined that “the trial judge commenting about the trooper’s investigation, asking whether the Michigan State Police has detectives, and asking why the victim was not referred for a medical examination were not ‘communications . . . for administrative purposes,’ at least not as that phrase is used in Canon 3(A)(4)(a).” Loew, ___ Mich at ___. On the issue of whether there was an appearance of bias, the Court noted that “while the trial judge’s communications do not show she was actually biased or that there was an unconstitutionally high probability she was actually biased, we conclude that an ordinary person might still reasonably question her impartiality.” Id. at ___. Therefore, “the trial judge should have known that grounds for her disqualification might have existed under MCR 2.003(C)(1)(b)(ii),” and “[u]nder Canon 3(C), she should have raised the issue of her disqualification sua sponte, and she should have recused herself.” Loew, ___ Mich at ___. “Nonetheless, this is not enough to conclude that the trial court had a legally recognized basis for granting defendant a new trial under MCR 6.431(B).” Loew, ___ Mich at ___.

The Court next considered “whether defendant was entitled to relief under MCL 769.26.” Loew, ___ Mich at ___. Under MCL 769.26, “a miscarriage of justice occurs only when a nonconstitutional error affected the finder of fact.” Loew, ___ Mich at ___. “If a nonconstitutional error had no effect on the finder of fact, a court’s inquiry under MCL 769.26 is at its end.” Loew, ___ Mich at ___. Additionally, “ex parte communications between a judge and the prosecution are not per se unconstitutional,” “[b]ut depending on the circumstances, ex parte communications between a judge and the prosecution might deprive a defendant of the constitutional right to be present, to effective assistance of counsel, or the due-process right to a fair trial more generally.” Id. at ___.“[W]hile a trial judge engaging in ex parte communications with the prosecution may give the appearance of bias, it does not inevitably show that the trial judge was actually biased or that the appearance of bias was too high to be constitutionally tolerable.” Id. at ___ . “Altogether, the trial judge’s ex parte communications here were not of such a character, substance, or extent as to suggest that the trial judge was actually biased or that the probability she was actually biased was too high to be constitutionally tolerable.” Id. at ___. Further, the Court held defendant’s right to counsel was not violated as “the brief e-mail exchange between the trial judge and [the prosecutor] was not a critical stage of the proceedings,” and “the jury was unaware of the trial judge’s communications with [the prosecutor], and there is no evidence that these communications affected how the jury was instructed or the substance of the jury’s deliberation over a verdict.” Id. at ___. “Defendant has therefore failed to show that the trial judge’s ex parte communications violated his due-process right to a fair trial on this basis.” Id. at ___. Accordingly, “because the trial judge’s failure to recuse herself did not result in a miscarriage of justice at defendant’s trial or deprive defendant of any constitutional right, we conclude that the trial court had no such legal basis [for granting defendant a new trial].” Id. at ___.

k.Violation of Constitutional Right to an Appeal

“The inability to obtain the transcripts of criminal proceedings may so impede a defendant’s right of appeal under Const 1963, art 1, § 20 that a new trial must be ordered.” People v Craig, 342 Mich App 217, 226 (2022) (cleaned up). However, “[t]he failure of the state to provide a transcript when, after good faith effort, it cannot physically do so, does not automatically entitle a defendant to a new trial.” Id. (quotation marks and citation omitted). For example, a new trial is not warranted when:

•The “presumption of regularity” applies; for example, where a defendant argues they were not given statutory notice of the right to a jury trial and there is no transcript of the relevant proceeding, in the absence of substantial proofs to the contrary, it is presumed that the official discharged their public duty. Id. at 226-227.

•“When the surviving record is sufficient to allow evaluation of the appeal, the defendant’s constitutional right is satisfied,” and “where only a portion of the trial transcript is missing, the surviving record must be reviewed in terms of whether it is sufficient to allow evaluation of defendant’s claim on appeal.” Id. at 227 (cleaned up).

A new trial was warranted where the transcript of the last substantive day of the defendant’s trial was missing, and “defendant cited specific facts from the surviving record and the evidentiary hearing to identify multiple possible appellate issues which, if meritorious, would entitle him to a new trial.” Id. at 231 (noting that defendant successfully showed prejudice because of his inability to review whether error exists rather than merely asserting “that the missing transcript might reveal the existence of error warranting reversal”). Specifically, defendant argued that “the trial court might have provided improper jury instructions,” and that there may have been insufficient evidence to support one of the charges of which he was convicted—the Court noted that “the record of a critical day of trial is completely missing and there is little else in the record to corroborate what occurred that day, such as a record of the preliminary jury instructions or a transcript of any preliminary hearing,” and the testimony on the sufficiency of the evidence at the record-settlement hearing “was vague at best.” Id. at 231, 233-234 (noting “that the prosecution did not contend in the trial court, and does not contend on appeal, that an additional evidentiary hearing would be sufficient to establish a record to address the allegations of trial error”).

“[I]f a defendant argues that they were not given statutory notice of the right to a jury trial and there is no transcript of the relevant proceeding, the presumption of regularity applies, and in the absence of substantial proofs to the contrary, it will be presumed that the official discharged their public duty in this regard.” People v Skippergosh, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). Here, defendant “argues that he is entitled to relief because . . . the trial transcript does not reflect that trial counsel objected to introduction of his telephone call from jail, does not reflect trial counsel’s full objections to [the expert witness’s] testimony, and does not include [the investigating officer’s] original testimony. Id. at ___. “[W]here only a portion of the trial transcript is missing, the surviving record must be reviewed in terms of whether it is sufficient to allow evaluation of a defendant’s claim on appeal.” Id. at ___ (cleaned up). In this case, the Skippergosh Court noted that “[t]he purported transcript errors identified by [the defendant] are irrelevant to the claims presented on appeal or nonexistent.” Id. at ___. Therefore, the defendant “has not shown a due-process violation or violation of the court rules for the allegations of error identified in his affidavit.” Id. at ___.