If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

April 16, 2019

V No. 333535

Macomb Circuit Court

MARK ANTHONY VARNER, LC No. 2014-003080-FC

Defendant-Appellant.

Before: TUKEL, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

Defendant appeals as of right his convictions of two counts of assault with intent to 

commit murder, MCL 750.83, two counts of possession of a firearm during the commission of a 

felony, MCL 750.227b, and one count of discharging a firearm from a vehicle, MCL 750.234a.

The trial court sentenced defendant to serve terms of imprisonment of 4 to 30 years for each 

assault conviction, two years for each felony-firearm conviction, and 10 to 23 months for the 

discharge of a firearm conviction. The felony-firearm sentences are concurrent with each other, 

but consecutive, respectively, to the assault sentences, and all other sentences run concurrently. 

Defendant also appeals the trial court’s post-trial order denying his motion for a new trial. We 

affirm.

At trial, the principal complaining witness testified that shortly after midnight on July 15, 

2014, he and his live-in girlfriend were driving from a fast-food restaurant in his truck when they 

came upon a black Fiat that was moving very slowly, then suddenly stopped, at which point the 

complainant drove around it, turning on side streets. Shortly thereafter, the complainant again 

encountered the slow-moving Fiat, which again abruptly stopped, and this time when the 

complainant drove around the Fiat, defendant, the driver of the Fiat, fired several gunshots at the 

complainant’s truck. The complainant’s passenger substantially confirmed that account. 

Defendant, however, testified that the truck was following him menacingly and that he braked 

suddenly in response to unexpected heavy rain, after which shots rang out from the truck, and in 

response, defendant returned fire in hopes of scaring the assailant off.
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On appeal, defendant challenges the trial court’s decision not to allow the defense to 

present the details attendant to the principal complainant’s 1998 convictions of assault with 

intent to commit murder and felony-firearm and also the court’s denial of his motion for a new 

trial predicated on alleged juror bias and newly discovered evidence.

We review a trial court’s evidentiary decisions for an abuse of discretion. People v 

Martzke, 251 Mich App 282, 286; 651 NW2d 490 (2002). A court’s decisions on a motion for a 

new trial and a motion for reconsideration are also reviewed for an abuse of discretion. People v 

Miller, 482 Mich 540, 544; 759 NW2d 850 (2008); People v Perkins, 280 Mich App 244, 248; 

760 NW2d 669 (2008). “A trial court abuses its discretion when it fails to select a principled 

outcome from a range of reasonable and principled outcomes.” People v Kahley, 277 Mich App 

182, 184; 744 NW2d 194 (2008). A trial court’s factual findings are reviewed for clear error. 

MCR 2.613(C). A finding is clearly erroneous when the reviewing court is left with a definite 

and firm conviction that a mistake was made. People v Armstrong, 490 Mich 281, 289; 806 

NW2d 676 (2011).

I. THE COMPLAINANT’S EARLIER CONVICTIONS

Before trial, the defense gave notice of its intent to present evidence that the complainant 

was involved in an earlier incident involving his discharge of a firearm from a moving vehicle, 

offering that evidence under MRE 404(b)(1). The prosecutor described the prior conduct as 

follows:

[The complainant] was called by a friend who had been kicked out of a house 

party. His friend wanted to go back and either get in a fight or basically take 

revenge on the people who kicked him out. So a large group of people, including 

[the complainant], who was picked up, did not drive in his own car, was picked up 

by this group of people they went . . . around the house a couple times . . . . At 

some point, then, [the complainant] did shoot from the car at that house[;]

they . . . drove away. At some point, [the complainant] put the gun into the trunk 

instead of having it in the car and, at some point later that evening, he was 

dropped off with the gun. . . . [T]he gun ended up at his girlfriend’s house . . . .

MRE 404(b)(1) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character 

of a person in order to show action in conformity therewith. It may, however, be 

admissible for other purposes, such as proof of motive, opportunity, intent, 

preparation, scheme, plan, or system in doing an act, knowledge, identify, or 

absence of mistake or accident when the same is material, whether such other 

crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the 

conduct at issue in the case.

MRE 404(b) “represents the deeply rooted and unwavering principle that other-acts evidence is 

inadmissible for propensity purposes.” People v Denson, 500 Mich 385, 397; 902 NW2d 306 

(2017). The list of permissible purposes in MRE 404(b) is not exhaustive. People v Sabin (After 

Remand), 463 Mich 43, 56; 614 NW2d 888 (2000). Indeed, a proper purpose simply is one other
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than establishing a defendant’s character to show his propensity to commit the charged offense. 

People v Johnigan, 265 Mich App 463, 465; 696 NW2d 724 (2005). Although MRE 404(b)(1) 

is generally applied in connection with criminal defendants, it also “applies to the admissibility 

of evidence of other acts of any person, such as a defendant, a plaintiff, or a witness.” People v 

Rockwell, 188 Mich App 405, 409-410; 470 NW2d 673 (1991).

Thus, in order for other-acts evidence to be introduced, the following test must be 

satisfied: (1) there must be a reason for its admission other than to show character or propensity

and (2) the evidence must be relevant. Sabin, 463 Mich at 55. Furthermore, the evidence must 

also meet the requirements of MRE 403, which prohibits the introduction of evidence where the 

probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Id.

at 55-56; People v Starr, 457 Mich 490, 498; 577 NW2d 673 (1998).

The salient portion of MRE 403 states that “evidence may be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice.” Evidence becomes unfairly 

prejudicial and should be excluded when “use of the evidence would be inequitable or if there is 

a danger that the jury will give it undue or preemptive weight.” People v Lane, 308 Mich App 

38, 55; 862 NW2d 446 (2014). We give deference to the trial court’s MRE 403 analysis because 

of its “contemporaneous assessment of the presentation, credibility, and effect of testimony.” 

People v VanderVliet, 444 Mich 52, 81; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). 

Thus, “[i]n reviewing the trial court’s decision for an abuse of discretion, the appellate court 

must view the evidence in the light most favorable to its proponent, giving ‘the evidence its 

maximum reasonable probative force and its minimum reasonable prejudicial value.’ ” People v 

Head, 323 Mich App 526, 540; 917 NW2d 752 (2018) (citation omitted). “ ‘[T]he draftsmen 

intended that the trial judge be given very substantial discretion in ‘balancing’ probative value on 

the one hand and ‘unfair prejudice’ on the other, and that the trial judge should not be reversed 

simply because an appellate court believes it would have decided the matter otherwise.’ ” Id. at 

540-541 (citation omitted).

The trial court initially announced its intention “to admit evidence regarding the 

complainant’s prior conduct,” but after entertaining further argument at a subsequent pretrial 

hearing, the court stated its intention to “take a closer look at these issues,” after which the court 

issued an order denying defense counsel’s motion to allow the evidence. The court explained as 

follows:

[T]he similarities between the case at hand and the complainant’s prior conviction 

is [sic] extremely limited. The . . . two crimes have common features, but are 

more indicative of similar spontaneous acts as opposed to a common design or 

plan. Accordingly, upon further review, the Court is satisfied that the probative 

value of the other acts evidence is slim. On the other hand, the prejudicial nature 

of evidence that the complainant was convicted of a similar act would be 

significant, especially in light of the nature of the charges and the credibility 

determination involved. The Court is therefore satisfied that the prejudicial effect 

of the other acts evidence substantially outweighs the probative value of the 

evidence.
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On appeal, defendant maintains that the evidence was admissible to show a common plan 

or scheme, a permissible use for other-acts evidence. See MRE 404(b)(1); Johnigan, 265 Mich 

App at 465.

Defendant claims that the trial court erred in regarding the incidents in question as 

reflecting “spontaneous” behavior, in light of the indications that considerable machinations 

preceded the complainant’s resort to shooting in 1998, and also that defendant’s theory of the 

instant case included a considerable period of confrontation and maneuvering before any 

shooting took place. However, even if “spontaneous” was not the best way to describe either the 

complainant’s actual shooting in 1998, or his shooting in the instant case as defendant alleges, 

the trial court in fact reasonably concluded that the two shooting incidents arose not in 

furtherance of any common plan or scheme, but rather as prompted by different concerns of the 

moment.

Although defense counsel ably presented the facts of the earlier incident as if establishing 

a plan or scheme on the complainant’s part of shooting at strangers from a vehicle, the 

prosecutor’s offering of additional facts did indeed bring to light that the two incidents only had 

limited commonality. What defendant described of the complainant’s actions was a 

confrontation involving defendant and his vehicle, leading the complainant to start shooting in an 

apparent fit of so-called road rage while accompanied only by his girlfriend. The complainant’s 

earlier conviction, however, stemmed from a shooting prompted by a friend seeking revenge 

against a houseful of revelers, which was further encouraged by that friend’s supporters in the 

moment. Although defendant’s characterization of the earlier incident portrayed both incidents 

as involving the complainant shooting at strangers from a moving vehicle, the two incidents 

differed in that the earlier incident did not otherwise resemble road rage and the alleged later 

incident had nothing to do with empathizing with, or demonstrating support for, a friend who 

thought he was treated badly by persons gathered in the targeted location. Therefore, the trial 

court did not abuse its discretion in concluding that, because the two episodes were not 

substantially similar, the prior incident lacked any true relevance to show a common plan or 

motive under MRE 404(b).

Defendant additionally relies on United States v Aboumoussallem, 726 F2d 906 (CA 3, 

1984), and suggests that the trial court erroneously considered the potential for unfair prejudice 

in the usual sense of a criminal defendant’s interests, failing to bear in mind that prejudice 

presents a lesser concern when the prior bad acts are attributed to an uncharged witness. See id.

at 911 (holding that “the standard of admissibility when a criminal defendant offers similar acts 

evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a 

sword” because “risks of prejudice are normally absent when the defendant offers similar acts 

evidence of a third party to prove some fact pertinent to the defense”). However, we are not 

bound to follow Aboumoussallem. See Abela v Gen Motors Corp, 469 Mich 603, 607; 677 

NW2d 325 (2004) (“Although lower federal court decisions may be persuasive, they are not 

binding on state courts.”). Moreover, Aboumoussallem does not stand for the proposition that 

unfair prejudice is never a concern when a criminal defendant seeks to introduce prior-acts 

evidence of a third party. Rather, the Aboumoussallem court simply stated that when other-acts 

evidence is being introduced by a defendant, its admissibility is not as restrictive as when a 

prosecutor seeks to use such evidence. Id. at 911. But the trial court still needs to engage in a 

MRE 403 analysis. See id. at 911-912.
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Here, the trial court found that because of the dissimilarities between the 1998 shooting 

incident and the alleged shooting in this case, there was “slim” probative value to the prior-acts 

evidence. And on the other hand, the court found that there was the danger of significant 

prejudice due to the fact that the complainant was convicted of a somewhat similar act. We 

presume that the trial court understood that the risk of unfair prejudice existed not in relation to 

the complainant personally, whose penal interests were not then at stake, but rather in relation to 

the prosecution’s right to present its case without seriously distorting influences. See People v 

Alexander, 234 Mich App 665, 675; 599 NW2d 749 (1999) (stating that there is a presumption 

that a trial court knows the law). Given the highly deferential standard of review already noted, 

we cannot conclude that the court reached an unprincipled result.

Therefore, for these reasons, we hold that the trial court did not abuse its discretion when 

it precluded defendant from introducing evidence of the complainant’s earlier shooting incident.

Defendant alternatively argues that in disallowing the details attendant to the

complainant’s 1998 convictions, the trial court denied him the right to cross-examine an adverse 

witness or to otherwise present a defense. In particular, defendant protests that the decision 

prevented him from effectively exposing the complainant’s vulnerability to being prosecuted for 

possession of a firearm by a felon, see MCL 750.224f, and as providing the complainant with an 

incentive to lie to the police about whether he had a gun on the occasion in question. We 

disagree.

A criminal defendant has a constitutional right to present a defense. People v Hayes, 421 

Mich 271, 278; 364 NW2d 635 (1984), citing US Const, Ams VI & XIV and Const 1963, art 1, 

§§ 13, 17, and 20. This includes the right to confront adverse witnesses. US Const, Am VI; 

Const 1963, art 1, § 20. Witness credibility is always at issue, and may be attacked on crossexamination. See MRE 611(c). Accordingly, “[a] limitation on cross-examination that prevents 

a defendant from placing before the jury facts from which bias, prejudice, or lack of credibility 

of a prosecution witness might be inferred constitutes denial of the constitutional right of 

confrontation.” People v Kelly, 231 Mich App 627, 644; 588 NW2d 480 (1998). However, 

“neither the Confrontation Clause nor due process confers an unlimited right to admit all relevant 

evidence or cross-examine on any subject.” People v Adamski, 198 Mich App 133, 138; 497 

NW2d 546 (1993). The right to present a defense extends to only relevant and admissible 

evidence. People v Hackett, 421 Mich 338, 354; 365 NW2d 120 (1984).

In this case, the trial court struck a reasonable balance between preventing the 

presentation of marginally probative information and respecting defendant’s right to present a 

defense by disallowing the evidence detailing the complainant’s 1998 convictions, while still 

allowing the defense to elicit that the complainant was not legally entitled to possess a gun. 

Defense counsel took full advantage of that nuanced ruling when, after the complainant denied 

that he had a gun on the night in question based on a matter of personal choice, counsel elicited 

the complainant’s admission that he had told the police that it was illegal for him to possess a 

gun. Then, defense counsel included the following in closing argument:

He said that, oh, he chooses not to have a gun. But, then, admitted that it 

would have been illegal for him to have a gun in that truck. It wasn’t by choice. 

It was that he was prevented by law from having a gun in that truck, and that’s a 
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very important fact that you need to consider and that the police should have 

considered.

The defense thus had, and took advantage of, an adequate opportunity to ensure that the jury

understood that, if the complainant did have a gun as defendant alleged, he had a penal incentive 

to conceal that fact from the police. As a result, defendant’s right to present a defense was not 

violated.

Defendant separately argues that the trial court impermissibly changed its mind and ruled 

that defendant would not be allowed to present the complainant’s 1998 convictions. Defendant 

asserts, and the dissent agrees, that the trial court was persuaded by the prosecutor’s offer of the 

two complainants’ favorable polygraph test results and characterizes the prosecutor’s actions in 

this regard as “misconduct.” This is a two-step argument which asserts that the prosecution’s 

reference to polygraph results was misconduct and that there was resulting prejudice because the 

trial court relied on such improper evidence. We find that the argument lacks merit because to 

prevail, defendant would have to satisfy both prongs and he fails to satisfy either one.

Initially, we do not agree with the characterization of the prosecutor’s offer of the 

polygraph evidence, under the rubric of a motion to suppress evidence—which the trial court 

appropriately treated as a motion to reconsider its earlier decision to allow evidence of the 

complainant’s earlier convictions—as “misconduct.” Cf. People v Abraham, 256 Mich App 265, 

278; 662 NW2d 836 (2003) (“A finding of prosecutorial misconduct may not be based on a 

prosecutor’s good-faith effort to admit evidence.”). Instead, we observe nothing more than the 

court exercising its broad discretion to revisit an earlier ruling and then deciding the matter 

differently. See Prentis Family Foundation v Barbara Ann Karmanos Cancer Inst, 266 Mich 

App 39, 52-53; 698 NW2d 900 (2005) (“[A] trial court has unrestricted discretion to review its 

previous decision[.]”); Kokx v Bylenga, 241 Mich App 655, 659; 617 NW2d 368 (2000). Indeed, 

the trial court could have done so sua sponte, without any motion at all by the prosecution. See 

United States v Jenkins, 420 US 358, 362 n 3; 95 S Ct 1006; 43 L Ed 2d 250 (1975) (“[T]he 

judge apparently changed his mind after further deliberation, as was his prerogative . . . .”),

overruled on other grounds by United States v Scott, 437 US 82; 98 S Ct 2187; 57 L Ed 2d 65 

(1978); Prentis Family Foundation, 266 Mich App at 52-53.

Moreover, defendant cannot demonstrate prejudice, as defined by the trial court being 

exposed to the allegedly improper MRE 404(b) evidence and as a result, according to defendant, 

changing its mind but without revealing (indeed, by affirmatively misrepresenting) its reasons 

for such a reversal of a previous ruling. As we previously noted, a trial court is permitted to 

revisit and revise its earlier decisions. Moreover, in doing so here, the trial court expressly stated 

on the record that it was persuaded that the polygraph evidence should not be considered. 

Despite this express recognition by the trial court, the dissent concludes that the evidence 

nonetheless “likely affected the trial court’s determination.” We see no basis for finding that the 

trial court acted contrarily to what it said it was going to do. Indeed, a trial court is presumed to 

have followed the law absent proof to the contrary. People v Farmer, 30 Mich App 707, 711; 

186 NW2d 779 (1971), citing Wagar v Peak, 22 Mich 368 (1871) and Galitis v Bassett, 5 Mich 
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App 382; 146 NW2d 708 (1966).

1

 And here there is no proof that the court considered the 

polygraph evidence when it made its decision. This situation is analogous to the circumstances 

in Farmer, in which we stated:

Although the contested part of the statement was not proper evidence for the court 

to consider and should have been deleted, we cannot say it was reversible error in 

view of the fact that the trial judge has ruled that the inclusion of the improper 

reference to other crimes in defendant’s statement was not considered by her in 

determining guilt and was, therefore, not prejudicial to the defendant. Defendant 

in effect has asked this Court to inform the trial judge that she, herself, was 

prejudiced and did not follow the law in this case. This, we cannot do. In the 

absence of proof to the contrary trial judges are presumed to follow the law. 

[Farmer, 30 Mich App at 710-711; see also People v Vasquez, 39 Mich App 573, 

574; 197 NW2d 840 (1972).]

We similarly find no support for the conclusion here that the trial judge “herself, was prejudiced 

and did not follow the law in this case,” id. at 711, and thus reject defendant’s and the dissent’s 

arguments to the contrary. Simply put, the court here found the polygraph evidence not proper 

for consideration, and there is nothing to demonstrate that the court, despite it proclamations, 

considered the evidence. And on the merits of the MRE 404(b) and MRE 403 determinations, 

we already have stated why nothing in the trial court’s ruling constitutes an abuse of discretion, 

given the deferential standard of review.

II. BIASED JUROR

During jury selection, one juror disclosed that he had served in the Army Reserve for 12 

years and was currently an engineer working for a defense contractor. That juror answered in the 

affirmative when the trial court asked if he could be unbiased in connection with both “law 

enforcement” and “the police.” On appeal, defendant, citing an affidavit from his trial attorney, 

advises that post-trial discussions with the jurors brought to light that this juror “offered that he 

had been in Army CID[2] . . . and that he was familiar with the investigation of gunshot 

incidents,” and also that this juror said “that in the Army CID they never tested for gunshot 

 1 See also People v Gaines, 306 Mich App 289, 302 n 8; 856 NW2d 222 (2014); People v Lanzo 

Constr Co, 272 Mich App 470, 484-485; 726 NW2d 746 (2006); People v Garfield, 166 Mich 

App 66, 80; 420 NW2d 124 (1988) (all stating that trial courts are presumed to know the law). 

And tacit with this long-standing presumption is that trial courts follow the law, or else their 

mere knowledge and this presumption would be of little significance. Of course, here, there is no 

need merely to presume that the trial court was aware of the law, as it clearly stated on the record 

the proper standard and expressly stated that it was following it.

2 These initials refer to the Army’s “Criminal Investigation Command.” The “D” is retained as a 

historical reference to the original title of Criminal Investigative Division, which was formed 

during World War I. See <https://www.cid.army.mil/assets/docs/CIDBrochure.pdf> (last visited 

February 20, 2019).
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residue.” Defendant protests that had this juror disclosed this information “the defense would 

have ‘excused [him] as a law enforcement officer’ by challenging him for cause and/or 

exercising a peremptory challenge.”

“Jurors are presumptively competent and impartial, and the party alleging the 

disqualification bears the burden of proving its existence.” People v Benny Johnson, 245 Mich 

App 243, 256; 631 NW2d 1 (2001). Further, “[a] juror may not impeach a verdict through 

testimony or affidavit.” Id. at 258. However, a defendant may be entitled to a new trial where a 

juror’s failure to disclose information that the juror should have disclosed denied the defendant 

an impartial jury. Miller, 482 Mich at 548-549.

In this case, defendant asserts that the juror in question “intentionally hid his law 

enforcement background from the court and the parties, thereby casting reasonable doubt on his 

impartiality to have served on this jury.” Importantly, defendant does not specify any question 

that that juror was asked that he did not answer properly, other than to protest that general 

inquiries about ties to law enforcement prompted other jurors to disclose, e.g., relatives who 

were police officers, or in one case a firefighter. However, at the initial post-trial hearing on 

defendant’s motion for a new trial, the prosecutor plausibly asserted that the juror’s single year in 

“CID did not automatically equate to law enforcement.” We agree that the subject juror may 

well have declined to volunteer that he had briefly worked in criminal investigations because he 

regarded questions about “law enforcement” as relating more to policing than investigating, and 

thus that, in light of the questions posed to him, the lack of such specification during jury 

selection did not constitute a failure to disclose requested information or otherwise indicate bias.

The prosecutor additionally pointed out that the subject juror’s involvement with criminal 

investigations was merely “one stint” in a varied term of military service and pointed out that 

defense counsel was at liberty to ask about that juror’s “full range of duties.” We find this 

Court’s opinion in Johnson, 245 Mich App 243, instructive. In Johnson, the defendant was 

charged and ultimately convicted of kidnapping and domestic violence; the defendant learned 

afterward that one of the jurors was a complainant in a domestic violence prosecution. Id. at 

250. During jury selection, the juror admitted that she had been the victim of an assault but also 

assured the trial court that she could separate her personal experience from her consideration of 

the case. Id. at 250-251. The Court held that defendant was not entitled to a new trial where the 

defense did not inquire further into the matter at the time and the juror expressly stated that she 

could keep her personal experiences “separate” and be “fair and impartial.” Id. at 256, 259. The 

Johnson Court noted that the juror answered the questions presented to her truthfully, which was 

distinguishable from other cases in which jurors answered questions falsely. Id. at 254, citing 

People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948). Like the juror in Johnson, the juror at 

issue here answered questions truthfully and stated that he would be unbiased when it came to 

law enforcement.

Defendant points out that part of his self-defense strategy at trial was to make an issue of 

how the police conducted no tests to determine whether a firearm had been discharged from 

within the complainant’s truck. As such, defendant argues that the juror’s comment after trial 

that while in the CID, he “never tested for gunshot residue,” implies that the juror thinks “that 

the testing of gunshot residue is always unnecessary in the investigation of gunshot incidents.” 

Defendant elaborates that the juror’s apparent “contempt” for gunshot residue testing indicated 
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“a disqualifying state of mind in that he had already formed at least one opinion that improperly 

influenced his verdict.” However, defendant can only speculate whether the subject juror’s 

report of never having conducted any residue testing in his limited time at the CID indicated that 

the juror personally lacked any confidence in the value of such testing, as opposed to the

possibility that the occasion for such testing simply never arose in his experience, or that such 

testing was overlooked for other reasons unrelated to perceptions of the test’s validity.

For these reasons, the trial court’s decision to deny the motion for a new trial premised on 

the juror’s failure to disclose a background in criminal investigations did not fall outside the 

principled range of outcomes.

III. NEWLY DISCOVERED EVIDENCE

Additionally, defendant had sought a new trial on the ground that a new witness had 

come to his attention who would have provided compelling testimony favorable to the defense. 

The trial court held an evidentiary hearing to explore the matter further.

At the hearing, the new witness stated that at 12:30 or 1:00 a.m. on the night in question, 

he was in New Baltimore to visit a female companion he had recently met. After arriving at the 

friend’s apartment, which was located on the north side of 23 Mile Road just east of Cypress St., 

she asked him to purchase some beer at a near-by convenience store. The witness testified that

as he was about to turn onto 23 Mile Road from a driveway located on the north side of 23 Mile 

Road, he saw “two vehicles pass me.” The witness further explained:

When the two vehicles pass me [going west on 23 Mile Road], it looked like the 

truck bumped the car and the car pulled off to the side. Then, when the car pulled 

off to the side, as I proceeded to 23 Mile, the driveway, shots rang out. As shots 

rang out, I ducked in my car, and as they continued I got back up and sped off in 

the opposite direction [going east on 23 Mile Road].

The witness clarified that he saw “the glare of the gun as it was being fired” from the pickup 

truck and that his only thoughts after hearing the gunshots was to “duck and go.” He explained 

that he had ducked down for just a few seconds before “pull[ing] off” from the driveway. And 

when the witness left the area, he turned left onto 23 Mile Road—away from the direction of the 

shooting—and headed east. He stated that he drove for 5 or 10 minutes until he reached the 

freeway, before calling his friend to tell her that because there were gunshots near the front of 

her apartment, he was not going to return. The witness added that he had had no further contact 

with the woman until about a year before the hearing, when she contacted him through social 

media and encouraged him to talk to the police about the incident. He admitted that in doing so,

he provided the police detective with a false name and that he was reluctant to go to the police 

because of outstanding warrants.

Asked to specify where he saw a flash of light and heard gunfire, the witness answered 

that the subject vehicles were “[o]n the corner of Cypress and 23,” elaborating further that the 

vehicles were not by the bus stop, but were “further east, away from the court,” closer to Cypress

and his friend’s apartment. Asked if learning that shell casings were actually found in front of 
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the bus stop in front of the district court building would cause him to remember the positioning 

of the cars differently, the witness answered in the negative.

The prosecutor then introduced surveillance video. Specifically, the video was from an 

auto repair store located on the north side of 23 Mile Road, less than 0.3 miles east of Cypress 

Street.3 The video depicted the vehicles involved in the confrontation right before the shooting 

occurred. Both vehicles are seen driving westbound on 23 Mile Road, passing the auto store at 

around 12:40 a.m. with defendant’s vehicle passing first. The video presented at the hearing also 

showed what transpired shortly thereafter. Although the video captured both westbound and 

eastbound traffic on 23 Mile Road, it did not include any signs of the witness’s white Cavalier 

leaving the area, as he described having happened.

MCR 2.611(A)(1)(f) authorizes a court to grant a motion for a new trial where the 

moving party’s “substantial rights are materially affected” in connection with “[m]aterial 

evidence, newly discovered, which could not with reasonable diligence have been discovered 

and produced at trial.”

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; 664 NW2d 174 (2003) (quotation 

marks and citation omitted).]

In this case, the trial court acknowledged that there was no dispute that the testimony that 

defendant was now offering constituted newly discovered evidence that could not have been 

discovered earlier with due diligence but concluded that the other criteria for obtaining a new 

trial on grounds of newly discovered evidence had not been met. The court reasoned:

[The new witness’s] testimony is cumulative and does not make a different result 

probable on retrial. . . . [T]estimony was introduced at trial alleging that the 

victim fired first and that defendant was defending himself. [The new witness’s]

testimony—that he saw a flash of light, heard gunfire, and assumed that the shots 

had come from the victim’s truck because he saw a glare from there while hearing 

gunfire—is cumulative of that evidence. [The new witness also] testified that 

although he heard around five or six shots in total, he ducked down quickly after 

hearing the initial shots. Thus, although [he] saw the glare of a gun and heard 

gunshots, he did not actually observe an exchange of gunfire between defendant 

and the victim. Furthermore, the credibility of [the new] testimony was 

questionable due to . . . physical evidence presented at trial, such as the location 

 3 Thus, because the driveway from which the witness said he exited was just east of Cypress 

Street, the driveway was even closer to the auto repair store.
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of bullet casings, the lack of physical evidence of a second gun, and the absence 

of [the new witness’s] vehicle on surveillance video in the area he claimed to have 

driven past at the time of the shooting.

Given the foregoing, the Court is satisfied that [the new witness’s]

testimony does not make a different result probable on retrial. Accordingly, 

because defendant has failed to demonstrate grounds that would support appellate 

reversal of his convictions or that the verdict resulted in a miscarriage of justice, 

defendant’s motion for new trial is properly denied.

Defendant claims that the trial court erred in finding that the newly discovered evidence 

was cumulative and therefore unable to satisfy the second requirement under Cress. However, 

even assuming that the evidence was not cumulative, defendant cannot show that the trial court 

erred with respect to the fourth requirement under Cress, in which it found that the newly 

discovered evidence would not make a different result probable on retrial.

Regarding this requirement, the first task for a court is to determine whether the evidence 

is credible. People v Johnson, 502 Mich 541, 566-567; 918 NW2d 676 (2018). “In making this 

assessment, the trial court should consider all relevant factors tending to either bolster or 

diminish the veracity of the witness’s testimony.” Id. at 567. And the assessments are to focus 

on whether a reasonable juror could find the testimony credible on retrial. Id.

In disputing the trial court’s conclusion that the “questionable” new testimony would not 

have likely changed the outcome of the trial, defendant objects to the court’s observation that no 

white Cavalier appeared on the surveillance video footage. Defendant’s argument is based on 

his assertion that “the trial court did not consider that there was no evidence on this record to 

establish that the DVD recording was calibrated to reflect the exact time.” But whether the 

timestamp on the video displayed the correct time is not relevant since the video undisputedly 

portrays the circumstances at the time surrounding the shooting—whatever that actual time may 

have been. It is acknowledged that the video depicts the complainant’s and defendant’s vehicles

right before the shooting occurred. In other words, it does not matter if the timestamp in the 

video was correct or “calibrated” when it said that defendant’s vehicle passed the auto shop at 

12:40:07 a.m. What is significant is that no vehicle attributable to the witness appears in the 

video after the complainant’s and defendant’s vehicles pass. The prosecutor argued that this 

tended to show that the witness had not travelled along 23 Mile Road at a time he said he did, 

i.e., right after the shooting. Because the question of whether the timestamp on the video was 

accurate or “calibrated” is not relevant, defendant has failed to show how the trial court clearly 

erred in finding that a reasonable juror would not find the witness credible. See id.

Defendant also argues that, in finding the new witness not credible, the trial court erred 

when it relied on the fact that the witness’s testimony of where the shooting occurred did not 

comport with where the bullet casings actually were found. Although defendant offers a reason 

for why there may be an inconsistency—he suggests that the casings were fired where the 

witness said the shooting occurred but were subsequently moved by other passing vehicles after 

the shooting—it seems unlikely that all of the casings would have been moved in a similar 

fashion. Moreover, defendant’s expert even testified that he was not sure how the casings had 

been damaged. Accordingly, we cannot conclude that the trial court clearly erred in finding the 
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new witness not credible when it relied on the fact that the casings were found in a location other 

than where the witness said the shooting had occurred.4

As a result, the trial court did not clearly err when it ultimately found, given the witness’s 

lack of credibility, that there was not a reasonable probability on retrial that the witness’s 

testimony would have produced a different outcome. Likewise, the court did not abuse its 

discretion in denying defendant’s motion for a new trial.

IV. CUMULATIVE ERROR

We reject defendant’s argument that the cumulative effect of several errors denied him a 

fair trial. As discussed, defendant has failed to establish the existence of any error. Because 

there are no errors to aggregate, “a cumulative effect of errors is incapable of being found.” 

People v Mayhew, 236 Mich App 112, 128; 600 NW2d 370 (1999). Accordingly, defendant’s 

claim fails.

Affirmed.

/s/ Jonathan Tukel 

/s/ Jane M. Beckering 

 4 Although not mentioned by the prosecution or the trial court, we further note that the witness 

testified that 23 Mile Road in that location was “a very narrow,” two-lane road with no middle 

turn lane. However, the evidence shows that the street is a five-lane road with a middle turn 

lane. This inability of the witness to even accurately describe the road at issue further supports 

the trial court’s credibility determination, at a minimum preventing defendant from 

demonstrating clear error on the part of the trial court’s factual findings.