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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

FOR PUBLICATION 

December 6, 2016 

v No. 323251 

Macomb Circuit Court 

RONALD ANTHONY DIMAMBRO, JR., LC No. 2013-004215-FC 

 Defendant-Appellant. 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellant, 

v No. 332319 

Macomb Circuit Court 

RONALD ANTHONY DIMAMBRO, JR., LC No. 2013-004215-FC 

 Defendant-Appellee. 

Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ. 

JANSEN, P.J. (dissenting). 

 I respectfully dissent. I would reverse the trial court’s order granting defendant’s motion 

for a new trial and affirm defendant’s convictions and sentences. I do not believe that a Brady1

violation occurred in this case for two reasons. First, I do not believe that the medical examiner 

falls within the scope of the “government” for the purposes of determining whether the 

prosecution suppressed evidence. Second, I do not believe that the 32 photographs from the 

neurological portion of the autopsy were material. 

 

1 Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). 
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I. SUPPRESSION OF EVIDENCE 

 As stated in the majority opinion, in order to establish a Brady violation, three elements 

must be established: “(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; 845 

NW2d 731 (2014). With regard to the requirement that the prosecution suppressed evidence, our 

Supreme Court has explained that the government is responsible for evidence within its control, 

even if that evidence is unknown to the prosecution. Id. at 150. The United States Supreme 

Court has explained that “the individual prosecutor has a duty to learn of any favorable evidence 

known to the others acting on the government’s behalf in the case, including the police.” Kyles v 

Whitley, 514 US 419, 437; 115 S Ct 1555; 131 L Ed 2d 490 (1995). 

 I disagree with the majority’s conclusion that a medical examiner falls within the scope 

of the “government” for the purposes of establishing a Brady violation. My disagreement with 

the majority stems from the fact that a medical examiner has a separate set of duties, independent 

of the prosecution, to determine the cause and manner of suspicious deaths. Our Supreme Court 

has established that a county medical examiner’s duties are owed to the state. See Maiden v 

Rozwood, 461 Mich 109, 132; 597 NW2d 817 (1999). The county medical examiners act, MCL 

52.201 et seq., details the duties that a medical examiner owes to the state. Specifically, MCL 

52.202 provides that a medical examiner or deputy medical examiner has a duty to investigate 

the cause and manner of a death under certain circumstances, including when “[t]he individual 

dies by violence,” or “[t]he individual’s death is unexpected.” MCL 52.202(1). The county 

medical examiner is therefore required to investigate suspicious deaths and come to an 

independent conclusion on the cause and manner of death. The medical examiner is not under 

the control of the prosecution. Unlike with the police or other law enforcement agencies, the 

prosecution would not have any way of knowing if any documents created by the medical 

examiner were missing. Therefore, I conclude that the medical examiner is not within the same 

category as a police officer or other investigator working on behalf of the prosecution. See, e.g., 

People v Stern, 270 AD2d 118, 119; 704 NYS2d 569 (2000) (concluding that documents in the 

possession of the chief medical examiner could not be attributed to the prosecution because the 

medical examiner’s office was not a law enforcement agency).2

 

 The majority points out that the medical examiner may be required to testify on behalf of 

the state at trial. While it is true that “[a]ny and all medical examiners or their deputies may be 

required to testify in behalf of the state in any matter arising as the result of any investigation 

required under this act,” MCL 52.212 (emphasis added), the medical examiner’s duty is broader 

than simply obtaining evidence on behalf of the prosecution. MCL 52.212 provides that the 

medical examiner may be required to testify on behalf of the state, suggesting that the medical 

examiner is not bound to make findings regarding the cause and manner of death that are 

favorable to the prosecution, but rather, is required to testify on behalf of the prosecution when 

the medical examiner’s testimony aligns with the prosecution’s theory of the case. Accordingly, 

 

2

 While cases from foreign jurisdictions are not binding on this Court, they may be persuasive. 

See People v Daniels, 311 Mich App 257, 268 n 4; 874 NW2d 732 (2015). 
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I conclude that a medical examiner does not constitute the “government” for the purposes of 

determining whether the prosecution suppressed evidence. 

II. MATERIALITY 

 I also disagree with the majority’s conclusion that the 32 photographs were material. As 

outlined in the majority opinion, in order to establish that the evidence was material, “a 

defendant must show that ‘there is a reasonable probability that, had the evidence been disclosed 

to the defense, the result of the proceeding would have been different.’ ” Chenault, 495 Mich at 

150 (citation omitted). Further “ ‘[a] “reasonable probability” is a probability sufficient to 

undermine confidence in the outcome.’ ” Id. (citation omitted). “The question is whether, in the 

absence of the suppressed evidence, the defendant ‘received a fair trial, understood as a trial 

resulting in a verdict worthy of confidence.’ ” Id. at 150-151 (citation omitted). 

 First, Dr. Cassin’s testimony regarding the effect of the surgical intervention on the right 

side of the child’s head encompassed the testimony provided by Dr. Dragovic. At trial, Dr. Spitz 

opined that the injury to the child’s brain was intentionally inflicted and that the manner of death 

was homicide. He explained during the course of discussing his autopsy findings that the 

bruising on the child’s brain indicated that there was a direct injury to the brain underneath the 

area of impact. In other words, the bruising on the child’s brain was the result of the forceful 

contact of the child’s head with a nonyielding object. Dr. Spitz explained that he was aware that 

the child had undergone medical intervention, but explained that this did not affect his ability to 

determine the cause and manner of the child’s death. In contrast, during the Ginther3

 hearing, 

Dr. Dragovic testified that the bruising on the child’s brain was related to the surgical 

intervention following the incident and was not a direct result of the child’s injury. Dr. Dragovic 

concluded that it was impossible to determine whether the injury was intentionally inflicted 

based solely on the nature of the injury. 

 Dr. Cassin also testified that the surgical intervention performed on the right side of the 

child’s head made it difficult, if not impossible, to interpret the injury finding. Dr. Cassin noted 

in his report that “bruising was described in the scalp and on the right side of the brain,” thus 

indicating that he was aware of the bruising on the child’s brain. He testified, “Surgical 

intervention can significantly complicate the injury finding and make the interpretation of injury 

finding difficult, if not actually impossible, in some details.” When pressed for additional 

details, Dr. Cassin clarified as follows: 

Q. Well, specifically, with this case, is there anything relevant with the 

surgical site or surgical intervention and the – I believe it’s Dr. Sptiz’s [sic] 

autopsy report indicating blood [sic] head trauma to the right side of the head. 

A. Yes, it did. And the surgical intervention that you mention also 

happened on the right side of the head. [Emphasis added.] 

 

3 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 
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Thus, contrary to the majority’s conclusion, Dr. Cassin did testify that the surgical intervention 

performed on the right side of the child’s head complicated, or even rendered impossible, the 

interpretation of the child’s injuries. While Dr. Cassin did not specifically opine regarding the 

effect of the surgical intervention on the cortex of the child’s brain, his testimony regarding the 

effect of the surgical intervention broadly encompassed the entire right side of the head. The 

testimony effectively contained the same conclusion that Dr. Dragovic made during the Ginther 

hearing. 

 In fact, Dr. Dragovic testified to as much during the Ginther hearing, explaining that Dr. 

Cassin came to the same conclusion that he did regarding the surgical intervention, but did not 

have the photograph evidence to support his opinion: 

Q. Is there something that would change based on those 32 photos that 

you were given? 

All you’re saying is he didn’t have the 32 photos. Based on the 32 photos 

you have, what are you saying that’s different than Dr. Cassin? What’s [sic] what 

I’m asking you. 

A. I am saying that there is no evidence of brain contusion there; that the 

contusions are all the result of complications of surgical procedure. That’s what 

I’m saying. 

Q. Isn’t that exactly what Dr. Cassin testified to? 

A. It’s pretty – that was his thought. Bus, he did not have anything to say 

here it is, here is the evidence. 

Dr. Dragovic explained that although Dr. Cassin came to the same conclusion, Dr. Cassin lacked 

the photographic evidence to support his position, which caused Dr. Cassin to be “limited in his 

assessment.” However, as even Dr. Dragovic recognized, Dr. Cassin’s conclusion regarding the 

effect of the surgical intervention on the injury finding was essentially the same as Dr. 

Dragovic’s testimony. 

 As noted by the majority, Dr. Cassin’s testimony was similar to Dr. Dragovic’s testimony 

in several other important respects. Both doctors testified that the injury was most likely the 

result of blunt force trauma stemming from the child’s head hitting a nonyielding surface. Most 

notably, both medical examiners testified that it was not possible to determine from the nature of 

the injury whether the injury was intentionally inflicted. Thus, both experts ultimately came to 

the same conclusion regarding the manner of death. Dr. Cassin’s testimony establishes that he 

provided the solid expert defense to which defendant was entitled. Accordingly, I do not believe 

that there is a reasonable probability that, had the photographic evidence been disclosed to the 

defense, the result of the proceeding would have been different. 

 I further disagree with the trial court’s reliance on the testimony of Dr. Dragovic in 

determining that the 32 photographs were material. Dr. Dragovic did not testify at trial and was 

not otherwise involved in the case until after the trial concluded. Although the majority opinion 
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assumes that Dr. Dragovic would have testified at trial, or that another expert would have 

testified to the same conclusions regarding the photographs, defendant’s trial attorney did not 

testify at the Ginther hearing that he would have sought to admit additional expert testimony as 

the result of receiving the 32 photographs. Dr. Dragovic’s testimony, therefore, does not 

establish that the testimony presented at trial would have been different had the defense received 

the 32 photographs. I do not believe it is proper for the trial court to consider the opinion of an 

expert who was not involved in the original case. It is possible for the defense in any case, once 

the trial is complete, to find an expert whose testimony is at variance with the expert testimony 

presented at trial. Therefore, I believe it is improper to consider the opinion of an expert who 

was not involved in the original trial. 

 Furthermore, neither Dr. Cassin nor Dr. Spitz testified at the Ginther hearing regarding 

the effect that the 32 photographs would have had on their testimony. Without the testimony of 

Dr. Cassin at the Ginther hearing, it is impossible to determine whether he would have referred 

to the 32 photographs as additional support for his conclusions regarding the effect of the 

surgical intervention on the child’s head or whether he would have come to the same conclusion 

as Dr. Dragovic regarding the significance of the 32 photographs. Additionally, approximately 

290 photographs were provided to the defense before trial. The evidence provided to the defense 

was sufficient for Dr. Cassin to form an opinion on behalf of the defense. Therefore, the 

evidence that was provided to the defense diminishes the materiality of the 32 additional 

photographs. 

 Finally, I believe that these 32 photographs cannot be viewed in isolation from the other 

evidence of guilt presented by the prosecution. Instead, I believe that it is necessary to examine 

the additional testimony and evidence presented at trial in order to determine whether the 32 

photographs were material. 

 Additional testimony was presented at trial on behalf of the prosecution. For example, 

defendant’s 10-year-old niece testified that defendant shook the child on occasion, slapped the 

child, and told his niece that he hated the child and wished the child would die. Further, the 

parties do not contest the fact that defendant was watching the child during the time leading up to 

the child’s death and was left alone with the child. According to the child’s mother, the child 

was acting normal when the child’s mother left him that afternoon in defendant’s care. 

 Defendant did not provide a concrete explanation for the child’s death. Instead, the 

prosecution presented at trial the videotape of defendant’s highly incriminating police interview, 

in which defendant initially stated that the child went limp after defendant left him alone in his 

play pen. According to defendant’s initial story, the child was fine when defendant placed him 

in the play pen, but was symptomatic almost immediately after defendant removed him from the 

play pen. During the course of the police interview, defendant admitted to hitting the child in the 

head with a ball while playing catch during the time that he was watching the child. He then 

added that the child fell out of his arms and hit his head while defendant was holding him. He 

finally admitted that he shook the child for up to 30 seconds because the child was crying. 

Defendant’s constant alterations to his story and his admission that he shook and dropped the 

child bolsters the prosecution’s argument that defendant intentionally caused the child’s injuries. 
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 Additionally, Dr. Angelilli, who testified as an expert in pediatrics and child abuse, 

opined that the child’s injuries were nonaccidental and were intentionally inflicted. She testified 

that the explanations for the injury provided by the defense, such as the child falling off of a bar 

stool or falling out of defendant’s arms, would have resulted in less severe injuries. She also 

explained that the child would have been symptomatic immediately following the fatal injury. 

Importantly, Dr. Angelilli testified as follows: 

Q. Now, Doctor, in your opinion, as an expert in the field of pediatrics 

and child abuse, what is your opinion in this case? 

A. I think that Damien was abused. I think this is child abuse. 

Q. And you’ve already stated non-accidental inflicted trauma. 

A. Yes, and I’m actually certain of that. 

Thus, Dr. Angelilli’s testimony provided an independent basis for the jury to find that defendant 

abused the child, resulting in the fatal injury. 

 The majority notes in a footnote that Dr. Dragovic’s testimony indirectly challenges the 

validity of Dr. Angelilli’s conclusions, but also acknowledges that Dr. Angelilli’s conclusions 

were not based on the appearance of the brain. I fail to see how Dr. Dragovic’s testimony 

regarding the 32 photographs challenges the validity of Dr. Angelilli’s testimony. As the 

majority acknowledges, Dr. Angelilli did not rely on the appearance of the child’s brain in 

rendering her opinion. Dr. Angelilli’s expert testimony also did not rely on Dr. Spitz’s autopsy 

report. Accordingly, I conclude that Dr. Dragovic’s testimony regarding the 32 photographs 

does not affect the validity of Dr. Angelilli’s opinion.4

 Dr. Angelilli’s expert testimony, 

therefore, provided an additional basis for the jury to conclude that defendant intentionally 

caused the fatal injury. 

 In light of the additional incriminating evidence presented at trial, I do not believe that 

there is a reasonable probability that, had the prosecution disclosed the photographs to the 

defense before trial, the result of the proceeding would have been different. Put another way, in 

the absence of the 32 photographs, defendant received a trial resulting in a verdict worthy of 

confidence. Therefore, I conclude that there was no Brady violation in this case because the 

medical examiner did not constitute the “government” for the purposes of establishing whether 

the prosecution suppressed evidence, and the 32 photographs were not material. I would reverse 

 

4

 To the extent that the majority implies that Dr. Dragovic’s conclusion regarding the manner of 

death was contrary to Dr. Angelilli’s conclusion that the injury was intentionally inflicted, Dr. 

Cassin came to the same conclusion as Dr. Dragovic regarding the manner of death, and Dr. 

Angelilli’s opinions were therefore refuted by Dr. Cassin’s testimony. 
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the trial court’s order granting defendant a new trial and affirm defendant’s convictions and 

sentences. 

/s/ Kathleen Jansen