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UNPUBLISHED

February 1, 2024

v No. 364289

Kent Circuit Court

BILLIE DESHAWN MCKINNEY, LC No. 2013-009813-FC

Defendant-Appellant.

Before: REDFORD, P.J., and RIORDAN and FEENEY, JJ.

PER CURIAM.

Defendant, Billie DeShawn McKinney, appeals by delayed leave granted1the trial court’s 

order denying his successive motion for relief from judgment pursuant to MCR 6.502(G)(2). We 

reverse and remand to the trial court for consideration of defendant’s successive motion for relief 

from judgment.

I. FACTS

In March 2014, defendant was convicted of assault with intent to murder, MCL 750.83; 

possession of a firearm during the commission of a felony, MCL 750.227b; and carrying a 

concealed weapon, MCL 750.227, for a shooting that occurred at a house party. A panel of this 

Court summarized the shooting and the evidence presented at trial:

On that date, Alicia Martin, a recent high school graduate, hosted a party to 

celebrate her graduation. The party was held in her backyard, where there was an 

above-ground pool enclosed by a deck. Martin testified at trial that she only invited 

approximately 50 friends, but word of the party quickly spread to others and by 

10:00 or 11:00 p.m., there were approximately 150 people at the house. According 

 

1 People v McKinney, unpublished order of the Court of Appeals, entered May 8, 2023 (Docket 

No. 364289).
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to multiple witnesses, among the partygoers was a group of individuals known to 

be associated with a local gang called “Bouldercrest.”

Multiple witnesses testified at defendant’s trial. While each witness’s 

account of the events varied slightly, the majority consistently testified that around 

11:30 p.m., a group of between six and ten individuals arrived at the party and 

entered the backyard. Included in this group was defendant. According to multiple 

witnesses, several of these individuals, including defendant, were associated with 

the “Bemis” gang, another local gang and a rival of the “Bouldercrest” gang. From 

the moment the “Bemis” gang entered the backyard, there was “conflict.”

According to various witnesses, members from the “Bemis” gang, who were then 

standing near the stairs to the pool deck, began yelling at members of the 

“Bouldercrest” gang, who were standing on the deck. At some point, defendant 

was punched and fell to the ground. A fight then ensued between defendant and 

other members of his gang and members of the “Bouldercrest” gang. During the 

fight, gunshots erupted on the pool deck. Several people were injured, including 

two members of the “Bouldercrest” gang and an innocent bystander.

Witness identifications of the shooter varied; however, several witnesses 

recalled that the shooter was wearing an orange, “orangish,” or “bright” shirt, which 

matched the description of the shirt defendant was wearing that night. Moreover, 

at least one witness identified the shooter as the same individual who had earlier 

been punched. Finally, several witnesses specifically identified defendant as the 

shooter. As a result of eyewitness identifications, defendant was eventually 

arrested. While in the Kent County jail, defendant made incriminating statements 

about the shooting to a fellow inmate, Jacqte Beal, some of which were recorded 

by Beal while he was wearing a recording device. Specifically, among other things, 

defendant admitted being one of two shooters and identified the type of weapon he 

used. Defendant also elicited Beal’s help in sending a letter to defendant’s 

girlfriend, Sierra Wyant, in which he asked Wyant to provide an alibi for defendant. 

The letter, along with portions of the recorded conversation between defendant and 

Beal, were admitted at defendant’s trial. [People v McKinney, unpublished 

per curiam opinion of the Court of Appeals, issued September 10, 2015 (Docket 

No. 321843).]

This is defendant’s second motion for relief from judgment in this Court. In May 2017, 

defendant filed his first motion for relief from judgment. In his first motion, defendant asserted 

that he was entitled to relief from judgment because (1) his right to be present at trial was violated; 

(2) his trial counsel improperly waived his right to a speedy trial; (3) he fired his trial counsel 

before trial; (4) the prosecution failed to show sufficient evidence of intent to kill; (5) trial counsel 

failed to investigate a favorable witness; and (6) defendant’s sentence was premised on improper 

judicial fact-finding. The trial court denied defendant’s motion because each of these arguments 

lacked merit. This Court and our Supreme Court denied defendant’s delayed application for leave 

to appeal the trial court’s denial of his motion for relief from judgment. People v McKinney, 

unpublished order of the Court of Appeals, entered April 18, 2018 (Docket No. 341650); People 

v McKinney, 503 Mich 913 (2018)
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In July 2022, defendant filed a successive motion for relief from judgment. Defendant 

premised this motion on two affidavits. The first affidavit was an October 2021 affidavit written 

and sworn by Jacqte Beal, who testified against defendant at trial. In his affidavit, Beal averred, 

in pertinent part, as follows:

2. I was incarcerated at the Kent County Jail with Billie McKinney during 

the time he was awaiting trial.

3. In 2011 my little brother Courtney Tillman was murder [sic], supposedly 

by Billie and a guy name [sic] Wyoming. I wanted to get Billie to admit to me 

about my brother’s murder but he wouldn’t talk about it.

4. I made up in my mind that I was gonna get him even with a lie. I 

contacted the police and told them I had info on his case. They came and seen me 

and told me to gather info on him. They also told me that yes he was a suspect in 

my brother’s murder.

5. I convinced Billie to write a letter and I pretty much told him what to 

write. They got the letter from me. Then they told me to wear and [sic] electronic 

device but it wasn’t Billie talking but a 3d part [sic] who was in the cell with us.

6. After awhile I began to feel guilty about what I done so I tried to tell 

them and pull out but the prosecutor threatened me with perjury and giving me a 

bunch of time for my unarmed robbery case. Then they said they would get me out 

of jail if I testified.

7. I am signing this affidavit because I am sorry for lying on Billie about 

this crime.

Along with Beal’s affidavit, defendant presented an affidavit from a “corroborating 

witness,” Eric Scott. Scott first signed this affidavit in 2017 and then signed a similar affidavit in 

October 2021. In the 2017 affidavit, Scott averred:

1. I was incarcerated with Jacqte Beal, also known as “Tae” in 2016, 

throughout our time together we had many conversations about the neighborhood, 

family, prison and life in general; Beal knew a lot of my family members;

2. I told Beal that I was serving a 15[-]year sentence but I wanted to know 

if the Court has sentenced me properly or could I get a reduced sentence, Beal told 

me the only way I could get a lesser sentence considering that I already plead [sic] 

guilty, was to be a witness for the prosecutor;

3. Beal then asked me if I could keep a secret, and I said yes, then he told 

me how he got a one[-]year sentence for armed robbery by testifying falsely against 

Billie McKinney;

4. Beal said that he gathered alot of information on Mckinney’s case by 

watching the news coverage and reading his paper-work and then contacted the 
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prosecutor’s office and agreed to testify against him; I asked Beal did Billie actually 

confess and Beal started “laughing” and said no he never confessed but I was trying 

to get a lesser sentence;

5. In December 2016 I transfered [sic] from Brookes Facility where I was 

with Beal, and rode in to Muskegon Correction Facility with Billie McKinney;

6. I told Billie what Beal told me, and Billie asked me would I be willing 

to give him an affidavit regarding the conversation I had with Beal, I said yes, and 

a Paralegal spoke with me and drafted the affidavit.

The trial court denied defendant’s successive motion for relief from judgment for failure 

to overcome the procedural threshold of MCR 6.502(G)(2), reasoning that defendant knew that 

Beal recanted his testimony in 2016 before defendant’s first motion for relief from judgment 

because Scott informed him of Beal’s recantation in December 2016.

Defendant now appeals.

II. DISCUSSION

Defendant asserts that his successive motion for relief from judgment is not barred because 

he presented new evidence not discovered before his first motion for relief from judgment. We 

agree.

“We review a trial court’s decision on a motion for relief from judgment for an abuse of 

discretion[.]” People v Swain (On Remand), 288 Mich App 609, 628; 794 NW2d 92 (2010). A 

trial court abuses its discretion when its decision falls outside the range of reasonable and 

principled outcomes, People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008), or it makes 

an error of law, People v Giovannini, 271 Mich App 409, 417; 722 NW2d 237 (2006). Findings 

of fact are reviewed for clear error. People v McSwain, 259 Mich App 654, 681; 676 NW2d 236 

(2003). “Clear error occurs if the reviewing court is left with a definite and firm conviction that 

the trial court made a mistake.” People v Johnson, 502 Mich 541, 565; 918 NW2d 676 (2018) 

(quotation marks and citation omitted).

Defendants are only entitled to file one motion for relief from judgment. 

MCR 6.502(G)(1). An exception to this rule is found in MCR 6.502(G)(2)(b), which states that 

“[a] defendant may file a second or subsequent motion based on . . . a claim of new evidence that 

was not discovered before the first such motion was filed.” If a defendant meets the threshold to 

overcome the procedural bar of MCR 6.502(G)(2), the trial court may consider his successive 

motion under MCR 6.508(D). Generally, a defendant presenting new evidence is entitled to a new 

trial when:

(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).]
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The Cress test “does not apply to the procedural threshold of MCR 6.502(G)(2), as the 

plain text of the court rule does not require that a defendant satisfy all elements of the test.” People 

v Swain, 499 Mich 920, 920 (2016).

The trial court concluded that Beal’s affidavit was not new evidence because defendant 

learned from Scott in December 2016 that Beal told Scott that he lied about defendant confessing 

to him. Defendant contends that the trial court committed clear error when it made the factual 

finding that defendant learned in December 2016 that Beal recanted that defendant confessed to 

him. In support of this argument, defendant asserts that an equally plausible reading of Scott’s 

affidavit is that Scott “rode in” on a bus to the Muskegon Correctional Facility where defendant 

was already residing, and only encountered him in the facility at some point between 

December 2016 and June 2017. We disagree that this is an equally plausible reading of Scott’s 

affidavit, which instead naturally reads that Scott told defendant about Beal when he rode in the 

same bus as him in December 2016. However, despite disagreeing with defendant regarding the 

ambiguity of Scott’s affidavit, we reverse without reference to this purported ambiguity.

The trial court’s decision to deny defendant’s successive motion was premised on the 

timing of Scott’s affidavit without acknowledging that Scott’s and Beal’s affidavits do not express 

the same facts. In Scott’s affidavit, Scott avers that Beal told him that defendant never actually 

confessed to Beal and that Beal was only trying to get a lesser sentence by working with the 

prosecution. Beal did not aver in his 2021 affidavit that defendant never confessed to him. Instead, 

he averred that he convinced defendant to write a letter to his girlfriend to create a false alibi; that 

he told defendant what to write in the letter; and that when Beal recorded defendant making 

inculpatory statements on a recording device, the speaker actually was a third party present in the 

room with Beal and defendant who was pretending to be defendant. Neither of these statements 

is an outright acknowledgment that defendant never confessed to Beal, as Scott avers in his 

affidavit. Therefore, even with Scott’s affidavit, defendant did not discover that Beal admitted to 

these statements about the letter and recorded conversation until 2021, which was several years 

after his first motion for relief from judgment.

The only case addressing MCR 6.502(G)(2) that the trial court cited was Swain, 288 Mich 

App at 634. However, that case is distinct from this case in several respects. First, unlike the 

witnesses in Swain, Beal testified at trial against defendant. See id. The Swain witnesses had no 

testimony to recant, whereas in this case, Beal testified at trial, and defendant only discovered in 

2021 that Beal averred about the context of the letter and the recorded conversation. Second, in 

Swain, the defendant did not learn about the testimony of the witnesses from a third party. Instead, 

the defendant’s own personal knowledge informed her belief that the witnesses could corroborate 

her testimony. The defendant said as much at her trial. Id. In this case, defendant first learned 

that Beal may be willing to testify that he lied at trial because a third party informed defendant of 

that in December 2016, but defendant did not receive Beal’s affidavit until 2021. Third, the Swain

witnesses’ testimonies remained the same as when the defendant expressed at trial that they could 

corroborate her story. Id. at 617, 634. In contrast, Beal expressed a willingness to recant part of 

his trial testimony. Further, Beal’s affidavit did not contain the same statements that Scott averred 

that Beal said to him.

Even to the extent that defendant learned from Scott that Beal confessed to him about lying 

before he filed his first motion for relief from judgment, Beal’s affidavit was new evidence because 
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Scott’s affidavit was not admissible in 2016. Scott’s affidavit averring that Beal said that defendant 

did not confess to him and that Scott admitted to lying to get a lesser sentence would be 

inadmissible as hearsay. Hearsay is “a statement, other than the one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 

MRE 801(c). Hearsay is inadmissible except as provided by the Michigan Rules of Evidence. 

MRE 802. If defendant presented Scott’s affidavit at the first motion for relief from judgment, it 

would have been rejected as hearsay because the affidavit asserted statements that Beal told Scott 

for the purpose of proving that Beal lied about defendant at trial. Defendant did not receive 

admissible evidence regarding Beal’s testimony until October 2021 when Beal himself signed an 

affidavit averring that he convinced defendant to write the letter to his girlfriend, told defendant 

what to write in the letter, and recorded an individual impersonating defendant.

In sum, defendant’s successive motion for relief from judgment was not procedurally 

barred by MCR 6.502(G)(2) because defendant presented newly discovered evidence concerning 

the letter that defendant wrote to his girlfriend and the recorded conversation between Beal and 

defendant. Although some information concerning Beal’s willingness to recant his testimony that 

defendant confessed to him was known by defendant before the first motion for relief from 

judgment, this information was distinct from the testimony that Beal ultimately averred and was 

not admissible in the trial court.

III. CONCLUSION

We reverse and remand to the trial court for consideration of defendant’s successive motion 

for relief from judgment.2 We do not retain jurisdiction.

/s/ James Robert Redford 

/s/ Michael J. Riordan 

/s/ Kathleen A. Feeney 

 

2 We express no opinion on the prosecution’s alternate argument in this Court that defendant failed 

to show “actual prejudice” for the purposes of MCR 6.508(D), as the trial court, on remand, may 

address that issue in the first instance.