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UNPUBLISHED

May 11, 2023

v No. 353398

Jackson Circuit Court

DEONTA DUWAND SIMPSON, LC No. 19-001000-FH

Defendant-Appellant.

Before: BOONSTRA, P.J., and GADOLA and YATES, JJ.

PER CURIAM.

Defendant, Deonta Duwand Simpson, appeals of right his convictions on one count of 

possession of methamphetamine with intent to deliver, MCL 333.7401(2)(b)(i); and one count of 

possession of cocaine with intent to deliver, MCL 333.7401(2)(a)(iv). The trial court sentenced 

defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 144 to 

360 months on the two counts. After moving unsuccessfully for a new trial, defendant now argues

that his motion for a new trial should have been granted based on newly discovered evidence and 

that defense counsel rendered ineffective assistance because of her conflict of interest. We affirm.

I. FACTUAL BACKGROUND

On February 26, 2019, Officer Joe Merritt and Detective Sam Sukovich were part of a team 

of law-enforcement officers conducting surveillance of suspected drug activity at a house located 

at 329 West Franklin Street in Jackson. After arriving to execute a search warrant at that house,

law-enforcement officers saw four people leave the house and get into a vehicle parked behind the 

house. When the four people in the vehicle saw the officers approaching, the front-seat passenger 

(later alleged to be Anthony Estes) left the vehicle and ran. Officer Merritt gave chase on foot but 

he was unable to apprehend the fleeing passenger. Defendant and his nephew, Damarius Simpson, 

left the vehicle on the driver’s side and defendant threw a baseball-sized object over a nearby fence 

while walking away from the officers. Eventually, defendant and his nephew complied with police 

commands to stop and they were apprehended. The fourth person sitting in the vehicle, Dion Scott, 

was apprehended after remaining in the vehicle with his hands up. Detective Sukovich found the 

sandwich bag thrown over the fence, and laboratory analysis by the Michigan State Police Forensic 
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Science Division confirmed that the bag contained cocaine and methamphetamine. Officers seized

additional drugs, a loaded handgun, and a digital scale from inside the vehicle.

Defendant was charged and retained attorney Suzanna Kostovski to defend him in this case. 

Meanwhile, Kostovski also represented defendant’s nephew, Damarius, in an unrelated case. The 

record does not reveal whether defendant was ever informed about any potential conflict arising 

out of Kostovski’s representation of Damarius. After a two-day jury trial on October 14 and 15, 

2019, defendant was convicted on the charges of possession of cocaine and methamphetamine 

with intent to deliver those drugs.

At the end of defendant’s trial, Estes approached Kostovski and then signed an affidavit on 

October 18, 2019, stating that he was the person who fled from the vehicle and threw the bag of 

drugs over the fence. Defendant moved for a new trial based on the newly discovered evidence in 

the form of Estes’s affidavit. Over the course of three years, the trial court conducted hearings on 

defendant’s evolving request for a new trial. On November 22, 2022, the trial court issued a 

written opinion and order denying defendant’s motion for a new trial. This appeal followed.

II. LEGAL ANALYSIS

First and foremost, defendant asserts that the trial court erred in denying his motion for a 

new trial. We review the trial court’s ruling on a motion for a new trial for an abuse of discretion. 

People v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012). “An abuse of discretion occurs when 

the trial court renders a decision falling outside the range of principled decisions.” Id. Defendant 

further insists that he was deprived of the effective assistance of counsel because his trial attorney 

was operating under a conflict of interest. An attorney acting with a conflict of interest denies the 

defendant the effective assistance of counsel by breaching “ ‘the duty of loyalty, perhaps the most 

basic of counsel’s duties.’ ” People v Smith, 456 Mich 543, 556; 581 NW2d 654 (1998). In order 

“to demonstrate that a conflict of interest has violated his Sixth Amendment rights,” defendant has 

to establish “ ‘that an actual conflict of interest adversely affected his lawyer’s performance.’ ” Id. 

“ ‘[T]he determination of the existence of a conflict of interest is a question of fact and should be 

reviewed under the clearly erroneous standard[.]’ ” People v Pfaffle, 246 Mich App 282, 288 n 5; 

632 NW2d 162 (2001). 

A. MOTION FOR A NEW TRIAL

Defendant’s effort to obtain a new trial was every bit as chaotic as it was protracted. First, 

defendant filed a motion for a new trial on October 30, 2019, which was only two weeks after the 

jury returned its verdict and before defendant was sentenced. The trial court addressed the motion, 

which included the affidavit of Anthony Estes, at a hearing on November 12, 2019. The trial court 

promised to conduct an evidentiary hearing on the motion, but insisted that that hearing would not 

take place until after defendant was sentenced on December 4, 2019. As it turned out, however, 

the sentencing hearing could not take place on that scheduled date because defendant removed his 

tether and absconded. Thus, on December 4, 2019, the trial court conducted a brief hearing where 

it issued a bench warrant for defendant’s arrest. After defendant was arrested on the bench warrant, 

the trial court sentenced him on March 4, 2020.
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On August 25, 2020, defendant filed a post-judgment motion for a new trial that referred 

to the motion he filed before he was sentenced. On November 1, 2021, the trial court took up that 

motion at a hearing where Kostovski and Joel Kershaw both appeared on behalf of defendant and 

Anthony Estes appeared as a witness for the defense. But the trial court informed Estes of his right 

against self-incrimination, which prompted Estes to invoke that right. As a result, the defense had 

no witness to call, so the trial court granted their request for an adjournment of the hearing on their 

new-trial motion.

When the hearing continued on March 7, 2022, Kostovski made an oral motion to withdraw 

as counsel for defendant in order to free herself to testify as a witness about what Estes said to her. 

The prosecutor vigorously objected, noting legal, ethical, and practical problems with Kostovski’s 

proposed approach. Kershaw took over the responsibility as defendant’s lead attorney and called 

defendant’s nephew, Damarius Simpson, to testify for the defense. Damarius had not testified at 

defendant’s trial, but more than two years after that trial ended he explained what happened on the 

day the search warrant was executed and defendant was arrested. He testified that the four men in 

the car that day were “smoking weed” when the police arrived, that the officers accused him of 

throwing the sandwich bag of drugs over the fence, that he did not see defendant throw anything 

that day, and that Estes—who was under 17 years of age then—had run away from the police that 

day. But Damarius conceded that he knew defendant had been charged with possessing the drugs 

in the sandwich bag and that defendant was going to trial on those charges.

Four weeks later, on April 4, 2022, the trial court heard testimony from Detective Sukovich 

and Attorney Kostovski. After the trial court granted Kostovski’s motion to withdraw as counsel 

for defendant, Kostovski testified about her conversations with Estes. Specifically, she stated that, 

on the last day of defendant’s trial, Estes told her that he was in the vehicle with defendant and the 

other two men (Damarius Simpson and Dion Scott) when the police arrived, that “he threw a bag 

of narcotics, took off running, he was chased by the police but they never caught up to him.” Also, 

Kostovski testified that Estes tried to talk to the prosecutor in the courtroom on the last day of trial. 

The trial court then admitted into evidence the affidavit that Estes signed on October 18, 2019. In 

response, the prosecution called Detective Sukovich, who reaffirmed his testimony at trial that he 

saw defendant throw the bag of drugs over the fence. He also explained that the young man who 

ran from the vehicle and escaped did not throw anything. Finally, Detective Sukovich stated that 

Estes approached him in the courtroom after the jury returned its verdict in defendant’s trial, that 

Estes admitted that he was the one who ran from the police and escaped, and that Estes “definitely 

[was] a juvenile” when he ran from the scene.

The trial court asked both sides for written briefs, but on May 20, 2022, Attorney Kershaw 

“was withdrawn as counsel” for defendant and Attorney Daniel Bremer was appointed to take the 

place of Kershaw. Then, on September 16, 2022, when the evidentiary hearing resumed, Bremer 

called Kershaw as a witness, thereby making Kershaw the second attorney who testified on behalf 

of defendant. As Bremer explained:

I spoke with Susan [sic] Kostovski about this, she told me that she would invoke 

attorney/client privilege and not testify with respect to what Damarius Simpson told 

her and she cannot waive by her actions or otherwise the attorney/client privilege. 

So, I see her as an unavailable witness and because of that I’m going to ask Mr. 
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Kershaw about what she told him. I think that’s a statement against interest, pure 

and simple.

Oddly, Bremer initially tried to elicit testimony from Kershaw about what Damarius Simpson told 

him, but Bremer ran headlong into a valid hearsay objection. Confusion set in at that point, so in 

order to make a comprehensive record, the trial court permitted Bremer to ask Kershaw about what

Damarius Simpson had said to him. Next, Bremer asked Kershaw about what Attorney Kostovski

told him, strongly suggesting that the rules of hearsay no longer had any bearing on the proceedings 

or even the legal analysis of the issues. That inquiry prompted Kershaw to explain that Kostovski 

had represented Damarius Simpson on “a relatively minor matter” and that Damarius Simpson told 

her in confidence “that that was his dope” that was thrown over the fence.

On November 22, 2022, the trial court finally brought an end to the madness by rendering 

an opinion and order denying defendant’s motion for a new trial. Applying the four-part test that 

our Supreme Court prescribed in People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003), the 

trial court carefully considered and rejected defendant’s request for a new trial based upon newly 

discovered evidence. We readily conclude that the trial court did not abuse its discretion in ruling 

that defendant provided no basis for post-trial relief. Indeed, the record in this case offers a classic 

example of why “ ‘motions for a new trial on the ground of newly-discovered evidence are looked 

upon with disfavor[.]’ ” Rao, 491 Mich at 279-280.

To obtain a new trial based upon newly discovered evidence, the defendant must establish:

(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. Cress, 468 Mich at 692. The most fundamental problem defendant faces is that evidence 

“is not newly discovered if the defendant or defense counsel was aware of the evidence at the time 

of trial.” Rao, 491 Mich at 281. Defendant knew the identities of the three others who were in the 

vehicle with him when the police arrived at 329 West Franklin Street with a search warrant. Indeed, 

Damarius Simpson was defendant’s nephew, yet the record is bereft of evidence that defendant or 

his attorney made any attempt to obtain the testimony of his nephew at trial. Similarly, the record 

reveals that Anthony Estes attended defendant’s trial and spoke with the people in the courtroom, 

yet neither defendant nor his attorney made any effort to put Estes on the witness stand. Therefore, 

defendant has utterly failed to establish that the testimony of those potential witnesses was newly 

discovered evidence.

Beyond that, defendant has come up short in showing that he “could not, using reasonable 

diligence, have discovered and produced the evidence at trial[.]” Cress, 468 Mich at 692. Even if 

Damarius Simpson and Estes might have invoked their Fifth Amendment right to avoid testifying,

that does not excuse defendant from undertaking efforts to obtain their testimony. As our Supreme 

Court noted, “when the evidence is claimed to be unavailable because of a codefendant’s assertion 

of the Fifth Amendment privilege, reasonable diligence might include requesting a severance or 

pursuing other procedural remedies to admit the testimony.” Rao, 491 Mich at 284. “The point is 

that the law affords a defendant procedural avenues to secure and produce evidence” that must be 

employed “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.
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Finally, defendant has failed to show that a different result is probable on retrial with the 

evidence that he describes as newly discovered. To determine whether newly discovered evidence 

makes a different result probable, a trial court must first consider whether the evidence is credible. 

People v Johnson, 502 Mich 541, 566-567; 918 NW2d 676 (2018). The “trial court’s credibility 

determination must bear in mind what a reasonable juror might make of the testimony, and not 

what the trial court itself might decide, were it the ultimate fact-finder.” Id. at 568. In this case, 

two law-enforcement officers testified at trial, and Detective Sukovich stated that defendant “had

about a baseball sized object in his hand and he looked at me and then just lobbed it southbound 

over a fence into the yard of the residence directly south.” Both witnesses whose testimony would 

be the newly discovered evidence purportedly established that Estes—rather than defendant or his 

nephew—was the one who threw the bag of drugs over the fence. But Officer Merritt, who chased 

the young man who ran from the vehicle, testified that he did not see anyone throw anything even 

though he kept a close eye on the young man from the very beginning of the chase. Consequently, 

even if Estes testified that he threw the bag of drugs over the fence, that testimony would not have 

overcome the interlocking testimony of the two law-enforcement officers. In sum, as the record 

makes clear, the trial court did not commit an abuse of discretion in denying defendant’s new-trial 

motion based on newly discovered evidence. 

B. COUNSEL’S CONFLICT OF INTEREST

Defendant argues that defense counsel rendered ineffective assistance by operating under 

a conflict of interest that prevented her from pursuing and introducing evidence that would have 

exonerated defendant. But defendant did not raise this issue in the trial court, so the trial court had 

no reason to develop a record on the conflict-of-interest issue. Accordingly, our review on appeal 

is restricted to mistakes that are apparent on the record. People v Gioglio (On Remand), 296 Mich 

App 12, 20; 815 NW2d 589 (2012), vacated not in relevant part 493 Mich 864 (2012).

To demonstrate that a conflict of interest violated his Sixth Amendment rights, “defendant 

‘must establish that an actual conflict of interest adversely affected his lawyer’s performance.’ ” 

Smith, 456 Mich at 556. Attorney Kostovski explained that she had reservations about testifying 

during the evidentiary hearing because of her attorney-client relationships with both defendant and 

Damarius. Other than that, the only evidence regarding her conflict of interest came from Attorney 

Kershaw, who testified about statements Kostovski made to him about Damarius Simpson’s talks 

with her. Those statements, which constituted hearsay within hearsay, provided little information 

about the nature of Kostovski’s purported conflict of interest.

Defendant contends that because of Kostovski’s conflict of interest, she did not interview 

the other occupants of the vehicle and she did not have the bag that contained the drugs tested for 

fingerprints or DNA. But defendant did not offer any evidence to establish that Kostovski did not 

interview or consider calling witnesses, nor did defendant provide any evidence that any witnesses

would be willing to testify. In fact, the decision by Estes to exercise his Fifth Amendment right to 

remain silent at the post-trial hearing on defendant’s motion for a new trial bore no relationship to 

the alleged conflict of interest. Moreover, Damarius was called as a witness during the post-trial

evidentiary hearing, but he provided no evidence as to whether he was interviewed or considered 

as a witness during trial preparation. Therefore, although defendant speculates that witnesses were

not interviewed because of the conflict of interest, he has offered no support for that allegation.
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Similarly, defendant has failed to provide evidence to show that Kostovski did not consider 

DNA testing during trial preparation. Record evidence revealed that DNA testing was not standard 

policy. Law-enforcement agencies test contents, rather than packaging, due to the risk of fentanyl 

transfer. Therefore, defendant would have had to seek testing on his own. Defendant speculates

that Kostovski’s decision not to obtain independent laboratory analysis for DNA could have been 

because of her conflict of interest, but mere speculation does not establish that defense counsel’s 

performance was adversely affected. Defendant offered no proof that independent DNA analysis 

would have exonerated him. Accordingly, defendant has not established that his defense counsel

labored under “an actual conflict of interest [that] adversely affected his lawyer’s performance.” 

See Smith, 456 Mich at 556.

Affirmed.

/s/ Mark T. Boonstra

/s/ Michael F. Gadola

/s/ Christopher P. Yates