Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack,

 Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

December 11, 2020

160398 & (19)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v SC: 160398

COA: 349777

Wayne CC: 85-001537-FC

KENNETH DUANE MILTON,

Defendant-Appellant.

_________________________________________/

By order of March 18, 2020, the prosecuting attorney was directed to answer the 

application for leave to appeal the September 10, 2019 order of the Court of Appeals. On 

order of the Court, the answer having been received, the application for leave to appeal is 

again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we 

VACATE the February 14, 2019 order of the Wayne Circuit Court, and we REMAND 

this case to that court for reconsideration of the defendant’s motion for relief from 

judgment in light of Brady v Maryland, 373 US 83 (1963), and People v Johnson, 502 

Mich 541 (2018). The trial court erred by failing to address the defendant’s claim that 

the prosecution violated Brady by failing to disclose an exculpatory statement made to 

the police. The trial court also erred by making credibility determinations and failing to 

conduct the proper credibility analysis under Johnson. As this Court stated in Johnson, 

“a trial court’s credibility determination is concerned with whether a reasonable juror

could find the testimony credible on retrial.” Id. at 567 (emphasis in original). On 

remand, the trial court shall address the defendant’s Brady claim and undertake the 

appropriate analysis of the proffered new evidence under People v Cress, 468 Mich 678 

(2003), and People v Johnson. The motion to remand for evidentiary hearing is 

DENIED.

We do not retain jurisdiction.

MCCORMACK, C.J. (concurring). 

I agree that reconsideration is warranted in this case. I do not believe that the 

Court is second-guessing a reasonable decision to deny a motion for relief from

judgment. And rather than departing from its decision in People v Johnson, 502 Mich 

541 (2018), the Court is merely applying it.1

 

1 Whether the Johnson two-part credibility test applies when analyzing a defendant’s 

motion without the benefit of holding an evidentiary hearing remains an open question. 

See People v Hammock, ___ Mich ___, ___; 946 NW2d 546, 550 (2020) (CAVANAGH, J.,

concurring). For our purposes, however, I will assume that it does.
2

The defendant was convicted in 1985 of a murder committed during a robbery that 

he claimed was actually committed by “Taxi Tony” and Jerry Littlejohn. After 

exhausting his direct appeals and unsuccessfully filing his first motion for relief from 

judgment, the defendant obtained affidavits from two witnesses who claimed that Taxi 

Tony and Littlejohn committed the robbery and murder and that the prosecution’s key 

witness was bribed to frame the defendant.

One witness, Steven Jackson, averred that he was riding in a car with Taxi Tony, 

Littlejohn, and Joe Johnson when they committed the murder. He further swore that he 

went to the police station the next day to make a statement about what he had witnessed. 

The other witness, Althon Vann, swore that he was present when Taxi Tony and 

Littlejohn planned a robbery. Later, when Vann found himself sharing a holding cell 

with Littlejohn in the county jail, Littlejohn told him that he had shot the doorman during 

the robbery. Vann further averred that Littlejohn told him that Taxi Tony was going to 

pay off the only witness who could identify him and that he was going to pin the shooting 

on the defendant to eliminate him as a drug competitor.

Based on these affidavits and his own affidavit, the defendant brought this 

successive motion for relief from judgment.2 He claimed that the prosecution violated 

Brady v Maryland, 373 US 83 (1963), by failing to disclose Jackson’s exculpatory police 

statement. He also raised a new-evidence claim under People v Cress, 468 Mich 678 

(2003). The trial court denied the motion without holding an evidentiary hearing. In 

doing so, the trial court made three clear errors that warrant reconsideration of its 

decision.

First, the trial court erred when it neglected to analyze the defendant’s Brady

claim. Though Brady claims and Cress claims are often intertwined,3trial courts must 

address each claim separately. See MCR 6.504(B)(2) (an order denying a motion for 

relief from judgment without holding further proceedings “must include a concise 

statement of the reasons for the denial”). Here, the trial court’s opinion focused entirely 

on the defendant’s Cress claim. 

 

2 Because his motion is based on newly discovered eyewitnesses, the defendant has 

satisfied the requirements of MCR 6.502(G)(2) (a defendant may file a successive motion 

for relief from judgment if it is based on a claim of new evidence that was not discovered 

before the first motion was filed).

3 A defendant may claim, for example, that an eyewitness’ account is Brady evidence 

because it was allegedly known to the police and was not disclosed to the defense. But if 

the record does not support a finding that this evidence was in the government’s 

possession before trial, that same evidence may support an alternatively-pled Cress claim 

because it was newly-discovered. 
3

Second, I believe the trial court erred when it dismissed Jackson’s and Vann’s 

affidavits because they contained hearsay statements. In my view, the most pivotal parts 

of the affidavits—the identifications of Jerry Littlejohn as the shooter—would be 

admissible as hearsay exceptions. Littlejohn’s alleged admission to Vann that he shot the 

victim would be a statement against penal interest admissible under MRE 804(b)(3). And 

Johnson’s alleged statement to Jackson immediately after the shooting—that “Jerry shot 

Roger”—would be admissible either as a statement against penal interest (because 

Johnson would be liable for felony murder as an aider and abettor in the home invasion) 

or as an excited utterance under MRE 803(2).

Finally, I agree that the trial court’s Cress analysis failed to apply the proper 

credibility test. In Johnson, this Court laid out a two-step process for analyzing the 

credibility of new eyewitnesses. First, the court must decide if the witness is “patently 

incredible,” such that no reasonable juror would “entertain a reasonable belief in the 

witness’s veracity.” Johnson, 502 Mich at 568. If that is the case, the court should deny 

the motion. Id. But if a witness is not patently incredible, the court must decide whether 

the newly discovered evidence makes a different result probable on retrial, “bear[ing] 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. Here, the trial court did not 

apply Johnson and instead appeared to make its own credibility determinations about the 

proffered witnesses. As we made clear in Johnson, “a trial court’s credibility 

determination is concerned with whether a reasonable juror could find the testimony 

credible on retrial.”4 Id. at 567. In failing to correctly apply Johnson, the trial court 

abused its discretion. See People v Duncan, 494 Mich 713, 723 (2013) (“A trial court 

necessarily abuses its discretion when it makes an error of law.”).

In conducting its analysis of the proffered witnesses on reconsideration, the trial 

court must “consider all relevant factors tending to either bolster or diminish the veracity 

of the witness’s testimony.” Johnson, 502 Mich at 567. Here, there are reasons to be 

skeptical of the witnesses’ accounts, as detailed by my dissenting colleagues. But there 

 

4

Justice ZAHRA questions whether Johnson held that if a single hypothetical rational 

juror would vote to acquit on retrial, a new trial must be granted. It did not. Though I 

believe the question of what a “different result” means is worthy of our consideration, it 

was not at issue in Johnson. Nor is it presented in this case. Rather, Johnson instructed 

that the trial court’s role is as a gatekeeper, rather than the ultimate fact-finder, when 

evaluating motions for relief from judgment. See Johnson, 502 Mich at 568. Instead of 

deciding for itself whether the new witnesses are credible, a trial court is to ask whether a 

reasonable juror could believe their testimony. If so, the court must weigh the proffered 

witnesses’ accounts in determining whether the newly discovered evidence makes a 

different result probable on retrial.
4

are also reasons to think that the affiants might be telling the truth. According to the 

Offender Tracking Information System (OTIS) maintained by the Michigan Department 

of Corrections, Jackson was 12 years old at the time of the shooting, which would explain 

his account of being taken to the police station by his mother the next day to report what 

he allegedly saw. OTIS also shows that Vann committed a larceny on February 11, 

1985—about two weeks before the murder in this case took place. This tends to support 

Vann’s account of being placed in the same holding cell (presumably having been picked 

up on the larceny charge) with Littlejohn, who we know was arrested at some point in 

relation to this murder. Nor does it appear that either Jackson or Vann has nothing to lose 

by signing a false affidavit; Jackson’s earliest release date is in 2023 and Vann’s is in 

2026. Moreover, the prosecution’s sole eyewitness to the murder, Edith Gibson, admitted 

at trial that she told a police officer that Taxi Tony had set up the robbery and that he had 

a friend named Jerry. Gibson also identified Joe Johnson as having been one of the 

perpetrators of the crime. Two other witnesses, who could not be located to testify, also 

told the police that Taxi Tony’s brother “Jerry” was the shooter. Finally, the defendant 

denied any involvement in the crime and presented an alibi defense at trial. 

These facts are, in my view, worthy of further exploration at an evidentiary 

hearing. The decision whether to hold an evidentiary hearing is for the trial court to 

make. See MCR 6.504(B)(2) (a trial court may deny a motion for relief from judgment 

without holding an evidentiary hearing if it “plainly appears from the face of the 

materials described in subrule (B)(1) that the defendant is not entitled to relief”). But it is 

a decision that must be made on the particular facts of the case and with careful 

consideration of the strengths and weaknesses of the prosecution’s original case 

compared to the strengths and weaknesses of the defendant’s proffered evidence. At an 

evidentiary hearing, the trial court would have the opportunity to judge Vann’s and 

Jackson’s demeanor and to see how they withstand cross-examination. There are 

credibility issues at stake here to be sure; but I believe that these issues deserve to be 

fleshed out through the truth-revealing process of an evidentiary hearing.

ZAHRA, J. (dissenting). 

I respectfully dissent from the order remanding this case to the trial court for 

reconsideration of the defendant’s motion for relief from judgment in light of Brady v 

Maryland5and People v Johnson.

6

 This is yet another case in which this Court has 

second-guessed a trial court’s patently reasonable decision to deny a pro se defendant’s 

successive motion for relief from judgment that is supported only by affidavits of highly 

questionable veracity submitted by fellow prisoners.7 Like Justice MARKMAN, I do not 

 

5 Brady v Maryland, 373 US 83 (1963).

6 People v Johnson, 502 Mich 541 (2018).

7 See People v Hammock, ___ Mich ___, ___; 946 NW2d 546, 544-555 (2020) 
5

“quarrel with the idea that this Court should view ‘actual innocence’ claims in a receptive 

manner where a substantial question as to a defendant’s innocence has been raised . . . .”8 

This Court, however, is departing from the very standard espoused in Johnson: “ ‘The 

trial court has the right to determine the credibility of newly discovered evidence for 

which a new trial is asked, and if the court is satisfied that, on a new trial, such testimony 

would not be worthy of belief by the jury, the motion should be denied.’ ”

9

 Further, “[i]t 

is well settled that the matter of granting a new trial on after-discovered evidence rests in 

the sound judicial discretion of the trial court, and an order refusing a new trial on that 

ground will not be disturbed on appeal, in the absence of a plain abuse of discretion. 

And it is equally well settled that an application for new trial based upon that ground is 

not regarded with favor and will be granted with great caution.”10 The recent decisions 

of this Court cited above, and particularly the decision in the instant case, demonstrate the 

very absence of caution or meaningful deference to the trial court’s decision. In doing so, 

the Court continues to signal

that trial courts must hold evidentiary hearings on almost every occasion on 

which a defendant submits new evidence in the form of an affidavit signed 

by a fellow prisoner. And if that is the message we intend, I fear that such 

lowering of the bar in support of new evidentiary hearings—perhaps many 

years after the commission of the offense and the presentation at trial of the 

evidence—is not only incompatible with the Court’s new rules and 

incompatible with our traditional standards of appellate review of the trial 

courts, but, most grievously, risks burying potentially meritorious claims of 

innocence among claims based on far-fetched, incredible, and 

uncorroborated prisoner affidavits.[11]

I would deny defendant any relief in this matter and respect the threshold 

determination made by the trial court that the affidavits offered in this case fail to present 

a material and credible question of defendant’s actual innocence that is worthy of further 

review.

Some 35 years ago, defendant and Joseph Johnson were tried for the robbery and 

fatal shooting of a drug dealer named Roger Cottingham. The primary prosecution 

witness, Edith Marie Gibson, testified that she observed defendant and Joseph Johnson 

 

(MARKMAN, J., dissenting), and cases cited therein.

8

Id. at ___; 946 NW2d at 554.

9

Johnson, 502 Mich at 567, quoting Connelly v United States, 271 F2d 333, 335 (CA 8, 

1959) (emphasis omitted).

10 Connelly, 271 F2d at 334 (quotation marks and citations omitted; emphasis added). 

11 Hammock, ___ Mich at ___; 946 NW2d at 554-555 (MARKMAN, J., dissenting).
6

commit the crime and that defendant was the shooter. Gibson admitted on crossexamination that she told police that “Taxi Tony,” whose real name is William Anthony 

Garrett, set up the robbery. Sergeant Elmer Harris, the officer in charge of the 

investigation, testified that Garrett admitted to driving defendant and Johnson to the 

scene to collect one of his drug debts. A separate record was made outside the jury’s 

presence, during which Garrett testified. He refused to provide his nickname or testify as 

to whether he was at the shooting scene on the day of the shooting on the grounds that it 

might incriminate him. There was also reference to a pretrial hearing in defendant’s case 

in which a person named “Littlejohn” was identified as having been arrested in 

conjunction with this crime. This is significant because defendant’s instant motion for 

relief from judgment asserts that a “Jerry Littleton” was actually the shooter, and 

defendant supports his claim in part with an affidavit from a fellow prisoner, Althon 

Vann, who avers that he and Jerry Littleton were incarcerated together shortly after the 

shooting. But there is no evidence that Littleton was actually charged or incarcerated in 

relation to these crimes or, if he was incarcerated, whether he was incarcerated during the 

same period as Vann.

After deliberating for a mere 90 minutes, the jury convicted defendant of firstdegree felony murder and possessing a firearm during the commission of a felony 

(felony-firearm). Defendant was sentenced to nonparolable life imprisonment for the 

murder conviction and a consecutive two-year sentence for the felony-firearm conviction. 

Johnson was convicted of second-degree murder in a bench trial and was sentenced to life 

imprisonment. Johnson testified at his trial that he was sent to the address to collect a 

debt from Gibson’s then boyfriend, Leroy Gigger (now deceased), who owed Taxi Tony 

money. Johnson claimed that he was unaware that defendant was armed with a gun.

Defendant filed a direct appeal arguing that the trial court erred by not responding 

to a jury question about what would happen if jurors were unable to reach a verdict and 

that the prosecutor violated his discovery obligation by failing to disclose leniency 

offered to Gibson (on a pending drug conviction) in exchange for her testimony. The 

Court of Appeals granted defendant’s motion to remand, limited to the prosecutor’s 

alleged discovery violation.12 On remand, the trial court denied a new trial after 

conducting two evidentiary hearings. The Court of Appeals affirmed,13 and this Court 

denied leave to appeal.14

 

12 People v Milton, unpublished order of the Court of Appeals, issued August 13, 1986 

(Docket No. 89639). 

13 People v Milton, unpublished per curiam opinion of the Court of Appeals, issued 

August 26, 1988 (Docket No. 89639). 

14 People v Milton, 434 Mich 894 (1990).
7

In 2004, defendant filed his first motion for relief from judgment. He claimed that 

the jury instructions failed to convey the requisite intent for felony-murder, the 

prosecutor failed to produce res gestae witnesses, and defense counsel failed to 

communicate a plea offer. The trial court denied the motion. The Court of Appeals 

denied leave to appeal under MCR 6.508(D),15 as did this Court.16

Defendant, acting pro se, filed the current motion for relief from judgment in 2018 

on the basis of newly discovered evidence. In support of his motion, he submitted 

affidavits from two witnesses who claim that the actual killer is a person named Jerry 

Littlejohn, presumably the same “Littlejohn” earlier mentioned. 

The first affiant, Steven Lamont Jackson, avers that he was in a car with Garrett, 

Littleton, and Johnson on the night of the shooting. Garrett apparently pulled the car into 

the parking lot next to a house. Littleton and Johnson got out of the car, drew guns, and 

went onto the porch of a home. According to Jackson, several minutes later, they came 

out of the house with their guns in their hands and Johnson purportedly said, “Jerry shot 

Roger.” As Garrett drove away, Garrett asked Littlejohn and Johnson if Roger was dead 

and they responded that they did not know. Littleton asked what was going to happen 

now, but Garrett told him not to worry about it because he had something planned. 

Jackson averred that he told his mother what he saw and she drove him to the police 

station to make a statement.

The second affiant, Althon Vann, avers that sometime prior to the murder (he does 

not provide a date) he was at Garrett’s house with Littleton talking about committing a 

robbery at a home on Philadelphia, the street on which the robbery and murder occurred. 

Garrett and Littlejohn allegedly asked Vann to join them as there would be plenty of 

money to go around. According to Vann, the intent was to scare off rival drug dealers in 

the area. Vann averred that he declined to join Garrett and Littlejohn in their scheme to 

confront rival dealers and did not in any way participate in the robbery. Vann then later 

encountered Littleton in the county jail. According the Michigan Offender Tracking 

Information System website, Vann had committed a larceny on February 11, 1985, for 

which he was convicted and then sentenced on April 15, 1985.17 The exact date Vann 

was arrested for this larceny is unknown. And, as previously mentioned, other than the 

mention of “Littlejohn” during a pretrial hearing in defendant’s case, there is no evidence 

 

15 People v Milton, unpublished order of the Court of Appeals, issued March 16, 2006 

(Docket No. 263771). 

16 People v Milton, 477 Mich 907 (2006).

17 Michigan Department of Corrections, Michigan Offender Tracking Information 

System, <https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=145300> 

(accessed November 2, 2020). 
8

to support the conclusion that someone named Littlejohn was being held in the county jail 

at this timeframe. 

Vann avers that while in jail, Littleton told Vann that he was lucky he did not 

come with them to the robbery because things got bad and a guy got killed. Specifically, 

Vann claims that Littleton admitted to shooting a doorman in the head. Vann purportedly 

asked if Littleton had a chance of beating the charge. Littleton told him that Garrett was 

going to pay off the only witness who could identify him and “Joe” as the shooters. Vann 

specifically averred that Littleton stated he was going to give the witness 10 bundles of 

heroin and $2,500 dollars in cash and that defendant would be framed for the murder. 

In addressing the instant motion for relief from judgment, the trial court 

specifically mentioned that defendant had presented two claims. “First, defendant 

requests an evidentiary hearing alleging new evidence, which defendant alleges was 

suppressed by the police,” i.e., a Brady claim. “Second, defendant claims this new 

evidence which was not uncovered during his trial was in-direct [sic] violation of his state 

and federal rights.” The Court’s order remanding this case states that “[t]he trial court 

erred by failing to address the defendant’s claim that the prosecution violated Brady by 

failing to disclose an exculpatory statement made to the police.” This simply is not true. 

The trial court specifically addressed Jackson’s claim that his mother took him to the 

police department where he gave a statement regarding the robbery and murder. In 

rejecting this claim, the trial court observed that “defendant has not presented a copy of 

this statement in support of his allegation of its existence.” The trial court did not end its 

analysis at that point, but noted further that Jackson’s “affidavit is riddled with hearsay 

statements,” as Jackson did not personally witness the robbery and murder, and that “the 

affidavit contains no dates as to when he was dropped off near the location of the robbery 

and shooting, dates for any conversation that took place, or [dates for] when he came into 

contact with [Garrett] or [Littleton].” In sum, the trial court rejected Jackson’s affidavit, 

which was the basis of defendant’s Brady claim. Obviously, the trial court could have 

been more thorough. Nonetheless, a cursory viewing of the affidavit reveals its 

incredibility. On these facts, I am unconvinced that the trial court abused its discretion 

by finding no reason to conduct an evidentiary hearing to explore defendant’s putative 

Brady violation.

Jackson is currently 47 years old and serving 7- to 22-year sentences for thirddegree criminal sexual conduct involving a victim between 13 and 15 years of age. He 

also served nearly 10 years for an armed-robbery conviction. Given Jackson’s age, he 

would have been 12 years old at the time of the murder. It is dubious that a drug dealer 

would associate with a 12-year-old, let alone gratuitously take that 12-year-old to a 

location where he intended to commit an armed robbery. But even conceding such 

events could happen, there is a serious factual flaw in Jackson’s affidavit. Jackson 

contends Garrett drove him home after the murder, where he got in trouble with his 

mother for getting home late, stating, “I didn’t get home until around 7:05-7:15, and my 
9

Mother was pissed at me for being more than an hour late[.]”18 The murder, however, 

did not occur before 10:24 p.m., well beyond three hours after Jackson attests Garrett 

dropped him off at home. Thus, under Jackson’s own version of events, he could not 

have been in Garrett’s car when Cottingham was killed. Further, no evidence has been 

previously presented during any of these proceedings that mentions Jackson, and I would 

surmise the same is true for Johnson’s case.

Althon Vann’s affidavit also suffers from factual contradictions. Vann is 61 years 

old and serving 27 to 42 years in prison for assault with intent to commit murder and 

felony-firearm. He also has previous theft convictions. He provides a version of events 

inconsistent with critical aspects of defendant’s version of events at trial. Whereas 

defendant contended that Garrett killed Cottingham in the course of collecting a debt for 

drug purchases, Vann’s affidavit discusses Garrett killing a “doorman” while intimidating 

rival drug dealers. Thus, it is not apparent how Vann’s version of events conforms at all 

to the facts of the case. 

Finally, while I have mentioned that defendant, Jackson, and Vann are all 

currently incarcerated, they were in fact all incarcerated in the very same facility at the 

time these affidavits were created. In fact, the only person who does not appear to have a 

criminal conviction is the very person that defendant claims was the shooter, Littleton. 

What are the chances that defendant, some 33 years after the murder, would encounter 

not one, but two individuals in prison who happened to have contact with Garrett—the 

prime alternative suspect—on or before the day of the murder and that each of these 

individuals had conversations with Garrett in which he not only implicated Littleton as 

the shooter, but further suggested Garrett informed them of his plan to frame someone for 

the shooting. Indeed, Vann averred that he remembered, again after some 33 years, that 

Garrett “was going to put the shooting on Kenneth Milton,” despite no evidence that 

Vann even previously knew of defendant. The trial court recognized as much, stating, 

“[T]his [c]ourt finds a lack of veracity as . . . these affiants provided defendant with their 

‘helpful’ information after they themselves were incarcerated many years after the 

murder of the complainant took place.” I submit the trial court was well within its sound 

discretion to reject these affidavits under People v Cress19 and People v Johnson. The 

concurrence claims this Court “made clear in Johnson [that] ‘a trial court’s credibility 

determination is concerned with whether a reasonable juror could find the testimony 

credible on retrial.’ ”

20

 This was stated in Johnson, I agree, but I seriously question 

whether the Johnson Court believed it necessary to hold that a single rational juror’s 

doubt was now sufficient to conclude that a new trial was required. If this conclusion 

was integral to the Court’s decision, then the Court necessarily holds that a “different 

 

18 Emphasis added; comma omitted.

19 People v Cress, 468 Mich 678 (2003). 

20 Ante at 3, quoting Johnson, 502 Mich at 567 (emphasis in Johnson).
10

result probable on retrial” under MCR 6.508(D) includes a hung jury or mistrial instead 

of an acquittal.21 

 

21 If this is the case, the Johnson Court has drastically altered our time-honored standard 

of review, sua sponte, without the issue having ever been raised and without any briefing 

on this issue. Further, the holding would align our state’s jurisprudence with that of a 

single jurisdiction which holds that “when a defendant makes a motion for a new trial 

based on newly discovered evidence, he has met his burden of showing that a different 

result is probable on retrial of the case if he has established that it is probable that at least 

one juror would have voted to find him not guilty had the new evidence been 

presented . . . .” 6 LaFave et al, Criminal Procedure (4th ed), § 24.11(d), pp 740-741 

n 21, citing People v Soojian, 190 Cal App 4th 491 (2010).

Moreover, this holding is not supported by the sources relied on in Johnson. The 

only case cited by Johnson in relation to this lone-juror standard is Connelly v United 

States, 271 F2d 333, 335 (CA 8, 1959), which in turn relied on Johnson v United States, 

327 US 106 (1946), for the formula to be used when testing the sufficiency of evidence 

warranting the granting of a new trial on the ground of newly discovered evidence. 

Connelly summarized the relevant factor as requiring that the newly discovered evidence 

“must be such, and of such nature, as that, on a new trial, the newly discovered evidence 

would probably produce an acquittal.” Connelly, 271 F2d at 335.

Simply put, Connelly does not support a lone-juror standard and in fact stated that

newly discovered evidence must likely produce an acquittal to warrant a new trial. A 

lone juror cannot produce an acquittal. At most, a lone juror can produce a hung jury, 

which is not a different legal result. Moreover, Connelly has good company. See United 

States v Burfoot, 899 F3d 326, 341 (CA 4, 2018); United States v Bell, 761 F3d 900, 911 

(CA 8, 2014). See also United States v Owen, 500 F3d 83, 88 (CA 2, 2007); United 

States v Berry, 624 F3d 1031, 1042 (CA 9, 2010); United States v Brown, 595 F3d 498, 

511 (CA 3, 2010); United States v Morrison, 218 F Appx 933, 946 (CA 11, 2007); United 

States v Pearson, 203 F3d 1243, 1274 (CA 10, 2000); United States v Wall, 389 F3d 457, 

467 (CA 5, 2004); United States v Glover, 21 F3d 133, 138 (CA 6, 1994). And while 

circuits may differ on the order of the factors and some circuits combine the four and fifth 

factors, see United States v Sheffield, 425 US App DC 158, 171 (2016); United States v 

Ryan, 213 F3d 347, 351 (CA 7, 2000); United States v Wright, 625 F2d 1017, 1019 (CA 

1, 1980), all federal circuits uniformly require a showing that newly discovered evidence 

is likely to result in an acquittal at a retrial to provide the convicted defendant any relief 

from the judgment. 
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 December 11, 2020 

s1208

11

Clerk

In sum, I conclude the trial court was well within its discretion to reject the 

proffered affidavits as wholly lacking in credibility. Accordingly, no evidentiary 

hearings are justified with regard to the claim of newly discovered evidence or the newly 

asserted claim of a Brady violation. I would deny leave and offer defendant no further 

relief with regard to the successive motion for relief from judgment currently before the 

Court. 

MARKMAN, J., joins the statement of ZAHRA, J.