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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION July 7, 2015

9:00 a.m.

v No. 315982

Oakland Circuit Court GILBERT LEE POOLE, JR., LC No. 1989-090203-FC

Defendant-Appellant.

ON REMAND

Before: M URPHY , P.J., and S AWYER

, J., and T ALBOT , C.J.

M URPHY

, P.J.

Defendant petitioned the trial court under MCL 770.16 for an o rder directing DNA testing of biological material obtained by the police in their investigation of a 1988 murder for which defendant was convicted. The trial court denied the peti tion, concluding that simple blood-type evidence presented to the jury at defendant’s crimin al trial in 1989 had already excluded defendant as the source of collected blood samples, wi th one sample even producing a blood-type result unlinked to either defendant or the victim, y et defendant was still convicted by the jury. Therefore, according to the trial court, DNA testing would add nothing new for purposes of a retrial and simply confirm that defendant’s blood was not present at the crime scene. We affirmed the trial court’s decision, not on the meri ts, but on the basis of the law of the case doctrine in light of the case’s procedural history in whic h prior comparable claims raised by defendant had been rejected in orders issued by this Court and the Michigan Supreme Court. Our Supreme Court then reversed our holding in an order, ruling that the law of the case doctrine did not apply, given that the pre vious appellate orders did notconstitute decisions on the merits. People v Poole , __ Mich __; 862 NW2d 652 (2015). The Supreme Court remanded the case to

us for consideration of issues r aised by defendant that were no t addressed in our original opinion.

We now reverse the trial court’ s ruling and remand for DNA test ing.

The extensive history of this case was set forth in our prior opinion and, for ease of reference, we now quote that background here:

Defendant was convicted of first-degree murder, MCL 750.316, i n 1989 with respect to the slaying of Robert Mejia, whose body was fou nd in a field in Pontiac on June 7, 1988. There was blood covering Mejia’s shirtand pants. An-2- autopsy revealed that he sustained eight stab wounds to the fac e, neck, and upper chest area. The depth of the wounds ranged from one-half inch t o four inches. Mejia also sustained multiple superficial cuts and incised woun ds, and he had abrasions and contusions on his arms and back, indicating that there had been a struggle. There was also a bite mark to his right arm. The coro ner opined that Mejia had died approximately 48 hours before his body was disco vered, plus or

minus 12 hours.

Witnesses identified defendant as leaving a bar with Mejia on the night of June 5, 1988. The case went unsolved for five months until defe ndant’s thengirlfriend reported to authorities that he had confessed the ki lling to her. According to the girlfriend, on a Sunday evening in early June 1988, she and defendant had a fight about money, after which defendant said h e was “going out to get some money” and then left. Defendant did not return unti l between 1:00 and 4:00 a.m. At that time, she noticed that defendant was “all scratched up and red in the face.” When his girlfriend asked defendant what happ ened, he told her that he had been in a fight. At some point, defendant randomly stated to his girlfriend, “I killed somebody.” He then explained that he had gone to the bar where witnesses had placed defendant and Mejia together. Defend ant told his girlfriend that he talked with “a guy” in the bar and eventuall y left with him. According to the girlfriend, defe ndant recounted how he and the man went for a walk in the woods, where defendant “pulled a knife on the guy a nd told him to give him all of his money.” A fight ensued “with a lot of bitin g and scratching, and pulling of hair.” The girlfri end testified that defendant i nformed her that he then “held [the other man] down with his left hand and slit his throat and watched

him drown in his own blood.” Def endant’s girlfriend did not ini tially believe defendant, but he “proved it” to her by retrieving a watch from his vehicle that

was covered in dried blood.

At trial, Melinda Jackson, an e xpert in forensic serology, tes tified that blood found on Mejia’s clothing was type O, which matched Mejia ’s blood type. There was also evidence that some blood found on stones and gra ss connected to the crime scene was type O blood. Further, there was testimony presented at trial reflecting that defendant’s blood type was AB, a type shared wi th only three percent of the population, and that none of the testable blood samples collected in relationship to the offense matched defendant’s blood type. Add itionally, a stone found in Mejia’s pants had type A blood on it, which blood type matched neither Mejia nor defendant’s blood.

Defendant appealed the convictio n as of right, and this Court affirmed. People v Poole , unpublished opinion per curiam of the Court of Appeals, issue d January 21, 1993 (Docket No. 120 955). Our Supreme Court thereaf ter denied defendant’s application for leave to appeal. People v Poole , 442 Mich 933 (1993).

On November 21, 2005, defendant filed a motion for new trial i n the circuit court, relying, in part, on MCL 770.16. He also filed a n accompanying motion for DNA testing pursuant to MCL 770.16. In the motions, defendant-3- requested the DNA testing of biological material. The appeal cu rrently before the panel also concerns DNA testing under MCL 770.16, which provide d back in 2005 and still provides today that “a defendant convicted of a felony at trial before January 8, 2001 who is serving a prison sentence for the felony conviction may petition the circuit court to order DNA testing of biologic al material identified during the investigation leading to his or her convi ction[.]” MCL 770.16(1); 2005 PA 4; 2008 PA 410; 2011 PA 212.

In response to the 2005 motions filed by defendant in the circ uit court, the prosecutor argued that the reque st for DNA testing did not sati sfy the statutory requirements of MCL 770.16. MCL 770.16(3)(a) required a defenda nt to “[p]resent[] prima facie proof t hat the evidence sought to be t ested is material to the issue of the convicted person’ s identity as the perpetrator of, or accomplice to, the crime that resulted in the conviction.” The language today is identical, except that it is found instead in MCL 770.16(4)(a) as a result of an amendment enacted pursuant to 2008 PA 4 10. MCL 770.16(3)(b)( i ) provided that a defendant also had to establish, by clear and convinc ing evidence, that a “sample of identified biological material . . . is available for testing.” The identi cal language is currently found in MCL 770.16(4)(b)( i ). See 2008 PA 410. The prosecutor argued that defendant failed to establish that biological material was avai lable for testing and that, even if available, defendant could not show that such evi dence was material to defendant’s identity as the perpetrator, as the blood-typing evidence presented at trial already established that defendant’s blood was not fou nd in connection with the criminal investigation. In a supplement to the prosecutor’s response brief to defendant’s 2005 motions, the prosecution stated that it had now been “informed by Ms. Melinda Jackson of the Michigan State Police t hat some blood sample evidence involved in the Defendant’s case has been prese rved. The People instructed Ms. Jackson to continue to preserve those samples.” The prosecution, however, still maintained that defendant was not entitled to re lief under MCL

770.16.

On August 1, 2006, the circuit court, the Honorable Edward Sos nick presiding, treated defendant’s m otions as motions brought under MCR 6.501 et

seq. (post-appeal relief), denied def endant’s DNA-related requests, and found that defendant failed to establish that biological material was avai lable for testing. Moreover, the circu it court ruled:

Even if the defendant establishe d that such biological materia l existed,

the defendant could not meet the requirements of MCL 770.16(3) (a) [now § 16(4)(a)] that such evidence was material to the defendant’s identity as the perpetrator of the murder of Robert Mejia. Evidence presen ted during this defendant’s trial already es tablished that the defendant’ s blood [type] was not found on the victim. There is no other suspect to atte mpt to match with DNA testing. The defendant h as not, therefore, satisfied the requirements of MCL 770.16(3).-4- Defendant then filed with thi s Court in Docket No. 276973 a de layed application for leave to appeal , along with an accompanying mot ion to remand for DNA testing pursuant to MCL 770.16. In the application, defenda nt argued that, as acknowledged by the prosecutor below, biological material wa s available for DNA testing. Defendant also argued to this Court that, pursuantto MCL 770.16, he was entitled to DNA testing of all biological evidence prese nted at the trial, given that DNA testing could significantly undermine the prosec utor’s theory relative to defendant’s guilt. In the motion to remand for DNA testing, defendant referenced the following evidence collected by police: blood on the victim’s fingernails; blood from a sample of the shirt worn by the victi m; blood on a stone

recovered from the victim’s clo thing; loose hair found on the v ictim; and blood on the console of defendant’s car. The motion stated, “The Cooley Law School has

discovered that there is DNA biol ogical material available for testing. Exhibit G.”

This Court denied defendant’s d elayed application “for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D) .” People v

Poole , unpublished order of the Court of Appeals, entered October 23 , 2007 (Docket No. 276973). In that same order, the panel denied defen dant’s motion to remand for DNA testing. Id. The Michigan Supreme Court then denied defendant’s application for leav e to appeal, ruling that “defen dant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v Poole , 480 Mich 1186 (2008). The Court also denied the motion for DNA testing. Id. On July 10, 2008, defendant filed a petition for a writ of habeas

corpus in federal court, seeking in part DNA testing pursuant to 18 US C 3600. The petition was denied. Poole v Woods , unreported opinion of the United States District Court for the Eastern District of Michigan, issued Sep tember 28, 2011 (Docket No. 08-12955). The case was then unsuccessfully appeale d to the Sixth Circuit and eventually to the United States Supreme Court, whic h denied

certiorari. Poole v Mackie , __ US __; 134 S Ct 945; 187 L Ed 2d 811 (2014).

While the federal effort was pending in the Sixth Circuit, def endant, on November 2, 2012, filed the instan t petition in the circuit court, seeking an order, once again, to test for biological evidence pursuant to MCL 770 .16. In the petition, defendant stated that the police had confirmed that t hey held “bloody stones and known samples from the victim and [defendant].” We n ote that documents in the record dating back to 1988 reflected that ston es bearing suspected blood had been collected from the crime scene. Defend ant asserted that while the stones and other samples were subjected to blood-type testing, they had not been subjected to DNA testing. Defendant also maintained th at the evidence was material to establishing the identity of the perpetrator. F urther, defendant requested DNA testing of other b iological evidence previously c ollected by police. There is no indication that the facts had changed or th at any new evidence had been located or discovered since the earlier failed attempt to obtain an order for DNA testing. The circuit court, the Honorable Rae Lee Chabo t presiding, rejected the petition, finding, much like Judge Sosnick had sev eral years earlier, that the jury had been fully aware that defendant was not the s ource of any crimescene blood, given the blood-type evidence, yet the jury still convicted defendant.-5- DNA testing excluding defendant as a donor would therefore add nothing of relevance if a new trial took place. This Court then granted de fendant’s application for leave to appeal. People v Poole , unpublished order of the Court of Appeals, entered November 25, 2013 (Docket No. 315982). [ Poole , unpub op at 1-4.]

We proceeded to hold that the law of the case doctrine preclud ed consideration of

defendant’s latest efforts under MCL 770.16. Id. at 4-5. However, our Supreme Court concluded that the earlier orders issued by this Court and the Supreme Court, which provided that defendant had failed “to meet the burden of establishing e ntitlement to relief,” and which denied his request for any DNA testing, did not constitute “law of the case,” because the orders “were not rulings on the merits of the issues presented.” Poole , 862 NW2d at 652.

Given the Supreme Court’s direc tives in the remand order that “no provision set forth in MCL 770.16 prohibits the issuance of an order granting DNA test ing of previously tested biological material” and that we are to address “the issues rai sed by the defendant,” id. at 652- 653, we will set aside our sua sponte concerns that, perhaps, MCL 770.16 does not allow for multiple petitions regarding the same evidence or that the court rules regarding motions under Subchapter 6.500 (post-appeal relief) might be applicable and b ar relief. See MCL 770.16(8) (referencing MCR 6.505); MCR 6.501 (“U nless otherwise specified by these rules, a judgment of conviction and sentence entered by the circuit court not subjec t to appellate review under subchapters 7.200 or 7.300 may be reviewed only in accordance w ith the provisions of this subchapter.”); MCR 6.502(G)(1) and (2) (only one motion for rel ief from judgment may be filed except for situations involving ce rtain retroactive changes in the law or newly-discovered evidence); MCR 6.508(D)(2) (court g enerally cannot grant relief if the defendant’s motion alleges grounds that were prev iously rejected in an MCR 6.500 p roceeding). 1

Turning to the substance or mer its of defendant ’s petition und er MCL 770.16, we conclude: (1) that, in satisf action of § 16(1), defendant was c onvicted of a felony at trial before January 8, 2001, and is currently serving a prison sentence for the conviction; (2) that, in satisfaction of § 16(2), defendant ’s petition was filed in the sentencing court before January 1, 2016; (3) that, in satisfaction of § 16(3), biological material was collected and identified during the police investigation of defendant’s case; (4) that, in sati sfaction of § 16(4 )(a), defendant presented prima facie proof tha t the biological evidence sought to be tested was material to the question of defendant’s identity as the perpetrator of the murd er; (5) that, in satisfaction of § 16(4)(b)( i ), there is clear and convincing evidence that a sample of biologi cal material is indeed available for DNA testing; (6) that, in satisfaction of § 16(4)(b)( ii ), there is clear and convincing evidence that the biological material was not previo usly subjected to DNA testing; and (7) that, in satisfaction of § 16(4)(b)( iii ), there is clear and convincing evidence that defendant’s identity as the perpetrator was at issue during his trial. When all of the factors

1 As reflected above in the quoted language from our previous op inion, defendant’s earlier efforts to obtain DNA testing of the same biological material u nder MCL 770.16 were addressed by the trial court, this Court , and our Supreme Court in the co ntext of Subchapter 6.500.-6- recited above are satisfied, as we have concluded, “[t]he court shallorder DNA testing[.]” MCL 770.16(4) (emphasis added). Of the factors subject to consider ation, the only point of contention below and on appeal concerns § 16(4)(a) and whether the blood s amples sought to be tested are

material to the issue of defenda nt’s identity as the perpetrato r of Mr. Mejia’s murder. 2

In People v Barrera , 278 Mich App 730, 737; 752 NW2d 485 (2008), this Court construed the language in § 16(4)(a), which at that time was fo und in § 16(3)(a), 3 holding that biological evidence “must be of some consequence to the issue o f identity” or, stated differently, that there must be “some logical relationship between the evide nce sought to be tested and the issue of identity.” According to the Barrera panel, the language in § 16(4)(a) “requires a

defendant to link DNA evidence sou ght to be tested to both the crime and the crim inal in order to show materiality[.]” Id. at 740.

Here, at issue is blood found on stones and grass located at t he crime scene. 4 With respect to blood typing, all that is known is that nearly all o f the blood was consistent with the victim’s blood type, none of the blood matched defendant’s bloo d type, and that one blood sample – a blood stain on a stone found in the victim’s pants – matched neither defendant nor the victim’s blood type. 5 If one removes from consideration or the equation the fact th at blood-type testing was performed on the evidence and that the results were submitted to the jury, there would appear to be no dispute whatsoever that the blood samples would be material to defendant’s identity as the perp etrator. The “materiality” wou ld be established from the evidence showing a violent physic al attack involving a knife an d an ensuing struggle that could have easily resulted in the perpe trator being cut or scratched, thereby spilling some of the perpetrator’s own blood in the process of the killing. 6 A finding of “materiality” would further

2 Section 16(4)(a) requires a defe ndant to “[p]resent[] prima fa cie proof that the evidence sought to be tested is material to the issue of the convicted person's identity as the perpetrator of, or accomplice to, the crime that resulted in the conviction.”

3 See 2000 PA 402, 2005 PA 4, and 2008 PA 410.

4 We note that defendant had also requested an order directing authorities to search for and collect other evidence containing or possibly containing biolog ical material that could be subjected to DNA testing, e.g., a cigarette butt, the victim’s fingernail clippings, a blood-stained

car console. This issue formed the basis of defendant’s second argument on appeal; however, after the appeal was filed the parties entered into a stipulati on “that there is no additional biological evidence to be located in this case and that the sec ond issue . . . is moot.” Accordingly, our focus is solely on the blood samples found on the stones and grass at the crime

scene.

5 Expert Melinda Jackson did testify that there were inconclusiv e results in regard to some of the blood samples because they did not c ontain sufficient quantitie s of material for testing.

6 There was evidence that the victim had sustained multiple supe rficial cuts and incised wounds, along with abrasions and contusions on his arms and back, as we ll as a bite mark to the back of his right arm, which all suggested that the victim and the perp etrator had engage d in a violent physical struggle before the vict im was finally incapacitated a nd died.-7- be supported by the evidence show ing the nature, location, and extent of the victim’s injuries and that the blood samples were f ound all about the crime scene and in the victim’s pocket.

Under our scenario, 7 DNA testing could be inconclusive, could point to defendant as being a donor, or could exclude d efendant as the source of any blood samples, along with potentially identifying another specific individual as the dono r, thereby clearly satisfying MCL 770.16(4)(a). Because DNA testing of a blood sample could poss ibly connect another person to the crime scene or exclude defendant, the sample would be of so me consequence or have a logical relationship to the issue of identity and would be link ed to both the crime and the criminal. In other words, the blood samples would necessarily be material to defendant’s identity as the perpetrator.

The difficulty that arises in this case concerns whether the question of materiality under § 16(4)(a) is impacted by the fact that a trial was conducted i n which the jury was presented with blood-type evidence that effectively excluded defendant as the source of the blood samples. The prosecution argues that the crime-scene blood samples, for purp oses of DNA testing, are not

material to the issue of defenda nt’s identity as the perpetrato r, considering that blood typing already excluded defendant as the donor of the blood samples. Similarly, the trial court noted that the jury had been fully awa re that defendant was not the s ource of any of the blood, with one sample even producing a blood-type result unlinked to either de fendant or the victim, yet the jury still convicted defendant. The court therefore opined that anyDNA testing that excluded

defendant as a donor would add not hing of relevance in a new tr ial.

Considering that the trial court was a bit vague in its statem ents, we are not quite certain regarding the court’s underlyi ng reasoning within the context o f § 16. On one hand, the trial court may have been concluding that, in regard to the analysis under § 16(4)(a), any “materiality” of the blood samples at this stage had been entir ely undercut or lost in light of the history of the case and the prio r presentation of blood-type ev idence to the jury. Stated otherwise, perhaps the trial court found that the blood samples , for purposes of DNA testing, are immaterial under § 16(4)(a), considering the blood-type evidenc e submitted at trial that already excluded defendant. On the other hand, or in conjunction with the preceding observation, the trial court may have jumped ah ead in the analys is under MCL 770 .16(7) and (8), as we shall now explain. If a trial court orders DNA testing, MCL 770.16(7) an d (8) contemplate two broad possible results. When “the results of the DNA testing are inc onclusive or show that the

defendant is the source of the identified biological material,” the trial court is required to “deny the motion for new trial.” MCL 770.16(7). MCL 770.16(8) contr ols when “the results of the DNA testing show that the defendant is not the source of the id entified biological material[.]” Absent a mistake with respect to the blood typing, any DNA test ing done in this case should result in the application of s ubsection (8). B ut subsection (8 ), even when implicated, only allows for a new trial upon a hearing and t he presentation of clear an d convincing evidence showing that only the perpetrator could have b een the source of the identifi ed biological material, showing

7 Again, for the moment, we are assuming that there was no blood -type testing performed or blood-type results presented to the jury.-8- that the biological material was not contaminated or seriously degraded, and showing “[t]hat the defendant’s purported exclusion . . . , balanced against the ot her evidence in the case, is sufficient to justify the grant of a new trial.” MCL 770.16(8) (a)-(c). The trial court’s ruling here may have simply reflected its conclusion that, assuming the exp ected exclusion of defendant as a donor upon any DNA testing, no new trial would be warranted or justified, because defendant already had a trial i n which the jury knew that defendant had b een excluded.

To the extent that the trial court took the latter approach, j umping ahead and contemplating § 16(7) and (8), this was error. MCL 770.16 envi sions two main phases; the first phase involves the court assessing whether DNA testing should b e ordered, and the second phase entails, if DNA testing was ordered, whether a motion for new t rial should be granted. Here, we are solely concerned with the first phase. As indicated earlie r, if a defendant satisfies the required factors with respect to the question whether DNA testi ng should be ordered, “[t]he court

shallorder DNA testing[.]” MCL 770.16(4) (emphasis added). Accord ingly, it would be improper to deny DNA testing on the basis that a court conclude s that it would deny a future motion for new trial regardless of the results of any DNA testi ng. A court is not statutorily permitted to conflate the two phases.

To the extent that the trial court found that the blood sample s, for purposes of DNA testing, are immaterial under § 16(4)(a), given the blood-type evidence submitted to the jury at trial, the trial court also erred. We initially conclude that the materiality of the blood samples to the issue of identity is not affected or lessened by the fact that blood-type evidence excluding defendant as a donor was already presented at trial; all of thi s scientific evidence is material or relevant to defendant’s identity as the perpetrator. Rather, the somewhat cumulative nature of the evidence may possibly play a role in deciding a future moti on for new trial. Furthermore, if accurately tested, the blood identified as being consistent wit h the victim’s blood type may or may not have been his blood, considering that other people have type O blood, and it was not defendant’s blood, leaving open th e possibility that another in dividual was involved in the crime. The blood identified as being inco nsistent with both the victim and defendant’s blood type, if accurately tested, also suggests th e possibility that another i ndividual was involved in the crime. Although it is true that both bloo d-type results and prospectiv e DNA results might equally exclude defendant as being the donor of the blood samples found at the crime scene, the fact is that DNA evidence and blood-type e vidence are not typically of equal value. In this case, we see a distinction between the jury knowing in a broad general sense that the blood of an unknown person was present at the crime scene and the jury potentially learning through DNA testing that

the blood of a particular person , perhaps an acquaintance of the victim or a person who was in the bar that night, could be linked to the crime scene. Reason able doubt would more likely flow from the identification of a sp ecific individual, especially if the person was present in the area at the time of the murder, as opposed to a wholly unknown figure. 8 We cannot conclude that the blood samples, for purposes of DNA testing, are immaterial mere ly because the jury in the 1989 trial considered blood-type evidence that excluded defendant as a donor or source of the blood samples. DNA testing is justified because, under the circumsta nces, there exists prima facie

8 We do appreciate that DNA testing might not produce the identi ty of the donor.-9- proof that the blood samples, w hich will be subjected to DNA te sting, are material to defendant’s identity as the perpetrator, where the DNA testing could point to another specifi c individual as the perpetrator.

Finally, as relied on by the trial court and prosecution, it i s necessary to address a

statement in Barrera indicating that “where . . . biol ogical evidence has already ex cluded a defendant, identity is not an issue.” Barrera , 278 Mich App at 740. To give the proper context to the statement, the full para graph in which the statement is embedded must be examined:

While MCL 770.16(3)(a) [now (4)(a)] requires a defendant to li nk DNA evidence sought to be tested to both the crime and the criminal in order to show materiality, MCL 770.16(3)(b) [now (4)(b)] addresses issues reg arding the availability of the biological m aterial, prior testing of the m aterial, and whether identity was an issue at trial. MCL 770.16(3)(b)( i )-( iii ) [now (4)(b)( i )-( iii )]. By way of example, if semen found on panties was material because the victim wore the panties at the time of the rape, MCL 770.16(3)(a) would be satisfied, but if a

defendant had claimed at trial that he had consensual sex with the victim, identity would not be at issue. If identity is not at issue, then MCL 77 0.16(3)(b)( iii ) is not satisfied, and DNA testing would not be ordered. Similarly, whe n a defendant’s theory of the case is self-defense or where the biological evidence has already excluded a defendant, identity is not an issue . Although a defendant may satisfy the materiality requirement of MCL 770.16(3)(a), a defendant wo uld not satisfy the “clear and convincing eviden ce” requirement of MCL 770.16(3 )(b) on the issue of identity. [ Barrera , 278 Mich App at 740 (emphasis added).]

As gleaned from this passage, the emphasized statement at issu e, which is indisputably dicta and unconfined by specific facts, was being discussed in the context of § 16(3)(b)( iii ), now § 16(4)(b)( iii ), and not the materiality provis ion in § 16(4)(a) that we have been discussing at length in this opinion. MCL 770.16(4)(b)( iii ) requires clear and convinc ing evidence that “[t]he identity of the defendant as the perpetrator of the crime was a t issue during his or her trial.” Accordingly, in the examples given by this Court – consensual s ex, self-defense, and the existence of exclusionary evidence – the underlying implicit pr emise was that identity was not at issue or disputed by the parties at trial. Therefore, with res pect to the hypothetical scenario where the biological evidence had already excluded a defendant, the Barrera panel was necessarily envisioning circumstances where there was exclusion ary evidence and in light of this evidence the parties did not dispute identity . Such was not the case he re, considering that the whole trial focused on the disput ed issue of the identity of th e perpetrator, alleged by the prosecutor to be defendant, not withstanding the blood-type evid ence excluding defendant as a

source of the blood. The Barrera dicta has no beari ng on our analysis.

Reversed and remanded for entry of an order directing DNA test ing pursuant to MCL 770.16(6). We do not retain jurisdiction.

/s/ William B. Murphy /s/ David H. Sawyer

/s/ Michael J. Talbot