Michigan Supreme Court 

# Order

Lansing, Michigan

February 1, 2008 Clifford W. Taylor,
Chief Justice
132763 & (17)(18)(19) Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellee, Justices

v SC: 132763 COA: 269911 Kent CC: 00-009779-FC DAVID E. DUYST, Defendant-Appellant.

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On order of the Court, the motion for miscellaneous relief is GRANTED. The application for leave to appeal the October 26, 2006 or der of the Court of Appeals is considered, and it is DENIED, because the defendant has fa iled to meet the burden of establishing entitlement to relief under MCR 6.508(D). The moti on to remand and the motion to release physical evidence for independent testing are DENIED.

C AVANAGH , J., dissents and states as follows:

I would remand this case to the Kent Circuit Court for entry of an order granting the defendant’s request for release and testing of the physical eviden ce specified in Issue VI of the defendant’s applica tion for leave to appeal to th is Court and described in his motion for testing. After such tests are co mplete, I would permit defendant to file a

motion in the circuit court seek ing the appropriate evidentiary hearing(s) and to renew his motion for relief from judgment. I would further hold that th e defendant’s application for leave to appeal any decision by the circuit court regarding mo tions filed under this order would not be barred by MCR 6. 502(G) or MCR 6.508(D)(2).

K ELLY , J., dissents and states as follows:

Defendant moved for forensic testing of evidence and for an evidentiary hearing.

The trial court considered these motions al ong with defendant’s motion for relief from judgment. It denied all of them for failu re to establish good cause under MCR 6.508(D)._______________________________________ __ 2

The offer of proof that defendant made is quite extraordinary and separates his motion from the typical motions for relief fro m judgment. Defendant’s offer of proof indicates that the expert testimony at his trial was unreliable because it was based on incomplete testing. Defendant asserts that his trial counsel was ineffective for failing to investigate, request testing, or provide adequate rebuttal ex pert testimony. Defendant’s trial counsel represented him on appeal and did not make a claim for ineffective assistance of counsel or raise any issues re lated to the handling of expert testimony. Hence, counsel may have b een ineffective at two levels.

I believe that the trial court should not have denied defenda nt’s motion for relief from judgment for failure to establish good cau se. Defendant coul d not establish good cause without testing the evidence. I would remand the case so that the trial court could order independent test ing of the evidence and hold an evidentiary hearing under MCR 6.508(C) on the issue of ineffective assistance of counsel. Only after that would the trial court be in a position to rule on defe ndant’s motion for re lief from judgment.

d0129 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

February 1, 2008

Clerk