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People v. Tucker

Supreme Court of Michigan

July 19, 2019

JILL ANN TUCKER, Defendant-Appellee.

          Livingston CC: 2016-023886-FH

          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


         On order of the Court, the application for leave to appeal the January 24, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

          Clement, J. (dissenting).

         I dissent from the Court's denial of leave to appeal. Because I do not believe defendant is entitled to relief under the best evidence rule, I would reverse the Court of Appeals and remand to that Court for consideration of the issues raised by defendant which that Court did not reach.

         Defendant was charged with, inter alia, violating MCL 750.411s by "texting" certain nude photographs of a female coworker to several male coworkers of defendant and the victim, as well as with sending the pictures to defendant's boyfriend, a police officer. The photos were apparently retrieved from the victim's cell phone. Trial was scheduled to begin on March 6, 2017. On February 15, 2017, defense counsel filed a motion in limine alleging that the prosecutor's office had, on February 9, disclosed screen shots captured from the police officer's phone that were images of text messages between the officer and defendant regarding these events. Defendant asked that the screen shots be excluded from the trial because they had not been properly disclosed in discovery. At a heated hearing on the motion on March 1, the prosecutor asserted that he was unaware of the existence of any such text messages until a phone conversation he had with the police officer on February 8 disclosed their existence. The officer sent the material to the prosecutor, and the prosecutor notified defense counsel-resulting in defendant's motion the following day. The trial court concluded "that the prosecutor, I do not believe was acting in bad faith." The court chalked up any failure to provide proper discovery to there having been "too many hands that . . . handled this file from one to the other that caused a gap in the . . . prosecutor . . . discovering these screen shots on this phone," but the court did not believe the prosecutor was acting in bad faith "in light of the statements of the prosecutor as to how quick he reacted after he . . . became aware of . . . that information." The judge denied the motion to exclude the photos and directed the lawyers to "meet between [March 1] and [March 6] and look at that phone."

         On March 6, the trial began. While giving the jury preliminary instructions, the court instructed the jury that defendant was charged with having violated MCL 750.411s, which involved "the defendant [having] sent nude photographs of [the victim] to other people." After the jury was instructed, defense counsel said he had "never received nor have I ever seen any nude . . . pictures of" the victim. A heated exchange ensued, in which the prosecutor said that he offered to show the photos to defense counsel when defense counsel came to the prosecutor's office; the prosecutor said defense counsel had represented that he did not need to see the pictures. Defense counsel accused the prosecutor of having lied and insisted that lack of access to the photos had denied the defendant an opportunity to scrutinize the authenticity of the photographs. The trial court asked the prosecutor whether he had provided the photos to defense counsel and had this exchange:

[The Prosecutor]: I did not make copies of them because they're naked-
The Court: All right. Did you show it to him?
[The Prosecutor]: I offered them.
The Court: Did you show those? I'm going to, you're, this case, you're going to proceed without those photos going in. You may make reference to them. I'm not going to have those photos going in.
[The Prosecutor]: Judge what's the basis?
The Court: Basis of that [defense counsel] has . . . argued in the past about having some . . . discovery . . . issues come forward and we went so far as last week as . . . having you two gentlemen meet to go over text messages . . . so that everybody could know what evidence was going on. If this evidence of these photographs that have been in a sealed envelope and they haven't been shown to . . . this defense lawyer . . ., we're just going to have to go forward without these photographs. You can make ...

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