Livingston CC: 2016-023886-FH
ORDER
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
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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 ...