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
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
Clement, J. (dissenting).
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.
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
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 ...