PEOPLE OF MI V ERIK PERRIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 22, 2004
Plaintiff-Appellant,
v
No. 243656
Wayne Circuit Court
LC No. 00-008145
ERIK PERRIGAN,
Defendant-Appellee.
Before: Cavanagh, P.J., and Murphy and Smolenski, JJ.
MEMORANDUM.
Plaintiff appeals the circuit court order granting defendant’s motion for new trial based
on newly discovered evidence. In an October 17, 2002 order, we peremptorily reversed the trial
court’s ruling. This case is now before us on remand from the Supreme Court for plenary
consideration in light of People v Cress, 468 Mich 678; 663 NW2d 174 (2003). Again, we
reverse. This case is being decided without oral argument pursuant to MCR 7.214(E).
We review for an abuse of discretion the trial court’s decision to grant defendant a new
trial, while its factual findings are reviewed for clear error. Cress, supra at 691. In Cress, the
defendant was convicted of first-degree felony murder. Twelve years after the conviction,
defendant moved for a new trial, asserting that an Arkansas prison inmate had admitted killing
the victim and presented his confession. Id. at 682. The trial court granted the defendant a new
trial, but vacated that decision when the prosecutor presented evidence that brought the
confession into question. Id. at 683, 686. This Court reversed. Id. at 690.
The Supreme Court noted that for a new trial to be granted on the basis of newly
discovered evidence, a defendant must show that: (1) the evidence itself, not merely its
materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3)
the party could not, using reasonable diligence, have discovered and produced the evidence at
trial; and (4) the new evidence makes a different result probable on retrial. Id. at 692. In
reinstating the trial court’s denial of the defendant’s motion for new trial, the Court emphasized
that “[a] mere difference in judicial opinion does not establish an abuse of discretion.” Id. at
691. “A false confession (i.e., one that does not coincide with established facts) will not warrant
a new trial, and it is within the trial court’s discretion to determine the credibility of the
confessor.” Id. at 692.
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The newly discovered evidence proffered by defendant is the alleged confession of
Douglas Binder. Defendant presented the affidavits of two defense investigators who stated that
Binder confessed that he was the driver of the vehicle. Defendant also presented polygraph
examination results of defendant and another witness, Clyde Smith, which indicated that they
were not being deceptive when they stated that defendant was not the driver. In response, the
prosecution presented Binder’s affidavit in which he denied being the driver and denied making
such a confession to defense investigators. The trial court granted defendant’s motion because it
believed that there was an “indication” that defendant may have been wrongly accused and that
justice dictated that the motion be granted. Therefore, it appears the court gave credence to
Binder’s confession to defense investigators that he was the driver of the vehicle as supported by
the affidavits and polygraph examination results. Inherent in the court’s ruling was a finding that
a different result would be probable at retrial. For the following reasons, we find that the trial
court abused its discretion in granting defendant a new trial.
The record is unclear as to when defendant was aware that Smith was going to recant his
original statement that defendant was the driver of the vehicle. And so we cannot comment as to
whether this “newly discovered evidence” could have been discovered with reasonable diligence
before trial. But it is clear that this evidence is purely cumulative because both defendant and
Smith testified at trial that defendant was not the driver. And although at trial Smith did not
identify Binder specifically, he did testify that his brother-in-law was the driver.
If granted a new trial, Binder would testify that he was not the driver and would also deny
that he made a confession to defense investigators. The confession itself would be inadmissible
because it is hearsay. Defendant contends that the confession would be admissible under MRE
804(b)(3) or MRE 804(7). However, there is no evidence that Binder would be unavailable for
trial as required by MRE 804 to admit hearsay under either of these exceptions. Additionally,
given Binder’s statement to the prosecution and Smith’s contradictory statements before and
during trial as to the identity of the driver, the confession lacks sufficient indicia of
trustworthiness which is also required for hearsay to be admitted under either of these
exceptions. Thus, defendant would only be able to impeach Binder with the statement.
Consequently, it cannot be found that the newly discovered evidence, i.e., Binder’s confession,
would make a different result probable on retrial.
Reversed.
/s/ Mark J. Cavanagh
/s/ William B. Murphy
/s/ Michael R. Smolenski
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