PEOPLE OF MI V ROSEMARIE MCSWAIN
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
December 9, 2003
9:30 a.m.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 241275
Kent Circuit Court
LC No. 88-045197-FC
ROSEMARIE McSWAIN, also known as ROSE
MARIE-JEANETTE McSWAIN,
Defendant-Appellee.
Updated Copy
February 13, 2004
Before: Whitbeck, C.J., and Smolenski and Murray, JJ.
MURRAY, J. (concurring).
I concur with the majority's conclusion that the trial court's order granting defendant's
motion for relief from judgment should be reversed. However, in my view the trial court's order
should be reversed on the basis that, as a matter of law, good cause did not exist for failing to
previously raise this issue. MCR 6.508(D)(3)(a).
As the majority discusses, but does not decide, the record reveals that defendant seeks to
present issues at a new trial that are based on facts and law that existed at the time of defendant's
trial. For example, defendant's trial counsel testified about various personality traits he
encountered while interviewing defendant before trial. The sum and substance of that testimony
was that defendant would on one occasion appear shy and reserved, while on another occasion
she exhibited a brash and brazen personality. Defendant's trial counsel also testified that, during
trial, defendant was essentially emotionless, thus exhibiting another different personality trait.
Additionally, case law existed at the time of trial that recognized multiple personality disorder,
now known as disassociative identity disorder. See, e.g., State v Lockhart, 208 W Va 622, 631632; 542 SE2d 443 (2000), and the cases cited therein.
Because there were facts available to defendant's trial counsel from which he could have
argued that defendant was incompetent or acted in self-defense, and because case law existed to
support the legal theory behind such an argument, defendant failed to establish the requisite good
cause to warrant relief from judgment. MCR 6.508(D)(3)(a); Sellers v State, 889 P2d 895, 897
(Okla Crim App, 1995) (holding that the defendant failed to establish "sufficient reason" to
explain why he did not raise an insanity defense based on multiple personality disorder when the
disorder, though relatively new at the time of trial, was reasonably discoverable); Sellers v State,
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973 P2d 894, 895 (Okla Crim App, 1999) (denying postjudgment relief to the same defendant
because the disorder could have been discovered by trial counsel at the time of trial). Indeed,
when informed by defendant's current counsel of the diagnosis now given to defendant, her trial
counsel testified that it "makes perfect sense in retrospect . . . ." This is a clear indication that it
was only the failure to recognize the diagnosis and possible defenses, not the unavailability of
them, that caused these issues to not have been previously raised.
Defendant also failed to offer a valid reason explaining why the motion was filed almost
ten years after her conviction and more than seven years after her unsuccessful appeal to the
Michigan Supreme Court. Such long-delayed motions are looked on by the courts with disfavor,
People v Jackson, 465 Mich 390, 398-399; 633 NW2d 825 (2001), a fact the trial court noted.
Although defendant asserted that she was presenting newly discovered evidence, as detailed
above, the evidence was not newly discovered. Rather, the only difference between the time of
trial and the motion for relief from judgment was that defendant found expert witnesses who
opined, based upon the facts existing at the time of trial, that she suffered from a mental disorder
that existed at the time of trial, albeit under a different name. Thus, what this case presents is an
argument that the materiality of the evidence is newly discovered, which has long been held to
be an insufficient basis for the granting of a new trial. See People v Clark, 363 Mich 643, 647;
110 NW2d 638 (1961); People v Stricklin, 162 Mich App 623, 632; 413 NW2d 457 (1987).
I would therefore reverse the trial court's order on the basis that defendant failed to
establish good cause for failing to raise this ground on appeal or in the prior motion.
/s/ Christopher M. Murray
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