PEOPLE OF MI V NATHAN EMMANUEL JACOBS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 7, 2010
Plaintiff-Appellee,
V
No. 283056
Wayne Circuit Court
LC No. 07-013349-FC
NATHAN EMMANUEL JACOBS,
Defendant-Appellant.
ON REMAND
Before: WILDER, P.J., and METER and FORT HOOD, JJ.
PER CURIAM.
This case is on remand from our Supreme Court to address defendant’s claim of newly
discovered evidence in light of the laboratory report from Ron Smith & Associates, Inc. (RSA).1
After considering the laboratory report, we deny defendant’s request for a new trial based on
newly discovered evidence. Consequently, we once again affirm defendant’s convictions and
sentences for second-degree murder of victim Eric Murrow, MCL 750.317, assault with intent to
commit murder upon complainant Roy Portis, MCL 750.83, and possession of a firearm during
the commission of a felony, MCL 750.227b.
Defendant’s convictions arise from an altercation with three men, Irvin Smith, Roy
Portis, and Eric Murrow, the victim. The prosecutor’s theory at trial was that defendant became
involved in a fight with the three men and left to retrieve an assault rifle from his vehicle. Smith
and Portis fled the scene, but the victim was struck by three bullets while standing near the front
door and died from his wounds. Smith and Portis returned to the scene, but did not aid the
victim or call for emergency assistance. The men came forward after being persuaded by the
victim’s family. Although there was testimony that the victim also fired a gun during the
confrontation, no gun was recovered.
1
People v Jacobs, ___ Mich ___ entered September 9, 2010 (Docket No. 139607).
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At trial, police officer Tenisha Bridgewater of the firearms unit testified that she analyzed
cartridge casings found at the scene. The five casings found at the scene were normally fired
from an AK-47, the same weapon that defendant retrieved from his vehicle according to the
prosecution witnesses.2 These shell casings were of the same caliber and from the same
manufacturer as were three live bullets found in defendant’s home. She also analyzed a casing
that was fired from a handgun. Although she was not given any weapons to correlate to the
casings, Bridgewater testified that all of the casings were not fired from the same weapon. The
medical examiner’s office retrieved two bullets from the victim’s abdomen and one bullet from
his head. However, Bridgewater testified that sometimes bullets are damaged when they travel
through hard objects. Consequently, she was unable to analyze the bullets retrieved by the
medical examiner from the victim’s body.
The findings of the Detroit Crime Lab were called into question in other criminal cases,
and ultimately the lab was shut down. The prosecution sent the evidence in this case to RSA for
an independent evaluation.3 The RSA evaluation found that evidence item seven, the second
bullet taken from the victim’s abdomen, was a small lead fragment that had no rifling marks and
had no value for identification purposes. Retrieved from the victim’s head, evidence item eight
was a copper bullet fragment for which the caliber could not be positively determined, but the
rifling measurements were “consistent with bullets fired from 9x18mm Makarov caliber pistols.”
Evidence item nine, the first shot taken from the victim’s abdomen, was a copper bullet fragment
for which the caliber could not be positively determined. However, the rifling measurements
were “consistent with bullets fired from 7.62x39mm rifles.”4
Defendant contends that the RSA report constitutes newly discovered evidence which
warrants a new trial because the evidence contradicts the prosecutor’s theory of the case and
demonstrates that the star witnesses were incredible. We disagree.
To be entitled to a new trial based on newly discovered evidence, a defendant must show
that the evidence (1) is newly discovered, (2) is not merely cumulative, (3) was not discoverable
and producible at trial with reasonable diligence, and (4) would probably result in a different
outcome on retrial. People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003). “Newly
2
Officer Bridgewater testified that an AK-47 would normally fire a 7.62x39mm caliber bullet.
3
The prosecution contends that the evaluation was initiated by the prosecutor’s office, and the
defense does not dispute that assertion.
4
In the defense brief requesting a remand to the trial court, the RSA report is cited for the
conclusion that the bullet taken from the head was consistent with bullets fired from a pistol
while the bullet taken from the abdomen was consistent with bullets fired from a rifle. Review
of the report reveals that it does not correlate the bullet to the injury. Rather, the report identifies
the exhibit number and correlates it to the envelop number assigned by the police department or
the medical examiner. To determine the location of the identified bullet, the transcript must be
examined.
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discovered evidence is not ground for a new trial where it would merely be used for
impeachment purposes.” People v Davis, 199 Mich App 502, 516; 503 NW2d 457 (1993).
With regard to the criteria for newly discovered evidence, defendant demonstrated that
the evidence was newly discovered, was not cumulative to evidence admitted at trial, and that the
evidence was not discoverable and producible at trial. Cress, 468 Mich at 692. The questionable
reliability of crime lab results had not been confirmed prior to trial, and therefore, defendant did
not seek independent expert review of the evidence. See MCL 775.15; People v Carnicom, 272
Mich App 614, 617; 727 NW2d 399 (2006). However, defendant failed to establish that the
evidence would result in a different result on retrial. Cress, 468 Mich at 692.
The elements of second-degree murder are: (1) a death, (2) defendant’s act caused the
death, (3) defendant acted with malice, and (4) defendant acted without justification or excuse.
People v Bulmer, 256 Mich App 33, 36; 662 NW2d 117 (2003). The intent necessary to satisfy
the crime of second-degree murder is the intent to kill, the intent to inflict great bodily harm, or
the willful and wanton disregard for whether death will result. People v Robinson, 475 Mich 1,
14; 715 NW2d 44 (2006). A defendant is responsible for the crime that he intends to aid or abet
as well as the natural and probable consequences of that crime. Id. at 14-15. The prosecutor
need not negate every reasonable theory consistent with the defendant’s innocence. People v
Bowers, 136 Mich App 284, 300; 356 NW2d 618 (1984). The prosecution need only prove its
own theory beyond a reasonable doubt regardless of the evidence offered by defendant. Id.
Defendant contends that the newly discovered evidence contradicts the prosecutor’s
theory of the case that he fired at the victim with an AK-47 striking him three times. However,
like the defense, the prosecutor was unaware of the classification of the bullets at the time of
trial. More importantly, the RSA report confirmed the prosecutor’s theory with regard to one
bullet. Specifically, one of the gunshot wounds to the abdomen confirmed that the victim was
shot with an AK-47, the gun identified by the eyewitnesses to the incident.5 The prosecutor was
not required to prove whether defendant acted in concert with another individual. The fact that
there was a second shooter does not contradict the testimony that defendant shot at the victim
with an AK-47 or the prosecutor’s theory that defendant shot the AK-47.6
Furthermore, we reject the contention that this newly discovered evidence demonstrates
that the testimony presented by the prosecutor’s eyewitnesses was incredible. At trial, defense
5
The RSA report concluded that the second bullet to the abdomen was inconclusive, a finding
that is consistent with the testimony of Officer Bridgewater. The third bullet was likely fired
from a pistol.
6
We note that defendant contends that a new trial was warranted because of the contradiction of
the prosecutor’s theory of the case and the attack on the credibility of the prosecutor’s witnesses.
The defense does not challenge the sufficiency of the elements of the convicted offenses of
second-degree murder, assault with intent to commit murder on Portis, and felony-firearm.
Therefore, we do not address it.
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counsel thoroughly attacked the testimony of Portis and Smith. Specifically, the defense argued
that these witnesses should not be believed because they were drug dealers who stole guns from
the scene and left the victim, a friend, bleeding in the hallway to die. The defense asserted that
their testimony was also incredible because they would not turn to see what defendant was doing
or who he was firing at upon realizing that defendant was getting a weapon. The eyewitnesses
were also challenged because they failed to obtain emergency aid for their friend and attend the
funeral. Review of the record reveals that the defense extensively challenged the credibility of
the prosecutor’s witnesses by addressing the delay in coming forward, the plausibility of their
testimony, the violent altercation that preceded the shooting, and their occupation. Despite these
challenges, the jury nonetheless found the testimony to be credible, even convicting defendant of
the assault upon Portis. The defense failed to establish that a different outcome would result in
light of the RSA report. Cress, 468 Mich at 692. Accordingly, defendant is not entitled to a new
trial on this basis.7
Affirmed.
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
7
The Supreme Court order on remand vacated the holding addressing the claim of newly
discovered evidence only. Consequently, the other issues addressed in our prior opinion remain
the law of the case. People v Herrerra (On Remand), 204 Mich App 333, 340; 514 NW2d 543
(1994).
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