People v. Rao

• Decision Date: 17 May 2012
• Docket Number: Docket No. 142537.
• Citation: 815 N.W.2d 105,491 Mich. 271
• Parties: PEOPLE v. RAO.
• Court: Michigan Supreme Court

491 Mich. 271

815 N.W.2d 105

PEOPLE

v.RAO.

Docket No. 142537.

Supreme Court of Michigan.

Argued Jan. 11, 2012.

Decided May 17, 2012.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief of the Appellate Division, and Marilyn J. Day, Assistant Prosecuting Attorney, for the people.

Frank D. Eaman PLLC, Harper Woods (by Frank D. Eaman) for defendant.

MARKMAN, J.

In People v. Cress, 468 Mich. 678, 692, 664 N.W.2d 174 (2003), this Court reiterated the four-part test that has governed motions for a new trial based on newly discovered evidence for well over a century. This case requires us to elucidate, and reemphasize, several aspects of this test. We begin with the unremarkable observation that when the defendant possesses knowledge of evidence at the time of trial, that evidence cannot be characterized as “newly discovered” under the first part of the Cress test. In addition, we clarify that knowledge of evidence at the time of trial necessarily implicates the third part of the Cress test, which requires the defendant to undertake “reasonable diligence” to discover and produce the evidence at trial. Finally, we emphasize that the defendant carries the burden of making the requisite showing regarding each of the four parts of the Cress test. Adherence to these principles—each of which is discernable from our caselaw—is necessary to maintain the balance between generally upholding the finality of criminal judgments, and unsettling such judgments in the unusual case in which justice under the law requires.

The Court of Appeals strayed from these principles, in our judgment, by overlooking that defendant and defense counsel were both well aware at the time of trial that the alleged newly discovered evidence could have supported the defense and impermissibly relieved defendant of her burden of showing that she could not, through the exercise of reasonable diligence, have discovered and produced the evidence at trial. Accordingly, we reverse the judgment of the Court of Appeals, reinstate the trial court's order denying defendant's motion for a new trial, and remand to the Court of Appeals for consideration of defendant's remaining issues.

I. FACTS AND HISTORY

Defendant, Malini Rao, was convicted of abusing her daughter, RS, who was 3 1/2 years old at the time of trial. Defendant and her husband had adopted RS from an orphanage in India in August 2006 when she was 21 months old, and defendant is the child's primary caretaker. At a 10–day jury trial, Child Protective Services (CPS) worker Michelle Sparks testified that she had visited defendant's home on October 11, 2007, after CPS received a referral alleging that RS had facial bruising and was not verbal. Sparks observed that the child had “a lot of facial bruising,” including a “goose egg” over her left eyebrow, a blackened left eye, a bruise on the left check, a large bump on her right cheekbone, a cut across the bridge of her nose, and several splits in her lower lip. When Sparks asked defendant about how she disciplined the child, defendant said that she used time-outs and spankings. However, when Sparks specifically asked about the bruises on the child's face, defendant told her that she “does beat [RS] about the face” and demonstrated her technique by hitting the seat of a chair, using a forceful swing from the shoulder with an open hand. Sparks testified that, in her opinion, defendant's demonstration was more than just a slap.

On the basis of her interview and observations, Sparks determined that a medical examination of the child was necessary and accompanied defendant to the emergency room, where the child was examined by Dr. Robert Cohen. Dr. Cohen observed that the child had multiple bruises, cuts, and scratches on her face and upper body. He ordered a “babygram,” a head-to-toe x-ray of every bone in the body to assess any fractures, which indicated multiple bilateral rib fractures. Dr. Cohen concluded that while any of the child's injuries, if viewed individually, could have been caused by an accident, the sheer number of injuries made him suspicious that they were caused by “nonaccidental trauma” or child abuse. Following the medical examination, Sparks concluded that the allegations of abuse and neglect had been substantiated and categorized the case as “Category 1,” which CPS uses to designate a case presenting the highest level of risk. Both of defendant's children were removed from her home that night and placed with friends of the family the following day.

Defendant testified in her own defense. She admitted striking the child on the face once or twice, but denied ever using the word “beat” in her interview with Sparks. In addition to Sparks, defendant, and other lay witnesses, nine medical expert witnesses testified at trial about their opinions regarding the child's injuries. The central disagreement between the prosecutor's and defendant's experts concerned the cause of the injuries. The prosecutor's experts concluded that nonaccidental trauma was the only possible explanation for the injuries. These experts included Dr. Wilbur Smith (a pediatric radiologist) and Dr. Marcus DeGraw (a pediatrician, board-eligible in child abuse pediatrics), who examined the child in November 2007. At his examination, Dr. DeGraw ordered a skeletal survey and a host of tests that could possibly provide an explanation for the child's injuries other than abuse. The skeletal survey revealed no new fractures since the child's removal from defendant's home and also showed no evidence of genetic or metabolic disease. After reviewing these results and considering “not just the rib fractures, but all injuries,” Dr. DeGraw concluded that “there was no other explanation” for the child's injuries than abuse. He found further support for his conclusion in the child's “tremendous” weight gain after being removed from defendant's home, when her growth increased from below the 3d percentile in September 2007 to the 55th to 60th percentile in June 2008.

The defense called several medical experts, none of whom were qualified as pediatricians, board-eligible in child abuse pediatrics, and all of whom disagreed with the prosecutor's experts that the cause of the child's injuries was abuse. These experts offered various theories to explain the child's injuries, in particular that they were attributable to anomalies the child had suffered at birth, metabolic abnormalities, accidental trauma, a “failure to thrive,” or a combination of these issues. Specifically, Dr. Robert Rothfeder, a physician who practices emergency medicine, testified that the abnormalities shown on the x-rays “relate to a number of disease issues that [RS] had suffered.” And Dr. David Kellam, a pediatric radiologist, opined that the child had faulty bone structure caused by metabolic abnormality, disease, malnutrition or a combination thereof such that the “ordinary activity of the child and everyday existence” caused the fractures.

It is particularly significant to note that defense counsel asked Drs. Kellam, Smith, and DeGraw whether additional x-rays of the child's ribs performed after November 14, 2007, the date that her last x-rays were taken, might have affected their opinions. The lengthy exchanges at trial concerning the potential effect of additional x-rays indicate that the three experts agreed that additional x-rays would only have assisted in their evaluation if new fractures were identified. However, they disagreed concerning the risk that additional x-rays would have posed to the child. Dr. DeGraw was of the opinion that additional x-rays would be “dangerous” because of the increased exposure to radiation. Dr. Smith testified that additional x-rays “certainly wouldn't hurt her, but that's still probably not medically necessary.” And Dr. Kellam testified that the risk to the child “is zero.”

The jury convicted defendant of second-degree child abuse, MCL 750.136b(3), and the trial court sentenced her to 5 years' probation, with 90 days in jail. Subsequently, 10 months after her conviction, defendant moved for a new trial, asserting that newly discovered evidence warranted that this motion be granted. Specifically, she submitted x-rays of RS performed in May 2009 and a radiology report from Dr. Donald Gibson, which identified “irregularities” on several ribs and asserted that such irregularities “may be due to old fractures.” Defendant also attached a supplemental report from Dr. Rothfeder, in which he contended that the new radiology report confirmed that “[RS] most likely suffered from metabolic bone disease when she came to this country.” In response to defendant's motion, the prosecutor submitted a letter from Dr. Gibson, which stated, “The changes in the ribs described in my report could be accounted for on the basis of past trauma. I did not, in my opinion, see any evidence on the films to suggest metabolic bone disease.” (Emphasis omitted.)

The trial court denied defendant's motion in a lengthy opinion and order, concluding that it could not find that the evidence “is in fact newly discovered, that the evidence is not cumulative, that the evidence would likely produce a different result at trial, or that Defendant could not, using reasonable diligence, have discovered and produced said evidence at trial.” In a divided opinion, the Court of Appeals disagreed, reasoning in relevant part that the proffered evidence was newly discovered and could not have been previously discovered with reasonable diligence. People v. Rao, unpublished opinion per curiam of the Court of Appeals, issued December 7, 2010 (Docket No. 289343), pp. 8–9, 11, 2010 WL 4977921. Given these determinations, the Court of Appeals reversed the trial court and remanded for an evidentiary hearing “to address whether the new evidence likely would have affected the outcome of defendant's trial.” Id. at 12. Judge Murray in dissent argued...