Order Michigan Supreme Court
Lansing, Michigan
February 1, 2008 Clifford W. Taylor,
Chief Justice
132763 & (17)(18)(19) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 132763
COA: 269911
Kent CC: 00-009779-FC
DAVID E. DUYST,
Defendant-Appellant.
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On order of the Court, the motion for miscellaneous relief is GRANTED. The
application for leave to appeal the October 26, 2006 order of the Court of Appeals is
considered, and it is DENIED, because the defendant has failed to meet the burden of
establishing entitlement to relief under MCR 6.508(D). The motion to remand and the
motion to release physical evidence for independent testing are DENIED.
CAVANAGH, J., dissents and states as follows:
I would remand this case to the Kent Circuit Court for entry of an order granting
the defendant’s request for release and testing of the physical evidence specified in Issue
VI of the defendant’s application for leave to appeal to this Court and described in his
motion for testing. After such tests are complete, I would permit defendant to file a
motion in the circuit court seeking the appropriate evidentiary hearing(s) and to renew his
motion for relief from judgment. I would further hold that the defendant’s application for
leave to appeal any decision by the circuit court regarding motions filed under this order
would not be barred by MCR 6.502(G) or MCR 6.508(D)(2).
KELLY, J., dissents and states as follows:
Defendant moved for forensic testing of evidence and for an evidentiary hearing.
The trial court considered these motions along with defendant’s motion for relief from
judgment. It denied all of them for failure to establish good cause under MCR 6.508(D).
2
The offer of proof that defendant made is quite extraordinary and separates his
motion from the typical motions for relief from judgment. Defendant’s offer of proof
indicates that the expert testimony at his trial was unreliable because it was based on
incomplete testing. Defendant asserts that his trial counsel was ineffective for failing to
investigate, request testing, or provide adequate rebuttal expert testimony. Defendant’s
trial counsel represented him on appeal and did not make a claim for ineffective
assistance of counsel or raise any issues related to the handling of expert testimony.
Hence, counsel may have been ineffective at two levels.
I believe that the trial court should not have denied defendant’s motion for relief
from judgment for failure to establish good cause. Defendant could not establish good
cause without testing the evidence. I would remand the case so that the trial court could
order independent testing of the evidence and hold an evidentiary hearing under MCR
6.508(C) on the issue of ineffective assistance of counsel. Only after that would the trial
court be in a position to rule on defendant’s motion for relief from judgment.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 1, 2008 _________________________________________
d0129 Clerk