McCORMACK, J.
In this case we consider the proper test for applying the United States Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In People v. Lester, 232 Mich.App. 262, 591 N.W.2d 267 (1998), the Court of Appeals adopted a four-factor test that added a requirement of defendant diligence to the traditional Brady test. Neither the Supreme Court of the United States nor this Court has endorsed this element.
We hold that a diligence requirement is not supported by Brady or its progeny. Thus, we overrule Lester and reaffirm the traditional three-factor Brady test. Because the defendant cannot establish that the suppressed evidence was material, however, his Brady claim nevertheless fails. Accordingly, we affirm the result reached by the Court of Appeals.
The defendant's convictions for felony murder, MCL 750.316(1)(b), and possession of a firearm during the commission of a felony, MCL 750.227b, arose out of the shooting death of Kevin Harris in Pontiac, Michigan, on June 29, 2008. Harris was a cocaine dealer, who often used Jared Chambers as a middleman to connect with buyers. Chambers occasionally contacted Harris through Harris's girlfriend, Heather Holloway.
The Pontiac Police Department conducted an investigation and interviewed Holloway on June 29 and July 2, 2008, and Chambers on June 30, 2008. All of these interviews were video recorded. Holloway also produced two written statements, one after each interview, and Detective Steven Wittebort summarized the interviews in an incident report. Holloway's written statements and the police report summarizing them were provided to defense counsel before trial, but the video recordings were not.
Holloway was more forthcoming in her second interview than in her first. At her first interview, Holloway told the police that two unknown men walked up to the car and shot Harris. During her second interview, which took place after Harris died on June 30, 2008, Holloway said that Harris had been shot as part of a drug deal. Although Holloway identified the defendant in a photo array, neither of Holloway's written statements mentioned Chambers's presence. According to Wittebort's report, Holloway said that she did not get a good look at the shooter but that she could identify him. The report also revealed that she confidently selected the defendant's photo from an array.
The defendant never denied that he was present at the scene of the shooting, and most of the facts were likewise not in dispute. The sole question at trial concerned the identity of the shooter. Only the defendant, Holloway, and Chambers witnessed the shooting and, unsurprisingly, they did not agree about what happened: the defendant identified Chambers as the shooter while Holloway and Chambers identified the defendant.
On the last day of trial, the prosecution called Wittebort as its final witness. When questioned, Wittebort was surprised that Holloway's second written statement did not confirm that she had mentioned Chambers and was confident that the video recordings would verify his recollection. He was also surprised to learn that the recordings had not been provided to the defendant. On March 11, 2010, the defendant was convicted of felony murder and felony-firearm.
On April 13, 2010, defense counsel filed a motion for a new trial and requested a copy of the interview recordings. Later, counsel amended the motion to add claims of ineffective assistance of counsel and prosecutorial misconduct regarding the failure to provide the recorded statements. There was no dispute that the defendant never had the recordings.
The Court of Appeals reversed the trial court. People v. Chenault, unpublished opinion per curiam of the Court of Appeals, issued November 27, 2012 (Docket Nos. 309384 and 310456). The Court of Appeals analyzed the Brady claim using the four-factor test articulated in Lester. The Court held that trial counsel had not exercised due diligence, and that the suppressed evidence was neither favorable nor material. It also held that the defendant was not denied the effective assistance of counsel because there was no prejudice.
On June 5, 2013, this Court granted leave to appeal, directing the parties to address:
The Supreme Court of the United States held in Brady that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. In identifying the essential components of a Brady violation, the Supreme Court has articulated a three-factor test:
Stated differently, the components of a "true Brady violation," are that: (1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material. Id.
The contours of these three factors are fairly settled. The government is held responsible for evidence within its control, even evidence unknown to the prosecution, Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), without regard to the prosecution's good or bad faith, United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ("If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor."). Evidence is favorable to the defense when it is either
In contrast to the three-factor Brady test articulated by the United States Supreme Court, our Court of Appeals adopted a four-factor Brady test in 1998:
The inclusion of the second factor is the only difference between the Lester test and the test articulated in Strickler. Although Lester did not involve a question of a defendant's diligence, the Court of Appeals relied on authority from the United States Court of Appeals for the Eleventh Circuit for this additional requirement, now widely referred to as a "due diligence" or "reasonable diligence" factor. This test has been applied by our Court of Appeals since Lester.
This is the first occasion on which this Court has examined the merits of the diligence requirement. Some understanding of its doctrinal history is useful. As noted, the Court of Appeals borrowed the four-factor test from the Eleventh Circuit's opinion in Meros, 866 F.2d at 1308, which in turn cited another Eleventh Circuit case, United States v. Valera, 845 F.2d 923, 927-928 (C.A.11, 1988). In Valera, the Eleventh Circuit relied on two cases from the Fifth Circuit, United States v. Cravero, 545 F.2d 406, 420 (C.A.5, 1976), and United States v. Prior, 546 F.2d 1254, 1259 (C.A.5, 1977). Both of these Fifth Circuit cases in turn relied on authority from other circuits.
We disagree with the prosecution's suggestion that the diligence requirement is consistent with or implied by United States Supreme Court precedent. Nor do we conclude that a diligence requirement is consistent with the Brady doctrine generally. We believe that the concerns that a diligence requirement might address are already confronted in the context of Brady's suppression requirement as well as in the Sixth Amendment's guarantee of the effective assistance of counsel. For these reasons, we reject the addition of a diligence requirement to the Brady test and we overrule Lester.
We are not persuaded by the prosecution's reliance on Agurs and Kyles for the proposition that the diligence requirement is merely a clarification of existing Supreme Court precedent. The prosecution argues that the phrase "unknown to the defense," as used in these two cases, suggests that the Supreme Court would affirm the addition of a diligence requirement to the Brady analysis. Specifically, the argument goes, the phrase "unknown to the defense" implies that Brady places some sort of burden onto the defense to discover Brady information when possible. We do not share the prosecution's understanding of the meaning of this phrase in either case.
In Agurs, the Supreme Court identified three different contexts in which Brady applies, stating that "[e]ach involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." Agurs, 427 U.S. at 103, 96 S.Ct. 2392. The phrase is best understood as a general description of what constitutes Brady evidence, instead of the imposition of a new hurdle for defendants.
The Kyles Court held that "showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation without more." Kyles, 514 U.S. at 437, 115 S.Ct. 1555. The phrase is used in a larger discussion of the materiality requirement and the prosecution's duty to gauge the likely effect of potential Brady evidence: although the mere showing that the prosecution knew of evidence that was unknown to the defense does not amount to a Brady showing by itself, Brady imposes on the prosecution "a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Id. Read in context, this language is meant to define the prosecution's duty both to become aware of evidence in the government's possession and to weigh the materiality of evidence.
Moreover, we do not believe that the goals of Brady counsel in favor of adopting a diligence requirement. The Supreme Court has consistently stated that, when confronted with potential Brady evidence, the prosecution must always err on the side of disclosure. Kyles, 514 U.S. at 439, 115 S.Ct. 1555; Agurs, 427 U.S. at 108, 96 S.Ct. 2392. Just recently the Supreme Court underscored this obligation:
In fact, we conclude that a diligence rule of the sort adopted by the Court of Appeals in Lester is contrary to Brady, i.e., a rule requiring a defendant to show that counsel performed an adequate investigation in discovering the alleged Brady material. The Brady rule is aimed at defining an important prosecutorial duty; it is not a tool to ensure competent defense counsel. Adding a diligence requirement to this rule undermines the fairness that the rule is designed to protect. However, as we previously explained, evidence that the defense knew of favorable evidence, will reduce the likelihood that the defendant can establish that the evidence was suppressed for purposes of a Brady claim.
We decline to adopt the four-factor Lester test, as we believe it is not doctrinally supported and undermines the purpose of Brady. We hold that the controlling test is that articulated by the Supreme Court
We now apply the controlling Brady test to the defendant's claim. As an initial matter, we note that the prosecution has conceded that the evidence in question was suppressed.
In contrast to the question of materiality, the favorability of evidence is a simple threshold question that need not delay us long. Only three people witnessed the shooting: Holloway, Chambers, and the defendant. Other than the testimony of Holloway and Chambers, there was no other evidence at trial that identified the defendant as the shooter. Because the videotaped statements could have impeached Holloway and Chambers as well as undermined the strength of Holloway's identification, the evidence was favorable to the defense.
We are not convinced, however, that the suppressed evidence was material. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434, 115 S.Ct. 1555. We conclude that, even in the absence of the suppressed evidence, the defendant received a trial that resulted in a verdict worthy of confidence, because the cumulative effect of the evidence was not material.
We disagree with the defendant that Wittebort's promises of leniency to both Holloway and Chambers were material. While the detectives assured both witnesses that they would not be investigated or charged for drug crimes, these promises of leniency were not conditioned on any behavior on the part of the witnesses. Indeed, Chambers decided not to make any written statement even after such promises were made, and, likewise, any alleged promises of leniency occurred after Chambers implicated himself in the drug activity. For her part, Holloway also admitted that she lied in her first interview, promises of leniency notwithstanding, and in
We are similarly unconvinced that the evidence would have undermined Holloway's identification of the defendant in a material way. While there were minor discrepancies between the characterization of Holloway's identification as expressed in the disclosed material and at trial as contrasted with her recorded identification, she was able to quickly identify the defendant as the shooter in her second interview.
Finally, we disagree with the defendant that the suppressed evidence supports his trial theory that Chambers was the shooter, and that Holloway only identified the defendant as the shooter out of fear of Chambers. Although Holloway was not forthright in her first statement about Chambers's involvement, in her second interview she expressed confidence that Chambers must have been involved. If Holloway were frightened of Chambers to the extent that she would implicate an innocent third party, she would not have engaged in a discussion with the police about Chambers's own culpability. The suppressed evidence did not contain information that leads us to conclude that defense counsel would have asserted the defense that Holloway misidentified the defendant, rather than the cover-up theory that defense counsel pursued at trial. Furthermore, another witness placed the defendant on the side of Harris's car where the shooter indisputably stood.
We therefore conclude that, even in the absence of the suppressed evidence, the defendant received a trial that resulted in a verdict worthy of confidence. The defendant's Brady claim must fail because the suppressed evidence was not material to his guilt.
The defendant also raises a claim that trial counsel was ineffective for failing to investigate and acquire the video recordings during trial. Whether a defendant received ineffective assistance of counsel presents a mixed question of fact and law. People v. Armstrong, 490 Mich. 281, 289, 806 N.W.2d 676 (2011). A trial court's factual findings are reviewed for clear error; questions of law are reviewed de novo. Id. We have determined that the defendant cannot establish a Brady violation because the suppressed evidence was not, in sum, material. As Brady materiality is assessed under the same "reasonable probability" standard that is used to assess prejudice under Strickland v. Washington,
We conclude that Brady does not support the adoption of a diligence requirement and we therefore overrule Lester. In order to establish a Brady violation, a defendant need only demonstrate that the government suppressed evidence that is both favorable to the defendant and material. Because the defendant cannot establish that the suppressed evidence in this case was material, he cannot prevail on either his Brady claim or his claim of ineffective assistance of counsel. Therefore, we affirm the result reached by the Court of Appeals.
YOUNG, C.J., and MICHAEL F. CAVANAGH, MARKMAN, MARILYN J. KELLY, ZAHRA, and VIVIANO, JJ., concurred with McCORMACK, J.