PEOPLE v. TERRELL, 289 Mich. App. 553

Borrello, J. Following a jury trial, defendant Tion Terrell was convicted of assault with intent to commit murder, MCL 750.83; being a felon in possession of a firearm, MCL 750.224f; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The prosecution appeals by leave granted an order granting defendant a new trial on the basis of newly discovered evidence.

The issue on appeal is whether the posttrial statements of a codefendant that exculpated the defendant constituted newly discovered evidence sufficient to warrant a new trial when the codefendant invoked his Fifth Amendment right not to testify at trial.

For the reasons set forth in this opinion, we adopt the rule expressed by the majority of federal circuit courts that when a defendant knew or should have known that a codefendant could provide exculpatory testimony, but did not obtain that testimony because the codefendant invoked the privilege against self-incrimination, the codefendant’s posttrial statements do not constitute newly discovered evidence, but are merely newly available evidence. Accordingly, we reverse the trial court’s order granting defendant a new trial and remand this matter to the trial court. I.

FACTS AND PROCEDURAL HISTORY This case arises from the nonfatal shooting of Deshawn Evans on October 28, 2007. On that date, Evans was on Yacama Street in Detroit, Michigan. Evans’s friend, Dana Hudson, was sitting in Hudson’s car having a friendly conversation with Evans. A few minutes later, another man, Reginald Myers, drove onto Yacama Street, and Evans and Myers had an argument. According to Evans, during or shortly after the argument with Myers, he received a telephone call from Derrick Steward, whose nickname was “Twin.” Twin informed him that he could come over and retrieve his cell phone charger.

Evans testified that he left to retrieve his charger and that as he left, he saw defendant, who was also his friend, turning onto Yacama Street in a white Impala. Although Evans asserted that he left to retrieve the cell phone charger from a home on Coventry Street and denied that he went to the home to obtain a gun, a defense witness testified that Evans came to the home and “basically asked everybody that was there” “for a pistol, a gun.” The witness testified that Twin gave Evans a gun. According to Evans, he returned to Yacama Street about 30 to 45 minutes later.

Evans testified that when he returned, defendant hit him in the face and head with a gun and then shot him twice, and Myers also shot him in both thighs. Another witness, who lived on Yacama Street, testified that after the shooting, a man drove up in a car, approached the victim, and asked: “ ‘What I want to know is where’s the gun. I know he had a gun because I gave him one.’ ” According to Evans, after they shot him, defendant and Myers ran to Hudson’s car, and the men drove off, with Hudson driving. Defendant and Hudson were tried together. Defendant was convicted of the offenses indicated earlier.

Hudson invoked his Fifth Amendment privilege against self-incrimination and was acquitted. Defendant moved for a new trial on the basis of newly discovered evidence in the form of the testimony of Derrick Steward. The trial court held a hearing on defendant’s motion. At the hearing, defendant presented the testimony of Steward and the testimony of defendant’s codefendant, Hudson, as well as affidavits signed by both men, in support of his motion. The trial court ruled that the testimony of Steward would have been cumulative and therefore did not warrant a new trial.

Defendant has not appealed the trial court’s ruling in this regard. What is at issue on appeal is the trial court’s granting of defendant’s motion for a new trial on the basis of the testimony of Hudson. At the hearing, Hudson acknowledged that he and defendant were close friends and had known each other since childhood. Hudson further testified that he was present on October 28, 2007, when Evans was shot and that he observed Evans in possession of a chrome and silver, black-handled nine-millimeter handgun before Evans was shot.

According to Hudson, only ten minutes elapsed between the time Evans initially left Yacama Street and the time he returned. Hudson saw Evans approach defendant and Myers and observed Evans pull the gun from underneath his shirt when he was about four feet away from them. According to Hudson, defendant and Evans struggled and fought over the gun, and the gun fell to the ground. Hudson asserted that Myers, not defendant, shot Evans with the gun that had fallen. Hudson testified that he drove away in his car, alone, after the shooting.

In granting defendant a new trial on the basis of Hudson’s testimony, the trial court found that although the testimony was not newly discovered evidence, it was not available to defendant at the time of trial: The seminal issue in this case from the standpoint of the Court is the unavailability, the impossibility of Mr. Dana Hudson’s testimony, which is supportive of the fact that Mr. Evans, at the time this incident occurred, was specifically armed and had drawn a handgun prior to this shooting taking place.... *** Addressing the testimony of Mr.

Hudson and the trial testimony of the defendant, the obligation to disprove self-defense is ostensibly that of the prosecution. It is not the obligation of the prosecution to disprove, but in this particular case, the defendant was totally denied the opportunity of presenting the testimony of Mr. Hudson which may have been corroborative of the anticipated testimony of [defendant], had ■ he given testimony concerning self-defense. Because Mr. Hudson had the right to assert his Fifth Amendment right and therefore denied the defendant Terrell his testimony, which clearly lent to the fact that Mr.

Evans was armed at the time, had brandished the handgun prior to the altercation between he and Mr. Meyers [sic], and most importantly that the shooting was not at the hands of [defendant], but at the hands of Mr. Meyers [sic], bears directly upon the facts of this particular case. Even though this may not have been newly discovered evidence, it certainly was not available to the defendant at the time this particular trial took place, it was therefore incapable of the defendant Terrell to have presented that testimony and in the interest of justice the Court grants the defendant Terrell a new trial.

In an opinion and order dated July 14, 2008, the trial court granted defendant’s motion for a new trial on the basis of Hudson’s testimony. This Court granted the prosecution’s request for leave to appeal. II. ANALYSIS A. STANDARD OF REVIEW We review for an abuse of discretion a trial court’s decision to grant or deny a new trial. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008). An abuse of discretion occurs when the trial court’s decision is outside the range of principled outcomes. People v Blackston, 481 Mich 451, 467; 751 NW2d 408 (2008).

Underlying questions of law are reviewed de novo, People v Washington, 468 Mich 667, 670-671; 664 NW2d 203 (2003), while atrial court’s factual findings are reviewed for clear error, MCR 2.613(C); People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). “A trial court may grant a new trial to a criminal defendant on the basis of any ground that would support reversal on appeal or because it believes that the verdict has resulted in a miscarriage of justice.” People v Jones, 236 Mich App 396, 404; 600 NW2d 652 (1999), citing MCR 6.431(B).

Newly discovered evidence does not require a new trial when it would merely be used for impeachment purposes or when it relates only to a witness’s credibility. People v Davis, 199 Mich App 502, 516; 503 NW2d 457 (1993). B.

NEW TRIAL A new trial is warranted on the basis of newly discovered evidence when the defendant satisfies a four-part test: “(1) ‘the evidence itself, not merely its materiality, was newly discovered’; (2) ‘the newly discovered evidence was not cumulative’; (3) ‘the party could not, using reasonable diligence, have discovered and produced the evidence at trial’; and (4) the new evidence makes a different result probable on retrial.” Cress, 468 Mich at 692, quoting People v Johnson, 451 Mich 115, 118 n 6; 545 NW2d 637 (1996).

At issue in this case is whether Hudson’s testimony satisfied the first element of this test, i.e., whether his testimony was newly discovered. Hudson chose to invoke his Fifth Amendment right not to incriminate himself and therefore did not testify at trial. After trial, at which defendant was convicted and Hudson was acquitted, Hudson made statements that Evans possessed a gun and struggled with defendant at the time of the shooting and that Myers perpetrated the actual shooting of Evans, not defendant.

Defendant did not prepare a brief on appeal, but argued before the trial court that Hudson’s posttrial statements constituted newly discovered evidence. According to the prosecution, Hudson’s posttrial statements did not constitute newly discovered evidence, but were merely newly available evidence, which is not sufficient to warrant a new trial.

Relying on the majority of federal circuit courts that have considered this issue, the prosecution argues that newly available evidence does not equate with newly discovered evidence and, as a consequence, the trial court’s order granting defendant a new trial on the basis of Hudson’s statements should be reversed. For reasons that we will explain more fully later, we agree with the majority of federal circuit courts that have decided this issue, and we conclude that while Hudson’s proffered testimony was newly available evidence, it was not newly discovered evidence sufficient to warrant a new trial.

Accordingly, we hold that defendant has failed to establish the first element in the four-part test set forth by our Supreme Court in Cress to determine whether a new trial is warranted on the basis of newly discovered evidence. Pursuant to FR Crim P 33, nearly all the federal circuits have articulated the same test to determine whether a new trial is warranted on the basis of newly discovered evidence.

Each [circuit] essentially requires that: (1) the evidence be newly discovered after trial; (2) facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching; and (5) the evidence would likely result in an acquittal. [United States v Owen, 500 F3d 83, 88 (CA 2, 2007).] Thus, the test adopted by the federal courts in interpreting FR Crim P 33 essentially mirrors the test for a new trial on the basis of newly discovered evidence that our Supreme Court articulated in Cress.

See Cress, 468 Mich at 692.

A majority of federal circuits have concluded that a codefendant’s posttrial or postconviction willingness to provide exculpatory testimony constitutes newly available evidence, not newly discovered evidence, and that if the defendant knew or should have known of the evidence before or during trial, the evidence was not discovered after trial and a new trial is not warranted: [A] decided majority of circuits have held that, when a defendant is aware that his codefendant could provide exculpatory testimony but is unable to obtain that testimony because the codefendant invokes his privilege against self-incrimination prior to and during trial, the codefendant’s postconviction statement exculpating the defendant is not “newly discovered evidence” within the meaning of Rule 33. [Owen, 500 F3d at 88.] Our review of the federal circuit court caselaw regarding this issue confirms that most federal circuit courts agree that newly available evidence is not synonymous with newly discovered evidence sufficient to warrant a new trial.

See, e.g., United States v Lofton, 333 F3d 874, 875-876 (CA 8, 2003) (holding that belated exculpatory testimony by a codefendant who did not testify at trial was not newly discovered evidence warranting the granting of a new trial); United States v Jasin, 280 F3d 355, 368 (CA 3, 2002) (following “the majority rule in concluding that a codefendant’s testimony known to the defendant at the time of trial cannot be considered ‘newly discovered evidence’ under Rule 33, regardless of the codefendant’s unavailability during trial because of invocation of his Fifth Amendment privilege”); United States v Theodosopoulos, 48 F3d 1438, 1448-1449 (CA 7, 1995) (holding that evidence was not newly discovered when the defendant was aware of the witness’s testimony during trial); United States v Glover, 21 F3d 133, 138 (CA 6, 1994) (holding that evidence was not newly discovered when the defendant was aware of the evidence before trial, but the witness asserted his privilege against self-incrimination when called to testify at the defendant’s trial); United States v Muldrow, 19 F3d 1332, 1339 (CA 10, 1994) (holding that “[i]f a former cpdefendant who originally chose not to testify subsequently comes forward and offers testimony exculpating a defendant, the evidence is not newly discovered if the defendant was aware of the proposed testimony prior to trial”); United States v Reyes-Alvarado, 963 F2d 1184, 1188 (CA 9, 1992) (affirming the view that when a defendant who chose not to testify subsequently comes forward to offer testimony exculpating a codefendant, the evidence is not newly discovered); United States v DiBernardo, 880 F2d 1216, 1224 (CA 11, 1989) (holding that newly available testimony of a witness was not considered newly discovered evidence when the defendant was aware of the evidence before trial); United States v Metz, 652 F2d 478, 480 (CA 5, 1981) (holding that because defense counsel was aware of the codefendant’s testimony before trial, that testimony could not be considered newly discovered even if the codefendant was unavailable to testify at their joint trial because he invoked the Fifth Amendment).

In Owen, the United States Court of Appeals for the Second Circuit based its decision that newly available evidence did not constitute newly discovered evidence on the defendant’s awareness of the evidence before trial and the plain meaning of the word “discover”: One does not “discover” evidence after trial that one was aware of prior to trial. To hold otherwise stretches the meaning of the word “discover” beyond its common understanding. See Webster’s Third New Int’l Dictionary 647 (2002) (defining “discover” as “to make known (something secret, hidden, unknown, or previously unnoticed)”).

We are not inclined to expand the scope of Rule 33 beyond its textual limits. See Jasin, 280 F.3d at 368 (noting that [the] rule that codefendant’s testimony known to defendant at trial cannot be newly discovered “is anchored in the plain meaning of the text of Rule 33....

The unambiguous language of Rule 33 ... contemplates granting of a new trial on the ground of ‘newly discovered evidence’ but says nothing about newly available evidence”).... [Owen, 500 F3d at 89-90.] Other federal circuits that have rejected the notion that newly available evidence constitutes newly discovered evidence have recognized that a defendant’s awareness of the existence of evidence affects the determination regarding whether evidence was newly discovered or merely newly available.

As the Sixth Circuit noted in United States v Turns, 198 F3d 584, 587 (CA 6, 2000), “[t]he key to deciding whether evidence is ‘newly discovered’ or only ‘newly available’ is to ascertain when the defendant found out about the information at issue. A witness’s shifting desire to testify truthfully does not make that witness’s testimony ‘newly discovered’ evidence.” Similarly, the Sixth Circuit stated in Glover: “[The defendant] acknowledges that he was well aware of [the witness’s] testimony prior to trial. .. .

While [the witness’s] testimony may have been newly available, it was not in fact ‘newly discovered evidence’ within the meaning of Rule 33.” Glover, 21 F3d at 138. In addition, in DiBernardo, the Eleventh Circuit affirmed the denial of the defendant’s motion for new trial, concluding that there was not newly discovered evidence sufficient to warrant a new trial: “Here, [the defendant was] well aware of [the witness’s] proposed testimony prior to trial. Therefore, the testimony cannot be deemed ‘newly discovered evidence’ within the meaning of Rule 33.” DiBernardo, 880 F2d at 1224.

This Court similarly has a long history of rejecting defendants’ claims that evidence that the defendant knew existed before trial constituted newly discovered evidence. As far back as People v Lewis, 31 Mich App 433, 437; 188 NW2d 107 (1971), this Court stated: Defendant next claims a right to a new trial based on newly-discovered evidence. Mr. Warren, a fellow inmate of defendant at Jackson Prison before trial, issued a sworn statement alleging that the trial testimony of one Mr. Fisk was a complete fabrication.

However, this sworn statement also admits that defendant was well aware of Warren’s information prior to trial. This information cannot be classified as newly discovered. There are also legal policy considerations that support the conclusion that a codefendant’s posttrial testimony does not constitute newly discovered evidence when the defendant was aware of the evidence before trial.

The first of these legal policy considerations involves the lack of reliability of a codefendant’s post-trial statements and the concern that courts might encourage perjury by granting a new trial to another codefendant on the basis of such unreliable evidence. In Jasin, the Third Circuit explained this policy consideration: Courts generally consider exculpatory testimony offered by codefendants after they have been sentenced to be inherently suspect.

Indeed, “a court must exercise great caution in considering evidence to be ‘newly discovered’ when it existed all along and was unavailable only because a co-defendant, since convicted, had availed himself of his privilege not to testify.” United States v. Jacobs, 475 F.2d 270, 286 n. 33 (2d Cir.1973). The rationale for casting a skeptical eye on such exculpatory testimony is manifest. “It would encourage perjury to allow a new trial once co-defendants have determined that testifying is no longer harmful to themselves.

They may say whatever they think might help their co-defendant, even to the point of pinning all the guilt on themselves, knowing they are safe from retrial. Such testimony would be untrustworthy and should not be encouraged.” [Jasin, 280 F3d at 365, quoting Reyes-Alvarado, 963 F2d at 1188.] Although defendant’s codefendant in this case was acquitted rather than convicted, the policy rationale against encouraging perjury is no less applicable.

Irrespective of whether a codefendant’s trial ends in an acquittal or a conviction, the codefendant cannot be retried, and in either case posttrial testimony from a codefendant would be equally untrustworthy. Hudson’s testimony would be no more trustworthy than the testimony of a codefendant who had been convicted.

Another legal policy consideration that supports the conclusion that newly available evidence does not constitute newly discovered evidence concerns the potential for defendants to engage in a form of legal gamesmanship through “judicial sandbagging.” In Turns, the Sixth Circuit explained this concern: “Baumann’s evidence is not newly discovered because allowing criminal defendants to raise such allegations [i.e., that an uncalled witness’s proposed testimony is newly discovered evidence] after a judgment of conviction has been entered... would permit them to “sandbag” the fairness of the trial by withholding or failing to seek material, probative evidence and later attempting to collaterally attack their convictions ....” [Turns, 198 F3d at 588, quoting Baumann v United States, 692 F2d 565, 580 (CA 9, 1982).] Although the majority of federal circuit courts have ruled that that a codefendant’s posttrial or postconviction testimony did not constitute newly discovered evidence sufficient to warrant a new trial when the defendant was aware of the evidence before trial, the First Circuit has reached a contrary conclusion on this issue.

See United States v Montilla-Rivera, 115 F3d 1060, 1066 (CA 1, 1997). In Montilla-Rivera, the First Circuit held that the trial court erred by denying the defendant’s motion for new trial, ruling that the posttrial testimony of codefendants who did not testify at trial because they exercised their Fifth Amendment privilege constituted newly discovered evidence.

In so ruling, the First Circuit stated that its decision was based on years of precedent: “This circuit has, for almost twenty years, held that the ‘newly discovered’ language of Rule 33 encompasses evidence that was ‘unavailable.’ ” Id. at 1066, citing Vega Pelegrina v United States, 601 F2d 18, 21 (CA 1, 1979).

The First Circuit reasoned that the codefendants were not available to testify given the defendant’s inability to compel their testimony in light of their assertion of the Fifth Amendment privilege and stated that “there seems little distinction between evidence which a defendant could not present because he did not know of it and evidence which he could not present because the witness was unavailable despite exercising due diligence.” Montilla-Rivera, 115 F3d at 1066. We are not persuaded by the First Circuit’s minority position regarding this issue.

To the contrary, we are persuaded by the majority of federal circuit courts that a codefendant’s posttrial or postconviction testimony does not constitute newly discovered evidence sufficient to warrant a new trial when the defendant was aware of the evidence before trial, and we hold that MCR 6.431(

B) does not authorize the grant of a new trial on the basis of such evidence because it is not newly discovered, but merely newly available. In so holding, we are mindful that courts “must exercise great caution in considering evidence to be ‘newly discovered’ when it existed all along and was unavailable only because a co-defendant, since convicted, had availed himself of his privilege not to testify.” Jacobs, 475 F2d at 286 n 33.

Although neither this Court nor our Supreme Court has issued an opinion regarding this issue, we note that our Supreme Court has stated that the first prong of the test to determine whether a defendant is entitled to a new trial on the basis of newly discovered evidence is whether “ ‘the evidence itself, not merely its materiality, was newly discovered[.]’ ” Cress, 468 Mich at 692, quoting Johnson, 451 Mich at 118 n 6. This is consistent with the holding in Owen that “[o]ne does not ‘discover’ evidence after trial that one was aware of prior to trial.

To hold otherwise stretches the meaning of the word ‘discover’ beyond its common understanding.” Owen, 500 F3d at 89-90. We are aware of the fact that when a codefendant invokes the privilege against self-incrimination and refuses to testify, a defendant can be denied the benefit of any potentially exculpatory testimony the codefendant might have provided. See Owen, 500 F3d at 91. This is a consequence of the Fifth Amendment privilege. However, we stress that in such cases there exist proper procedural remedies.

As noted in Owen, a trial court could grant a severance if it is persuaded that the deprivation would cause the defendant prejudice. Id. The court in Owen also noted that in the severed trial the prosecutor could confer limited immunity on the codefendant so that the codefendant might testify truthfully and that, as a last resort, a defendant could take the stand and convey his or her story. Id. at 92.

Indeed, pursuant to MCR 6.121(C), in this case, defendant would have been entitled to a severance if he had made a “showing that severance is necessary to avoid prejudice to substantial rights of the defendant.” This is not a case in which defendant had no clue of the existence of Hudson’s testimony before trial.

Our review of the record leads us to conclude that defendant was, or should have been, aware of Hudson’s testimony before trial and that he should have engaged in due diligence and employed the proper procedural avenues, including trial severance and limited immunity for Hudson, to secure Hudson’s testimony at trial. Had he done so, he would not have been denied the benefit of any potentially exculpatory testimony that Hudson could have offered.

We decline to characterize Hudson’s testimony as newly discovered evidence because to do so would negate defendant’s duty to engage in due diligence to secure the proffered testimony and effectively condone defendant’s attempt at judicial sandbagging. Having adopted the view of the majority of federal circuits, we must determine what defendant knew about the evidence at issue before and during trial. The Second Circuit in Owen held that the pertinent inquiry is whether the defendant knew or should have known that the codefendant could offer material testimony regarding the defendant’s role in the charged crime.

Owen, 500 F3d at 91. Application of this test requires an examination of the facts presented in this case to ascertain whether defendant knew or should have known that his codefendant had exculpatory information. Examination of the record in the instant case reveals that although Hudson testified at the hearing on defendant’s motion for a new trial that he had never spoken with defense counsel about the case until it was over, defendant knew or should have known that Hudson could have offered material testimony regarding defendant’s role in the charged crime.

Defendant and Hudson had known each other since childhood. Hudson testified that he and defendant were close friends. According to Hudson, he was present with defendant at the scene of the shooting. Even if Hudson and defendant never had a conversation about Hudson’s testimony before or during their trial, defendant was certainly aware at all times that Hudson had the ability to provide his proffered testimony. Therefore, the record clearly leads us to conclude that defendant knew or should have known before trial that Hudson could have provided the testimony.

In holding that newly available evidence does not constitute newly discovered evidence sufficient to warrant a new trial, we note that our holding does not preclude the possibility that a codefendant’s posttrial or postconviction exculpatory statements might qualify as newly discovered evidence under MCR 6.431(B). There may be cases in which such evidence does indeed constitute newly discovered evidence.

However, in this case, defendant knew or should have known that his codefendant could offer material testimony regarding defendant’s role in the charged crime; therefore, defendant cannot claim that he “discovered” that evidence only after trial. Consequently, because defendant knew or should have known that his codefendant could offer material testimony about defendant’s role in the charged crime, his inability or unwillingness to procure that testimony before or during trial should not be redressed by granting him a new trial.

Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction. Meter, P.J., concurred. Tion Terrell was tried with codefendant, Dana Hudson, who was acquitted on all charges. Another codefendant, Reginald Myers, was included on the felony information, but he was not tried with defendant and Hudson. At trial, Evans identified as “Twin” the individual who called him, and asserted that he did not know Twin’s real name. However, subsequent testimony revealed that Twin’s real name is Derrick Steward.

The testimony referred to the street on which the home was located both as Coventry and Covington. Defendant’s motion for a new trial is not included in the lower court record. We have gleaned defendant’s arguments in support of his motion for a new trial from the relevant motion hearings and the prosecution’s response to the motion. People v Terrell, unpublished order of the Court of Appeals, entered August 15, 2008 (Docket No. 286834). Defendant did not file a brief on appeal. Neither this Court nor our Supreme Court has decided this issue.

Therefore, it is proper to consider federal circuit court decisions as persuasive authority. Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004). FR Crim P 33 states: (

a) Defendant’s Motion. Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment. (

b) Time to Pile.

(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.

(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty. See, generally, Note, Interpreting the phrase “newly discovered evidence”: May previously unavailable exculpatory testimony serve as the basis for a motion for a new trial under Rule 33?, 77 Fordham L R 1095 (2008).

As the Second Circuit observed in Owen, “the first prong of the First Circuit’s Rule 33 test is broader than that of the other circuits, requiring that ‘the evidence was unknown or unavailable to the defendant at [the] time of trial.’ ” Owen, 500 F3d at 89, quoting Montilla-Rivera, 115 F3d at 1066. MCR 6.431(

B) governs motions for new trial and provides, in relevant part: Reasons for Granting. On the defendant’s motion, the court may order a new trial on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice. The court must state its reasons for granting or denying a new trial orally on the record or in a written ruling made a part of the record. Another consequence of invocation of the Fifth Amendment privilege is that a defendant may not comment on a codefendant’s refusal to take the stand. See Owen, 500 F3d at 92 n 6.

We observe that we would reach the same result in this case even if we were to adopt the First Circuit’s reasoning because the record in this case does not support a conclusion that “the witness was unavailable despite [the defendant’s] exercising due diligence.” Montillo-Rivera, 115 F3d at 1066. With due diligence, defendant could have remedied the potential denial of the benefit of Hudson’s exculpatory evidence by seeking trial severance and asking the prosecutor to grant Hudson limited immunity so that Hudson could testify truthfully without fear of self-incrimination.

No one asked Hudson if he had spoken to defendant about his testimony before or during trial.