SC: 128122, COA: 245107.

On order of the Court, the application for leave to appeal the January 4, 2005 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE only that portion of the Court of Appeals decision that ordered a new trial based on newly discovered evidence and REMAND this case to the Wayne Circuit Court for a determination, within 28 days of the date of this order, of whether Joseph Moore's account of the shooting is newly discovered evidence that entitles defendant to a new trial. In ruling that defendant was entitled to a new trial, the Court of Appeals decided an issue that in the first instance properly should have been decided by the trial court. In all other respects, leave to appeal is DENIED.

We do not retain jurisdiction.