People v. Pace
People v. Pace
Opinion of the Court
Following a jury trial in the Washtenaw County Circuit Court, defendant was convicted of assault with a dangerous weapon without the intent to commit murder or the intent to inflict great bodily harm in contravention of MCL 750.82; MSA 28.277. Defendant was sentenced to a two to four-year term of imprisonment, with the recommendation that he be enrolled in an alcohol-improvement program.
The charge arose out of a family squabble. The complainant, Kelly Gene Hamilton, testified that he had sold a pair of speakers to Sandra Pace, his sister-in-law. Carl Pace, the defendant, was the former husband of Sandra. Despite their divorce, Sandra stated that she and Carl were still in love.
According to Mr. Hamilton and his wife, Nancy
Sandra Pace’s testimony concerning the purchase of the speakers differed from that of the Hamiltons. She indicated that she had contracted to pay $150 for the speakers, that she had already paid $300 for them, and that the Hamiltons "were saying that I owed $50 more”. Mrs. Pace thought that the company that originally sold the speakers to the Hamiltons may have miscalculated the total payments. Consequently, she asked Mrs. Hamilton for the phone number of the selling merchant. Mrs. Hamilton, however, took this request as an accusation that she was trying to "rip off” an additional $50. As a result of this belief, she told Mrs. Pace just to forget the remaining debt.
Testimony showed that on November 6, 1977, Carl and Sandra Pace were visiting at the Hamilton residence. Defendant and Mr. Hamilton got into an argument over the speakers, and the Paces were asked to leave. At this point, the testimony diverges concerning exactly what happened and why.
According to the Hamiltons, when defendant was asked to leave, he reached into his pocket and pulled out a hunting knife with a broken handle or blade. Defendant and Mr. Hamilton then began to wrestle. Ultimately, defendant hit Hamilton across the head with a shoe. As a result of the blow, Hamilton needed four stitches.
Mrs. Pace stated that, after Hamilton told defendant to leave, the Paces gathered up their belongings and headed for their car. Mr. Hamilton stood in the hallway with a stick, and defendant stood in the front doorway. Mrs. Pace left the house for the automobile, believing that defendant was following her. When she got to the car and noticed he was not there, she returned to the Hamiltons’ mobile home. At this time, she noticed Mrs. Hamilton stabbing at defendant. She saw scratches on defendant caused by this stabbing. At the time of the altercation, Mrs. Pace was on methadone.
Defendant stated that he had been using the knife in question to "install this wire harness” on a car in the afternoon. While not in use, the knife was kept inside his wallet. At the Hamiltons, defendant told complainant that the speakers in dispute "weren’t too good”. This enraged Mr. Hamilton. When Hamilton began to come toward defendant with what appeared to be a "little baseball bat”, he threw his shoe. The shoe hit Hamilton in the forehead, resulting in the injury. In the meantime, Mrs. Hamilton stabbed defendant with a knife in the neck and shoulder. After she grabbed him from behind, defendant drew out his knife to scare her off.
Defendant contends that reversible error was committed when the prosecutor cross-examined him with statements not produced in violation of a discovery order. The discovery order provided in pertinent part:
"IT IS HEREBY ORDERED, that the Prosecuting Attorney for Washtenaw County immediately disclose and provide to the Washtenaw County Public Defender the following:
"2. A verbatim transcript and any summarized version, of all statements, admissions, confessions, or utterances of the defendant whether tape recorded, handwritten, or orally preserved, and whether made to police or lay witnesses, and whether exculpatory, inculpatory, or neutral.
"IT IT [sic] IS FURTHER ORDERED, that the Prosecuting Attorney for Washtenaw County has a continuing duty to provide to the defense counsel any of the above-mentioned discoverable materials which become known to the prosecution or police after the entry of this order.
"IT IS FURTHER ORDERED, that failure on the part of the Prosecuting Attorney for the County of Washtenaw to comply with the above Order, shall result in the suppression of all evidence and statements which were ordered to be provided to the defense counsel. Any evidence or statement suppressed pursuant to this paragraph shall not be used at trial for any purpose, whether in the Prosecution’s case in chief or for impeachment.” (Emphasis added.)
On cross-examination, defendant was asked if he recalled making a statement to Officer Mead. Defense counsel objected, but the trial court overruled the objection, apparently not realizing that
The prosecutor then asked defendant if he recalled stating that "[I] was high and there is a lot that [I] don’t remember because [I] had an alcoholic black out”. Defense counsel again objected. When the trial court ascertained that the statement was being used in violation of its discovery order, it retracted its position that the questioning constituted proper cross-examination, sustained the objection, and stated:
"I think that the procedure in not giving the information to defense counsel is a very unfair tactic and I am disturbed about it Mr. Stanowski, and I am going to ask you and your department to look into it. I don’t like my court used that way, sir. If there is anything I detest is to have the prosecution or the defense, either one of them, take an order which I gave and not carry it out and then come into court and ask me to heal their wound on it. Do you understand what I am saying, sir?”
On appeal, defendant relies primarily on Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). Brady, however, was concerned with prosecution suppression of evidence favorable to the accused, while here, the suppressed statements were unfavorable and lessened defendant’s credibility. However, Brady was not concerned with suppression of evidence in violation of a court’s discovery order. Due to this salient difference between Brady and the instant case, we do not dispose of this matter on the authority of Brady.
We frankly admit that differences exist between the instant case and Florinchi. However, we believe that, if anything, the present case represents a stronger argument for reversal. Here, an explicit discovery order was entered specifically requiring all statements made by defendant to be disclosed to counsel.
Where a prosecutor has violated a discovery order — even if done inadvertently in good faith
As a matter of trial strategy, defense counsel might have advised his client not to testify had he been aware of the statements. Assuming that defendant would have testified anyway, some strategy for minimizing their impact might have been adopted.
We now turn to the various arguments advanced by the prosecution and explain why we cannot accept them. The prosecution first contends that it should be excused from its failure to disclose because the statements were made by defendant. Consequently, defendant had an obligation to di
Both below and on appeal, the prosecution relies on Harris v New York, 401 US 222, 224; 91 S Ct 643, 645; 28 L Ed 2d 1, 4 (1971). In Harris, the Supreme Court held that statements taken in violation of a defendant’s Miranda
The prosecutor below argued that his failure to disclose should be excused because the discovery order was a "standard order”, uniformly granted. However, rather than excusing the prosecutor’s failure to divulge, this constitutes a further compelling reason to reverse. If the order was "standard”, the prosecutor should have known precisely what was expected of him.
II
The final issue confronting us on appeal concerns the trial court’s instructions on self-defense. The trial court gave CJI 7:9:01 on the use of deadly force in self-defense over counsel’s objection that no testimony tended to show that deadly force had been employed. We agree.
Defendant was charged with assault with a dangerous weapon without the intent to commit murder or to inflict great bodily harm. The information itself clearly undercuts the notion that the prosecution believed deadly force had been employed. At most, the record reveals that defendant drew a knife and held it at his side. There was no testimony that he stabbed, lunged, or swung at
A simple assault is made out from either an attempted battery or an unlawful act which places another in reasonable apprehension of receiving an imminent battery. People v Joeseype Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979). The only additional element which must be proven to make out a case of felonious assault is that a dangerous weapon was used in making the assault. People v Childs, 11 Mich App 408, 411; 161 NW2d 428 (1968). It is clear, then, that the use of a deadly weapon in carrying out an assault is not the equivalent of the utilization of deadly force. A felonious assault conviction can be sustained without proof of the use of or attempt to utilize any force at all.
We have examined the Michigan cases for a definition of deadly force and have found none. The term "deadly force” could be tautological. That is, deadly force has not been employed unless death actually results. We reject this definition, however, and hold that deadly force has been used where the defendant’s acts are such that the natural, probable, and foreseeable consequence of said acts is death.
The prosecution argues, however, that the trial court cured the self-defense and deadly force instructions by immediately following them with instructions on the use of nondeadly force in self-defense. Indeed, the court also did give CJI 7:9:09. However, nothing in the nondeadly force instructions dispelled the idea that a perception of death or great bodily harm was a condition precedent to claiming self-defense. Where two instructions are given — one proper and one improper — it is presumed that the jury followed the erroneous one. People v Neumann, 35 Mich App 193, 195-196; 192 NW2d 345 (1971), People v White, 89 Mich App 726, 730; 282 NW2d 200 (1979).
Reversed and remanded.
The prosecution indeed contends that the failure to comply with the order was mere oversight so that reversal is unwarranted. The good faith of the prosecutor is simply not relevant in this context. If the failure to divulge may have harmed defendant, the error will not be ignored because the prosecutor’s intentions were pure. Of course, if we were to conclude that the prosecutor failed to comply with a discovery order in bad faith, reversal would be required for the intentional injection of error into the proceedings, which error can
We choose to apply the "harmless beyond a reasonable doubt” test in preference to the standard assessing whether "one juror might have voted to acquit, but for the error” for two reasons. First, violation of a discovery order raises the spectre of a denial of constitutional rights including the right to procedural due process, the right to be free from self-incrimination, and the right to have effective assistance of counsel. Once a discovery order is entered, it becomes "the law of the case”, and a defendant has a right to rely on its requirements. Second, a prosecutor who attempts to use material in violation of a discovery order is grossly negligent at best. The less strict harmless-error standard is typically employed in cases involving errors of nonconstitutional magnitude in which there is at least some argument to be made by the prosecutor justifying his action in the first instance. There is no argument which can be made which might possibly justify violating a discovery order.
This is not a case in which the statements made were so obviously incriminating that a defendant would naturally remember them and divulge them to his attorney. Such a case will have to be decided at another time.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
Were we to accept the prosecutor’s argument, we would expect similar arguments to be made in future cases. For example, a prosecutor might argue that his failure to comply with the rules of evidence was excused because these are the "standard rules” always followed by the court.
The trial court concluded that the mere display of the knife during any part of the altercation justified the instruction.
In a case where the evidence is conflicting on whether deadly force has been employed under this definition, the trial court should preface CJI 7:9:0Í with a statement to the effect that "If you find that defendant utilized deadly force, the following is the standard for assessing his self-defense claim”. Additionally, the court should also preface CJI 7:9:09 with a comparable statement indicating that what follows is the standard to be applied if the jury finds defendant only used nondeadly force. However, in cases where the evidence clearly establishes that deadly force has not been used, the court should not give CJI 7:9:01.
Concurring Opinion
(concurring). I am in accord with my colleagues’ decision to reverse and remand this cause for the reasons indicated. However, I feel compelled to further comment on the failure to disclose prior statements in violation of the discovery order.
The people, under the discovery order, had a continuing duty to disclose the statements in question. Not only was there a failure to comply with the discovery order, but there was a failure to inform or to offer an explanation to the trial court, in the absence of the jury, for such noncompliance before proceeding with the cross-examination of the defendant concerning the statements in question. Had this been done before the learned and experienced trial judge, the trial record might have been further developed, as well as better protected, and possibly a retrial of the matter could have been avoided.
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