City of Westland v. Kodlowski
| Decision Date | 04 December 2012 |
| Docket Number | Docket No. 301774. |
| Citation | 298 Mich.App. 647,828 N.W.2d 67 |
| Parties | CITY OF WESTLAND v. KODLOWSKI. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Fausone Bohn, LLP, Northville (by Keith W. Madden and Michael M. McNamara), for the city of Westland.
The Corriveau Law Firm, P.C., Northville (by Joseph P. Corriveau), for Jeffrey Kodlowski.
Before: MARKEY, P.J., and MURRAY and SHAPIRO, JJ.
Defendant, Jeffrey Kodlowski, appeals by leave granted two orders of the circuit court. The first order embodies the circuit court's decision affirming the district court's judgment convicting defendant of resisting arrest in violation of Westland Ordinance, § 62–36(a), while the second order denies defendant's motion for reinstatement of oral argument. We affirm both orders.
This case arises from a marital dispute that resulted in the arrest of defendant after he allegedly battered two Westland Police Officers, Michael Little and Kyle Dawley, and resisted arrest in his Westland residence. On March 18, 2009, Marilyn Kodlowski resided with defendant (her husband), son, and daughter in the city of Westland. Around 4:00 a.m., Kodlowski and defendant had a disagreement regarding Kodlowski's cellular telephone. Defendant accused Kodlowski of having an extramarital affair, and he wanted to see Kodlowski's cellular telephone to determine to whom she had been talking.
Kodlowski called the Westland Police Department on two occasions that morning to seek assistance in retrieving the personal belongings that defendant withheld from her. After calling the police the first time, Kodlowski handed defendant the phone, defendant spoke with the police, and then defendant provided Kodlowski her keys and purse, but not her cellular telephone. Kodlowski called the second time to receive assistance in retrieving her cellular telephone from defendant.
After the second phone call, Little and Dawley arrived at the residence in uniform and located Kodlowski in the driveway near her van. When first speaking with the officers, Kodlowski informed them that she had had an argument with defendant and that he accused her of cheating on him, but there had never been violence in the home and defendant had not been drinking. There was conflicting testimony as to whether Kodlowski informed the officers that there were no weapons in the residence.
After speaking with the officers, Kodlowski walked with the officers to the residence and defendant “allowed them in.” Again, there was conflicting evidence regarding defendant's demeanor when the officers first entered the house. Nevertheless, the officers proceeded to talk to defendant and inquire into the location of the cellular telephone. Although the testimony was not consistent on what was initially said upon entering the home, there is no dispute that Officer Dawley made several antagonistic and sarcastic remarks to defendant, and that when defendant was asked where the cellular telephone was located, defendant responded by saying something along the lines of,
In order to control the situation, Little instructed defendant to sit down in a chair, after which, according to Little, defendant changed his mood from irritated to calm. At one point, defendant became irritated, stood up and attempted to go to the back bedroom. Little, however, instructed defendant to stay in the chair. Little observed that when defendant stood up, Little then placed his arm on defendant's chest to keep defendant at a distance and to keep defendant from going to the back bedroom. As Little spoke with defendant, Dawley walked with Kodlowski around the house looking for the cellular telephone.
According to Kodlowski, defendant asked the officers to leave. While the officers were present, Kodlowski grabbed defendant's wallet and told him that she would take his wallet if he did not return her cellular telephone. However, Kodlowski then decided to leave the residence without her phone. Little believed at that point that the incident was over, so he followed Kodlowski toward the front door as Dawley followed. As Little was walking out of the door, he felt defendant grab and squeeze his left arm. As witnessed by Dawley, defendant then “spun” Little around so that he was facing defendant. Little then used his arm to create distance between himself and defendant, and after telling defendant that he was under arrest, Little and Dawley each grabbed onto one of defendant's arms so that he could be handcuffed.
Defendant then “started pulling and just kind of thrashing his body, swinging his arms to try to make [Little] let go.” Little indicated that as defendant twisted and attempted to break from the officers' grip, the officers and defendant ended up on the couch. Dawley then instructed defendant to stop resisting, but defendant continued to thrash his body and swing his arm. While trying to secure defendant in handcuffs, defendant kicked backward, “like a rearward kick,” striking Dawley.
After defendant continued to twist, Dawley applied a brachial stun to defendant's neck, yet defendant continued to twist and fight the officers Dawley then pulled out his baton and struck defendant on his arm and the top of the baton “also hit the back of [defendant's] head.” Dawley testified that after he struck defendant's arm, defendant released his grip, Officer Dawley dropped the baton, grabbed the handcuffs, and the officers were then able to secure defendant with the handcuffs. Dawley indicated that he struck defendant once with the baton.1 Both Kodlowski, who “could see everything that was going on” and defendant testified that defendant was not resisting when Dawley instructed defendant to “stop resisting.” Defendant in fact testified that he never offered any resistance to the officers and never engaged in physical contact with them.
The prosecutor filed a motion in limine in the district court, seeking to exclude evidence regarding the nature and extent of defendant's injuries and any documentary evidence concerning the department policy on the use of force. Defendant argued that the evidence was relevant to show that the officers fabricated the facts of the case to cover up their use of excessive force, while the prosecution argued that the evidence would be relevant to a civil claim for excessive use of force, not to any issues in the criminal case.
The prosecution also separately raised the issue of the admissibility of a transcript prepared from an audio recording which captured a portion of the events surrounding defendant's arrest.2 Apparently defense counsel intended to either have the transcript read to the jury, or have the jury read the transcript while listening to the audio recording. The prosecution's position was that the transcript was inaccurate and therefore inadmissible. The district court indicated that it would be for the jury to determine the content of the audio recording, and that it could do so through the playing of the audio recording for the jury.
In regard to the prosecution's motion to exclude evidence, the district court concluded that because defendant was charged with assault and battery along with resisting arrest, any evidence regarding the treatment and nature of defendant's injuries was irrelevant and thus inadmissible. The district court indicated, however, that it would allow defendant to introduce evidence that he was injured during the exchange. The district court then decided to withhold until trial its final ruling of whether to exclude documentary evidence regarding department policy, procedures, and records, as well as any expert testimony, concerning the use of force. At trial the court made its ruling:
Based on the testimony that—that I've heard so far, we've—we've had—we've had four people that were in the room. We've heard from three of them. Defense did indicate earlier that the Defendant would be testifying. Obviously, he doesn't—you don't have to be held by that, but I think so far I would find that—that testimony from an expert on the use of force and force scale—continuum scale, I don't think would assist the trier of fact to understand the evidence or to determine a fact and [sic] issue.
Furthermore, we have audio from the incident that's already been played for the Jury, so I think ... all of the facts that led to these charges have been heard by the Jury and I think that they can make a determination based on the law and the facts that we've gotten from the witness stand so far without any need for any technical or expert assistance.
On October 5, 2009, the jury found defendant not guilty of the assault and battery charges but guilty of resisting arrest. The district court's judgment of conviction was appealed to the circuit court, which denied oral argument on the appeal and affirmed the conviction.Defendant then filed an application for leave to appeal both orders, which we granted.
In our order granting defendant leave to appeal, we directed defendant to “address in his brief why he should not be required to pay an additional entry fee for the second order being appealed under MCL 600.321(1)(a).” People v. Kodlowski, unpublished order of the Court of Appeals, entered August 31, 2011 (Docket No. 301774). We did so because when filing his application from the two separate orders, defendant refused to pay two filing fees, arguing that this Court's Internal Operating Procedure (IOP) regarding fees applicable to appeals (which requires two separate fees) misinterprets MCL 600.321. 3
MCL 600.321, which governs the taxation of costs and fees for appeals to this Court, provides in relevant part:
(1) The following fees shall be paid to the clerk of the court of appeals and may be...
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