City of Westland v. Okopski

• Decision Date: 19 December 1994
• Docket Number: 152436,Docket Nos. 152429
• Citation: 527 N.W.2d 780,208 Mich.App. 66
• Parties: CITY OF WESTLAND, Plaintiff-Appellee, v. Jon Lyle OKOPSKI, Defendant-Appellant. CITY OF WESTLAND, Plaintiff-Appellee, v. Lavern OKOPSKI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 780

527 N.W.2d 780

208 Mich.App. 66

CITY OF WESTLAND, Plaintiff-Appellee, v. Jon Lyle OKOPSKI, Defendant-Appellant.

CITY OF WESTLAND, Plaintiff-Appellee, v. Lavern OKOPSKI, Defendant-Appellant.

Docket Nos. 152429, 152436.

Court of Appeals of Michigan.

Submitted Oct. 5, 1994, at Detroit.

Decided Dec. 19, 1994, at 9:10 a.m.

Released for Publication Feb. 21, 1995.

Law Offices of Angelo A. Plakas, P.C. by C. Brian James, Westland, for plaintiff.

Law Offices of Berger & Rabaut by Seymour Berger, Detroit, for Jon L. Okopski.

Burgess & Burgess, P.C. by Laurence C. Burgess, Detroit, for Lavern Okopski.

Before HOOD, P.J., and TAYLOR and SERVITTO, ^* JJ.

HOOD, Presiding Judge.

Defendant Lavern Okopski was convicted by a jury in the 18th District Court of being a disorderly person (Westland Code, § 22.79) and of committing an assault and battery on a police officer (Westland Code, § 22.17). He was sentenced to eighty-nine days for each conviction, to run concurrently, and assessed $700 in fines and costs.

Defendant Jon Lyle Okopski, the son of Lavern, was convicted by the same district court jury of interfering with police (Westland Code, § 22.252), being a disorderly person (Westland Code, § 22.79), and committing an assault and battery on a police officer (Westland Code, § 22.17). He was sentenced to eighty-nine days for each conviction, to run concurrently, and also assessed $600 in fines and costs for each conviction, for a total of $1,800.

Both defendants appealed their convictions to the Wayne Circuit Court, which affirmed, but which stayed the sentences pending appeal to this Court. We granted leave to consider the issues raised by defendants and now affirm.

The events leading to defendants' arrest and conviction arose as the result of what can be described charitably as a gala celebratory event run amok, or can be described less charitably as a mini-riot.

On October 6, 1990, the Okopski family and approximately two hundred of their friends and relatives gathered at the Knights of Columbus Hall in Westland to celebrate the wedding of Lavern Okopski, Jr. What began as a joyous occasion, ended in the arrest of three of the Okopski family: Lavern (the groom's father), Jon (the best man and codefendant here), and Annette Freeman (a bridesmaid and apparently Lavern's daughter and Jon's sister). Additionally, the groom's mother, Judith Okopski, required hospitalization after she slipped on some ice and broke her ankle.

The problem apparently started when the disk jockey hired for the occasion failed to follow orders. Both defendants had warned the disk jockey that he should not play any "black" music, but to play only country and western music. The disk jockey nevertheless played several hit tunes by "rap" performer M.C. Hammer. Lavern Okopski took great exception to this, and an altercation ensued, which escalated to numerous physical confrontations and resulted in twenty-three police officers from three jurisdictions eventually arriving at the scene. At that point, confrontations developed between the celebrants and the police and resulted in the eventual subduing and arrest of defendants.

The police administered preliminary breath tests (PBT) to Lavern and Jon after they were taken to the police station. According to the testimony of one of the officers, Lavern showed a blood alcohol level of 0.15 percent and Jon a level of 0.06 percent. The police had not obtained a search warrant before conducting the tests.

As a result of the incident, Lavern was charged with violation of two city ordinances, one prohibiting assault and battery and the other prohibiting being drunk and disorderly in a public place. Jon was charged with the same offenses, as well as obstructing and hindering a police officer in the performance of his duty. In addition Annette Freeman was charged with assault and battery and with being drunk and disorderly.

A consolidated trial of all three individuals was held on August 2, 5, and 6, 1991. After deliberating a little less than four hours, the jury found Lavern and Jon guilty as charged, but found Annette not guilty with respect to the charges against her.

At a sentencing hearing held on October 24, 1991, the district court expressed its extreme displeasure with the sort of behavior exhibited by defendants at what should have been a joyous celebration of a wedding. The court also noted that defendants refused to admit any wrongdoing and appeared to believe that their actions were quite proper and understandable. After hearing disagreements regarding the contents of a Probation Department report, the court imposed sentence, and these appeals followed.

Both defendants claim that the trial court committed error requiring reversal in admitting the PBT results. We disagree. At trial, both defendants denied that they were intoxicated. Lavern testified that he consumed only a couple of beers, and Jon testified that he had consumed only a champagne glass of beer. The trial court then allowed the prosecutor to admit the PBT test results to impeach defendants.

A blood alcohol test administered pursuant to statutory law is not admissible in a criminal prosecution other than a prosecution for a drinking and driving offense as enumerated in the statute. M.C.L. 257.625a(1); M.S.A. 9.2325(1)(1); People v. Keen, 396 Mich. 573, 575, 242 N.W.2d 405 (1976); Manko v. Root, 190 Mich.App. 702, 704, 476 N.W.2d 776 (1991). In this case, we are presented with an issue of first impression: whether PBT results are admissible to impeach a defendant in a criminal case. ¹

Evidence that is admissible for one purpose is not inadmissible because its use for a different purpose is precluded. People v. VanderVliet, 444 Mich. 52, 73, 508 N.W.2d 114 (1993). Likewise, otherwise constitutionally inadmissible evidence may be admissible for the purpose of rebutting a defendant's false assertions at trial. People v. Sutton (After Remand), 436 Mich. 575, 592, 464 N.W.2d 276 (1990), reh. den. 437 Mich. 1208, 466 N.W.2d 281 (1990), citing Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

In this case, defendants' testimony about not being intoxicated caused the prosecutor to present rebuttal evidence of defendants' blood alcohol content. The evidence was not used to prove substantively that defendants were intoxicated; rather, the test results were used to impeach defendants' testimony on that point. We find that this procedure was permissible.

Lavern also argues that the prosecutor should have presented the evidence in his case in chief, citing People v. McGillen No. 1, 392 Mich. 251, 266, 220 N.W.2d 677 (1974). In addition to the excerpt quoted by him, however, the McGillen Court, adopting the language of People v. Quick, 58 Mich. 321, 323, 25 N.W. 302 (1885), that is applicable to both defendants, also stated:

Cases may sometimes arise where testimony which could not be had in the opening may be let in upon good cause shown thereafter. [Id. 392 Mich. at 266, 220 N.W.2d 677.]

Likewise, our Supreme Court in People v. Losey, 413 Mich. 346, 351, n. 3, 320 N.W.2d 49 (1982), added:

We recognize that there may be occasional cases in which evidence that might have been admissible in the prosecutor's case in chief could be admitted in rebuttal.... [E]vidence that would have been repetitive on a point thought not to be seriously contested might be allowed in rebuttal if the prosecutor is genuinely surprised by the defendant's focusing on the point in defense.

When rebuttal evidence is permitted, it must relate to a substantive matter rather than a collateral one. McGillen, supra 392 Mich. at 266, 220 N.W.2d 677. Generally, contradictory evidence is admissible only when it directly tends to disprove a witness' exact testimony. Id. at 268, 220 N.W.2d 677.

In this case, the prosecutor presented evidence in his case in chief that defendants were intoxicated. During the defendants' case, however, defendants denied that they were intoxicated. Lavern said he consumed only a couple of beers, and Jon said that he consumed only a few ounces of beer. Defendants thus opened the door for the prosecutor to rebut that evidence. Defendants' intoxication was a substantive issue--the disorderly person ordinance requires that a person be intoxicated. Here, defendants testified that they had some beer, but they were not intoxicated. The PBT results directly tended to disprove that exact testimony. The rationale for the prohibition of test results in any but the statutorily specified prosecution is simply inapplicable in a situation such as the present, where a defendant specifically has denied intoxication.

Defendants also argue that the PBT did not meet the strict standards for the admission of scientific evidence. Defendants did not make this objection at the trial court level. An appeal based on one ground is not preserved where the objection at trial was on a different ground. People v. Stimage, 202 Mich.App. 28, 30, 507 N.W.2d 778 (1993). Additionally, even if we found that the trial court erred in admitting the PBT results without scientific foundation, the error would be harmless because other evidence established that defendants were intoxicated. See, generally, People v. Hempstead, 144 Mich.App. 348, 353-354, 375 N.W.2d 445 (1985).

Finally, defendants argue that the judge should have given a cautionary instruction regarding the rebuttal evidence. Defendants did not request such an instruction. Relief will not be granted where a defendant did not request a limiting instruction at trial and where the likelihood of prejudice resulting from the instruction's absence was not shown. People v. Stanton, 190 Mich.App. 558, 562-563, 476 N.W.2d 477 (1991). We find no prejudice. Even without the PBT results, the evidence supports a finding that defendants were intoxicated.

Moreover, the case that Lavern relies on, People v. Cox, 61 Mich.App. 37, 40, 232 N.W.2d 188 (1975), says that prejudice resulting from an...