People v. Banks, Docket No. 225052.

• Decision Date: 04 April 2002
• Docket Number: Docket No. 225052.
• Citation: 249 Mich. App. 247,642 N.W.2d 351
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrek S. BANKS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

642 N.W.2d 351

249 Mich. App. 247

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrek S. BANKS, Defendant-Appellant.

Docket No. 225052.

Court of Appeals of Michigan.

Submitted August 8, 2001, at Grand Rapids.

Decided January 15, 2002, at 9:20 a.m.

Released for Publication April 4, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Vicki L. Seidl, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Deborah Winfrey Keene), for the defendant on appeal.

Before: HOLBROOK, Jr., P.J., and CAVANAGH and METER, JJ.

PER CURIAM.

Defendant appeals as of right from his jury trial convictions of armed robbery, M.C.L. § 750.529, conspiracy to commit armed robbery, M.C.L. § 750.157a, and possession of a firearm during the commission of a felony (felony-firearm), M.C.L. § 750.227b. Defendant was sentenced to two years' imprisonment for the felony-firearm conviction, and consecutive to that, two concurrent terms of twelve to forty years for the armed robbery and conspiracy convictions. We reverse and remand. At around 3:00 a.m. on July 27, 1999, Donavan Ferron was talking and drinking beer with friends on the street in front of a house in Grand Rapids. At some point, two men wearing ski masks and carrying guns ran toward Ferron and attacked him. Ferron stated that one of his attackers was short, fat, and "dark-skinned," and the other was tall, thin, and "brown-skinned." When the shorter of the two attackers put a gun to Ferron's head, a struggle ensued between Ferron and the man for possession of the gun. The taller of the two attackers then struck Ferron on the back of the head with a gun. As Ferron lay on the ground, the taller attacker ripped off Ferron's necklace and grabbed his wallet and gym shoes. Ferron testified at trial that he saw his two attackers flee to a Bronco, take off their masks, and then go into a nearby house. Ferron was able to identify defendant at trial as the taller of his two attackers.

Defendant's cross-examination of Ferron focused in large part on apparent discrepancies between Ferron's preliminary examination testimony and trial testimony with regard to what Ferron observed after he was attacked. Ferron testified during the preliminary examination that the only thing he knew about his attackers' flight was that "they went back into the darkness." Ferron had not testified during the preliminary examination that he had seen his attackers remove their masks, nor had he testified that he had seen the two enter a nearby residence. When asked by defense counsel if he had ever told anyone about seeing his attackers without their masks, Ferron replied that he had told the investigating detective. "I told him I saw them when— I saw them when they took the masks off. That's how I was able to identify them," Ferron testified.

It was not until Ferron's testimony was complete that defendant was first given a copy of the police report of the interview in which Ferron had told the police that he saw his attackers remove their masks. The prosecutor indicated that he too had not been given a copy of this report. Defendant then moved for a mistrial. Defense counsel argued that as a result of the discovery violation, he had lost all credibility in the eyes of the jury. The trial court denied defendant's motion. The court expressed sympathy for defense counsel, but concluded that the failure to turn over the report had been inadvertent. The court noted that discrepancies in Ferron's preliminary examination and trial testimony remained. The court presumed that given these discrepancies, defendant would likely have followed the same course during cross-examination even if the report had been previously disclosed. Noting that the failure to disclose might have affected defendant's consideration of a plea offer by the prosecution, the court gave defendant the night to reconsider his rejection of that offer. The next day, defendant again rejected the plea offer. The court also indicated that it would give a curative instruction addressing the circumstances surrounding the belated disclosure of the report. However, no curative instruction was given.

Paul Brown testified pursuant to a plea bargain. Brown admitted to being one of the two men who attacked and robbed Ferron. Brown testified that after the robbery, he and his cousin, Shomari Whiteside, left in Whiteside's truck. On cross-examination, Brown admitted having been "guessing" in his preliminary examination testimony when he stated that defendant left the scene in his own car. Grand Rapids Police Officer Matthew Dwyer testified that he was one of the officers who responded to the scene of the robbery. Dwyer testified that Ferron had stated that he had observed a Bronco with three people in it drive by before the robbery, and had seen the same vehicle drive by with one person in it after the robbery. Dwyer stated that Ferron had identified Whiteside as being the driver of the Bronco when it passed by before the robbery. Officer Case Weston testified that he found a ski mask inside Whiteside's Bronco.

Whiteside testified on behalf of defendant. At the time of trial, Whiteside was in prison for a parole violation. Over defendant's objections, Whiteside appeared in court in handcuffs. Whiteside testified that when he returned home at around 1:30 or 2:00 a.m., defendant approached him and asked for a ride. Whiteside testified that defendant was trying to get to a female friend who had just been released from the hospital. Whiteside agreed to give defendant a ride, but told him that Whiteside had to first stop to see Brown. When the two arrived at Brown's home, they were approached by police, questioned about the robbery, and ultimately arrested. Whiteside denied that a ski mask had been in his Bronco that night.

Defendant argues that the trial court erred in not granting his motion for a mistrial following the late discovery of the police report. We agree with the trial court that a discovery violation occurred. Pursuant to MCR 6.201(B)(2), upon request, the prosecution must disclose "any police report concerning the case." Defendant made a request for such material, and the court ordered its production. We also agree that this discovery violation appears to have been inadvertent. The officer who wrote the report testified that he had assumed it had been turned over with all the other material he had. Defendant did not challenge this assertion below, nor does he challenge it now on appeal.

Therefore, the question before us is whether the trial court abused its discretion in denying defendant's motion for a mistrial based on this discovery violation. MCR 6.201(J); People v. Davie (After Remand), 225 Mich.App. 592, 597-598, 571 N.W.2d 229 (1997). We find no abuse of discretion. When determining the appropriate remedy for discovery violations, the trial court must balance the interests of the courts, the public, and the parties in light of all the relevant circumstances, including the reasons for noncompliance. Davie, supra at 598, 571 N.W.2d 229.

Defendant argues that the discovery violation was highly prejudicial in light of his strategy to impeach Ferron with his testimonial inconsistencies. Defendant asserts that he would have prepared for trial differently had the report been timely disclosed. We agree with defendant that his cross-examination of Ferron would likely have taken, in part, a different tack had he been in prior possession of the report. Most of the cross-examination focused on Ferron's failure to testify during the preliminary examination that he saw his attackers take off their ski masks.

However, at the end of this line of inquiry, defendant also posed the following questions concerning whether Ferron had ever told anybody about seeing his attackers without their masks:

Q: Did you ever tell anybody before today that you saw these people take their masks off?

A: Yeah.

Q: Who did you tell?

A: I told— I told my man right here, the detective.

Q: You told the detective?

A: Yeah. I told him I saw them when— I saw them when they took the masks off. That's how I was able to identify them.

Q: You saw these people take their masks off and you told that to the detective, right?

A: I just answered yes.

We believe that defendant would not have cross-examined Ferron this way had defendant been given this police report. There would be no reason for defendant to allow Ferron to fend off an attack to his credibility by giving him an uncontested opening to point to a prior consistent statement.

Defendant does not argue on appeal, however, that he would have abandoned his attempt to impeach Ferron with his testimonial inconsistencies had the police report been timely disclosed. Thus, the only change to defendant's trial strategy regarding Ferron would have been how he would handle the police report. Defendant would have had to decide whether he would introduce Ferron's version of events in the police report, or whether he would leave that to the prosecution.

Thus, we believe that contrary to defendant's assertion, his credibility and case were not completely destroyed by the error. Discrepancies between Ferron's preliminary examination and trial testimony existed despite what was contained in the police report. Defendant was able to explore these discrepancies at length. Further, defendant's questioning regarding whether Ferron had ever told anyone he saw his attackers with their masks off was brief. We do not believe that confidence in the outcome of the trial was undermined by this singular event. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481(1985).

Further, we do not believe that the trial was rendered fundamentally unfair by the failure to disclose the report. While the prosecution is under a duty to disclose impeachment material...