People v. Budzyn, Docket Nos. 102654

CourtSupreme Court of Michigan
Citation566 N.W.2d 229,456 Mich. 77
Docket Number102655,Docket Nos. 102654,Nos. 1-2,s. 1-2
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter BUDZYN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry NEVERS, Defendant-Appellant. Calendar
Decision Date31 July 1997

Carole M. Stanyar, Detroit, for Defendant-Appellant Budzyn.

Neil H. Fink, Birmingham, for Defendant-Appellant Nevers.

William J. Johnson, pro hac vice, Washington, DC and Frank A. Guido, General Counsel for Police Officers Association of Michigan, Livonia, amicus curiae, for National Association of Police Organizations, Inc.

Opinion

RILEY, Justice.

In this appeal, we are asked to review the fairness of the trial for two police officers who were convicted of second-degree murder for killing a suspected drug user while attempting to arrest him while the suspect was holding contraband. We conclude that defendants have demonstrated that their juries were exposed to extrinsic influences that created a real and substantial possibility of prejudice, depriving them of their constitutional rights under the Sixth Amendment. These errors, however, were harmless beyond a reasonable doubt with regard to defendant Larry Nevers. Therefore, we affirm defendant Nevers' conviction. With regard to defendant Walter Budzyn, we conclude that the extrinsic influences were not harmless beyond

a reasonable doubt. Accordingly, we vacate defendant Budyzn's conviction and remand for a new trial.

FACTS AND PROCEEDINGS

Defendants Budzyn and Nevers were police officers with the Detroit Police Department. They were on duty when the incident occurred that resulted in Malice Green's death. Both were tried at a single criminal proceeding with two different juries. 1

On November 5, 1992, at approximately 10:15 p.m., defendants were patrolling in the City of Detroit in plain clothes in an unmarked vehicle. They apparently observed a Topaz, driven by Malice Green, with bullet holes in its front passenger door. Defendant Nevers, who only gave testimony before his own jury, testified that he observed the car pull up in front of a house known for its drug activity. Budzyn and Nevers stopped behind the Topaz to investigate. The home, with a storefront attached to it, was occupied by Ralph Fletcher. Fletcher explained that others used his house for illegal drug activities. Robert Hollins and Teresa Pace, witnesses to the event, were present at Fletcher's house and had been smoking cocaine that evening.

Defendant Budzyn, who only testified before his own jury, said that he witnessed Robert Knox running along the building and explained that he chased Knox because, apparently by mistake, he believed that Knox had been in the vehicle with Green. 2 Budzyn caught Knox, brought him around to the front of Fletcher's place, and patted him down for weapons. He also patted down Fletcher, who had been in the car with Green. Manuel Brown, who had been smoking cocaine at Fletcher's place, was walking away from the house, but stopped to watch this activity. Nevers asked Malice Green for his driver's license. Green did not respond to Nevers' request, but walked around to the passenger side of his vehicle and got in. Green was sitting in the passenger seat, with his legs hanging out the open doorway. Budzyn came around to the passenger side, shined his flashlight on him, and asked for his license. Green began to look in the glove compartment, grasped at something that was on the floor, apparently cocaine, and Budzyn asked him to let go of what was in his hand.

At this point, there is substantial disagreement in the testimony given by defendants Budzyn and Nevers and the witnesses to the incident, Brown, Fletcher, Hollins, Knox, and Pace regarding what happened.

The five civilian witnesses testified that after Green refused to open his hand, Budzyn began to hit him repeatedly on the hand with the police flashlight, telling him to open his hand. Budzyn then climbed onto Green, who did not resist but did not comply, straddling him. Brown testified that Budzyn struck Green about ten times on his head with the flashlight. Fletcher, who was only three to five feet away, testified that Budzyn repeatedly hit Green on the hand. Hollins said that he heard Budzyn hit Green six or seven times, and, although he did not see the blows land, that these blows must have landed on Green's head. Knox said that he saw Budzyn hit Green in the hand because Green did not open it when Budzyn asked. 3 Pace testified that from the position on which Budzyn sat on Green, he must have been hitting him on the head.

These five witnesses also said that, while Budzyn was struggling with Green in the Topaz, Nevers struck Green on his knee several times. Brown and Fletcher said that Nevers then went around to the other side of the car, the driver's side, opened the door, and struck Green, who was now lying on the front seat, on the head with his flashlight. 4 In contrast to this testimony, Budzyn explained to his jury that while Green was sitting in the passenger side of the vehicle, he suspected that Green was holding narcotics in his fist. He said that he grabbed Green's right arm and that Green kicked him with both his legs. He produced evidence of a small injury to his knee. Budzyn said that he turned and fell backward into the vehicle, dropping his flashlight. Budzyn denied that he ever hit Green at all. Budzyn also said that he only held Green's hands because he suspected that he was holding narcotics. Budzyn called for backup assistance. Budzyn explained that he heard "two hits" after Nevers went around to the driver's door and said that he later was "shocked" to find so much blood on the scene. Budzyn said he retrieved four rocks of cocaine from inside the vehicle.

Nevers instructed these people to leave the scene.

Like Budzyn, Nevers testified to his jury that he assisted Budzyn when Green resisted Budzyn's efforts to open his hand. Nevers explained that he only hit Green on his knees when Green brought his knees up to stop Nevers from prying open his hand. Nevers then went to the other side of the vehicle because Budzyn told him that Green was attempting to get out of the other side of the car. Nevers then told the people from Fletcher's place to leave. Nevers explained that he hit Green in the head with his flashlight because Green was grabbing for his gun. Nevers said that after he struck him, "[Green] finally let go of my gun and I did not hit him [again]" at that time. Nevers flagged down the EMS medical technicians who had been called to the scene. Green continued to struggle with the officers and Nevers said he saw something "shiny" in Green's right hand and he struck him again, the blow landing on Green's head, because Nevers feared he might be carrying a razor blade or knife. Nevers admitted that, during the course of the incident he hit Green five or six times on the head with his flashlight.

The EMS medical technicians arrived in two vehicles. The first to arrive were Albino Martinez and Mithyim Lewis. The other EMS vehicle soon arrived with two other medical technicians, Lee Hardy and Scott Walsh. Several marked police cars arrived soon after the EMS vehicles. Martinez, Lewis, Hardy, and Walsh all testified that Green was covered with blood and was hanging from the driver's side door when they arrived. There was a pool of blood under his head on the street. These witnesses said that Nevers struck Green in the head with his heavy police flashlight repeatedly even though Green was not offering any significant resistance. Martinez and Walsh said that Nevers told Green to open his hands and hold still, and that, when he did not, Nevers hit him with the flashlight. Martinez and Lewis said that Nevers hit Green four times in the head with the flashlight, while Hardy said he saw Nevers hit Green approximately ten times in the head. Martinez explained that Green was "dazed," and Hardy described him as "stuporous," relating that Green was uttering only a few words like "wait" while Nevers was striking him.

Officer Robert Lessnau, 5 who arrived on the scene in one of the marked police vehicles, pulled Green from the vehicle. The EMS medical technicians testified that Lessnau hit Green with his fists. Martinez and Walsh said that while Lessnau was striking Green, Nevers also hit Green twice in the ribs. Green finally released the car keys he held in one hand and a piece of white paper, apparently for rolling rock cocaine, he held in the other. The uniformed officers, including Sergeant Freddie Douglas, 6 then cuffed Green's hands behind his back as Green struggled. The EMS medical technicians began rendering care to Green. Green suffered a seizure and, soon after, died.

The people presented Dr. Kalil Jiraki, an assistant Wayne County Medical Examiner, as a medical expert to testify regarding the nature of Green's wounds and the cause of his death. Dr. Jiraki testified that Green Budzyn and Nevers were charged with second-degree murder. Beginning with the first reports of Green's death, the case produced a firestorm of media publicity in the Detroit metropolitan area. The incident occurred soon after the California state courts acquitted four white Los Angeles police officers who had been videotaped beating black motorist Rodney King. The acquittal in the King case resulted in a terrible riot in Los Angeles that drew the attention of the national media. The media reports in Detroit of Green's death included a comparison of the two incidents. Before the trial began, the Detroit Police Department fired defendants. The City of Detroit also agreed to a multimillion dollar...

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1 books & journal articles
  • ICEBERG AHEAD: WHY COURTS SHOULD PRESUME BIAS IN CASES OF EXTRANEOUS JUROR CONTACTS.
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