People v. Davie

• Decision Date: 03 October 1997
• Docket Number: Docket No. 181537
• Citation: 571 N.W.2d 229,225 Mich.App. 592
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles DAVIE and Reginald Obispo, Defendants-Appellees.(After Remand)
• Court: Court of Appeal of Michigan — District of US

Page 229

571 N.W.2d 229

225 Mich.App. 592

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles DAVIE and Reginald Obispo, Defendants-Appellees.(After Remand)

Docket No. 181537.

Court of Appeals of Michigan.

Submitted July 2, 1997, at Detroit.

Decided Oct. 3, 1997, at 9:10 a.m.

Released for Publication Dec. 23, 1997.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Douglas P. Dwyer, Asst. Pros. Atty., for People.

State Appellate Defender by Gail Rodwan, Detroit, for Charles Davie.

Marcia J. Covert, Detroit, for Reginald Obispo.

Before MURPHY, P.J., and MICHAEL J. KELLY and GRIBBS, JJ.

AFTER REMAND

MICHAEL J. KELLY, Judge.

The prosecution appeals as of right an order dismissing the charge of delivery of less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv), against Charles Davie, and an order dismissing the charges of delivery of less than fifty grams of cocaine, possession with intent to deliver less than fifty grams of cocaine, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), against Reginald Obispo, on the basis that "the [p]rosecution did not provide ... [d]efendant[ ]s with ... discovery so they were not ready to go on the date of trial." We affirm.

Davie and Obispo were scheduled to be tried jointly on October 31, 1994. However, by that date only Obispo's defense attorney had received any discovery, and that was not until Saturday, October 29. In response to the trial court's inquiry concerning why discovery had not been timely provided, the officer in charge of the case stated that the division of the Detroit police agency responsible for handling discovery requests had lost the file. ¹ The trial court ordered the prosecutor to obtain the presence of the officer upon whom the defense attorneys had served their discovery orders so that the police department might offer "a rational explanation" for its failure to provide discovery materials in a timely manner to Obispo's attorney and its complete failure to honor Davie's discovery order. On the date set for this evidentiary hearing, the prosecutor failed to obtain the presence of the key officer, and the trial court dismissed the case "on the basis that the [p]rosecution did not provide ... [d]efendant's [sic] with ... discovery so they were not ready to go on the date of trial." The prosecutor appealed, and, because the record on appeal was incomplete, a panel of this Court remanded this case to the trial court with instructions to make findings of fact and a determination on the record regarding three issues: (1) if discovery orders had been issued; (2) if so, whether the prosecution failed to comply with the orders; and (3) whether defendants were prejudiced thereby. Unpublished order of the Court of Appeals, entered October 11, 1995 (Docket No. 181537).

At the evidentiary hearing on remand, defendant Obispo's attorney, Marcia Covert, testified that she served a discovery order on the police on September 30, 1994, although police records reflected that the order was received on October 18, 1994. Covert's law clerk, Gary Sequin, also testified that the order was served on the police on September 30, 1994. Sequin stated that after the order was served, he appeared at the police station approximately four times to obtain the discovery materials, but each time he was told that the materials were not ready, or had been misplaced. Finally, the police provided Covert with the requested materials on Saturday, October 29, 1994, at approximately 4:00 p.m. When asked whether the delay had prejudiced her client, Covert replied, "I don't know how I can possibly try a case on a day and a half."

Virgil Smith, Davie's appointed counsel, testified that he served a discovery order on the police on October 19, 1994, at which time he was told it would take approximately one week to comply with his request. Smith called four days later, but was told that the discovery materials were not yet available. Smith went to the police department approximately four more times, including the morning of trial. Smith never received the discovery materials. At his last visit, a police officer told Smith that the discovery materials he requested " 'had not been gathered.' " Smith testified that his client had been prejudiced by the failure of the police to provide him with discovery:

Well, it was quite prejudicial because I didn't have an opportunity to look at the statements that were made by the prosecution's witnesses. I didn't have a chance to review that information, go over their statements with my client who--he was in the lock-up at the time, I think I saw him on at least two occasions, possibly three. It didn't give me a chance to prepare for cross examination of any prosecution witnesses because I was not able to have advance notice as to the[ir] statements....

At the close of the hearing, the trial court determined, on the basis of Smith's testimony, that a discovery order had been served on the police department, which thereafter failed to comply with it. Moreover, the trial court expressed great dissatisfaction with the informal discovery procedure used in the Recorder's Court. Further, the trial court apparently agreed with the assertions of defendants' counsel that they had been prejudiced by the failure to receive discovery materials in a timely manner, primarily because they had been unable to prepare adequately for trial before the date that had been set for the commencement of proceedings. The trial court entered an order dismissing the case against defendants for "failure to comply with the [c]ourt's discovery order."

The prosecution argues that the trial court's dismissal of the charges against Davie and Obispo was inappropriate under the circumstances. We review a trial court's decision regarding the appropriate remedy for noncompliance with a discovery order for an abuse of discretion. People v. Young, 212 Mich.App. 630, 642, 538 N.W.2d 456 (1995); People v. Loy-Rafuls, 198 Mich.App. 594, 597, 500 N.W.2d 480 (1993), rev'd in part on other grounds 442 Mich. 915, 503 N.W.2d 453 (1993). "The exercise of that discretion involves a balancing of the interests of the courts, the public, and the parties." Id. at 597, 500 N.W.2d 480; see also People v. Taylor, 159 Mich.App. 468, 487, 406 N.W.2d 859 (1987). It requires inquiry into all the relevant circumstances, including "the causes and bona fides of tardy, or total, noncompliance, and a showing by the objecting party of actual prejudice." Id. at 482, 406 N.W.2d 859.

On the basis of our review of the record, we conclude that the trial court did not abuse its discretion in dismissing the charges against defendants in response to the prosecutor's complete failure to insure that defendants were provided with timely discovery. Under the circumstances, we do not believe that the trial court's dismissal of charges was unwarranted, or unnecessarily harsh. Neither the police nor the prosecutor complied with discovery orders while at the same time claiming to follow an unwritten informal procedure. The informal procedure appears to have been designed to spare the prosecution the burden of dealing with discovery requests. Whatever action was taken on the discovery orders was that of the police, not the prosecutor's office, a situation that directly contravened the discovery procedure set forth in Recorder's Court LCR 2.302.

The trial court found that the parties had been prejudiced by their inability to receive discovery materials in...