People v. Doyle
| Citation | 406 N.W.2d 893,159 Mich.App. 632 |
| Decision Date | 18 June 1987 |
| Docket Number | 87917,93281,Docket Nos. 87916 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jonathan P. DOYLE, Defendant-Appellee, v. Michael Stewart REYNOLDS and Matthew Kardos, Defendants-Appellees. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Walter JOHNSON, Scott James Johnson and Timothy Donaldson, Defendants-Appellees. |
| Court | Court of Appeal of Michigan (US) |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Lenore M. Ferber, Asst. Pros. Atty., for people.
Terrance P. Sheehan and Andrew J. Transue, Flint, for Jonathan P. doyle.
F. Jack Belzer, Flint, for Matthew Kardos.
Fitzgerald & Dumon, P.C. by E. Thomas Fitzgerald and Robert D. Ashley, Owosso, for Michael Reynolds.
Philip J. Olsen II, Flint, for Scott Johnson.
Frederick E. Salim, Flint, for Timothy Donaldson.
Jerome E. Burns, Saginaw, for Walter Johnson.
Before KELLY, P.J., and SAWYER and KNOBLOCK, * JJ.
These cases concern an appeal by the Genesee County Prosecutor from circuit court orders disqualifying Prosecutor Robert E. Weiss and his entire staff from prosecuting certain cases because of conflict of interest, and providing for appointment of a special prosecutor, pursuant to M.C.L. Sec. 49.160; M.S.A. Sec. 5.758. The two sets of cases arose from discrete factual situations, but involve the same legal issue and have been consolidated in this appeal. The first set of cases arose out of a large-scale investigation into drug trafficking in the Flushing, Michigan area. Defendant Johnathan P. Doyle is charged with delivery of cocaine, contrary to M.C.L. Sec. 333.7401(1); M.S.A. Sec. 14.15(7401)(1). Nine other drug charges are also pending against defendant Doyle in other district courts. Defendants Matthew S. Kardos and Michael Lee Reynolds are also charged with delivery of cocaine. The second set of cases concern defendants Walter Johnson, Scott James Johnson and Timothy Donaldson who are charged with assault with intent to cause great bodily harm, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279. The people appeal by leave granted. We affirm.
The basis of defendants Doyle's, Kardos' and Reynolds' motion for disqualification of the prosecutor for conflict of interest is the personal relationship between Doyle and Dennis Lazar, Chief Assistant Genesee County Prosecutor. Doyle and Lazar are brothers-in-law; their wives are sisters. The Flushing drug investigation, supervised by the prosecutor's office, began in August, 1984, and implicated Doyle in September, 1984. Doyle married Lazar's sister-in-law around Christmas, 1984.
Believing he had a plea agreement, Doyle waived preliminary examination on ten drug charges, and the cases were bound over to circuit court. After Prosecutor Weiss denied having agreed to the plea agreement, Doyle moved for remand of the cases to district court. Nine of the cases were remanded. However, Judge Harry B. McAra denied the motion to remand this case. Instead, hearings were held on the question of whether or not a plea bargain had been agreed to and the cases involving defendants Kardos and Reynolds were waived to the circuit court for the special purpose of determining whether the prosecutor's office was disqualified for conflict of interest.
At the hearings Doyle's original defense counsel, Terrance P. Sheehan, testified that he met with Lazar on three occasions, and thought a plea agreement had been reached in Doyle's case. Sheehan admitted that Lazar never said "we have an agreement," but Sheehan had the impression that they had a conditional agreement, subject to Lieutenant Peraino's approval. Because Sheehan believed an agreement had been reached, he permitted an incriminating interview between Doyle and Lieutenant Peraino.
Subsequently, at Doyle's preliminary examination, Sheehan and Lieutenant Peraino informed the assistant prosecuting attorney, Paul Jarboe, of the plea agreement. Jarboe wanted to confirm it with his superior but was unable to reach any authority there. Lieutenant Peraino suggested waiving the preliminary examinations in all ten cases and putting the plea bargain on the record in circuit court. Sheehan agreed and this was done. Soon after, Sheehan received a telephone call from Weiss who told him that they did not have a plea agreement. It was then that Sheehan moved for remand with the consequences previously outlined. Sheehan testified that Lazar told him that he could not make decisions on the Doyle case and Sheehan understood that Lazar was not involved in the Doyle case, that Lazar was speaking for Weiss and acting at Weiss' direction. However, all of Sheehan's discussions were with Lazar; he never spoke with Weiss or any other prosecutor.
Dennis Lazar testified that he did have discussions with Sheehan, but denied that he indicated that they had a plea agreement subject to Lieutenant Peraino's approval. Lazar testified that he was speaking on behalf of Weiss and related the conversations with Sheehan to Weiss. The trial court asked Lazar why he talked to Sheehan if he was disqualifying himself. Lazar answered that he had removed himself from the decision-making processes, but that Weiss had given him authority to gather information and to relate it to Weiss.
Mr. Weiss, Prosecutor for Genesee County, testified that when Lazar told him that Sheehan wanted a plea bargain Weiss told him no. Weiss testified that after Doyle became Lazar's brother-in-law, Lazar was out of the Doyle case. Lazar was still involved, however, in cases in which Doyle was a witness.
Subsequently, the trial judge denied Doyle's motion to enforce the alleged plea bargain and that issue is not before this Court. However, the trial judge granted all defendants' motions for disqualification of Prosecutor Weiss and his staff pursuant to M.C.L. Sec. 49.160; M.S.A. Sec. 5.758. In his opinion, Judge McAra stated that, while the court did not find that there had been actual fraud or impropriety on the part of the prosecutor's office, there was the appearance of impropriety. The order for disqualification provided for appointment of a special prosecutor and for appointment of an investigator to assist the special prosecutor. The order disqualified the prosecutor's office from prosecuting the Doyle, Reynolds and Kardos cases, and also all other cases arising out of the Flushing drug investigation, including other cases pending against Doyle.
The basis for defendants Walter Johnson's, Scott Johnson's and Timothy Donaldson's, claim for disqualification is that the complaining witness and victim, Danny Lazar, is the brother of Dennis Lazar, Chief Assistant Prosecutor.
The charges against defendants Walter Johnson, Scott Johnson and Timothy Donaldson arose out of an altercation on November 4, 1984. Three complaints were filed. Two complaints were filed by Danny Lazar and Genesee County Police Officer Charles Abraham alleging criminal activity by the three defendants. Ruth Johnson, wife of defendant Walter Johnson, filed the third complaint, alleging that Danny Lazar assaulted her husband. The warrants were issued more than three months after the complaints were filed, and were authorized by Assistant Prosecutor John McGraw. Prosecutor Weiss testified that he was unable to establish that he was in the office on the day the warrants were issued, in which case Dennis Lazar would have acted as prosecuting attorney. Weiss testified that Dennis Lazar did not participate in this matter and that the warrant authorization was issued by Assistant Prosecutor McGraw. The trial court, Judge Donald R. Freeman, found it likely, however, that Dennis Lazar was the supervising prosecutor when McGraw issued the warrants.
Weiss also testified that, prior to the altercation, Ruth Johnson came to see him to discuss a complaint against Danny Lazar, which involved allegations of sexual impropriety. Weiss testified that Ruth Johnson wanted to proceed against Danny Lazar, but that he was not sure that she had made a formal criminal complaint. Weiss, who testified that he knew Danny, telephoned him after the meeting with Ruth and advised Danny to avoid Walter Johnson. Weiss also thought that Dennis Lazar had discussed the case with his brother.
Judge Freeman granted defendants' motion for disqualification of Prosecutor Weiss and his staff, and ordered a special prosecutor or the Attorney General to take over those duties.
The people's argument is that the mere appearance of impropriety alone is insufficient to support a disqualification order where there are no facts demonstrating an emotional or personal stake in the litigation which warrants recusal, and where there is no showing that either investigation was improperly conducted.
The various defendants brought these motions to disqualify the Genesee County Prosecutor and his staff pursuant to M.C.L. Sec. 49.160; M.S.A. Sec. 5.758 which provides in part:
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