People v. Johnson, Docket No. 93490

• Decision Date: 07 July 1988
• Docket Number: Docket No. 93490
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Paul JOHNSON, Defendant-Appellant. 168 Mich.App. 581, 425 N.W.2d 187
• Court: Court of Appeal of Michigan — District of US

Page 187

425 N.W.2d 187

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Paul JOHNSON, Defendant-Appellant.

Docket No. 93490.

168 Mich.App. 581, 425 N.W.2d 187

Court of Appeals of Michigan.

Submitted Jan. 11, 1988.

Decided May 17, 1988.

Released for Publication July 7, 1988.

[168 MICHAPP 582] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, and Linda M. Betleski, Asst. Pros. Atty. Trainee, for the People.

Lawrence R. Greene, Detroit, for defendant-appellant on appeal.

Before SAWYER, P.J., and MAHER and T.M. BURNS, ^* JJ.

PER CURIAM.

On April 15, 1986, following a four-day jury trial in the Detroit Recorder's Court, defendant was found guilty of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, for which he was sentenced to fifteen to forty years imprisonment. He now appeals his conviction as of right. We affirm.

During the evening and early morning hours of September 12 and 13, 1985, defendant and several friends had been drinking at the Beer Can Bar in Detroit, Michigan. Shortly after the bar stopped serving alcohol, Maggie Cason and three others entered the bar for a drink. When the bartender refused to serve them, an argument ensued. The argument eventually involved several patrons, including[168 MICHAPP 583] defendant, who were still at the bar. The argument ended without incident, though, and Cason's party left the bar.

Cason and her friends were crossing the street when defendant left the bar and got into his car. He sped past nearly hitting them. Cason shouted out, "What are you trying to do, hit us?", and defendant replied, "Yes." He drove away from them for a short distance before making a U-turn and heading directly at them. Defendant's vehicle jumped a curb and struck Cason, pushing her into a pole. Defendant then backed up and appeared to run over her a second time before driving away.

Two police officers for the City of Detroit, who were patrolling the area at the time, witnessed the entire incident. They were able to stop defendant's vehicle approximately four or five blocks from the scene and placed him under arrest. Defendant asserted at his arrest, and later at trial, that he was heavily intoxicated, that he did not see Cason or intend to run over her, and that he did not even know what happened until the police stopped him.

The jury, choosing not to believe defendant's story, rendered a guilty verdict against him of assault with intent to commit murder.

On appeal, defendant first argues that the trial court erred in ordering that a letter, written by defendant's girlfriend to his defense counsel, be turned over to the prosecutor at trial. We hold there was no error.

During direct examination of Roxanne Gierwicki, defendant's girlfriend (who was riding in the car with him at the time of the assault), the prosecutor asked whether she had given a written statement about the incident to defense counsel. When she answered affirmatively, the prosecutor requested that he be shown the statement. Defense counsel objected on the ground that the statement, [168 MICHAPP 584] which was actually an unsolicited letter Gierwicki had written, was attorney work product. The trial court, without explanation, ordered that the prosecutor be allowed to examine the letter. Apparently the letter contained nothing of importance because the prosecutor did not ask any questions concerning it. Thereafter, defense counsel moved to admit the letter into evidence, but the motion was denied.

In Michigan, the liberal rules of discovery available in civil proceedings are not equally applicable to criminal cases. MCR 6.001(B). However, this is not to say that discovery in criminal cases is prohibited. Even where discovery is not authorized by statute or rule, it has long since been recognized that discovery in criminal cases is a matter within the trial court's discretion. People v. Freeman (After Remand), 406 Mich. 514, 516, 280 N.W.2d 446 (1979); People v. Taylor, 159 Mich.App. 468, 471-472, n. 5, 406 N.W.2d 859 (1987), lv. den. 428 Mich. 913 (1987), and cases cited therein. Although this state has not yet decided the issue, there seems to be a growing trend in other jurisdictions to allow prosecutors greater access to the pretrial statements and notes of defense lay witnesses, at least where such does not impinge upon a defendant's constitutional or statutory rights. See United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); Anno: Right of prosecution to discovery of case-related notes, statements, and reports--state cases, 23 A.L.R.4th 799, Sec. 7, pp 830-834. See also, LaFave & Israel, Criminal Procedure (student ed), Sec. 19.4(a) and (g), pp. 741-742, 748-750.

In the instant case, we do not believe the trial court abused its discretion in ordering that the prosecutor be allowed to examine the letter written by Gierwicki. Contrary to what defendant asserts on appeal the letter was not attorney work [168 MICHAPP 585] product. Being an unsolicited letter voluntarily written by Gierwicki, it was not a document prepared by defense counse...