People v. Kowalski

• Docket Number: 361620
• Decision Date: 02 November 2023
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JEROME WALTER KOWALSKI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JEROME WALTER KOWALSKI, Defendant-Appellant.

No. 361620

Court of Appeals of Michigan

November 2, 2023

UNPUBLISHED

Livingston Circuit Court LC No. 08-017643-FC

Before: BOONSTRA, P.J., and GADOLA and YATES, JJ.

PER CURIAM.

In 2013, a jury found defendant guilty of two counts of first-degree murder, MCL 750.316, and two counts of possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Former Judge Theresa Brennan sentenced defendant to serve two consecutive life-without-parole sentences for the first-degree murder convictions and two years' imprisonment for the felony-firearm convictions. In 2019, after many unsuccessful appeals to this Court and our Supreme Court, defendant's convictions and sentences were ultimately vacated because of judicial misconduct. Defendant stipulated to a new trial. Defendant now appeals by leave granted^[1] the trial court's pretrial order denying his motion to dismiss the charges with prejudice. We affirm the trial court's decision.

I. BACKGROUND

This is the fourth time this case has come before this Court. The facts are not in dispute in this appeal. Our Supreme Court set forth the relevant background facts for this case in People v Kowalski, 492 Mich. 106, 110-111; 821 N.W.2d 14 (2012):

In May 2008, the brother and sister-in-law of defendant Jerome Walter Kowalski, were found dead in their home. Defendant was charged with both murders. Testimony elicited at defendant's preliminary examination and Walker ¹ hearing indicates that police questioned defendant about the killings four times over the course of several days: first at defendant's home, next at the Brighton Police Station, then at the Ann Arbor Police Department, and finally at a Michigan State Police post.

During the third interview session, defendant acquiesced to the interviewer's statement that there was a "fifty percent chance [he killed his brother], but a fifty percent chance [he] didn't." Defendant discussed having a "blackout" and "blurred" memory and stated, "I thought I had a dream Thursday, but it was the actual shooting."

Defendant confessed to the murders during the last interview session, which followed a night in jail. Defendant stated that he went to his brother's home, walked into the kitchen, and murdered his brother and sister-in-law after a brief verbal exchange. The record suggests that defendant initially described shooting his brother in the chest from a distance of several feet, although he eventually changed his account after a Detective illustrated through role-playing that defendant's first version of events did not corroborate the evidence recovered from the victims' house. At this point in the pretrial proceedings, defendant's confession is the primary evidence implicating him in the murders.

¹ People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).

Defendant was convicted and sentenced to life imprisonment. Years later, it was discovered that the judge who had presided over defendant's trial, former Judge Theresa Brennan, failed to disclose her romantic relationship and communication with a key witness during trial. The circumstances surrounding her failure to disclose are at the heart of this appeal.

Shortly before defendant's trial in 2013, the Livingston County Prosecutor received a letter from a local attorney that alleged Judge Brennan had failed to disclose her social relationships with two police officers who were witnesses in the case. This letter was given to defendant and his trial counsel on the same day it was received. Defendant then moved for Judge Brennan to recuse herself on the basis of "an allegation with respect to the Court being socially friends, social friends with two prospective witnesses of significance to this case." Judge Brennan refused to recuse herself, reasoning that her friendship with the two witnesses did not affect her ability to handle defendant's case. Defendant appealed this decision to Circuit Court Judge David J. Reader.

Defendant framed his challenge on the "appearance of impropriety," acknowledging that "[w]e don't have any actual showing in this situation that Judge Brennan is, in fact, prejudice [sic] with respect to" defendant. Judge Reader acknowledged that judges had friendships with many different individuals and were members of the community. The assistant prosecutor in the case stated that the record in the lower Court was that there is no actual bias. There's no . . . actual facts that have been placed on the record. There has been nothing to indicate concern that there may have been facts known prior to the letter that was received this morning and weren't acted on before. And so in light of all of that, we just really want to get this trial rolling on Monday.

Judge Reader affirmed Judge Brennan's decision, reasoning that a mere "social friendship with two officers" was insufficient to order recusal. Judge Reader stated that he himself was aware of the friendships and that it was "well known by the legal community here in this . . . area."

In 2018, the Judicial Tenure Commission (JTC) filed a complaint against former Judge Brennan. The Master found that, at the time of defendant's trial, former Judge Brennan had been romantically involved with one of the officers involved in the case, Detective Sean Furlong, and had failed to disclose this to defendant.^[2] During an Attorney General investigatory hearing, Detective Furlong testified that he, former Judge Brennan, and other prosecutors had often spent time together in group settings. Furlong testified that the prosecutor had known that he and former Judge Brennan were friends and that "it wasn't a secret." He explained that, after the letter was received, the prosecutor did not ask him any questions about his relationship with former Judge Brennan because the prosecutor "was well aware for years how close friends Theresa and I were. That wasn't a surprise for her."

In her testimony at the JTC proceedings, former Judge Brennan testified that, in the years leading up to defendant's trial, she, two detectives, and many other individuals would often visit the bar together and engage in other group activities. When asked who knew about her relationship with the detective, former Judge Brennan replied, "The prosecutor knew I was friends with [the Detective]." Former Judge Brennan explained which prosecutors had known of her friendship with Detective Furlong, which included the prosecutor in defendant's trial, Pam Maas. In June 2019, our Supreme Court removed former Judge Brennan after conducting a de novo review of the JTC's recommendation. In re Brennan, 504 Mich. 80, 86; 929 N.W.2d 290 (2019). The Court adopted the JTC's findings of fact based on evidence that former Judge Brennan "socialized with Furlong, that she allowed him to use her cottage, that Furlong had been a dinner guest at her home, and that [Brennan]'s husband sometimes gave Furlong his University of Michigan football season tickets at [Brennan]'s urging, as well as evidence of the number of telephone calls and texts between [Brennan] and Furlong." Id. at 93.

On January 8, 2019, upon stipulation by both the prosecutor and defendant, the trial court granted defendant's motion for relief from judgment, vacated defendant's convictions and sentences, and ordered a new trial. However, in April 2022, defendant moved to dismiss his charges with prejudice for two reasons. First, defendant argued that the prosecutor and others had known about former Judge Brennan and Detective Furlong's romantic relationship but had chosen to intentionally conceal it from defendant, thereby violating the duty under Brady v Maryland, 373 U.S. 83; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963), to disclose impeachment evidence. Defendant contended that the proper remedy for such "willful and egregious" misconduct was dismissal of all charges, not retrial. Secondly, defendant argued that double jeopardy also barred retrial because of the prosecution's egregious misconduct. The trial court denied defendant's motion to dismiss, reasoning that there was no binding authority to support either of defendant's positions.

II. ANALYSIS

A. STANDARD OF REVIEW

A trial court's ruling on a motion to dismiss is reviewed for an abuse of discretion. People v Lewis, 302 Mich.App. 338, 341; 839 N.W.2d 37 (2013). The trial court abuses its discretion when it chooses an outcome falling outside the range of principled outcomes. Id. This Court reviews de novo constitutional issues, People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012), such as those involving a Brady violation, People v Dimambro, 318 Mich.App. 204, 212; 897 N.W.2d 233 (2016), or double jeopardy, People v Ream, 481 Mich. 223, 226; 750 N.W.2d 536 (2008).

B. DISCUSSION

Defendant argues that he is entitled to relief based on the prosecutor's Brady violation and the Double Jeopardy Clause. We disagree. We note that defendant frames this case as one of first impression in this Court. He argues that other jurisdictions allow for dismissal of charges when faced with egregious prosecutorial misconduct and that the Michigan Constitution should likewise be interpreted to bar retrial in such circumstances. However, defendant's framing of this issue is misguided and he relies on precedent that addresses circumstances distinguishable from his case.

As an initial matter, we believe that there exists a strong argument that defendant waived any challenge to his remedy by stipulating to retrial. But in his reply brief, defendant argues for the first time that he did not make a "knowing waiver" because he stipulated to a new trial based on "the probability of actual bias by the judge" which was "not a waiver of double...