People v. Lemcool

• Decision Date: 24 June 1994
• Docket Number: Nos. 3,Nos. 96887,96888,4,s. 96887,s. 3
• Citation: 445 Mich. 491,518 N.W.2d 437
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Terry Lawrence LEMCOOL, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jean Marie MAUSOLF, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 437

518 N.W.2d 437

445 Mich. 491

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Terry Lawrence LEMCOOL, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jean Marie MAUSOLF, Defendant-Appellee.

Nos. 96887, 96888.

Calendar Nos. 3, 4.

Supreme Court of Michigan.

Argued Jan. 11, 1994.

Decided June 24, 1994.

Dennis P. Grenkowicz, Pros. Atty. of Alpena County, Robert A. Reuther, Chief Asst. Prosecutor, for plaintiff-appellant.

State Appellate Defender Office by Ronald J. Bretz, Asst. Defender, for defendants-appellees.

Criminal Defense Attorneys of Michigan by David M. Lawson, Detroit, amicus curiae in support of defendants-appellees.

Margaret M. Chiara, President, Pros. Attys., Ass'n of Michigan, William A. Forsyth, Kent County Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., amicus curiae in support of plaintiff-appellant.

PER CURIAM.

This is an interlocutory appeal in a drug case. After the prosecuting attorney disclosed the names of the witnesses he intended to call at trial and provided a copy of the laboratory report, the circuit court ordered the defendants to disclose their witnesses and to list any physical evidence that they were planning to introduce.

The Court of Appeals reversed the order of the circuit court. However, we find that the circuit court did not abuse its discretion, and we therefore reverse the judgment of the Court of Appeals and reinstate the order of the circuit court.

I

Sergeant Thomas G. Mullaney of the Alpena Police Department was working undercover in Alpena on September 14, 1990. ¹ While watching the parking lot of the Dry Dock Bar, he saw defendants Terry Lemcool and Jean M. Mausolf enter a pickup truck, together with a codefendant named David Sommerfeld. Mr. Sommerfeld was in the driver's seat and Mr. Lemcool was sitting on the passenger side. Ms. Mausolf sat between them.

Sergeant Mullaney approached the truck because the three appeared to be using a controlled substance. When he walked up to the vehicle, he saw a tray with white powder and a rolled dollar bill. A search of Mr. Lemcool produced a pack of Zigzag papers and a piece of metal that Sergeant Mullaney believed would be used to separate cocaine into lines. ²

The defendants are charged with possessing less than 25 grams of cocaine. ³ M.C.L. § 333.7403(2)(a)(v); M.S.A. § 14.15(7403)(2)(a)(v). Codefendant Sommerfeld evidently was also charged with the same offense, but his case is not before us on appeal.

Before the preliminary examination, counsel for defendants Lemcool and Mausolf filed in district court a December 11, 1990, appearance that included a demand for "[c]opies of complaint, warrant, statements, police reports" and a demand "[t]hat witness names and statements be provided, in compliance with M.C.L. § 767.40a et seq. [M.S.A. § 28.980(1) et seq. ]." The file indicates that the prosecutor sent the police report to counsel the next day.

On January 2, 1991, defense counsel wrote to the prosecutor to say that, while he had received the police report, he did not have a copy of the laboratory report. Two days later, the prosecutor sent a copy of that report to defense counsel.

After the defendants were bound over to circuit court, the circuit judge prepared a November 18, 1991, "Arraignment Summary." It stated that the "prosecutor has given defendant copy of statement(s)" and that the "prosecutor has or will disclose physical evidence and will allow examination of same upon a reasonable request made within 3 days."

On December 6, 1991, the prosecutor filed a "Motion for Reciprocal Discovery." The motion recited that the prosecutor had complied with his statutory ⁴ obligation to disclose the names of witnesses that he intended to call at trial, and that he had provided the defendants with copies of the police reports.

In his discovery motion, the prosecutor requested "the names and addresses of all witnesses the defendant intends to call at trial, any written or recorded statements of the witnesses, any reports or statements of experts made in connection with the case and any real or tangible evidence the defendant intends to offer at trial." In support of the motion, the prosecutor cited People v. Richard P. Johnson, 168 Mich.App. 581, 583-585, 425 N.W.2d 187 (1988), and People v. Tronti, 176 Mich.App. 544, 547-550, 440 N.W.2d 62 (1989).

In their written response to the prosecutor's motion, the defendants admitted that "the trial court has the authority to grant discovery," but urged that the prosecutor's request be denied.

The circuit court granted the prosecutor's motion, in part:

THIS MATTER having come on for hearing and the Court being fully advised on the premises,

IT IS HEREBY ordered that within twenty (20) days from the entry of this order the People will be furnished the following:

1. Names and addresses of the witnesses the defendant intends to call at trial.

2. Names and addresses of expert witnesses the defendant intends to call at trial.

3. A list of tangible physical evidence the defendant intends to introduce at trial.

IT IS FURTHER ordered that the defendant disclose to the People any additional names and addresses and any additional tangible physical evidence in a reasonable time after the twenty (20) days as they become known.

IT IS FURTHER ordered that the motion is denied as to furnishing any written reports or statements or any recorded statements of the witnesses in the possession of the defendant.

In an order denying the defendants' motions for reconsideration, the circuit court added this explanation:

Finally, the Court notes Defendant's claim that reciprocal discovery would tend to lead to revelation of the theory of the defense, but is not persuaded by it in this instance. If Defendant's argument is valid, then any mere assertion by defense that discovery would reveal their theories would prohibit a Court granting discovery. This Court cannot believe such was the intention of the Legislature, Court of Appeals and Court Rules.

The defendants appealed. ⁵ Reversing the circuit court's discovery order, the Court of Appeals held that, "in the absence of specific authority [from a statute or court rule], the better policy is for trial courts to exercise judicial restraint and refuse to permit such prosecutorial discovery in light of potential and far-reaching effects on fundamental constitutional principles and rights." 200 Mich.App. 77, 80-81, 504 N.W.2d 7 (1993). The majority went on to call on the Legislature and this Court "to define the scope of criminal discovery in Michigan." Id. at 82, 504 N.W.2d 7.

In dissent, Judge MacKenzie wrote that the circuit court did not abuse its discretion in this case:

As noted by the majority, there is at present a split of authority in this Court regarding whether general discovery may be ordered in favor of the prosecution. In People v. Paris, 166 Mich.App. 276; 420 NW2d 184 (1988), this Court concluded that, in the absence of a court rule, the prosecution does not have a right to discovery except where statutorily mandated. In People v. [Richard P ] Johnson, 168 MichApp 581, 584; 425 NW2d 187 (1988), and People v. Tronti, 176 MichApp 544, 550; 440 NW2d 62 (1989), however, this Court held that trial courts have inherent discretionary power to grant the prosecution discovery despite the absence of specific authorization by statute or court rule.

Because the trial court's discovery orders are reviewed for abuse of discretion, Tronti, supra, defendants must establish that an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made. People v. Watkins, 176 MichApp 428, 430; 440 NW2d 36 (1989). Here, the trial court was entitled to follow the [Richard P ] Johnson line of authority, see In re Bay Co Prosecutor, 102 MichApp 543, 549; 302 NW2d 225 (1980), and defendants offered only their unsupported allegation that discovery would tend to reveal their defense theory and strategy. Under these circumstances, I would find no abuse of discretion in the trial court's order and accordingly would affirm. [200 Mich.App. at 82-83, 504 N.W.2d 7.]

The prosecutor filed applications for leave to appeal, which we granted "limited to [the issue] whether the trial court properly ordered thedefendants to provide discovery to the prosecution." 509 N.W.2d 156 (1993).

II

We have long entrusted the question of discovery in criminal cases to the discretion of the trial court. People v. Herbert L. Johnson, 356 Mich. 619, 97 N.W.2d 739 (1959); People v. Maranian, 359 Mich. 361, 368, 102 N.W.2d 568 (1960); People v. Wimberly, 384 Mich. 62, 66, n. 1, 179 N.W.2d 623 (1970); People v. Pearson, 404 Mich. 698, 731, 273 N.W.2d 856 (1979) (opinion of LEVIN, J.); People v. Freeman (After Remand ), 406 Mich. 514, 516, 280 N.W.2d 446 (1979).

However, panels of the Court of Appeals have reached differing conclusions with regard to whether the prosecutor may discover information known to the defense. Compare Richard P. Johnson and Tronti, supra, with the opinions issued by the Court of Appeals in the present case and in People v. Paris, 166 Mich.App. 276, 278-280, 420 N.W.2d 184 (1988).

Extensive efforts also have been undertaken to formalize satisfactory rules of discovery in criminal cases. See, generally, proposed Subchapter 6.200 of the Michigan Court Rules, 422A Mich. 65-106 (1985). In particular, proposed MCR 6.205 would have treated disclosure of information known to the defense. 422A Mich. 79-87.

After lengthy discussions, we decided not to adopt proposed Subchapter 6.200. Rather than promulgate a set of fixed rules, we were persuaded to allow some further development of this area through the resolution of appellate cases.

A recent example of this case-by-case approach is People v. VanderVliet, 444 Mich. 52, 89, 508 N.W.2d 114 (1993). There, we held that, to aid in the resolution of issues concerning ...