People v. Patmore

• Decision Date: 08 December 2004
• Docket Number: Docket No. 250019.
• Citation: 693 N.W.2d 385,264 Mich. App. 139
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Dale PATMORE, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

693 N.W.2d 385

264 Mich. App. 139

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Dale PATMORE, Defendant-Appellee.

Docket No. 250019.

Court of Appeals of Michigan.

Submitted October 5, 2004, at Grand Rapids.

Decided October 19, 2004, at 9:00 a.m.

Released for Publication December 8, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Douglas K. Fisher, Prosecuting Attorney, for the people.

Julianne Meyer-Sorek, Kalamazoo, for the defendant.

Before: NEFF, P.J., and SMOLENSKI and SCHUETTE, JJ.

SMOLENSKI, J.

Defendant pleaded no contest to assault with intent to commit murder, M.C.L. § 750.83, and resisting or obstructing a police officer, M.C.L. § 750.81d(1). Before sentencing, defendant moved to withdraw his plea after the alleged victim of the assault essentially recanted her preliminary examination testimony, testimony which constituted a substantial portion of the factual basis for defendant's plea. Following an evidentiary hearing at which the victim testified, the trial court granted defendant's motion and vacated the plea, scheduling the case for trial. This Court granted the prosecution's application for leave to appeal that order. We reverse and remand.

I. Background

At the preliminary examination in this matter on February 11, 2003, Kelly Corzine-Dalke testified that she lived with her friends, Andy Scoles and his wife, Amanda, in Sturgis on January 14, 2003. She and defendant had a relationship and were living together. Corzine-Dalke agreed that there were "some difficulties" between her and defendant in the days just before the incident that gave rise to the charged offenses. She indicated that she left the restaurant where she was working at about 10:00 p.m. because Andy went there and told her that Amanda had left three children, including Corzine-Dalke's son, Anthony, at the house with defendant and him although the two of them were intoxicated.

Corzine-Dalke further testified as follows about what happened when she arrived at the house:

When I got there, [defendant] was passed out on the chair. He woke up when we got in the house. He was very intimidating. Constantly being close to me, asking me about a guy named J.J. that he had heard about from Amanda which was a friend of mine from the restaurant. Basically just being very intimidating and scaring me. And Andy went upstairs to call his parents to come pick up the kids because there was a bunch of chaos. And I followed him upstairs.

Corzine-Dalke followed Andy upstairs because she did not want to be alone with defendant, who she believed would become violent and mean when intoxicated. Corzine-Dalke said that defendant followed her and that, while Andy and she were in an upstairs bedroom where Andy was talking on the telephone, defendant grabbed her by her throat, threw her against a wall, and choked her. Andy pulled defendant off her and they all went downstairs. At some point, Corzine-Dalke said she was going upstairs to put her son to bed. She went upstairs and called 911 and "told them that he [defendant] was going to try to kill me and I was pretty sure he was going to succeed" and then waited with her 1-1/2-year-old son on her lap.

Thereafter, according to Corzine-Dalke, Andy and defendant went upstairs. Andy subsequently went back downstairs when there was knocking on the door. Defendant closed the door and said, "Isn't it so sad that the man you love is about ready to kill you and there's nobody here to protect you." Corzine-Dalke said that defendant "went straight for my throat, choking me, pushing me down onto the bed. I couldn't breathe. At first I was just thinking he's actually trying to kill me and then I realized that I was actually dying." She was holding her child while defendant was choking her with both hands. When asked if defendant was saying anything else, Corzine-Dalke said that "[h]e was saying that he was going to kill me" and that he said, "I'm going to kill you, bitch," a few times. She eventually tried to fight back, but defendant "still did not even lose grip" and did not get off her "until the cops pulled him off of me." When asked to describe the physical sensations she experienced, Corzine-Dalke replied:

I was already getting dizzy. I felt like I was going to black out. In fact everything was going black right when the cops walked in the room. And I just — my life was flashing before my eyes. I was thinking about not being able to raise my son, about the fact that I couldn't believe I was actually going to die this way by him, somebody who was suppose to love me. And I just — I thought I was going to die. I thought it was over.

When asked how much time she thought elapsed from defendant choking her during this incident until the police actually got there, she replied, "It seemed like forever. I don't even know." In response to being asked if she was able to call out to the police at all, she said, "No, I couldn't breathe, nor could I talk, nor could I scream, nor could I even get anything out. I managed to stomp on the floor."

One other witness testified at the preliminary examination. Richard Johnson, a police officer for the city of Sturgis, testified that he was called to the relevant location at about 10:30 p.m. on January 14, 2003. Officer Johnson said that he and three other police officers, all in full uniform, went into the bedroom that Corzine-Dalke described in her testimony. He also testified that, as they were ascending the stairway, he heard "some thumping noises" and a child crying. Officer Johnson also testified, as follows, about the police officers getting defendant off Corzine-Dalke:

Officer [Gregory] Peterson had kind of put the gentleman into what is described as a full Nelson, bringing his hands up so he could no longer choke the victim and then yelled at her to get out and then pushed him back onto the bed and then we attempted to handcuff him.

Officer Johnson stated that defendant struggled with all four officers and offered physical resistance to each of them as he was being arrested.

II. Procedural History

At a circuit court proceeding on May 12, 2003, which appears to be the undisputed date when the trial in this case was set to begin, counsel for the parties indicated that they had reached a plea agreement under which defendant would plead no contest to assault with intent to commit murder and resisting or obstructing a police officer. This would involve effectively consolidating the four counts of resisting or obstructing with which defendant was charged into one count. Also, the prosecution agreed to dismiss an habitual offender charge. Thereafter, during questioning, defendant personally said that he understood the charges to which he was pleading no contest.

In the course of defendant's colloquy with the trial court, defendant said that he wanted to ask "something about Michigan law because I'm not from here." He then asked if there was a time period during which he could withdraw his plea if he changed his mind. The trial court replied that there was not a time limit, but that "it can't be given just because you changed your mind." The trial court also said, "This is it." Then, the trial court asked defendant if he still wanted to proceed, and defendant replied, "I don't want to, but I'm going to." The trial court told him that, if he did not want to plead, "we can try it," to which defendant said, "I'm sure." The trial court then said it "would be perfectly fine," but defendant said, "We'll take it, I guess." The trial court advised defendant of various rights that he would be giving up by pleading no contest, and defendant replied affirmatively when asked if he understood those rights. Defendant replied negatively when asked if he was promised anything other than the terms of the plea agreement for his plea or if anyone had threatened him to make the plea. The trial court expressed that it was using the preliminary examination transcript as the factual basis to support the plea. In particular, the trial court read aloud excerpts from Corzine-Dalke's testimony about defendant choking her and her feeling like she was going to die and from Officer Johnson's testimony about defendant physically resisting the police officers. The trial court accepted defendant's plea.

On July 2, 2003, defense counsel filed a motion to withdraw defendant's plea. The motion stated that the reason for seeking to withdraw the plea was that defendant "believes the victim, [Corzine-Dalke] was being coerced by the Sturgis Police and the F.I.A. [Family Independence Agency] in that if she did not testify, they would remove her minor children [sic] from her physical custody." The trial court conducted a hearing on defendant's motion to withdraw his plea on July 7, 2003. At that hearing, Corzine-Dalke testified that on January 14, 2003 (the day of the incident), she woke up defendant by using rude words and physically shaking and striking him. When asked if defendant assaulted her, including by strangling her neck, Corzine-Dalke said "we did have an argument that was physical call [sic] on both parts." In response to being asked if defendant had his hands gripping her neck to the point that she was almost passing out, she said "[t]hat was involved in a struggle between the both of us." When defense counsel asked Corzine-Dalke if she felt that defendant had tried to kill her, she replied, "I wasn't really sure what was gonna happen. I mean, we were just fighting, so — now, looking back on it, no."

The trial court referenced a letter that it received from defendant and an attached letter from Corzine-Dalke. When the trial court asked her if her description in the letter of defendant placing his hands on her neck, i.e., "your hands were on my shoulders mostly until you lost your balance and you were holding me by the neck," with the police opening the door two seconds later was accurate, Corzine-Dalke replied: "I very firmly believe that he...