People v. Solak
| Decision Date | 24 February 1986 |
| Docket Number | Docket No. 79241 |
| Citation | 146 Mich.App. 659,382 N.W.2d 495 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome B. SOLAK, Jr., Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
John J. Murray, Warren, for the People.
Kistner, Schienke, Staugaaro, Dettloff, Hill, Kistner & Troyanovich, P.A. by Gary R. Dettloff, Warren, for defendant-appellant.
Before MacKENZIE, P.J., and CYNAR and DEMING, * JJ.
Defendant appeals his conviction by a jury of assault and battery, M.C.L. Sec. 750.81; M.S.A. Sec. 28.276. Defendant was charged with driving under the influence of intoxicants, contrary to a City of Warren ordinance, 1 and assault and battery. This Court originally denied leave to appeal in this case. However, the Supreme Court, 419 Mich. 892, 349 N.W.2d 513, remanded this case to this Court for consideration as on leave granted.
All witnesses agreed at trial that on May 9, 1981, at approximately 11:20 p.m. defendant was stopped by the City of Warren police for speeding while driving down Eight Mile Road in a westerly direction. After being pulled over by the police, defendant drove his car into the back parking lot of the Wendy's Restaurant located at Eight Mile Road and Dequindre. The testimony of the police witnesses and defendant differ significantly as to what happened from that time on.
The testimony of Officer Gerald Gidner indicates the following. Officer Gidner stopped defendant because he was travelling at a speed of approximately 63 m.p.h. in a 40 m.p.h. zone. After defendant drove his car into the Wendy's parking lot, Officer Gidner approached the car and asked to see defendant's driver's license and car registration. Defendant attempted to get out of the car, but Gidner told him to remain inside the car. Defendant subsequently got out of his car. Defendant's wife, who was a passenger in the car, remained inside the car. Defendant showed Gidner that his license was in his wallet but refused to take it out. Gidner made a second request for defendant's driver's license. Defendant then allegedly threw the wallet in Gidner's direction, striking Gidner on the chest. As Gidner bent down to pick up the wallet, defendant gestured as if he was going to kick Gidner. Gidner straightened up without picking up the wallet and then radioed for assistance. Gidner then picked the wallet up and attempted to remove defendant's license. Defendant responded by threatening to sue Gidner if he removed the license. Gidner removed the license and defendant hit Gidner on the right shoulder with a closed fist. Officer Louis Falbo and his partner, Officer Roger Peplaski, arrived at the scene at this moment. Officer Falbo testified that he observed Gidner flying backwards after defendant pushed Gidner on the shoulder with an open hand. Officer Peplaski did not observe defendant pushing or hitting Gidner.
There was further testimony which indicated that, when Officers Gidner, Falbo and Peplaski attempted to arrest defendant, he kicked or spit at them and used vulgar language. Defendant also appeared to be intoxicated at the time he was arrested.
Defendant's version of the stop and arrest differed considerably from that of the police witnesses. According to defendant's testimony, Gidner stopped defendant's car and asked for defendant's wallet after saying, Defendant attempted to remove his license from his wallet, but the license stuck to the wallet. Gidner then hit defendant's hand and the wallet fell to the ground. As Gidner picked the wallet up, defendant threatened to sue Gidner if he removed the license. Gidner then pushed defendant on his left shoulder. Defendant lost his balance and accidentally struck Gidner with an open hand. Defendant further testified that he was beaten by the police officers during the period of time surrounding the arrest.
Defendant's wife testified that she did not see defendant push or strike Officer Gidner.
On appeal defendant raises nine issues, none of which require reversal. We will discuss the issues in the order raised by defendant.
Defendant first argues that the trial court erred in denying defendant's motion for separate trials as to the two charges--driving under the influence of intoxicants and assault and battery of a police officer.
The drunk driving charge required proof that defendant's ability to operate a motor vehicle was substantially and materially affected by consumption of intoxicating liquor and that defendant operated the motor vehicle while in such condition. People v. Lambert, 395 Mich. 296, 305, 235 N.W.2d 338 (1975). Assault and battery, on the other hand, required a finding of willful touching of another by the aggressor or some object put in motion by him. People v. Bryant, 80 Mich.App. 428, 264 N.W.2d 13 (1978), lv. den. 402 Mich. 942 (1978). The two charges have no overlapping elements and are therefore separate and distinct offenses.
Charges of separate and distinct offenses which are "committed by the same acts at the same time and the same testimony must be relied on for conviction" 2 may be joined for trial. People v. Johns, 336 Mich. 617, 623, 59 N.W.2d 20 (1953). This test was expanded in People v. Tobey, 401 Mich. 141, 257 N.W.2d 537 (1977), to situations where the offenses are not committed at the same time. In Tobey the Supreme Court, quoting the ABA Standards Relating to Joinder and Severance, 3 held that a trial judge does not have the discretion to permit joinder of separate offenses unless the offenses "are of the same or similar character" or "are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan". The Court noted, however, that the ABA Standards also provide "that when offenses have been joined 'solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses,' and that in the other situations where joinder is permitted the court shall grant a severance 'whenever * * * it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense' ". 4 401 Mich. 151, 257 N.W.2d 537.
In the present case, defendant hit Gidner while Gidner was attempting to establish defendant's identity in order to cite him for a traffic violation. Under the circumstances, we find that the trial court did not abuse its discretion in denying defendant's motion for separate trials on the two offenses.
Defendant next argues that the trial court erred in failing to enforce its pretrial discovery order and sequestration order.
During a pretrial hearing defendant informed the trial court that the prosecution had failed to respond to a discovery request. Defendant specifically referred to a videotape which was allegedly made of defendant while he was in the lock-up. The trial court informed defendant that he could obtain a copy of anything which was contained in the court file. The prosecution claimed that the court file was the only file in the custody of the police regarding this case.
At the beginning of the trial, defendant informed the trial court that a tape was made of Gidner's conversation with the police radio dispatcher during the time surrounding the arrest. Defendant was not supplied with a copy of this tape and the tape was apparently destroyed by the time the trial commenced in this case. Both the trial court and the prosecution stated that they were not aware of the fact that defendant's discovery request for statements of defendant and the witnesses included the radio dispatch tape. The trial court also stated that the tapes were probably available at the time defendant first made his discovery request because it was the policy of the police department to retain radio dispatch tapes for 30 days. After the trial court acknowledged this fact, defendant raised no other objections to the prosecution's failure to supply him with the tape and did not move for a dismissal.
It is clear from the record that neither the trial court nor the prosecution understood defendant's discovery request to encompass the police radio dispatch tape. Defense counsel did not inform the trial court of his need for the tape until after the tape had been destroyed.
Defendant sought to use the tape to impeach Gidner's testimony concerning the number of times Gidner called the radio dispatcher after he stopped defendant's car. Evidence was presented at trial which, if believed, impeached Gidner's testimony concerning the number of calls placed to the dispatcher after defendant was stopped. Hence, even if the prosecutor violated a discovery order, which we do not concede, the defendant can point to no prejudice. Based on these facts, we find no reversible error in the trial court's enforcement of the pretrial discovery order. See People v. Hatch, 126 Mich.App. 399, 402-403, 337 N.W.2d 79 (1983).
Defendant also contends that the trial court violated its pretrial discovery order excluding any reference to attempts by the police to administer a breath test to defendant. We find the record does not support defendant's claim. The trial court properly found that the pretrial order only related to the exclusion of any reference to defendant's refusal to take the breath test. Hence, it was not error for the trial court to conclude that, so long as there was no reference to the defendant's refusal to take the test, testimony concerning the time Gidner attempted to administer the test and the reading of defendant's rights would be admissible for impeachment purposes.
Defendant further contends that the trial court violated its sequestration order by allowing Gidner to give rebuttal testimony after he had violated the court's order. This objection was timely raised at trial and the trial court overruled the defendant's objection on two bases. First, ...
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