People v. Taylor, Docket No. 79360

• Decision Date: 21 July 1987
• Docket Number: Docket No. 79360
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Grove TAYLOR, Defendant-Appellant. 159 Mich.App. 468, 406 N.W.2d 859
• Court: Court of Appeal of Michigan — District of US

Page 859

406 N.W.2d 859

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Grove TAYLOR, Defendant-Appellant.

Docket No. 79360.

159 Mich.App. 468, 406 N.W.2d 859

Court of Appeals of Michigan.

Submitted Aug. 5, 1986.

Decided April 21, 1987.

Released for Publication June 18, 1987.

Leave to Appeal Denied July 21, 1987.

[159 MICHAPP 470] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Cris J. Van Oosterum, Pros. Atty., and Tonatzin M. Alfaro Garcia, Asst. Atty. Gen., for the People.

Alphonse Lewis, Jr., Grand Rapids, for defendant-appellant.

Before HOOD, P.J., and HOLBROOK and PETERSON, ^* JJ.

PETERSON, Judge.

This case calls for a reexamination of People v. Florinchi, 84 Mich.App. 128, 269 N.W.2d 500 (1978), lv. den. 405 Mich. 828 (1979), People v. Pace, 102 Mich.App. 522, 302 N.W.2d 216 (1980), and People v. Turner, 120 Mich.App. 23, 328 N.W.2d 5 (1982), dealing with prosecutorial failure to comply with discovery agreements and orders. ¹ Those cases equated such noncompliance with an unconstitutional denial of due process, ² and Pace reduces the entire problem to one test unless such undisclosed evidence is excluded at trial:

"Where a prosecutor has violated a discovery order--even if done inadvertently in good faith--unless it is clear that the failure to divulge was harmless beyond a reasonable doubt, we will reverse." 102 Mich.App. 530-531, 302 N.W.2d 216. [Footnotes omitted. Emphasis added.]

[159 MICHAPP 471] We disagree, not with the proposition that prosecutors ought to be bound by discovery orders or their own discovery agreements, but with the view that this procedural problem should be elevated to constitutional rank and locked into an inflexible remedy.

It is anomalous that otherwise admissible evidence should be excluded as the penalty for failure to comply with a discovery order or agreement when the discovery provisions of the Michigan Court Rules are expressly made inapplicable to criminal cases. ³

It is anomalous that otherwise admissible evidence should be excluded as the penalty for failure to comply with a discovery order or agreement made without the authority of rule or statute when such a remedy would not necessarily or even ordinarily follow in jurisdictions where discovery is authorized by rule or statute. ⁴

It is anomalous that in this state where discovery[159 MICHAPP 472] in criminal cases, without the imprimatur of rule or statute, has evolved as a discretionary matter, ⁵ the trial court should be allowed no discretion in handling problems of compliance with its orders. ⁶

[159 MICHAPP 473] It is anomalous that the introduction of evidence which is authentic, relevant and otherwise admissible should result in a new trial as the penalty for failure to comply with a discovery order or agreement when such evidence would be unobjectionable on retrial.

It is anomalous that the use of otherwise admissible evidence to impeach a perjurious defendant should be perceived as due process "unfairness" because not previously disclosed to him even though evidence which is inadmissible for constitutional reasons may be so used, ⁷ and even where that evidence consists of his own statements.

The ultimate anomaly, of course, given the purpose of discovery to aid the judicial search for truth, would be to turn the procedures intended to accomplish that purpose into a substantive bar to the proof of that which is true and, by precluding proof of the truth, produce a miscarriage of justice, a wrong verdict. This is such a case: had the trial judge heeded Pace and excluded the evidence in question, all the other evidence in the case would have been seen in a different light and might well have resulted in the acquittal of a guilty man.

Defendant appeals his jury conviction of receiving and concealing stolen property of a value over $100, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. The stolen property in question was a pickup truck which was found in the possession of Calvin Veldt and George Lipponen, friends of the defendant. They testified that when defendant was visiting them at Brimley in the Upper Peninsula, he indicated that he could get a stolen pickup truck for Veldt cheap; that [159 MICHAPP 474] they returned with defendant to his lower peninsula home in Mason County on January 28, 1982; that the truck in question was stored in defendant's garage; and that Veldt bought the truck from defendant for $2,000.

Defendant denied selling the truck to Veldt. He testified that, while visiting with Veldt and Lipponen at Brimley, he had told them that there were trucks for sale cheaper in Mason County than around Brimley; that Veldt and Lipponen then came to Mason County with him; and that they purchased a truck while he was not with them and under circumstances of which he had no knowledge. He also testified that he could not have kept a truck in his garage because the garage was full of junk and wood. In support of this latter testimony, defendant called witnesses who testified that they had been at defendant's residence on and shortly before January 28, 1982; that his garage was full of wood; and that there was no truck in the garage. Defendant also offered the testimony of character witnesses.

Unfortunately for defendant, his version of events, which might otherwise have seemed persuasive, and the depiction of his good character and truthfulness were destroyed during his cross-examination by a letter he had written to a friend, and by his ineffectual attempts to disavow the letter and then to explain it. The letter, received as an exhibit over objection, ⁸ clearly demonstrated [159 MICHAPP 475] defendant's guilt and asked the friend to put pressure on Veldt to change his story so as not to implicate the defendant.

After the proofs were closed, defendant's attorney raised a different question about the letter, apparently seeking a mistrial. He pointed out that he had made an informal discovery agreement with the prosecuting attorney as to prosecution evidence and that the prosecuting attorney had never disclosed the existence of the letter pursuant to the agreement. The prosecuting attorney acknowledged the existence of the informal discovery agreement, but waffled about compliance with it. He first attempted to deny noncompliance and to shift the onus to defense counsel by saying that he wasn't sure whether defense counsel had the letter, that he was "not prepared to say of record that he [defense counsel] absolutely, positively had a copy of the letter and lost it." When the trial judge tried to pin him down, the prosecutor then claimed that he had only learned of the letter the night before trial and that it was given to him the day of trial, but later he retreated into ambivalence, saying, "It is our policy to give everything we have and I would assume that if we have had it, then he should have gotten it, but I don't think we got it...."

Without further inquiry, ⁹ the trial court accepted the prosecutor's claim that the existence of [159 MICHAPP 476] the letter was unknown to the prosecutor until the night before the trial. Insofar as the trial court's comments might seem to hold that this excuses compliance with a discovery order or agreement, we disagree. An agreed or ordered duty to disclose is a continuing obligation; the prosecutor's failure to disclose the letter before the commencement of the trial and his use of the letter without its prior disclosure was a violation of that obligation. ¹⁰ Neither do we agree with the trial judge's comments, finding it significant that there was no motion for discovery, ¹¹ for we agree with Florinchi in its holding that discovery agreements are to be given the same effect as discovery orders. Given the agreement and given the prosecutor's failure to disclose the letter pursuant thereto, the trial court's finding that there had not been "any error committed by the Prosecutor" is erroneous. That is not, however, the critical inquiry here. Given the prosecutor's violation of the discovery agreement, [159 MICHAPP 477] the critical question is as to the appropriate response and remedy by the trial court.

Here the trial judge, though believing that there was no prosecutorial error, did precisely the right thing if we are to judge by what is done in our sister states and in the federal courts. He invited inquiry into whether and how defendant was prejudiced by the failure of the prosecutor to disclose the letter. His inquiry to defense counsel as to whether there might be any other witnesses that defendant would have called was an invitation to reopen proofs and to recess the trial until further inquiry could be made. Defense counsel made no such motions, however. His only showing of prejudice, other than the bald assertion thereof, was to say that even in hindsight it was difficult to say what might have been done differently other than to "perhaps" call the recipient of the letter. The trial judge concluded that if there had been "any error on the part of the People ... it was harmless"; that although the letter was very damaging to the defense, it was admissible evidence to which no objection other than nondisclosure could be made. That reasoning clashes with Pace where, without any showing of actual prejudice, the Court applied a constitutional standard of review and assumed that the error could not be harmless beyond a reasonable doubt. Pace, too, involved the use of the defendant's own words for impeachment and the Court said, as the defendant now says here, that had defense counsel known of the statements he might have advised his client not to testify or might have adopted some strategy for minimizing their impact.

In 1978, People v. Florinchi, supra, was the first Michigan case to address the question of a remedy for noncompliance with a discovery order or agreement. It was also the first Michigan case to speak [159 MICHAPP 478] of discovery in terms of constitutional rights. In Florinchi a defense motion for...