People v. Watts

• Decision Date: 20 May 1986
• Docket Number: Docket No. 78951
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David WATTS, Defendant-Appellant. 149 Mich.App. 502, 386 N.W.2d 565
• Court: Court of Appeal of Michigan — District of US

Page 565

386 N.W.2d 565

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David WATTS, Defendant-Appellant.

Docket No. 78951.

149 Mich.App. 502, 386 N.W.2d 565

Court of Appeals of Michigan.

Submitted June 26, 1985.

Decided March 3, 1986.

Released for Publication May 20, 1986.

[149 MICHAPP 504] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Thomas M. Chambers, Asst. Pros. Atty., for the People.

State Appellate Defender by Chari Grove, for defendant-appellant on appeal.

Before MAHER, P.J., and BRONSON and WALSH, JJ.

BRONSON, Judge.

Defendant was charged with manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, and assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279. Trial was scheduled for September 10, 1981. On September 9, the prosecutor notified defendant's attorney that he intended to re-charge the defendant with second-degree murder. He further stated that he would accept a plea to manslaughter. The defendant[149 MICHAPP 505] did not wish to plead guilty, and on September 10, 1981, the former charges were dismissed and defendant was rearrested and charged with second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Defendant moved for dismissal of the charge due to prosecutorial vindictiveness. A hearing was held in Wayne County Circuit Court on April 23 and May 7, 1982, before Judge Maureen P. Reilly, who denied the defendant's motion. Defendant's application for leave to appeal Judge Reilly's decision was denied by this Court on January 20, 1983 (Docket No. 67825, unpublished).

Defendant was tried by a jury on July 27 through August 3, 1983, in Wayne County Circuit Court. A mistrial was granted when the jury was unable to reach a verdict. Defendant was then tried by a second jury and before a different circuit court judge on February 6 through 14, 1984. Defendant was found guilty of manslaughter and sentenced, on March 27, 1984, to from 3 to 15 years. He now brings this appeal as of right.

Defendant's conviction resulted from the death of Clifton Bivens on July 13, 1981, at 303 West Buena Vista in Highland Park. Emergency medical personnel found Bivens at that address suffering from a severe head wound. He and a woman, Felda Lindsey, were transported to Ford Hospital. Bivens died as a result of a fractured skull caused by a blow to the back of the head with a blunt instrument.

On July 14, 1981, the defendant came to police headquarters with Felda Lindsey's mother and was arrested. He gave the police a statement in which he stated that he and Lindsey had argued and that he decided to leave and take his stereo with him. Lindsey threatened him with a knife and then hit him with a baseball bat. He grabbed the bat and pushed her, and Clifton Bivens ran [149 MICHAPP 506] around the table toward him. He stated that he had told Bivens to stay back, that Bivens wouldn't, and that he struck Bivens with the bat and then struck him again when he tried to get up. Defendant then pushed Lindsey out on the porch and left the house. The defendant further stated that he had heard that Bivens carried a pistol and had "done other shootings and fightings". He stated that Bivens had tried to take the bat from him and that he had hit Bivens two or three times.

There were two preliminary examinations in this case. The second preliminary examination was held when defendant was re-charged with second-degree murder on September 22, 1981. Felda Lindsey testified that she and the defendant were arguing and that she hit him with a bat. She testified that the defendant took the bat. She saw Clifton Bivens with a chair in his hands and saw him coming at the defendant. She saw the defendant and Bivens struggling, but did not say she saw the defendant swing the bat. She did not recall her statement to police and could not say what had caused Bivens' death, except that he "jumped into a fight he shouldn't have jumped into". Judge Garian reminded the witness of her testimony in the earlier preliminary examination and noted that her testimony had changed. A recess was taken, during which the judge read the transcript of the earlier preliminary examination. He recalled that the witness had testified previously that she had seen the defendant strike Bivens with the bat. Defendant's statement and answers to questions were then admitted. Judge Garian found that there was sufficient evidence to bind the defendant over on second-degree murder charges.

At trial, Felda Lindsey testified that Clifton Bivens was her former boyfriend, but that there [149 MICHAPP 507] was no animosity between him and the defendant. On the day of the killing, she described the argument between herself and the defendant, defendant's threat to leave and take a stereo component set she had considered her own, and admitted that she struck the defendant first with the bat. The defendant then grabbed the bat and pushed her. She stated that Bivens had picked up a chair and was backing up when the defendant turned on him with the bat. She stated that Bivens was coming around the dining room table. According to the witness, Bivens was using the chair defensively and did not swing it or come at the defendant. She saw the defendant hit Bivens in the head with the bat. Bivens had dropped the chair and had both hands up to his face when he was struck. She explained earlier inconsistent testimony by stating that she had been on medication and under psychiatric care. Defendant's statement was also admitted.

Defendant testified in his own behalf. He stated that he had no animosity toward Clifton Bivens. He testified that when he and Felda Lindsey began fighting, Bivens picked up a chair and came around the table at him. He thought Bivens was going to hit him with the chair and he told Bivens to stay back. When Bivens kept coming, the defendant began swinging the bat. He stated that he feared for his life and had no intent to kill Bivens. He did not specifically remember hitting Bivens, although he knew that he had swung several times and knew that Bivens had gotten hit. He denied the truth of the statements he had made to police that he had hit Bivens when he tried to get up or that he had hit him two or three times. He testified that he had not told police in his statement that Bivens had a chair because he had forgotten it until 1983.

[149 MICHAPP 508] Defendant first argues that his conviction must be reversed because the dismissal of the manslaughter charge and re-arrest on the second-degree murder charge constitutes prosecutorial vindictiveness and a denial of due process. According to defendant, the decision to recharge came only after defendant refused to plead guilty to the charge of manslaughter and was motivated by a desire to punish defendant for exercising his right to trial. Defendant argues that we should apply a "presumption of vindictiveness", whereby the burden is on the prosecutor to objectively prove that the re-charging was justified. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). Two recent United States Supreme Court opinions convince us that a "presumption of vindictiveness" should not be applied in the instant case.

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Court considered an allegation of vindictiveness that arose in a pretrial setting. The Court held that due process did not prohibit a prosecutor from carrying out a threat, made during plea negotiations, to bring additional charges against an accused who refused to plead guilty to the offense originally charged. The prosecutor had explicitly told the defendant that if he did not plead guilty and "save the court the inconvenience and necessity of a trial", he would obtain an additional charge that would significantly increase the defendant's punishment. It was not disputed that the additional charge was justified by the evidence, that the prosecutor was in possession of the evidence at the time the original charge was made, and that the additional charge was brought because of the defendant's refusal to plead guilty.

[149 MICHAPP 509] In holding that no violation of due process occurred, the Court distinguished Pearce, supra, and Blackledge, supra, stating:

"In those cases the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction--a situation 'very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.'

* * * The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, * * * but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. * * *

"To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, * * * and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.' * * * But in the 'give-and-take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.

* * *

"We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment." (Citations omitted.) 434 U.S. 362-363, 365, 98...