PEOPLE v MACK
Docket No. 174385
Court of Appeals of Michigan
Submitted February 20, 1996. Decided August 23, 1996.
218 Mich. App. 359 | 554 N.W.2d 324
Leave to appeal sought.
The Court of Appeals held:
- The trial court abused its discretion in failing to order the prosecution to provide defense counsel the criminal histories of the prosecution‘s witnеsses available through the Law Enforcement Information Network (LEIN).
- The LEIN information requested by the defendant may be provided to a criminal defendant, in accordance with 1981 AACS, R 28.5208(4), pursuant to a court order.
- The evidence supporting the defendant‘s convictions was overwhelming. Any error that restricted the defendant‘s ability to impeach the witnesses could not have affected the verdict and was harmless beyond а reasonable doubt.
- The defendant received the effective assistance of counsel.
Affirmed.
Smolenski, J., dissenting in part, stated that the trial court did not abuse its discretion in declining to order the prosecutor to provide the LEIN information to defense counsel because the prosecution is not required to undertake discovery on behalf of a defendant.
1. CRIMINAL LAW — EVIDENCE — DISCOVERY.
Although a criminal defendant has no general right to discovery, discovery will be ordered where the trial court, exercising its discretion, determines that the thing to be inspected is admissible into evidence and a failure of justice may result from its suppression; denial of disclosure of the material is proper where the defendant is merely on a fishing expedition to see what may turn up.
2. CRIMINAL LAW — DISCOVERY — LEIN INFORMATION.
A trial court, pursuant to a proper request, may order that a criminal defendant be provided information obtained through the Law
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attоrney, and David A. King, Senior Assistant Prosecuting Attorney, for the people.
Jane M. Thurston and Larry Mack, In Propria Persona.
Before: NEFF, P.J., and SMOLENSKI and D. A. JOHNSTON, III,* JJ.
NEFF, P.J. Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder,
I
In his initial appellate argument, defendant asserts that he was denied the opportunity to effectively cross-examine the prosecution‘s witnesses. Defendant‘s constitutional right to confrontation,
In support of his allegation, defendant first argues that the prosecutor violated the stipulation of the parties by failing to provide the local criminal histories of the witnesses in question, thereby denying him the information to properly impeach the witnesses. Nowhere on the record, however, have we found any indication that the prosecutor failed to produce the requested information. Because defendant failed to object in some manner to the alleged failure, and thus the record is silent with regard to whether the prosecution fulfilled its obligations under the discovery order, we will not address this allegation. See Jalaba v Borovoy, 206 Mich App 17, 22; 520 NW2d 349 (1994).
B
Defendant also argues that the trial court erred in failing to order the prosecutor to provide his trial counsel with the criminal histories of the prosecution‘s witnesses available through the Law Enforcement Information Network (LEIN). We agree.
1
While a criminal defendant has no general right tо discovery, discovery will be ordered when the trial court, exercising its discretion, determines that the thing to be inspected is admissible into evidence and a failure of justice may result from its suppression. People v Stanaway, 446 Mich 643, 680; 521 NW2d 557 (1994). If a defеndant is merely on a fishing expedition, however, denial of disclosure of the material is proper. Id.
2
The prosecution also argued below that defendant may not receive the records in question pursuant to 1981 AACS, R 28.5208 - 28.5210. Although the trial сourt did not base its ruling on that argument, we will address it nonetheless because it is an issue of law and all the facts necessary for its resolution are contained within the lower court record. Brown v Drake-Willock Int‘l, Ltd, 209 Mich App 136, 146; 530 NW2d 510 (1995).
Our reading of the relevant rules leads us to the conclusion that LEIN information may be provided to a criminal defendant pursuant to a court order. In reaching this conclusion, we apply principles of statutory construction. Attorney General v Lake States Wood Preserving, Inc, 199 Mich App 149, 155; 501 NW2d 213 (1993).
We conclude this provision provides that, pursuant to a proper request, such as the one here, a court may order the LEIN information disseminated to one of the entities described. In other words, once the court has so ordered, then that entity is legally authorized to have access to the information.
We recognize that 1981 AACS, R 28.5210(1) provides that “[a] user agency shall not disseminate criminal history record information received through the LEIN to a private person.” Although it could be argued that subsection 1 applies to the situation at hand, a full reading of Rule 28.5210 leads us to reach a different result. We conclude that 1981 AACS, R 28.5210 deals primarily with a private person obtaining that person‘s own criminal record through the LEIN. This, as stated in subsection 1, is flatly prohibited. However, a privatе person is permitted to obtain that person‘s own criminal record from the Central Records Division of the Department of State Police. 1981 AACS, R 5210(2) and (3). To find that this provision prohibited the dissemination of LEIN information to anyone other than a user agency would render 1981 AACS, R 28.5208(4) mere surplusage. This we will not do. See Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992).
Accordingly, we conclude that the trial court erred in failing to allow defendant access to the LEIN information regarding the prosecution‘s witnesses.
Although we have concluded that the trial court erred in failing to allow defendant access to the requested LEIN information, it does not necessarily follow that reversal is required. Violations of the right to cross-examination are subject to harmless-error analysis. Cunningham, supra at 657.
Harmless-error analysis, when constitutional issues are involved, calls for a two-step inquiry. People v Minor, 213 Mich App 682, 685; 541 NW2d 576 (1995). First, we must determine whether the error is harmless beyond a reasonable doubt. Id. This test is met if the error had no effect on the verdict. Id. Second, we must determine whether the error was so offensive to the maintenance of a sound judicial system that it can never be regarded as harmless. Id. at 685-686. This standard is met when the error was deliberately injected by the prosecutor, if it deprived defendant of a fundamental element of the adversarial process, or if it was particularly persuasive or inflammatory. Id. at 686.
Here, we conclude that the evidence supporting defendant‘s conviction was overwhelming. At least two witnesses, including the victim, identified defendant as the attacker, and defendant made a statement to the police admitting that he had stabbed the victim. Accordingly, any error that restricted defendant‘s ability to impeach the witnesses could not have affected the verdict, and thus was harmless beyond a reasonable doubt.
We also conclude that the error was not so offensive to the maintenance of our judicial system that it could never be regarded as harmless. Although the trial court‘s ruling was requested by the prosecutor,
Accordingly, although we conclude that the trial court erred in failing to allow defendant access to the witnesses’ LEIN information, we find that the error was harmless and reversal is not required.
III
We have also reviewed the existing record and conclude that defendant was not denied the effective assistance of counsel. People v LaVearn, 448 Mich 207, 212-213; 528 NW2d 721 (1995); People v Barclay, 208 Mich App 670, 672; 528 NW2d 842 (1995). Contrary to defendant‘s assertion, defense counsel did move for discоvery. Furthermore, we cannot find that defense counsel‘s choice of defense strategy was deficient. The defense of alibi, i.e., that defendant was not present at the crime scene, had little likelihоod of success given the substantial evidence, including defendant‘s own statement, identifying defendant as the person who stabbed the victim. However, the defenses asserted at trial, i.e., intoxication, claim of right, аnd self-defense, resulted in the acquittal of defendant with regard to a charge of armed robbery,
D. A. JOHNSTON, III, J., concurred.
SMOLENSKI, J. (concurring in part and dissenting in part). I concur in parts I(A) and III and the result reached by the majority opinion. However, I respectfully dissent with respect to part I(B) of the majority opinion. As recognizеd by the trial court, the prosecution is not required to undertake discovery on behalf of a defendant. People v McWhorter, 150 Mich App 826, 832; 389 NW2d 499 (1986). Accordingly, I would hold that the trial court did not abuse its discretion in declining to order the prosecution tо gain access to the Law Enforcement Information Network and provide defendant‘s counsel with the computerized criminal histories of certain prosecution witnesses.