*1 PEOPLE MACK Fеbruary 1996, Lansing. at Decided Docket No. 174385. Submitted appeal sought. 23, 1996, August at 9:00 A.M. Leave to Court, by jury Larry Washtenaw Circuit Mack was convicted in the bodily Wilder, X, great harm with intent to do Kurtis T. of assault being pleaded guilty of murder. He fоurth-offense less than .then years’ imprison- to six to ten habitual offender and was sentenced appealed. The defendant ment. held,-. Appeals The Court of its discretion in 1. The trial court abused provide dеfense counsel the criminal histories through the Law witnesses available Enforcement (lein). Network Information may requested by the defendant be 2. The lein information defendant, R in with 1981 vided to a criminal accordance 28.5208(4), pursuant order. to court supporting was over- the defendant’s convictions 3. The evidence Any whelming. error that restricted the defendant’s affected the verdict and was witnesses could not have bеyond a doubt. harmless reasonable assistance of counsel. 4. The defendant received the effective Affirmed. Smolensk, X, dissenting part, that the trial court did not in stated declining to order abuse its discretion prosecution is because the lein information to defense counsel required behalf of a defendant. to undertake on Discovery. — —Law Evidence
1. Criminal discovery, general right dis- has no a criminal defendant court, exercising covery its discre- where the trial will be ordered thing inspected tion, into to be is admissible determines that the may suppression; justice result from its evidence and a failure of proper where the defendant the material is denial of disclosure of up. merely fishing expedition what turn to see on Discovery — — Information. 2. Criminal Law lein request, may court, pursuant proper order that a criminal A trial рrovided the Law information obtained defendant be Network; Enforcement Information the order would malm the legally an individual authorized to have access to the (1981 28.5208[4]). *2 Frank J. Kelley, L. Attorney Thomas General, L. Cаsey, Mackie, Brian Solicitor General, Prosecut- King, David A. ing Attorney, and Senior Assistant Prosecuting Attorney, people. for the M.
Jane Thurston and Larry Mack, Propria In Persona. Neff,
Before: P.J., and D. Smolenski and A. John ston, III,* JJ.
Neff, P.J. by Defendant was jury convicted of assault with bodily intent to do great harm less than murder, MCL 750.84; pleaded guilty of being fourth-offense habitual offender, MCL 769.12; MSA 28.1084. Defendant was sentenced an habitual offender for the underlying assault convic- tion years’ term of six to ten imprisonment. appeals Defendant affirm. as of right. We
i
In
appellate
his initial
argument, defendant asserts
that he was
opportunity
denied the
to effectively
cross-examine
witnesses. Defend-
ant’s constitutional
right to confrontation,
Const,
US
Am VI;
1963,
Const
1, 20,
art
§
is violated when limita-
placed
tions are
on his
to cross-examine a wit-
ness to bring out facts from
bias,
which
prejudice, or
lack
credibility
of
might be inferred, People v Cun-
ningham, App 652, 657;
Mich
* judge, sitting Appeals by assignment. Circuit on the Court of op Opinion the Court support
In
allegation,
his
first argues
prosecutor
stipulation
that the
violated the
par-
by failing
ties
the local criminal histories
thereby
of the witnesses in question,
him the
denying
properly
the witnesses.
record, however,
any
Nowhere on the
have we found
indication that
produce
failed to
requested information. Because defendant
failed to
object in some manner
the alleged failure,
and thus
the record is silent with regard
prose-
to whether the
cution
obligations
fulfilled its
under
See Jalaba
order, we will not address
allegation.
Borovoy,
206 Mich App
22;
i
While a criminal defendant has no
general right
discovery, discovery will be ordered when the trial
court,
discretion,
exercising its
determines
thing
inspected
tо be
is admissible into evidence and
justice may
a failure of
result
suppression.
from its
Stanaway,
446 Mich
680;
362 requested impeachment Here, defendant material to only governmental agencies, which certain or those legally authorized, have access. 1981 at trial, 28.5208. This evidence is admissible MCL jus- 28.201; and we conclude a failure of precluded if tice would result defendant were from obtaining by, to, information available used prosecution. request Further, we do not find that the prosecu- case, in this for the criminal histories of the witnesses, tion’s was so broad as to constitute a fish- expedition. impor- ing sought The information way tant, there was no other for defendant to obtain specific way information, and we see no more for Accordingly, it to be secured. we conclude that the trial court abused its discretion in prosecution prepare reports question. argued
The also below that defendant may question pursuаnt not receive the records in - R 28.5208 28.5210. ruling argument, court did not base its on that we will address it nonetheless because it is an law issue of necessary and all the facts for its resolution are con tained within the lower court record. Brown v Drake- Willock Int’l, Ltd, 530 NW2d reading Our of the relevant rules us leads to the provided conclusion that lein be pursuant criminal defendant court order. In reaching apply principles *4 conclusion, we of statu- tory Attorney construction. General v Lake States Preserving, Inc, Wood 501 (1993). NW2d 213 Mack provides R user AACS, 28.5208(4) “[a] any or disseminate shall not sell
agency any individual, group obtained the LEIN through or individuals, organization, governmental agency, to have corporation legally which is not authorized ” (Emphasis added.) access to this information. pursuant provision provides that, We conclude this court proper request, here, to a such as the one order the LEIN information disseminated to one of the In words, entities described. other once the court has ordered, entity so then that is authorized to legally have access to the information.
We that 1981 R recognize AACS, 28.5210(1) agency vides that user shall not disseminate crim- “[a] history inal record information received private person.” argued LEIN it could be applies that subsection 1 hand, to the situation at full of Rule 28.5210 leads us to reading reach differ- ent result. We conclude that 1981 R 28.5210 primarily private person deals with a obtaining person’s own criminal record through This, the LEIN. as stated in subsection 1, flаtly prohibited. is How- ever, private person permitted per- to obtain that son’s own criminal record from the Central Records Department Division of the of State Police. 1981 5210(2) and To find provision that this prohibited the dissemination of LEIN information to anyone other than a user agency would render 1981 AACS, R mere This will 28.5208(4) surplusage. we do. See Altman v Meridian Twp, 635; 487 NW2d
Accordingly, conclude that the trial court erred in failing to allow defendant access to the LEIN infor- mation regarding witnesses. *5 218 Mich Opinion of the Court
n Although we have concluded that court to allow defendant access to the erred necessarily requested lein information, it does not fol- required. right low that reversal is Violations of the subject cross-examination are to harmless-error anal- ysis. Cunningham, supra at 657. analysis,
Harmless-error
when constitutional issues
two-step inquiry. People
are
involved, calls for
Minor,
Here, conclude that the evidence overwhelming. defendant’s conviction was At least including witnesses, two victim, identified defend- attacker, ant as the and defendant made a statement police admitting to the that he had stabbed the vic- Accordingly, any tim. error that restricted defendant’s the witnesses could not have beyond verdict, affected the and thus was harmless reasonable doubt.
We also conclude the error was not so offen- judicial system sive to the maintenance of our that it regarded could never be as harmless. requested by ruling prosecutor,
trial court’s was the error was the court’s alone. Id. at 688. Further, particularly per- the error cannot be said to have been inflammatory because, noted, suasive or the evi- dence and the against great, error testimony resulted in subtraction of rather than its addition. Id.
Accordingly, although conclude trial in failing court erred to allow defendant access to the *6 witnesses’ LEIN information, we find that the error required. harmless and reversal is not
in
We have also reviewed the existing record and con
clude that defendant was not denied the effective
Peоple
LaVearn,
v
assistance of counsel.
448 Mich
207, 212-213;
Affirmed. III, J., Johnston, A. concurred.
D. in Smolensk, part dissеnting J. in (concurring parts I and m and the result parí). i(a) concur by majority opinion. However, respect- I reached fully respect part majority i(b) dissent with by opinion. recognized court, prosecu- As on requirеd tion is not undertake behalf a defendant. McWhorter, 826, 832; 389 I (1986). Accordingly, NW2d 499 would hold that the trial court did not abuse its discretion in prosecution declining gain access the Law Enforcement Information Network and computerized vide defendant’s counsel with the crimi- nal histories of certain witnesses.