PEOPLE OF MI V DERREK S BANKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
January 15, 2002
9:20 a.m.
Plaintiff-Appellee,
v
No. 225052
Kent Circuit Court
LC No. 99-007807-FC
DERREK S. BANKS,
Defendant-Appellant.
Updated Copy
March 29, 2002
Before: Holbrook, Jr., P.J., and Cavanagh and Meter, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of armed robbery, MCL
750.529, conspiracy to commit armed robbery, MCL 750.157a, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced
to two years' imprisonment for the felony-firearm conviction, and consecutive to that, two
concurrent terms of twelve to forty years for the armed robbery and conspiracy convictions. We
reverse and remand.
At around 3:00 a.m. on July 27, 1999, Donavan Ferron was talking and drinking beer
with friends on the street in front of a house in Grand Rapids. At some point, two men wearing
ski masks and carrying guns ran toward Ferron and attacked him. Ferron stated that one of his
attackers was short, fat, and "dark-skinned," and the other was tall, thin, and "brown-skinned."
When the shorter of the two attackers put a gun to Ferron's head, a struggle ensued between
Ferron and the man for possession of the gun. The taller of the two attackers then struck Ferron
on the back of the head with a gun. As Ferron lay on the ground, the taller attacker ripped off
Ferron's necklace and grabbed his wallet and gym shoes. Ferron testified at trial that he saw his
two attackers flee to a Bronco, take off their masks, and then go into a nearby house. Ferron was
able to identify defendant at trial as the taller of his two attackers.
Defendant's cross-examination of Ferron focused in large part on apparent discrepancies
between Ferron's preliminary examination testimony and trial testimony with regard to what
Ferron observed after he was attacked. Ferron testified during the preliminary examination that
the only thing he knew about his attackers' flight was that "they went back into the darkness."
Ferron had not testified during the preliminary examination that he had seen his attackers remove
their masks, nor had he testified that he had seen the two enter a nearby residence. When asked
by defense counsel if he had ever told anyone about seeing his attackers without their masks,
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Ferron replied that he had told the investigating detective. "I told him I saw them when—I saw
them when they took the masks off. That's how I was able to identify them," Ferron testified.
It was not until Ferron's testimony was complete that defendant was first given a copy of
the police report of the interview in which Ferron had told the police that he saw his attackers
remove their masks. The prosecutor indicated that he too had not been given a copy of this
report. Defendant then moved for a mistrial. Defense counsel argued that as a result of the
discovery violation, he had lost all credibility in the eyes of the jury. The trial court denied
defendant's motion. The court expressed sympathy for defense counsel, but concluded that the
failure to turn over the report had been inadvertent. The court noted that discrepancies in
Ferron's preliminary examination and trial testimony remained. The court presumed that given
these discrepancies, defendant would likely have followed the same course during crossexamination even if the report had been previously disclosed. Noting that the failure to disclose
might have affected defendant's consideration of a plea offer by the prosecution, the court gave
defendant the night to reconsider his rejection of that offer. The next day, defendant again
rejected the plea offer. The court also indicated that it would give a curative instruction
addressing the circumstances surrounding the belated disclosure of the report. However, no
curative instruction was given.
Paul Brown testified pursuant to a plea bargain. Brown admitted to being one of the two
men who attacked and robbed Ferron. Brown testified that after the robbery, he and his cousin,
Shomari Whiteside, left in Whiteside's truck. On cross-examination, Brown admitted having
been "guessing" in his preliminary examination testimony when he stated that defendant left the
scene in his own car. Grand Rapids Police Officer Matthew Dwyer testified that he was one of
the officers who responded to the scene of the robbery. Dwyer testified that Ferron had stated
that he had observed a Bronco with three people in it drive by before the robbery, and had seen
the same vehicle drive by with one person in it after the robbery. Dwyer stated that Ferron had
identified Whiteside as being the driver of the Bronco when it passed by before the robbery.
Officer Case Weston testified that he found a ski mask inside Whiteside's Bronco.
Whiteside testified on behalf of defendant. At the time of trial, Whiteside was in prison
for a parole violation. Over defendant's objections, Whiteside appeared in court in handcuffs.
Whiteside testified that when he returned home at around 1:30 or 2:00 a.m., defendant
approached him and asked for a ride. Whiteside testified that defendant was trying to get to a
female friend who had just been released from the hospital. Whiteside agreed to give defendant
a ride, but told him that Whiteside had to first stop to see Brown. When the two arrived at
Brown's home, they were approached by police, questioned about the robbery, and ultimately
arrested. Whiteside denied that a ski mask had been in his Bronco that night.
Defendant argues that the trial court erred in not granting his motion for a mistrial
following the late discovery of the police report. We agree with the trial court that a discovery
violation occurred. Pursuant to MCR 6.201(B)(2), upon request, the prosecution must disclose
"any police report concerning the case." Defendant made a request for such material, and the
court ordered its production. We also agree that this discovery violation appears to have been
inadvertent. The officer who wrote the report testified that he had assumed it had been turned
over with all the other material he had. Defendant did not challenge this assertion below, nor
does he challenge it now on appeal.
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Therefore, the question before us is whether the trial court abused its discretion in
denying defendant's motion for a mistrial based on this discovery violation. MCR 6.201(J);
People v Davie (After Remand), 225 Mich App 592, 597-598; 571 NW2d 229 (1997). We find
no abuse of discretion. When determining the appropriate remedy for discovery violations, the
trial court must balance the interests of the courts, the public, and the parties in light of all the
relevant circumstances, including the reasons for noncompliance. Davie, supra at 598.
Defendant argues that the discovery violation was highly prejudicial in light of his
strategy to impeach Ferron with his testimonial inconsistencies. Defendant asserts that he would
have prepared for trial differently had the report been timely disclosed. We agree with defendant
that his cross-examination of Ferron would likely have taken, in part, a different tack had he been
in prior possession of the report. Most of the cross-examination focused on Ferron's failure to
testify during the preliminary examination that he saw his attackers take off their ski masks.
However, at the end of this line of inquiry, defendant also posed the following questions
concerning whether Ferron had ever told anybody about seeing his attackers without their masks:
Q: Did you ever tell anybody before today that you saw these people take
their masks off?
A: Yeah.
Q: Who did you tell?
A: I told—I told my man right here, the detective.
Q: You told the detective?
A: Yeah. I told him I saw them when—I saw them when they took the
masks off. That's how I was able to identify them.
Q: You saw these people take their masks off and you told that to the
detective, right?
A: I just answered yes.
We believe that defendant would not have cross-examined Ferron this way had defendant been
given this police report. There would be no reason for defendant to allow Ferron to fend off an
attack to his credibility by giving him an uncontested opening to point to a prior consistent
statement.
Defendant does not argue on appeal, however, that he would have abandoned his attempt
to impeach Ferron with his testimonial inconsistencies had the police report been timely
disclosed. Thus, the only change to defendant's trial strategy regarding Ferron would have been
how he would handle the police report. Defendant would have had to decide whether he would
introduce Ferron's version of events in the police report, or whether he would leave that to the
prosecution.
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Thus, we believe that contrary to defendant's assertion, his credibility and case were not
completely destroyed by the error. Discrepancies between Ferron's preliminary examination and
trial testimony existed despite what was contained in the police report. Defendant was able to
explore these discrepancies at length. Further, defendant's questioning regarding whether Ferron
had ever told anyone he saw his attackers with their masks off was brief. We do not believe that
confidence in the outcome of the trial was undermined by this singular event. See Kyles v
Whitley, 514 US 419, 434; 115 S Ct 1555; 131 L Ed 2d 490 (1987); United States v Bagley, 473
US 667; 105 S Ct 3375; 87 L Ed 2d 481(1985).
Further, we do not believe that the trial was rendered fundamentally unfair by the failure
to disclose the report. While the prosecution is under a duty to disclose impeachment material
that is favorable to a defendant, Bagley, supra at 676; People v Brownridge, 237 Mich App 210,
214; 602 NW2d 584 (1999), the prosecution is not under an affirmative duty to disclose material
that supports its witness' testimony and thus undermines a charge of recent fabrication. "There is
no general constitutional right to discovery in a criminal case." Weatherford v Bursey, 429 US
545, 559; 97 S Ct 837; 51 L Ed 2d 30 (1977); accord United States v Argus, 427 US 97, 106; 96
S Ct 2392; 49 L Ed 2d 342 (1976) (observing that the prosecution does not have a constitutional
"duty to provide defense counsel with unlimited discovery of everything known by the
prosecutor"). Nonetheless, pursuant to Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed
2d 215 (1963), "suppression by the prosecution of evidence [requested by and] favorable to an
accused . . . violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution."
Although the United States Supreme Court has not specifically delineated the outlines of
what constitutes "favorable evidence," we do not believe that the police report at issue here falls
under this classification. Considered in a larger context, the report is more neutral than it is
favorable or unfavorable to defendant. On one hand, the report supports Ferron's trial testimony
because it rebuts a charge of recent fabrication. On the other hand, it can be used to show that
Ferron's account of the events has shifted not once, but twice, i.e., between his statement to the
police and the preliminary examination, and then again between the preliminary examination and
the trial.
As previously noted, the real importance of this information to defendant is that had he
known about it, his preparation for, and confrontation of, Ferron's trial testimony would have
been slightly altered. However, we do not believe that even the most generous reading of the
"favorable evidence" standard would require the prosecution to disclose evidence whose utility
lay only in helping a defendant contour a portion of his cross-examination of a key state witness.
See Weatherford, supra at 559-561.
Additionally, we conclude that this evidence does not meet the Brady requirement of
materiality. We do not believe that had this evidence been disclosed, "there is a reasonable
probability that . . . the result of the proceeding would have been different." Bagley, supra at
682.
Defendant also argues that the trial court erred in denying his request that Whiteside be
allowed to testify without handcuffs. The state counters that the court acted within its discretion
and that, if the court did err, defendant has failed to show that it is more probable than not that
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the error resulted in a miscarriage of justice. People v Lukity, 460 Mich 484, 494-495; 596
NW2d 607 (1999).
It is well settled in Michigan that a trial court has broad discretion in controlling the
course of a trial. See People v Gray, 57 Mich App 289, 294; 225 NW2d 733 (1975). Included
within this authority is the discretion to shackle a defendant during trial. People v Dixon, 217
Mich App 400, 404; 552 NW2d 663 (1996). The right of a defendant to appear at trial without
any physical restraints is not absolute. Nonetheless, permitting a defendant to appear at a jury
trial free from handcuffs or shackles is an important component of a fair trial, People v Dunn,
446 Mich 409, 426; 521 NW2d 255 (1994), because having a defendant appear before a jury
handcuffed or shackled negatively affects the defendant's constitutionally guaranteed
presumption of innocence, id. at 425, n 26 (observing that "'[t]he presumption of innocence
requires the garb of innocence'" [quoting Eaddy v People, 115 Colo 488, 492; 174 P2d 717
(1946)]). The Sixth Amendment guarantee of the right to a fair trial means that "one accused of
a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence
introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or
other circumstances not adduced as proof at trial." Taylor v Kentucky, 436 US 478, 485; 98 S Ct
1930; 56 L Ed 2d 468 (1978).
The question of a trial court's authority to handcuff or shackle a witness other than a
defendant has not been addressed in Michigan. Most courts, however, use the same standard of
review for placing physical restraints on witnesses as they do for restraints on defendants.1 We
agree with the reasoning set forth in this line of cases. Accordingly, we hold that in Michigan
the propriety of handcuffing or shackling a testifying witness is subject to the same analysis as
that for defendants, i.e., the handcuffing or shackling of a witness during trial should be
permitted only to prevent the escape of the witness, to prevent the witness from injuring others in
the courtroom, or to maintain an orderly trial. We will review a trial court's decision to handcuff
or shackle a witness for an abuse of discretion.
In the case at hand, there are no facts in the record to support the restraining of
Whiteside. When defendant requested that Whiteside be allowed to testify without handcuffs,
the following colloquy occurred between the court and the officer who brought Whiteside to
court:
1
See McCall v State, 2001 WL 1519744 (Ala Crim App, November 30, 2001); Williams v State,
629 P2d 54, 56 (Alas, 1981); Tucker v State, 336 Ark 244, 246-247; 983 SW2d 956 (1999);
People v Ceniceros, 26 Cal App 4th 266, 277; 31 Cal Rptr 2d 303 (1994); State v Canty, 223
Conn 703, 719-720; 613 A2d 1287 (1992); Jackson v State, 698 So 2d 1299, 1303 (Fla App,
1997); State v Mills, 117 Idaho 534, 536; 789 P2d 530 (1990); People v Sullivan, 48 Ill App 3d
787, 792; 6 Ill Dec 462; 362 NE2d 1382 (1977); Parker v State, 567 NE2d 105, 110-111 (Ind
App, 1991); Commonwealth v Brown, 364 Mass 471, 475; 305 NE2d 830 (1973); State v
Coursolle, 255 Minn 384, 389; 97 NW2d 472 (1959); State v Pendergrass, 726 SW2d 831, 832
(Mo App, 1987); State v Simmons, 26 Wash App 917, 921; 614 P2d 1316 (1980); anno: Right of
accused to have his witnesses free from handcuffs, manacles, shackles, or the like, 75 ALR2d
762 (1961).
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Court: If you don't have concern for people's safety, Officer, I think
fairness says we should take the handcuffs off. But, if you think that's a problem,
let me know.
Officer: I prefer to leave them on.
Court: All right. We'll do that then.
The officer never testified that Whiteside posed a threat of escape or a threat to the security of
others in the courtroom. Indeed, when the court indicated that safety would be a legitimate
reason to handcuff Whiteside, the officer did not respond that this was the reason for the
restraints. Nor is there evidence that physically restraining Whiteside was necessary to maintain
order. The only justification offered was that the officer preferred that the handcuffs be left on.
Absent a compelling reason for such a preference, a court must not handcuff or shackle a witness
simply because someone, even a law enforcement officer, is so inclined. Accordingly, we
conclude that the trial court abused its discretion when it ruled that Whiteside would testify while
restrained by handcuffs.
The standard a reviewing court should apply when determining whether the erroneous
handcuffing of a defense witness requires reversal is also an issue of first impression in
Michigan. The standard to be applied turns on whether this error is considered constitutional or
nonconstitutional.
"The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.
The presumption of innocence, although not articulated in the Constitution, is a basic component
of a fair trial under our system of criminal justice." Estelle v Williams, 425 US 501, 503; 96 S Ct
1691; 48 L Ed 2d (1976) (citation omitted); accord Coffin v United States, 156 US 432, 453; 15 S
Ct 394; 39 L Ed 481 (1895) ("The principle that there is a presumption of innocence in favor of
the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the
foundation of the administration of our criminal law."). The real and substantial danger posed to
the presumption of innocence by handcuffing or shackling a defendant at a criminal trial has
been specifically recognized in Michigan. Dunn, supra at 425, n 26. Accordingly, any error in
this regard would be of constitutional significance. People v Ceniceros, 26 Cal App 4th 266,
279-280; 31 Cal Rptr 2d 303 (1994).
However, we do not believe that the handcuffing or shackling of a defense witness also
adversely and unfairly affects a criminal defendant's presumption of innocence, thereby
undermining the fairness and impartiality of the trial. While handcuffs on a testifying witness
other than a defendant sends the message to the jury that the court considers the witness to be
untrustworthy and even dangerous, it does not send a concurrent suggestion that the defendant is
a person predisposed to commit crimes or that the defendant is a dangerous person who cannot
be trusted. On this point, we agree with the dicta found in Kennedy v Cardwell, 487 F2d 101,
106, n 5 (CA 6, 1973):
The decision whether to shackle witnesses is left to the sound discretion of
the trial judge. The reason underlying the rule is the inherent prejudice to the
defendant since it is likely the jury will suspect the witness's credibility. The
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prejudice factor toward the defendant, although much less than the situation
where the defendant is shackled, provides a valid point of comparison even
though the shackled witness cases do not directly affect the presumption of
innocence. [Emphasis added.]
"[A] preserved, nonconstitutional error is not a ground for reversal unless 'after an
examination of the entire cause, it shall affirmatively appear' that it is more probable than not
that the error was outcome determinative." Lukity, supra at 496, quoting MCL 769.26. After
reviewing the record, we conclude that this standard has been met in this case.
While a defendant's case may be properly attacked by challenging the credibility of the
defendant's witnesses, absent a showing that the circumstances require handcuffing a defense
witness, the fairness of the trial must not be undermined by destroying the credibility of a
witness before the witness even gets the opportunity to testify. See, e.g., United States v Esquer,
459 F2d 431, 434 (CA 7, 1972) (observing that the handcuffing of a witness "is inconsistent with
our basic concepts of justice and should be resorted to only in exceptional situations"). The
message conveyed by physically restraining a witness has the distinct potential to be considered
by the jury as "more informing than reams of cold record." Ashcraft v Tennessee, 322 US 143,
171; 64 S Ct 921; 88 L Ed 1192 (1944) (Jackson, J., dissenting).
The record shows that the credibility of the witnesses was crucial in this trial and that the
credibility of Whiteside was crucial to defendant's case. Defendant's liberty depended, in large
part, on the jury's evaluation of the credibility of the witnesses who appeared before it. See
Napue v Illinois, 360 US 264, 269; 79 S Ct 1173; 3 L Ed 2d 1217 (1959) ("The jury's estimate of
the truthfulness and reliability of a given witness may well be determinative of guilt or innocence
. . . ."). Defendant's entire defense was premised on his having an alibi for the time Ferron was
robbed. If the jury believed Whiteside, he would place defendant somewhere else at the time of
the robbery. The lengths to which the prosecution addressed Whiteside's testimony in its rebuttal
closing argument indicates the importance of this testimony to the outcome of the case. Further,
there is no evidence in the record that the court took precautions to minimize the effect of the
jury's seeing the witness in handcuffs.
Under these circumstances, we conclude that it is more probable than not that the
erroneous shackling of Whiteside during his testimony was outcome determinative. We are
mindful that as an appellate court, we must not engage in a weighing of the credibility of the
witnesses appearing at trial. Accordingly, when confronted with two conflicting stories
regarding defendant's possible involvement in the crime, particularly stories presented by
witnesses with apparent credibility concerns, we must be careful not to favor one account over
the other. Absent compelling physical evidence or testimony by uncompromised witnesses, we
cannot conclude that this error was harmless.
Reversed and remanded for a new trial. We do not retain jurisdiction.
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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