PEOPLE OF MI V ABDUL GHDIER ELKHOJA
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
May 21, 2002
9:15 a.m.
Plaintiff,
No. 224126
Washtenaw Circuit Court
LC No. 99-012310-FC
v
CITY OF ANN ARBOR,
Intervening Plaintiff-Appellant,
and
ABDUL GHDIER ELKHOJA
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
ABDUL GHDIER ELKHOJA,
No. 228734
Washtenaw Circuit Court
LC No. 99-012310-FC
Defendant-Appellant.
_______________________________________
Updated Copy
August 30, 2002
Before: Fitzgerald, P.J., and Hood and Sawyer, JJ.
FITZGERALD, P.J.
In Docket No. 224126, intervening plaintiff the city of Ann Arbor appeals by leave
granted the December 6, 1999, order of the Washtenaw Circuit Court denying its motion to
quash that part of the court's October 25, 1999, order granting defendant Abdul Ghdier Elkhoja's
motion for discovery. In Docket No. 228734, defendant Elkhoja appeals as of right his jury
-1-
convictions of manslaughter, MCL 750.321,1 and possession of a firearm during the commission
of a felony, MCL 750.227b, for which he was sentenced to prison terms of four to fifteen years
and two years for the respective convictions. The appeals were consolidated. We affirm.
Facts pertinent to Docket No. 224126
On September 28, 1999, defendant appeared before the court on three motions. In
pertinent part, he requested the criminal records and criminal histories of all the civilian
witnesses the prosecutor intended to call at trial and those the defense had listed in its request for
assistance in producing res gestae witnesses. Specifically, defendant sought information
regarding any felony convictions that occurred in the previous ten years involving theft,
dishonesty, or false statement to enable defendant to challenge the witnesses' credibility.
The prosecutor objected to the request, noting that it would be a great burden to run
computerized criminal histories (CCHs)2 on all the witnesses and that MCR 6.201 did not require
the prosecutor to run CCHs on all witnesses. The prosecutor indicated that he had not run CCHs
on any of the witnesses and did not intend to do so. The trial court granted the motion for
discovery and ordered the prosecutor to "submit a list of names of all civilian witnesses to the
Ann Arbor Police Department for the purposes of obtaining a computerized criminal history for
such witnesses to the extent that such records are kept in the Michigan Law Enforcement
Information Network [LEIN]."
The city of Ann Arbor and the Ann Arbor Police Department filed an appearance and a
motion to quash the discovery order "to the extent that it . . . require[s] production of
computerized criminal histories to the extent they are available in the [LEIN] for all civilian
witnesses." The city claimed that MCL 28.211 et seq., and applicable administrative rules
governing disclosure of information from the LEIN system prohibited the Ann Arbor Police
Department from providing that information for the purpose of discovery by a criminal
defendant. The city also claimed that there was no legal authority for the discovery order. The
trial court denied the motion to quash.
1
Defendant was originally charged with open murder. MCL 750.316. The trial court dismissed
that charge and instructed the jury on the elements of second-degree murder, manslaughter, and
self-defense.
2
1981 AACS, R 28.5101(e) provides:
"Computerized criminal history," known as CCH, means information
which is collected on individuals by criminal justice agencies, which is
maintained in LEIN [Law Enforcement Information Network] and NCIC
[National Crime Information Center] computer files, and which consists of
identifiable descriptions and notations of arrests, detentions, indictments,
informations, or other formal criminal charges and any dispositions arising
therefrom.
-2-
On December 29, 1999, this Court granted the city's application for leave to appeal and
granted the city's motion to stay the trial court's discovery order. On January 10, 2000, the
parties, including the city, appeared before the trial court. The court stated:
The Court of Appeals, apparently at the instance of the City of Ann Arbor,
stayed the [c]ourt's order for production of prior conviction information as to the
witnesses in this case. In view of that . . . the Defendant requested further time to
prepare this case. I'm going to allow that. I'll set a pre-trial—a final pre-trial in
this matter on January the 18th at 1:30. However, you should all know that if
there is no plea agreement on that date, I intend to set a trial and proceed to trial.
I'm going to say one more time, it's a matter of fundamental due process that the
witnesses whose criminal records have not been disclosed are not going to testify
in this case.
Facts pertinent to Docket No. 228734
On the first day of trial, defense counsel informed the court that he and the prosecutor
had attempted to reach an agreement regarding providing the criminal histories of the
prospective witnesses but that the information he received was not complete.3 Therefore,
defendant requested that the court either follow it's earlier ruling and refuse to allow the
witnesses to be called or, in the alternative, continue the matter until the Court of Appeals
resolved the appeal. The court ruled:
I need to make sure that this case proceeds to trial both in an orderly and
in a timely way. We're going to proceed to trial. I am going to allow the defense
considerable latitude beyond that normally allowed in the court rules in terms of
cross examination of any of the prosecution witnesses with regard to potential
criminal history since that information has not been provided.
This issue of the criminal histories was not raised again in the trial.
The trial testimony indicated that, during the early morning hours of June 5, 1999,
following a street fight between two groups of young men, Nicholas Seitz was killed by a .25
caliber gunshot wound to the chest. Defendant, a member of neither group, admitted firing the
fatal shot, but claimed that he fired in self-defense after he was attacked by some of the young
men while he was trying to break up the fight.
The first group consisted of men who were at a party at 909 East University Street in Ann
Arbor. The second group consisted of men who were at a party on Willard Street and ended up
at the apartment building on 1001 East University Street where Brett Wiater, Carter Williams
and Craig Smith lived. The victim was a part of this second group.
3
Defense counsel noted that the prosecutor provided the information he agreed to provide, but
that the information supplied was not sufficient.
-3-
Testimony of the first group
Matt East testified that he was doing a lot of drinking that night and also took LSD before
he went to the party. He was feeling very hyper and antsy and having minor hallucinations.
Justin Hill testified that when he got to the party around midnight, Matt East was on the porch
yelling at about twenty to twenty-five fraternity members who were standing out in front of the
house and wanted to come to the party. Thomas Anderson went down and apologized to the
people. Matt East agreed that he got into a fight with the group of people who were walking by.
Thomas Anderson and Andrew Soper both testified that Matt had been drinking heavily and was
"kind of out of control." Matt East was bothering a lot of people, yelling at people walking by
the porch. He "seemed to be extremely interested in starting a fight." A man and a woman
walked by and Matt yelled at them. The man yelled back and came up to the porch. Matt
responded by walking off the porch and hitting him in the face. The guy was knocked to the
ground and said, "You're gonna die." The man who was hit and his girlfriend went into the
apartment house next door at 1001 East University. Matt agreed that he said something to the
man and his girlfriend. When the man said something back to him, he jumped off the porch and
"socked him in the face." The man fell to the ground and said, "You're dead. You're dead"
Matt went over to the side of 909 East University. Justin Hill, Thomas Anderson, Tony
Yoder, and Andrew Soper went there with him, trying to calm him down and get him to leave the
party. Matt stated that about twenty to thirty people came out from the apartment house next
door. Four or five of them were carrying forty-ounce glass bottles. They were yelling, "Who hit
my brother?" Matt replied that he did, whereupon he was "mobbed on." He was hit with one of
the bottles and fell to the ground. He curled up in the fetal position and they kept hitting,
kicking, and punching him. He feared for his life.
Thomas Anderson testified that, while he was standing by the side of the house, fifteen to
twenty people came running out from the apartment building next door yelling, "Who hit my
brother? Who hit my boy?" Anderson stepped back with his arms up and said, "I didn't hit
anyone." Two people started hitting him in the head and he fell to the ground. He saw five or
six pairs of shoes kicking him repeatedly in the head. One of the people had a telescoping baton
and hit him in the leg. He curled up in the fetal position to protect himself, fearing for his life
Justin Hill testified that a lot of people rushed out from the parking structure in the back
of the apartment house. He got hit in the head with a forty-ounce bottle. He had no idea who hit
him. A girl pulled him away and told him to start walking, so he did.
When Andrew Soper was standing by the side of the house, he saw a black Jeep
Cherokee pull into the underground parking garage behind the apartment building. About a
minute later, ten or twelve men came running out of the apartment building. The man who Matt
had hit came out and yelled, "Who hit me? Where's the guy that hit me? Soper saw two men
tackle Justin Hill and slam him into the side of the house. Justin's shoulder broke through a
window on the side of 909 East University, then he was hit in the head with a bottle. Two people
slammed Soper into the side of the house. He crouched down and then he was hit with a bottle.
Soper saw Matt East getting kicked and stomped on by three or four men. Soper pulled one of
-4-
the men off Matt, and the man then hit Soper. Soper also saw about four people stomping on
Thomas Anderson, who was on the ground.
Soper heard a gunshot and saw an orange flash. He ran up on the porch and into the
house and told someone to call 911. When he came back outside, he saw two people
approaching a man who was backing up. The person backing up pointed a gun at one of the men
approaching him and shot him.
Matt heard gunshots and a lot of yelling and screaming, and the people who were hitting
him ran away. Anderson saw sparks fly out of a gun and the men stopped beating him. He saw
a man walking toward the sparks. He heard that person say, "What the f___ are you gonna do
with that." When the second shot was fired, the men who had been assaulting Anderson ran.
Anderson's leg was badly injured, but he managed to get up and make his way to a friend's car
where he tried to calm down. Anderson believes that the shots saved his life. He was badly
injured, especially on his calf where he was hit with the baton. Justin Hill heard "pop, pop" and
people yelling and screaming as he was running away after being hit with the bottle.
Testimony of the second group
Brett Wiater left the party on Willard Street around 2:30 a.m. The party was a short
distance from his apartment in 1001 East University, and he and his girlfriend, Mary Croft,
walked home. As they passed 909 East University, someone hollered at them from the porch.
He kept walking and tried to ignore it, but the man kept yelling. Finally, he turned around and
said, "What did you say?" Several people came down from the porch and one man hit him in his
mouth with a fist. Brett stepped back, stunned. Mary Croft pulled at him to get him to go up to
his apartment.
Craig Smith had returned from the party on Willard Street around 12:30 or 1:00 a.m. He
was awakened when Brett and Mary returned to the apartment. Mary was crying and Brett said
that someone next door had hit him. Craig heard Brett use the telephone to call over to the party
on Willard Street and tell them what had happened. He heard Brett say "get over here now."
Brett testified that he talked with Ryan Holdan and told him to tell the others what had
happened. Christian Wiater, Clay Dietz, Phillip Vincenti and Nicholas Seitz drove to Brett's
apartment in Christian's Jeep Cherokee. Ryan started jogging there with Elijandra Garcia. Brett
greeted them at the apartment door and they all walked outside. Craig Smith stayed in the
apartment. Brett agreed that he went out to confront the men next door. He was the first one out
the door and was prepared to fight, now that the sides were "even." He stated that he confronted
the first person who stepped forward as he approached, words were exchanged, and a fight
ensued. Brett, Christian, Philip Vincenti, and Craig Smith all denied that they or any of their
friends had any bottles, metal pipes, or weapons of any kind. Dietz was the only one of the men
to testify that he was drunk at the time. Christian approached the first person that fit his brother's
description of his assailant and asked if he was the one who hit his brother. They started
fighting. Christian stated that after he hit that person a few times and the person fell down, he
stopped fighting.
-5-
During the fighting, Brett saw Nicholas Seitz holding a man down. Brett went over and
"kneed him in the face." However, when the man fell to the ground, neither Brett nor Nicholas
continued to hit or kick him. Phillip Vincenti contended that he did not do any fighting that
evening. He testified:
I remember seeing Nick to my left, Brett to my right and I remember Nick
kind of wrestling with a person. From my point of view, it wasn't an all out fight.
It was more like wrestling . . . .
The next thing I saw, the fight settled down and four, four young men
walked into the yard off the sidewalk, off the street, and up into the sidewalk.
They were arrogant. They basically said, basically said chill out. They were
much loud spoken though (sic). The next thing I knew maybe 10 to 15 seconds
later I heard and saw a gun shot.
Phillip Vincenti ran to Brett's apartment. He heard a second shot as he was running up
the stairs. Clay Dietz thought the shots came from a cap gun until he heard someone scream that
Nicholas had been shot. He immediately ran to Brett's apartment and called 911.
Brett testified that, during the fight, he saw two men walk up from the sidewalk. One of
the men held a gun up in the air and fired it. Brett immediately ran to his apartment. He did not
hear a second shot. He learned from Carter Williams that Nicholas Seitz had been shot.
Christian Wiater testified that he saw a person fire a gun into the air. People scattered and he
heard Nicholas say, "Is that a cap gun?" The person replied, "This ain't no f___ing cap gun."
Christian testified that Nicholas did not advance on the shooter. The shooter lowered the gun
and fired at Nicholas and then ran across the street.
Craig Smith testified:
Well, during all of this fighting someone came and just kind of appeared
and came into the courtyard and said you guys need to chill out. And it was said
in kind of a hostile tone. And me and Chris approached him and he pulled a gun
out and shot in the air. And from there I ran and a bunch of other guys ran. We
went back up to the apartment . . . . About five minutes later Mary came up and
told us that Nick had been shot.
Ryan Holdan heard the first shot as he was jogging down East University, on the way to
Brett's apartment. He thought he heard Nicholas Seitz say, "What is that, a cap gun?" Then he
heard a voice say, "This ain't no f___ing cap gun." Then he heard a second shot and people
scattered in every direction. As he approached, he saw Nicholas crumple and fall to the ground.
Carter Williams walked from the Willard party. By the time he got to the area, Brett and some
others were running toward him and told him to run, that a man had a gun. Ryan Cook and
Stephen Lewis both testified that by the time they got to Brett's, the police cars and ambulances
were there and Nicholas was on the ground. Bernardo Rojas also walked back to Brett's
apartment with Ryan Holdan and Elijandra Garcia. By the time they got there, Nicholas had
already been shot.
-6-
Testimony of Defendant and his friend
Ariel Cunningham testified that he and defendant got together at Cunningham's house on
June 5, around 12:30 or 1:00 a.m. After about three hours of partying at two different locations,
they were walking on East University, back to Cunningham's place, when they heard a fight
going on across the street. They heard bottles being broken and people yelling. They walked
across the street to see what was going on. Defendant ran over and tried to help someone who
was getting beaten up. Cunningham saw two people on the ground "getting beat down by eight
other people." On his right, he saw four men beating up one man, and on the other side he saw
"two on one." Defendant tried to pull off one of the men who were beating on a man on the
ground. The men then turned and started coming after defendant. Cunningham saw that
defendant had a handgun. Defendant fired a warning shot. Cunningham explained:
It was like just straight up in the air at the same time the guy who was like
coming toward him was like looking straight at him, he was like right in front of
him coming right toward him as he fired the shot in the air.
The guy kept coming after defendant until he got within arm's reach.
Ghdier [defendant] started backing up and I guess he was saying
something to him. They were talking and the guy kept coming forward,
approaching Ghdier like he was trying to do something to him.
* * *
He [got] even closer and Ghdier was like backed up because it was in
between an apartment building and a house. He was backed up against like near
the house. He just lowered it to him and I guess he told him, back up or whatever
and the guy just kept moving forward. I guess he didn't believe like it was a real
gun or whatever.
The men kept coming and, when one was within a foot or two, he started to bring his
hands up and the shot was fired. Defendant started running.
About fifteen minutes later, defendant came to Cunningham's house. Defendant was
shaken. When Cunningham asked what had happened, defendant told him not to worry about it
and stated that he needed to get home. Somebody came and took him. Later that night,
Cunningham called defendant. Defendant told him that he really didn't mean to do what he did
and was really worried. He hoped that the person he shot had not died. He said that he shot in
self-defense.
Defendant testified on his own behalf. He said that as he and Cunningham were walking
back to Cunningham's house, they heard yelling and bottles breaking across the street. They
crossed the street. When he got to the sidewalk, he noticed four or five guys on top of one
person. There was "a whole bunch of people in the area." Three guys were kicking and
-7-
punching the man on the ground and somebody hit the man with a stick or something in his
hand. He did not know any of the people. Defendant continued:
After I seen the guy to my left . . . hit him with something in his hand, I
didn't know what it was, I decided it needed to stop. So I went over to the fight
and started pulling people off.
* * *
The closest guy to me, I just grabbed him and pulled him back. And I was
going ahead to start pushing the second guy out of the way. I was telling them to
break it up. Somebody had pushed me from behind. I'm assuming it's the guy I
had pulled off first.
Defendant stumbled forward and when he caught his balance, he stood up and turned
around. Three of the guys had turned their attention to him and they started coming at him. He
told them to "chill out": But they didn't stop and they had me like I couldn't see nothing in front
of me. I could just see one dude to my right kind of and two this way . . . . While they were
advancing, I pulled out a gun from my pocket. I cocked it and shot it in the air.
The men continued to come at him and he was scared because he thought that they were
about to jump him. He pointed the gun straight at them and told them again to "chill out." They
continued to approach, and defendant was unable to back up further. One man reached for
defendant's hand and defendant shot him to protect himself. The man stepped back and
defendant heard people say, "My friend has been shot." Defendant panicked and started running,
throwing the gun away as he ran.4 Eventually, he got back to Cunningham's place and got a ride
home from some people who lived next door. When he got home, his brother was sleeping and
he didn't want to tell his parents what had happened, so he called Asad Tarsin and told him what
had happened. Asad Tarsin corroborated defendant's testimony that defendant called him during
the early morning of June 5 and told him what had happened.
Defendant stated that about two hours after he got home, the police came and got him.
Initially, he denied having shot anyone because he was too scared to admit it. He had never
before seen the person that he shot and had no malice or ill feelings toward him. Defendant
explained why he carried a gun when he went out to parties and nightclubs:
About two years ago I was in a nightclub with a cousin of mine and two
friends, we had got in a fight. And eventually the night ended. We were going
home. In the parking lot a car pulled up on us and a man jumped out the car and
started shooting at us. And we started scattering. I hit [sic] between a car and my
other cousin was laying on the other side of the car, and I saw this man walk up to
4
The handgun was never recovered.
-8-
my cousin and shoot him in the back. And I didn't do anything. I sat there and
watched it . . . .
About a year after that incident, I pretty much blamed myself a lot for my
cousin taking that second shot because I didn't do anything. I pretty much, I kept
to myself a lot and then eventually I met Ariel and started hanging around with
my friends again and I bought a gun.
Testimony of the Police
Sgt. Myron Blackwell testified that on his way to the scene he observed Justin Hill
walking down the middle of the street, yelling obscenities. His head was bleeding and he had
blood on his hands and t-shirt. He appeared intoxicated and was very belligerent and directed
obscenities at Blackwell and Sgt. Craig Flocken. Blackwell instructed another officer to arrest
Justin Hill. When he approached the scene there was a crowd of fifty to seventy-five people
running around crying and yelling. There were small fights going on, people pushing and yelling
at each other.
After he used tape to cordon off the crime scene, there were several people who were
crying and yelling obscenities and trying to get into the crime scene and head toward the body.
Several people were arrested for crossing into the crime scene. Stephen Lewis was the first. He
appeared to be intoxicated and was yelling obscenities at the police officers. He resisted arrest.
Brett Wiater was very emotionally upset and "probably intoxicated also." He was crying and
yelling obscenities and trying to get into the crime scene. He was arrested. Christian Wiater was
upset because his friend had been shot and his brother had been arrested. He felt that the police
had used unnecessary force to arrest his brother. Christian began running around, trying to get
into the crime scene, yelling obscenities at the police officers. He appeared to be intoxicated.
He too was eventually arrested. He resisted arrest. Ryan Cook was arrested for going into the
crime scene. He also was running around, yelling obscenities.
Police Officer Jeffrey Flynn observed a chaotic and traumatic situation when he arrived
on the scene. There were more than fifty people there and they were hysterical, fighting, and
yelling. He recognized Soper and approached him. Soper told him that "a whole army" had
responded to an earlier altercation, but stated that no weapons of any kind were used by anyone
other than the person who fired the handgun. Soper told him "the person with the gun
approached the person being shot."5
Sgt. Craig Flocken was the first police officer on the scene. He thought there were
between seventy-five and one hundred people. He observed broken glass in various sections of
the scene. The people around the scene appeared intoxicated. Justin Hill ran up and started
5
The court instructed the jury that the testimony was permitted only for a limited purpose
because "Mr. Soper testified differently than this earlier in the trial." The court instructed the
jury to consider it only for credibility.
-9-
yelling at the people who were standing around Nicholas Seitz. Hill was bleeding from a large
cut on his forehead. Some heavily intoxicated people in the area started to fight with Justin Hill
and Flocken had to separate them.
Detective Laura Burke interviewed Phillip Vincenti and Ryan Holdan at the hospital
around 4:00 a.m. Both men told her that they did not see what happened but they had heard
shots. Detective Richard Stern interviewed Justin Hill on June 5, 1999, at the Ann Arbor Police
Department. Stern's testimony about what Hill told him was entered for impeachment purposes.
Mr. Hill was very adamant when I interviewed him that he knew nothing
about the incident. That he was struck in the head with an unknown object by an
unknown person. That he then got up and was walking away from the scene when
he heard two gunshots. He was very adamant that he was not present at the scene
when the gunshots took place and knew nothing about what happened.
When Stern interviewed Soper, Soper did not mention anything about any weapons being
used during the fight. When Stern first interviewed defendant, defendant denied any
involvement and stated that he knew nothing about the incident or any shooting, even when Stern
suggested that there could possibly be a self-defense claim. Stern stated that, after defendant was
told that someone had identified him, defendant said that he would tell the truth. However,
defendant made no admissions to Stern and did not make a written statement. Defendant has
changed his appearance since the incident by removing his facial hair and changing his hairstyle.
Nicholas Seitz was about six feet tall and weighed between 180 and 200 pounds.
Testimony of Independent witnesses
Taehwan Kim was in his bedroom in the basement of 909 East University. He woke up
to sounds of yelling. He heard some guy say, "You hit my brother." He checked his clock and it
was 3:00 a.m. He then heard two gunshots. Kevin Fillion was in the bedroom of his girlfriend's
apartment on the second floor at 909 East University when he heard a commotion outside. He
heard a couple of gunshots that sounded like firecrackers. He got up and looked out the window
and saw someone lying on the sidewalk surrounded by a lot of people. Maura Seale was in 909
East University, in the room she shared with Stephen Ross. Around 2:30 to 3:00 a.m., they both
heard people yelling, bottles breaking, and a fight. Maura heard someone yell "white honky
bitch," then they both heard a couple of shots. Stephen Ross stated: "[A] group of people were
making noise down by that entrance. And eventually it escalated into a bunch of bottles
breaking and a fight and then a couple gun shots." "It sounded like bottles because they were
very distinct crashes. They were separated." It was a very short time "between the time of the
yelling and bottles breaking to the shooting." He heard a girl scream, "He shot him."
I. Docket No. 224126
A
The city argues that the trial court erred in finding that the city lacked standing to contest
the discovery order that required the city to take some action in this criminal case. Whether a
-10-
party has standing is a question of law subject to review de novo. Gyarmati v Bielfield, 245
Mich App 602, 604; 629 NW2d 93 (2001).
The city relies on MCR 2.506(H)(1) in support of its argument that it had standing. MCR
2.506(H)(1) provides: "A person served with a subpoena or order to attend may appear before
the court in person or by writing to explain why the person should not be compelled to comply
with the subpoena, order to attend, or directions of the party having it issued."
Here, the court's order did not constitute a subpoena to the city, nor did it request that the
city attend or do anything. However, the city asserts that, in reality, it is "compelled to comply"
with the order. Because the city would be "compelled to comply" with the court's order, MCR
2.506(H)(1), it "may appear before the court in person . . . ." Thus, this rule provides the city
with standing to appear.
The city also relies on MCR 2.302(C)(1) for the proposition that "a nonparty has standing
to seek protection by court order from requested discovery." MCR 2.302(C)(1) provides:
Protective Orders. On motion by a party or by the person from whom
discovery is sought, and on reasonable notice and for good cause shown, the court
in which the action is pending may issue an order that justice requires to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following orders:
(1) that the discovery not be had.
This court rule permits a nonparty to file a motion in a case asking that the court order
that a request for discovery not be had. In light of the city's argument that the court's order
directs it to produce the criminal histories of the civilian witnesses, MCR 2.303(C)(1) would also
provide the city with standing to appear before the court to contest the order.
B
The city contends that the LEIN statute and applicable rules promulgated to implement
the act prohibit it from releasing criminal histories derived from the LEIN for purposes of
discovery by a criminal defendant.
This issue was addressed in People v Mack, 218 Mich App 359; 554 NW2d 324 (1996),
nullified 455 Mich 865 (1997). In Mack, the defendant argued 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 LEIN. After noting that a "failure of justice would result if
defendant were precluded from obtaining information available to, and used by, the prosecution,"
id. at 362, this Court rejected the prosecutor's argument that the defendant may not receive the
records in question pursuant to 1981 AACS, R 28.5208 – 28.5210. This Court held:
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
-11-
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).
1981 AACS, R 28.5208(4) provides that "[a] user agency shall not sell or
disseminate any information obtained through the LEIN to any individual group
of individuals, organization, governmental agency, or corporation which is not
legally authorized to have access to this information." (Emphasis added.)
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 private 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 [28.]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. . . .
Accordingly, we conclude that the trial court erred in failing to allow
defendant access to the LEIN information regarding the prosecution's witnesses.
[Mack, supra at 362-363.]
We agree with the Mack majority's analysis and conclusion that LEIN information may
be provided to a criminal defendant pursuant to a court order. Id. at 362.6 The defendant in
Mack had requested impeachment material that was admissible at trial. The LEIN data, e.g.,
criminal history record information, can be released to a criminal justice agency, which includes
a court. Whereas LEIN information shall not be used for personal reasons or be released to any
entity that is not legally authorized to have access, it may be released for a valid criminal justice
purpose pursuant to a court order. Thus, we conclude that the LEIN act does not prohibit the
court from ordering that LEIN information be given to the prosecutor and ordering that the
prosecutor provide to the defendant any exculpatory or impeachment information found therein.
6
The Supreme Court did not give its reasons for nullifying the decision in Mack. Even though
Mack has been nullified, this Court is not precluded from deciding the issue in the same manner
that Mack did.
-12-
The prosecutor, however, is not required to give defendant more information than the
exculpatory or impeachment information. The court's order required that the prosecutor submit
the list of names of all civilian witnesses to the Ann Arbor Police Department "for the purposes
of obtaining a computerized criminal history for such witnesses . . . ." Although the order did
not require the prosecutor to turn over the entire computerized criminal history to defendant or
provide defendant all the information that was in the LEIN, the order should have stated more
precisely what was required to be produced to defendant. Once the prosecutor obtained the
information from the Ann Arbor Police Department, the prosecutor could merely inform
defendant of any exculpatory or impeachment evidence admissible under MRE 609, or could
excise information that was not discoverable. MCR 6.201(D).
C
The city argues that the trial court erred in determining that witnesses would be precluded
from testifying if the prosecutor and the city did not comply with the court's discovery order.
We disagree. A trial court is authorized to impose sanctions when a party fails to obey an order
to provide or permit discovery. The court may impose sanctions that it deems just, MCR
2.313(B), and may exclude testimony or evidence. MCR 6.201(J). We find no abuse of
discretion in the trial court's decision to exclude the testimony of those witnesses for whom the
prosecution did not turn over any exculpatory or admissible impeachment evidence to the
defendant. Barlow v John Crane-Houdaille, Inc, 191 Mich App 244, 251; 477 NW2d 133
(1991).
II. Docket No. 228734
A
Defendant argues that the trial court erred in granting the prosecutor's request to
introduce evidence of prior bad acts under MRE 404(b). The decision to admit evidence is
within the trial court's discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
MRE 404(b)(1) is a rule of inclusion that contains a nonexclusive list of "noncharacter"
purposes for which evidence may be admitted. People v Starr, 457 Mich 490, 496; 577 NW2d
673 (1998). Evidence of other crimes, wrongs, or acts is admissible under MRE 404(b) if the
evidence is (1) offered for a proper purpose other than to prove the defendant's character or
propensity to commit the crime, (2) relevant to an issue of fact or consequence at trial, and (3)
sufficiently probative to prevail under the balancing test of MRE 403. The trial court, upon a
request by the defendant, may provide a limiting instruction to the jury. People v VanderVliet,
444 Mich 52, 74-75; 508 NW2d 114 (1993).
Here, the prosecutor made an offer or proof seeking to admit the other acts evidence:
On or about March 31, 1999, a University of Michigan student reported
that he was confronted by Defendant and Ariel Cunningham and that Defendant
had pointed a small silver handgun at him. The student told police that on the
previous day he had engaged in a weaponless fight with Ariel Cunningham. The
-13-
next day Cunningham returned with Defendant and Defendant pointed the gun at
him.
The prosecutor offered the evidence to show that defendant possessed a gun similar to
that used in the shooting to establish his identity, show his familiarity with the gun, and to negate
"any claim of accident or other unintended or otherwise legally innocent firing."
Here, the challenged evidence was offered for a proper purpose. While "identity" was
not an issue at trial, the evidence was properly admitted to show that defendant possessed a gun
similar to that used in the shooting, to negate a claim of accident, and to show state of mind. The
other acts evidence was relevant to an issue of consequence at trial, i.e., defendant's defense of
self-defense. The evidence was also more probative than prejudicial. According to the police
report, a witness provided defendant's name and his description and also described the handgun.
The witness said that "Cadier" was the person who had the handgun. The information in the
police report was sufficient to support the prosecutor's representations that the witness would
testify that it was defendant who had pulled out the gun. Thus, the trial court did not err in
permitting the prosecutor to elicit other acts evidence from the witness.
When the witness did not identify defendant at trial, however, the court instructed the
jury that it could not consider the witness' testimony for any purpose. People v Graves, 458
Mich 476, 486; 581 NW2d 229 (1998). Defendant contends that the testimony unduly
prejudiced his case because the jury could not ignore the implication and inference that
defendant was the gunman who threatened the witness. Even if defendant's contention were true,
the evidence did not unduly prejudice defendant and there is not a reasonable probability that it
could have affected the outcome of the trial. First, the witness stated unequivocally that he
would recognize the person who pulled out the gun and that defendant was not that person.
Second, whether the jury believed that defendant had previously pulled out his gun to frighten
someone, there was undisputed evidence that defendant was carrying a gun; that he deliberately
put himself in the middle of an ongoing fight; that he started pulling at the fighters and ordering
them to "chill out"; that when they turned their attention to him, he pulled out a gun to frighten
them off; and that when they kept coming at him, he pointed his gun directly at the victim and
shot him. Thus, the witness' testimony did not unduly prejudice defendant or change the
outcome of the trial.
B
Defendant argues that the evidence was insufficient to support his conviction because the
prosecutor failed to negate defendant's theory of self-defense. This argument is premised on the
assertion that the prosecutor's witnesses were not credible and their testimony was contradicted.
However, questions regarding the credibility of witnesses are to be resolved by the trier of fact.
People v Daoust, 228 Mich App 1, 17; 577 NW2d 179 (1998). This Court should not interfere
with the jury's role in determining the weight of the evidence or the credibility of witnesses.
People v Wolfe, 440 Mich 508, 514; 489 NW2d 748 (1992).
A claim of self-defense first requires proof that the defendant has acted in response to an
assault. Detroit v Smith, 235 Mich App 235, 238; 597 NW2d 247 (1999). "[W]here a defendant
-14-
charged with murder asserts that he killed in self-defense, his state of mind at the time of the act
is material because it is an important element in determining his justification for his belief in an
impending attack by the deceased." People v Harris, 458 Mich 310, 316; 583 NW2d 680
(1998).
The killing of another in self-defense is justifiable homicide if the defendant honestly and
reasonably believes that his life is in imminent danger or that there is a threat of serious bodily
harm. People v Fortson, 202 Mich App 13, 19-20; 507 NW2d 763 (1993). Once evidence of
self-defense is introduced, the prosecutor bears the burden of disproving it beyond a reasonable
doubt. Id. at 20.
Viewed in a light most favorable to the prosecution, the evidence was sufficient to negate
defendant's claim of self-defense. Christian Wiater testified that he saw a person fire a gun into
the air. He heard the victim say, "Is that a cap gun?" The person who fired the gun replied,
"This ain't no f___ing cap gun." Christian testified that the victim did not advance on the shooter
and that he saw the shooter lower his gun and fire at the victim. Ryan Holdan testified that he
heard the victim say, "What is that, a cap gun?" Then he heard "a voice" say, "This ain't no
f___ing cap gun." Then he heard a second shot and saw people scatter. Soper testified that he
saw two people approaching a guy who was backing up until he was against the wall. They were
about three or four feet away from the guy when the guy pointed his gun at one of the two
people, the one who was wearing a long-sleeved shirt. The person at whom the gun was pointed
didn't seem affected and started laughing. Soper testified, "He said something along the lines of
you're a bitch to the guy who shot at him." Soper saw defendant point the gun at the victim's
chest. The victim kept advancing on defendant, and defendant shot the victim in the chest.
Soper stated that he does not know if the victim got his hands on the shooter. Anderson testified
that he heard a gunshot and saw sparks. He saw a guy "with his chest puffed out" walking
toward the sparks. The guy said, "What the f___ are you gonna do with that?" and the second
shot was fired. The victim was within a few steps of the shooter. Cunningham testified that the
victim was within an arm's length of defendant when defendant fired the fatal shot. The victim
never touched defendant. However, he "started to bring his hands up and the shot went off and
[defendant] started running." When the shot was fired, the victim was about a foot or two from
defendant.
If the jury found that Christian Wiater's testimony was credible, it could have concluded
that defendant did not fear an impending attack when he fired the second shot directly at the
victim. If the jury believed Christian Wiater's testimony that the victim was not advancing on
defendant, it could have found that defendant did not have an honest and reasonable belief that
his life was in imminent danger or that he was threatened with serious bodily harm. If the jury
believed both Christian Wiater and Holdan, it could have found that defendant's statement,
expressing that his weapon was not a cap gun, was made not in fear of his life but as an
aggressive threat in a bout of rage or passion, provoked by the victim's laughing and taunting
him about the gun and calling him a "bitch."
-15-
If the jury believed Soper, Anderson, and Cunningham, it could have concluded that the
victim was never close enough for defendant to honestly and reasonably believe that his life was
in imminent danger or that there was a threat of serious bodily harm.
Viewing the evidence in the light most favorable to the prosecution, there was sufficient
testimony, if believed by the jury, to negate defendant's claim of self-defense beyond a
reasonable doubt. Fortson, supra at 20.
The elements of voluntary manslaughter are (1) the defendant must kill in the heat of
passion, (2) the passion must be caused by an adequate provocation, and (3) there cannot be a
lapse of time during which a reasonable person could control his passions. People v Sullivan,
231 Mich App 510, 518; 586 NW2d 578 (1998), aff 'd 461 Mich 992 (2000).
It is the element of provocation that distinguishes the offense of manslaughter from
murder. Id. In Sullivan, 231 Mich App 518, this Court stated:
The provocation necessary to mitigate a homicide from murder to
manslaughter is that which causes the defendant to act out of passion rather than
reason. People v Townes, 391 Mich 578, 590; 218 NW2d 136 (1974). Case law
has consistently held that the provocation must be adequate, namely, that which
would cause a reasonable person to lose control. Id.
The determination of what is reasonable provocation is a question of fact
for the fact finder. Id. at 589. However, the court furnishes the standard of what
constitutes adequate provocation, i.e., that provocation that would cause a
reasonable person to act out of passion rather than reason. Where, as a matter of
law, no reasonable jury could find that the provocation was adequate, the court
may exclude evidence of the provocation.
Because provocation is measured under a reasonable person standard, it is uniformly held
that a defendant's special mental qualities or special traits are not to be considered in measuring
the adequacy of provocation. Sullivan, supra at 519.
The evidence here was sufficient to support the jury's verdict of manslaughter.
Defendant was in the middle of an affray when several of the men turned on him and started to
approach him. The events were swift and frightening. After defendant fired a warning shot, the
victim continued to approach defendant. If the jury believed Soper's testimony, it would have
found that the victim was taunting and provoking defendant, which was adequate provocation to
cause a reasonable person to lose control and act out of passion, rather than reason. Accordingly,
viewed in a light most favorable to the prosecution, a rational trier of fact could have found that
the essential elements of the crime were proved beyond a reasonable doubt.
C
Defendant maintains that the trial court abused its discretion in denying his motion for a
new trial because the evidence that supported self-defense greatly outweighed the evidence that
-16-
negated it. Defendant bases this claim on the contention that the prosecution witnesses were not
credible.
This Court reviews for an abuse of discretion a trial court's denial of a motion for a new
trial on the ground that the verdict was against the great weight of the evidence. People v
McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001). "The test is whether the evidence
preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the
verdict to stand." Id. "Conflicting testimony, even when impeached to some extent, is an
insufficient ground for granting a new trial." People v Lemmon, 456 Mich 625, 647; 576 NW2d
129 (1998).
In motions for a new trial based on the claim that the verdict is against the great weight of
the evidence, the issue of credibility of the witnesses is implicit in the determination. Id. at 638.
However, "[n]ew trial motions based solely on the weight of the evidence regarding witness
credibility are not favored." Id. at 639. Contrary to defendant's assertion in his appellate brief
that, "[w]hen considering whether the verdict is against the great weight of the evidence, the
court may assess the credibility of the witnesses", the Court in Lemmon stated:
We align ourselves with those appellate courts holding that, absent
exceptional circumstances, issues of witness credibility are for the jury, and the
trial court may not substitute its view . . . . We reiterate the observation in
Anderson v Conterio, 303 Mich 75, 79; 5 NW2d 572 (1942), that, when testimony
is in direct conflict and testimony supporting the verdict has been impeached, if
"it cannot be said as a matter of law that the testimony thus impeached was
deprived of all probative value or that the jury could not believe it," the credibility
of witnesses is for the jury. [Lemmon, supra at 642-643.]7
The Lemmon Court addressed the several tests that have been developed that would allow
a court to "take the testimony away from the jury." Among them, as urged by defendant in this
case, is "where the witness' testimony has been seriously 'impeached' and the case marked by
'uncertainties and discrepancies.'" Id. at 643-644, quoting United States v Martinez, 763 F2d
1297, 1313 (CA 11, 1985).
Defendant claims that this is the situation here. He contends that the prosecutor's attempt
to negate defendant's claim of self-defense rested on Christian Wiater's testimony that, before
defendant shot his gun, defendant stated "[t]his ain't no f___ing cap gun." According to
defendant, Wiater's testimony was so seriously impeached, and the case marked by so many
uncertainties and discrepancies, that this Court should "take the testimony away from the jury."
We disagree. The above exception to the general rule, cited in United States v Martinez, supra,
and relied on by Lemmon, contemplates a situation where the "witness" in question is the
prosecutor's sole or principal witness and the witness' testimony is "seriously impeached" and, in
7
Defendant's reliance on People v Herbert, 444 Mich 466; 511 NW2d 654 (1993), is misplaced.
Herbert was overruled in Lemmon, supra at 627.
-17-
addition, there are "uncertainties and discrepancies" throughout the case. In Martinez, supra at
1314, the court declined to find an exception to the rule that the court may not "overturn the
credibility choice made by the jury" or "interfere with the jury's factual findings" unless it could
be found that "the government's case was presented by impeached witnesses, while the testimony
of the defendants' witnesses was unwaivering and corroborated by independent evidence." This
is not the situation in this case. Here, the government's case did not consist entirely of testimony
of impeached witnesses, and defendant did not present any other witness on his behalf but
himself. Also, there was no independent evidence to corroborate defendant's testimony.
Not only were there numerous eyewitnesses and participants who testified about the
incident, including defendant, but also defendant has failed to demonstrate any "uncertainties and
discrepancies" in the case. Conflicting testimony is not sufficient. Lemmon, supra at 647. Thus,
the fact that Christian Wiater's testimony was impeached does not require this Court to step in
and take over the jury's function. As we explained in part II(C) of this opinion, the jury could
have found that Wiater's testimony, that the victim was not advancing on defendant when
defendant fired the fatal shot and that defendant threatened the victim with his statement that
"[t]his ain't no f___ing cap gun," was credible. Further, as pointed out in part II(C), there was
testimony, in addition to Wiater's testimony that tended to negate self-defense, that the jury could
also have found credible.
The evidence showed that defendant was being confronted, taunted, and provoked by the
victim and one or two others, even after he fired a warning shot into the air. There were several
other unknown men surrounding defendant, creating a volatile and dangerous situation. The
great weight of the evidence did not lead to the conclusion that defendant acted in self-defense.
Instead, if the jury found the prosecution's witnesses to be credible, the great weight of the
evidence supports the jury's verdict. Thus, we conclude that the trial court did not abuse its
discretion in denying defendant's motion for a new trial on the ground that the verdict was
against the great weight of the evidence.
D
Last, defendant argues that he was denied a fair trial by improper prosecutorial remarks.
Because defendant did not object to the allegedly improper remarks, review is foreclosed unless
no curative instruction could have removed any undue prejudice to the defendant or manifest
injustice would result from failure to review the alleged misconduct. People v McAllister, 241
Mich App 466, 473; 616 NW2d 203 (2000). In order to avoid forfeiture under the plain error
rule, defendant must show plain error that affected his substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999); People v Schutte, 240 Mich App 713, 720; 613 NW2d
370 (2000).
First, there is no merit to defendant's suggestion that the prosecutor improperly shifted
the burden of proof concerning self-defense by instructing the jury to consider whether the
defendant "knew about any other ways of protecting himself." See CJI2d 7.15(5). Second,
although the prosecutor's statement that defendant never testified that Nicholas Seitz tried to grab
his arm was a misrepresentation of the evidence, the statement did not affect the jury's verdict
-18-
and, therefore, was harmless.8 Third, there is no basis for a determination that defendant was
denied a fair trial because of the cumulative effect of multiple errors.
Affirmed.
Hood, J., concurred.
/s/ E. Thomas Fitzgerald
/s/ Harold Hood
8
The court instructed the jury that the lawyers' statements and their arguments are not evidence
and that it should accept only statements by the lawyers that are supported by the evidence.
Juries are assumed to adhere to the instructions they are given. People v Graves, 458 Mich 476,
486; 581 NW2d 229 (1998).
-19-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.