PEOPLE OF MI V ERNEST E MATTHEWSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 20, 1998
LC No. 95-007986
EARNEST E. MATTHEWS,
Before: Jansen, P.J., and Holbrook, Jr. and MacKenzie, JJ.
A jury convicted defendant of carjacking, MCL 750.529a; MSA 28.797(a), three counts of
armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a
felony, MCL 750.227b; MSA 28.424(2). The trial court sentenced him to fifteen to thirty years’
imprisonment for the carjacking and armed robbery convictions, to be served consecutively to a two
year sentence for the felony-firearm conviction. Defendant appeals as of right. We affirm.
Shortly after midnight on April 18, 1995, Mark Mitchell, Gina Saa, and Michelle Lambert were
getting into Mitchell’s Jeep Grand Cherokee when two men, one with a sawed-off shotgun and one with
a handgun, ordered them to get out of the car and lay on the ground with their heads down. Mitchell
identified defendant as the man with the shotgun. The men took the victims’ money and jewelry at
gunpoint and then drove away in the Jeep and another car. The following day, two police officers
spotted the Jeep and, after a chase, caught the driver. The passenger, whom they identified as
defendant, escaped on foot. Approximately two months later, defendant was arrested in another
matter. He was wearing Mitchell’s watch at the time of the arrest. Although Mitchell identified
defendant in a lineup, Saa and Lambert did not.
During the cross-examination of Mitchell, defense counsel asked the witness if he had identified
the second robber as David Bullock; Mitchell replied that he had. On cross-examination by defense
counsel, Saa testified that she was a social acquaintance of Bullock’s and that the second robber’s
voice did not sound like Bullock to her. Mitchell was subsequently re-called at defense counsel’s
request. At that time, the prosecutor asked Mitchell if he identified Bullock in a separate lineup.
Mitchell stated that he had. Following the close of proofs, defense counsel moved for a mistrial because
he had not been given any information on Bullock’s lineup, and the lineup had nothing to do with the
case against defendant. The trial court denied the motion.
On appeal, defendant argues that the trial court erred in denying his motion for mistrial.
Specifically, he contends that a mistrial was required because the prosecutor violated a discovery order
by failing to provide defendant with material concerning Bullock’s lineup and then brought up the lineup
at trial. The claim is without merit.
As a threshold matter, the lower court record in this case contains no discovery order, although
we recognize that this does not necessarily mean that an order was not issued. See People v Davie
(After Remand), 225 Mich App 592, 594-595 n 1; 571 NW2d 229 (1997). Assuming that the
prosecution was ordered to turn over Bullock’s lineup sheet in defendant’s case, however, a mistrial
was not warranted under the circumstances of this case. In exercising its discretion in cases of
noncompliance with a discovery order, courts must consider all relevant circumstances, including a
showing by the objecting party of actual prejudice. Id., p 598. A mistrial should be granted only where
the error complained of is so egregious that the prejudicial effect can be removed in no other way.
People v Lumsden, 168 Mich App 286, 299; 423 NW2d 645 (1988). Here, based on defense
counsel’s cross-examination of Mitchell, the defense was clearly aware that Mitchell had identified
Bullock as the second robber. Defense counsel’s questioning of Mitchell also made the jury aware of
the identification. Furthermore, Bullock’s lineup was completely irrelevant to the issue of defendant’s
guilt; it was apparently introduced by the prosecution in response to defense counsel’s questioning of
Mitchell and Saa. Under these circumstances, it is difficult to see how testimony concerning Bullock’s
lineup resulted in actual prejudice to defendant.
Moreover, even if the prosecutor violated a discovery order and the trial court improperly
admitted evidence at trial, any error was harmless in light of the overwhelming evidence against
defendant. Error in the admission of evidence is harmless if it is highly probable that the error did not
contribute to the verdict. People v Harris, 458 Mich 310, 320; 583 NW2d 680 (1998). Defendant
was identified by two police officers in separate lineups as the passenger in Mitchell’s stolen vehicle one
night after the carjacking. He was in possession of Mitchell’s watch at the time of his arrest and was
identified by Mitchell as one of the robbers. In light of this evidence, it is not highly probable that the
evidence of Bullock’s lineup contributed to defendant’s conviction.
/s/ Kathleen Jansen
/s/ Donald E. Holbrook, Jr.
/s/ Barbara B. MacKenzie