PEOPLE OF MI V JAMES EDWARD BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 22, 2004
Plaintiff-Appellee,
v
No. 247711
Wayne Circuit Court
LC No. 02-010597
JAMES EDWARD BROWN,
Defendant-Appellant.
Before: Murphy, P.J., and Jansen and Cooper, JJ.
PER CURIAM.
Defendant James Edward Brown appeals as of right his bench trial convictions of two
counts of felonious assault,1 felon in possession of a firearm,2 and possession of a firearm during
the commission of a felony.3 Defendant was sentenced to four years’ imprisonment for each
felonious assault conviction; fifteen months to five years’ imprisonment for his felon in
possession of a firearm conviction; and two years’ imprisonment for his felony-firearm
conviction.4 We affirm.
I. Facts and Procedural History
The circumstances surrounding defendant’s convictions arose from defendant’s assault of
Rufus Williams and Christopher Bell following a dispute between neighbors. On May 23, 2002,
an argument arose between defendant’s sisters and the family of Mr. Williams’s girlfriend,
Kenisha Lance, in which Mr. Williams intervened. Later in the day, Mr. Williams and Mr. Bell
sat in a car in Ms. Lance’s driveway listening to music. Defendant drove up with two other men
and approached the vehicle looking for “Capone,” referring to Mr. Williams. Defendant reached
1
MCL 750.82. Defendant was originally charged with five counts of assault with intent to
murder, MCL 750.83. Defendant was acquitted of three of these charges and convicted of two
counts of the lesser included offense of felonious assault.
2
MCL 750.224f.
3
MCL 750.227b.
4
Although defendant was sentenced as an habitual offender, his sentence was not enhanced.
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into the passenger window and hit Mr. Williams in the chest.5 While standing two feet from the
passenger door, defendant shot twice at the vehicle and then walked to the driver’s side.
Defendant continued to shoot while Mr. Williams and Mr. Bell ran from the vehicle. A bullet
grazed Mr. Williams’s neck and Mr. Bell was hit in the shoulder. Three women sitting on Ms.
Lance’s porch were also forced to run for cover.
Before defendant’s trial, the trial court ordered the prosecution, upon defendant’s motion,
to “provide copies of any and all criminal histories of the civilian witnesses at least two weeks
prior to trial.”6 On the first day of trial, defense counsel objected to the prosecution’s failure to
comply with this order.7 The prosecution indicated for the record that neither witness to be
called that day had any relevant criminal history.8 The prosecution argued that it was not
required to provide such discovery, but was unprepared to argue its position. The trial court held
the production of the criminal histories of the remaining three prosecution witnesses under
advisement until the prosecution provided the relevant case law.9 On the second day of trial,
however, the prosecution presented its witnesses without objection from defendant or comment
by the trial court.
II. Sufficiency of the Evidence
Defendant alleges that the evidence was insufficient to support his convictions for two
counts of felonious assault. Specifically, defendant contends that he was not the shooter. In
sufficiency of the evidence claims, we review the evidence in the light most favorable to the
prosecution and determine whether a rational trier of fact could find that the essential elements of
the crime were proven beyond a reasonable doubt.10 “[C]ircumstantial evidence and reasonable
inferences arising from that evidence can constitute satisfactory proof of the elements of a
crime.11
Felonious assault requires proof of “(1) an assault, (2) with a dangerous weapon, and (3)
with the intent to injure or place the victim in reasonable apprehension of an immediate
battery.”12 The defendant must have the “present ability or apparent present ability to commit a
battery.”13 The only defense witness testified that another man situated at the rear of the vehicle
5
Witnesses presented conflicting testimony regarding whether defendant hit Mr. Williams with
his firearm or his fist.
6
[Order to Produce Criminal Histories, October 10, 2002.]
7
[Waiver Trial Transcript, February 3, 2003, p 5.]
8
[Waiver Trial Transcript, February 3, 2003, pp 6-7.]
9
[Waiver Trial Transcript, February 3, 2003, p 11.]
10
People v Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002).
11
People v Lee, 243 Mich App 163, 167-168; 622 NW2d 71 (2000).
12
People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999), citing People v Davis, 216
Mich App 47, 53; 549 NW2d 1 (1996).
13
People v Jones, 443 Mich 88, 100; 504 NW2d 158 (1993).
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was in fact the shooter. However, multiple prosecution witnesses identified defendant as the
assailant, and testimony regarding the location of the bullet holes on the vehicle indicate that the
shooter was on the passenger side. We will not interfere with the trial court’s determination
regarding witness credibility.14 As the testimony reveals that defendant shot at Mr. Williams and
Mr. Bell at close range causing them to run for their lives, sufficient evidence was presented to
support defendant’s convictions for felonious assault.
III. Discovery of Criminal Histories
Defendant contends that the trial court violated his Sixth Amendment right to confront
the witnesses against him by failing to enforce its order requiring the prosecution to produce
records of the criminal histories of the complaining witnesses. The prosecution contends that it
was not required to do so pursuant to People v Elkhoja.15
Evidence of prior convictions for offenses containing an element of dishonesty, false
statement or theft are admissible for impeachment purposes.16 The evidence must be elicited
from the witness or established by public record during cross-examination.17 However,
defendants do not have access to the criminal records of civilian witnesses and so must seek this
information from the prosecution through discovery.
A defendant has a due process right to discovery of “evidence favorable to an accused,”
including impeachment evidence.18 Michigan requires reciprocal discovery in criminal cases,19
as well as requiring the prosecution to provide a defendant, upon request, certain information
known to the prosecution.20 Even if not required by court rule, “[d]iscovery will be ordered in
14
People v Wolfe, 440 Mich 508, 514; 489 NW2d 748, amended 441 Mich 1201 (1992).
15
People v Elkhoja, 251 Mich App 417; 651 NW2d 408 (2002), vacated in part 467 Mich 916
(2003) (Elkhoja I).
16
MRE 609(a).
17
Id.
18
United States v Bagley, 473 US 667, 676; 105 S Ct 3375; 87 L Ed 2d 481 (1985), citing Brady
v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
19
MCR 6.201(A) (mandatory reciprocal disclosures). The court rule took effect in 1995
following our Supreme Court’s decision in People v Lemcool, 445 Mich 491; 518 NW2d 437
(1994).
20
MCR 6.201(B). Specifically, the rule provides:
Upon request, the prosecuting attorney must provide each defendant:
(1) any exculpatory information or evidence known to the prosecuting
attorney;
(2) any police report concerning the case, except so much of a report as
concerns a continuing investigation;
(continued…)
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criminal cases, when, in the sound discretion of the trial judge, the thing to be inspected is
admissible in evidence and a failure of justice may result from its suppression.”21 However,
neither party is entitled to the discovery of information if its disclosure would violate a statute.22
In Elkhoja, this Court found that the prosecution is required to provide the defendant
upon request with any exculpatory or impeachment information found within its witnesses’
computerized criminal histories found on the Michigan Law Enforcement Information Network
(LEIN).23 The rules promulgated to implement the LEIN statute24 provide that LEIN
information “shall only be disseminated to a criminal justice agency or an agency that is
statutorily authorized to have access to such data” and shall not be sold or disseminated to any
agency “not legally authorized to have access to this information.”25 1981 AACS, R 28.5209
further provides that a user agency may release LEIN information to another agency “upon
written request from a . . . prosecuting attorney who shall specify that the information required is
for a valid criminal justice purpose” or upon a court order.26 However, a user agency may not
disseminate the information to a private person.27
Based upon these rules, this Court in Elkhoja and in People v Mack28 found that the
prohibition of dissemination of LEIN information to private individuals for personal reasons did
not prevent the release of this information to a defendant for a valid criminal justice purpose
pursuant to court order.29 The Elkhoja dissent noted that the prosecution is not required to
conduct discovery on behalf of a defendant.30 The dissent further reasoned that “LEIN
information may not be given to a private person for any purpose, and doing so is a criminal
(…continued)
(3) any written or recorded statements by a defendant, codefendant, or
accomplice, even if that person is not a prospective witness at trial;
(4) any affidavit, warrant, and return pertaining to a search or seizure in
connection with the case; and
(5) any plea agreement, grant of immunity, or other agreement for
testimony in connection with the case. [MCR 6.201(B).]
21
People v Stanaway, 446 Mich 643, 680; 521 NW2d 557 (1994). quoting People v Maranian,
359 Mich 361, 368; 102 NW2d 568 (1960).
22
MCR 6.201(C)(1).
23
Elkhoja I, supra at 438-439.
24
MCL 28.211 et seq.
25
1981 AACS, R 28.5208(1), (4).
26
1981 AACS, R 28.5209(2).
27
1981 AACS, R 28.5210.
28
People v Mack, 218 Mich App 359; 554 NW2d 324 (1996), nullified 455 Mich 865 (1997).
29
Elkhoja I, supra at 438; Mack, supra at 362-363.
30
Elkhoja I, supra at 452.
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offense under MCL 28.214.”31 As no rule or law authorizes the dissemination of LEIN
information to criminal defendants seeking impeachment evidence, the dissent found that it
would be illegal for a user agency to release the information to the prosecution for this purpose.32
After granting leave to appeal in Elkhoja to determine whether the trial court’s discovery
order violated the LEIN statute and whether denying the defendant’s request would violate his
constitutional rights, our Supreme Court reconsidered and vacated this Court’s opinion.33 In
doing so, the Supreme Court adopted the reasoning of the Elkhoja dissent.34
We are bound by the ruling of our Supreme Court, and therefore, find that the prosecutor
was not required to produce records of the criminal histories of her civilian witnesses. We note,
however, that in vacating this Court’s opinion in Elkhoja, the Supreme Court seriously altered
long established law without considering the issue on leave granted. Criminal defendants still
have the right to impeach witnesses with relevant evidence from their criminal histories, but are
now left without the ability to access such information. As such, a defendant’s power to impeach
the prosecution’s witnesses pursuant to MRE 609(a) has been rendered virtually useless.
Affirmed.
/s/ Kathleen Jansen
/s/ Jessica R. Cooper
I concur in result only.
/s/ William B. Murphy
31
Id. at 451.
32
Id. at 451-452.
33
People v Elkhoja, 467 Mich 916; 655 NW2d 559 (2002), 658 NW2d 153 (2003).
34
Id.
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