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Monday, June 4, 2012

Explanation of Coleman-Young videos.

These videos that include the name Coleman-Young are of Jeff representing Jarvus Coleman-Young who was a 23-year-old facing one count of open murder (a statutory definition in Michigan that allows the prosecutor to pursue first degree murder and lesser-included degrees of homicide, too), carrying a concealed weapon, and felony murder.  The prosecutor wanted a conviction for first-degree murder and the other two.  Jarvus was convicted of second-degree murder and the other two.  He was sentenced to 22 years to 62 years, as opposed to the life without parole that is the sentence for first-degree murder.  Jarvus had confessed to shooting the victim within two hours of the act, and even before the police had his name despite the fact that there were at least three eye witnesses.  Two videos show Jeff’s cross-examination of the chief training officer for the Kalamazoo Department of Public Safety; the third is a portion of Jeff’s argument after the examination of that officer.  Jeff wanted to introduce testimony that nearly ten percent of all officers in Kalamazoo use lethal force in a training program when it is shown lethal force was not necessary.  In other words, they shoot innocent bystanders in the training program.  Think of the shooting range scene in the Dirty Harry movies if you’re at least as old as I am, and the recruiting scene in Men In Black with Will Smith if you’re younger.  The judge concluded that the testimony would be relevant, but would confuse the jury.  This was my first of four failed attempts to get the testimony before the jury.  The jury was not in the courtroom during the questions and argument on this issue. 
The brief I’ve also attached here present my arguments to the court for why this should be allowed.
I am still hopeful that an appellate court will reverse the trial judge and Jarvus will receive what I think is justice.
That was my third failed attempt.

1st clip of cross examination of KDPS chief training officer.

Second clip of cross-examination of chief KDPS training officer.

Request to allow testimony regarding police firearm training.

Tuesday, May 22, 2012

People v Jarvus Coleman-Young, Count 1, Open Murder; Count 2, Carrying a Concealed Weapon; Count 3, Felony Firearm.

State of Michigan
9th Circuit Court
227 West Michigan Avenue
Kalamazoo, Michigan 49007

People of the State of Michigan     Case Number: 2011-1498-FY
                                                       Honorable Pamela Lightvoet

Jarvis Adrice Coleman-Young

Mr. Jeff Fink                                     Jeffrey Gagie (P49822)
Prosecuting Attorney                        Attorney for Defendant
227 West Michigan Avenue             3232 Pine Bluff Lane
Kalamazoo, MI 49007                      Kalamazoo, MI 49008
269-383-8900                                   269-207-3510

Of a
Defense Motion in Limine
February 6, 2012

This has to do with Defendant’s wish to present testimony that nearly ten percent of KDPS Officers who complete a lethal-weapon-decision-making training program use lethal force when it was not necessary.  Defendant wanted the jury to consider that even trained officers facing only simulated lethal force react in error nearly ten percent of the time.  Defendant was not trained, had never completed a lethal-weapon-decision-making training program, or any firearm-training program, and was facing what he believed, based on his only previous contact with the victim, that he was facing a lethal threat.  The trial court thought the testimony relevant, but excluded this proffered testimony on the grounds that it would confuse the issues.  The following was Defendant’s third of four attempts to get the testimony admitted.  It should be noted that the assertions regarding the training program were gleaned from the testimony of the Chief Training Officer of KDPS.

People v Feezel, 486 Mich 184 (2010)
Applied to
Defendant’s Request
To Pursue Testimony
KDPS Use of Lethal Force Decision-Making Training

            People v Feezel, 486 Mich 184 (2010), considered MRE 403 and specifically the clause including “unfair prejudice, confusion of the issues, or misleading the jury.”  Defendant Feezel was driving in Ypsilanti Township, Washtenaw County with a blood alcohol content (BAC) of between 0.091 and 0.115 grams per 100 milliliters, and also six nanograms of 11-carboxy-tetrahydrocannabinol (11-carboxy-THC) per milliliter of the defendant’s blood (11-carboxy-THC is a byproduct of metabolism created when the body breaks down the psychoactive ingredient of marijuana).  Id., at 188-189.
Feezel struck and killed a pedestrian who was walking down the middle of an unlit five-lane road with his back to oncoming traffic.  The victim was extremely intoxicated, with a BAC of at least 0.268 grams per 100 milliliters of blood.  Id., at 188-189.  Feezel was convicted of failing to stop at the scene of an accident that resulted in death, OWI, second offense, and operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death. Id., at 190. 
            The issue the Feezel court considered that is relevant here is whether or not the victim’s BAC should have been admitted, or excluded with MRE 403.  The Feezel court recognized the standard of review used in evidentiary issues, and the high threshold necessary before an evidentiary issue will be reversed.  The court stated:

A trial court’s decision to either admit or exclude evidence will not be disturbed absent an abuse of . . . discretion.  A trial court abuses its discretion when its decision falls outside the range of principled outcomes.
If a reviewing court concludes that a trial court erred by excluding evidence, under MCL 769.26 the verdict cannot be reversed unless in the opinion of the court, after an examination of the entire case, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.  In examining whether a miscarriage of justice occurred, the relevant inquiry is the effect the error had or reasonably may be taken to have had upon the jury’s decision.  If the evidentiary error is a nonconstitutional, preserved error, then it is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative.  An error is outcome determinative if it undermined the reliability of the verdict; in making this determination, this Court should focus on the nature of the error in light of the weight and strength of the untainted evidence.  Id., at 192.  (quotation marks and citations omitted).

Still and nevertheless, the Feezel court determined that excluding the victim’s BAC resulted in a miscarriage of justice.  It vacated Defendant Feezel’s convictions and remanded the case to the trial court.
The Feezel court continued its analysis.  It stated:

In People v Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998), we explained that pursuant to MRE 401, evidence is relevant if two components are present, materiality and probative value.  Materiality is the requirement that the proffered evidence be related to any fact of consequence to the action.  This Court has stated that because the prosecution must carry the burden of proving every element beyond a reasonable doubt, . . . elements of the offense are always in issue and, thus, material.  When examining whether the proffered evidence is probative, a court considers whether the evidence tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, and the threshold is minimal: any tendency is sufficient probative force.
Moreover, MRE 403 excludes evidence, even if relevant, only if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.  Thus, MRE 403 does not prohibit prejudicial evidence; only evidence that is unfairly so.  Id., at 197.  (quotation marks and citations omitted).

When the court applied its analysis of MRE 403 to the facts of the case, and whether or not the victim’s BAC should be admitted, the court stated:

First, the materiality requirement of MRE 403 was met because, as explained earlier, the charges at issue required the prosecution to prove an element of causation beyond a reasonable doubt. . . .
Second, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .
In addition, the probative value of the evidence was not, as the prosecution argues, substantially outweighed by the danger of confusion of the issues or misleading the jury.  Id., at 198-200. 
Applying these standards to the facts of this case, we hold that the trial court abused its discretion by failing to admit evidence of the victim’s BAC.  In excluding the evidence, the trial court deprived the jury of its ability to consider an important, relevant factor in determining whether the victim was grossly negligent.  As a result, the error undermined the reliability of the verdict.  We therefore reverse the judgment of the Court of Appeals and vacate the defendant’s convictions of those offenses.  Id., at 203.  (quotation marks and citations omitted).

Although the factual issue, and the actual information this Defendant wants admitted differs from that in Feezel, the legal significance and similarity is profound.  The Defendant will introduce evidence to support a claim of self-defense.  Once that is done, the prosecution will bear the burden of proving that Defendant did not act honestly and reasonably, or that he did not honestly and reasonably believe that what he did was immediately necessary.  The standard criminal jury instruction for Use of Deadly Force in Self-Defense, CJI2d 7.15 ends with this statement that surely helps anyone see why the sought after testimony must be admitted: “but you may also consider how the excitement of the moment affected the choice the defendant made.”  (emphasis added).
To return to the analysis of Feezel, because the prosecutor must prove Defendant’s beliefs and acts were not honest and reasonable, the elements are in issue, and, thus, material.  Feezel, p 197.  When this court considers whether the proffered testimony is probative, the court must consider whether the testimony tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the testimony, and the threshold is minimal: any tendency is sufficient probative force.  Id., at 197.  Surely information that all KDPS officers perform a lethal force decision making training program at least twice a year and that just under ten percent of them use lethal force in the simulation when lethal force was not necessary, would help the jury determine whether this civilian who had never attended even a basic firearm training course, let alone up to four or more every year, plus the lethal force decision making training program at least twice a year had actions and beliefs that it concludes were honest and reasonable.  Therefore, the proffered testimony is material and probative.  Thus, the proffered testimony is relevant.  But this court already made a finding that the proffered evidence was relevant.  The court denied Defendant the opportunity to pursue the line of questions because the court thought it would confuse the issues.
So, the next step in applying Feezel to the case at bar is to examine the possibility of the proffered testimony causing unfair prejudice, confusion of the issues, or misleading the jury.  And according to Feezel, MRE 403 only excludes relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.  Feezel, p 198 (emphasis added). 
The proffered testimony is about a simulation training program: the program is on a large video screen that can be set to simulate a room or an outside area; it is so sophisticated that other law enforcement agencies contract with KDPS to train their officers with it; it is not at all like a cardboard cutout type simulation course made famous approximately forty years ago in movies by “Dirty” Harry Callahan, because it doesn’t use cardboard figures, it projects figures on a screen; it can be set to create a traffic stop scenario or a domestic violence scenario; no real bullets are used; if the participant and trainer want to change from a laser type gun, they can switch to paint balls; every KDPS officer completes the program twice a year or more in addition to other firearm training four times per year; officers of KDPS have completed a police academy program or equivalent before ever becoming a member of KDPS; one objective of the program is to teach the officers to consider the totality of the circumstances; every participant reviews their performance with the training officer of KDPS to analyze their thought processes, choices they made, actions they took and or didn’t take; there is no right or wrong during the review process, it is a teachable moment in which KDPS wants to maximize the value received by every participant; the proffered testimony could be obtained from a fully uniformed KDPS officer of their choice who, presumably would know what he is testifying about, and her/his testimony would be consistent with a second officer if one was called to bolster or confirm the testimony of the first.  Finally, all KDPS officers wear a uniform or suit when not otherwise excused because of undercover work, or some other exception to the uniform general rule.
How does that compare with the facts of this case?  Defendant Jarvus Coleman-Young is a 23-year old male with no college degree; he confessed to shooting and killing another male in an apartment complex that is within what is known as a “drug corridor” by KDPS, has been the sight of numerous felonious assaults, and homicides in recent years, and other drug related crimes, including but not limited to larcenies, robberies, prostitution, and street level drug trafficking, all of which has been going on for at least the 19 years prosecution witness Retired Sergeant Daniel Smith was with KDPS (significantly, those assertions come from the testimony of prosecution witnesses in the case at bar); the shooting took place in an apartment hallway that is fifty-nine feet long and five feet wide; the time of the shooting was a Saturday night; according to the victim’s girlfriend, who is responsible for the victim being in that hallway that Saturday night, there is no reason Defendant or anyone else would have known to expect Berry in that hallway at any time that evening (this is from the victim’s girlfriend’s testimony at the preliminary examination); there was no trained observer, or safety precautions in place such as protection for eyes, ears, and innocent observers; Defendant went to KDPS CID afterward and was charged with three felonies, including open murder; Defendant never had a review meeting with the absence of right or wrong conclusions and analysis of his thought processes, choices he made, actions he took and or didn’t take; Defendant’s actions did not end with a teachable moment, but rather with an orange jumpsuit and a trip to a jail cell; Defendant didn’t shoot the victim with a laser pointer like in the simulator, he used a 9 mm handgun with a real bullet; Defendant didn’t use paintballs, either; the bullet that Defendant used entered the victim’s body in the upper chest, tore through soft tissue in a front to rear, left to right, slightly up to down trajectory, ending in the right part of his back; Defendant didn’t get a chance to recreate, or schedule a follow-up training program sometime later in the year; the situation Defendant was in has been described by eight civilians who were either in the hallway at the time of the shooting, were in apartments the doors to which open into the hallway, or were visiting residents of the building, and the testimony of these witnesses is so inconsistent as to be absurd: the number of people supposedly in the hall at the time of the shooting varies from three to twenty; there were sounds in the hall before the shot, to there were no sounds; the head of the body was to the north compared to others who say it was to the south; nobody touched the body compared to two white women touched the body, to only one of the two white women present in the building admitted to touching the body, etc., etc.
Counsel is sure there are other distinctions between the proffered testimony and the reality of the case facing Defendant, but he is at a loss to add them at this time.  Probably more importantly is the fact that since the prosecution is presenting a case in which they believe Defendant to be a cold-blooded murderer, they can surely help the jury understand the differences between KDPS officers and Defendant, and make sure there is no confusion about which is which.
Defendant is at a loss to understand how anyone could be confused by the two different realities just described.  The fact is that there is no reasonable consideration of the two realities that could lead to confusion.  The two are as different as KDPS CID is from the second floor hallway of Fox Ridge Apartments on a Saturday night, or any other time.  Moreover, if the Michigan Supreme Court can conclude that a jury in a case involving a driver intoxicated and with marijuana residue in his body will not be confused with the facts of the victim’s BAC, then to suggest the jury in the case at bar would be confused needs to be reviewed in light of the Feezel analysis. 
The reader is reminded of the statement in Feezel wherein the court quoted from People v Krueger, 466 Mich 50 (2002), an error is outcome determinative if it undermined the reliability of the verdict; in making this determination, this Court should focus on the nature of the error in light of the weight and strength of the untainted evidence.  Id., at 192 (quotation marks and citations omitted in Feezel). 
So, let us focus on the weight and strength of the untainted evidence.  The prosecution has no evidence regarding whether or not Defendant was robbed at gunpoint by victim Berry and a friend of Berry’s 45 days before the shooting because KDPS did not investigate the robbery in any way; the lead detective in this case testified to that fact in the preliminary examination in this matter.  There is no witness to refute Defendant’s claim that he was surprised to see Berry in the hallway moments before he shot him.  And, there is no witness who can refute Defendant’s claim that Berry’s movements immediately before the shot reminded Defendant of how Berry moved immediately before the robbery.  Defendant will present witnesses who will testify regarding Defendant’s excited utterances and behavior when they were with him in the minutes and hours after the robbery, and after the shooting; the prosecution will not have any witnesses to refute their testimony, either.
Feezel is not clear about what a court should do when there is such a paucity of quality, untainted prosecution evidence, as in the case at bar.  Defendant suggests however, that the court should recognize that this Defendant has a reasonable case to present to the jury, the proffered testimony is not a desperate attempt to introduce the only evidence that could benefit his claim, or counter the Prosecution’s case.  On the contrary, the Prosecution is the party with a weak case, and their efforts to keep out the proffered testimony should be seen for what it is: a desperate attempt to keep out information from law enforcement that would virtually be the death knell for the prosecution’s case.

People v Feezel and CJI2d 7.15
This Court’s two previous decisions
On the
Requests for the Proffered Testimony

Considering Feezel and CJI2d 7.15 (CJI2d 7.15 is titled, Use of Deadly Force in Self-Defense) together seems to be the icing on the cake.  This author believes that if a reader considers those two together in contrast to this court’s two previous decisions regarding the proffered testimony, the conclusion is so obvious as to not require any legal or factual argument.  Therefore, Defendant simply highlights the last clause of CJI2d 7.15, which directs the jury that: “you may also consider how the excitement of the moment affected the choice the defendant made.”  (emphasis added). 
In the words from Feezel, to exclude the proffered testimony would be an abuse of discretion, would deprive the jury of its ability to consider an important, relevant factor, would undermine the reliability of the verdict, and would result in a miscarriage of justice.  Feezel, pp 188, 203.

Wherefore, Defendant respectfully requests the relief expressed in the companion Motion in Limine.

Dated:  February 6, 2012                                                _____________________
                                                                                    Jeffrey M. Gagie (P49822)
                                                                                    Attorney for Defendant