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
V
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
________________________________________________
Portions
Of a
Defense Motion in
Limine
Filed
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
Regarding
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
Juxtaposed
With
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
