Opinion
No. 104300.
September 27, 1996.
Leave to Appeal Denied September 27, 1996:
Court of Appeals No. 148368.
I concur with Justice LEVIN and would grant leave to appeal.
I would grant leave to appeal.
Codefendant Bruyninga was arrested for possession of nine ounces of cocaine. In his first statement to police, several hours after his arrest, he claimed that he obtained the drugs in a "blind drop" at a gym in Ypsilanti. Bruyninga's second statement, which was given while still in custody, did not differ in great detail from the first one.
Bruyninga was then given an unusual deal in which he would plead guilty of possession of a lesser amount of cocaine if the cooperated with authorities regarding the source of the cocaine. He did not have to inform authorities about any of his other drug dealing activities. Consequently, nearly three months after Bruyninga's arrest, he gave a third statement, in which he claimed Potokar was the source of the drugs.
There was no corroboration for Bruyninga's claim. In fact, the paper bag in which the cocaine was found had seven sets of prints, none of which were Potokar's. The police never asked the lab to check for prints of other associates of Bruyninga. There was no other evidence linking Potokar to the crime other than Bruyninga's, and his friend Nichols', testimony. Nichols' testimony was not inculpatory — Nichols testified that Potokar carried the bag into the gym, yet Potokar's prints were not found on the bag.
Potokar theorized that Bruyninga accused Potokar of providing the drugs because Bruyninga feared reprisals. Two of Bruyninga's associates were murdered before Potokar's trial, presumably regarding a drug dispute. Potokar sought to question Bruyninga and Nichols about these murders, as well as their history in the drug trade. The trial judge refused to allow Potokar to do so.
The evidence of Potokar's guilt was weak. Virtually every attempt of the defense counsel to establish the defense theory that Bruyninga implicated Potokar to save himself was thwarted by the trial judge. This failure to allow questions regarding motive, with the realistic threat of harm to Bruyninga given the murders of his associates before Potokar's trial, or regarding the unusual nature of the plea bargain, undermined Potokar's ability to present a defense.
In light of the lack of evidence connecting Potokar to the charged crime, the trial court's failure to permit further cross-examination of codefendant Bruyninga constituted an abuse of discretion and was not harmless error.
Potokar had no drug history, was fully employed, had stable family relations, was educated and had no felony record. Bruyninga, on the other hand, associated with numerous suspected drug dealers, but was essentially only an acquaintance of Potokar.