Lamont B Heard v. Oakland County Circuit Court Clerk ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
LAMONT B. HEARD, UNPUBLISHED
December 21, 2023
Plaintiff-Appellant,
v No. 364571
Oakland Circuit Court
OAKLAND COUNTY CIRCUIT COURT CLERK LC No. 22-193227-CZ
and OAKLAND COUNTY PROSECUTOR OFFICE
PROSECUTOR,
Defendants-Appellees.
Before: JANSEN, P.J., and CAVANAGH and GADOLA, JJ.
PER CURIAM.
Plaintiff Lamont Bernard Heard, proceeding in propria persona, appeals as of right the
trial court’s order granting defendants’ motion for summary disposition pursuant to MCR
2.116(C)(8) (failure to state a claim) and MCR 2.116(C)(10) (genuine issue of material fact),
denying plaintiff’s motion for a writ of mandamus, and dismissing plaintiff’s complaint with
prejudice. We affirm.
In 1999, plaintiff was convicted, following a jury trial, of first-degree premediated murder,
MCL 750.316(1)(a), conspiracy to commit first-degree murder, MCL 750.157a, and two counts of
possession of a firearm during the commission of a felony, MCL 750.227b. The trial court
sentenced him to life imprisonment for the first-degree murder and conspiracy convictions, and
consecutive two-year terms for the felony-firearm convictions. This Court affirmed defendant’s
convictions and sentences in People v Heard, unpublished per curiam opinion of the Court of
Appeals, issued June 28, 2002 (Docket No. 221827), lv den 468 Mich 872 (2003).
Plaintiff’s convictions stemmed from the 1995 shooting death of Lonnie Adams. Heard,
unpub op at 2. A citizens grand jury convened between May and September of 1998 and returned
indictments against plaintiff. A preliminary examination was held in November and December
1998. Plaintiff and three codefendants were bound over and tried together.
Before trial, on September 15, 1998, the prosecutor and plaintiff’s attorney stipulated that
the testimony of all grand-jury witnesses was to be delivered to plaintiff’s attorney as provided by
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MCR 6.107(B)(4). The trial court entered an order providing that “the Grand Jury transcripts of
witness testimony be released as provided by MCR 6.107(B)(4), and provided as agreed upon by
the parties.” The prosecutor sent plaintiff’s defense attorney a letter that stated:
Please find enclosed Peoples Discovery pages 1-443 and Peoples Witness
List. Also find included all witness testimony presented before the Citizens Grand
Jury. [Emphasis added.]
The letter also advised plaintiff to contact the prosecutor if any discovery or transcript pages were
missing.
In 2019, plaintiff filed a motion for relief from judgment and to unseal the grand-jury file,
which the trial court denied. The trial court also noted that the grand-jury transcripts had been
provided to plaintiff’s trial counsel, who had possession of those transcripts when cross-examining
witnesses. Therefore, the trial court declined to order the grand-jury record unsealed and to
provide defendant with a copy of the grand-jury file.
On December 18, 2020, plaintiff filed an action against the Oakland Circuit Court for
declaratory and injunctive relief in LC No. 20-185286-CZ. Plaintiff sought a judgment declaring
that he had a due-process right to the grand-jury file and transcripts in his criminal matter. Plaintiff
also sought an injunction requiring that he be provided the requested grand-jury documents. The
trial court noted that, under MCR 6.107(B)(2), a request for a grand-jury record and transcripts
must be made within 14 days after the arraignment or indictment, or within a reasonable time
thereafter. The court also noted that plaintiff’s instant request for the grand-jury record and
transcripts came two decades after his arraignment or indictment. The court further noted that
much of the record had previously been provided to plaintiff and the only missing records were
excerpts of a transcript where a witness had been excused and a separate record was made. The
trial court did not believe that any relief was appropriate because plaintiff had been provided with
the grand-jury transcripts, plaintiff was requesting the record years after the grand jury convened,
and there was no evidence that the missing pages plaintiff was requesting touched on his guilt or
innocence. Although plaintiff had requested that the trial court order the prosecutor’s office to
search for and provide the requested records, the trial court noted that it was the circuit court, not
the prosecutor’s office, that was required to preserve the transcripts and the prosecutor’s office
was not a party to plaintiff’s action. The trial court agreed that the circuit court failed to comply
with its duty to preserve the transcripts, and it also found that the grand-jury file did not contain
any other evidence or exhibits. However, the trial court ruled that the circuit court’s
noncompliance did not affect plaintiff’s request for a remedy, which the court found to be unclear
beyond providing the missing transcript pages, which were unavailable. Accordingly, the court
dismissed plaintiff’s claims.
Thereafter, plaintiff filed the instant action on March 22, 2022, against the Oakland Circuit
Court Clerk and the Oakland County Prosecutor’s Office. In his complaint, plaintiff alleged that
defendants deprived him of his due-process rights, the effective assistance of counsel, and an
effective appeal by refusing to comply with MCL 767.6a. Plaintiff alleged that because there was
no longer an active investigation, there was no longer a need for secrecy of the grand-jury file and
the file should have been given to plaintiff. Plaintiff also sought a writ of mandamus against the
Oakland County prosecutor for failing to comply with the statute, which deprived plaintiff of an
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adequate defense at trial and an effective appeal. Plaintiff alleged that the clerk’s failure to ensure
compliance with MCL 767.6a also contributed to plaintiff’s injuries. Plaintiff asked the trial court
to issue a judgment declaring that plaintiff has a due-process right to the grand-jury records and
issue a writ of mandamus directing the prosecutor to comply with MCL 767.6a. Plaintiff also
asked the trial court to direct the clerk to comply with the statute and hold that the law of secrecy
no longer applied and provide plaintiff with the requested documents and files.
Defendants filed a motion for summary disposition under MCR 2.116(C)(7) and (8).
Following a hearing, the trial court granted defendants’ motion pursuant to MCR 2.116(C)(8) and
(10), denied plaintiff’s request for writ for mandamus, and dismissed plaintiff’s complaint with
prejudice. The court stated that plaintiff’s previous lawsuit determined that he had already
received all of the existing grand-jury information to which he was entitled. The trial court further
found that there was no authority by which defendants had the responsibility to provide grand-jury
documents upon request. Rather, MCL 767.4, MCL 767.6a, and MCL 767.19f(1) mandated that
grand-jury proceedings are secret and records are sealed. The trial court stated that MCL 767.6a
and MCR 6.107(b) set forth procedures by which a defendant must request grand-jury records,
which plaintiff did not follow in this case. Because defendants did not have an independent duty
to provide grand-jury records to plaintiff, plaintiff could not establish that defendants violated his
constitutional rights by not providing the requested records.
On appeal, plaintiff argues that the trial court erred by granting defendants’ motion for
summary disposition because the court’s decision was based on factual errors and because the
Oakland County Prosecutor was obligated to produce any exculpatory evidence contained in the
grand-jury file. These arguments are without merit.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). The trial court
granted defendants’ motion under MCR 2.116(C)(8) and (10). “A motion under MCR 2.116(C)(8)
tests the legal sufficiency of a claim based on the factual allegations in the complaint.” Id.(emphasis omitted). “When considering such a motion, a trial court must accept all factual
allegations as true, deciding the motion on the pleadings alone.” Id. at 160. “A motion under
MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual
development could possibly justify recovery.” Id. Pursuant to MCR 2.116(C)(10), summary
disposition is appropriate if, “[e]xcept as to the amount of damages, there is no genuine issue as to
any material fact, and the moving party is entitled to judgment or partial judgment as a matter of
law.” A genuine issue of material fact exists when the evidence presented “leave[s] open an issue
upon which reasonable minds might differ.” Debano-Griffin v Lake Co, 493 Mich 167, 175; 828
NW2d 634 (2013) (quotation marks and citation omitted).
Although defendants did not move for summary disposition under MCR 2.116(C)(10), a
court may proceed under a subrule not cited by the moving party as long as neither party is misled.
Blair v Checker Cab Co, 219 Mich App 667, 670-671; 558 NW2d 439 (1996). Defendants
submitted documentary evidence in support of their motion and, in response, plaintiff also
submitted documentary evidence and argued that there were genuine issues of material fact that
precluded summary disposition. Because plaintiff also relied on documentary evidence and argued
that summary disposition was inappropriate since the parties disagreed on the facts, the trial court
did not err by considering the submitted evidence to determine whether summary disposition was
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appropriate under Subrule (C)(10). See BC Tile & Marble Co, Inc v Multi Bldg Co, Inc, 288 Mich
App 576, 582; 794 NW2d 76 (2010) (“Where the parties rely on documentary evidence, appellate
courts proceed under the standards of review applicable to a motion made under MCR
2.116(C)(10).”) (citation omitted).
In People v Wimberly, 384 Mich 62, 68-69; 179 NW2d 623 (1970), the Michigan Supreme
Court held that the traditional secrecy of grand-jury proceedings did not outweigh a defendant’s
entitlement to the testimony of grand-jury witnesses that touched on the defendant’s guilt or
innocence. If a prosecutor wanted to keep grand-jury records secret, a trial court must conduct an
in camera inspection of the testimony that the prosecutor wished to remain secret. Id. at 69. The
Court explained that a trial court has discretion to release any or all grand-jury testimony that is
relevant to a defendant’s guilt or innocence. Id. Thus, the discovery of grand-jury records is
within the trial court’s discretion. Id.
MCL 767.4a, MCL 767.6a, and MCL 767.19f provide for secrecy of grand-jury
proceedings. MCL 767.6a also provides that the grand-jury record “shall be sealed and filed with
the clerk of the court having jurisdiction[.]” MCR 6.107 sets forth procedures for a defendant to
request grand-jury testimony and records that is relevant to the defendant’s guilt or innocence.
MCR 6.107(A) provides:
Whenever an indictment is returned by a grand jury or a grand juror, the
person accused in the indictment is entitled to the part of the record, including a
transcript of the part of the testimony of all witnesses appearing before the grand
jury or grand juror, that touches on the guilt or innocence of the accused of the
charge contained in the indictment.
MCR 6.107(B) sets forth the procedure by which the person accused in the indictment may obtain
the grand-jury records:
(B) Procedure to Obtain Records.
(1) To obtain the part of the record and transcripts specified in subrule (A),
a motion must be addressed to the chief judge of the circuit court in the county in
which the grand jury issuing the indictment was convened.
(2) The motion must be filed within 14 days after arraignment on the
indictment or at a reasonable time thereafter as the court may permit on a showing
of good cause and a finding that the interests of justice will be served.
(3) On receipt of the motion, the chief judge shall order the entire record
and transcript of testimony taken before the grand jury to be delivered to the chief
judge by the person having custody of it for an in-camera inspection by the chief
judge.
(4) Following the in-camera inspection, the chief judge shall certify the
parts of the record, including the testimony of all grand jury witnesses that touches
on the guilt or innocence of the accused, as being all of the evidence bearing on that
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issue contained in the record, and have two copies of it prepared, one to be delivered
to the attorney for the accused, or to the accused if not represented by an attorney,
and one to the attorney charged with the responsibility for prosecuting the
indictment.
(5) The chief judge shall then have the record and transcript of all testimony
of grand jury witnesses returned to the person from whom it was received for
disposition according to law.
During plaintiff’s criminal case, the prosecutor and plaintiff’s trial counsel stipulated that
the testimony of all grand-jury witnesses be delivered to plaintiff’s attorney as provided by MCR
6.107(B)(4). The trial court also entered an order to that effect and documentation indicates that
plaintiff was provided with copies of all witness testimony presented before the grand jury.
Plaintiff was advised to contact the prosecutor if any discovery or transcript pages were missing.
There is no indication that plaintiff claimed that anything was missing at the time of his criminal
trial. Further, after plaintiff’s criminal trial, his trial counsel sent plaintiff a letter informing him
that all transcripts, police reports, and witness statements in counsel’s possession had been sent to
plaintiff and his family.
Contrary to what plaintiff asserts, the record does not indicate that the court in his criminal
trial unsealed the grand-jury record and ordered that it be released to plaintiff. Plaintiff relies on
a transcript from plaintiff’s criminal trial in which the prosecutor and the codefendants’ trial
attorneys discussed discovery and exhibits. Not all of the attorneys had received certain items
from the prosecutor. The officer-in-charge noted that he had the results of three polygraph tests
that neither the prosecutors nor the defendants had received. The officer-in-charge offered to copy
all of the material in his evidence book for distribution to the defendants. Polygraphs for
codefendants Deon Coleman and Antwan McNeal were turned over to plaintiff’s defense counsel.
The trial court ordered the prosecutor to coordinate with the officer-in-charge to determine that all
discovery had been turned over to the defendants. Plaintiff’s evidence does not establish that the
trial court ordered the grand-jury record to be unsealed. Rather, the trial court ordered the
prosecutor and the officer-in-charge to confirm that evidence the prosecutor planned to admit at
trial was given to the codefendants. Plaintiff’s argument that the grand-jury record had been
unsealed is not supported by the record.
Plaintiff further argues that the trial court erred by finding that a prior court had determined
plaintiff received all of the grand-jury documents to which he was entitled. We disagree. During
plaintiff’s criminal trial, the prosecutor and plaintiff’s trial counsel stipulated, and the trial court
ordered, that transcripts of the grand-jury witnesses’ testimony be delivered to plaintiff pursuant
to MCR 6.107(B)(4). Here, plaintiff does not allege or present any evidence that he or his trial
counsel ever requested, before or during his criminal trial, additional grand-jury records that should
have previously been produced. Likewise, plaintiff did not raise any issues in his direct appeal of
his criminal convictions that he was entitled to, and should have been granted access to, additional
grand-jury records or transcripts. The trial court did not err by concluding that plaintiff had
previously received the grand-jury documents to which he was entitled pursuant to MCR
6.107(B)(4).
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In the instant case, plaintiff specified pages of transcripts and other exhibits that were part
of a “separate record” that he claims he was entitled to receive but was never given, alleging that
they would prove his innocence. MCR 6.107(B)(2) provides that to obtain grand-jury records or
transcripts as described in MCR 6.107(A), a “motion must be filed within 14 days after
arraignment on the indictment or at a reasonable time thereafter as the court may permit on a
showing of good cause and a finding that the interests of justice will be served.” The grand jury
returned the indictment against plaintiff in September 1998, and plaintiff’s preliminary
examination was held in November and December 1998. Clearly, plaintiff did not file this motion
for grand-jury materials within 14 days after arraignment.
Plaintiff’s complaint for the grand-jury transcripts was filed on March 22, 2022, which
does not satisfy the 14-day time-frame set forth in MCR 6.107(B)(2). Therefore, plaintiff must
demonstrate that he requested the documents within “a reasonable time thereafter as the court may
permit on a showing of good cause and a finding that the interests of justice will be served.” MCR
6.107(B)(2).
Plaintiff claims that the requested documents would prove his innocence. “Good cause”
has been defined as “a ‘satisfactory,’ ‘sound or valid,’ ‘reason.’ ” People v Buie, 491 Mich 294,
319; 817 NW2d 33 (2012), quoting Random House Webster’s College Dictionary (1997). If the
documents proved plaintiff’s innocence, the documents should have been given to plaintiff during
his criminal trial pursuant to MCR 6.107(B)(4). Therefore, plaintiff has to show that the
documents he requested touched on his guilt or innocence in order to establish good cause pursuant
to MCR 6.107(B)(2).
Plaintiff fails to demonstrate that the materials he seeks touched on his guilt or innocence.
Plaintiff relies on a portion of Denise Herrin’s testimony in which she referred to a drawing, which
plaintiff maintains would prove that he was not one of the gunmen. Herrin witnessed the shooting
from her apartment window. She testified that the shooting was committed by four men, but she
was unable to identify any of the men. The prosecutor asked her to draw the location of her
apartment complex, her unit in the apartment complex, and the window where she witnessed the
shooting. Although plaintiff complains that he did not receive a copy of Herrin’s drawing, plaintiff
fails to explain how the drawing was reasonably likely to prove his innocence, especially
considering that Herrin admittedly was unable to identify any of the men involved in the shooting.
Plaintiff also relies on excerpts of McNeal’s and Coleman’s grand-jury testimony, in which
they testified that they had taken a polygraph test, and complains that he never received their
polygraph results. However, the index portion of the transcripts submitted by plaintiff does not
indicate that any exhibits were marked or admitted. Moreover, the record indicates that the
prosecutor gave the polygraph test results to all of the criminal defendants before trial, including
plaintiff.
Plaintiff also offered an excerpt of Detective Nolan Gottschall’s grand-jury testimony and
alleged that a forensic report or a picture of the .16-gauge shotgun were missing from the grand-
jury file. Again, however, the transcript excerpt that plaintiff presented indicates that there were
not any exhibits marked or admitted. Plaintiff also argues that there were missing pages from the
transcript of Alicia Scrugg’s grand-jury testimony, but he fails to offer any argument or evidence
that the missing pages, which involved a separate record, touched on plaintiff’s guilt or innocence.
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In sum, plaintiff failed to establish that the foregoing evidence touched on his guilt or
innocence. Therefore, plaintiff failed to show good cause.
Even if plaintiff could establish good cause, he failed to establish that he made this request
within a reasonable time. During plaintiff’s criminal trial, his trial counsel had the opportunity to
object to the grand-jury record that had been given to him, and his appellate counsel had the
opportunity to appeal any perceived failure to provide all relevant grand-jury material to plaintiff.
In plaintiff’s prior action against the Oakland Circuit Court, plaintiff and defendant stipulated to
the court in that case conducting another in camera inspection of the grand-jury records. Thus,
plaintiff was granted two in camera inspections of the grand-jury record, both of which concluded
that he was provided with the material to which he was entitled. Therefore, plaintiff failed to
establish that this request was made within a reasonable time or for good cause as required by
MCR 6.107(B)(2). The trial court did not err by dismissing plaintiff’s attempt to force a third in
camera review of the grand-jury file.
Finally, plaintiff argues that the Oakland County prosecutor’s failure to provide him with
the grand-jury file violated his due-process right to exculpatory evidence in the prosecutor’s
possession, contrary to Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963),
in which the United States Supreme Court held that it is a violation of due process for the
prosecution to suppress material evidence favorable to a defendant, regardless of the good faith or
bad faith of the prosecution. To establish a Brady violation, “[t]he evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued.” Strickler v Greene, 527 US 263, 281-282, 119 S Ct 1936, 144 L Ed 2d 286 (1999).
In this case, however, plaintiff’s civil complaint alleges that both defendants violated MCL
767.6a by not providing plaintiff with the grand-jury transcripts and records that he specified in
his complaint. Plaintiff failed to establish that defendants did not comply with the statutes and
court rules when plaintiff received the grand-jury materials at his criminal trial. Plaintiff also failed
to establish that either defendant was in possession of the materials that plaintiff was seeking, that
the materials he sought existed, or that the materials he sought were relevant to his guilt or
innocence, much less that the evidence may have been exculpatory. Moreover, pursuant to MCL
767.6a, the clerk of the court, not the prosecutor, was charged with the duty to seal and file the
grand-jury record. Plaintiff should have raised these issues to the trial court during his criminal
trial as provided in MCR 6.107, or to this Court in his direct appeal of his criminal convictions.
The trial court did not err by dismissing plaintiff’s claims.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Michael F. Gadola
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