People v. Diaz

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. JASON DIAZ, Defendant-Appellee.

No. 359949

Court of Appeals of Michigan

April 13, 2023

UNPUBLISHED

Ionia Circuit Court LC No. 2021-018262-FH

Before: SHAPIRO, P.J., and LETICA and FEENEY, JJ.

PER CURIAM.

The prosecution appeals as of right the circuit court's order dismissing the charges of assault with intent to do great bodily harm, MCL 750.84, misconduct in office, MCL 750.505 and careless discharge of a firearm causing injury or death MCL 752.861. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case arises from a high-speed chase that resulted in defendant firing his weapon at a fleeing vehicle. At approximately 2:02 a.m. on August 29, 2020, defendant, a Lowell Police Department Officer, was on duty performing road patrol in Lowell, Michigan. Defendant passed a Chevrolet Impala that failed to dim its headlights,^[1] and defendant, in a marked police cruiser, turned around and followed the car.^[2] Defendant saw that the Impala did not have a license plate. He advised the dispatcher that the number of occupants in the vehicle was unknown. The driver of the Impala increased the speed and fled from defendant through downtown Lowell. Defendant activated the cruiser's overhead emergency lights and began to chase the Impala, reaching a speed of 106 miles per hour (mph).

The driver of the Impala then turned left onto an unlit, dirt road in order to evade defendant. The chase continued along this road until the Impala stopped in front of a large tree that had fallen and blocked the roadway. Defendant parked behind the Impala, got out of his cruiser, stood by the cruiser's driver-side door, and verbally commanded the driver of the Impala to, "Let me see your hands!" The driver did not comply with defendant's demand. Instead, the driver reversed the Impala and accelerated backward directly toward defendant and his parked cruiser.^[3] To avoid being crushed by the Impala, defendant quickly jumped back into the cruiser. The reversing Impala then collided with the police cruiser. The Impala caused damage to the police cruiser, including the removal of its driver's side-view mirror.

From the driver's seat of the cruiser, defendant fired three rounds with his weapon at the Impala while it was reversing. After the Impala collided with the cruiser, the Impala began to pull away and attempted to flee the scene. Defendant again left his cruiser. He attempted to fire his weapon but two misfires occurred. Defendant corrected his weapon and fired eight additional rounds at the Impala, seemingly to stop the vehicle from fleeing.^[4] In less than 20 seconds, defendant parked his cruiser, the driver failed to abide by defendant's command, the driver attempted to strike defendant with the Impala, defendant fired shots at the Impala, and the driver fled the scene in the Impala.

Defendant notified the dispatcher that the driver of the Impala attempted to run him over and that shots had been fired.^[5] In response, the dispatcher requested that all available units proceed to Lowell because shots were fired. Initially, defendant expressed that he may not be able to continue the pursuit because of a possibly flat tire. Defendant was able to drive to the end of the dirt road and notified the dispatcher that the driver of the Impala seemingly proceeded west on Fulton Road. When defendant drove his police cruiser further down the road, he found the Impala off the road in a ditch with multiple doors open. There were no occupants present at the scene, and blood appeared to be in the Impala. At the scene, defendant encountered Grand Rapids Police Officer Zuby who was traveling home at the time in a marked police vehicle. Defendant apprised Officer Zuby that he was unaware if the occupants had weapons, but they attempted to "take" him out. Officer Zuby responded that he had to swerve off the roadway to avoid a nearly head-on collision with the Impala. Defendant requested a K-9 unit come to the scene to locate the Impala's occupants and called his police chief to report the officer involved shooting.

Willie Bledsoe testified that the driver of the Impala picked him up around midnight in Grand Rapids, and the occupants were headed to Lansing.^[6] During the chase, Bledsoe asked the driver to pull over on multiple occasions but the driver did not do so. Bledsoe acknowledged that the driver had attempted to escape both before and after defendant fired his weapon at the Impala. After the Impala was stopped by the fallen tree, Bledsoe did not see defendant because he had his head down. Bledsoe denied hearing defendant speak or seeing him get out of the police cruiser. Bledsoe testified that he did not hear any gunshots until "we started driving off." Additionally, he did not see any bullets but observed "glass flyin' everywhere." Bledsoe stated that he "got shot at" and felt a "little weird vibration" on the back of his head, but "it wasn't like anything major." Bledsoe later realized that the hoodie he was wearing during the incident had a bullet hole in it. After the incident, Bledsoe was taken to the hospital and treated for "injuries on [his] head."

The prosecution charged defendant with assault with intent to do great bodily harm, misconduct in office,^[7] and careless discharge of a weapon causing injury or death. The district court bound defendant over on all three charges, noting that the burden of proof only required that probable cause be established, not proof beyond a reasonable doubt. It further determined that the driver of the Impala committed fleeing and eluding in trying to resist an arrest. The district court stated that if the trier of fact found that the amount of force defendant utilized exceeded that which is legal, it could conclude that misconduct in office and careless discharge of a weapon occurred.

Defendant then filed a motion to dismiss the charges against him, alleging that, as a law enforcement officer, defendant was justified, under the fleeing-felon rule, in firing his weapon at the Impala to stop the driver from fleeing. The prosecution responded^[8] that the reasonableness of defendant's use of force was a question reserved for the trier of fact.

At the motion hearing, defendant again asserted that his use of deadly force (firing his weapon at the fleeing Impala) was justified because the driver of the Impala was a fleeing-felon who posed an ongoing danger to the community. Additionally, defendant maintained that the reasonableness of defendant's actions was a matter of law for the circuit court to decide. The prosecution responded that the issue of whether defendant's actions were justified was a question that must be resolved by the trier of fact. And the prosecution argued that there was no Michigan caselaw that prohibits the criminal prosecution of police officers who used deadly force against nondangerous fleeing felons.

The circuit court determined that the issue was a question of law and that the issue should be viewed through the reasonable-officer standard. The circuit court concluded that the driver of the Impala was a fleeing-felon, that defendant was forced to avoid being injured by the Impala (a dangerous weapon), and that the driver presented an ongoing danger to the community. After noting that the driver of the Impala attempted to run defendant over with the car, it stated:

This wasn't a near miss of just somebody who was trying to get away. This was actually hitting the police officer - the vehicle - to the point that he was out of the vehicle, as I understood the facts, and had to jump back to avoid being hit himself.

So the other aspect that I think is very critical here, in the overall assessment of the situation, is that the fleeing felon, so to speak, was with a dangerous weapon. And we know that the law is clear and settled that vehicles can be a dangerous weapon.

The fact that [the driver] was willing to - clearly, he was trying to get away. And I think that the passenger in his car say, you know, just, basically, that the driver was trying to get away, but the fact that he was willing to actually hit a police cruiser, and then continue off, I think, is really indicative of the fact that we have, not just an unarmed fleeing, we have a dangerous felon who is leaving in the midst of a high-charged situation, and [defendant] had to make decisions in a split-second type of a situation.

And I find that the facts and circumstances of this particular case, which is then augmented by the fact that, not only did this fleeing felon with a dangerous weapon go about continuing to flee, but the fact that there was an off-duty officer who had to actually take evasive action, in the middle of the night, to avoid being hit, I think is indicative of the fact that this truly was a dangerous fleeing felon ....

And so I don't find this to be an issue of fact for a jury, because we're looking at it through the lens of a reasonable police officer. And I think that that is better, I guess, a determination by a reviewing court, in terms of making it a matter of law.

But again, I do really tailor this finding to the specific circumstances of this particular case, recognizing that the officer was - his vehicle was hit, that he would have been hit had he not moved, and the fact that this fleeing felon was continuing in a very reckless and dangerous manner with a dangerous weapon.

So for these reasons, I do find that [defendant] was justified, when we look at it from the circumstances at that particular time and not going back with hindsight later.

Accordingly, the circuit court granted defendant's motion and dismissed the charges.

II. STANDARD OF REVIEW

We review a trial court's decision to grant or deny a motion to dismiss charges against a...