People v. Evans, Docket No. 78-474

• Decision Date: 21 November 1979
• Docket Number: Docket No. 78-474
• Citation: 287 N.W.2d 608,94 Mich.App. 4
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pearl Lee EVANS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 608

287 N.W.2d 608

94 Mich.App. 4

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pearl Lee EVANS, Defendant-Appellant.

Docket No. 78-474.

Court of Appeals of Michigan.

Nov. 21, 1979.

Released for Publication Jan. 29, 1980.

James R. Neuhard, State App. Defender by Kim R. Fawcett, Asst. State App. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., Nancy L. Goodale, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and BRONSON and CYNAR, JJ.

PER CURIAM.

The defendant was arrested for the theft of a scarf from a Sears store in Bay City. Pursuant to a plea agreement by which she was to be charged as a third rather than as a fourth offender, she pled guilty to the charged offense of larceny in a building, M.C.L. § 750.360; M.S.A. § 28.592, and to the charge of being a third offender under the Habitual Offender Act, M.C.L. § 769.12; M.S.A. § 28.1084. She was sentenced to a term of from three to eight years in prison, and appeals as of right.

Defendant raises several issues in her brief, one of which merits discussion.

Defendant argues that she was denied her guarantees of due process and equal protection under the Michigan and Federal Constitutions because the prosecutor, in the exercise of his broad charging discretion, charged her with larceny in a building, ¹ a felony, instead of larceny under $100, ² a 90-day misdemeanor.

The prosecutor is a constitutional officer whose duties are provided by law. Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 683, 194 N.W.2d 693 (1972). He is the chief law enforcement officer of the county from which he is elected, not the police, the newspapers, or the courts. As the civilian head of the county's law enforcement efforts, the final decisions are his, and in the end, it is he who must accept the responsibility for his decisions at the polls. Consistent with this role, prosecuting attorneys have discretion in Michigan to choose under which of the several potentially applicable statutes a prosecution will be instituted. ³ This discretion may serve many useful purposes. The same offense can be committed under widely divergent circumstances, for different reasons, and by persons with varying degrees of previous contact with the courts. By allowing the prosecutor wide latitude in deciding who is charged and with what crime, an essential task is performed before the matter reaches the courts. See, The President's Commission on Law Enforcement and Administration of Justice Task Force Report: The Courts, pp. 5-8. Even critics of this system do not argue so much for an elimination of the prosecutor's discretion (a particular goal of the continental legal systems) as they do for limited judicial review of the exercise of that discretion. See, E. g., Hutcherson v. United States, 120 U.S.App.D.C. 274, 345 F.2d 964 (1965) (Bazelon, C. J., concurring in part, dissenting in part); Davis, Discretionary Justice, pp. 188-214.

Despite the breadth and usefulness of this discretion, it is not without its limits. Certainly, the prosecutor may not exercise his or her discretion in a manner that would violate constitutional principles. People v. Birmingham, 13 Mich.App. 402, 407, 164 N.W.2d 561 (1968). The United States Supreme Court recognized this restraint on prosecutorial discretion in Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978):

"There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise." (Footnote omitted.)

Michigan has additionally recognized that the courts are able to exercise a limited judicial review for the correction of abuse of prosecutorial discretion. Genesee Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 121, 215 N.W.2d 145 (1974); People v. Curtis, 389 Mich. 698, 209 N.W.2d 243 (1973); People v. Matulonis, 60 Mich.App. 143, 149, 230 N.W.2d 347 (1975); People v. Ryan, 11 Mich.App. 559, 161 N.W.2d 754 (1968). ⁴

In order to sustain the position that the statutory scheme which allows prosecutors discretion to charge "shoplifters" with either a felony or a misdemeanor is constitutionally infirm, defendant would have to show that it unreasonably or arbitrarily discriminates against similarly situated persons. On several previous occasions, however, this Court has upheld the prosecutor's discretion to charge a "shoplifter" with the greater offense of larceny in a building instead of simple larceny. People v. Shepherd, 63 Mich.App. 316, 234 N.W.2d 502 (1975); People v. Bohm, 49 Mich.App. 244, 212 N.W.2d 61 (1973); People v. Graves, 31 Mich.App. 635, 188 N.W.2d 87 (1971); People v. Jackson, 29 Mich.App. 654, 185 N.W.2d 608 (1971). ⁵ We are not convinced that this position is wrong. The existence of at least two offenses covering the defendant's conduct in this case gives room for the beneficial exercise of the prosecutor's charging discretion. For example, with regard to this particular defendant, we note ample rational justification for charging her with the greater offense. At the time she was prosecuted for the theft involved in this case, defendant had already been convicted four times within a short period for theft-type offenses. ⁶ This sort of consideration has found approval in the ABA Project on Standards for Criminal Justice, The Prosecution Function, Standard 3.9, the commentary to which states:

"Nor is it desirable that he (the prosecutor) prosecute all crimes at the highest degree available. Necessarily crimes are defined in broad terms that encompass situations of greatly differing gravity. Differences in the circumstances under which the crime took place, the motives or pressures activating the offender, mitigating factors of the situation or the offender's age, prior record, general background, his role in the offense, and a host of other particular factors require that the prosecutor view the whole range of possible charges as a set of tools from which he must carefully select the proper instrument to bring the charges warranted by the evidence. In exercising discretion in this way, the prosecutor is not neglecting his public duty or discriminating among offenders. The public interest is best served and even-handed justice best dispensed not by a mechanical application of the 'letter of the law' but by a flexible and individualized application of its norms through the exercise of the trained discretion of the prosecutor as an administrator of justice."

Defendant has referred us to several cases from other jurisdictions that address the constitutional problems involved here. ⁷ We find none of these cases exactly applicable to the statutory situation we are confronted with in this case. Additionally, many of the cases were resolved on grounds of statutory construction rather than on constitutional interpretation. Granting, however, that some of the discussions could be said to relate to the circumstances of this case, we are not convinced that the statutory scheme we discuss here is incapable of being constitutionally applied. It is possible that in exercising the discretion accorded the prosecutor, constitutional abuses could occur. A scheme may itself be constitutional, yet be applied in an unconstitutional manner. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); People v Plamondon, 64 Mich.App. 413, 426-427, 236 N.W.2d 86 (1975), Rev'd on other grounds sub nom. People v. Drielick, 400 Mich. 559, 225 N.W.2d 619 (1977), Cert. den. 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 (1978). The defendant has not made out such a claim in this case.

We are also unable to find any abuse of prosecutorial discretion in this case. We are aware of the fact that the Bay County prosecuting attorney's office has on previous occasions been cautioned by this Court about "overcharging". See People v. Feldman, 87 Mich.App. 157, 274 N.W.2d 1 (1978); People v. Carmichael, 86 Mich.App. 418, 272 N.W.2d 667 (1978). This sort of consideration is relevant in determining whether an abuse has occurred. We find, however, that the record in this case adequately supports the prosecutor's exercise of his charging discretion.

We emphasize that our finding no abuse of prosecutorial discretion is limited to the particular facts of this case. The offense occurred in a public building, and was committed by a person who clearly qualifies as a habitual offender. The prosecutor's charging discretion, as broad as it is, is not without limitations and is clearly capable of being abused. In an appropriate case, we would not hesitate to find that such an abuse had occurred.

We have examined defendant's other claims and find no reversible error.

Affirmed.

V. J. BRENNAN, Judge, dissenting.

I respectfully disagree with my colleagues. The "broad discretion" of the county prosecutor and the limitations thereon pale to insignificance upon consideration of one salient fact. This defendant was sentenced to 3 to 8 years in prison for stealing a $1 Sears scarf. This writer cannot in good conscience tolerate the abuse of legal process demonstrated by the prosecutor at bar.

The Legislature has set forth crimes and penalties establishing guidelines for law enforcement agencies and the courts. The habitual offender statute was enacted to prevent dangerous felons from continually visiting upon society their abuses. Petty shoplifting, no matter how frequently performed, does not amount to a felony. The penalties for shoplifting as prescribed by the Legislature are a sufficient deterrent. A prosecutor who believes otherwise and charges accordingly abuses the discretion of his office. It is not for the prosecutor to elevate such a crime to a 4-year felony. Such punishment does not fit the...