People v. McCumby

• Decision Date: 06 February 1984
• Docket Number: Docket No. 64831
• Citation: 344 N.W.2d 338,130 Mich.App. 710
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Scott McCUMBY, Defendant-Appellant. 130 Mich.App. 710, 344 N.W.2d 338
• Court: Court of Appeal of Michigan — District of US

Page 338

344 N.W.2d 338

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Scott McCUMBY, Defendant-Appellant.

Docket No. 64831.

130 Mich.App. 710, 344 N.W.2d 338

Court of Appeals of Michigan.

Submitted June 16, 1983.

Decided Dec. 5, 1983.

Released for Publication Feb. 6, 1984.

[130 MICHAPP 711] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph P. Kwiatkowski, [130 MICHAPP 712] Pros. Atty., and Mary C. Smith, Asst. Atty. Gen., for the People.

State Appellate Defender by Mardi Crawford, Detroit, for defendant-appellant.

Before KELLY, P.J., and SHEPHERD and COOPER ^*, JJ.

COOPER, Judge.

Defendant was convicted at a jury trial of subornation of perjury, M.C.L. Sec. 750.424; M.S.A. Sec. 28.666. Two police officers testified that after they pulled a car over for a traffic violation they observed defendant McCumby switch places with the driver of the car. The officers issued a citation to Mike Lacombe, the man they considered to be the original driver prior to the post-stop switch. At Lacombe's trial, Billie Jo Boda testified that the defendant herein, David Scott McCumby, was the actual driver up to the time that the vehicle was stopped by the officers. Lacombe was thus acquitted.

At a later time Boda admitted to police officers that her testimony at Lacombe's trial was untrue. At the trial for subornation of perjury against defendant McCumby, Boda testified that defendant had switched places with the original driver after the stop. She testified that defendant McCumby had asked her to testify on Mike Lacombe's behalf. She stated that defendant McCumby had discussed with her the story she would present at Lacombe's trial and that he tried to allay her fears about getting into trouble. Boda testified that she lied at Lacombe's trial because she did not want Lacombe to get into trouble.

Defendant McCumby testified that he approached[130 MICHAPP 713] Boda only after Lacombe's attorney suggested that Lacombe needed a corroborative witness. Defendant McCumby thus approached Boda for the reason that she was present in the car at the time of the stop. Defendant stated that he asked her if she would testify and she said she would. Defendant denied that he told Boda to lie in court, but he admitted that he drove her to the courthouse.

On rebuttal, Boda testified that defendant's denial of having told her what to say was untrue. She stated on rebuttal that, but for defendant's contact with her, she would not have testified as she did. On cross-examination during rebuttal, Boda admitted that she knew what she was doing and that she did so of her own free will and free choice.

On appeal defendant argues that the subordination of perjury statute is void for vagueness. The statute reads as follows:

"Any person who shall be guilty of subornation of perjury, by procuring another person to commit the crime of perjury, shall be punished as provided in the next preceding section." M.C.L. Sec. 750.424; M.S.A. Sec. 28.666.

Defendant contends that due to vagueness, there is no proper notice of what conduct is prohibited, thus violating a person's right to due process under the Michigan and United States Constitutions. Defendant argues that this in turn inhibits one's constitutional right to freedom of speech. Further, he argues that such vagueness allows arbitrary and discriminatory enforcement.

The case of Woll v. Attorney General, 409 Mich. 500, 533, 297 N.W.2d 578 (1980), citing Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972), provides:

[130 MICHAPP 714] "A statute may be challenged for vagueness on the grounds that it

"--is overbroad, impinging on First Amendment freedoms, or

"--does not provide fair notice of the conduct proscribed, or

"--is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed."

Although Woll incorporates the concept of "overbreadth" as part of the definition of vagueness, the two legal concepts are not synonymous, although they both may impinge on First Amendment freedoms. In fact, the Grayned case defines vagueness on pages 108-109, 92 S.Ct. at 2298 and overbreadth on pages 114-115, 92 S.Ct. at 2302. In summary, the doctrine of overbreadth is primarily applied to First Amendment situations where an overbroad statute prohibits constitutionally protected conduct such as in Grayned, where the defendant argued that an anti-noise ordinance unduly interfered with his right to picket on a public sidewalk near a school. See Grayned, supra, pp. 114-115, 92 S.Ct. at p. 2302. It is a matter of logic that a perjury statute which is vaguely worded may also impinge on a person's First Amendment right to freedom of speech. In addition, statutes that are unconstitutionally vague may infringe on a person's right to due process under the Fifth and Fourteenth Amendments in that a person is not put on notice as to what is prohibited. Further, vagueness may subject a person to arbitrary and discriminatory enforcement of the law. Grayned, supra, pp. 108-109, 92 S.Ct. at p. 2298.

In our case, although the term "subornation" is not commonly used by the general public, the term has been utilized on a continuing basis by the appellate courts of this jurisdiction. See In the [130 MICHAPP 715] Matter of Grimes, 414 Mich. 483, 493, 326 N.W.2d 380 (1982); People v. White, 411 Mich. 366, 384, fn. 4, 308 N.W.2d 128 (1981); In the Matter of Del Rio, 400 Mich. 665, 696, 256 N.W.2d 727 (1977). Certainly our court decisions would not be familiar to the general public. However, the statute involved clarifies its meaning by the addition of the language "by procuring another person to commit the crime of perjury". The meaning of the word "procurement" has been recently addressed in People v. Masten, 414 Mich. 16, 322 N.W.2d 547 (1982). The word "procurement" does enjoy widespread usage. The following language sheds light on the present case:

"A statute is not vague when the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning." Bowers v. State, 283 Md. 115, 125, 389 A.2d 341 (1978).

The meaning of the word "subornation" is sufficiently clear, when one considers the statutory language which follows it, to inform a person that he shall not procure another to commit the crime of perjury.

Regarding the issue of overbreadth, a defendant should...