People v. Coons

• Decision Date: 29 May 1987
• Docket Number: Docket No. 87312
• Citation: 405 N.W.2d 153,158 Mich.App. 735
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wayne COONS, Defendant-Appellant. 158 Mich.App. 735, 405 N.W.2d 153
• Court: Court of Appeal of Michigan — District of US

Page 153

405 N.W.2d 153

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wayne COONS, Defendant-Appellant.

Docket No. 87312.

158 Mich.App. 735, 405 N.W.2d 153

Court of Appeals of Michigan.

Submitted Oct. 20, 1986.

Decided Feb. 24, 1987.

Released for Publication May 14, 1987.

Leave to Appeal Denied May 29, 1987.

[158 MICHAPP 736] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Paul J. Fischer, Asst. Pros. Atty., for the People.

Faintuck, Shwedel & Wolfram by William G. Wolfram, Franklin, for defendant-appellant on appeal.

Before SULLIVAN, P.J., and SHEPHERD and SHUSTER, ^* JJ.

PER CURIAM.

Defendant Wayne "Butch" Coons was charged with assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and possession of a firearm in the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). After a bench trial held [158 MICHAPP 737] on May 30 and June 3-4, 1985, he was convicted of assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and possession of a firearm in the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant appeals from his conviction as of right.

Defendant purchased a quantity of marijuana from Stephen Iliades and then failed to pay the full price. When Iliades came to collect the balance owed, events occurred which resulted in defendant's firing several shots from a firearm, many of which damaged Iliades' automobile. According to defendant, Iliades or one of his friends damaged defendants automobile with a log and defendant fired his gun to scare Iliades away. Iliades' version of the story is that he did not damage any of defendant's property and that defendant started firing when his cousin told him to get a gun and shoot. The trial judge heard the testimony without a jury and resolved the conflicts in the testimony in favor of the prosecution, finding that the testimony of the defendant was not credible.

Defendant first argues that he was denied due process of law when witnesses at the trial committed perjury. Our view of the testimony is that this case was nothing more than a credibility contest which the trial judge resolved in favor of the prosecutor. There are no due process issues and the trial judge did not commit any error in finding for the prosecution.

Defendant also appears to argue that these witnesses lied at the preliminary examination about whether defendant's car was damaged and whether a marijuana transaction was involved. Defendant's position is that, had these witnesses not perjured themselves, the district judge might not have bound defendant over on a charge of assault with intent to commit murder. Again, this [158 MICHAPP 738] appears to be a credibility contest at the preliminary examination stage. An examining magistrate is to bind a defendant over for trial if it appears that a crime has been committed and there is probable cause to believe the defendant committed it. People v. Asta, 337 Mich. 590, 609, 60 N.W.2d 472 (1953). An examining magistrate may weigh the credibility of witnesses. It is not the function of the magistrate to weigh the evidence carefully and discharge the accused when the evidence conflicts or raises a reasonable doubt as to guilt, however. Such questions are for the jury. Wayne County Prosecutor v. Recorder's Court Judge, 92 Mich.App. 119, 122-123, 284 N.W.2d 507 (1979). Even assuming for the sake of argument that what defendant claims concerning the alleged perjury is true however, probable cause still existed to bind defendant over for trial on that charge. Our view is that even if the victim had smashed the rear window of defendant's automobile, defendant had no right to shoot at the victim. Such unjustified action falls within the ambit of assault with intent to commit murder. We cannot conclude that knowledge of the perjury, if such it was, would have affected the result of the preliminary examination. Sufficient evidence had been presented for the district court judge to bind defendant over.

Reversal might be required where there is a claim of perjury that appears to be substantial and the truth would necessarily have changed the result of the bindover. We need not decide that issue, however. Defendant only argues in this case that the truth might have changed the result, which is a very different situation. In this case, it is quite apparent that the bindover was justified.

Defendant further argues that the trial court erred in failing to find that the defendant acted lawfully in the course of making a citizen's arrest. [158 MICHAPP 739] The trial judge found that the defendant did not perform any act consistent with a citizens arrest. The court noted that defendant testified that he did not know whether he was making a citizen's arrest or whether he was allowed to make one. A private person may make an arrest under certain circumstances.

"(a) For a felony committed in his presence;

"(b) When the person to be arrested has committed a felony although not in his presence;

"(c) When summoned by...