People v. Covington, Docket No. 63206

• Citation: 132 Mich.App. 79,346 N.W.2d 903
• Decision Date: 16 March 1984
• Docket Number: Docket No. 63206
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph COVINGTON, Defendant-Appellant. 132 Mich.App. 79, 346 N.W.2d 903
• Court: Court of Appeal of Michigan (US)

Page 903

346 N.W.2d 903

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph COVINGTON, Defendant-Appellant.

Docket No. 63206.

132 Mich.App. 79, 346 N.W.2d 903

Court of Appeals of Michigan.

Submitted April 14, 1983.

Decided Feb. 7, 1984.

Released for Publication March 16, 1984.

[132 MICHAPP 83] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellate Asst. Pros. Atty., Civil and Appeals, and Frank J. Bernacki, Asst. Pros. Atty., for the People.

Carl Ziemba, Detroit, for defendant-appellant on appeal.

Before T.M. BURNS, P.J., and MAHER and CYNAR, JJ.

PER CURIAM.

Defendant was convicted following a bench trial of attempting to obtain money over $100 by false pretenses, M.C.L. Sec. 750.218; M.S.A. Sec. 28.415, M.C.L. Sec. 750.92; M.S.A. Sec. 28.287. He was sentenced to one year of probation, nonreporting, and appeals as of right.

Defendant, an attorney, was assigned to represent an indigent defendant, Tyrone Lake, who was charged with four offenses. A pretrial negotiation was held on December 17, 1976, in which Lake did not participate. The assistant prosecuting attorney told defendant that if Lake would plead guilty to two of the charged offenses within 30 days the other two would be dismissed. According to the testimony of Lake, defendant then approached Lake, who had been waiting in the hallway, and asked him how much he would pay to get the sentence on one of the charges reduced from life to [132 MICHAPP 84] a year's probation. Lake replied, "Anything". Defendant then allegedly said: "If I had two thousand dollars, that I could get that reduced down, the charges knocked off, the life sentence knocked off and reduced down to a year's probation." Shortly after this conversation, Lake went to the police. A search warrant was obtained authorizing a wiretap of defendant's office and home phones. Another search warrant was obtained authorizing participant monitoring. The police then taped a meeting between Lake and defendant on December 29, 1976. At that meeting, Lake gave defendant $800 supplied by the police. At one point defendant said: "I'm going to call and ask my man if we can drop those charges, get those charges, the two I told you about." Shortly thereafter, defendant was arrested.

Defendant was originally charged with one count of obtaining money by false pretenses, M.C.L. Sec. 750.218; M.S.A. Sec. 28.415, and, after a preliminary examination, he was bound over for trial on that charge. In response to defendant's motion to quash the information, the trial court ordered that the information be amended to charge attempt to obtain money over $100 by false pretenses. Defendant then moved for rehearing on this motion to quash. The trial court granted the motion. The people then appealed to this Court. In an unpublished per curiam opinion, docket No. 77-3988, decided October 17, 1979, this Court reversed and reinstated the information charging attempt. Defendant was then tried before the court sitting without a jury, resulting in his conviction.

Defendant contends that the amended information was defective because it did not charge a crime. The amended information stated that defendant:

[132 MICHAPP 85] "Did attempt to obtain money of the value of over $100 designedly and with intent to defraud or cheat the above-named Complainant by a false pretense, to wit: the representation that the claim or representation that he could procure the dismissal of certain criminal charges and obtain a sentence of probation on other criminal charges, then pending against Complainant in Recorder's Court Case No. 76-09788, if complainant would pay a substantial sum of money, contrary to Sec. 750.218, M.C.L.A."

Initially, we address the people's argument that the "law of the case" doctrine bars our review of the above claim. In People v. Stinson, 113 Mich.App. 719, 730, 318 N.W.2d 513 (1982), lv. den. 417 Mich. 957 (1983), this Court said:

"Where a prior ruling of this Court concerns the same question of law in the same case, the doctrine of the law of the case applies and the prior ruling is controlling."

The people maintain that our prior ruling reversing the trial court's order quashing the information controls our decision on defendant's challenge to the information on this appeal. We disagree. The question involved in the earlier appeal was whether the examining magistrate abused his discretion in binding the defendant over on the charge of obtaining money over $100 by false pretenses. This Court concluded that there was enough evidence to support the bindover. The issue in this appeal, however, does not involve the bindover. Rather, it challenges the information on its face without reference to the evidence received at the preliminary examination. As the Supreme Court said in People v. Webb, 127 Mich. 29, 31, 86 N.W. 406 (1901):

"The sufficiency of an information does not depend [132 MICHAPP 86] upon the proofs. It either is or is not, upon its face, a good information * * * ".

Inasmuch as the question of law resolved in the first appeal is not now before us, the law of the case doctrine does not apply.

Defendant desires that we reverse his conviction because the information failed to set forth facts which would, if proven, establish the falsity of the representation. We do not find that this omission rendered the information fatally defective or that reversal of defendant's conviction is warranted.

A defect in an information may be amendable upon proper and timely objection by a defendant. M.C.L. Sec. 767.76; M.S.A. Sec. 28.1016; People v. Fuzi, 46 Mich.App. 204, 209-210, 208 N.W.2d 47 (1973). The controlling question is whether such an amendment would be prejudicial to the accused. Fuzi, supra. A defendant is not prejudiced by an amendment to the information to cure a defect in the offense charged where the original information was sufficient to inform the defendant and the court of the nature of the charge. People v. Mahone, 97 Mich.App. 192, 195, 293 N.W.2d 618 (1980); People v. Corbeil, 77 Mich.App. 691, 259 N.W.2d 193 (1977). Here the information, containing a general averment that the representation constituted a false pretense, was sufficient to satisfy defendant's due process right to be apprised of the charges he was called upon to defend against. Cf., People v. Mast, 126 Mich.App. 658, 337 N.W.2d 619 (1983).

Since defendant's objection to this defect in the information was not raised below, reversal would be appropriate only if a manifest injustice resulted from the defect. M.C.L. Sec. 767.76; M.S.A. Sec. 28.1016; People v. Mast (On Rehearing ), 128 Mich.App. 613, 341 N.W.2d 117 (1983); People v. Laslo, 78 Mich.App. 257, 261-262, 259 N.W.2d 448 (1977). Because the [132 MICHAPP 87] defect could have been corrected by amendment upon timely objection, we perceive no such injustice.

Defendant's remaining arguments require little discussion. Other defects in the information cited by defendant were similarly not raised below and are hence not preserved for appeal. The representation set forth in the information was one of existing fact, as is correctly discerned in the concurring opinion. The trial court's findings of fact were adequate, and defendant was found to have employed the same false pretense alleged in the information.

Affirmed.

MAHER, Judge (concurring).

I am writing separately to clarify my position in People v. Mast (On Rehearing ), 128 Mich.App. 613, 341 N.W.2d 117 (1983). In Mast, I held that, although the defendant had failed to object to the information until his appeal, his conviction should nevertheless have been reversed. I believe the opposite result is warranted in the present case for the following reasons.

A defendant has the right "to be informed of the nature of the accusation". Const.1963, art. 1, Sec. 20; People v. Jones, 395 Mich. 379, 388, 236 N.W.2d 461 (1975). The information must, "with a fair degree of certainty", specify the particular charge made against the accused. People v. Brown, 299 Mich. 1, 4, 299 N.W. 784 (1941). Therefore:

"Such facts must be averred that, if admitted, would constitute the offense and establish the guilt of the accused. The elements of the offense must be so stated that he can know what he is to meet and prepare for his defense." People v. Quider, 172 Mich. 280, 285-286, 137 N.W. 546 (1912).

[132 MICHAPP 88] An information must be specific for two reasons: it affords the defendant due notice of the charges against him and protection against double jeopardy should he be retried. People v. Brown, supra; People v. Girardin, 1 Mich. 90, 91 (1848). However, despite these important interests, a defendant must usually object to the deficiencies in an information before trial. M.C.L. Sec. 767.76; M.S.A. Sec. 28.1016; People v. Southwick, 272 Mich. 258, 261 N.W. 320 (1935); People v. Swindlehurst, 120 Mich.App. 606, 328 N.W.2d 92 (1982), lv. den. 417 Mich. 900 (1983). The reason behind this requirement is clear--a defect in an information can usually be cured if the objection is raised before trial. See United States ex rel. Burgess v. Johnson, 323 F.Supp. 72, 74 (E.D.Mich., 1971). Permitting objection after trial has begun (when jeopardy has attached) would permit a defendant to "sandbag" the court (often on little more than a technicality which has little to do with the defendant's actual defense). See People v. Sims, 257 Mich. 478, 481, 241 N.W. 247 (1932).

However, appellate courts will reverse a conviction in two situations although a defendant has failed to raise a timely objection: where the information failed to grant the circuit court jurisdiction, People v. Calvin, 60 Mich. 113, 119-120, 26 N.W. 851 (1886); United States v. Leach, 291 F. 788 (E.D.Mich., 1923); 42 C.J.S. Indictments and Informations Sec. 307, pp. 1337-1340, and where manifest injustice would otherwise result. People v. Laslo, 78 Mich.App. 257, 261-262, 259 N.W.2d 448 (19...