People v. Erskin

• Decision Date: 01 October 1979
• Docket Number: Docket No. 78-2223
• Citation: 285 N.W.2d 396,92 Mich.App. 630
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Lee ERSKIN, Defendant-Appellant. 92 Mich.App. 630, 285 N.W.2d 396
• Court: Court of Appeal of Michigan — District of US

Page 396

285 N.W.2d 396

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Lee ERSKIN, Defendant-Appellant.

Docket No. 78-2223.

92 Mich.App. 630, 285 N.W.2d 396

Court of Appeals of Michigan.

Oct. 1, 1979.

Released for Publication Nov. 29, 1979.

[92 MICHAPP 634] Paul L. DeCocq, Howell, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Charles M. Sibert, Asst. Pros. Atty., for plaintiff-appellee.

Before RILEY, P. J., and V. J. BRENNAN and CROCKETT, ^* JJ.

RILEY, Presiding Judge.

Defendant was convicted of larceny over $100, M.C.L. § 750.356; M.S.A. § 28.588, and was also determined to be an habitual offender, M.C.L. § 769.12; M.S.A. § 28.1084. He was sentenced to 10 to 30 years imprisonment and appeals as of right.

[92 MICHAPP 635] The pertinent facts are essentially undisputed. On November 28, 1977, officer Stephen Early of the Lansing police department observed two vehicles, a blue Camaro and a black over gold Pontiac, which bore the same license number. He pulled the Camaro to a halt and then gave chase to the Pontiac. Following a successful pursuit, he asked the driver, whom he identified as the defendant, to produce a driver's license, registration and proof of insurance. Defendant could only produce the license of another person. Early then observed that the VIN (vehicle identification number) plate bore scratch marks and appeared to be bowed out, indicating that the plate had been pried loose at one time.

Both Early and defendant returned to the Camaro, whose driver by now had fled the scene. Again, the officer noticed that the VIN had been tampered with, and further determined that the car possessed an incorrect license plate number. At this time, the Camaro was searched in the hope of producing some indication of ownership. A few tools and a black trunk were found in the back seat. Officer Early then had the vehicle towed and impounded, at which time he continued the search of the automobile and inventoried its contents. Upon opening the trunk, he found a title to the Camaro in a name other than defendant's, and also discovered letters with defendant's address on them.

Both cars were later confirmed as stolen when a LEIN check of the hidden VIN plates revealed their true owners.

Defendant was charged in two counts of receiving and concealing stolen property over $100, contrary to M.C.L. § 750.535(1); M.S.A. § 28.803(1), and was bound over for trial on same following preliminary [92 MICHAPP 636] examination. Prior to the commencement of trial, the prosecution moved to amend the information to include two additional counts of larceny over $100, M.C.L. § 750.356; M.S.A. § 28.588. The prosecutor indicated that his motion was premised upon the Supreme Court's opinion in People v. Kyllonen, 402 Mich. 135, 262 N.W.2d 2 (1978), which had been released shortly before defendant's trial. Defense counsel argued that defendant had not received a preliminary examination on the added larceny charges. The prosecutor countered that Kyllonen authorized the additional charges prior to, or even during trial. Pursuant to a review of the Kyllonen decision, the trial court denied defendant's motion to remand and granted the prosecutor's request to amend for the additional counts.

Following the presentation of evidence during the prosecution's case-in-chief, defendant moved for a directed verdict on all charges. Defense counsel's argument was directed primarily at the lack of evidence supporting the larceny charges. The trial court found there to be sufficient evidence regarding the receiving and concealing of stolen property charges, but found no proof of a larceny of the Camaro by the defendant. That count was therefore dismissed. The court, however, took the count involving larceny of the Pontiac under advisement.

Defendant then took the stand and admitted that he had stolen both the Pontiac and Camaro. Upon the completion of defendant's testimony, and before the jury was to be instructed, defendant waived jury trial, after which the lower court found defendant guilty of one count of larceny over $100.

Defendant now claims that the trial judge erred by failing to remand for a preliminary examination on the two added counts of larceny. We agree.

[92 MICHAPP 637] M.C.L. § 767.69; M.S.A. § 28.1009 ¹ permits the offenses cited to be charged in the same information. M.C.L. § 767.76; M.S.A. § 28.1016 allows for amendment under authority of the trial court as follows:

"The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury."

Where an amended information does not introduce a new and different offense, but simply constitutes an amendment as to form, remand for rearraignment or a new preliminary examination is unnecessary. People v. Iaconis, 29 Mich.App. 443, 463, 185 N.W.2d 609 (1971), Aff'd sub nom. People v. Bercheny, 387 Mich. 431, 196 N.W.2d 767 (1972), People v. Batten, 9 Mich.App. 195, 202, 156 N.W.2d 640 (1967). However, the quoted statute does not authorize the court to allow the changing of the offense or the addition of a new charge by way of amendment; rather, it only permits the procedural [92 MICHAPP 638] cure of defects in the statement of the offense which is already sufficiently charged to fairly apprise the defendant and court of its nature. People v. Sims, 257 Mich. 478, 481, 241 N.W. 247 (1932), People v. Bruce, 35 Mich.App. 358, 359-360, 192 N.W.2d 634 (1971), Lv. den. 387 Mich. 788 (1972), People v. Cherry, 27 Mich.App. 672, 675, 183 N.W.2d 857 (1970), People v. White, 22 Mich.App. 65, 67, 176 N.W.2d 723 (1970), People v. Burd No. 1,13 Mich.App. 307, 316-317, 164 N.W.2d 392 (1968). To hold otherwise would run afoul of M.C.L. § 767.42(1); M.S.A. § 28.982(1) which provides in pertinent part:

"An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination."

The primary purpose of the preliminary examination is to determine if a crime has been committed and, if so, whether there is probable cause to believe that the defendant committed it. People v. Duncan, 388 Mich. 489, 499, 201 N.W.2d 629 (1972), and cases cited therein.

"The right of defendant to a preliminary examination is not a constitutional right, Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913), but it is one which the Michigan Supreme Court has called a 'fundamental right in most criminal cases,' People v. Duncan, 388 Mich. 489, 502, 201 N.W.2d 629, 635 (1972), and the United States Supreme Court has found to be a 'critical stage' in criminal proceedings. Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 2003, 26 L.Ed. 387, 397 (1970)." People v. Skowronek, 57 Mich.App. 110, 114, 226 N.W.2d 74, 76 (1974).

In the present case, the prosecutor admitted, [92 MICHAPP 639] when arguing for the proposed larceny amendments, that he had no information that defendant was the thief other than that he was in possession of recently stolen property and lived in a city adjacent to the city from which one of the cars was stolen. The prosecutor conceded that he did not believe defendant would have been bound over on the larceny charges had they been filed prior to the preliminary examination, but he, nevertheless, felt compelled by People v. Kyllonen, supra, to add them.

A careful reading of the Supreme Court's opinion in Kyllonen, argued at length by the parties and relied upon by the trial judge, indicates that it does not obviate the need for a preliminary examination under the circumstances presented in the case at bar. In that case, defendant was originally charged with receiving and concealing stolen property, but revealed in mid-trial that he was the actual thief. The Court held that the receiving and concealing statute ² was to be construed to exclude thieves who conceal property they had stolen, and that thieves were to be punished separately under the larceny statutes. ³ 402 Mich. at 148, 262 N.W.2d 2.

The Court then addressed certain problems which the prosecution believed would flow from such an interpretation:

"The prosecution first contends that under today's decision a defendant charged only with buying, receiving or aiding in the concealment of stolen property may escape all criminal liability by simply revealing in midtrial or on appeal after a conviction that he was the thief and therefore not amenable to prosecution for buying, receiving or aiding in the concealment of stolen property. Apparently, this alarm is based on the assumption[92 MICHAPP 640] that reprosecution would be barred by the 'same transaction' test adopted in People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973).

"Even if the crimes of larceny and buying, receiving or aiding in the concealment of stolen property could be said to arise from the same transaction, the prosecution would not be prohibited from reprosecution on the theft charge if the defendant's revelation that he was the thief was truly a surprise. 15 In White, supra, 258, fn. 6, 212 N.W.2d 222, this Court said:

" 'We are aware that in certain situations, strict application of the same transaction test could lead to the...