People v. Fiedler

• Decision Date: 06 July 1992
• Docket Number: Docket No. 139061
• Citation: 487 N.W.2d 831,194 Mich.App. 682
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Marvin Edward FIEDLER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 831

487 N.W.2d 831

194 Mich.App. 682

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Marvin Edward FIEDLER, Defendant-Appellee.

Docket No. 139061.

Court of Appeals of Michigan.

Submitted Jan. 8, 1992, at Grand Rapids.

Decided July 6, 1992, at 10:25 a.m.

Released for Publication Aug. 28, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Robert Ianni, Asst. Atty. Gen. In Charge, Crim. Div., and John D. Walter, Asst. Atty. Gen., for the People.

Burch, Dettman, Banyon & Bruce by Andrew J. Burch, Donald D. Dettman, and Jack E. Banyon, Benton Harbor, for defendant.

Before MARILYN J. KELLY, P.J., and DOCTOROFF and RICHARD ALLEN GRIFFIN, JJ.

DOCTOROFF, Judge.

The people appeal as of right from an order of Berrien Circuit Judge John T. Hammond quashing an information charging defendant, Benton Harbor Police Officer Marvin Fiedler, with involuntary manslaughter, M.C.L. Sec. 750.329; M.S.A. Sec. 28.561, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). ¹ The prosecution argues that the circuit court erred in ruling that MCR 6.110(E) is invalid, that the district court did not abuse its discretion when it bound over defendant for trial, that the fleeing-felon rule does not prohibit prosecution of defendant, that the circuit court erred in ruling that the district court erred in admitting evidence regarding the shooting policy of the Benton Harbor Police Department, and that the appropriate remedy was to remand to the district court. We reverse and reinstate the information.

This case arises out of the shooting death of Norris Maben by defendant on January 18, 1990.

According to the testimony presented at the preliminary examination, Benton Harbor Police Department Dispatcher Karen Singleton received a telephone call from an anonymous informant that Terry Jenkins had been spotted in the vicinity of 700 Pavone Street. Jenkins was wanted by the Benton Harbor Police Department on an open murder charge. The informant described Jenkins as a black male wearing a brown brimmed hat, black sweatpants, white tennis shoes, a blue denim jacket with a fur collar, and with braids in his hair. No information was given regarding Jenkins' height, weight, or complexion.

Singleton gave an initial report of this call to defendant in person at the police station, and then followed up with numerous radio communications with defendant as he was en route to Pavone Street. She estimated she spoke with defendant more than five times by radio during this interval.

Marie Kimble testified that she was watching television in her upstairs apartment at 755 Pavone Street when an acquaintance of hers, Sam Buchanan, knocked at her door and asked to use her telephone. Buchanan was accompanied by a black male whom she did not know, but who was later identified as Norris Maben. Maben was wearing a blue brimmed hat, two coats, one black and one blue, blue sweatpants, and blue tennis shoes. Shortly thereafter, Kimble admitted defendant after he knocked and requested entry. Defendant asked Buchanan for identification, and Buchanan said he did not have any. Buchanan also told defendant that nobody came in with him. Meanwhile, Maben, who was in an adjoining room outside defendant's vision, said to Kimble, "You ain't seen me," but she responded that she would not hide anyone, whereupon Buchanan walked into an adjacent bedroom and Maben entered the kitchen, where defendant was standing. Defendant asked for identification and Maben responded that he did not have any and, when asked his name, replied "Norris Maben." As defendant extended his hand toward Maben, Maben ran from the kitchen, through the living room, and back to a bedroom, where he leaped outside through the glass of a closed window. Neither Kimble nor defendant witnessed the actual leap because the window through which Maben jumped was outside their vision from the kitchen. Kimble testified that there had been no body contact between defendant and Maben.

Defendant followed Maben's path through the apartment and outside Kimble's vision, after which she heard defendant yell "halt" three times, then heard three rapid shots, after which defendant came back through the kitchen and went downstairs and into the back yard. When she went to the rear of her apartment and looked outside, she saw Maben lying face down on the ground in the back yard. Kimble testified that defendant never told the occupants of the apartment why he was there or for whom he was looking, never arrested or charged them with a crime, and never drew his handgun while in her presence.

The pathologist who performed the autopsy testified that a single bullet entered the left front area of Mayben's chest and came out his lower back. Laboratory tests indicated the presence of a small amount of cocaine and suggested the presence of marijuana in Maben's body.

Officers who investigated the shooting testified that no weapons were found near the body. A set of keys was found under Maben's right arm. Defendant told one officer at the scene that he thought Maben was Jenkins, but was wrong.

The defense called as its sole witness Lt. Gary Ruhl, a Berrien County deputy sheriff, who took a statement from defendant on January 25, 1990. According to defendant's statement, Karen Singleton informed him that Jenkins had been spotted on Pavone Street. He proceeded to Pavone Street and, as he was driving, saw two men come around the front corner of the house at 755 Pavone Street. The shorter of the two men was wearing a small-brim hat and dark clothing, which defendant felt fit the description he had been given. The men went up on the porch. Defendant looked away and, when he turned back around, the men were gone.

Defendant knocked at the door of the house and a child, who admitted him, stated in response to defendant's inquiry that two men had gone upstairs. Defendant went upstairs, knocked at the door of the upper apartment, and was informed by the woman who opened it that there was no one else on the premises. When informed that a child downstairs had indicated that two men entered the apartment, the taller man came out and stated to defendant that he was the only man there. However, defendant inquired regarding the man with the small-brimmed hat. At that point, Maben entered the kitchen from another room and, in response to defendant's questions, stated his name was Maben and denied having any identification on him. Defendant reached for Maben's coat pocket to see if he had a wallet, but Maben pushed defendant to the point that defendant was completely off balance. Maben then ran out of the room and dove through the window. Defendant went to the window, saw Maben go off the edge of the roof of a lower part of the building and run diagonally across the back yard toward an alley, and, while standing at the window, ordered him to halt. Maben then turned around and moved as if reaching for something at his hip, whereupon defendant drew his handgun and fired three quick shots at Maben. Defendant believed that Maben was, in fact, Jenkins and thought he was reaching for a weapon.

Defendant stated he did not hear Maben tell Kimble to say that Maben was not there and did not recall receiving additional details regarding Jenkins' description while en route to Pavone Street.

The examining magistrate bound over defendant to circuit court for trial, stating that "the evidence exists to find that probable cause exists that both of the offenses charged which are not cognizable by this court have been committed and that the Defendant committed the same."

The circuit court granted defendant's motion to quash the information by written opinion entered on December 26, 1990, on the ground that the magistrate never found that a crime was committed, as required by M.C.L. Sec. 766.13; M.S.A. Sec. 28.931. The court also noted that in People v. Couch, 436 Mich. 414, 461 N.W.2d 683 (1990), the Michigan Supreme Court held that the common-law fleeing-felon rule was still in force in Michigan and that the magistrate did not have the benefit of the Couch opinion.

In a supplemental opinion issued on January 2, 1991, and in an opinion filed on February 25, 1991, which denied the prosecution's motions to disqualify the circuit judge, to remand, and to reconsider, the circuit court elaborated on its reasons for granting the motion to quash. The circuit court ruled that admission of evidence of the shooting policy of the Benton Harbor Police Department was error and that the magistrate had utilized an improper standard of proof by finding probable cause to believe the offenses charged were committed. The circuit court found that MCR 6.110(E) conflicts with M.C.L. Sec. 766.13; M.S.A. Sec. 28.931, and that the statute was controlling. The circuit court also found, after reviewing the evidence presented at the preliminary examination and considering defendant's fleeing-felon rule defense, that no crime was committed.

The people's first argument on appeal is that the trial court erred in ruling that MCR 6.110(E) is invalid because it attempts to effect a substantive change in Michigan law by authorizing binding over a defendant upon the examining magistrate's finding of probable cause to believe the crime charged has been committed.

Section 13 of the preliminary examination statute, M.C.L. Sec. 766.13; M.S.A. Sec. 28.931, states:

If it shall appear to the magistrate at the conclusion of the preliminary examination either that an offense has not been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant. If it shall appear to the magistrate at the conclusion of the preliminary examination that a felony has been committed and there is probable cause for charging the defendant therewith, the magistrate shall forthwith bind the defendant to appear before the circuit court of such county, or other county having...