People v. Fortson, Docket No. 134589

Decision Date05 October 1993
Docket NumberDocket No. 134589
Citation202 Mich.App. 13,507 N.W.2d 763
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. John David FORTSON, Jr., Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., James R. Reed, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the People.

Martin J. Beres, St. Clair Shores, for defendant on appeal.

Before: HOOD, P.J., and MARK J. CAVANAGH and TAYLOR, * JJ.

PER CURIAM.

Defendant, who had originally been charged with open murder, M.C.L. § 750.316; M.S.A. § 28.548, was convicted by a jury of voluntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was sentenced to consecutive prison terms of ten to fifteen years and two years, respectively, and appeals as of right. We affirm in part, vacate in part, and remand for resentencing before a different judge.

Defendant first argues that the trial court erred in allowing the prosecutor to amend the information to add the felony-firearm count even though defendant was never bound over on such a charge. We disagree.

A trial "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." M.C.L. § 767.76; M.S.A. § 28.1016. Until recently, this section had been construed to allow amendments to cure errors in the indictment, but not to allow an amendment that would add a new charge. See People v. Price, 126 Mich.App. 647, 651-655, 337 N.W.2d 614 (1983); see also People v. Erskin, 92 Mich.App. 630, 637-641, 285 N.W.2d 396 (1979). Recently, however, our Supreme Court peremptorily reversed a refusal to allow an amendment proposed at the end of the preliminary examination that would have added a new charge. People v. Hunt, 442 Mich. 359, 501 N.W.2d 151 (1993).

In Hunt, the Supreme Court noted that the right to a preliminary examination is statutory, not constitutional. Id. at 362, 501 N.W.2d 151. The function of a preliminary examination is to determine whether there is probable cause. Id. A preliminary examination also "helps to satisfy the constitutional requirement that the defendant 'be informed of the nature of the accusation' against him." Id.

The Court pointed out that probable cause is required for a proper bindover and that "[i]t is the bindover, or waiver, that authorizes the prosecution to file an information." Id. "However, the information 'is not predicated upon the complaint or the examination upon which a warrant issues' ... [but r]ather the information is 'presumed to have been framed with reference to the facts disclosed at the examination.' " Id. at 363, 501 N.W.2d 151. Thus, the examining "magistrate is not bound by the limitation of the written complaint." Id.

The Hunt Court determined that the proofs presented at the preliminary examination would have supported a bindover on the charge sought to be added. Id. at 363-364, 501 N.W.2d 151. "[T]he question then bec[ame] whether the amendment requested by the prosecution would have caused unacceptable prejudice to the defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend," in other words, whether defendant had "a fair opportunity to meet the charges against him." Id. at 364, 501 N.W.2d 151. The Court found that, where the testimony supported the new charge, where there was no indication that defense counsel's actions at the preliminary examination would have been any different had he known of the new charge, and where the prosecutor offered to allow additional questioning of witnesses, there was no "unfair surprise, inadequate notice, or an insufficient opportunity to defend." Id. at 364-365, 501 N.W.2d 151 (emphasis original). We believe that the same holds true in this case.

Here, defendant's mother-in-law testified at the preliminary examination that defendant had a shotgun and that he loaded it before the shooting. The testimony was undisputed that the victim died of a gunshot wound to the head. Further, defendant has never contested that he had a shotgun and used it. His only claim was that he acted in self-defense under the reasonable belief that the victim was armed and was about to attack defendant's home, family, and guests.

It is true that in this case, unlike in Hunt, the prosecutor did not move to amend the information until four months after the preliminary examination and that he refused to consent to a new preliminary examination. However, defendant had ample time to prepare to meet the new charge, because it took a month before the motion was heard and an additional four months before defendant was brought to trial. Additionally, there is no claim that counsel's questioning or strategy at the preliminary examination would have been any different had he known of the felony-firearm charge. Under these circumstances, we find that the trial court's refusal to remand the case for a preliminary examination regarding the felony-firearm charge did not result in "unfair surprise, inadequate notice, or an insufficient opportunity to defend."

Next, defendant argues that the trial court erred in admitting into evidence a gun belonging to defendant's wife. We disagree.

It is undisputed that about a month after defendant's arrest his wife had defendant's brother and a friend plant the wife's gun near the scene. This was done in an effort to substantiate defendant's claim that the victim had a gun. However, defendant argues that this gun was irrelevant to his guilt or innocence and was also highly prejudicial. We disagree.

There was some testimony tending to link defendant with the conspiracy to plant the gun. Specifically, defendant apparently told a jail guard several hours before the gun was actually found that a gun was going to be found. In light of this testimony, the gun was relevant to the credibility of defendant's allegation that the victim was armed and that defendant acted in self-defense. Further, the probative value of the evidence of the gun was not substantially outweighed by the danger of unfair prejudice.

Defendant next complains that the trial court deprived him of a fair trial by refusing to allow him to play back to the jury a taped emergency call placed to the police by one of defendant's guests just before the shooting. We disagree.

Defendant's guest called the police at defendant's request and told the authorities that he thought that the victim was armed. However, he testified that he did not see any guns and that he was just relaying information given to him by defendant. The witness, defendant's mother-in-law, and the other three guests all saw the victim put his hand inside his coat and assumed that he was armed. However, no one except defendant testified to seeing a gun. No gun other than that owned by defendant's wife was ever recovered.

We do not decide whether the guest's taped call to the police was admissible as an excited utterance under MRE 803(2) or as a present sense impression under MRE 803(1). Instead, we find that any error in refusing to permit the playing of the tape was harmless beyond a reasonable doubt because the witness testified concerning the conversation and because portions of the recorded conversations were read into the record by defense counsel. Playing the tape to the jury would have therefore been cumulative, and there is no indication that failing to do so prejudiced defendant.

Defendant's next argument is that the trial court abused its discretion in refusing to allow testimony regarding the victim's reputation for violence in the community. We do not find error requiring reversal.

As argued by defendant, evidence of a victim's character for violence is admissible where the defendant claims that he acted in self-defense. See MRE 404(a)(2); MRE 405. However, in this case, the trial court's refusal to admit this evidence was harmless because there was other testimony from which the jury could have found that defendant's fear of the victim was reasonable. For example, the victim had threatened defendant about four days earlier and, on the day he was killed, had argued with defendant on the phone many times, had come to the house twice, and was loud, belligerent, very drunk, and under the influence of cocaine. There was also expert testimony that a person with the victim's high blood alcohol level (0.32 percent) and high blood-cocaine level (225 nanograms) might have schizophrenic symptoms, would be hostile, hyperactive, and delusional and would have impaired judgment. Given the overwhelming evidence of the victim's aggressive behavior on the day of the shooting, we find that the failure to admit character evidence was harmless beyond a reasonable doubt.

Next, defendant argues that there was insufficient evidence to sustain the jury's verdict of voluntary manslaughter, because the prosecutor failed to disprove defendant's theory of self-defense beyond a reasonable doubt. We disagree.

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