People v. Hayden

• Decision Date: 18 May 1994
• Docket Number: No. 149158,149158
• Citation: 205 Mich.App. 412,522 N.W.2d 336
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant and Cross-Appellee, v. William D. HAYDEN, Defendant-Appellee and Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 336

522 N.W.2d 336

205 Mich.App. 412

PEOPLE of the State of Michigan, Plaintiff-Appellant and Cross-Appellee, v. William D. HAYDEN, Defendant-Appellee and Cross-Appellant.

No. 149158.

Court of Appeals of Michigan.

Submitted Jan. 20, 1994, at Ann Arbor.

Decided March 28, 1994.

Approved for Publication and Released for Publication May

18, 1994, at 9:00 a.m.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Anica Letica, Asst. Pros. Atty., for the People.

John F. Royal, Detroit, and Mary A. Mahoney, Bloomfield Hills, for defendant.

Before DOCTOROFF, C.J., and MICHAEL J. KELLY and D.G. TYNER, ^* JJ.

PER CURIAM.

The prosecutor appeals from a January 28, 1992 order of the Oakland County Circuit Court, which quashed the information and dismissed the prosecution. Defendant cross appeals an order of the circuit judge of that same date which denied his motion to suppress confession. Since the facts in critical part are undisputed, and since the case is controlled by existing law we do not repeat them.

I

The corpus delicti was established by complainant's testimony and the decision of the circuit court is clearly erroneous. We reverse.

People v. Williams, 422 Mich. 381, 373 N.W.2d 567 (1985), established the rule that the corpus delicti of a first degree, premeditated murder was shown by the death of the victim and some criminal agency as the cause. Later in People v. Cotton, 191 Mich.App. 377, 478 N.W.2d 681 (1991), we held that that new res gestae interpretation was not limited to homicide prosecutions, but "is satisfied in any criminal case if the prosecution shows that the specific injury or loss has occurred, and that some person's criminality was the source or cause of the injury." 191 Mich.App. at 389, 478 N.W.2d 681. The Supreme Court denied leave to appeal in People v. Cotton, 439 Mich. 932, 479 N.W.2d 698 (1992). This Court has followed Cotton. People v. Metzler, 193 Mich.App. 541, 484 N.W.2d 695 (1992); but see, People v. Emerson, 203 Mich.App. 345, 512 N.W.2d 3 (1994) (disagrees that People v. Williams should control on the question of the corpus delicti of felony murder).

Complainant's testimony at the second preliminary examination (adopted by agreement from the first) established both a specific injury (fellatio) and defendant's criminal act as the source of that injury. Accordingly, the preliminary examination testimony established the corpus delicti of the offense and defendant's confession was then properly admitted through the testimony of witness King.

Defendant is dead wrong in arguing that there is any preclusive effect to the dismissal at the first preliminary examination. Dismissal of a defendant at a preliminary examination is without prejudice to renewal of the charges. MCR 6.110(F) provides that a dismissal is "without prejudice to the prosecutor initiating a subsequent prosecution for the same offense," provided that the subsequent examination is held before the same magistrate and provided that the prosecutor presents additional evidence to support the charge. The rule is a reiteration of common law principles long recognized in People v. Kennedy, 384 Mich. 339, 183 N.W.2d 297 (1971); People v. Miklovich, 375 Mich. 536, 134 N.W.2d 720 (1965); People v. Schoonover, 304 Mich. 355, 8 N.W.2d 95 (1943); People v. Laslo, 78 Mich.App. 257, 259 N.W.2d 448 (1977); People v. Riley, 72 Mich.App. 299, 249 N.W.2d 397 (1976). Specifically, dismissal of a prosecution at preliminary examination raises no res judicata or collateral estoppel bar to a subsequent prosecution. People v. George, 114 Mich.App. 204, 210, 318 N.W.2d 666 (1982), makes the point:

There likewise is no bar under the principle of res judicata to a subsequent prosecution. That principle applies only where there has been an adjudication on the merits. Bray v. Dept of State, 97 MichApp 33, 38; 294 NW2d 236 (1980), lv gtd 411 Mich 972 (1981). As the preliminary examination does not finally determine guilt or innocence, People v. Zaleski, 375 Mich 71, 82-83; 133 NW2d 175 (1965), the doctrine of res judicata does not bar a repeated attempt to bind a defendant over for trial. People v. Riley, 72 MichApp 299, 302; 249 NW2d 397 (1976).

Collateral estoppel, the corollary of res judicata, also is ineffective in preventing the prosecutor from taking a second 'bite at the apple.' People v. Price, 69 MichApp 363, 369; 244 NW2d 363 (1976).

Hence, the magistrate's refusal to bind defendant over after the first preliminary examination means nothing. It is immaterial whether that refusal was based on the complainant's credibility, failure to establish that the offense occurred, failure to establish that defendant committed the offense, or failure to establish the corpus delicti.

II

The question on cross appeal is whether Mary King's testimony as to defendant's confession was admissible. The 75-year-old defendant was a board member of the Childrens Visitation Program and a volunteer driver for them. The program is sponsored by the Michigan Council on Crime and Delinquency and takes children to visit their mothers at the Huron Valley Women's Prison. Mary King was coordinator of the program, and a friend of defendant through the program.

When defendant learned that he would be charged, he called King and told her that he might be going away for a long time, but refused to state the reason. He intended to give her notice so that she could make arrangements to fill in for his 20 hours per week volunteer time. Within the next two days, King called defendant twice to find out why he was going away. She feared that he might be sick, and she wanted to help him. They were friends and they had shared problems before. Defendant initially refused to discuss his problem. However, in the third telephone conversation on December 20 1990, which lasted about eight minutes, King begged and pleaded with defendant to tell her where he was going. She was upset and cried. She did not try to overcome his resistance but, because she thought he had a health problem, asked him several times where he was going. Eventually, he told her that he was being charged with first degree criminal sexual conduct. He added, "It was an accident. Michael and I were playing around and he got an erection and I sucked him." According to King, defendant was...