People v. Kieronski, No. 180745

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: SMOLENSKI
• Citation: 542 N.W.2d 339,214 Mich.App. 222
• Docket Number: No. 180745
• Decision Date: 03 November 1995
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Stanley KIERONSKI, Defendant-Appellee.

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542 N.W.2d 339 214 Mich.App. 222 PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Michael Stanley KIERONSKI, Defendant-Appellee. No. 180745. Court of Appeals of Michigan. Submitted Sept. 6, 1995, at Detroit.
Decided Nov. 3, 1995, at 9:15 a.m.
Released for Publication Jan. 23, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the People.

Denise D. Green, Detroit, for defendant on appeal.

Before SMOLENSKI, P.J., and CORRIGAN and RANSOM, ^* JJ.

SMOLENSKI, Presiding Judge.

The prosecutor appeals as of right orders of the Recorder's Court of Detroit quashing an information charging defendant with aggravated stalking, M.C.L. § 750.411i; M.S.A.

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§ 28.643(9) (stalking in violation of a restraining order of which the individual received actual notice), of his ex-wife, ¹ Mary Louise Curry, and dismissing the case. We vacate the orders and reinstate the charge.

At the September 14, 1994, preliminary examination in the district court, the sole witness to testify was Curry. Curry testified that at one time defendant had been her husband and that she and defendant had been married for seven weeks. Curry testified that at some point an ex parte order had been issued by the Wayne Circuit Court providing that defendant was to have no contact with her, including talking to, calling, or harassing her, and that in the time since this order had been issued, defendant had intimidated or put her in fear on more than one occasion.

Curry testified that at 10:30 a.m. on June 7, 1994, she and defendant had been at the office of the friend of the court on Griswold in Detroit and that defendant had walked by her and stated "I'll get you, bitch." Curry testified that she had been at the office of the friend of the court because she had been subpoenaed and that her presence there had nothing to do with her divorce or an investigation by the friend of the court. Curry testified that defendant was at the office of the friend of the court concerning a custody battle between defendant and "his ex-wife." The record is not clear concerning whether Curry was referring to herself or whether defendant had a second "ex-wife."

Curry also testified that on a day in June at 6:40 a.m. defendant telephoned her at her parents' house and asked to speak to Angel, her first ex-husband (defendant was Curry's second ex-husband). Curry testified that she told defendant: "Angel isn't here. You know, my ex-husband don't live here, and you know you're not supposed to be calling me here, and he says, 'I just want to tell you I'll get you.' "

Curry testified that a few weeks before the preliminary examination she had been standing in "this very courtroom" when defendant came through the courtroom door and at her and that a police officer "had to tell him to leave the court."

Curry testified that the three incidents about which she testified had all taken place after the ex parte order of injunction had been issued.

The district court stated that it was "going to take [Curry's] testimony as probable cause here to bind this Defendant over" on the charge of aggravated stalking.

Defendant subsequently moved to quash the information and to dismiss the case on the ground that insufficient evidence had been presented at the preliminary examination that defendant had committed the crime of aggravated stalking. ² The motion contended that no evidence had been presented that defendant had followed Curry in any public or private places or had visited her at her place of employment or residence and that two of the alleged instances of stalking had occurred at locations where defendant had a right to be present. The motion further contended that no evidence had been presented that an injunction was in effect at the time of the alleged incidents or that defendant had been served with the injunction. The motion suggested that the appropriate remedy was to pursue a contempt charge for defendant's violation of the injunction.

At the hearing on defendant's motions in the Recorder's Court, defense counsel again argued that there was no evidence that defendant had followed or pursued Curry or engaged in conduct indicating a continuity of

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purpose, as defined in the aggravated stalking statute. Defense counsel contended that the evidence presented at the preliminary examination indicated only "words of anger."

In granting defendant's motion, the Recorder's Court stated:

I think [the Wayne Circuit Court] certainly has jurisdiction if [it] feels an injunction has been violated. But we're dealing now with the criminal statute. And what happened here was he called the mother's house and said something on the phone. My interpretation of "stalking," and criminal statutes must be interpreted strictly. "Stalking" means following people around, harassing them, sitting outside their house. There hasn't even been the remotest violation of a criminal statute here. There has been--this is a criminal court. This is not a divorce court. I wouldn't waste the Court's time with this.

I can understand people being upset; I can understand he might have said, "I'm going to get you," and all that. But he did not do anything except talk.

We take up the time of this court with a jury where clearly the statute means stalking. A telephone call was made, there was an injunction. Take it back to [the Wayne Circuit Court].

When the prosecutor protested that face-to-face contact between defendant and Curry had also occurred when defendant had walked by Curry and stated "I'll get you, bitch," the Recorder's Court stated, "That's not stalking." The Recorder's Court stated further:

I think we have spent more time already on this case than it deserves. Case will be dismissed. Take the case over to [the Wayne Circuit Court] for violation of the injunction. This is not a violation of the statute. We're wasting time. This is a criminal court. [The Wayne Circuit Court] has jurisdiction. The statute has not been violated. It must be strictly construed. And that means they must show that there has been stalking. That did not happen here.

On appeal, the prosecutor contends that the district court did not abuse its discretion in binding over defendant because sufficient evidence was presented that defendant's conduct fell within the plain meaning of the aggravated stalking statute. The prosecutor argues that the Recorder's Court erred because it narrowly interpreted the aggravated stalking statute to cover only situations where a defendant follows a victim, harasses her, or sits outside her house, and because it believed that its time was being wasted because an injunction was already in place.

Defendant contends that the language of the aggravated stalking statute is obscure and of doubtful meaning. Defendant further contends that the Legislature did not intend to criminalize ambiguous behavior, such as accidentally appearing within the sight of the victim or words spoken in anger. Defendant contends that stalking is an objective course of conduct that escalates to a point of possible physical injury or death and involves uninvited physical presence with no legitimate purpose except to intimidate or harass. Defendant argues that no evidence was presented that he engaged in such conduct, i.e., no evidence was presented that he repeatedly followed, telephoned, or communicated with Curry or was present at a place where he had no legitimate business. Defendant...