People v. McGee

• Decision Date: 26 November 2003
• Docket Number: Docket No. 241147.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keangela Shavyonne McGEE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

672 N.W.2d 191

258 Mich. App. 683

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keangela Shavyonne McGEE, Defendant-Appellant.

Docket No. 241147.

Court of Appeals of Michigan.

Submitted September 9, 2003, at Lansing.

Decided October 2, 2003, at 9:05 a.m.

Released for Publication November 26, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and J. Thomas Horiszny, Assistant Prosecuting Attorney, for the people.

Gerald Ferry, Detroit, for the defendant.

Before: SMOLENSKI, P.J., and MARKEY and WILDER, JJ.

PER CURIAM.

Defendant, Keangela S. McGee appeals by right her conviction for perjury during a court proceeding, M.C.L. § 750.422. She argues that the trial court denied her due process of law and her statutory right to a preliminary examination by granting the prosecutor's motion to add the perjury charge as an alternative to the original charge of making a false police report of a felony, M.C.L. § 750.411a(1)(b), on the first day of jury selection. We hold that the trial court possessed jurisdiction to amend the information. People v. Goecke, 457 Mich. 442, 458-459, 579 N.W.2d 868 (1998). Moreover, in light of defendant's subsequent conviction, any error in failing to conduct a preliminary examination does not warrant reversal because defendant has not shown that the alleged error affected the trial. M.C.L. § 769.26; MCR 2.613(A); People v. Hall, 435 Mich. 599, 602-603, 613, 460 N.W.2d 520 (1990). We also conclude that defendant was not denied due process of law.

I. Summary of Facts and Proceedings

On May 13, 2001, defendant reported to the police that her boyfriend, Prophet Phillips, used her ATM card to withdraw money without her permission from her bank account. The police investigated, and Phillips was subsequently charged with the unauthorized use of a financial transaction device. At a preliminary examination on June 22, 2001, defendant testified that she lied to the police when she reported that Phillips did not have permission to use her ATM card, so the charge against Phillips was dismissed, and defendant was charged with making a false report of a felony, M.C.L. § 750.411a(1)(b).

On August 23, 2001, defendant waived her right to a preliminary examination. Jury selection began on February 14, 2002. Before juror voir dire, the prosecutor moved in a bench conference to amend the information to add the alternative count of perjury. After the jury was empaneled but before it was sworn in, defense counsel objected to the amendment. Counsel claimed that the prosecutor's motion was too late, was a surprise, that the defense had prepared to defend the charge of making a false report of a felony, and that amending the information would prejudice defendant. Furthermore, counsel objected to the prosecutor's failure to provide a copy of the transcript of the preliminary examination regarding the charges against Phillips. The trial court overruled counsel's objections and granted the motion to amend the information. The jury subsequently found defendant not guilty of making a false report of a felony but guilty of the added count of perjury.

II. Application of M.C.L. § 767.76 and MCR 6.112(H)

Defendant argues that the trial court abused its discretion by permitting the prosecutor to amend the information to add a new offense rather than to simply cure a defect. Defendant also argues that granting the amendment resulted in unfair surprise that prejudiced her. We disagree.

A. Standard of Review

Both M.C.L. § 767.76 and MCR 6.112(H) authorize a trial court to amend an information before, during, or after trial. The interpretation of either a statute or a court rule is a question of law subject to review de novo. People v. Chavis, 468 Mich. 84, 91, 658 N.W.2d 469 (2003); In re Gosnell, 234 Mich.App. 326, 333, 594 N.W.2d 90 (1999). A trial court's decision to grant or deny a motion to amend an information is reviewed for an abuse of discretion. People v. Sims, 257 Mich. 478, 482, 241 N.W. 247 (1932). The trial court abuses its discretion if the result is so contrary to fact and logic that it evidences a perversity of will, a defiance of judgment, or an exercise of passion or bias, People v. Yost, 468 Mich. 122, 127, 659 N.W.2d 604 (2003), or when an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling, People v. Jones, 252 Mich.App. 1, 4, 650 N.W.2d 717 (2002).

B. Analysis

We conclude that the trial court's grant of the prosecutor's motion to amend the information did not result in "unfair surprise or prejudice" to defendant. MCR 6.112(H). Accordingly, the trial court did not abuse its discretion. Moreover, if procedural error occurred, it was harmless. M.C.L. § 769.26; MCR 2.613(A).

Although M.C.L. § 767.76 refers to "indictments," unless specifically noted otherwise, all laws applying to prosecutions on indictments also apply to prosecutions by information. MCR 6.112(A); M.C.L. § 750.10; M.C.L. § 767.2; People v. Glass (After Remand), 464 Mich. 266, 278 n. 8, 279, 627 N.W.2d 261 (2001). M.C.L. § 767.76 provides, in part:

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.

In Sims, supra, our Supreme Court considered the propriety of amending an information from "assault with intent to kill" to "assault with intent to kill and murder." The Court interpreted the statute and found that CL 1929, § 17290 did not permit changing the offense charged, "nor the making of a new charge by way of amendment...." Sims, supra at 481, 241 N.W. 247. Rather, the statute only permitted amendments that cure "defects in the statement of the offense which is already sufficiently charged to fairly apprise the accused and court of its nature." Id. So, the statute was deemed to only regulate procedure; it did not affect the defendant's constitutional right to be informed of the nature of the charge. Id.; See also People v. Price, 126 Mich.App. 647, 652, 337 N.W.2d 614 (1983). The Court held that the amended information did not prejudice the defendant because it did not require a different defense or evidence, and it was not a surprise. Sims, supra at 482, 241 N.W. 247. Accordingly, the Court held that the trial court did not abuse its discretion by granting the amendment. Id.

This Court has consistently followed Sims, supra. A new offense may not be added to an information by a motion to amend. See, e.g., People v. Higuera, 244 Mich.App. 429, 444, 625 N.W.2d 444 (2001), People v. Weathersby, 204 Mich.App. 98, 103-104, 514 N.W.2d 493 (1994), People v. Stricklin, 162 Mich.App. 623, 633, 413 N.W.2d 457 (1987), Price, supra at 651, 337 N.W.2d 614 ("It is well settled that the statute does not permit an amendment for the purpose of adding a new offense."), and People v. White, 22 Mich.App. 65, 67, 176 N.W.2d 723 (1970). Further, an amendment must not cause unacceptable prejudice to the defendant through "unfair surprise, inadequate notice, or insufficient opportunity to defend." People v. Hunt, 442 Mich. 359, 364, 501 N.W.2d 151 (1993).

Here, it is patent that the purpose of the amendment of the information was solely to add a new offense. Defendant was first charged with making a false report of a felony to the police. She waived preliminary examination on that charge, which conferred jurisdiction on the circuit court and authorized the prosecutor to file an information. M.C.L. § 767.42(1); Hunt, supra at 362-363, 501 N.W.2d 151. Because the elements of the charged offense are completely different from the elements of the added charge of perjury in a court proceeding, M.C.L. § 767.76 is inapplicable. But MCR 6.112(H)¹ provides, in relevant part:

The court before, during, or after trial may permit the prosecutor to amend the information unless the proposed amendment would unfairly surprise or prejudice the defendant.

Our Supreme Court in Goecke, supra at 459-460, 579 N.W.2d 868, held that the rules of criminal procedure adopted existing law in 1989, including the law that a trial court may amend an information at any time before, during, or after trial, M.C.L. § 76.67, unless to do so "`would unfairly surprise or prejudice the defendant,'" quoting MCR 6.112(G), now MCR 6.112(H). Although the Court found it unnecessary to find the court rule inconsistent with the statute, the Court noted that as a rule of procedure, the court rule superseded the statute. Id. at 460 and n. 18, 579 N.W.2d 868, citing MCR 6.001(E).

In Goecke, the trial court granted the prosecutor's motion to add the offense of second-degree murder to the original information, although the magistrate had refused to bind defendant over to the circuit court on the charge. Id. at 450, 579 N.W.2d 868. The Court held that MCR 6.112(G) authorized the circuit court to review the magistrate's bindover decision upon motion of the prosecutor to amend the information. Goecke, supra at 458, 579 N.W.2d 868. The Court noted that the circuit court obtained jurisdiction when the magistrate filed a return with the circuit court on some of the charges following the preliminary examination. Id. at 458-459, 579 N.W.2d 868. Having concluded the circuit court had jurisdiction, the Court opined that the only legal obstacle to amending the information to reinstate the second-degree murder charge was whether the amendment would cause undue prejudice to the defendant because of "`unfair surprise, inadequate notice, or insufficient opportunity to defend.'" Id. at 462, 579 N.W.2d 868, quoting Hunt, supra at 364, 501 N.W.2d 151. But the Court held that "[w]here a preliminary examination is held on the very charge that the prosecution seeks to have reinstated, the defendant is not unfairly surprised or deprived of adequate notice or a sufficient opportunity to defend at trial...." Id. The...