People v. Meadows

• Decision Date: 10 April 1989
• Docket Number: Docket No. 103160
• Citation: 175 Mich.App. 355,437 N.W.2d 405
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard MEADOWS, Defendant-Appellant. 175 Mich.App. 355, 437 N.W.2d 405
• Court: Court of Appeal of Michigan — District of US

Page 405

437 N.W.2d 405

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard MEADOWS, Defendant-Appellant.

Docket No. 103160.

175 Mich.App. 355, 437 N.W.2d 405

Court of Appeals of Michigan.

Submitted Jan. 10, 1989.

Decided Feb. 23, 1989.

Released for Publication April 10, 1989.

[175 MICHAPP 356] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., and Thomas M. Chambers, Asst. Pros. Atty., for the People.

Gerald M. Lorence, Detroit, for defendant-appellant on appeal.

Before MAHER, P.J., and CYNAR and GRIFFIN, JJ.

GRIFFIN, Judge.

Defendant appeals as of right from a jury verdict conviction of aiding and abetting a bank robbery, contrary to M.C.L. Sec. 750.531; M.S.A. Sec. 28.799. We affirm.

I

Defendant's conviction stems from a bank robbery of the NBD bank in Detroit on August 21, 1986. At the preliminary examination, the only [175 MICHAPP 357] testimony taken was from coparticipant Leon Wilson. On appeal, it is not disputed that sufficient evidence was produced through Wilson's testimony to show that the crime had been committed and that there was probable cause to believe it was committed by the defendant. Defendant, however, asserts that Michigan law requires the testimony of the complaining witness at every preliminary examination, and further, that the failure of the complainant (victim) to testify at the preliminary examination compels dismissal of all charges. We disagree as to both propositions.

II

M.C.L. Sec. 766.4; M.S.A. Sec. 28.922 states the following:

"The magistrate before whom any person is brought on a charge of having committed a felony shall set a day for a preliminary examination not exceeding 12 days thereafter, at which time a magistrate shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the accused, in regard to the offense charged and in regard to any other matters connected with the charge which the magistrate considers pertinent." (Emphasis added.)

In People v. Curtis, 95 Mich. 212, 215, 54 N.W. 767 (1893), the Supreme Court construed a predecessor statute containing nearly identical language as not requiring the testimony of complainant at every preliminary examination:

"We think this statute is directory as to the quantity of testimony to be taken. If it be given too literal a construction, then, in any case where there are no witnesses other than the complainant, the respondent cannot be held; so, if the complainant should die after the complaint, the [175 MICHAPP 358] proceedings must abate. What is intended by the language quoted is that the justice shall receive such testimony from the complainant and his witnesses as may be offered, and act upon it." (Emphasis added.)

The later decision People v. Matthews, 289 Mich. 440, 286 N.W. 675 (1939), lends further support to the position that this statute does not require the testimony of the complainant in every case, if other competent evidence is produced.

Common sense should be employed when construing a statute. It should be presumed that absurd results were not intended by the Legislature. As stated by this Court in People v. Otis Adams, 34 Mich.App. 546, 555, 192 N.W.2d 19 (1971):

"The sense of any statute is to be collected from its object and the nature of the subject matter. Particular phrases must be read in the light of the contextual setting. The import of such language is controlled accordingly....

"All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence."

If the construction advanced by the defendant were adopted by this Court, a statutory violation would be found if the complainant died before the preliminary examination or was otherwise unavailable to testify. Such unjust and absurd consequences were not intended by the Legislature. Additionally, there are many instances in which the complainant knows little or nothing about the crime and situations, such as the present, in which the complainant's testimony would be merely cumulative.

Accordingly, we hold that MCL 766.4; MSA [175 MICHAPP 359] 28.922 requires the examination at the preliminary examination of those witnesses offered in support of the prosecution. The testimony of the complainant is not necessarily required at every preliminary examination if sufficient other evidence is produced.

III

We also disagree with defendant's assertion that dismissal of all charges is a necessary consequence if the statute were violated. We agree with People v. Johnson, 427 Mich. 98, 116, 398 N.W.2d 219 (1986) (opinion by Boyle, J.), reh. den. 428 Mich. 1206 (1987), that errors in the sufficiency of proofs at the preliminary examination must be considered harmless if sufficient evidence is presented at trial to convict the defendant of the charges. In the instant case, since sufficient evidence was presented at trial to convict, the alleged error of failing to call the complainant at the preliminary examination was harmless. See generally M.C.L. Sec. 769.26; M.S.A. Sec. 28.1096 ¹ and MCR 2.613(A). ²

IV

Defendant Meadows next asserts that the trial [175 MICHAPP 360] judge abused her discretion by allowing a writing sample to be taken from witness Leon Wilson at trial. We disagree.

MRE 401 defines "relevant evidence":

" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (Emphasis added.)

Although relevant, evidence may be excluded by the trial judge if in his or her opinion its probative value is substantially outweighed by the danger of unfair prejudice or other factors:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403.

In the present case, it was the theory of the defense that the bank robbery note was written not by the defendant but by coparticipant Leon Wilson. In an effort to refute this defense, the prosecution requested Leon Wilson to write on a piece of paper the words which were written on the hold-up note. The jury was then allowed to compare Mr. Wilson's in-court writing with the hold-up note. This writing comparison procedure was objected to by the defense.

The in-court writing sample prepared by witness Wilson was certainly relevant under MRE 401 since it had a tendency to make more or less probable his alleged authorship of the hold-up note. The issue, however, is whether the lay writing comparison should have been excluded by the trial [175 MICHAPP 361] judge pursuant to MRE 403 on the grounds that its probative value was substantially outweighed by the danger of unfair prejudice.

Evidence which is prejudicial to a defendant is...