People v. Meredith, Docket Nos. 173161

• Citation: 209 Mich.App. 403,531 N.W.2d 749
• Decision Date: 20 March 1995
• Docket Number: 173162,Docket Nos. 173161
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Deon MEREDITH, Angela Lee Barnes, Walter Gilbert Moore, and Cecil Daster Peoples, Defendants-Appellees. (On Remand)
• Court: Court of Appeal of Michigan (US)

Page 749

531 N.W.2d 749

209 Mich.App. 403

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Deon MEREDITH, Angela Lee Barnes, Walter Gilbert Moore, and Cecil Daster Peoples Defendants-Appellees. (On Remand)

Docket Nos. 173161, 173162.

Court of Appeals of Michigan.

Submitted Nov. 1, 1994, at Detroit.

Decided March 20, 1995, at 9:50 a.m.

Released for Publication May 24, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Joyce F. Todd, Chief, Appellate Div., and John S. Pallas, Asst. Pros. Atty., for the people.

Ronald A. Pentz, Bloomfield Hills, for James D. Meredith.

Kenneth F. Sasse, Detroit, for Walter G. Moore.

Jeffrey R. Saunders, Birmingham, for Angela L. Barnes.

William Mitchell, III, Southfield, for Cecil D. Peoples.

Before TAYLOR, P.J., and HOLBROOK, and DODGE, ^* JJ.

ON REMAND

TAYLOR, Presiding Judge.

On remand from the Michigan Supreme Court, we consider the prosecutor's appeal as on leave granted. People v. Meredith, 444 Mich. 955, 514 N.W.2d 765 (1994). The prosecutor appeals from the circuit court's order affirming the district court's order dismissing conspiracy charges against defendants on the basis of improper venue. We reverse and remand.

Defendants were indicted by an Oakland County grand jury on charges of conspiracy to deliver 650 or more grams of cocaine, M.C.L. § 750.157a; M.S.A. § 28.354(1); M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i). Defendants Meredith, Barnes, and Moore were apprehended while defendant Peoples initially remained at large.

At a preliminary examination held for Meredith, Barnes, and Moore, defense counsel made a joint motion to change venue to either Saginaw County or Wayne County. The court deferred ruling on the motion until the conclusion of proofs.

Officer David Chase of the Auburn Hills Police Department testified that on August 23, 1991, he stopped a speeding vehicle as it traveled northbound on I-75 in Oakland County. The female driver identified herself as Lucretia Hodges, but was unable to produce identification or a driver's license. Officer Chase arrested the woman and searched the vehicle incident to the arrest. He discovered a brown paper bag containing two plastic bags of a white powdery substance in brick form that was later identified as cocaine.

Lavinia Peoples testified that she was the person stopped and arrested by Officer Chase. She stated that she had obtained the cocaine in Detroit from "Walt," who was identified as defendant Moore, and another person known as "Smoot." Ms. Peoples testified that she regularly traveled from Saginaw to Detroit to purchase cocaine for her cousin, Cecil Peoples, who would give her money to make the purchases. After arriving in Detroit she would call a beeper number. Shortly thereafter, Moore or Smoot, or both of them, would arrive, and together they would drive to another location where she would exchange the money for cocaine. She would then return to Saginaw via I-75 and deliver the cocaine to Cecil Peoples at a house belonging to his mother.

At the conclusion of proofs, the district court ruled that venue was improper in Oakland County because the evidence showed that the conspiracy was formed in Saginaw. The court reasoned that the act of driving through Oakland County did not in itself constitute a crime and that the act of driving through Oakland County was merely ancillary to the agreement. In orders entered on May 12, 1992, the district court dismissed the charges against Meredith, Moore, and Barnes on grounds of improper venue. In addition, the district court found that, even if venue were proper in Oakland County, the evidence presented was insufficient to establish probable cause to believe that defendants Barnes and Moore were involved in the conspiracy.

Subsequently, defendant Cecil Peoples was arrested and appeared before the district court for a preliminary examination. Peoples stipulated the use of the testimony taken in the earlier preliminary examination and waived his right to cross-examine the witnesses. The district court found that venue was improper and, in an order entered on January 12, 1993, dismissed the conspiracy charge against Cecil Peoples.

On appeal, the prosecutor argues that the court clearly erred in determining that venue in Oakland County was improper. Contrary to the district court's conclusion, the prosecutor asserts that the law regarding conspiracy has not changed and that the trial of a conspiracy case may be had in any jurisdiction where an overt act in furtherance of the conspiracy took place. People v. Ranney, 304 Mich. 315, 319-320, 8 N.W.2d 80 (1943). The prosecutor claims that an overt act in furtherance of the conspiracy occurred in Oakland County because Lavinia Peoples drove through Oakland County on her way to and from Detroit to purchase cocaine for distribution in Saginaw. We agree.

There is a distinction between a prosecutor's obligation to establish proper venue and the obligation to establish the elements of the charged offense. On the one hand, to establish the statutory offense of criminal conspiracy, a prosecutor must show a combination or agreement, express or implied, between two or more persons, to commit an illegal act or to commit a legal act in an illegal manner. M.C.L. § 750.157a; M.S.A. § 28.354(1); People v. Carter, 415 Mich. 558, 567, 330 N.W.2d 314 (1982), overruled in part on other grounds in People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984). An overt act by the defendant is not required to prove a conspiracy, because the essence of the offense is the agreement itself. People v. Atley, 392 Mich. 298, 311, 220 N.W.2d 465 (1974); People v. Cotton, 191 Mich.App. 377, 392-393, 478 N.W.2d 681 (1991).

On the other hand, while venue is a part of every criminal case that must be proven by the prosecutor, it is not an essential element of a crime. People v. Swift, 188 Mich.App. 619, 620, 470 N.W.2d 491 (1991). In accordance with the common law, a conspiracy case can be prosecuted in any jurisdiction in which an overt act occurred in furtherance of the conspiracy. Ranney, supra; People v. Pettijohn, 283 Mich. 108, 114, 277 N.W. 193 (1938); People v. Arnold, 46 Mich. 268, 275, 9 N.W. 406 (1881). We can find no basis for the proposition that the law regarding venue changed in Michigan with the enactment of the conspiracy statute. Thus, consonant with the longstanding rule regarding flexibility of venue in criminal conspiracy cases, see Carter, supra at 568-569, n. 4, 330 N.W.2d 314, we conclude that the common-law principle espoused in Ranney, Pettijohn, and Arnold remains viable: In a conspiracy case, venue is proper in any county in which an overt act was committed in furtherance of the conspiracy.

To establish proper venue in Oakland County, the prosecutor relies on M.C.L. § 762.8; M.S.A. § 28.851, which provides:

Whenever a felony consists or is the culmination of two or more acts done in perpetration thereof, said felony may be prosecuted in any county in which any one of said acts was committed.

The prosecutor reasons that, because Lavinia Peoples' act of traveling through Oakland County was done in furtherance of the conspiracy, venue was proper in Oakland County. We agree.

This statute merely requires that a defendant commit at least one act of a multiple act felony in the prosecuting jurisdiction. In order to establish proper venue, it is not necessary that the act constitute an essential element of an offense. People v. Jones, 159 Mich.App. 758, 761, 406 N.W.2d 843 (1987); People v. De Cair, 23 Mich.App. 438, 441, 178 N.W.2d 830 (1970). Because this is a conspiracy case, we construe the term "act" in M.C.L. § 762.8; M.S.A. § 28.851 to mean "overt act" as that term of art is applied in such cases. In Carter, supra at 568, n. 3, 330 N.W.2d 314 (citing the Model Penal Code, Comment, § 5.03, pp. 96-97 [Tentative Draft No. 10] an overt act was defined as "any act, no matter how insignificant...."

In this case, the evidence is clear that there was an overt act in furtherance of the conspiracy committed in Oakland County. Lavinia Peoples' act of driving through Oakland County in her journey between Saginaw and Detroit was an act in furtherance and perpetration of the conspiracy. People v Kirby, 42 Mich.App. 97, 99, 201 N.W.2d 355 (1972). Therefore, M.C.L. § 762.8; M.S.A. § 28.851 serves as the basis for placing venue in Oakland County and, specifically, in the 52nd District Court.

Because the district court's ruling concerning venue was erroneous as a matter of law, its dismissal of the charge against defendants Meredith and Peoples is reversed. The court expressly stated that, but for its ruling that venue in Oakland County was improper, it would have bound defendants Meredith and Peoples over to the circuit court as charged.

Our decision that venue in Oakland County is proper in this case requires us to address the second issue raised by the prosecutor in this appeal. With regard to defendants Moore and Barnes, the district court indicated that it would not have bound these two defendants over to the circuit court regardless of the propriety of venue in Oakland County. The prosecutor argues that the district court erred in determining that the evidence was insufficient to establish probable cause that defendants Moore and Barnes were participants in the conspiracy.

In assessing the circuit court's affirmance of the district court's decision with regard to probable cause on the part of Moore and Barnes, we must determine whether there has been an abuse of discretion on the part of the district court. People v. Cowley, 174 Mich.App. 76, 79, 435 N.W.2d 458 (1989). The standard of review in testing for an abuse of discretion is narrow. Id.

"In order to have an 'abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will,...