People v. Miller
| Decision Date | 28 December 2021 |
| Docket Number | 352283 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JEROME LAMAR MILLER, Defendant-Appellant. |
UNPUBLISHED
Wayne Circuit Court LC No. 19-005562-01-FH
Before: Cavanagh, P.J., and Servitto and M. J. Kelly, JJ.
Defendant appeals as of right his jury trial conviction of breaking and entering a vehicle, causing damage to the vehicle, MCL 750.356a (3). The trial court sentenced defendant, as a fourth habitual offender, MCL 769.12 to 46 months to 10 years' imprisonment. We affirm.
On or about 3:00 a.m., on July 8, 2019, Highland Park fire chief Kevin Coney was driving an unmarked police car on Woodward Avenue during his shift when he noticed a Ford vehicle in the parking lot of a mechanic's shop. Defendant was in the passenger seat of the vehicle. Deeming the situation suspicious, Coney turned his spotlight on the Ford as his vehicle approached Coney thereafter exited his vehicle and asked defendant if he was ok, at which point defendant exited the Ford, put his hands up, said he was fine, and then took off running. Coney called the Highland Park police for assistance and pursued defendant. When Highland Park police officers arrived, they located defendant nearby, lying in the grass next to a vacant house. The police arrested defendant and Coney and the police later observed that the driver's side window of the Ford had been broken out and the contents of the vehicle appeared to have been rummaged. Defendant was ultimately convicted of breaking and entering a vehicle causing damage to the vehicle ("breaking and entering").
On appeal, defendant raises several issues[1] with respect to his bindover after preliminary examination and the trial court's actions after the bindover. Specifically, defendant asserts that the district court deprived him of due process and his 14th amendment rights in binding him over for trial on the charge of receiving and concealing stolen property when there was no evidence presented to support this charge, and that the trial court erred and acted impartially in, unrequested, substituting its judgment for that of the district court regarding probable cause and the charge upon which to bind defendant over. Defendant further asserts that the prosecutor's filing of an amended information infringed upon his due process rights.
We review a trial court's decision to grant a motion to amend the information for an abuse of discretion. People v Unger, 278 Mich.App. 210, 221; 749 N.W.2d 272 (2008). We review a circuit court's decision to grant or deny a motion to quash a felony information de novo to determine if the district court abused its discretion in ordering bindover. People v Northey, 231 Mich.App. 568, 574; 591 N.W.2d 227 (1998).
The district court held a preliminary examination, after which it bound defendant over for trial on a single count of receiving and concealing stolen property (the Ford), MCL 750.535(7). At the first trial court pretrial, when it became apparent that the trial court and the prosecutor believed defendant had been bound over for trial on his original charge of breaking and entering, replacement defense counsel indicated that the charge had been reduced at the preliminary examination to receiving and concealing stolen property. The prosecutor stated that he would look into it and file "an amended information to reflect . . . the correct charges."
At the next pretrial, the prosecutor informed the trial court that defendant was, indeed, bound over on the charge of receiving and concealing stolen property. The prosecutor also stated, however, that because the magistrate never specifically spoke to the original charge of breaking and entering, it believed defendant had been bound over for trial on the original charge as well. Defense counsel disagreed, stating that defendant had been bound over for trial on only a single count of receiving and concealing stolen property. The trial court agreed with defense counsel and advised that the prosecutor could file an amended information.
Defense counsel thereafter moved to quash the information, arguing that the prosecution had failed to establish probable cause to believe that defendant received and concealed stolen property because there was no evidence that the car was stolen, and that the magistrate abused its discretion in binding defendant over for trial on that charge. Prior to a hearing on defendant's motion to quash, the prosecutor filed an amended information containing charges of both breaking and entering a vehicle with damage to the vehicle (MCL 750.356a) and receiving and stealing stolen property, that being the Ford, (MCL 750.535(7)).
At the hearing on defendant's motion to quash, the trial court determined that sufficient evidence had been presented at the preliminary examination to find probable cause for binding defendant over for trial on his original charge, but not for binding defendant over on the charge of receiving and concealing stolen property. The trial court thus entered an order granting defendant's motion to quash with respect to the receiving and concealing stolen property charge, but allowed the original charge of breaking and entering to proceed to trial.
The purpose of a preliminary examination is to determine whether a crime has been committed and if there is probable cause to believe that the defendant committed it. People v Laws, 218 Mich.App. 447, 451-52; 554 N.W.2d 586 (1996). At a preliminary examination, the magistrate's duty is to pass judgment on the weight and competency of the evidence, and on the credibility of the witnesses. People v King, 412 Mich. 145, 153; 312 N.W.2d 629 (1981). The magistrate is required to make a bindover decision after examination of the whole matter and should not discharge when the evidence conflicts or raises reasonable doubt of the defendant's guilt, since that presents the classic issue for the trier of fact. Id. at 154. The magistrate should determine, from the evidence presented, whether the crime charged in the warrant had been committed and whether there is probable cause to believe that the defendant committed it and, if not, "then he should not bind the defendant over on the offense charged but may bind him over on a lesser offense as to which he is so satisfied." Id. Thus, the magistrate may bind defendant over on the charged offense if, in its determination there is probable cause to believe a crime was committed and that defendant committed it, but may also bind defendant over on a lesser, uncharged offense.
First and foremost, it is abundantly clear from the preliminary examination transcript that the district court did not bind defendant over on the charge of breaking and entering. The magistrate explicitly found:
The Court finds and has heard the testimony and has found that the Defendant was in the vehicle. The Officer happened to come upon the vehicle, he ran from the scene. The vehicle had been ransacked, the window was broken. The Count finds probable cause that a crime was committed, that the Defendant was in possession of stolen property and probable cause that the Defendant committed that offense. The Defendant is bound over on that charge. Your next court date will be arraignment on the Information two weeks from today on July 30th at 9 a.m. and bond is continued (p 38).
The district court stated that defendant was in possession of stolen property, that there was probable cause that defendant committed that offense and that defendant was bound over on that charge. The trial court also found that
Additionally, the register of actions shows that on the July 23, 2019 preliminary examination date, the charge of breaking and entering was dismissed and that defendant was bound over to the reduced charge of receiving and concealing stolen property. The "Return to Circuit Court Felony," signed by the district court magistrate on July 23, 2019, also shows that defendant was bound over on an "amended lesser charge" of "R & C stolen property." Thus, while defendant was charged with breaking and entering, he was clearly and unquestionably bound over on only the charge of receiving and concealing stolen property.
Turning to defendant's arguments, we note that receiving or concealing stolen property is a cognate lesser included offense of breaking and entering. People v Adams, 202 Mich.App. 385, 387; 509 N.W.2d 530 (1993). "Cognate offenses share several elements, and are of the same class or category as the greater offense, but the cognate lesser offense has some elements not found in the greater offense." People v Mendoza, 468 Mich. 527, 532 n 4; 664 N.W.2d 685 (2003). Because a district court could bind defendant over for trial on an uncharged lesser offense so long as the evidence supported the charge, King, 412 Mich. at 153, we first address whether the evidence at preliminary examination did, in fact, support the district court's bindover.
The elements of receiving and concealing stolen property are:
(1) the property was stolen; (2) the value of the property met the statutory requirement; (3) defendant received, possessed, or concealed the property with knowledge that the property was stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty actual or constructive knowledge of the...
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