People v. Paille, 29

• Decision Date: 17 July 1970
• Docket Number: No. 29,29
• Citation: 383 Mich. 621,178 N.W.2d 465
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert PAILLE, David Senak and Melvin Dismukes, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 465

178 N.W.2d 465

383 Mich. 621

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert PAILLE, David Senak and Melvin Dismukes, Defendants-Appellees.

No. 29.

Supreme Court of Michigan.

July 17, 1970.

William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for plaintiff-appellate.

Boesky & Lippitt, by Norman L. Lippitt, Robert J. Sandler, Detroit, for defendant-appellees, Paille and Senak.

Before the Entire Bench, except T. G. KAVANAGH, J.

KELLY, Justice.

During the July, 1967, Detroit riot a report of sniping caused State troopers, members of the National Guard, and Detroit police officers to converge at the Algiers Motel, located on Woodward Avenue, Detroit, Michigan.

Defendants Robert Paille and David Senak, who were members of the Detroit police department, and Melvin Dismukes a private guard, responded to the call to stop the sniping at the motel. On August 23, 1967, all were charged in a warrant with conspiring with one Ronald August to commit a legal act in an illegal manner, contrary to P.A.1966, No. 296. ¹

The legal act and the illegal manner in which the People claim it was carried out are described in the People's brief as follows:

'The record transcript proves that the defendants in their effort to put an end to the sniping entered the motel to locate the sniper and his weapon. In seeking informative leads they herded the occupants of the motel from their rooms into a line-up facing a wall and then engaged in a course of conduct which unmistakably exhibited and demonstrated a concert of action to commit and condone the commission of unlawful acts.

'The People do not deny that the avowed purpose of the defenders Robert Paille, David Senak and Melvin Dismukes, who was a private guard stationed on duty nearby the motel, was to investigate information of shooting in the area. Witnesses testified that shots were fired at them when they looked out of the window. Once inside the building, however, the defendants' conduct in coercing and beating the occupants of the motel to volunteer information the victims apparently did not possess or refused to divulge became unlawful, and it is the position of the People herein that an agreement with knowledge and participation can be made out among the defendants to assist each other in the use of violence and abusive conduct upon others to complete their investigation.'

Hon. Frank G. Schemanske, Judge of the Recorder's Court, City of Detroit, filed a lengthy opinion and order, which was divided into five parts: 1) 'Introductory'; 2) 'Legal Aspects'; 3) 'Facts'; 2) 'Witnesses,' and 5) 'Conclusion.'

Referring to the State's witnesses, occupants of the motel when the defendants entered, Judge Schemanske said:

'These residents despite evidence rehearsing gave different accounts of some of the same incidents. * * *

'However, in spite of their eagerness their incredible testimony could not possibly convince a disinterested arbiter of facts of their good faith or their truthfulness. Their calculated prevarication to the point of perjury was so blatant as to defeat its object.'

Judge Schemanske concluded his opinion as follows:

'After careful review of the notes taken during the trial and of the testimony from the transcript, the court is unable to find any credible testimony supporting the theory of conspiracy between any two of the defendants or any defendant and co-conspirator August or even any conspiracy between these and any of the unnamed John Does who were never identified. * * *

'The court finds specifically no reason to believe that a violation of Public Act 296 of 1966 as here charged has been established; neither, had there been such establishment, could he have inferred from the testimony probable cause that the defendants were co-conspirators with each other or anyone else. For that reason the warrant is dismissed and defendants discharged.'

In an 'Opinion and Order Denying the People's Motion for Reinstatement and for Binding Defendants Over for Trial,' Hon. Gerald W. Groat, Judge of the Recorder's Court, stated:

'This case came before the undersigned acting as Presiding Judge, by way of a motion filed by the prosecutor, asking that the examination be reinstated. * * * 'The action is a novel one, filed as several such motions have recently been filed in our court, by the prosecutor, instead of appealing from the order of dismissal. There is no averment of newly discovered evidence. The People rest their case on the claim that the magistrate abused discretion; the defense counsel concede that this is the only issue to be decided. * * *

'That a magistrate may not be the judge of the credibility of the witnesses on examination is indeed a novel theory also. Yet it is on that theory that the People rest their case. * * * It is the duty of the magistrate to make his determination from the evidence. He can only make it and rest his conclusion on what he believes. He is not obliged to accept what to him is evident perjury in making his decision.

'One element of the crime alleged, conspiracy, was sustained by no credible evidence direct or inferable. That was the element of concerted action. In the court's opinion the action of the examining magistrate was correct.

'The motion to reinstate is denied.'

The People's application for leave to appeal was denied by the Court of Appeals 'for lack of merit in the grounds presented.'

Prior to filing application for leave to appeal to this Court, plaintiff's theory was that the examining magistrate must take all testimony at face value without passing upon the credibility of the witnesses.

In the brief filed in this Court, plaintiff asks the question:

'In determining the Competency of testimonial evidence in what precise manner and to what permissible extent may an examining magistrate weigh the Credibility of the witnesses produced before him?'

Plaintiff does not, however, answer the question but, claiming the magistrate abused discretion, states:

'Notwithstanding that the question of what facts are necessary to constitute a conspiracy is a question of law, it would appear from a study of the opinion of the magistrate that the Excessive weight placed on the credibility of witnesses completely obscured the primary issue whether from the entire record of the proceedings sufficient facts evidenced commission of the offense charged.' (Emphasis ours.)

In People v. Dellabonda (1933), 265 Mich. 486, at page 490, 251 N.W. 594, at page 595, the Court, stated:

'To authorize the examining magistrate to bind appellant over for trial there must have been good reason to believe appellant guilty of the crime charged. Some cases hold a Prima facie case against the accused must be made out. This court has not defined what constitutes probable cause, leaving each case to be determined upon its facts. Bouvier defines probable cause as, 'A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged.' 3 Bouvier's Law Dictionary (Rawle's 3d Rev.), p. 2728.'

In People v. Zeigler (1960), 358 Mich. 355, 100 N.W.2d 456, we held:

'Amplifying testimony later taken at trial cannot be considered in determining propriety of order denying an accused's motion to suppress evidence, it being necessary to determine probable cause from evidence taken at the preliminary examination.' (Syl. 3)

We quote with approval the following from the People's brief:

'This Honorable Court has held on numerous occasions that primarily the question of probable cause is for the consideration and determination of the examining magistrate, ...