People v. Perry

• Decision Date: 27 October 2016
• Docket Number: Docket No. 328409.
• Citation: 317 Mich.App. 589,895 N.W.2d 216
• Parties: PEOPLE v. PERRY.
• Court: Court of Appeal of Michigan — District of US

317 Mich.App. 589

895 N.W.2d 216

PEOPLE

v.PERRY.

Docket No. 328409.

Court of Appeals of Michigan.

Submitted Oct. 11, 2016, at Grand Rapids.

Decided Oct. 27, 2016, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, D.J. Hilson, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.

State Appellate Defender (by Peter Jon Van Hoek) for defendant.

Before: K.F. KELLY, P.J., and O'CONNELL and BOONSTRA, JJ.

PER CURIAM.

A jury convicted defendant of two counts of uttering counterfeit notes, MCL 750.253 ; one count of false pretenses involving $1,000 or more but less than $20,000, MCL 750.218(4)(a) ; and one count of identity theft, MCL 445.65. Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to three concurrent prison terms of 2 to 7 ½ years and one term of 12 months in jail. Defendant now appeals as of right. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS

This appeal arises out of the exchange of counterfeit money during a Craigslist transaction, and the background facts involve the fraudulent cashing of a check in Grand Rapids, Michigan.

On July 27, 2014, Montay Lee participated in a basketball tournament in South Haven, Michigan, at which time his bag was stolen. His bag contained a variety of items, including his wallet, identification, and a $1,100 paycheck from the city of Grand Rapids. That same day, defendant cashed Lee's stolen check at Hall Street Party Store in Grand Rapids, Michigan. Wasif Hermiz, the owner of the party store, testified that defendant showed him Lee's identification when cashing the check. Additionally, because defendant was a new customer and because the check was for a significant amount of money, Hermiz took defendant's thumbprint and had him put it on the back of the check.

Michael Bourdon, the victim in the instant case, posted for sale on Craigslist a 1998 Pontiac Firebird for $2,500. On or around August 8, 2014, defendant and defendant's "mechanic," Marcus Lavar Smith, test-drove the Firebird. Defendant agreed to the $2,500 purchase price and handed Bourdon an envelope consisting of a $100 bill, several $50 bills, and 15 to 20 $10 bills. In exchange for the money, Bourdon filled out the title work, indicating that the purchaser was Montay Lee. The transaction occurred in Muskegon County.

Bourdon's coworker, Jordan Sohasky, testified that he witnessed the transaction. After defendant and Smith left, both Bourdon and Sohasky noted that the money looked funny. Bourdon determined that there were no holograms on some of the bills and Sohasky noticed that the bills were too thick. Bourdon immediately called the police. A police officer accompanied Bourdon to Comerica Bank where it was determined that all of the money was counterfeit except for the $100 bill. The Firebird was entered into the Law Enforcement Information Network as stolen.

A few hours later, defendant and another individual went to the Secretary of State's Office in Grand Rapids, Michigan. A worker testified that the individuals wanted to transfer a vehicle title and change an address. The worker first changed the address and put a change of address sticker on the back of a Michigan license that displayed the name "Montay Lee." The worker saw that the vehicle was identified as stolen. He went back into his office to contact the police and the individuals left before he returned. The Firebird was found approximately a half mile away from the Secretary of State's office.

In an interview with the police, defendant admitted to passing a check at the Hall Street Party Store, but he claimed that "somebody" offered him money to cash the check and that he did not know that the check was stolen. Defendant denied knowledge of the passing of counterfeit money in Muskegon County and denied being part of that transaction. There was no physical evidence connecting defendant to the counterfeit money.

The jury found defendant guilty of identity theft, two counts of uttering counterfeit notes, and one count of false pretenses. Defendant was sentenced as previously stated. He now appeals as of right.

II. AMENDMENT OF INFORMATION

Defendant argues that the trial court erred by permitting the prosecution to amend the information during trial to add a count of identity theft because (1) the amendment was an unfair surprise, and (2) it was the product of prosecutorial vindictiveness. We disagree.

This Court reviews for an abuse of discretion a trial court's decision to grant or deny a motion to amend an information. People v. McGee, 258 Mich.App. 683, 686–687, 672 N.W.2d 191 (2003). The trial court abuses its discretion when its decision falls outside the range of principled outcomes. People v. Duenaz, 306 Mich.App. 85, 90, 854 N.W.2d 531 (2014).

First, defendant contends that the amendment of the information during the trial was an unfair surprise and unduly prejudicial because he was denied the opportunity to cross-examine witnesses on the charge. A trial court may amend an information at any time before, during, or after a trial, as long as the amendment does not unfairly surprise or prejudice the defendant. McGee, 258 Mich.App. at 686, 672 N.W.2d 191 ; MCR 6.112(H). A defendant may establish unfair surprise by articulating how additional time to prepare would have benefited the defense. See McGee, 258 Mich.App. at 693, 672 N.W.2d 191.

In this case, the prosecutor stated on the morning before trial that if the facts at trial supported it, she intended to move to amend the information to add a charge of identity theft for defendant's use of Lee's information when he attempted to purchase the car from Bourdon. On the second day of trial, over defense counsel's objection, the trial court granted the prosecution's motion to amend the information to include the additional charge. The trial court ruled that the charge was not a surprise because it involved facts that had already been presented and that defense counsel "ha[d] known about that threat for a while." Because defendant knew of the prosecution's intent to amend the charges in this case before trial started, he has not demonstrated that the amendment during the trial itself denied him the opportunity to cross-examine the witnesses on the new charge. Defendant was aware of the possibility of an identity-theft charge before the witnesses were examined.

Second, defendant contends that the amendment was the result of prosecutorial vindictiveness and a punishment for his decision to exercise his right to trial. The prosecution violates a defendant's right to due process by punishing him or her for asserting protected statutory or constitutional rights. People v. Ryan, 451 Mich. 30, 35, 545 N.W.2d 612 (1996). However, the imposition of additional charges that are within the prosecution's charging discretion does not constitute sufficient evidence from which to presume vindictiveness. People v. Jones, 252 Mich.App. 1, 8, 650 N.W.2d 717 (2002). If the prosecution brings greater charges after a defendant's failure to plead guilty, "the defendant must affirmatively prove actual vindictiveness in order to establish that there was a denial of due process." Id. Actual vindictiveness requires objective evidence of hostility or a threat that suggests that the defendant was deliberately penalized for exercising his or her rights. Ryan, 451 Mich. at 36, 545 N.W.2d 612.

In this case, defendant relies on the timing of the prosecution's decision to seek an additional charge as evidence that the prosecution's decision was vindictive. The timing in this case was not evidence of presumptive vindictiveness. See Jones, 252 Mich.App. at 8, 650 N.W.2d 717. The record contains no indication of actual vindictiveness on the part of the prosecution. The record is absent of any expressed hostility or threats that suggest that the prosecution deliberately penalized defendant for exercising his right to trial. We conclude that the trial court did not abuse its discretion by granting the prosecution's motion to amend the information in this case.

III. PHOTOGRAPHIC LINEUP

Defendant argues that the trial court should have suppressed evidence of his identification in the photographic lineup because he was in custody at that time and should have received a corporeal lineup attended by counsel. We disagree.

"This Court reviews de novo questions of law relevant to a motion to suppress [an identification]." People v. Hickman, 470 Mich. 602, 605, 684 N.W.2d 267 (2004).

At trial, defendant argued that he was denied the right to counsel because he was in custody and adversarial criminal proceedings had been initiated against him when the photographic lineup occurred. Defendant further argued that the Kent County case for which he was in custody was related and intertwined with the instant case and that the right to counsel attached upon his arrest on September 22, 2014. Defendant noted that the Kent County case was not initiated until the Grand Rapids Police Department was informed that a bad check was cashed in its jurisdiction. Defendant argued that the police could have easily determined that defendant had been arrested and was in custody. The trial court disagreed and denied defendant's motion to suppress.

On appeal, defendant relies on People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), overruled by Hickman, 470 Mich. 602, 684 N.W.2d 267, arguing that the trial court erred and that he was entitled to a corporeal identification with counsel present instead of the photographic identification procedure. In Anderson, the Michigan Supreme Court ruled that when a suspect is in custody, investigators should not use a photographic identification procedure, and that a defendant has as much right to counsel during a photographic identification as he or she would have during a corporeal identification. Anderson, 389 Mich. at 186–187, 205 N.W.2d 461. But the Michigan Supreme Court subsequently overruled Anderson, stating that a defendant's right...