People v. Potts

• Citation: 207 N.W.2d 170,45 Mich.App. 584
• Decision Date: 27 March 1973
• Docket Number: Docket No. 13001,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven R. POTTS, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 170

207 N.W.2d 170

45 Mich.App. 584

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven R. POTTS, Defendant-Appellant.

Docket No. 13001.

Court of Appeals of Michigan, Division No. 3.

March 27, 1973.

Released for Publication May 15, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., F. Hubert Mather, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and FITZGERALD and VanVALKENBURG, JJ.

HOLBROOK, Presiding Judge (For Affirmance).

Steven R. Potts, defendant herein, pled guilty to robbery armed contrary to M.C.L.A. § 750.529; M.S.A. § 28.797, and was sentenced to a term of 15 to 25 years in prison.

Defendant was originally arrested and charged with the offenses of kidnapping and unlawfully driving away an automobile. After a preliminary examination defendant was bound over to circuit court for trial.

After proper order in the circuit court, defendant was examined on March 2, 1971, by a psychiatrist, Dr. Elizabeth D. Kane, who recommended commitment to a diagnostic facility for 60 days. The court ordered him committed on March 9, 1971, and he was returned from the forensic center on May 7, 1971. At a hearing held in circuit court on May 28, 1971, defendant was determined to be competent to stand trial.

On June 1, 1971, the circuit court judge informed the prosecutor that he had reviewed the file, including the preliminary examination and psychiatric report, and believed there was a strong possibility that defendant had raped Mrs. Rafferty. The prosecutor stated it had been suspected and that he would check into it.

On June 3, 1971, the prosecutor appeared in court and moved that the case be remanded to district court for further examination. Defense counsel objected to the remand on the grounds that it would constitute an unreasonable delay in the proceedings. The trial court granted the motion and ordered that the matter be remanded back to the district court for further examination. The trial court at that hearing orally ordered that defendant be charged with rape, and that the charge of unlawfully driving away an automobile be changed to armed robbery, and if the evidence was sufficient that the defendant be bound over to circuit court on those charges. The written order of remand did not include the oral order concerning the charges.

On June 29, 1971, a second preliminary examination was held which disclosed that a rape had occurred and further that an armed robbery had taken place. Defendant was bound over to circuit court on charges of kidnapping, armed robbery, and rape.

On August 17, 1971, defendant pled guilty to armed robbery and the other two charges upon motion of the prosecuting attorney were dismissed by proper order.

Defendant appeals and asserts the trial court erred in two particulars which we consider in proper order.

I

(a) The trial court improperly exercised a prosecutorial function in determining what charges should be brought against defendant, and (b) the trial court improperly used the preliminary examination to determine that additional charges should be brought against defendant.

(a) The suggestion by the circuit judge that an additional charge might be brought took place on June 1, 1971, four days after a hearing held in the trial court for the purpose of determining competency of defendant to stand trial. The oral order of the trial court that additional charges should be brought against defendant took place on June 3, 1971, at the hearing on the motion of the prosecutor to remand the case to the district court for a further preliminary examination.

Defendant cites the case of Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 683--684, 194 N.W.2d 693 (1972), as authority for the rule that a judge may not interfere with the prosecutorial function in determining the charge or charges to be brought against a defendant, Viz.:

'The sole question here is whether the trial judge on her own initiative has the power to determine, over the objection of the prosecutor, under which of two admittedly applicable statutes a prosecution will be instituted, where neither statute represents a lesser included offense of the other.

'The prosecutor is a constitutional officer whose duties are as provided by law. Const.1963, art. 7, § 4. Lawrence Scudder & Co. v. Emmet County, 288 Mich. 181, 184, 284 N.W. 691 (1939); Schneider v. Shepherd, 192 Mich. 83, 88, 158 N.W. 182 (1916). The conduct of a prosecution on behalf of the People by the prosecutor is an executive act, People v. Dickerson, 164 Mich. 148, 153, 129 N.W. 199 (1910).

'We have held in the past that the prosecutor is the chief law enforcement officer of the county and has the right to exercise broad discretion in determining under which of two applicable statutes a prosecution will be instituted. People v. Lombardo, 301 Mich. 451, 453, 3 N.W.2d 839 (1942); People v. Thrine, 218 Mich. 687, 690--691, 188 N.W. 405 (1922); People v. Mire, 173 Mich. 357, 364, 138 N.W. 1066 (1912). See also People v. Graves, 31 Mich.App. 635, 636, 188 N.W.2d 87 (1971); People v. Eineder, 16 Mich.App. 270, 271, 167 N.W.2d 893 (1969); People v. Byrd, 12 Mich.App. 186, 162 N.W.2d 777 (1968), concurring opinion of Levin, J. at 197, particularly footnote 7, 162 N.W.2d 777; People v. Ryan, 11 Mich.App. 559, 561, 161 N.W.2d 754 (1968).

"Acting as prosecutor, judge and jury' is a common description of an unfair and unlawful operation. However innocently and mistakenly, this is what happened in this case. The trial judge assumed the right over the objection of the prosecutor to determine under which of two applicable statutes a prosecution will be instituted. As already indicated such determination is an executive function and a part of the duties of the prosecutor. For the judiciary to claim power to control the institution and conduct of prosecutions would be an intrusion on the power of the executive branch of government and a violation of the constitutional separation of powers. Const.1963, art. 3, § 2. It also violates our fundamental sense of fair play.

'We therefore hold that the trial judge acted without authority in amending the information over the objection of the prosecutor in this case.'

This case clearly delineates the separation of executive and judicial powers as relating to criminal charges to be brought against a defendant.

It is settled law that the prosecuting attorney is a part of the executive arm of government and has the exclusive right to determine what charge or charges are to be brought against a defendant. Further, when a trial judge exercises that prerogative of determining the charge to be brought against the defendant over the objection of the prosecuting attorney, it is reversible error. Other cases dealing with this issue in addition to Genesee Prosecutor v. Genesee Circuit Judge, Supra, are People v. Lombardo, 301 Mich. 451, 453, 3 N.W.2d 839 (1942); People v. Mire, 173 Mich. 357, 364, 138 N.W. 1066 (1912); United States v. Cox, 342 F.2d 167 (CA 5, 1965), cert. den., 381 U.S. 935, 85 S.Ct 1767, 14 L.Ed.2d 700 (1965); In re Grand Jury January 1969, 315 F.Supp. 662 (D. Md., 1970); Hassan v. Magistrates' Court of New York City, 20 Misc.2d 509, 191 N.Y.S.2d 238 (1959), leave den., 8 N.Y.2d 750, 201 N.Y.S.2d 765, 168 N.W.2d 102 (1960).

We point out that the instant case is not factually similar to Genesee Prosecutor, supra, for the following reasons: (1) this action is not brought by the Baraga County prosecutor asserting that the circuit judge assumed and took over the prerogatives and duties of the prosecuting attorney; (2) the prosecuting attorney herein made the motion for remand for further examination; (3) at the second examination the prosecutor authorized an amended warrant based upon an amended complaint charging the three offenses of rape, armed robbery, and kidnapping; (4) the preliminary examination testimony justified the binding of defendant over to circuit court for all three offenses; (5) the prosecuting attorney filed the amended information in circuit court charging in separate counts the three crimes; (6) the defendant pled guilty to armed robbery after a proper arraignment and the court signed a nolle prosequi as to the other two offenses; (7) the prosecuting attorney has not objected to any of the proceedings; (8) the trial judge did not add another charge to the information but remanded on motion of the prosecutor to the district court for further examination. We conclude that what the trial judge did in this case would have been reversible error if the prosecutor had objected to the proceedings; however, under the facts present in the instant case no reversible error occurred.

We note now that the defendant did not then nor does he now claim there was insufficient evidence to bind him over to circuit court on all three charges. Defendant made no objection to the proceedings when arraigned in circuit court on the amended information and voluntarily pled guilty to armed robbery. Defendant does not now claim that he is innocent of the charge to which he pled guilty, and he makes no allegation of coercion, lack of voluntariness, nor falsity of his statements to the trial court as to his participation and involvement in the armed robbery. The record discloses no miscarriage of justice in the acceptance of the plea of guilty. M.C.L.A. § 769.26; M.S.A. § 28.1096.

A similar situation to the instant case was present in People v. Norman, 9 Mich.App. 647, 158 N.W.2d 38 (1968), wherein the trial court granted defendant's motion to quash the original information. Subsequently, the prosecuting attorney added another count to the information. Defendant made no objection to the proceedings and the count was added; a preliminary examination was waived and defendant pled guilty. On appeal the defendant claimed that, after the original information was quashed, another count could not...