People v. Salazar

Decision Date17 May 1983
Docket NumberDocket No. 64259
Citation124 Mich.App. 249,333 N.W.2d 567
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Domingo Demetrio SALAZAR, Defendant-Appellee. 124 Mich.App. 249, 333 N.W.2d 567
CourtCourt of Appeal of Michigan — District of US

[124 MICHAPP 250] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judy A.H. Hughes, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

Before R.B. BURNS, P.J., and MacKENZIE and BROWN *, JJ.

PER CURIAM.

The people appeal by leave granted from a circuit court order which remanded defendant's case to district court. The circuit court affirmed the district court magistrate's finding of probable cause, but remanded for reconsideration of that finding in light of a possible abandonment defense.

Defendant was bound over on two charges of inciting, inducing, or exhorting another to commit murder, M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2). The magistrate found probable cause to believe the crimes were committed and that defendant committed them based on testimony which alleged that defendant[124 MICHAPP 251] proposed to have the preliminary examination witness, Isidro Rendon Martinez, Jr., kill a state police officer and a prosecution witness at some time between January, 1982, and December, 1982, by placing an explosive in the police officer's car. The testimony also showed an apparent reluctance on defendant's part to commit himself to the plan.

The case proceeded to the circuit court, where the judge expressly stated that he affirmed the magistrate's finding of probable cause. The circuit court then sua sponte ordered the case remanded to the district court so that the magistrate could "have the opportunity" to consider whether defendant had abandoned his efforts to incite to murder. This defense had only recently been extended to the crime of incitement in People v. Shafou, an unpublished opinion of the Court of Appeals (Docket no. 77-2695, decided February 22, 1979); lv. gtd. 406 Mich. 1012 (1979).

At issue in this case is the limited question of whether the circuit court had the authority to remand for consideration of the abandonment defense once the court affirmed the magistrate's findings of probable cause. We conclude that the circuit court lacked this authority.

In reviewing the magistrate's decision to bind over a defendant, the circuit court is to determine whether or not the magistrate abused his discretion in finding probable cause. People v. Doss, 406 Mich. 90, 100-101, 276 N.W.2d 9 (1979); People v. Lyles, 100 Mich.App. 232, 240, 298 N.W.2d 713 (1980). Remand is permitted only where the review indicates that the evidence did not "tend both to show the commission of the crime charged and probable cause for charging the accused with its commission", and is limited to permitting the [124 MICHAPP 252] prosecutor to remedy an insufficiency in proofs needed to establish probable cause. Genesee Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 119-120, 215 N.W.2d 145 (1974); People v. Miller, 62 Mich.App. 495, 499, 233 N.W.2d 629 (1975).

The Supreme Court's recent decision in People v. King, 412...

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6 cases
  • People v. New
    • United States
    • Michigan Supreme Court
    • December 30, 1986
    ...the Brady trilogy, 74 Colum L R 1435 (1974).14 People v. Miklovich, 375 Mich. 536, 539, 134 N.W.2d 720 (1965); People v. Salazar, 124 Mich.App. 249, 251-252, 333 N.W.2d 567 (1983).1 Slip op., p. 364.2 Thompson v. Louisville, 362 U.S. 199, 204, 80 S.Ct. 624, 628, 4 L.Ed.2d 654 (1960); Garner......
  • People v. Johnson
    • United States
    • Michigan Supreme Court
    • October 1, 1986
    ...Mich.App. 253, 257, 170 N.W.2d 899 (1969); see also People v. King, 412 Mich. 145, 154, 312 N.W.2d 629 (1981); People v. Salazar, 124 Mich.App. 249, 252, 333 N.W.2d 567 (1983).6 The cause in Cargen had been certified to the circuit court on the basis of an examination following the filing o......
  • People v. Taylor
    • United States
    • Court of Appeal of Michigan — District of US
    • June 21, 2016
    ...needed to establish probable cause. See People v. Miklovich, 375 Mich. 536, 538–539, 134 N.W.2d 720 (1965) ; People v. Salazar, 124 Mich.App. 249, 251–252, 333 N.W.2d 567 (1983). Further, a circuit court may remand the case if the defendant waived the right to a preliminary examination and ......
  • People v. Stafford
    • United States
    • Court of Appeal of Michigan — District of US
    • June 8, 1988
    ...that the evidence be insufficient to show the commission of the crime or the defendant's participation in it. See People v. Salazar, 124 Mich.App. 249, 333 N.W.2d 567 (1983) (where remand was limited to permit the prosecutor to remedy an insufficiency of proofs in lieu of The court has the ......
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