People v. Stafford, Docket No. 91298

• Decision Date: 08 June 1988
• Docket Number: Docket No. 91298
• Citation: 423 N.W.2d 634,168 Mich.App. 247
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Susan STAFFORD, Defendant-Appellant. 168 Mich.App. 247, 423 N.W.2d 634
• Court: Court of Appeal of Michigan — District of US

Page 634

423 N.W.2d 634

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Susan STAFFORD, Defendant-Appellant.

Docket No. 91298.

168 Mich.App. 247, 423 N.W.2d 634

Court of Appeals of Michigan.

Submitted July 8, 1987.

Decided May 2, 1988.

Released for Publication June 8, 1988.

[168 MICHAPP 248] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Thomas S. Richards, Asst. Pros. Atty., for the People.

Faintuck, Shwedel & Wolfram by William G. Wolfram, Franklin, for defendant-appellant.

Before KELLY, P.J., and BEASLEY and EDWARDS, ^* JJ.

EDWARDS, Judge.

Following a jury trial held on December 20, 1985, on a charge of second-degree [168 MICHAPP 249] murder, the defendant was found guilty of the lesser offense of involuntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553. The circuit court sentenced her to a term of two to fifteen years. Defendant appeals as of right.

On July 22, 1985, defendant, Susan Stafford, originally charged with open murder, was bound over for trial on a charge of involuntary manslaughter. On August 19, 1985, the prosecutor moved in the circuit court to remand the case to the magistrate for further examination in order to call the medical examiner as a witness and introduce a knife as an exhibit. There was no allegation that the magistrate had abused his discretion in binding the defendant over on the charge of involuntary manslaughter. Further, the defendant had stipulated at the original examination that the cause of death was a knife wound.

After a hearing conducted on September 5, 1985, the circuit court granted the prosecutor's motion and a further examination was conducted on September 27, 1985. Dr. Bill Brooks testified that the cause of death was loss of blood due to a knife wound and he further described the path of the wound as being shallow, across the chest and just nicking the heart and lungs. The magistrate questioned the witness as follows:

"[THE COURT]: Does that tell you anything regarding how the wound or how the knife was thrust or any--does that tell you anything? Does it conjure up some thoughts in your mind?

"[THE WITNESS]: Specutively [sic] yes, I think that because the sharp edge was lateral, and because one who is right handed, and most of us are, would grasp a knife or nearly in that manner, that this was a sort of a hook, a looping, hook-type thrust."

At the conclusion of the examination, the magistrate[168 MICHAPP 250] bound the defendant over for trial on the charge of second-degree murder. In making the ruling, the magistrate relied on the case of People v. Oster, 67 Mich.App. 490, 241 N.W.2d 260 (1976), which the prosecutor had argued mandated a bindover on murder. The magistrate did not address Dr. Brooks' testimony in making his ruling.

The defendant's subsequent motion to quash the charge was denied by the court.

The defendant contends that it was error for the circuit court to remand the case for further examination. The defendant also argues that it was error for the magistrate to reinstate the murder charge. It is the defendant's position that the additional testimony did not make malice more likely and, in fact, the magistrate was not aided by Brooks' testimony nor was it relied on. Defendant contends that the prosecutor, being dissatisfied with the initial decision, merely wanted to reargue the case. This Court agrees.

The prosecutor is correct in saying that additional evidence was presented. But, aside from Brooks' speculation concerning how the wound was caused, nothing new was added to the proofs of the first examination. Additional evidence does not necessarily mean material evidence, especially here. The medical examiner was not able to state with certainty how the wound was caused; he was only able to "conjure up" scenarios, just as anyone could.

Further, the prosecutor's argument and the magistrate's ruling relied on People v. Oster, supra. The prosecutor argued that Oster mandated a bindover on murder in a case where defendant had produced a knife. The magistrate ruled that, based on Oster, the defendant was to be bound over on the murder charge. The emphasis was on the law, not the "new" facts of this particular case.

[168 MICHAPP 251] This Court held in Oakland Co. Prosecutor v. Forty-Sixth District Judge, 72 Mich.App. 564, 250 N.W.2d 127 (1976), that review of an individual act in a single case based on the judgment of the district court judge is by appeal. In that case the magistrate had dismissed the charges against the defendant and the prosecutor sought a writ of superintending control. That was not allowed. On the basis of M.C.L. Sec. 600.8342; M.S.A. Sec. 27A.8342, the proper remedy, when the parties disagree with a decision of the magistrate, is an appeal. People v. Nevitt, 76 Mich.App. 402, 256 N.W.2d 612 (1977).

Recently, this Court held in People v. Starlard, 153 Mich.App. 151, 154, 395 N.W.2d 41 (1986):

"Subjecting a defendant to repeated preliminary examinations violates due process if the prosecutor attempts to harass the defendant or engage in 'judge-shopping.' People v. Vargo, 139 Mich App 573, 578; 362 NW2d 840 (1984); People v George, 114 Mich App 204, 211-214; 318 NW2d 666, lv den 414 Mich 931 (1982). Unless the prosecutor presents new evidence, a second preliminary examination constitutes harassment violative of due process. Vargo, supra [139 Mich.App.] p. 578 ."

The Vargo Court stated:

"Among the factors to be considered in determining whether a due process violation has occurred are the reinstitution of charges without additional, noncumulative evidence not introduced at the first preliminary examination, the reinstitution of charges to harass and judge-shopping to obtain a favorable ruling." 139 Mich.App. 578, 362 N.W.2d 840.

Here, it cannot be said that the prosecutor introduced additional, noncumulative evidence. The cause of death from a knife wound was stipulated[168 MICHAPP 252] to at the first examination. This Court believes that defendant's due process rights were violated when she was ordered to withstand further examination. See People v. Walls, 117 Mich.App. 691, 324 N.W.2d 136 (1982); People v. Turmon, 128 Mich.App. 417, 340 N.W.2d 110 (1983).

The prosecutor relies on People v. Miklovich, 375 Mich. 536, 134 N.W.2d 720 (1965), and People v. Kennedy, 384 Mich. 339, 183 N.W.2d 297 (1971), and argues that the trial court had the authority to remand for further examination. It is important to note that the fact that the court had the authority to remand does not squarely address the issue whether the use of such authority denied defendant due process. Further, our Supreme Court in People v. New, 427 Mich. 482, 495, 398 N.W.2d 358 (1986), qualified the trial court's authority to remand, the condition being 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 dismissal).

The court has the option of dismissal or remand. Here, there was no question that the evidence was sufficient to show manslaughter, for which defendant was bound over. This Court does not read Miklovich or Kennedy to allow remand solely for the purpose of rearguing the case in order to enhance the offense on which defendant was originally bound over. It was not proper for the trial court to remand the case for a second examination.

We also agree with defendant that she was improperly bound over on the higher...