People v. Stewart
| Decision Date | 22 April 1974 |
| Docket Number | No. 1,16964,16963,Docket Nos. 16747,1 |
| Citation | 217 N.W.2d 894,52 Mich.App. 477 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Donald STEWART, Jr., Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ronnie W. REDRICK, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Wilburn J. HOLIDAY, a/k/a Wilbert Holliday, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Dominick R. Carnovale, Chief, Appellate Div., William L. Cahalan, Pros. Atty., Michael R. Mueller, Asst. Pros. Atty., for plaintiff-appellant.
Ira G. Harris, Detroit, for Donald Stewart.
Owen J. Galligan, Southfield, for Ronnie Redrick.
Richard Durant, Detroit, for Wilburn Holiday.
Before J. H. GILLIS, P.J., and HOLBROOK and Van VALKENBURG,* JJ.
Two defendants, charged with possession of heroin, M.C.L.A. § 335.341; M.S.A. § 18.1070(41), were bound over for trial after preliminary examination; the third was bound over after waiving preliminary examination. After the informations had been filed but before trial, over prosecutorial objection, the trial judge dismissed each case, stating:
'And if it's less than three grains, 1 according to my prior policy statement, the case is going to be dismissed without prejudice to your right to prosecute it as a misdemeanor.'
The court indicated that minor narcotic cases create docket control problems:
'But all I am telling you, and I am just repeating myself, I think essentially it's a problem of docket control in this court; essentially it's a problem of whether or not you are really getting to the bottom of the narcotic trade, by running through this parade of addicts. And that's exactly what we have been doing on this bench for the past six years. And I think it's time you did something differently.
We granted leave to appeal.
Appellant claims that dismissal over objection for 'nonlegal' reasons violates the doctrine of separation of powers. Const.1963, art. 3, § 2. First, he claims dismissal infringes on the prosecutor's executive function. The prosecutor, an official of the executive branch, 'alone makes the decision to bring a criminal charge,' a decision not subject to judicial review. The three-grain policy precludes charging a felony, a prohibited intrusion on the executive function. The prosecutor claims that Genesee Prosecutor v. Genesee Circuit Judge, 2 386 Mich. 672, 194 N.W.2d 693
Next, appellant contends that dismissal encroaches on legislative powers. To require that three grains of pure heroin be charged rewrites the statute, which currently makes possession of any amount a felony.
Appellees counter that the prosecution has confused the court's inherent authority to Dismiss defective charges with the prosecutor's discretion to initiate prosecution. People v. Karcher, 322 Mich. 158, 33 N.W.2d 744 (1948), and Barnard v. Judge of Superior Court, 199 Mich. 227, 165 N.W. 833 (1917), recognize the trial court's authority to dismiss after bind-over. Once the decision to prosecute is made, appellees argue, the process leading to acquittal or sentencing is fundamentally judicial. The power to dismiss must be independent of the executive. Unless that is true, the executive intrudes on judicial functions. Appellees further contend that Genesee I is distinct because the court added a count, exceeding its powers, rather than reduce the charge, a judicial prerogative. 3
We note at the outset that the trial court's instruction that the prosecutor might recharge these defendants as misdemeanants is specious. For, if the 'usable amount' rule is viable, the opportunity to recharge defendants as misdemeanants is simply not open. A mere charge reduction from felony to misdemeanor does not relieve the prosecutor from proving a remnant of 'usable amount,' since the constitutional guarantees apply to all offenses, not just felony-grade. If the amount is not sufficient to support a felony charge, a mere reduction to a misdemeanor does not make the quantity evidentially sufficient.
Further, M.C.L.A. § 335.341; M.S.A. § 18.1070(41) limits the misdemeanor grade of the offense of possession to certain controlled substances. Heroin is not listed therein. M.C.L.A. § 335.341(41)(4)(c), (d); M.S.A. § 18.1070(41)(4) (c), (d). Nor is an unlawful use and addiction a lesser offense of possession since 'use' is a distinct element not present in the higher charge. Cf. M.C.L.A. § 335.341(4); M.S.A. § 18.1070(41)(4), M.C.L.A. § 335.341(5); M.S.A § 18.1070(41)(5).
First, we consider the issue as appellant framed it: Does the trial court err reversibly by dismissing charges, over prosecutorial objection, for 'nonlegal' reasons?
In certain jurisdictions the prosecutor's consent to dismissals 'in furtherance of justice' is not required. Cases interpreting these statutes permit the judiciary to prevent prosecutions even on sufficient evidence. The A.L.I. Proposed Model Penal Code, § 2.12 (Proposed Official Draft, 1962), authorizes judicial acquittal of 'deminimis violations'. 4
Ex parte Barganier, 113 Tex.Cr.R. 495, 23 S.W.2d 365 (1929), in the minority, recognizes an inherent authority to dismiss over prosecutorial objection. Other states recognize the court's right, but only in the presence of a permissive statute, State v. Keep, 85 Or. 265, 166 P. 936 (1917); Noble v. United States, 190 F. 538 (CA 9, 1911); State v. Kiewel, 166 Minn. 302, 207 N.W. 646 (1926); State v. Anderson, 119 Tex. 110, 26 S.W.2d 174 (1930).
However, the weight of authority holds that dismissal is in the prosecutor's sole discretion (subject to the exception hereinafter stated). Dismissal over his objection, absent a permissive statute, is precluded. People v. McLeod, 25 Wend. (N.Y.) 483; 1 Hill (N.Y.) 377; 37 Am.Dec. 328 (1841); People v. Bennett, 49 N.Y. 137 (1872); People v. Beckwith, 2 N.Y.Crim.Rep. 29 (1884); Commonwealth v. Hart, 149 Mass. 7, 20 N.E. 310 (1889); Commonwealth v. Cundiff, 149 Ky. 37, 147 S.W. 767 (1912). Only where the evidence is insufficient has the court the power to dismiss over prosecutorial objection. Com. v. Cundiff, Supra; cf. People v. Gaige, 23 Mich. 93 (1871); State ex rel. Ronan v. Stevens, 93 Ariz. 375, 381 P.2d 100 (1963); San Miguel v. McCarthy, 8 Ariz.App. 323, 446 P.2d 22 (1968). Even, as in Michigan, when the judge may veto the prosecutor's decision to nolle prosequi, he lacks the power to dismiss on his own motion over prosecutorial objection. 5
Accordingly then, the factors cited, not related to evidentiary sufficiency, do not permit dismissal absent the prosecutor's consent. See E.g. State v. Sonneland, 80 Wash.2d 343, 351, 494 P.2d 469, 473 (1972), Hale J., dissenting; 69 A.L.R. 240 'Power of Court to Enter Nolle Prosequi or Dismiss Prosecution'; 21 Am.Jur.2d, Crim Law § 517. We read Genesee Prosecutor v. Genesee Circuit Judge, 6 391 Mich. 115, 215 N.W.2d 145 (1974), limiting a judge's power to accept guilty pleas over prosecutorial objection, as controlling. 7
Genesee II explains a magistrate's finding of probable cause is reviewable by a circuit judge. If the evidence does not show commission of the charged crime and probable cause for charging defendant, the judge may dismiss the charge. Barnard v. Judge of Superior Court, Supra. After preliminary examination, explains the Court in Genesee II, the prosecutor has the duty to examine all the facts and circumstances. If he decides not to file an information, he must file a statement indicating reasons in fact and law which the judge may thereafter review along with all the evidence. M.C.L.A. § 767.41; M.S.A. § 28.981. Genesee II explains the judge's function as follows:
'In deciding whether an examining magistrate acts properly in binding or in refusing to bind over an accused person, and in deciding whether a prosecuting attorney acts properly in deciding not to file an information or in proposing to nolle prosequi, discontinue or abandon a prosecution, the circuit judge reviews the action of the magistrate and prosecuting attorney on the record--the record made before the magistrate at the preliminary examination, and the prosecutor's statement of reasons and 'the evidence filed in the case'. Such review is a judicial review, searching the record to determine whether the magistrate's or prosecutor's decision is in accord with the law, facts and reason of the matter.
Genesee Prosecutor v. Genesee Circuit Judge, Supra, 391 Mich. p. 121, 215 N.W.2d p. 147. (Emphasis supplied.)
Although the trial judge lacked the benefits of Genesee II, we conclude, in the absence of statutory authorization, and in light of Genesee II, that he exceeded his authority in dismissing these cases to clear the docket and reduce expenses.
Did the trial judge abuse his discretion in finding the amounts charged evidentially insufficient to support...
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