People v. Tower

• Decision Date: 02 February 1996
• Docket Number: Docket No. 178856
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Allan TOWER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 752

544 N.W.2d 752

215 Mich.App. 318

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Allan TOWER, Defendant-Appellant.

Docket No. 178856.

Court of Appeals of Michigan.

Submitted Oct. 3, 1995, at Lansing.

Decided Feb. 2, 1996, at 9:10 a.m.

Released for Publication March 19, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James R. Reed, Prosecuting Attorney, and Mark E. Reene, Assistant Prosecuting Attorney, for the People.

David G. Myers, Caro, for defendant.

Before WAHLS, P.J., and SMOLENSKI and KAUFMAN, ^* JJ.

WAHLS, Presiding Judge.

Defendant's delayed application for leave to appeal was granted in this case to determine whether the circuit court erred in reinstating a common-law felony charge of obstruction of justice, M.C.L. § 750.505; M.S.A. § 28.773, previously dismissed by the district court at defendant's preliminary examination. We reverse.

The sole witness who testified at defendant's preliminary examination was Alva Hayes, a "turnkey" at the Tuscola County Sheriff's Department. Following defendant's waiver of preliminary examination in a separate case, Hayes handcuffed defendant and they began walking down the hallway outside the courtroom. As Hayes and defendant walked by Swoffer, ¹ defendant said to Swoffer, "You're making a mistake." Swoffer was scheduled to testify against Allen Zimmerman, who was incarcerated with defendant in cell A3 at the county jail, in Zimmerman's preliminary examination. Defendant was six to eight inches from Swoffer when this statement was made. Hayes returned defendant to the jail without further incident.

A defendant must be bound over for trial if evidence is presented at the preliminary examination that a crime has been committed and there is probable cause to believe that the defendant was the perpetrator. People v. Premen, 210 Mich.App. 211, 218, 532 N.W.2d 872 (1995). There must be some evidence from which each element of the crime may be inferred. Id. Probable cause that the defendant has committed the crime charged is established by a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that the accused is guilty of the offense charged. People v. Woods, 200 Mich.App. 283, 288, 504 N.W.2d 24 (1993). This Court's review of the circuit court's analysis of the bindover process is de novo. People v. McBride, 204 Mich.App. 678, 681, 516 N.W.2d 148 (1994). We must determine if the magistrate committed an abuse of discretion in determining whether there was probable cause to believe that the defendant committed the offense charged. Id.

Obstruction of justice is generally understood as an interference with the orderly administration of justice, and embraces a category of separate offenses. People v. Thomas, 438 Mich. 448, 455, 457, 475 N.W.2d 288 (1991). The coercion of witnesses is one of the more common examples of this crime. People v. Ormsby, 310 Mich. 291, 300, 17 N.W.2d 187 (1945). This crime is complete with the attempt through threats and coercion to dissuade a witness from testifying. People v. Coleman, 350 Mich. 268, 274, 86 N.W.2d 281 (1957). Whether the attempt succeeds in dissuading the witness is immaterial. Id., p. 281, 86 N.W.2d 281. Words alone may be sufficient to constitute the crime. Id., p. 280, 86 N.W.2d 281.

Here, there was not probable cause to believe that defendant intended to commit obstruction of justice. Accomplishment of this crime requires a specific intent. As the Court explained in Coleman, id., at p. 278, 86 N.W.2d 281:

If the acts of the accused, taken by themselves, are unambiguous, and cannot, in reason, be regarded as pointing to any other end than the commission of the specific crime in question, then they constitute a sufficient actus reus. In other words, his acts must be unequivocally referable to the commission of the specific crime. They must, as the late Sir John Salmond said, "speak for themselves." [Emphasis in original.]

In determining whether defendant's statement was "unequivocally referable" to the commission of obstruction of justice, it is helpful to compare the conduct here to that considered in other cases where the alleged threat was solely verbal. In Coleman, id., at p. 270, 86 N.W.2d 281. The defendant was charged with a violation of the small loan act. He discovered that one of the witnesses against him, William Jordan, was having an affair with a younger woman named Jefferson. Id. The defendant dispatched someone to find Jordan, and tell him that "if he [Jordan] didn't show up at the trial his wife wouln't [sic] find out that she [Jefferson] was running with him." ² Id. The specific threat and the reference to testifying at trial distinguish the facts in Coleman from this case.

Turning to other jurisdictions, in United States v. Jackson, 168 U.S.App.D.C. 198, 513 F.2d 456 (1975), the court found that the following phrases showed a reasonable tendency to intimidate a witness: "If I get a day for something I didn't do, I will [k]ill you and your father"; "I should drag you out on the street and whip you"; and "If I had my pistol, I'd shoot you right now." Similarly, in People v. Thomas, 83 Cal.App.3d 511, 513, 148 Cal.Rptr. 52 (1978), the defendant pointed to a woman who was about to testify against the defendant's mother, and stated "that he was going to kill my mother-fucking ass and he was going to fuck me up," and, "You put my mother in jail, you had my mother picked up." Finally, in People v. Berg, 224 Ill.App.3d 859, 860, 166 Ill.Dec. 691, 586 N.E.2d 649 (1991), the defendant approached a social worker who was scheduled to testify regarding the defendant in a child-custody hearing. The defendant asked the social worker, "Susan, why did you lie in court?" When the social worker denied that she had lied, the defendant stated, "You are going to be really sorry you said this. You are going to be really sorry." The defendant moved closer, clenched his fists, pointed to the social worker, and said, "You are going to pay for what you said, and you are going to pay soon." Id.

In contrast to those statements, the statement at issue here, standing alone, is innocuous. There is no evidence that defendant sought out Swoffer, or that any physical gesture showed that the statement was intended as a threat. Finally, the statement contains no reference at all to the fact that Swoffer was scheduled to testify in a criminal proceeding. We agree with the California court that stated that there is no "talismanic requirement that a defendant must say, 'Don't testify' or words tantamount thereto, in order to commit the charged offenses." Thomas, supra, p. 513, 148 Cal.Rptr. 52. Nevertheless, the totality of the circumstances here does not reasonably support an inference that defendant intended to dissuade Swoffer from testifying. Coleman, supra, p. 278, 86 N.W.2d 281.

This case is most analogous to People v. Nix, 131 Ill.App.3d 973, 87 Ill.Dec. 95, 476 N.E.2d 797 (1985). In Nix, the defendant was convicted under a statute that forbade the harassment of witnesses. The defendant encountered a woman in a restaurant who had testified against him in an earlier trial. The defendant grabbed the woman's arm and asked, "How is it going?" The woman entered the bathroom and locked the door. When the woman reemerged, the defendant again grabbed her arm, and stated, "I want to talk to you." Id., p. 974, 87 Ill.Dec. 95, 476 N.E.2d 797. The court found that the totality of the circumstances--the innocuous nature of the defendant's statements, the fact that the encounter occurred by chance, the fact that the encounter occurred in a public place, and evidence that the woman never cried out for help--raised a reasonable doubt regarding the defendant's intent. Id., p. 975, 87 Ill.Dec. p. 97, 476 N.E.2d at p. 799. Not only are each of the factors in Nix present here, ³ but the circumstances negating intent are even stronger here because there was no physical contact accompanying the allegedly threatening words.

Ordinarily, a defendant's intent is a question of fact to be inferred from the circumstances by the trier of fact. People v. Turner, 213 Mich.App. 558, 567, 540 N.W.2d 728 (1995). Here, however, the circumstances are not sufficiently strong in themselves to warrant a cautious person to believe that defendant intended to dissuade Swoffer from testifying at Zimmerman's preliminary examination. Coleman, supra, p. 278, 86 N.W.2d 281. Accordingly, the circuit court erred in reinstating the common-law felony of obstruction of justice. Woods, supra, p. 288, 504 N.W.2d 24.

Reversed. We do not retain jurisdiction.

RICHARD C. KAUFMAN, J., concurred.

SMOLENSKI, Judge (dissenting ).

I respectfully dissent.

The complaint and warrant charged that on or about September 10, 1993, defendant

did commit the crime of obstruction of justice by interference with the orderly administration of the law, obstructing or interfering with a proper and legitimate criminal investigation; contrary to M.C.L. § 750.505; M.S.A. § 28.773.

At defendant's September 24, 1993, preliminary examination, the sole witness to testify was Alva Hayes, a "turnkey" at the Tuscola County Sheriff's Department. Hayes' testimony can be summarized as follows: On the morning of September 10, 1993, defendant and Allen Zimmerman were both incarcerated in cell A3 of the A wing at the county jail. Defendant had previously been incarcerated in cell B5 of the county jail but had been transferred to cell A3 because "he wasn't getting along with the guy in B5." Zimmerman had never been incarcerated in the jail's B wing. Hayes did not know how long defendant and Zimmerman had been incarcerated together in cell A3.

Hayes removed defendant and Zimmerman from cell A3, had them get dressed, placed them in a holding cell, and subsequently brought them to the district court where defendant was scheduled to waive a preliminary examination in a...