People v. Weathersby

• Decision Date: 07 March 1994
• Docket Number: Docket No. 143440
• Citation: 204 Mich.App. 98,514 N.W.2d 493
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Cordell WEATHERSBY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 493

514 N.W.2d 493

204 Mich.App. 98

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Cordell WEATHERSBY, Defendant-Appellant.

Docket No. 143440.

Court of Appeals of Michigan.

Submitted Oct. 18, 1993, at Lansing.

Decided March 7, 1994, at 9:55 a.m.

Released for Publication April 27, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Tony D. Tague, Pros. Atty., and Kevin A. Lynch, Sr. Asst. Pros. Atty., for the People.

Lawrence J. Emery, Lansing, for defendant.

Before MICHAEL J. KELLY, P.J., and SHEPHERD and MURPHY, JJ.

MICHAEL J. KELLY, Presiding Judge.

Defendant was convicted of conspiracy to accept money contingent on uncertain event, M.C.L. § 750.157a; M.S.A. § 28.354(1); M.C.L. § 750.301; M.S.A. § 28.533, following a five-day jury trial. More specifically, he was convicted of involvement in an illegal numbers operation in Muskegon and Kent counties. Defendant subsequently pleaded guilty of being an habitual offender, second offense, M.C.L. § 769.10; M.S.A. § 28.1082, and was sentenced to 3 to 7 1/2 years' imprisonment. Defendant appeals as of right. We affirm.

I

Defendant challenges the validity of his indictment. His argument is twofold: First, he claims that his original indictment of January 15, 1991, was substantively deficient and that the amended indictment of June 12, 1992, was ineffective to cure the defect. Second, defendant argues that the indictment was invalid because the grand juror's authority had expired before the original indictment was issued.

Pursuant to M.C.L. § 767.45(1); M.S.A. § 28.985(1), an indictment or information must contain the following:

a. The nature of the offense stated in language which will fairly apprise the accused and the court of the offense charged.

b. The time of the offense as near as may be....

c. That the offense was committed in the county or within the jurisdiction of the court.

The Supreme Court has defined the test for sufficiency of an indictment as follows:

"Does it identify the charge against the defendant so that his conviction or acquittal will bar a subsequent charge for the same offense; does it notify him of the nature and character of the crime with which he is charged so as to enable him to prepare his defense and to permit the court to pronounce judgment according to the right of the case?" [People v. Adams, 389 Mich 222, 243; 205 NW2d 415 (1973), quoting People v. Weiss, 252 App Div 463, 467-468; 300 NYS 249 (1937), rev'd on other grounds 276 NY 384; 12 NE2d 514 (1938).]

The original indictment of January 15, 1991, read as follows:

The Muskegon County Grand Juror charges that George Carl [sic] Weathersby, on or about January 1, 1989, until on or about July 31, 1990, in the County of Muskegon, State of Michigan, did unlawfully conspire, combine, confederate and agree with certain other unnamed coconspirators to violate the Gambling Laws of the State of Michigan; contrary to MCL 750.157a(b); MSA 28.354(1)(b) and against the peace and dignity of the People of the State of Michigan.

We agree with defendant that this indictment did not fulfill the requirements set forth in Adams, supra, and M.C.L. § 767.45(1); M.S.A. § 28.985(1). The indictment failed to specify which of Michigan's gambling laws defendant was charged with conspiring to violate. See People v. Brown, 299 Mich. 1, 2, 299 N.W. 784 (1941). The phrase "gambling laws" is a general term that could prohibit a wide range of activities. The use of the term in the indictment did little to help defendant prepare a defense. See People v. Westerberg, 274 Mich. 647, 648-650, 265 N.W. 489 (1936).

However, the original indictment was amended on June 12, 1991. Thus, the issue becomes whether the amendment was effective to cure the deficiency in the original indictment. We believe it was.

The amended indictment read as follows:

The Muskegon County Grand Juror charges that George C. Weathersby, on or about January 1, 1989 until on or about July 31, 1990, in the County of Muskegon, State of Michigan, did unlawfully conspire, combine, confederate and agree with certain other coconspirators, to-wit: Oliver Heayes, a caller identified as "910", a caller identified as "Sam", a caller identified as "A-5", a caller leaving the message "It's twelve books and the amount is $6.00, that's including overlooks" and the writers of some seventy-five various bet slips dated July 31, 1991, to violate the gambling laws of the State of Michigan; contrary to MCL 750.157a(b); MSA 28.354(1)(b) and MCL 750.301; MSA 28.533 and against the peace and dignity of the People of the State of Michigan.

This indictment meets all sufficiency requirements. The next step is whether the amendment was authorized under Michigan law. We believe it was.

Pursuant to M.C.L. § 767.75; M.S.A. § 28.1015, no indictment may be quashed, set aside, or dismissed on the grounds that it contains an "uncertainty." Rather, if a court is of the opinion that an uncertainty exists, it may order an amendment of the indictment to cure the defect. M.C.L. § 767.76; M.S.A. § 28.1016 provides in relevant part:

The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury.

Michigan law clearly contemplates amending indictments for substantive defects without interrupting the trial process, at least where the amendment would not prejudice the defendant. Cf. People v. Hunt, 442 Mich. 359, 501 N.W.2d 151 (1993).

In this case, the prosecutor filed a bill of particulars and moved to amend the indictment on June 7, 1991. He informed the trial judge of the motion before voir dire. The judge called a short recess to allow everyone to read the amended indictment and then proceeded to overrule defendant's objection to the amendment. This ruling was proper. The amendment had not added a new offense, but rather merely had rendered specific what had previously been stated in general terms. Because no new offense was charged, defendant's right to receive a preliminary examination on the new indictment was not violated. See People v. Price, 126 Mich.App. 647, 653, 337 N.W.2d 614 (1983). The nature of the evidence introduced at defendant's preliminary examination, four months before trial, had clearly indicated that the crime charged was conspiracy to run an illegal numbers operation. The amended indictment merely reiterated what was already known to defendant through other procedures. No new evidence was needed to support the charge in the amended indictment. The amendment did not prejudice defendant, but rather was a proper and effective means of curing the substantive deficiency in the original indictment.

II

Defendant's second basis for challenging the validity of the indictment is procedural. He argues that the grand juror's authority expired on November 23, 1990, before either of the two indictments against defendant were issued.

In this case, the grand juror was a circuit court judge appointed on May 23, 1990, the date of entry of the order for judicial investigation. Pursuant to M.C.L. § 767.4; M.S.A. § 28.944, grand juror inquiries and proceedings are limited to six months unless the court allows an extension for an additional period not to exceed six months. In its May 23, 1990, order, the circuit court ordered the grand juror to convene on July 16, 1990, for the purpose of conducting a judicial investigation into defendant's activities. The court did not grant an extension of the investigation beyond the statutory six-month period.

The people argue that the six-month period did not begin until July 16, 1990, which would place the January 15, 1991, indictment within the statutory period. We disagree with the people's interpretation of the six-month statutory provision and agree with defendant's contention that the period commenced with the May 23, 1990, order authorizing the investigation by the grand juror. Accordingly, we conclude that the indictments were not issued within the six-month period. However, we further conclude that the expiration of the statutory period did not invalidate the indictments.

The commencement date of a grand juror's six-month term presents an issue of first impression in Michigan. The applicable statutory provision, M.C.L. § 767.4; M.S.A. § 28.944, implicitly describes the six-month period as a period of "inquiry or proceeding" without defining those terms. The federal courts employ the date of impanelment as the commencement date of a grand jury, relying on the authority of the grand jury to take action as the decisive factor. United States v. Armored Transport, Inc., 629 F.2d 1313, 1316-1317 (C.A.9, 1980), cert. den. 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981).

We believe that the May 23, 1990, order of the circuit court is analogous to the impanelment of a grand jury and that Michigan statutory law supports the use of federal principles by analogy. Under M.C.L. § 767.3; M.S.A. § 28.943, a grand juror is authorized to conduct an inquiry upon the issuance of the order appointing the grand juror. The same provision indicates that the purpose of the grand juror is to hear testimony and gather evidence, and it authorizes the grand juror to take preparatory actions for hearing testimony, such as the summoning of witnesses by subpoena. The term "proceeding" is broad...