People v. Yeoman, Docket No. 165345

• Decision Date: 23 August 1996
• Docket Number: Docket No. 165345
• Citation: 554 N.W.2d 577,218 Mich.App. 406
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William E. YEOMAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 577

554 N.W.2d 577

218 Mich.App. 406

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William E. YEOMAN, Defendant-Appellant.

Docket No. 165345.

Court of Appeals of Michigan.

Submitted June 6, 1996, at Grand Rapids.

Decided Aug. 23, 1996, at 9:25 a.m.

Released for Publication Oct. 15, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.

William E. Yeoman, Kincheloe, in propria persona.

Before O'CONNELL, P.J., and SAWYER and G.R. CORSIGLIA, ^* JJ.

O'CONNELL, Presiding Judge.

Following a jury trial, defendant was convicted of inserting an instrument into a money changer with the intent to steal, M.C.L. § 752.811(a); M.S.A. § 28.643(101)(a), and being an habitual offender with three previous felonies. M.C.L. § 769.12; M.S.A. § 28.1084. Defendant was sentenced to four to fifteen years in prison. We affirm defendant's conviction, but remand for the purely administrative function of the preparation of a sentencing information report (SIR).

After midnight on September 15, 1992, police officer Robert Anderson observed Doug Lawrence using a money changer at a car wash. When Officer Anderson pulled into the car wash parking lot, Lawrence abruptly left the money changer, got into a vehicle driven by defendant, and rode away. After defendant's vehicle left the car wash, Officer Anderson noted that several dollars' worth of quarters had been left in the change tray of the money changer. Moments later, Officer Anderson observed defendant's vehicle drive past the car wash, as if its occupants were checking if Anderson had left. Officer Anderson left the car wash and pulled defendant's vehicle to the side of the road. During a subsequent search of the occupants and the vehicle, officers obtained 104 quarters, empty quarter rolls, scissors, cellophane tape, and dollar bills that had cellophane tape on the edges. Testimony at trial later established that bills altered in this manner could be used to defraud the type of money changers used at the car wash.

I

Defendant first claims that the trial court erred in failing to suppress the evidence found on defendant and in his vehicle after the vehicle was stopped by police. Defendant argues that the circumstances did not justify an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and, accordingly, that any evidence obtained incident to the stop must be suppressed. We will affirm the decision of the circuit court unless clearly erroneous, that is, unless this Court is left with the definite and firm conviction that a mistake has been made. People v. Christie (On Remand), 206 Mich.App. 304, 308, 520 N.W.2d 647 (1994).

In order for law enforcement officers to make a constitutionally proper investigative stop, the "totality of the circumstances as understood and interpreted by law enforcement officers, not legal scholars, must yield a particular suspicion that the individual being investigated has been, is, or is about to be engaged in criminal activity," and "[t]hat suspicion must be reasonable and articulable." People v. Nelson, 443 Mich. 626, 632, 505 N.W.2d 266 (1993). In analyzing the totality of the circumstances, common sense and everyday life experiences predominate over uncompromising standards, and law enforcement officers are permitted, if not required, to consider the modes or patterns of operation of certain kinds of lawbreakers. Id. at 635-636, 505 N.W.2d 266. "The question is not whether the conduct is innocent or guilty. Very often what appears to be innocence is in fact guilt, and what is indeed entirely innocent may in some circumstances provide the basis for the suspicion required to make an investigatory stop." Id. at 632, 505 N.W.2d 266.

When dealing with a vehicle, the reasonable and articulable suspicion must be directed at the vehicle. People v. Bordeau, 206 Mich.App. 89, 93, 520 N.W.2d 374 (1994). Fewer foundational facts are necessary to support a finding of reasonableness where a moving vehicle is involved than where a house or home is involved. Christie, supra at 308-309, 520 N.W.2d 647. Also, a stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search are conducted by the police. Id.

Although the events observed by Officer Anderson at the car wash may have had innocent explanations, they were also sufficient, under the circumstances, to reasonably arouse his suspicion. The previous night, Officer Anderson had been involved in the arrest of suspects who had defrauded vending machines by placing dollar bills into the machines and retrieving them after a selection had been made. Considering the totality of the circumstances--the time of night, the fact that it appeared that the money changer was not used for the purchase of car wash services, Lawrence's hurried retreat from the area when Officer Anderson arrived, the abandonment of quarters in the change tray, defendant's subsequent driving past the car wash, and Officer Anderson's previous experience with the "modes or patterns of operation [characteristic] of" this type of criminal behavior--we cannot say that we are left with the definite and firm conviction that the trial court made a mistake and clearly erred in ruling that Officer Anderson's suspicions were reasonable as perceived by a law enforcement officer. Nelson, supra. Therefore, finding no clear error, we affirm the court's conclusion that the incident in question was a proper Terry investigation stop.

Because the stop itself was proper, Officer Anderson was permitted to briefly detain the vehicle and make reasonable inquiries aimed at confirming or dispelling his suspicions. Nelson, supra at 637, 505 N.W.2d 266. During Officer Anderson's inquiry, he received information from another officer that the owner of the car wash had reported money missing from the money changer. This information, that a felony had been committed, coupled with the immediately preceding events giving the officer a reasonable suspicion that the occupants of the vehicle had been engaged in criminal activity, justified the arrest of defendant without a warrant. M.C.L. § 764.15(1)(c); M.S.A. § 28.874(1)(c); People v. Richardson, 204 Mich.App. 71, 79, 514 N.W.2d 503 (1994).

Once an officer has made a lawful arrest of the occupant of a vehicle, the officer may search the occupant, see People v. Daniel, 207 Mich.App. 47, 52, 523 N.W.2d 830 (1994), as well as the entire passenger compartment of the vehicle. People v. Catanzarite, 211 Mich.App. 573, 581, 536 N.W.2d 570 (1995). Therefore, the evidence seized during the search of defendant and the vehicle was properly obtained, and the trial court did not clearly err in failing to suppress it.

II

Next, defendant claims that the prosecution improperly bolstered the credibility of the primary police witness, thereby depriving defendant of a fair trial. During his opening statement, the prosecutor referred to Officer Anderson as a "good cop." Defendant failed to object to this remark at trial. Because an objection and concomitant curative instruction could have rectified any error and a failure to review this issue would not result in a miscarriage of justice, we decline to review further this allegation of error. People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994).

III

Next, defendant claims that he was prejudiced by the trial court's failure to compel witnesses on his behalf to testify during the suppression hearing. We review the trial court's decision regarding compulsory process for an abuse of discretion. People v. Loyer, 169 Mich.App. 105, 113, 425 N.W.2d 714 (1988).

Defendant contends that because the trial court failed to compel certain witnesses to testify on his behalf during the suppression hearing, he was unable to establish that the evidence against him was illegally obtained. Defendant submits that he was detained for far longer than was justifiable and that these witnesses were necessary to establish the timing of the incidents surrounding the stop, arrest, and search. However, because the investigating officer was diligently pursuing a means of investigation likely to quickly confirm or deny his suspicions, the detention, even if as long as forty-five minutes as defendant claims, was not improper. People v. Chambers, 195 Mich.App. 118, 121, 123, 489 N.W.2d 168 (1992). Therefore, the trial court did not abuse its discretion in declining to compel the witnesses to testify.

IV

Next, defendant claims that he was charged under the wrong statute. The specific charge to file against a defendant is a decision that rests in the prosecutor's discretion, and such decisions will be reviewed for an abuse of that discretion. People v. Ford, 417 Mich. 66, 93, 331 N.W.2d 878 (1982).

Defendant was charged under M.C.L. § 752.811; M.S.A. § 28.643(101), which states that a person shall be guilty of a felony if he "[e]nters or forces an entrance, alters or inserts any part of an instrument into any parking meter, vending machine dispensing goods or services, money changer or any other device designed to receive currency or coins with the intent to steal." Clearly, under the circumstances of this case, defendant's conduct--aiding and abetting in the insertion of doctored currency into a money changer in an attempt to defraud the machine--falls within the type of conduct prohibited by the statute.

Defendant submits that he should instead have been charged with the misdemeanor of use of a "slug" in a vending machine. M.C.L. § 752.801; M.S.A. § 28.471. Even assuming that M.C.L. § 752.801; M.S.A. § 28.471 applies to this offense, ¹ the prosecutor is the chief law enforcement officer of the county and has the right to exercise broad discretion in determining under which of two arguably applicable statutes a...