People v. Yeotis, Docket No. 10538
| Decision Date | 24 July 1972 |
| Docket Number | Docket No. 10538,No. 2,2 |
| Citation | 41 Mich.App. 766,201 N.W.2d 111 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas C. YEOTIS, a municipal Judge for the City of Flint, Defendant-Appellant, and Joseph P. Cusenza, Intervenor-Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Ivan E. Barris, Fenton, Nederlander, Tracy, Dodge & Barris, Detroit, for defendant and intervenor.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., Paul G. Miller, Jr., Asst. Pros. Atty., for plaintiff-appellee.
Before LESINSKI, C.J., and BRONSON and TARGONSKI, * JJ.
The intervenor defendant, Joseph Cusenza, was charged on November 6, 1967, with having conspired in Flint, Michigan from August 28 through November 6, 1967, with Loren Jolly, Joseph Giacalone, Neil Breckenridge, Charles Kinsman, John Juarez, a/k/a Chino, and Caesar Montevecchio, a/k/a Chuck, to kill an murder Charles Thomas. M.C.L.A. §§ 750.316, 750.505; M.S.A. §§ 28.548, 28.773.
After a lengthy preliminary examination before defendant Judge Thomas C. Yeotis, the prosecuting attorney asked that Joseph Giacalone, Caesar Montevecchio, Joseph Cusenza, and Loren Jolly be bound over to circuit court for trial. The people moved that the case against Neil Breckenridge, Charles Kinsman and John Juarez be dismissed but asked that Charles Kinsman be bound over as a coconspirator although not a codefendant. The motion to dismiss the charge against Neil Breckenridge and Charles Kinsman was based in part on their cooperation with the police and the prosecuting attorney.
On March 7, 1968, Judge Yeotis rendered his opinion in which he bound over for trial Jolly, Giacalone, and Montevecchio as codefendants and Kinsman as a coconspirator. The court held that Cusenza, Breckenridge, and Juarez would not be bound over because they could not be connected with the conspiracy.
The people unsuccessfully sought an original writ of superintending control in this Court directing Judge Yeotis to find probable cause as to Cusenza and to bind him over for trial in circuit court. It was held that the complaint should have been directed initially to the circuit court. People v. Flint Municipal Judge, 383 Mich. 429, 175 N.W.2d 750 (1970).
The people then started over again with their writ for superintending control in the Circuit Court for Genesee County. On August 10, 1970, Judge Papp held that Judge Yeotis had failed to perform his legal duty in not weighing all the evidence presented, and thus clearly abused his discretion in not binding over Cusenza for trial. She remanded the case back to the magistrate with instructions that he perform his legal duty and bind over Cusenza for trial.
On September 14, 1970, a hearing on Cusenza's motion for rehearing was held. It was defense counsel's position that the recent case People v. Paille #2, 283 Mich. 621, 627, 178 N.W.2d 465 (1970), required a reversal of Judge Papp's decision of August 10, 1970. In that case the Court wrote:
'In determining whether the crime of conspiracy had been committed, the magistrate had not only the right but, also, the duty to pass judgment not only on the weight and competency of the evidence, but also the credibility of the witnesses.'
The motion for rehearing was denied, and Cusenza appealed to this Court which on December 18, 1970, dismissed the appeal for lack of jurisdiction, citing 1968 P.A. No. 116 and GCR 1963, 806.2(4).
On March 10, 1971, the Michigan Supreme Court granted leave to appeal and by order remanded to this Court as upon leave granted. 384 Mich. 815.
The sole issue is did the circuit court err in holding that the examining magistrate had abused his discretion in finding no probable cause that the intervenor defendant was guilty of conspiracy to murder?
Under the statute, M.C.L.A. § 766.13; M.S.A. § 28.931, the magistrate at the preliminary examination must determine that the offense charged has been committed and that there is probable cause to believe that the defendant is guilty. The matter of 'probable cause' has reference to the connection of the defendant with the allged offense rather than to the Corpus delicti. Something more than a finding of probable cause is required insofar as the commission of the crime charged is concerned. People v. Asta, 337 Mich. 590, 60 N.W.2d 472 (1953).
In the present case, Judge Yeotis determined that there was a conspiracy to murder Charles Thomas, but that there was not probable cause to believe that Joseph Cusenza was a coconspirator. Judge Papp disagreed.
The Michigan Supreme Court said in People v. Dellabonda, 265 Mich. 486, 490--491, 251 N.W. 594, 595--596 (1933):
'1. To authorize the examining magistrate to bind appellant over for trial there must have been good reason to believe appellant guilty of the crime charged. Some cases hold a Prima facie case against the accused must be made out. This court has not defined what constitutes probable cause, leaving each case to be determined upon its facts. Bouvier defines probable cause as 'A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged.' Bouvier's Law Dictionary (Rawle's 3d Rev.), p. 2728.
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...in a case of clear abuse of discretion, People v. Doss, supra, People v. Flint Municipal Judge, 41 Mich.App.[99 MICHAPP 24] 766, 770, 201 N.W.2d 111 (1972). The magistrate should not, however, refuse to bind over when the evidence raises a reasonable doubt as to a defendant's guilt, that qu......
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